CRIMES AGAINST PROPERTY: ch. 943

Updated 10/29/09


Armed Robbery - sufficiency of evidence.
State v. Keith Jones, 228 Wis.2d 593, 598 N.W.2d 259 (Ct. App. 1999).
For Jones: Edward J. Hunt.
Holding: Jones shoplifted. In the course of getting away, his codefendant allegedly threatened a pursuing guard. Notwithstanding the codefendant's acquittal, Jones's conviction for armed robbery is sustained against a sufficiency of evidence challenge.
Arson, § 943.02 -- Sufficiency of Evidence
State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw
Issue/Holding: Evidence held sufficient, despite disagreement of experts on how fire was started; the jury was required to determine whether defendant intentionally started the fire, not specifically how it was set. ¶¶44-45.
Burglary – Sufficiency of Evidence – Owner’s Nonconsent
State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶37      Owner nonconsent, like other elements of criminal offenses, may be proved by circumstantial evidence. See Bohachef v. State, 50 Wis.  2d 694, 700-01, 185 N.W.2d 339 (1971). The test on review is whether the evidence presented was sufficient to prove guilt beyond a reasonable doubt, and the same standard applies whether the evidence relied upon is direct or circumstantial. Id. at 701.

¶38      Here, the police received an alert that the Varda mat alarmed at 12:29 a.m. Service Motors placed the mat in front of its safe after hours. The only person on duty at that time of the night was the night manager/janitor. While the car lot may have been “open” to the public during nonbusiness hours, the evidence clearly established that the office was not. Champlain testified he is from Indiana, had never been in Fond du Lac before, and had arrived in Fond du Lac only half an hour before going to the Service Motors lot. Circumstantially, that placed Champlain at the Service Motors lot at a time when the office was closed. The jury reasonably could have inferred that the night manager/janitor, the person in lawful possession of the building at that time, did not himself set off the Varda alarm and had not given Champlain consent to enter the office. We conclude the circumstantial evidence was sufficient to establish nonconsent.

Burglary - Sufficiency of Evidence
State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers
Issue/Holding1:
¶23      Searcy claims the only evidence linking him to the Hoffman burglary was his fingerprint on the window screen in the Hoffmans’ bedroom. He argues that the mere presence of his fingerprint, standing alone, is insufficient to connect him to the burglary. Because there is other evidence supporting Searcy’s conviction, we need not decide whether fingerprint evidence, standing alone, is sufficient to sustain a burglary conviction. See State v. Scott, 2000 WI App 51, ¶16, 234 Wis. 2d 129, 608 N.W.2d 753 (refusing to address defendant’s argument that fingerprint evidence standing alone was insufficient to survive a motion to dismiss because the State presented other evidence as well). 

¶25      … The jury could have reasonably concluded from the presence of the fingerprint evidence when combined with the damage to the doors and window screen and the fact that the window screen could only be opened from the inside that Searcy had burglarized the Hoffman home.

Issue/Holding2:
¶29   From this evidence the jury could have reasonably come to the conclusion that Searcy was responsible for the DuRocher burglary. The stolen items were found in a home where he was staying only ten days after the burglary occurred. Additionally, no one claimed ownership of the items and the items were found tied up in a pillowcase and hidden in a closet. The jury could have reasonably drawn the inference that Searcy had stolen the items and tried to conceal them in his cousin’s closet.

¶30   Finally, the jury could have relied on the similarities between the two burglaries to convict Searcy. In both cases, the front door had apparently been kicked in—there was damage to the doors and their frames, and footprints on the doors themselves. Further, in both burglaries, pillowcases were taken off of beds, most likely to transport stolen property. From the similarities, the jury could have concluded that the same person committed both burglaries and the burglar’s modus operandi was, in part, to kick in the door and place stolen items in a pillowcase from the residence. Thus, the consistencies between both burglaries bolster our conclusion that the evidence presented at trial was sufficient to convict Searcy of both the Hoffman and DuRocher burglaries.

Burglary (Entry with Intent to Commit Felony) -- Elements
State v. Earl Steele III, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 595
For Steele: Timothy J. Gaskell
Issue: Whether felon in possession of firearm may be the underlying felony to burglary (entry with intent to commit felony), § 943.10(1)(a), when the defendant-felon was already in possession of the firearm before entry.
Holding: “(A) person commits a burglary when he or she unlawfully enters the premises with the intent to commit a felony while on the premises, regardless of whether the defendant’s actions while inside the premises constitute a new crime or the continuation of an existing offense.” ¶17. (The court also holds, ¶20, that felon-in-possession is a crime against persons or property, and therefore satisfies that qualification as well.)
Burglary (Entry with Intent to Commit Felony) -- Unanimity as to Intended Felony not Required
State v. Gordon Hammer, 216 Wis. 2d 214, 576 N.W.2d 285 (Ct. App 1997)
For Hammer: Charles W. Jones, Jr.
Issue: Whether juror unanimity is required for burglary, as to which felony was intended during the unlawful entry.
Holding:
In addressing Hammer’s unanimity claim, we engage in a two-step process. We must first determine whether this statute creates only one offense with multiple modes of commission or, whether the statute creates multiple offenses defined by each distinct felony the defendant intended to commit. ...

The language of the statute indicates that the crime here is one single offense with multiple modes of commission. ...

We next address whether the modes of commission were conceptually similar or conceptually distinct. ...

With this guidance regarding a somewhat indeterminate concept, we conclude that the modes of commission here are not conceptually distinct. It is clear from the statute that the legislature focused on the intent to commit a felony, not any particular felony. Therefore, all the felonies are conceptually similar for the purposes of unanimity because each and every felony provides the predicate intent element. There is no difference in penalty irrespective of which underlying felony or combination of felonies was intended. Rather, it is Hammer’s single entry into the dwelling with the requisite intent that constitutes the crime.

Under these circumstances, Hammer was not entitled to a unanimity instruction regarding the felonies that formed the basis of his intent to enter the dwelling. The jury merely needed to conclude that Hammer unlawfully entered the dwelling with an intent to commit a felony. The trial court did not erroneously instruct the jury.

Burglary - Sufficiency of Evidence
State v. Dennis E. Scott, 2000 WI App 51, 234 Wis. 2d 129, 608 N.W.2d 753
For Scott: Joseph E. Redding
Issue: Whether the evidence was sufficient to support conviction for burglary/theft.
Holding: Evidence that defendant's fingerprint was found on the "dock station" from which a lap-top was stolen from an office that sold only to other businesses and was not open to the public; and that defendant neither had worked nor had permission to be there sufficed to support the conviction. ¶¶13-16.
Burglary -- Entry to Commit Felony (Bail Jumping)
State v. Jerome G. Semrau, 2000 WI App 54, 233 Wis. 2d 508, 608 N.W.2d 376
For Semrau: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the commission of felony bail jumping, by entering the complainant's home in violation of bond conditions, supports burglary-entry of dwelling with intent to commit felony.
Holding: The underlying felony component of burglary must be a crime against persons or property; Semrau's "core conduct" consisted of trying to intimidate a witness, which is a crime against a person and therefore supports the burglary charge. ¶35.
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Burglary While Armed - nexus of weapon to underlying crime.
State v. David J. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999).
For Gardner: Steven P. Weiss, SPD, Madison Appellate
Holding: Gardner was convicted of burglary while armed, § 943.10(2), and argues that the crime requires a nexus of weapon to burglary. The argument fails, largely on authority of State v. Norris, 214 Wis. 2d 25, 571 N.W.2d 857 (Ct. App. 1997).
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Extortion - Threatening Interference with Education
State v. Richard L. Kittilstad, 231 Wis.2d 245, 603 N.W.2d 732 (1999), affirming State v. Kittilstad, 222 Wis.2d 204, 585 N.W.2d 925 (Ct. App. 1998)
For Kittilstad: Richard L. Wachowski.
Issue: Whether threats to interfere with educational opportunity may amount to extortion under § 944.30(1).
Holding: A threat to interfere with education is tantamount to a threat to a "calling or trade," and therefore falls within the statute. ¶50.
Although the holding remains unaffected, evidence was subsequently produced that the witnesses "fabricate(d) allegations of maltreatment by Kittilstad as a ploy to obtain hardship visas," and the conviction was vacated as a result, State v. Kittilstad, Case No. 2006AP2818, 10/2/07.
Forgery, § 943.38 -- Postal Money Order
State v. Eileen M. Entringer, 2001 WI App 157
For Entringer: William E. Schmaal, SPD, Madison Appellate
Issue: Whether, for purposes of the forgery statute, a person can falsely make a postal order by writing in the name of someone else as the payer.
Holding: Because forgery applies only to falsehoods that materially affect the document’s legal efficacy; and because “the money order was as good as cash,” listing another’s name as payer “had nothing to do with the genuineness of the execution of the money order” and “does not constitute ‘falsely making’ the money order.” ¶17. The evidence therefore didn’t support bindover, even if the defendant had an illegitimate purpose (concealing her true identity) in transacting the money order: “¶26. Wisconsin Stat. § 943.38 requires that false making relate to the genuineness of execution, not to the genuineness of content. Here, Entringer's use of her mother's name on a postal money order did not affect the money order's execution. Entringer's actions may have been a false representation within the contents of the money order, but that does not affect the genuineness of the money order itself. Consequently, the circuit court correctly dismissed the uttering a forged writing charge.” State v. Czarnecki, 2001 WI App 155, 237 Wis. 2d 794, 615 N.W.2d 672 distinguished (endorsement of check with assumed name supports forgery, because endorsement is part of executing check; money order, by contrast was executed when purchased), see ¶19.
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Forgery -- Endorsement with Fictitious Name as Commercially Acceptable Practice
State v. Scot A. Czarnecki, 2000 WI App 155, 237 Wis.2d 794, 615 N.W.2d 672
For Czarnecki: Patrick M. Donnelly, SPD, Madison Appellate
Issue: Whether use of an assumed name in endorsing a check may subject the endorser to forgery charge.
Holding: "Using a fictitious or assumed name when signing or endorsing a check is not always a forgery. When an assumed name is used for a fraudulent purpose, the act can be a forgery." ¶9.
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Theft and Concealing Firearms, §§ 943.20(1)(a) & (3)(d) -- Separate Counts for Each Firearm
State v. Jason J. Trawitzki, 2001 WI 77, affirming State v. Trawitzki, 2000 WI App 205, 238 Wis. 2d 795, 618 N.W.2d 884
For Trawitzki: Donald T. Lang, SPD, Madison Appellate
Issue: Whether taking multiple firearms during a single event supports separate charges for each firearm; and whether subsequent concealment supports separate charges for each concealed firearm.
Holding: Though arising under the same statute, “the charges against Trawitzki are not identical in fact. The test for whether charges are not identical in fact is whether ‘the facts are either separated in time or of a significantly different nature.’ Anderson, 219 Wis. 2d at 749. To be of a significantly different nature, each charged offense must require proof of an additional fact that the other charges do not. Id. at 750. In this case, each theft charge and each concealment charge against Trawitzki does require proof of an additional fact that the other charges do not, namely, the identity of the individual firearm. Because each charge alleges that Trawitzki either took or concealed a specific firearm, the State must prove the identity of the specific firearm. For example, the first firearm theft charge alleges that Trawitzki took and carried away a Smith & Wesson model 28 N-frame 6" revolver with satin stainless steel finish and black rubber grips. The State must prove, therefore, that Trawitzki did exactly what is alleged. The second firearm theft charge alleges that Trawitzki took and carried away a Star PD 45 semi-auto 4" blue/alloy frame pistol. Consequently, the State must prove that.” ¶28.
Because the offenses are factually distinct, the court presumes a legislative intent in favor of separate charges; that presumption isn’t overcome, largely because the legislature separated out firearms as a subject class of property, § 943.20(3)(d)1 and 5. (Other, non-enumerated items are charged according to value, while the enumerated object of firearm is charged according to number of items taken. ¶34.)
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Theft as Trustee/Bailee in Business Setting, § 943.20(1)(b) and (3)(c) – Elements: Generally
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding:
¶57      Next, we address Doss's argument that there was insufficient evidence to support her conviction under Wisconsin Statute § 943.20(1)(b). Doss correctly recites the elements the State was required to establish to obtain a conviction: that (1) she had possession of money as a result of her position as a personal representative of her father's estate; (2) she initially retained possession of the money contrary to her authority and without the owner's consent; (3) she knew that retention of the money was contrary to her authority and without the owner's consent; and (4) she intended to convert the money to her own. See Wis JI——Criminal 1444 & Comment n.1; State v. Blaisdell, 85 Wis. 2d 172, 176, 270 N.W.2d 69 (1978).
Theft as Trustee/Bailee in Business Setting, § 943.20(1)(b) and (3)(c) – Sufficiency of Evidence
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding:
¶64      We are in accord with the conclusion of the court of appeals that:
[t]here was evidence in the record from which a jury could reasonably infer all the elements of the crime charged. Doss withdrew all of the money from the M&I estate account and opened a SunTrust account with the estate money. The record reflects that Doss withdrew the funds from the SunTrust account on September 15, 2004. In October, 2004, the Wisconsin probate court held a hearing at which Doss appeared by telephone. The court ordered Doss to pay $70,555.47 (the estate funds) to the clerk of courts. Doss did not comply with the order. Thus, the jury could reasonably infer that Doss retained possession of the funds. Accordingly, we conclude the evidence was sufficient to support the verdict.
Doss, 305 Wis. 2d 414, ¶27. We also note that the money obtained by Doss from the estate account was never returned to the estate account. We conclude that Doss has failed to establish that the evidence, viewed most favorably to the State, was so insufficient as a matter of law that no reasonable trier of fact could have found guilt beyond a reasonable doubt. See Tri-Tech Corp. of Am., 254 Wis. 2d 418, ¶28; Poellinger, 153 Wis. 2d at 501.
Crimes: Theft by Contractor, §§ 779.02(5), 943.20(1)(b) – Claims Against Money in Trust Fund Must Be Paid Proportionately
State v. Angela A. Keyes / Matthew E. Keyes, 2008 WI 54, affirming in part and reversing in part, 2007 WI App 163
For both Keyes: Michael J. Devanie
Issue/Holding1:
¶21 The Keyes were charged with theft by contractor under Wis. Stat. § 779.02(5), part of Wisconsin's construction lien law. … The statute prohibits the use of the money in the trust fund for any purpose other than paying claims until such time as the claims have been paid in full. In case of deficiency, the claims are to be paid proportionately. Violation of the payment provisions constitutes theft by contractor….

¶24 Like the court of appeals, we will assume without deciding that Angela was acting as a subcontractor on the project. …

¶25 The uncontroverted evidence in this case is that Angela received payments of $75,241.12 …. Thus, Angela was fully compensated.

¶26 In contrast, Jones testified that there were subcontractors who had claims due ….

¶28 The Keyes' actions therefore conflict with the language of § 779.02(5). Assuming that Angela had a claim to the payments she received, taking full payment when third-party subcontractors remained unpaid violates the proportionality requirement of the statute.

Issue/Holding2:
¶35 Although the circuit court's conclusion that there was probable cause to believe that the Keyes had committed a felony was based upon its determination that the subcontractors should have been paid proportionally, the court of appeals jettisoned the inquiry. Instead of focusing on proportionality, it focused on profit.

¶39 Even if it turns out that the money was profit, that alone is neither here nor there. Rather, the issue is whether payment was proportional as required by § 779.02(5).

¶46 It is not clear whether the unaccounted for $36,036.28 was merely profit. Further, the court of appeals' approach fails to explain how to construe "profit," implies that contractors or subcontractors may not receive profit on a project until the project ends, and is not required under Sobokowiak. We therefore disagree with the court of appeals that § 779.02(5) prohibits prime contractors acting as subcontractors from receiving profit prior to paying other subcontractors for their labor and materials.

Crimes: Theft by Contractor, §§ 779.02(5), 943.20(1)(b) – Elements, Generally
State v. Angela A. Keyes / Matthew E. Keyes, 2007 WI App 163, reviewed on other grounds, 2008 WI 54
For both Keyes: Michael J. Devanie
Issue/Holding:

¶26   As to the particular crime at issue in this case, the Wisconsin Supreme Court has explained that

[t]he elements of the offense of criminal theft by contractor are: “(1) the defendant acted as a prime contractor; (2) the defendant received money for the improvement of land from the owner or a mortgagee; (3) the defendant intentionally used the money for purposes other than the payment of bona fide claims for labor or materials prior to the payment of such claims; (4) the use was without the owner or mortgagee’s consent, and contrary to the defendant’s authority; (5) the defendant knew the use was without consent and contrary to his authority; and (6) the defendant used the money with the intent to convert it to his own use or the use of another.”

Tri-Tech Corp. of Am. v. Americomp Servs., Inc., 2002 WI 88, ¶26, 254 Wis. 2d 418, 646 N.W.2d 822 (2002) (citations omitted). Furthermore, to establish that the offense constitutes a Class C felony, the State must show that the value of the misappropriated money exceeds $2,500. Wis. Stat. § 943.20(3)(c).…

Crimes: Theft by Contractor, §§ 779.02(5), 943.20(1)(b) – Sufficiency of Bindover Proof
State v. Angela A. Keyes / Matthew E. Keyes, 2008 WI 54, affirming in part and reversing in part, 2007 WI App 163
For both Keyes: Michael J. Devanie
Issue/Holding:
¶47 We turn next to the question of whether there was sufficient evidence presented at the preliminary hearing to support the bindover. Under Wis. Stat. § 970.03(7), a court shall bind a defendant over for trial if after the preliminary hearing the "the court finds probable cause to believe that a felony has been committed by the defendant." As we stated in section II, our review is limited to whether there exists "any substantial ground for the exercise of judgment by the committing magistrate." Berby, 81 Wis. 2d at 684.

¶52 At the preliminary hearing Jones testified that the payments to Angela had not been supported by adequate documentation. Additionally, she testified that she was dubious that the Keyes were entitled to all of the money they claimed as payment for Matthew Keyes' labor.

¶53 The testimony provided by Jones is substantial, and it is sufficient to support the circuit court's determination that subcontractors should have received proportionate payment. The evidence presented therefore provides a substantial ground for the circuit court's exercise of judgment in determining that a felony had been committed by the Keyes. We therefore decline to upset the circuit court's decision to bind over the defendants.

Theft by Fraud, § 943.20(1)(d) – Civil Tort Law, as Aid to Construction
State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger
Issue/Holding:
¶17   Wisconsin Stat. § 943.20(1)(d) prohibits a type of fraud, which is addressed by both criminal and civil tort law. See State v. Timblin, 2002 WI App 304, ¶31, 259 Wis. 2d 299, 657 N.W.2d 89. While there are no common law crimes, this court has consulted civil tort law as an aid to interpreting the criminal fraud statutes. Id., ¶31 n.5; see also State v. Mueller, 201 Wis. 2d 121, 138-39, 549 N.W.2d 455 (Ct. App. 1996). In his brief, Ploeckelman also relies on tort law for guidance as to how to interpret § 943.20(1)(d)’s statutory language and does not dispute its use here.
Theft by Fraud, § 943.20(1)(d) – Element of Misrepresentation – Satisfied by Failure to Discharge Duty to Disclose
State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger
Issue/Holding:
¶18   A representation can be acts or conduct. See Stecher v. State, 168 Wis. 183, 186, 169 N.W. 287 (1918). In Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, 283 Wis. 2d 555, 699 N.W.2d 205, our supreme court laid out the circumstances where a failure to disclose can constitute a representation. The court concluded:
a party to a business transaction has a duty to disclose a fact where: (1) the fact is material to the transaction; (2) the party with knowledge of that fact knows that the other party is about to enter into the transaction under a mistake as to the fact; (3) the fact is peculiarly and exclusively within the knowledge of one party, and the mistaken party could not reasonably be expected to discover it; and (4) on account of the objective circumstances, the mistaken party would reasonably expect disclosure of the fact.
Id., ¶20. If a duty to disclose exists, the failure to disclose is a representation. See Id., ¶13 (When there is a duty to disclose a fact, the law has treated the failure to disclose that fact “as equivalent to a representation of the nonexistence of the fact.”); see also Ollerman v. O’Rourke Co., 94 Wis. 2d 17, 26, 288 N.W.2d 95 (1980).

¶20   Additionally, the Restatement (Second) of Torts § 529 (1977), provides that a fraudulent misrepresentation includes “[a] representation stating the truth so far as it goes but which the maker knows or believes to be materially misleading because of his failure to state additional or qualifying matter .…” Both parties argue the representation at issue is the quality of the milk, which the milk hauler altered with Ploeckelman’s knowledge. However, Ploeckelman also made a representation as to the ownership of the milk to Mullins Cheese, which entitled him to payment based on the milk’s quality. Ploeckelman admitted he knew his milk quality was being altered by the milk hauler. This knowledge makes his representation to Mullins Cheese regarding his milk materially misleading because he failed to disclose the milk quality tampering, which raised the price of the milk.

Theft by Fraud, § 943.20(1)(d) -- Elements -- Agency
State v. Todd W. Timblin, 2002 WI App 304
For Timblin: Alex Flynn
Issue: Whether agency necessarily becomes an element of theft by fraud, § 943.20(1)(d), when the defendant obtains the property through an intermediary.
Holding: The intermediary must actually be an agent before an agency relationship is necessary to state's proof. Where, as here, the intermediary acted as a mere "conduit" for delivering money between defrauded victims and defendant -- where the victims self-managed the money by maintaining control over when and to whom the money would be turned over; and where there was no "manifestation" of an intent to establish an agency relationship -- agency was not an element of the offense. ¶¶22-30. Theft by deception is a species of fraud, and may subject the maker of a fraudulent misrepresentation to liability for loss incurred by someone who didn't directly hear it, if the maker intends or has reason to expect that the misrepresentation will be repeated to the other person. And, because there was sufficient evidence in this case that the defendant intended or had reason to expect that the victims would relied on the misrepresentations he made to the intermediary, there was an adequate factual basis for the guilty pleas. ¶¶31-33.
Attempted Theft from Person, § 943.20(3)(e) – Sufficiency of Evidence
State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09
For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: Evidence held sufficient to sustain conviction for attempted theft from person, where Tidwell demanded money from a restaurant clerk, hit his fist on cash register and fax machine next to cash register, and tried to grab and take the fax machine:
¶10   In the case at bar, Tidwell contends that the facts of this case are not “circumstances which made stealing particularly dangerous and undesirable.” Hughes, 218 Wis. 2d at 545. We disagree. Here, Tidwell approached Rondeau while she was behind the cash register counter and demanded money. The counter was very narrow and had only one entrance which was blocked by Tidwell, leaving Rondeau trapped in a small area within arms reach of Tidwell. When Rondeau did not immediately give Tidwell the money, he began smashing the fax machine and cash register with his fists, becoming louder and louder in his demands for the money.

¶11   Tidwell even tried to grab the fax machine and a brief tug of war ensued between he and Rondeau before it was released. These actions caused Rondeau to be legitimately “upset; shaking and scared.” Tidwell’s actions, the shouting, the grabbing of the fax machine, and the pounding on the fax machine and cash register, are “the type of ‘particularly dangerous and undesirable’ actions to which theft from the person should apply.” See Graham, 237 Wis.  2d 620, ¶10. We conclude that there is sufficient evidence to allow a reasonable jury to find beyond a reasonable doubt that Tidwell was guilty of theft “from the person.”

The court also concludes that Rondeau had constructive possession of the restaurant’s property, hence the attempted theft was of his “person,” ¶12. Compare, Byrd v. Israel, 513 F. Supp. 1077, 1082 (E.D. Wis. 1981) (holding that “it was the store rather than its employees that were robbed”: “‘Although an allegation that the property taken was owned by one person and proof that it was owned by another may give rise to a fatal variance in larceny cases, the rule is otherwise as to robbery, (because) a taking by force or putting in fear is the gist of the offense.’ 67 Am.Jur.2d Robbery § 66 (1973) (footnotes omitted). See Walton v. State, 64 Wis.2d 36, 41-42, 218 N.W.2d 309 (1974). It matters less that the property belonged to a particular owner than that it belonged to someone other than the robber. See State v. Bowden, 62 N.J.Super. 339, 162 A.2d 911 (1960).”). It does seem as if the offense could have been charged as attempted robbery of the restaurant, and the net result is that the court of appeals has blurred the distinction between theft and robbery.
Theft From Person - Element of "Taken From the Body of the Person"
State v. Randy J. Graham, 2000 WI App 138, 237 Wis. 2d 620, 614 N.W.2d 504
For Graham: James L. Fullin, Jr., SPD, Madison Appellate
Issue: Whether the evidence was sufficient to support conviction for theft from person, where the stolen property was not touching the owner's body at the time of taking, but only because the defendant first had caused her to fall away from the property.
Holding: "Whether Graham took the purse from Graham's person or moved Graham's person in order to take the purse, his actions separated the purse from the person and constituted the type of theft for which § 943.20(3)(d)2 was created. We do not agree that Graham's 'taking' of the purse was limited to the precise instant in which he grabbed it." ¶11
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Theft From Person -- Element of "From the Person" -- Property Taken from Person's Wheelchair
State v. Sylvester Hughes, 218 Wis. 2d 538, 582 N.W.2d 49 (Ct. App. 1998)
For Hughes: Michael H. Kopp
Issue/Holding:
Accordingly, precisely because persons who use wheelchairs, and those who do not, deserve equal treatment and protection under the laws prohibiting theft,9 we conclude that theft "from the person" encompasses the taking of property from the wheelchair of one sitting in the wheelchair at the time of the taking.10
10 In this case, although we refrain from embracing either a narrow or broad standard that would necessarily apply to other factual situations, we do not refrain from acknowledging two important implications that logically and ineluctably flow from our holding: (1) "wheelchair," as we have used the term in this decision, encompasses functional equivalents, including canes, crutches, walkers, motorized carts and other apparatuses serving the same purpose; and (2) "sitting in the wheelchair," as we have used the phrase in this decision, encompasses the times and locations involved in getting into or out of, or taking hold of or releasing, a "wheelchair" or its functional equivalent.
Identity Theft, § 943.201 – First Amendment Analysis: Regulation of Speech
State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn
Issue/Holding: First amendment analysis applies to an identity theft charge alleging that Baron sent emails from Fischer’s account without authorization and with intent to harm his reputation:
See Texas v. Johnson, 491 U.S. 397, 403-04 (1989); State v. Robins, 2002 WI 65, ¶41, 253 Wis.  2d 298, 646 N.W.2d 287. If speech or expressive conduct is being regulated, the First Amendment is implicated.

¶21      In the case at hand, Wis. Stat. § 943.201(2) provides in relevant part: "Whoever, for any of the following purposes[, e.g., to harm the reputation of the individual,] intentionally uses . . . any personal identifying information . . . of the individual . . . without the authorization or consent of the individual and by representing that he or she is the individual, . . . is guilty of a Class H felony."

¶22      We conclude that, as charged and as applied to the facts of this case, Wis. Stat. § 943.201(2)(c) regulates speech in addition to conduct. The statute punishes a person for using another individual's personal identifying information with the intent to harm that individual's reputation. [10] Under the facts of this case, the statute regulates conduct because it restricts the use of another's identity and the distribution of reputation-harming materials, but speech is also being regulated because the content of the e-mails is critical in order to evidence Baron's intent to use personal identifying information to harm Fisher's reputation. Therefore, this is not a case as in Robins where the conduct was merely initiated, evidenced, or carried out in part by speech. Rather, this is a case where the reputation-harming portion of the charge is evidenced by the content of the speech, i.e., the content of the e-mails.

¶23      Unlike in Robins, where speech was used to show the defendant's intent to entice a child, speech in this case is not used to show the defendant's intent to use another individual's personal identifying information. Absent the e-mails, i.e., speech, which were used with the intent to harm Fisher's reputation, Baron has not committed an element of the crime as alleged. Therefore, just as communicative elements were being regulated in Johnson and O'Brien, communicative elements are being regulated in this case. Under the statute as charged and applied to the facts of this case, it is the content of the e-mails, i.e., the speech, that evidences the defendant's intent to use personal identifying information to harm Fisher's reputation. Thus, here, speech in addition to conduct is being regulated. [11]

The court rejects the idea that the prohibited conduct at issue (unauthorized use of ID) is analogous to child enticement. The latter focuses on the act of taking a child to a secluded place, which is to say a single offense supported by alternative possible mental state components. If the analogy held up, then the identity theft charge would similarly be focused on the conduct (misappropriating Fischer’s identity). But it doesn’t hold up, and the charged identity theft by contrast involves conduct (unauthorized use) “coupled with reputation-harming speech.” Unlike enticement, “identity theft can occur in multiple ways,” so that “the prohibited conduct charged includes more than simply the use of Fischer’s identity”—namely, communications intended to harm his reputation. Note that enticement is a single offense, State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998); whether identity theft might support multiple charges wasn’t before the court but becomes a plausible outcome in light of the court’s discussion.

Interesting concurrence from Justice Bradley, expressing the idea that the statute regulates only conduct, not speech, ¶¶59-68. Worth mention, because she’s ratifying the thrust of the court of appeals’ analysis, and thus expressing her disagreement with the majority on this point; the supreme court’s affirmance, then, is in effect, “as modified.”

Identity Theft, § 943.201 – First Amendment Analysis: Content-Based Speech
State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn
Issue/Holding: The charge of identity theft, based on Baron’s alleged conduct in sending emails from Fischer’s account without authorization and with intent to harm his reputation, is “content based” within the meaning of First Amendment analysis:
¶38      In the case at hand, we conclude that Wis. Stat. § 943.201(2)(c) is content based because whether Baron's conduct is prohibited depends entirely upon whether Baron's speech, i.e., the content of the e-mails, was intended to be reputation-harming speech, which is similar to the content-based provisions in Boos and Burson where the prohibition was dependent upon whether signs were critical of foreign governments or related to political campaigns. However, we do not decide today whether subsection (c) of Wis. Stat. § 943.201(2) must always be deemed content based under all circumstances as we do not address potential situations where something other than speech is used with the intent to harm another's reputation.

¶39      Unlike Taxpayers for Vincent, Renton, or Brock where the statutes were not designed to suppress certain ideas, this statute under the facts of this case, suppresses reputation-harming speech when it is accompanied by intentionally using another's identity. There is no identity theft in this case unless the trier of fact determines that Baron used Fisher's personal identifying information with the intent to harm Fisher's reputation. Therefore, Baron is prohibited from disseminating speech that is intended to be harmful to Fisher's reputation when that speech occurs through the unauthorized use of Fisher's personal identifying information. As a result, Wis. Stat. § 943.201(2)(c), as applied to Baron, is content based.

¶44      Accordingly, the State bears the burden of showing that the statute overcomes strict scrutiny in order to survive Baron's as-applied challenge.

Fischer, the target of Baron’s alleged reputation-harming effort, was a public official: does that matter to the content-based conclusion? The court doesn’t say.
Identity Theft, § 943.201 – First Amendment Analysis: Charge Survives Strict Scrutiny
State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn
Issue/Holding: The identity theft charge against Baron, sending emails from Fischer’s account without authorization and with intent to harm his reputation as a government official, survives strict scrutiny analysis under the First Amendment (freedom of speech clause):
¶45      To survive strict scrutiny, the State has the burden to show that the "'regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.'" Boos, 485 U.S. at 321 (citation omitted).

¶48      In the case at hand, Baron concedes that the State has a compelling interest in preventing identity theft. [13] He, however, asserts that the statute is not narrowly tailored to achieve that interest because it eliminates Baron's First Amendment right to defame a public official with true information. The State, in turn, argues that the statute survives strict scrutiny because the statute is narrowly tailored in that it applies only when the defendant intentionally uses an individual's personal information to harm that individual's reputation. We agree with the State and conclude that this is one of those "rare cases" that a government regulation survives strict scrutiny. See Burson, 504 U.S. at 211 (stating "we reaffirm that it is the rare case in which we have held that a law survives strict scrutiny"). As applied to Baron, the statute is narrowly tailored to achieve the government's compelling interest.

Long and short of it is that Fischer could have exercised his right to defame a public official without falsely assuming that official’s identity, ¶¶49-52. Justice Prosser’s concurrence makes the same point: sending the documents obtained from Fischer’s computer from Baron’s own computer wouldn’t violate this statute; nor would sending them anonymously, ¶80. Note that truthfulness of the information disseminated is simply irrelevant; focus, instead, is in the way the information was disseminated, ¶¶53-54.

Bit of back ground. Baron was an EMT, working under Fischer, the county’s Emergency Medical Services director. Baron allegedly accessed Fischer’s computer without authorization, obtained emails showing an extramarital affair, then sent those emails to various people from Fischer’s own account. Fischer committed suicide the next day. Baron allegedly admitted to this conduct, explaining he wanted others to see that Fischer wasn’t “golden,” ¶¶4-5. If you don’t live in Jefferson County but this still sounds vaguely familiar, you might be confusing it with a much more recent and widely reported tale of a public official gone astray. A most curious coincidence, this lurid account also coming to light when someone sent out emails written by the principals. This busybody, though, chose to remain anonymous and therefore can’t be accused of identity theft with intent to harm reputation. And those of you with much longer memories will find echoes from State v. Eisenberg, 48 Wis.2d 364, 180 N.W.2d 529 (1970). But you already knew that the Reports are littered with tragic stories of hubris, lust and revenge.

Unauthorized Use of Personal Identifying Materials, § 943.201(2) – Generally, Continuing Offense
State v. George W. Lis, Sr., 2008 WI App 82
For Lis: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶7        As relevant here, a person violates Wis. Stat. § 943.201(2) when he or she
intentionally uses, attempts to use, or possesses with intent to use any personal identifying information … of an individual … (a) To obtain credit, money, goods, services, employment, or any other thing of value or benefit.
A violation of the statute is a continuing offense. State v. Ramirez, 2001 WI App 158, ¶16, 246 Wis. 2d 802, 633 N.W.2d 656. A continuing offense is a course of conduct that takes place over time, as opposed to a single incident, and is complete when the defendant performs the last act that, viewed alone, is a crime. John v. State, 96 Wis. 2d 183, 188, 291 N.W.2d 502 (1980). So, for example, in a welfare fraud case, the final act is the last receipt of welfare benefits. Id. at 191. In the identity theft context, a person who uses another’s identity to secure employment commits a continuing violation of § 943.201(2) so long as the person receives wages or other benefits from the employment. See Ramirez, 246 Wis. 2d 802, ¶17.
Unauthorized Use of Personal Identifying Materials, § 943.201(2) – Application to Closing of Fraudulently Opened Accounts: Liability Terminates
State v. George W. Lis, Sr., 2008 WI App 82
For Lis: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶1        … The key question in this appeal is whether Lis’s crimes continued after the fraudulent accounts he opened were closed. We conclude they did not. …

¶8        In this case, Lis’s offense continued into 2003 and 2004 only if he received a “thing of value or benefit” after the accounts were closed in 2000.  A “benefit” is “something that guards, aids, or promotes well-being: advantage.” Webster’s Third New International Dictionary 204 (unabr. 1993). Similarly, “valuable” means “possessing monetary value in use or exchange” or “characterized by usefulness, worth, or serviceableness.” Id. at 2530. In this case, so long as the Verizon account was open, Lis was using his son’s identity to obtain a “thing of value”—phone service. So long as the credit card accounts were open, Lis was using his son’s identifying information to obtain credit. Once those accounts were closed, however, the benefits to Lis—the phone and credit—ended.

¶15      As the example cited in Ramirez illustrates, an identity theft typically involves an initial theft of information, followed by continued use of the information in a variety of ways. It is these two actions—theft and unauthorized use of information—that Wis. Stat. § 943.201(2) was intended to criminalize. While the theft and unauthorized use will likely have ongoing consequences for the victim—and result in ongoing nonpayment of debts incurred—the crime itself consists of the initial theft and the use of the information, not those ongoing consequences.

Identity Theft, § 943.201 – Obtaining Lower Bail, as Something of “Value”
State v. Pamela L. Peters, 2003 WI 88, on certification
For Peters: Terry W. Rose
Issue/Holding:
¶1. This case is before the court on certification from the court of appeals on a question of first-impression regarding the scope of Wisconsin's identity theft statute, Wis. Stat. § 943.201(1999-2000). Specifically, the question is whether a defendant who misappropriates another's identity and uses it during an arrest and in subsequent bail proceedings to obtain lower bail has done so "to obtain credit, money, goods, services or anything else of value" within the meaning of the identity theft statute. Wis. Stat. § 943.201(2). We answer this question yes.

¶2. "Bail" is statutorily defined as "monetary conditions of release." Wis. Stat. § 969.001(1). "Monetary" means "of or relating to money." Webster's Third New International Dictionary 1457-58 (1998). Bail can consist of cash or an unsecured appearance bond or both. Wis. Stat. §§ 969.02 and 969.03. In either case, it operates as a form of credit, securing the defendant's return to court. Accordingly, a defendant who misappropriates another's identity and uses it during an arrest and in bail proceedings to obtain lower bail has stolen that identity to obtain credit or money, or both, within the meaning of the identity theft statute. Wis. Stat. § 943.201(2).

(The court goes on to say that nothing in the statute explicitly or implicitly “limits its application to identity thefts that are carried out to obtain something that has ‘commercial value’ or ‘market value.’” ¶17. A concurrence points out that this statement isn’t necessary, is dicta. ¶35. And, indeed, the majority also acknowledges:
¶23. Accordingly, this case does not require us to determine the precise meaning or scope of the phrase "or anything else of value" in the identity theft statute. It is enough to note that the addition of the phrase "or anything else of value" to the itemized list of "credit, money, goods [or] services" does not narrow the meaning of "credit, money, goods [or] services." There is no purpose for the presence of the phrase "or anything else of value" except to expand the list of potential qualifying "things of value." But we do not need to determine the precise meaning or scope of the phrase "or anything else of value" or attempt to delineate the outer limits of the identity theft statute in order to decide this case. Because bail can be cash, a bond, or both, and operates as a form of credit, the misappropriation of another's identity to obtain lower bail meets the statute's requirement that the perpetrator misappropriate an identity to obtain credit or money. Wis. Stat. § 943.201(2)
Theft of Identity, § 943.201(2) -- Continiung Offense
State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski
Issue: Whether § 943.201(2) creates a continuing offense such that, as applied to Ramirez, it did not violate the ex post facto clause even though the statute was promulgated after he commenced the activity that formed the basis for the charge.
Holding: “¶18. We hold that Ramirez obtained money in the form of wages, not merely the opportunity for employment, as the result of his unauthorized use of Wulfenstein's personal identifying information. We also hold that Wis. Stat. § 943.201(2) creates a continuing offense. Since Ramirez's identity theft allowed him to obtain wages after the effective date of the statute, we hold that the application of the statute did not violate the ex post facto provisions of the Wisconsin Constitution.”
Venue: Receiving Stolen Property, § 943.34
State v. Kenneth W. Lippold, 2008 WI App 130, PFR filed 8/18/08
For Lippold: Thomas J. Nitschke
Issue/Holding: On a charge of receiving stolen property, venue may rest in the county where the underlying theft occurred (and, provable by circumstantial rather than direct evidence):
¶16   Extrapolating from the holding in Swinson, we conclude that because the crime of receiving stolen property requires more than two acts, and one of the acts is that the property must be stolen and that act occurred in Milwaukee County, venue was properly established. Lippold argues that the element of the crime of receiving stolen property—that the State needs to prove the property was stolen—is not an “act” in the classical sense; rather, the word “stolen” simply describes the type of property needed to fulfill the requirements of the crime. Again, we look to Swinson for assistance. In Swinson, several of the elements are not “acts” as Lippold would have us define them. Instead, they appear to be states of mind. Consequently, we are satisfied that Lippold reads Swinson too narrowly.
The court stresses that the evidence of Lippold’s guilt of the theft itself “was extremely strong,” ¶¶27-28, but the holding doesn’t seem to rest on that perception.
Forgery § 943.38(2) – Elements: Intent to Defraud not Element
State v. Daniel T. O'Shea, 221 Wis. 2d 418, 585 N.W.2d 662 (Ct. App. 1998)
For O'Shea: Jeffrey D. Knickmeier
Issue/Holding: Forgery, §. 943.38(2), does not require that the offender act with intent to defraud.
Fraudulent Use of Transaction Card, § 943.41(5)(a)1.a – Elements: Actual Possession not Necessary
State v. Daniel T. O'Shea, 221 Wis. 2d 418, 585 N.W.2d 662 (Ct. App. 1998)
For O'Shea: Jeffrey D. Knickmeier
Issue/Holding:
Shea alleges that § 943.41(3), Stats., requires the State to prove that the offender acquired actual possession of a cardholder's financial transaction card without consent. ...

We begin with the language of § 943.41(5)(a), Stats., which reads as follows:

1. No person shall, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value or any other person: a. Use, for the purpose of obtaining money, goods, services or anything else of value, a financial transaction card obtained or retained in violation of sub. (3) or a financial transaction card which the person knows is forged, expired or revoked ....
Because subparagraph (5)(a)1.a incorporates subsection (3) by reference, we must also examine subsection (3). Section 943.41(3)(a), Stats., provides in part:
No person shall acquire a financial transaction card from the person, possession, custody or control of another without the cardholder's consent ....
Section 943.41(1)(em), Stats., defines financial transaction card as an "instrument or device issued by an issuer for the use of the cardholder in any of the following: (1) [o]btaining anything on credit; (2) [c]ertifying or guaranteeing the availability of funds sufficient to honor a draft or check; [or] (3) [g]aining access to an account." Section 943.41(1)(em). ...

This interpretation of the unambiguous statutory language is appropriate because the account number can be used by the cardholder in the same manner as the actual credit card to perform most of the functions set out in § 943.41(1)(em), Stats. For example, cardholders can obtain items on credit by calling a merchant on the phone and providing their account number. We are satisfied that the language of the statute should not be read so narrowly as to require that an offender acquire actual possession of the victim's financial transaction card.