Dec. 12, 2013 – A woman who stole nearly 300 times from her employer totaling about $500,000 over a six-year period cannot withdraw her plea, as a state appeals court has rejected the claim that the charges against her were duplicitous and multiplicitous.
Tina Jacobsen embezzled funds from the Community Blood Center (CBC) where she worked. She did this by paying herself “reimbursements” through payroll and writing checks payable to her while claiming those funds were paid to business “vendors.”
The state charged Jacobsen with six counts of theft in a business setting, one count of converting more than $10,000 for her own use through a negotiable instrument, and one count of fraud by writing. She pleaded guilty to three counts of business theft.
At sentencing, Jacobsen said she stole the money to support a gambling addiction. The judge imposed a sentence of five years in prison with 13 years of extended supervision. In a postconviction motion, Jacobsen asked the court to withdraw her pleas.
Her attorney should have moved the court to dismiss the complaint on duplicity or multiplicity grounds, she argued, because some offenses were joined as single counts and she was charged multiple times for one crime. Thus, she said her attorney was ineffective for failing to raise this argument.
At a hearing, the attorney said he reviewed that issue, but concluded that such a claim would be meritless. The circuit court agreed and denied Jacobsen’s motion.
In State v. Jacobsen, 2013AP830-CR (Dec. 10, 2013), a three-judge panel for the District III Court of Appeals affirmed the lower court, upholding the conviction.
The appeals panel explained that a complaint is duplicitous “when it joins two or more separate offenses in a single count,” but “when an offense is composed of continuous acts, it may be charged as a single count without rendering the charge duplicitous.”
Jacobsen committed multiple acts in a single scheme, the panel noted, and prosecutors can charge multiple thefts in a single count under Wis. Stat. section 971.36(3)a.
Under that statute, multiple thefts may be prosecuted in a single crime if “the property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme.”
The court also rejected Jacobsen’s multiplicity claim. Multiplicity occurs when a defendant is charged in more than one count for one offense, the panel explained.
“The State concedes the charges are the same in law because each one alleges Jacobsen violated the same statute,” Judge Stark wrote. “However, we agree with the state that the charges are not the same in fact.”
The offenses were separated in time and required different proof, the panel explained. Each charge “involved different amounts of money taken on different dates, provable by different paperwork and accounting records,” Judge Lisa Stark wrote.
Jacobsen also failed to meet her burden of proving the legislature did not intend to authorize multiple punishments for the same crime, the panel concluded.
“Had the legislature intended to preclude multiple punishments, it would have required all related thefts to be charged as a single count,” Judge Stark explained.
Finally, the panel rejected Jacobsen’s argument that the state could charge her with one count of a continuing crime, or separate counts for each individual theft (389 thefts), but could not charge multiple offenses based on more than one theft.
“[W]e hold the state properly exercised its prosecutorial discretion by charging Jacobsen with one count of theft for each calendar year in which she stole the money from CBC,” wrote Stark, noting the attorney was not deficient for failing to make a losing argument.