Wis. Stat. § 943.20
Wis. Stat. § 943.20
If one person takes property from the person of another, and a 2nd person carries it away, the evidence may show a theft from the person under subs. (1) (a) and (3) (d) 2. [now sub. (3) (e)], either on a theory of conspiracy or of complicity. Hawpetoss v. State, 52 Wis. 2d 71, 187 N.W.2d 823 (1971). Theft is a lesser included offense of robbery. Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972). Attempted theft by false representation (signing another's name to a car purchase contract) is not an included crime of forgery (signing the owner's name to a car title to be traded in). State v. Fuller, 57 Wis. 2d 408, 204 N.W.2d 452 (1973). Under sub. (1) (d), it is not necessary that the person who parts with property be induced to do so by a false and fraudulent scheme; the person must be deceived by a false representation that is part of such a scheme. Schneider v. State, 60 Wis. 2d 765, 211 N.W.2d 511 (1973). In abolishing the action for breach of promise to marry, the legislature did not sanction either civil or criminal fraud by the breaching party against the property of a duped victim. Restrictions on civil actions for fraud are not applicable to related criminal actions. Lambert v. State, 73 Wis. 2d 590, 243 N.W.2d 524 (1976). Sub. (1) (a) should be read in the disjunctive so as to prohibit both the taking of, and the exercise of unauthorized control over, property of another. The sale of stolen property is thus prohibited. State v. Genova, 77 Wis. 2d 141, 252 N.W.2d 380 (1977). The state may not charge a defendant under sub. (1) (a) in the disjunctive by alleging that the defendant took and carried away or used or transferred. Jackson v. State, 92 Wis. 2d 1, 284 N.W.2d 685 (Ct. App. 1979). Circumstantial evidence of owner nonconsent was sufficient to support a jury's verdict. State v. Lund, 99 Wis. 2d 152, 298 N.W.2d 533 (1980). Section 943.20(1) (e) does not unconstitutionally imprison one for debt. State v. Roth, 115 Wis. 2d 163, 339 N.W.2d 807 (Ct. App. 1983). A person may be convicted under s. 943.20(1) (a) for concealing property and be separately convicted for transferring that property. State v. Tappa, 127 Wis. 2d 155, 378 N.W.2d 883 (1985). A violation of sub. (1) (d) does not require proof that the accused personally received property. State v. O'Neil, 141 Wis. 2d 535, 416 N.W.2d 77 (Ct. App. 1987). "Obtains title to property," as used in sub. (1) (d), includes obtaining property under a lease by fraudulent misrepresentation. State v. Meado, 163 Wis. 2d 789, 472 N.W.2d 567 (Ct. App. 1991). The federal tax on a fraudulently obtained airline ticket was properly included in its value for determining whether the offense was a felony under sub. (3). State v. McNearney, 175 Wis. 2d 485, N.W.2d (Ct. App. 1993). The definition of "bailee" under s. 407.102(1) is not applicable to sub. (1) (b); definitions of "bailment" and are bailee" discussed. State v. Kuhn, 178 Wis. 2d 428, 504 N.W.2d 405 (Ct. App. 1993). When the factual basis for a plea to felony theft does not establish the value of the property taken, the conviction must be set aside and replaced with a misdemeanor conviction. State v. Harrington, 181 Wis. 2d 985, 512 N.W.2d 261 (Ct. App. 1994). The words "uses," "transfers," "conceals," and "retains possession" in sub. (1) (b) are not synonyms describing the crime of theft but describe separate offenses. A jury must be instructed that there must be unanimous agreement on the manner in which the statute was violated. State v. Seymour, 183 Wis. 2d 683, 515 N.W.2d 874 (1994). Theft from the person includes theft of a purse from the handle of an occupied wheelchair. State v. Hughes, 218 Wis. 2d 538, 582 N.W.2d 49 (Ct. App. 1998), 97-0638. When the victim had pushed her purse against a car door with her leg and the defendant's action caused her to fall back, dislodging the purse, his act of taking it constituted taking property from the victim's person under sub. (3) (d) 2. [now sub. (3) (e)]. State v. Graham, 2000 WI App 138, 237 Wis. 2d 620, 614 N.W.2d 504, 99-1960. Multiple convictions for the theft of an equal number of firearms arising from one incident did not violate the protection against double jeopardy. State v. Trawitzki, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801, 99-2234. Agency is not necessarily an element of theft by fraud when the accused obtains another person's property through an intermediary. State v. Timblin, 2002 WI App 304, 259 Wis. 2d 299, 657 N.W.2d 89, 02-0275. Multiple charges and multiple punishments for separate fraudulent acts was not multiplicitous. State v. Swinson, 2003 WI App 45, 261 Wis. 2d 633, 660 N.W.2d 12, 02-0395. A party to a business transaction has a duty to disclose a fact when: 1) the fact is material to the transaction; 2) the party with knowledge of the fact knows 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. If a duty to disclose exists, failure to disclose is a representation under sub. (1) (d). State v. Ploeckelman, 2007 WI App 31, 299 Wis. 2d 251, 729 N.W.2d 784, 06-1180. The intent of the "from the person" penalty enhancer under sub. (3) (e) was to cover circumstances that made stealing particularly dangerous and undesirable. Although the cash register the defendant was attempting to steal was not connected to the manager at the register, at the time of the attempted theft the manager was within arm's reach of the defendant while the defendant was smashing the register and was in constructive possession of the money when the attempted theft occurred even if the money was not physically touching her person. The manager's constructive possession of the money made this a particularly dangerous and undesirable theft. State v. Tidwell, 2009 WI App 153, 321 Wis. 2d 596, 774 N.W.2d 650, 08-2846. The market value to the telephone company of the services that a prisoner's scam fraudulently obtained was the correct measure of the value of the stolen property in this case. State v. Steffes, 2012 WI App 47, 340 Wis. 2d 576, 812 N.W.2d 529, 11-0691. Affirmed on other grounds. 2013 WI 53, 347 Wis. 2d 683, 832 N.W.2d 101, 11-0691. There is no requirement under that at least one co-conspirator expressly promise that he or she will pay for fraudulently obtained property. Under sub. (1) (d), a false representation "includes a promise made with intent not to perform if it is part of a false and fraudulent scheme." "Because includes" is not restrictive, other conduct aside from an express promise falls under the umbrella of a "false representation." Providing fictitious business names and stolen personal identifying information to a phone company with the intent of setting up temporary phone numbers constitutes a false representation. State v. Steffes, 2013 WI 53, 347 Wis. 2d 683, 832 N.W.2d 101, 11-0691. Applied electricity that a telephone company uses to power its network is included within the definition of "property" found in sub. (2) (b). State v. Steffes, 2013 WI 53, 347 Wis. 2d 683, 832 N.W.2d 101, 11-0691. Section 971.36(3) (a) and (4) allow for aggregation of the value of property alleged stolen when multiple acts of theft are prosecuted as one count. Reading sub. (1) (a) and s. 971.36(3) (a) and (4) together, multiple acts of theft occurring over a period of time may, in certain circumstances, constitute one continuous offense that is not complete until the last act is completed. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354. A landlord who failed to return or account for a security deposit ordinarily could not be prosecuted under this section. 60 Atty. Gen. 1. Both conversion and civil theft under s. 895.446(1) and sub. (1) (b) require the victim to have an ownership interest in the property converted or stolen. Under the agreement in this case, the plaintiff operated a brain injury center in the defendant's nursing facility; the defendant handled all billing and collections for the services the plaintiff provided; and, through a process outlined in the agreement, the defendant remitted the funds collected to the plaintiff. However, the defendant failed to follow through on its obligations under the contract, redirecting the plaintiff's funds to pay the defendant's employees and other creditors instead. When one party receives funds from an outside source and is required to remit those funds to the other party, that is enough to create an ownership interest. Milwaukee Center for Independence, Inc. v. Milwaukee Health Care, LLC, 929 F.3d 489 (2019). State court rulings that unauthorized control was sufficient to support a conviction under sub. (1) (d) were not an unlawful broadening of the offense so as to deprive the defendant of notice and the opportunity to defend. Hawkins v. Mathews, (1980). Sub. (1) (b) was intended to target those entrusted with the property of another who retain or use that property in a way that does not comport with the owner's wishes. The statute applies only to those who are entrusted with custody or possession or money or property. It does not apply to a breach of contract case over whether a purchaser has met contractual conditions for obtaining a refund. Azamat v. American Express Travel Related Services Company, Inc. (2006).