Chapter 943

943.32 Annotation If the defendant commits a robbery while merely possessing a dangerous weapon, the penalty enhancer under s. 939.63 is applicable. State v. Robinson, 140 Wis. 2d 673, 412 N.W.2d 535 (Ct. App. 1987).

943.32 Annotation A defendant’s lack of intent to make a victim believe that the defendant is armed is irrelevant in finding a violation of sub. (2); if the victim’s belief that the defendant is armed is reasonable, that is enough. State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992).

943.32 Annotation Extortion is not a lesser included offense of robbery. Convictions for both are not precluded. State v. Dauer, 174 Wis. 2d 418, 497 N.W.2d 766 (Ct. App. 1993).

943.32 Annotation This section does not require a specific intent that property that is demanded actually be transferred. State v. Voss, 205 Wis. 2d 586, 556 N.W.2d 433 (Ct. App. 1996), 95-1183.

943.32 Annotation Asportation, or carrying away, is an element of robbery. The asportation requirement provides a bright line distinction between attempt and robbery. There is no exception for an automobile that is entered by force, but cannot be moved by the defendant. State v. Johnson, 207 Wis. 2d 239, 558 N.W.2d 375 (1997), 95-0072.

943.32 Annotation The key to a conviction under sub. (2) is whether the victim reasonably believed that the victim was threatened with a dangerous weapon even though the victim did not see anything that was perceived as a weapon. In applying reasonable belief to the armed-robbery statute, courts must consider the circumstances of the individual case. State v. Rittman, 2010 WI App 41, 324 Wis. 2d 273, 781 N.W.2d 545, 09-0708.

943.32 Annotation The state’s attempt to retry the defendant for armed robbery, alleging the use of a different weapon after the trial judge concluded that acquittal on a first armed robbery charge resulted from insufficient evidence of the use of a gun, violated double jeopardy protections. It did not necessarily follow that the state was prevented from pursuing a charge of simple robbery however. Losey v. Frank, 268 F. Supp. 2d 1066 (2003).

943.32 Annotation Letting Armed Robbery Get Away: An Analysis of Wisconsin’s Armed Robbery Statute. Goodstein. 1998 WLR 591.

943.34 943.34 Receiving stolen property.

943.34(1) (1) Except as provided under s. 948.62, whoever knowingly or intentionally receives or conceals stolen property is guilty of:

943.34(1)(a) (a) A Class A misdemeanor, if the value of the property does not exceed $2,500.

943.34(1)(bf) (bf) A Class I felony, if the value of the property exceeds $2,500 but does not exceed $5,000.

943.34(1)(bm) (bm) A Class H felony, if the property is a firearm or if the value of the property exceeds $5,000 but does not exceed $10,000.

943.34(1)(c) (c) A Class G felony, if the value of the property exceeds $10,000.

943.34(2) (2) In any action or proceeding for a violation of sub. (1), a party may use duly identified and authenticated photographs of property which was the subject of the violation in lieu of producing the property.

943.34 History History: 1977 c. 173; 1987 a. 266, 332; 1991 a. 39; 2001 a. 16, 109; 2011 a. 99.

943.34 Annotation The fact that sequentially received stolen property was purchased for a lump sum was an insufficient basis to aggregate the value of the property; the crime of receiving stolen property does not require payment. State v. Spraggin, 71 Wis. 2d 604, 239 N.W.2d 297 (1976).

943.34 Annotation If any element of the crime charged occurred in a given county, then that county can be the place of trial. Because the crime of receiving stolen property requires more than two acts, and one of the acts is that the property must be stolen, venue is properly established in the county where that act occurred. State v. Lippold, 2008 WI App 130, 313 Wis. 2d 699, 757 N.W.2d 825, 07-1773.

943.37 943.37 Alteration of property identification marks. Whoever does any of the following with intent to prevent the identification of the property involved is guilty of a Class A misdemeanor:

943.37(1) (1) Alters or removes any identification mark on any log or other lumber without the consent of the owner; or

943.37(2) (2) Alters or removes any identification mark from any receptacle used by the manufacturer of any beverage; or

943.37(3) (3) Alters or removes any manufacturer’s identification number on personal property or possesses any personal property with knowledge that the manufacturer’s identification number has been removed or altered. Possession of 2 or more similar items of personal property with the manufacturer’s identification number altered or removed is prima facie evidence of knowledge of the alteration or removal and of an intent to prevent identification of the property.

943.37(4) (4) Alters or removes livestock brands, recorded under s. 95.11, from any animal without the owner’s consent, or possesses any livestock with knowledge that the brand has been altered or removed without the owner’s knowledge or consent.

943.37 History History: 1973 c. 239; 1977 c. 173.

943.37 Annotation “Similar” under sub. (3) means comparable or substantially alike. State v. Hamilton, 146 Wis. 2d 426, 432 N.W.2d 108 (Ct. App. 1988).

943.38 943.38 Forgery.

943.38(1) (1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of a Class H felony:

943.38(1)(a) (a) A writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights; or

943.38(1)(b) (b) A public record or a certified or authenticated copy thereof; or

943.38(1)(c) (c) An official authentication or certification of a copy of a public record; or

943.38(1)(d) (d) An official return or certificate entitled to be received as evidence of its contents.

943.38(2) (2) Whoever utters as genuine or possesses with intent to utter as false or as genuine any forged writing or object mentioned in sub. (1), knowing it to have been thus falsely made or altered, is guilty of a Class H felony.

943.38(3) (3) Whoever, with intent to defraud, does any of the following is guilty of a Class A misdemeanor:

943.38(3)(a) (a) Falsely makes or alters any object so that it appears to have value because of antiquity, rarity, source or authorship which it does not possess; or possesses any such object knowing it to have been thus falsely made or altered and with intent to transfer it as original and genuine, by sale or for security purposes; or

943.38(3)(b) (b) Falsely makes or alters any writing of a kind commonly relied upon for the purpose of identification or recommendation; or

943.38(3)(c) (c) Without consent, places upon any merchandise an identifying label or stamp which is or purports to be that of another craftsman, tradesman, packer or manufacturer; or

943.38(3)(d) (d) Falsely makes or alters a membership card purporting to be that of a fraternal, business or professional association or of a labor union; or possesses any such card knowing it to have been thus falsely made or altered and with intent to use it or cause or permit its use to deceive another; or

943.38(3)(e) (e) Falsely makes or alters any writing purporting to evidence a right to transportation on any common carrier; or

943.38(3)(f) (f) Falsely makes or alters a certified abstract of title to real estate, a title insurance commitment, a title insurance policy, or any other written evidence regarding the state of title to real estate.

943.38 History History: 1977 c. 173; 2001 a. 109; 2005 a. 205.

943.38 Annotation Acceptance of or cashing a forged check is not an element of uttering under sub. (2). Little v. State, 85 Wis. 2d 558, 271 N.W.2d 105 (1978).

943.38 Annotation Fraudulent use of a credit card need not involve forgery. If forgery is involved, the prosecutor has discretion to charge under this section or s. 943.41. Mack v. State, 93 Wis. 2d 287, 286 N.W.2d 563 (1980).

943.38 Annotation Signed receipts for bogus magazine subscriptions constituted forgery even though the defrauded subscriber did not specifically rely on the receipts. State v. Davis, 105 Wis. 2d 690, 314 N.W.2d 907 (Ct. App. 1981).

943.38 Annotation The absence of a maker’s signature did not immunize the accused from the crime of uttering a forged writing. State v. Machon, 112 Wis. 2d 47, 331 N.W.2d 665 (Ct. App. 1983).

943.38 Annotation Depositing a forged instrument into an automated teller machine constitutes “uttering” under sub. (2). State v. Tolliver, 149 Wis. 2d 166, 440 N.W.2d 571 (Ct. App. 1989).

943.38 Annotation Whether a writing was a negotiable instrument and whether the conduct of the victims when presented with the writing was negligent was irrelevant to whether the writings were within the terms of sub. (1) (a). State v. Perry, 215 Wis. 2d 696, 573 N.W.2d 876 (Ct. App. 1997), 97-0847.

943.38 Annotation Sub. (2) does not incorporate the requirement of sub. (1) that the offender act with intent to defraud. State v. Shea, 221 Wis. 2d 418, 585 N.W.2d 662 (Ct. App. 1998), 97-2345.

943.38 Annotation A check maker’s intent or reliance on an endorsement are immaterial to the crime of forgery by the endorser. The essence of forgery is the intent to defraud. The use of an assumed name may be a forgery if done for a fraudulent purpose. State v. Czarnecki, 2000 WI App 155, 237 Wis. 2d 794, 615 N.W.2d 672, 99-1985.

943.38 Annotation A person cannot falsely make a postal money order by writing in the name of someone else as the payer as that does not affect the genuineness of the money order itself. It is not forgery to add mere surplusage to a document. State v. Entringer, 2001 WI App 157, 246 Wis. 2d 839, 631 N.W.2d 651, 00-2568.

943.38 Annotation The words “legal rights” in sub. (1) (a) plainly cover the right to dispense prescription drugs without violating the law. That the legislature has created specific crimes that cover obtaining a controlled substance by forgery under s. 961.43 (1) (a) and (2) and obtaining a prescription drug by forgery under s. 450.11 (7) and (9) (a) does not mean that each violation is not punishable under this section, the general forgery statute. The fact that the forgery statute applies to writings creating property rights does not mean that it applies only to such writings. State v. Fortun, 2010 WI App 32, 323 Wis. 2d 732, 780 N.W.2d 238, 09-1172.

943.39 943.39 Fraudulent writings. Whoever, with intent to injure or defraud, does any of the following is guilty of a Class H felony:

943.39(1) (1) Being a director, officer, manager, agent or employee of any corporation or limited liability company falsifies any record, account or other document belonging to that corporation or limited liability company by alteration, false entry or omission, or makes, circulates or publishes any written statement regarding the corporation or limited liability company which he or she knows is false; or

943.39(2) (2) By means of deceit obtains a signature to a writing which is the subject of forgery under s. 943.38 (1); or

943.39(3) (3) Makes a false written statement with knowledge that it is false and with intent that it shall ultimately appear to have been signed under oath.

943.39 History History: 1977 c. 173; 1993 a. 112; 2001 a. 109.

943.39 Annotation Sub. (2) does not require proof of forgery. State v. Weister, 125 Wis. 2d 54, 370 N.W.2d 278 (Ct. App. 1985).

943.392 943.392 Fraudulent data alteration. Whoever, with intent to injure or defraud, manipulates or changes any data, as defined in s. 943.70 (1) (f), is guilty of a Class A misdemeanor.

943.392 History History: 1993 a. 496.

943.392 Annotation 21st Century White Collar Crime: Intellectual Property Crimes in the Cyber World. Simon & Jones. Wis. Law. Oct. 2004.

943.395 943.395 Fraudulent insurance and employee benefit program claims.

943.395(1) (1) Whoever, knowing it to be false or fraudulent, does any of the following may be penalized as provided in sub. (2):

943.395(1)(a) (a) Presents or causes to be presented a false or fraudulent claim, or any proof in support of such claim, to be paid under any contract or certificate of insurance.

943.395(1)(b) (b) Prepares, makes or subscribes to a false or fraudulent account, certificate, affidavit, proof of loss or other document or writing, with knowledge that the same may be presented or used in support of a claim for payment under a policy of insurance.

943.395(1)(c) (c) Presents or causes to be presented a false or fraudulent claim or benefit application, or any false or fraudulent proof in support of such a claim or benefit application, or false or fraudulent information which would affect a future claim or benefit application, to be paid under any employee benefit program created by ch. 40.

943.395(1)(d) (d) Makes any misrepresentation in or with reference to any application for membership or documentary or other proof for the purpose of obtaining membership in or noninsurance benefit from any fraternal subject to chs. 600 to 646, for himself or herself or any other person.

943.395(2) (2) Whoever violates this section:

943.395(2)(a) (a) Is guilty of a Class A misdemeanor if the value of the claim or benefit does not exceed $2,500.

943.395(2)(b) (b) Is guilty of a Class I felony if the value of the claim or benefit exceeds $2,500.

943.395 History History: 1971 c. 214; 1975 c. 373, 421; 1977 c. 173; 1979 c. 89; 1981 c. 96; 1987 a. 349; 1991 a. 39; 2001 a. 16, 109; 2015 a. 197 s. 51.

943.395 Annotation The “value of the claim” under sub. (2) refers to the amount of the entire claim and not the fraudulent portion. State v. Briggs, 214 Wis. 2d 281, 571 N.W.2d 881 (Ct. App. 1997), 97-0439.

943.40 943.40 Fraudulent destruction of certain writings. Whoever with intent to defraud does either of the following is guilty of a Class H felony:

943.40(1) (1) Destroys or mutilates any corporate books of account or records; or

943.40(2) (2) Completely erases, obliterates or destroys any writing which is the subject of forgery under s. 943.38 (1) (a).

943.40 History History: 1977 c. 173; 2001 a. 109.

943.41 943.41 Financial transaction card crimes.

943.41(1) (1) Definitions. In this section:

943.41(1)(a) (a) “Alter” means add information to, change information on or delete information from.

943.41(1)(am) (am) “Automated financial service facility” means a machine activated by a financial transaction card, personal identification code or both.

943.41(1)(b) (b) “Cardholder” means the person to whom or for whose benefit a financial transaction card is issued.

943.41(1)(c) (c) “Counterfeit” means to manufacture, produce or create by any means a financial transaction card or purported financial transaction card without the issuer’s consent or authorization.

943.41(1)(e) (e) “Expired financial transaction card” means a financial transaction card which is no longer valid because the term shown thereon has elapsed.

943.41(1)(em) (em) “Financial transaction card” means an instrument or device issued by an issuer for the use of the cardholder in any of the following:

943.41(1)(em)1. 1. Obtaining anything on credit.

943.41(1)(em)2. 2. Certifying or guaranteeing the availability of funds sufficient to honor a draft or check.

943.41(1)(em)3. 3. Gaining access to an account.

943.41(1)(f) (f) “Issuer” means the business organization or financial institution which issues a financial transaction card or its duly authorized agent.

943.41(1)(fm) (fm) “Personal identification code” means a numeric, alphabetic or alphanumeric code or other means of identification required by an issuer to permit a cardholder’s authorized use of a financial transaction card.

943.41(1)(g) (g) “Receives” or “receiving” means acquiring possession or control or accepting as security for a loan.

943.41(1)(h) (h) “Revoked financial transaction card” means a financial transaction card which is no longer valid because permission to use it has been suspended or terminated by the issuer.