943.20 AnnotationThe 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 AnnotationTheft 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 AnnotationWhen 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 AnnotationMultiple 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 AnnotationAgency 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 AnnotationMultiple 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 AnnotationA 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 AnnotationThe 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 AnnotationThe 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 AnnotationAffirmed on other grounds. 2013 WI 53, 347 Wis. 2d 683, 832 N.W.2d 101, 11-0691.
943.20 AnnotationThere 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 AnnotationApplied 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 AnnotationSection 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 AnnotationIn 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 AnnotationIn 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 AnnotationA 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 AnnotationA 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 AnnotationBoth 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 AnnotationState 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 AnnotationSub. (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).
943.201943.201Unauthorized 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.