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    Wisconsin Lawyer
    March 12, 2019

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Law

    Retail Theft – Aggregating Charges Under Wis. Stat. section 971.36(3)(a)

    State v. Lopez, 2019 WI App 2 (filed 6 Dec. 2018) (ordered published 31 Jan. 2019)

    HOLDING: The state lawfully charged multiple misdemeanor retail thefts as a single felony retail theft by invoking the provisions of Wis. Stat. section 971.36(3)(a).

    SUMMARY: Criminal complaints against defendants Lopez and Rodriguez alleged that, on seven occasions over a two-week period, they stole merchandise from Wal-Mart through a scheme in which Lopez, a Wal-Mart employee, would assist Rodriguez at a self-checkout and would pretend to scan items, intentionally fail to scan items, or void items that were scanned.

    These seven retail thefts each involved merchandise valued at less than $500 and thus would be Class A misdemeanors. However, acting under the authority of Wis. Stat. section 971.36(3)(a), the district attorney aggregated the retail thefts and charged the defendants with a Class I felony because the total value of the stolen merchandise exceeded $500.

    The defendants moved to dismiss the complaints arguing that they were improperly duplicitous. The state contended that there was no duplicity problem because it has authority under Wis. Stat. section 971.36(3)(a) to charge as one continuous offense the multiple acts of retail theft that underlie the single felony charge. The circuit court granted the defendants’ motion. In a decision authored by Judge Sherman, the court of appeals reversed the circuit court.

    “[P]ursuant to Wis. Stat. § 971.36(3)(a), ‘in any case of theft involving more than one theft, all thefts may be prosecuted as a single crime’ without rendering the charge duplicitous, if ‘[t]he 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’” (¶ 6).

    The defendants argued that this statute only applies to the general crime of theft codified at Wis. Stat. section 943.20 – not to other theft crimes such as retail theft, which is codified at Wis. Stat. section 943.50(1m). The court of appeals disagreed. It concluded that “[Wis. Stat. section] 971.36(3)(a) is not limited in its application to [section] 943.20 and that it applies as well to retail theft under Wis. Stat. § 943.50” (¶ 12).

    The court further concluded that the allegations in the criminal complaints satisfied the prerequisites for the state to invoke Wis. Stat. section 971.36(3)(a) in aggregating the charges against the defendant into a single felony offense. Said the court: “We perceive no dispute that the property belonged to the same owner (Wal-Mart) and that the alleged thefts were committed pursuant to a single deceptive scheme (pretending to purchase items via the self-check-out). Accordingly, we conclude that the State may charge the alleged multiple acts of retail theft at issue in this case as a single crime” (¶ 14).

    Criminal Procedure

    Double Jeopardy – Prior Prosecution

    State v. Schultz, 2019 WI App 3 (filed 11 Dec. 2018) (ordered published 31 Jan. 2019)

    HOLDING: The defendant’s protection against double jeopardy was not violated when he was prosecuted for a sexual assault against an individual after he was acquitted of related offenses against the same individual at a prior trial.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: The defendant was acquitted of sexually assaulting a minor “in the late summer to early fall of 2012,” as stated in the information. Shortly after the acquittal, a paternity test showed that the defendant was the father of the victim’s child and indicated the approximate date of conception. The state charged the defendant with second-degree sexual assault, which allegedly occurred on the date of conception. The circuit court denied the defendant’s motion to dismiss on double-jeopardy grounds because the record at the first trial covered offenses that allegedly occurred from July to September 2012. The defendant pleaded guilty to the offense that occurred on the approximate date of conception and then sought postconviction relief.

    The court of appeals affirmed in an opinion authored by Judge Seidl. The court held “that the proper test to ascertain the scope of the jeopardy bar when the charging language of an Information is ambiguous is to consider how a reasonable person familiar with the facts and circumstances of a particular case would understand the charging language” (¶ 30). This approach is also consistent with Wis. Stat. section 971.29(2) (see ¶ 22).

    The defendant’s argument rested on the “faulty premise that consideration of evidence after jeopardy attaches can be used to narrow an unambiguous scope of jeopardy.… Instead, we hold only that evidence introduced after jeopardy attaches may be considered to clarify an ambiguity related to the scope of jeopardy that existed at the time jeopardy attached” (¶ 27). At no time during the first trial did the state introduce evidence of sexual assaults during October 2012 (see ¶ 33).

    Finally, the court explicitly warned against “the use of ambiguous charging language to manipulate double jeopardy protections in future prosecution.” Faced with such an ambiguity, the statutes allow a defendant to move to dismiss or to compel the prosecution to make the charges more definite and certain (¶ 35).

    Motor Vehicle Law

    OWI – Calculation of Minimum Fine When Multiple Penalty Enhancers Are Involved

    State v. Neill, 2019 WI App 4 (filed 4 Dec. 2018) (ordered published 31 Jan. 2019)

    HOLDING: The circuit court correctly calculated the minimum fine for a third-offense operating while intoxicated (OWI) violation committed with a minor passenger in the vehicle and while the defendant had an excessive blood-alcohol concentration (BAC).

    SUMMARY: The defendant was convicted of OWI as a third offense. Two penalty enhancers applied to his offense: 1) committing this crime while driving with a minor under the age of 16 in the vehicle, and 2) committing this crime with a BAC of 0.25 or above. The minimum fine for third-offense OWI is $600. For having a minor passenger under the age of 16 in the vehicle, the applicable minimum and maximum fines for the third-offense OWI are doubled. See Wis. Stat. § 346.65(2)(f)2. For committing an OWI with a BAC of 0.25 or above, the applicable minimum and maximum fines for third-offense OWI are quadrupled. See Wis. Stat. § 346.65(2)(g)3.

    The circuit court fined the defendant $4,800. The court reached this total by doubling the primary $600 fine to $1,200 for the minor-passenger enhancer and then quadrupling that $1,200 for the excessive BAC to reach a total of $4,800. The defendant argued that this calculation was erroneous. He contended that there is nothing in the statutes that indicates that increases in the base fine for the penalty enhancers are to be multiplied by each other. In his view the starting point for calculating the fine of each enhancer is $600 (see ¶ 12).

    In a majority opinion authored by Judge Brash, the court of appeals affirmed. It concluded that “a plain reading of the statute supports the calculation of the trial court” (¶ 3). “[A]fter one enhancer is applied, that increased minimum fine is used as the base for calculating the other enhancer” (¶ 23).

    Judge Kessler filed a dissenting opinion.

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