Words and phrases defined–“(20d) offense against an elderly or vulnerable person”
(20d) “Offense against an elderly or vulnerable person” means a violation of s. 940.285 (2) (a) that caused death, great bodily harm, or bodily harm to the victim or s. 940.295 (3) (b) that caused death, great bodily harm, or bodily harm to the victim.
Abuse of individuals at risk; definitions
(1) Definitions. In this section:
(ag) “Abuse” means any of the following:
1. Physical abuse, as defined in s. 46.90 (1) (fg).
2. Emotional abuse, as defined in s. 46.90 (1) (cm).
3. Sexual abuse, as defined in s. 46.90 (1) (gd).
4. Treatment without consent, as defined in s. 46.90 (1) (h).
5. Unreasonable confinement or restraint, as defined in s. 46.90 (1) (i).
6. Deprivation of a basic need for food, shelter, clothing, or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement, or court order.
(am) “Adult at risk” has the meaning given in s. 55.01 (1e).
(dc) “Elder adult at risk” has the meaning given in s. 46.90 (1) (br).
(dg) “Individual at risk” means an elder adult at risk or an adult at risk.
(dm) “Recklessly” means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.
(1m) Exception. Nothing in this section may be construed to mean that an individual at risk is abused solely because he or she consistently relies upon treatment by spiritual means through prayer for healing, in lieu of medical care, in accordance with his or her religious tradition.
(2) Abuse; penalties.
(a) Any person, other than a person in charge of or employed in a facility under s. 940.29 or in a facility or program under s. 940.295 (2), who does any of the following may be penalized under par. (b):
1. Intentionally subjects an individual at risk to abuse.
2. Recklessly subjects an individual at risk to abuse.
3. Negligently subjects an individual at risk to abuse.
1g. Any person violating par. (a) 1. or 2. under circumstances that cause death is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death is guilty of a Class D felony.
1m. Any person violating par. (a) under circumstances that cause great bodily harm is guilty of a Class F felony.
1r. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.
2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.
4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.
History: 1985 a. 306; 1993 a. 445; 1997 a. 180; 2001 a. 109; 2005 a. 264, 388; 2007 a. 45.
Theft–Elder adult at risk
(1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):
(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without the other’s consent and with intent to deprive the owner permanently of possession of such property.
(b) By virtue of his or her office, business or employment, or as trustee or bailee, having possession or custody of money or of a negotiable security, instrument, paper or other negotiable writing of another, intentionally uses, transfers, conceals, or retains possession of such money, security, instrument, paper or writing without the owner’s consent, contrary to his or her authority, and with intent to convert to his or her own use or to the use of any other person except the owner. A refusal to deliver any money or a negotiable security, instrument, paper or other negotiable writing, which is in his or her possession or custody by virtue of his or her office, business or employment, or as trustee or bailee, upon demand of the person entitled to receive it, or as required by law, is prima facie evidence of an intent to convert to his or her own use within the meaning of this paragraph.
(c) Having a legal interest in movable property, intentionally and without consent, takes such property out of the possession of a pledgee or other person having a superior right of possession, with intent thereby to deprive the pledgee or other person permanently of the possession of such property.
(d) Obtains title to property of another person by intentionally deceiving the person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. “False representation” includes a promise made with intent not to perform it if it is a part of a false and fraudulent scheme.
(e) Intentionally fails to return any personal property which is in his or her possession or under his or her control by virtue of a written lease or written rental agreement after the lease or rental agreement has expired. This paragraph does not apply to a person who returns personal property, except a motor vehicle, which is in his or her possession or under his or her control by virtue of a written lease or written rental agreement, within 10 days after the lease or rental agreement expires.
(2) Definitions. In this section:
(ac) “Adult at risk” has the meaning given in s. 55.01 (1e).
(ad) “Elder adult at risk” has the meaning given in s. 46.90 (1) (br).
(ae) “Individual at risk” means an elder adult at risk or an adult at risk.
(ag) “Movable property” is property whose physical location can be changed, without limitation including electricity and gas, documents which represent or embody intangible rights, and things growing on, affixed to or found in land.
(am) “Patient” has the meaning given in s. 940.295 (1) (L).
(b) “Property” means all forms of tangible property, whether real or personal, without limitation including electricity, gas and documents which represent or embody a chose in action or other intangible rights.
(c) “Property of another” includes property in which the actor is a co-owner and property of a partnership of which the actor is a member, unless the actor and the victim are husband and wife.
(cm) “Resident” has the meaning given in s. 940.295 (1) (p).
(d) Except as otherwise provided in this paragraph, “value” means the market value at the time of the theft or the cost to the victim of replacing the property within a reasonable time after the theft, whichever is less. If the property stolen is a document evidencing a chose in action or other intangible right, “value” means either the market value of the chose in action or other right or the intrinsic value of the document, whichever is greater. If the property stolen is scrap metal, as defined in s. 134.405 (1) (f), or “plastic bulk merchandise container” as defined in s. 134.405 (1) (em), “value” also includes any costs that would be incurred in repairing or replacing any property damaged in the theft or removal of the scrap metal or plastic bulk merchandise container. If the thief gave consideration for, or had a legal interest in, the stolen property, the amount of such consideration or value of such interest shall be deducted from the total value of the property.
(3) Penalties. Whoever violates sub. (1):
(a) If the value of the property does not exceed $2,500, is guilty of a Class A misdemeanor.
(bf) If the value of the property exceeds $2,500 but does not exceed $5,000, is guilty of a Class I felony.
(bm) If the value of the property exceeds $5,000 but does not exceed $10,000, is guilty of a Class H felony.
(c) If the value of the property exceeds $10,000 but does not exceed $100,000, is guilty of a Class G felony.
(cm) If the value of the property exceeds $100,000, is guilty of a Class F felony.
(d) If any of the following circumstances exists, is guilty of a Class H felony:
1. The property is a domestic animal.
3. The property is taken from a building which has been destroyed or left unoccupied because of physical disaster, riot, bombing or the proximity of battle.
4. The property is taken after physical disaster, riot, bombing or the proximity of battle has necessitated its removal from a building.
5. The property is a firearm.
6. The property is taken from a patient or resident of a facility or program under s. 940.295 (2) or from an individual at risk.
(e) If the property is taken from the person of another or from a corpse, is guilty of a Class G felony.
(4) Use of photographs as evidence. 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.
History: 1977 c. 173, 255, 447; 1983 a. 189; 1987 a. 266; 1991 a. 39; 1993 a. 213, 445, 486; 2001 a. 16, 109; 2005 a. 388; 2007 a. 64; 2011 a. 194; 2017 a. 287.
Cross-reference: Misappropriation of funds by contractor or subcontractor as theft, see s. 779.02 (5).
If one person takes property from the person of another, and a 2nd person carries it away, the evidence may show a theft from the person under subs. (1) (a) and (3) (d) 2. [now sub. (3) (e)], either on a theory of conspiracy or of complicity. Hawpetoss v. State, 52 Wis. 2d 71, 187 N.W.2d 823 (1971).
Theft is a lesser included offense of robbery. Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972).
Attempted theft by false representation (signing another’s name to a car purchase contract) is not an included crime of forgery (signing the owner’s name to a car title to be traded in). State v. Fuller, 57 Wis. 2d 408, 204 N.W.2d 452 (1973).
Under sub. (1) (d), it is not necessary that the person who parts with property be induced to do so by a false and fraudulent scheme; the person must be deceived by a false representation that is part of such a scheme. Schneider v. State, 60 Wis. 2d 765, 211 N.W.2d 511 (1973).
In abolishing the action for breach of promise to marry, the legislature did not sanction either civil or criminal fraud by the breaching party against the property of a duped victim. Restrictions on civil actions for fraud are not applicable to related criminal actions. Lambert v. State, 73 Wis. 2d 590, 243 N.W.2d 524 (1976).
Sub. (1) (a) should be read in the disjunctive so as to prohibit both the taking of, and the exercise of unauthorized control over, property of another. The sale of stolen property is thus prohibited. State v. Genova, 77 Wis. 2d 141, 252 N.W.2d 380 (1977).
The state may not charge a defendant under sub. (1) (a) in the disjunctive by alleging that the defendant took and carried away or used or transferred. Jackson v. State, 92 Wis. 2d 1, 284 N.W.2d 685 (Ct. App. 1979).
Circumstantial evidence of owner nonconsent was sufficient to support a jury’s verdict. State v. Lund, 99 Wis. 2d 152, 298 N.W.2d 533 (1980).
Section 943.20 (1) (e) does not unconstitutionally imprison one for debt. State v. Roth, 115 Wis. 2d 163, 339 N.W.2d 807 (Ct. App. 1983).
A person may be convicted under s. 943.20 (1) (a) for concealing property and be separately convicted for transferring that property. State v. Tappa, 127 Wis. 2d 155, 378 N.W.2d 883 (1985).
A violation of sub. (1) (d) does not require proof that the accused personally received property. State v. O’Neil, 141 Wis. 2d 535, 416 N.W.2d 77 (Ct. App. 1987).
“Obtains title to property,” as used in sub. (1) (d), includes obtaining property under a lease by fraudulent misrepresentation. State v. Meado, 163 Wis. 2d 789, 472 N.W.2d 567 (Ct. App. 1991).
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, N.W.2d (Ct. App. 1993).
The definition of “bailee” under s. 407.102 (1) is not applicable to sub. (1) (b); definitions of “bailment” and are “bailee” discussed. State v. Kuhn, 178 Wis. 2d 428, 504 N.W.2d 405 (Ct. App. 1993).
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).
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).
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.
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, his 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.
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.
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.
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.
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.
The intent of the “from the person” penalty enhancer under sub. (3) (e) was to cover circumstances that made 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 her 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.
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.
Affirmed on other grounds. 2013 WI 53, 347 Wis. 2d 683, 832 N.W.2d 101, 11-0691.
There is no requirement under that at least one co-conspirator expressly promise that he or she 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.
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.
Section 971.36 (3) (a) and (4) allow 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.
A landlord who failed to return or account for a security deposit ordinarily could not be prosecuted under this section. 60 Atty. Gen. 1.
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).
Sub. (1) (b) was 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. Azamat v. American Express Travel Related Services Company, Inc. 426 F. Supp. 2d 888 (2006).