Chapter 943

943.20 Annotation 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, 501 N.W.2d 461 (Ct. App. 1993).

943.20 Annotation The definition of “bailee” under s. 407.102 (1) is not applicable to sub. (1) (b). Discussing definitions of “bailment” and “bailee.” State v. Kuhn, 178 Wis. 2d 428, 504 N.W.2d 405 (Ct. App. 1993).

943.20 Annotation 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).

943.20 Annotation 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).

943.20 Annotation 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.

943.20 Annotation 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, the defendant’s 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.

943.20 Annotation 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.

943.20 Annotation 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.

943.20 Annotation 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.

943.20 Annotation 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.

943.20 Annotation The intent of the “from the person” penalty enhancer under sub. (3) (e) is to cover circumstances that make 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 the manager’s 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.

943.20 Annotation 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.

943.20 Annotation Affirmed on other grounds. 2013 WI 53, 347 Wis. 2d 683, 832 N.W.2d 101, 11-0691.

943.20 Annotation There is no requirement under sub. (1) (d) that at least one co-conspirator expressly promise that the co-conspirator 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.

943.20 Annotation 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.

943.20 Annotation Section 971.36 (3) (a) and (4) allows 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.

943.20 Annotation In this case, the court’s determination that the subcontractor did not prove its theft-by-contractor claim because the prime contractor was “solvent and always able to pay” was incorrect as a matter of law when the evidence unquestionably showed that the prime contractor retained and used the money it owed to the subcontractor to support the prime contractor’s general account for payment of its own business obligations. The fact that the prime contractor, almost a year after it refused the subcontractor’s first demand for payment and after the subcontractor’s second demand, placed the entire contract amount into the trust account of the prime contractor’s attorney amounted to little more than a continued refusal to pay the amount owed. Century Fence Co. v. American Sewer Services, Inc., 2021 WI App 75, 399 Wis. 2d 742, 967 N.W.2d 32, 19-2432.

943.20 Annotation In this case, when the subcontractor undisputedly completed the job as the contract required, a question about how much work was necessary to complete the job was irrelevant to the question of what was owed to the subcontractor under the contract. The prime contractor had no legitimate ground for withholding payment simply because it, after-the-fact, may have regretted not negotiating the contract differently. There was no “bona fide” dispute. Century Fence Co. v. American Sewer Services, Inc., 2021 WI App 75, 399 Wis. 2d 742, 967 N.W.2d 32, 19-2432.

943.20 Annotation A prime contractor cannot cure its theft once the crime is completed. Century Fence Co. v. American Sewer Services, Inc., 2021 WI App 75, 399 Wis. 2d 742, 967 N.W.2d 32, 19-2432.

943.20 Annotation A landlord who failed to return or account for a security deposit ordinarily could not be prosecuted under this section. 60 Atty. Gen. 1.

943.20 Annotation Both conversion and civil theft under sub. (1) (b) and s. 895.446 (1) 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).

943.20 Annotation 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, 495 F. Supp. 323 (1980).

943.20 Annotation Sub. (1) (b) is 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. Aslanukov v. American Express Travel Related Services Co., 426 F. Supp. 2d 888 (2006).

943.201 943.201 Unauthorized use of an individual’s personal identifying information or documents.

943.201(1) (1) In this section:

943.201(1)(a) (a) “Personal identification document” means any of the following:

943.201(1)(a)1. 1. A document containing personal identifying information.

943.201(1)(a)2. 2. An individual’s card or plate, if it can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds.

943.201(1)(a)3. 3. Any other device that is unique to, assigned to, or belongs to an individual and that is intended to be used to access services, funds, or benefits of any kind to which the individual is entitled.

943.201(1)(b) (b) “Personal identifying information” means any of the following information:

943.201(1)(b)1. 1. An individual’s name.

943.201(1)(b)2. 2. An individual’s address.

943.201(1)(b)3. 3. An individual’s telephone number.

943.201(1)(b)4. 4. The unique identifying driver number assigned to the individual by the department of transportation under s. 343.17 (3) (a) 4.

943.201(1)(b)5. 5. An individual’s social security number.

943.201(1)(b)6. 6. An individual’s employer or place of employment.

943.201(1)(b)7. 7. An identification number assigned to an individual by his or her employer.

943.201(1)(b)8. 8. The maiden name of an individual’s mother.

943.201(1)(b)9. 9. The identifying number of a depository account, as defined in s. 815.18 (2) (e), of an individual.

943.201(1)(b)10. 10. An individual’s taxpayer identification number.

943.201(1)(b)11. 11. An individual’s deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a).

943.201(1)(b)12. 12. Any of the following, if it can be used, alone or in conjunction with any access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds:

943.201(1)(b)12.a. a. An individual’s code or account number.

943.201(1)(b)12.b. b. An individual’s electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier.

943.201(1)(b)12.c. c. Any other means of account access.

943.201(1)(b)13. 13. An individual’s unique biometric data, including fingerprint, voice print, retina or iris image, or any other unique physical representation.

943.201(1)(b)14. 14. Any other information or data that is unique to, assigned to, or belongs to an individual and that is intended to be used to access services, funds, or benefits of any kind to which the individual is entitled.

943.201(1)(b)15. 15. Any other information that can be associated with a particular individual through one or more identifiers or other information or circumstances.

943.201(2) (2) Whoever, for any of the following purposes, intentionally uses, attempts to use, or possesses with intent to use any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her is guilty of a Class H felony:

943.201(2)(a) (a) To obtain credit, money, goods, services, employment, or any other thing of value or benefit.

943.201(2)(b) (b) To avoid civil or criminal process or penalty.

943.201(2)(c) (c) To harm the reputation, property, person, or estate of the individual.

943.201(3) (3) It is an affirmative defense to a prosecution under this section that the defendant was authorized by law to engage in the conduct that is the subject of the prosecution. A defendant who raises this affirmative defense has the burden of proving the defense by a preponderance of the evidence.

943.201(4) (4) If an individual reports to a law enforcement agency for the jurisdiction which is the individual’s residence that personal identifying information or a personal identifying document belonging to the individual reasonably appears to be in the possession of another in violation of this section or that another has used or has attempted to use it in violation of this section, the agency shall prepare a report on the alleged violation. If the law enforcement agency concludes that it appears not to have jurisdiction to investigate the violation, it shall inform the individual which law enforcement agency may have jurisdiction. A copy of a report prepared under this subsection shall be furnished upon request to the individual who made the request, subject to payment of any reasonable fee for the copy.

943.201 History History: 1997 a. 101; 2001 a. 109; 2003 a. 36.

943.201 Annotation A violation of sub. (2) is a continuing offense. State v. Ramirez, 2001 WI App 158, 246 Wis. 2d 802, 633 N.W.2d 656, 00-2605.

943.201 Annotation Because bail is statutorily defined as “monetary conditions of release,” and can be expressed as cash, a bond, or both, one who misappropriates another’s identity and uses it to obtain lower bail in a criminal case has done so to obtain credit or money within the meaning of this section. State v. Peters, 2003 WI 88, 263 Wis. 2d 475, 665 N.W.2d 171, 01-3267.

943.201 Annotation A violation of this section is a continuing offense that is complete when a defendant performs the last act that, viewed alone, is a crime. An offense continues after fraudulently obtained phone and credit accounts are closed only if the defendant received a “thing of value or benefit” after the accounts are closed. Here, once those accounts were closed, the benefits to the defendant ended. State v. Lis, 2008 WI App 82, 311 Wis. 2d 691, 751 N.W.2d 891, 07-2357.

943.201 Annotation Although the purpose of harming an individual’s reputation is an element of identity theft, the statute does not directly punish for the intent to defame and indirectly punish for disclosure of defamatory information, in violation of the 1st amendment. This section criminalizes the whole act of using someone’s identity without permission plus using the identity for one of the enumerated purposes, including harming another’s reputation. The statute does not criminalize each of its component parts standing alone. This section neither prohibits a defendant from disseminating information about a public official nor prevents the public from receiving that information. State v. Baron, 2008 WI App 90, 312 Wis. 2d 789, 754 N.W.2d 175, 07-1289.

943.201 Annotation As applied in this case, sub. (2) (c) was content based and regulated speech because whether the defendant’s conduct was prohibited depended entirely upon whether the defendant’s speech, i.e., the content of e-mails sent using another individual’s identity, was intended to be reputation-harming to that other individual. The statute survives strict scrutiny because the statute is narrowly tailored to apply only when a defendant intentionally uses an individual’s personal information to harm that individual’s reputation. The statute does not prevent revealing reputation-harming information so long as the method chosen does not entail pretending to be the targeted individual. State v. Baron, 2009 WI 58, 318 Wis. 2d 60, 769 N.W.2d 34, 07-1289.

943.201 Annotation Use of a stolen credit card at a gas pump constituted a representation that the defendant was the cardholder or that the defendant was authorized to use the card for the purposes of proving a violation of this section. The conduct of presenting certain documents containing an entity’s identifying information carries with it the representation of permission to use that entity’s information, and no additional overt act or affirmative express representation is required. State v. Mason, 2018 WI App 57, 384 Wis. 2d 111, 918 N.W.2d 78, 17-0620.

943.202 943.202 Unauthorized use or possession of a credit card scanner.

943.202(1) (1) In this section:

943.202(1)(a) (a) “Access” means access, read, scan, intercept, obtain, memorize, or temporarily or permanently store.

943.202(1)(b) (b) “Credit card” means a credit card, charge card, debit card, or other card that allows an authorized user to obtain, purchase, or receive credit, money, goods, services, or any other thing of value.

943.202(1)(c) (c) “Reencoder” means an electronic device that places encoded information from a computer chip or magnetic strip or stripe of a credit card onto the computer chip or magnetic strip or stripe of a credit card or any electronic medium that allows a transaction to occur.

943.202(1)(d) (d) “Scanning device” means a scanner, reader, or any other electronic device that can access information encoded on a computer chip or magnetic strip or stripe of a credit card.

943.202(2) (2) 

943.202(2)(a) (a) Whoever possesses a reencoder or a scanning device, with the intent to violate s. 943.201 (2) or 943.203 (2) or to access information encoded on a credit card without the permission of an authorized user of the credit card, is guilty of a Class I felony.

943.202(2)(b) (b) Whoever does any of the following is guilty of a Class H felony:

943.202(2)(b)1. 1. Possesses a reencoder or a scanning device with the intent to transfer it to another person if the person knows or should know the transferee will use the reencoder or scanning device to violate s. 943.201 (2) or 943.203 (2) or to access information encoded on a credit card without the permission of an authorized user of the credit card.

943.202(2)(b)2. 2. Uses or attempts to use a reencoder or a scanning device to violate s. 943.201 (2) or 943.203 (2) or to access information encoded on a credit card without the permission of an authorized user of the credit card.

943.202(2)(c) (c) Whoever uses a reencoder or scanning device to violate s. 943.201 (2) or 943.203 (2) or to access information encoded on a credit card without the permission of an authorized user of the credit card is guilty of a Class G felony if the person obtains, purchases, or receives credit, money, goods, services, or any other thing of value from the use.

943.202 History History: 2017 a. 54.

943.203 943.203 Unauthorized use of an entity’s identifying information or documents.

943.203(1) (1) In this section:

943.203(1)(a) (a) “Entity” means a person other than an individual.

943.203(1)(b) (b) “Identification document” means any of the following:

943.203(1)(b)1. 1. A document containing identifying information.

943.203(1)(b)2. 2. An entity’s card or plate, if it can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds.

943.203(1)(b)3. 3. Any other device that is unique to, assigned to, or belongs to an entity and that is intended to be used to access services, funds, or benefits of any kind to which the entity is entitled.

943.203(1)(c) (c) “Identifying information” means any of the following information:

943.203(1)(c)1. 1. An entity’s name.

943.203(1)(c)2. 2. An entity’s address.

943.203(1)(c)3. 3. An entity’s telephone number.

943.203(1)(c)4. 4. An entity’s employer identification number.

943.203(1)(c)5. 5. The identifying number of an entity’s depository account, as defined in s. 815.18 (2) (e).

943.203(1)(c)6. 6. Any of the following, if it can be used, alone or in conjunction with any access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds:

943.203(1)(c)6.a. a. An entity’s code or account number.