2013 WI 53
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP691-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Matthew R. Steffes,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 340 Wis. 2d 576, 812 N.W.2d 529
(Ct. App. 2012-Published)
PDC No: 2012 WI App 47
OPINION FILED: June 20, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 12, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Thomas P. Donegan
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Jeffrey W. Jensen, Milwaukee, and oral argument by Jeffrey W.
Jensen.
For the plaintiff-respondent, the cause was argued by
Daniel J. O’Brien, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general, with assistance
from Jason Gorn, legal extern.
2013 WI 53
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP691
(L.C. No. 2004CF2138)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUN 20, 2013
Matthew R. Steffes,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeal. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. We review a published
decision of the court of appeals affirming Matthew R. Steffes's
conviction of two counts of conspiracy to commit theft of
property by fraud. See State v. Steffes, 2012 WI App 47, 340
Wis. 2d 576, 812 N.W.2d 529. While in prison, Steffes was part
of a conspiracy that defrauded AT&T out of more than $28,000 of
phone services through a scheme that involved furnishing the
company with fraudulent information. Specifically, Steffes and
his cellmate——with the help of friends and family members
No. 11AP691
outside of prison——submitted fictitious business names and
stolen personal identifying information to AT&T to set up phone
numbers. Steffes would then make collect calls to these numbers
with the knowledge they would never be paid for. The plan would
work for short bursts of time; once it was clear that the phone
bill was not going to be paid, AT&T would shut down the number.
Steffes and the other members of the conspiracy would then move
on and set up a new telephone number. Over the course of the
eighteen-month life of this plan, Steffes made 322 phone calls,
free of charge.
¶2 Steffes was subsequently charged and convicted of two
counts of conspiracy to commit theft by fraud of property in
excess of $10,000. See Wis. Stat. §§ 939.31, 943.20(1)(d), and
943.20(3)(c) (2011-12).1
¶3 Two issues are presented in this case. The first is
whether submitting fictitious business names and stolen personal
identifying information is a "false representation" under Wis.
Stat. § 943.20(1)(d). Steffes alleges that such conduct is not
a false representation because the statute requires that the
actor make an express promise to pay. The second issue is
whether the applied electricity that AT&T uses to power its
network is included within the definition of "property" found in
§ 943.20(2)(b). Steffes argues that his conviction cannot be
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Nothing has
changed in any applicable statute since the relevant conduct
occurred.
2
No. 11AP691
sustained because the evidence at trial showed that he stole
telephone services and not property.
¶4 On the first issue we hold that Steffes made "false
representations" to AT&T. The theft-by-fraud statute says that
"'[f]alse representation' includes a promise made with intent
not to perform if it is part of a false and fraudulent scheme."
Wis. Stat. § 943.20(1)(d) (emphasis added). Because the word
"includes" is not restrictive, the statute clearly anticipates
that other conduct aside from an express promise falls under the
umbrella of a "false representation." The scope and history of
the theft-by-fraud statute make plain that providing fictitious
business names and stolen personal identifying information to a
phone company as a way of avoiding payment falls within the
meaning of "false representation."
¶5 As to the second issue, "property" under the theft-by-
fraud statute is defined as "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." Wis. Stat.
§ 943.20(2)(b) (emphasis added). Relying on the plain language
of the statute in conjunction with commonly used dictionaries,
we conclude that Steffes stole electricity from AT&T. AT&T
purchases and stores electricity to power its network. When
consumers make phone calls, AT&T must buy more electricity. The
conspiracy perpetrated against AT&T therefore deprived the
company of its property. We affirm the court of appeals.
3
No. 11AP691
I. FACTUAL BACKGROUND
¶6 While Matthew Steffes and Joshua Howard were cellmates
at the Waupun Correctional Institution, Howard devised an
illicit scheme that would allow the two of them to make free
collect calls from prison. The conspiracy worked as follows.
Friends and family members outside the prison walls would set up
a phone number by giving false information to the phone company—
—in this case AT&T.2 Once the dummy number was set up, Howard
and Steffes could make unlimited collect calls to the number.
The benefit to the people setting up the fraudulent numbers was
that they would receive free phone service for a short period of
time. After the phone company would shut the number down
because of unpaid bills, the process would start over again.
¶7 The plan was elaborate and long-lasting, involving
Steffes's father, his sister (who also has a child with Howard),
his cousin, several friends, and another woman who has a child
with Howard. In sum, 60 fraudulent phone numbers were created
between May 2002 and May 2003. Part of the operation entailed
giving fictitious business names to AT&T, while other numbers
were set up using stolen personal identifying information
obtained through a health care clinic where Steffes's sister's
roommate worked. Over an 18-month period in 2002 and 2003,
Steffes made 322 calls totaling 6,562 minutes. The loss to AT&T
2
SBC was the phone company that suffered the losses, but at
the time of trial it had been renamed AT&T. See Shawn Young,
SBC Completes AT&T Purchase, Takes New Name, Wall St. J., Nov.
19, 2005, at A8. To avoid confusion, we will exclusively
designate the phone company as "AT&T" throughout this opinion.
4
No. 11AP691
from setting up the fraudulent phone numbers and the unpaid
calls was $28,061.41.
II. PROCEDURAL HISTORY
¶8 Steffes was charged with two counts of conspiracy to
commit theft by fraud of property in excess of $10,000 pursuant
to Wis. Stat. §§ 939.31, 943.20(1)(d), and 943.20(3)(c).3
Section 939.31 is the conspiracy statute and it provides that
"whoever, with intent that a crime be committed, agrees or
combines with another for the purpose of committing that crime
may, if one or more of the parties to the conspiracy does an act
to effect its object, be fined or imprisoned or both." The
theft-by-fraud statute, § 943.20(1)(d), makes it a crime to
obtain "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." "Property" is defined as "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
3
The State brought two charges because Steffes helped set
up one group of phone numbers under the fictitious business name
"Nick's Heating & Cooling" and another under "Douyette Typing
Service" or "Douyette Advertising Service." The loss to AT&T
from the former was $13,541.63 and the latter $14,519.78.
Steffes was also charged with but acquitted of one count of
conspiracy to commit identity theft.
5
No. 11AP691
rights." § 943.20(2)(b). Steffes pled not guilty and the case
proceeded to a jury trial.4
¶9 Robert Lindsley, an engineer for AT&T, testified at
trial that someone making a phone call is using "an applied form
of electricity," and that all telephone companies need a "power
network" to connect electricity to the telephone network. The
key to understanding this concept, Lindsley explained, rests in
the difference between AC and DC power. AC power is the
electricity that runs through outlets in a wall. Conversely, DC
power is stored in batteries. In Lindsley's words, "the
telephone company actually buys AC power from the commercial
utility[,] [turns] AC power into a DC form, [and] stores that
energy in batteries so that if we lose commercial power to our
central office, your phone continues to work."
¶10 According to Lindsley, AT&T customers are given a
"subscriber pair." This is a wire that connects the registered
phone line to the switch at AT&T's central office. The switch
is what directs a phone call to the dialed number and connects
the circuit, so when a customer makes a phone call he is not
only using the subscriber pair, but also power from the switch.
As Lindsley explicated, "We digitize the signal, so it uses
equipment that can transmit that telephone call either through
4
Steffes was originally charged in 2004 but did not stand
trial until five years later. Because the procedural history
leading up to the trial is not germane to the issues at hand, we
will not recount it.
6
No. 11AP691
fiberoptic cables, over cable systems, or even through radio
links using radio towers."
¶11 Steffes was convicted of two counts of conspiracy to
commit theft by fraud. The court sentenced him to two years in
prison followed by thirty months of extended supervision on each
count, to be served concurrently. He and the other members of
the conspiracy were also ordered to jointly and severally pay
the full $28,061.41 loss in restitution to AT&T. Steffes
appealed his conviction to the court of appeals and argued: (1)
the evidence was insufficient to support his conviction because
no "false promise" was made during the commission of the
conspiracy; (2) the applied form of electricity used by AT&T is
more akin to a service and thus is not property for purposes of
the theft-by-fraud statute.5
¶12 In a published opinion, the court of appeals affirmed
his conviction. Steffes, 340 Wis. 2d 576. On the issue of
whether a "false promise" was made during the conspiracy,
Steffes argued that because no member of the conspiracy actually
told the telephone company that he would pay for the services,
no "false promise" was made. The court of appeals held that the
theft-by-fraud statute does not require evidence of an express
false promise; the statute requires only that "the offender
'intentionally deceiv[e]' the victim 'with a false
5
Steffes also alleged that he was entitled to resentencing
and that the circuit court issued erroneous jury instructions.
Steffes does not raise his sentencing claim before this court.
As for the jury instruction issue, we address that in footnote
7, infra, of this opinion.
7
No. 11AP691
representation . . . known to be false, made with intent to
defraud.'" Id., ¶17 (quoting Wis. Stat. § 943.20(1)(d)). Here,
all the false identifying information that the conspirators gave
to AT&T amounted to false representations. Steffes, 340 Wis. 2d
576, ¶17.
¶13 As to the second question——whether applied electricity
is property under the theft-by-fraud statute——the court of
appeals held that the presence of the term "electricity" in Wis.
Stat. § 943.20(2)(b) is "broad enough to encompass the
transmission of electricity over telephone lines." Steffes, 340
Wis. 2d 576, ¶23. Because the statute does not specifically
distinguish between different types of electricity, the court of
appeals reasoned that the legislature intended the term
"electricity" to be applied broadly and to encompass electricity
transmitted over telephone lines. Id.
¶14 We granted Steffes's petition for review and now
affirm the court of appeals.
III. STANDARD OF REVIEW
¶15 There are two issues presented for our review. The
first is whether submitting fictitious business names and stolen
personal identifying information is a "false representation"
under Wis. Stat. § 943.20(1)(d). The second is whether the
applied electricity that AT&T uses to power its network is
included within the definition of "property" found in
§ 943.20(2)(b). These are questions of statutory interpretation
which we review de novo. Crown Castle USA, Inc. v. Orion
8
No. 11AP691
Constr. Group, LLC, 2012 WI 29, ¶12, 339 Wis. 2d 252, 811 N.W.2d
332.
IV. DISCUSSION
¶16 We first hold that submitting fictitious business
names and stolen personal identifying information as a means of
setting up phone numbers constitutes a "false representation"
for purposes of the theft-by-fraud statute. On the second
question we hold that because AT&T must purchase and store
electricity to power its network, it was defrauded out of its
property by Steffes and his fellow conspirators. For these
reasons, Steffes was appropriately prosecuted for conspiracy to
commit theft by fraud and the evidence presented at trial
satisfied all the elements of that crime.
A. Submitting Fictitious Business Names and Stolen
Personal Identifying Information Constitutes a "False
Representation"
1. History of Theft of Property by Fraud
¶17 The crime of theft by fraud traces its roots to a 1757
Act of the Parliament of Great Britain, which provided that
All persons who knowingly and designedly, by
false pretense or pretenses, shall obtain from any
person or persons, money, goods, wares or
merchandizes, with intent to cheat or defraud any
person or persons of the same . . . shall
be . . . fined and imprisoned, or . . . be put to
pillory, or publicly whipped
or . . . transported . . . for the term of seven
years . . . .
James E. Simon, A Survey of Worthless Check Offenses, 14 Mil. L.
Rev. 29, 30 (1961) (quoting 30 Geo. 2, c.24, § 1). Prior to the
9
No. 11AP691
passage of this statute, English common law did not recognize
the "crime of obtaining property by false pretenses," as it was
then known. State v. Semrau, 199 A.2d 580, 582 (Conn. App. Ct.
1963). Instead, the remedy for someone who was defrauded out of
property was in civil court: "[W]e are not to indict one man
for making a fool of another: let him bring his action." Reg.
v. Jones, (1703) 91 Eng. Rep. 330 (Q.B.).
¶18 The law passed by Parliament served as a template for
false pretense statutes in most American states. Simon, A
Survey of Worthless Check Offenses, 14 Mil. L. Rev. at 30.
Indeed, Wisconsin's very first compilation of statutes contained
similar language. See Wis. Stat. ch. 134, § 33 (1849).6 As this
court stated in 1859, one of the goals of the false pretense
statute was to "protect the weak and credulous from the wiles
and stratagems of the artful and cunning." State v. Green, 7
Wis. 571 [*676], 580 [*685] (1859) (quoting the Supreme Judicial
Court of Massachusetts's interpretation of an identical statute
in Commonwealth v. Drew, 36 Mass. 179, 184 (1837)). Or as the
6
That statute read:
If any person shall designedly, by any false pretence
or by any privy or false token, and with intent to
defraud, obtain from any other person any money or
goods, wares, merchandize or other property, or shall
obtain with such intent the signature of any person to
any written instrument, the false making whereof would
be punishable as forgery, he shall be punished by
imprisonment in the state prison not more than five
years nor less than one year, or by fine not exceeding
five hundred dollars nor less than fifty dollars.
Wis. Stat. ch. 134, § 33 (1849).
10
No. 11AP691
court of appeals more recently described it: "The purpose in
creating the statute was to protect unsuspecting citizens from
swindlers who, realizing that the crimes of larceny and
embezzlement required that property be taken without the owner's
consent, obtained the property of others with their consent by
means of willful misrepresentation and deliberate lying." State
v. O'Neil, 141 Wis. 2d 535, 539, 416 N.W.2d 77 (Ct. App. 1987).
¶19 In the ensuing decades, a plethora of fraud and
larceny statutes were added to Wisconsin's "offenses against
property" statutory chapter. See generally Wis. Stat. Ch. 343
(1953). The current theft-by-fraud statute was enacted in 1955
as a way of condensing these crimes into one law. See § 1, ch.
696, Laws of 1955; State v. Meado, 163 Wis. 2d 789, 797, 472
N.W.2d 567 (Ct. App. 1991) ("One of the objectives of the 1955
revision was to simplify the language and to state fully the
prohibition in fewer words than the previous statutes."). It is
with this background in mind that we apply the contemporary
statute to Steffes's argument that his conviction must be
reversed because no member of the conspiracy promised to pay
AT&T for the phone services and thus no "false representation"
was made.
2. Steffes's Conduct as a Conspirator Falls Under Wis.
Stat. § 943.20(1)(d)
¶20 The theft-by-fraud statute makes it illegal to:
Obtain[] title to property of another person by
intentionally deceiving the person with a false
11
No. 11AP691
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 if it is a
part of a false and fraudulent scheme.
Wisconsin Stat. § 943.20(1)(d). Because Steffes was charged
with conspiracy to commit theft by fraud, the State was required
to prove that only one member of the conspiracy made a "false
representation." See Wis. Stat. § 939.31. We hold that
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."
¶21 The key to understanding why Steffes's argument lacks
merit is the second sentence of the statute. It says that a
false representation "includes a promise made with intent not to
perform." Wis. Stat. § 943.20(1)(d) (emphasis added). If
"includes" were replaced with "means" or "is," Steffes's
position would be on stronger footing. The word "includes,"
though, is not restrictive. See 2A Norman J. Singer & J.D.
Shambie Singer, Sutherland Statutory Construction, § 47:7 (7th
ed. West 2012) ("[T]he word 'includes' is usually a term of
enlargement, and not of limitation . . . . It, therefore,
conveys the conclusion that there are other items includable,
though not specifically enumerated . . . .") (citations
omitted). "Including" is another way of saying "is not limited
to." See State v. Popenhagen, 2008 WI 55, ¶41 n.20, 309 Wis. 2d
601, 749 N.W.2d 611. To reach the result desired by Steffes, we
would have to either rewrite or ignore the plain language of the
12
No. 11AP691
statute. This we may not do. See City of Menasha v. WERC, 2011
WI App 108, ¶18, 335 Wis. 2d 250, 802 N.W.2d 531 (noting that a
court "may not substitute [its] judgment for that of the
legislature; [it] may not rewrite the statute.").
¶22 A court may read the word "includes" in a restrictive
manner only if "there is some textual evidence that the
legislature intended the word 'includes' to be interpreted as a
term of limitation or enumeration." Popenhagen, 309 Wis. 2d
601, ¶43. There is nothing in the two sentences of Wis. Stat.
§ 943.20(1)(d) to indicate that the legislature limited "false
representation" to situations where an individual makes an
express promise to pay for items he has no intention of paying
for. In fact, the statute quite clearly says just the opposite.
Accordingly, we reject Steffes's reading of the statute.7
7
For similar reasons, we dismiss Steffes's argument that
the circuit court gave improper jury instructions. The standard
jury instructions for theft by fraud define "false
representation" as "one of past or existing fact. It does not
include expressions of opinions or representations of law."
Wis. JI——Criminal 1453A. The circuit court used this language
but also added that "[a] representation may be expressed, or it
may be implied from all of the circumstances surrounding the
transaction." Steffes alleges that this addition rendered the
court's instructions legally incorrect.
As a general matter, we first note that a circuit court has
wide latitude to give instructions based on the facts of a case.
State v. McCoy, 143 Wis. 2d 274, 289, 421 N.W.2d 107 (1988).
The court may exercise its discretion regarding both the
language and emphasis of the instruction. Id. "Only if the
jury instructions, as a whole, misled the jury or communicated
an incorrect statement of the law will we reverse and order a
new trial." State v. Laxton, 2002 WI 82, ¶29, 254 Wis. 2d 185,
647 N.W.2d 784.
13
No. 11AP691
¶23 Having rejected Steffes's view that the State was
required to show that a member of the conspiracy promised to pay
for the phone services, we hold that there was ample evidence
that a "false representation" was made. Telephone companies
require new customers to provide contact information for a
reason: if the customer does not pay, the information enables
the company to shut off service, demand payment, and if
necessary, begin collection proceedings. A phone company's
contractual rights are therefore violated when individuals give
false information in order to evade payment. If Steffes were
correct, telephone providers would be required to undertake
exhaustive background checks on each potential customer to
ensure that the information provided was accurate. The theft-
by-fraud statute does not require the State to show that a
consumer made an express promise to retailers that he would pay
the full amount owed. The evidence in this case more than
supports the jury's finding that false representations were
made. See State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d
752 (1990) (this court will uphold a conviction if any
reasonable inferences support it).
As we explain in this opinion, making an express promise to
pay is one way, but not the only way, to make a "false
representation." Given the facts in this case, it was not only
entirely appropriate for the circuit court to instruct the jury
as it did, but it would have been legally incorrect for the
court to say that a false representation required an express
promise to pay, as Steffes believes. The circuit court was well
within its discretion to choose the words that it did.
14
No. 11AP691
B. The Applied Form of Electricity Used by AT&T is
"Property" Under Wis. Stat. § 943.20(2)(b)
¶24 Steffes next alleges that his conviction should be
reversed because what he and his co-conspirators stole was not
property, but rather telephone services.8 According to Steffes,
8
Steffes also presented a narrower version of this argument
before the court of appeals. There, he asserted that the
evidence adduced at trial was insufficient to prove that he
stole more than $2,500 worth of electricity, and thus his
convictions should be reduced from a felony to a misdemeanor.
See Wis. Stat. § 943.20(3)(a) (making it a Class A misdemeanor
if the property stolen does not exceed $2,500). Steffes does
not make this argument before our court, and in any event, we
reject this contention. At trial, when Robert Lindsley (an AT&T
engineer) was asked how much electricity is used in a typical
phone call, he replied that he could not "quantify" the amount
"because every circuit is different" depending on the distance
of the call. Steffes presented no evidence that the amount of
electricity stolen was less than $2,500. The State, meanwhile,
made its case that Steffes stole $13,541.63 of property in count
one and $14,519.78 in count two. On both counts, the jury was
asked the following on the verdict form:
Was the value of the property stolen more than
$10,000?
Yes___ No ___
If you answer the preceding question NO, then answer
this question:
Was the value of the property stolen more than $5,000?
Yes___ No ___
If you answer the preceding question NO, then answer
this question:
Was the value of the property stolen more than $2,500?
Yes___ No ___
15
No. 11AP691
the applied electricity used by AT&T to power its network does
not fall within the ambit of the statute. The State responds
that because AT&T owns the electricity that powers the telephone
lines, the conspiracy carried out by Steffes and the others
clearly amounted to theft of AT&T's property via fraud.
¶25 To restate, "property" under the theft-by-fraud
statute is defined as "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." Wis. Stat. § 943.20(2)(b) (emphasis
added). "Electricity" is not given a specific definition in the
statute. "When a word of common usage is not defined in a
statute, we may turn to a dictionary to ascertain its meaning."
Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶14, 294
Wis. 2d 274, 717 N.W.2d 781. In searching for the appropriate
dictionary definition of "electricity" we are mindful of the
"ordinary-meaning canon," which provides that "[w]ords are to be
understood in their ordinary, everyday meaning——unless the
context indicates that they bear a technical sense." Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
The jury answered that the property stolen from AT&T was
worth more than $10,000 on both counts. Given the evidence
presented at trial by the State, we will not disturb the jury's
conclusion that Steffes stole more than $10,000 of applied
electricity from AT&T. See Morden v. Cont'l AG, 2000 WI 51,
¶39, 235 Wis. 2d 325, 611 N.W.2d 659 ("[A]ppellate courts search
the record for credible evidence that sustains the jury's
verdict, not for evidence to support a verdict that the jury
could have reached but did not.").
16
No. 11AP691
Legal Texts 69 (2012). A court "should assume the contextually
appropriate ordinary meaning unless there is reason to think
otherwise." Id. at 70. As nothing in § 943.20(2)(b) indicates
that "electricity" was intended to have a technical meaning, we
will look at the common understanding of the word. One
dictionary defines "electricity" as an "[e]lectric current used
or regarded as a source of power." The American Heritage
Dictionary of the English Language 575 (5th ed. 2011). Another
defines it similarly: "A supply of electric current laid on in
a building or room." Shorter Oxford English Dictionary 807 (6th
ed. 2007). And a dictionary published around the time the
current theft-by-fraud statute was enacted defined "electricity"
as an "electric current" with examples of its use as "to install
electricity; a machine run by electricity." The Random House
Dictionary of the English Language 459 (1966). Coursing through
these definitions is the notion that the word "electricity," as
it is used in its everyday parlance, means something that
provides power.
¶26 A straightforward reading of this statute combined
with the use of dictionaries unequivocally supports the State's
view that Steffes stole electricity from AT&T. To surmount this
textual and lexicographical hurdle, Steffes describes a parade
of horribles that will supposedly be unleashed if we uphold his
conviction under Wis. Stat. § 943.20(1)(d). For example,
Steffes claims that the failure to pay a dental or barber bill
could result in prosecution for theft by fraud because dentists
17
No. 11AP691
and barbers use electricity when cleaning teeth and cutting
hair. The difference, however, between not paying a dentist's
or barber's bill and defrauding a phone company is that the
dentist and barber do not own the electricity they use to
provide services to customers, but rather pay a utility company
to heat and light their offices. AT&T, by contrast, must buy AC
power, turn it into DC power, and store it in batteries at one
of its networks. The electricity used by AT&T is thus its
"property" for purposes of the theft-by-fraud statute. Given
this fundamental difference, we do not share Steffes's
prosecutorial slippery slope concerns. Cf. Robert H. Bork, The
Tempting of America 169 (1990) ("Judges and lawyers live on the
slippery slope of analogies; they are not supposed to ski it to
the bottom.").
¶27 What is more, this court does not issue advisory
opinions on how a statute could be interpreted to different
factual scenarios in future cases. See Grotenrath v.
Grotenrath, 215 Wis. 381, 384, 254 N.W. 631 (1934) ("[C]ourts
will not ordinarily render advisory opinions where the questions
propounded have not arisen and may never arise."). Rather, it
is our job to adjudicate the dispute in front of us. It is thus
not necessary for us to resolve the hypotheticals laid out by
Steffes. See Gortmaker v. Seaton, 450 P.2d 547, 548 (Or. 1969)
(en banc) ("It is fundamental to appellate jurisprudence that
courts do not sit 'to decide abstract, hypothetical, or
contingent questions . . . .'") (citation omitted).
18
No. 11AP691
¶28 An issue raised at oral argument——but not briefed by
Steffes——is that Steffes's conduct fell under the "theft of
telecommunications service" statute, Wis. Stat. § 943.45.
Because the parties did not address this question, we will not
answer whether Steffes could be charged under any of the
provisions in § 943.45(1). See State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633 (Ct. App. 1992) (noting that an
appellate court may decline to address issues that are not
briefed); see also State v. Johnson, 153 Wis. 2d 121, 124, 449
N.W.2d 845 (1990) (declining to address an issue not briefed).
We do, however, pause to note that whether Steffes could have
been charged with a different crime for the same conduct is not
determinative of whether Steffes's conviction for theft by fraud
was valid.
¶29 That a prosecutor has discretion in deciding what
charges to bring is codified in this state's law: "[I]f an act
forms the basis for a crime punishable under more than one
statutory provision, prosecution may proceed under any or all
such provisions." Wis. Stat. § 939.65. As we have said, "This
section gives a green light to multiple charges, which may
result in multiple convictions, under different statutory
provisions." State v. Davison, 2003 WI 89, ¶51, 263 Wis. 2d
145, 666 N.W.2d 1 (emphasis removed). It is entirely
permissible for a prosecutor to base a charging decision upon
the penalty scheme set by the legislature for each potential
crime. Cf. United States v. Batchelder, 442 U.S. 114, 125
19
No. 11AP691
(1979) ("The prosecutor may be influenced by the penalties
available upon conviction, but this fact, standing alone, does
not give rise to a violation of the Equal Protection or Due
Process Clause."). As long as a charging decision is not based
on an arbitrary or discriminatory classification such as race or
religion, prosecutors have broad discretion in deciding what
charges to bring. State v. Ploeckelman, 2007 WI App 31, ¶13,
299 Wis. 2d 251, 729 N.W.2d 784. The ultimate question is
whether the state can prove all the elements of the alleged
offense.
¶30 The elements of theft by fraud are: (1) the victim was
the owner of property; (2) the defendant made a false
representation to the owner; (3) the defendant knew the
representation was false; (4) the defendant made the
representation with intent to deceive and to defraud the owner;
(5) the defendant obtained title to the property by the false
representation; (6) the owner was deceived or misled by the
representation; (7) the owner parted with title to the property
in reliance on the false representation and was thus defrauded.
Wis JI——Criminal 1453A. AT&T purchased AC power from a utility
company and turned it into DC power by storing it in batteries.
It was thus the owner of the electricity, satisfying element
number one. As for the next three elements, we explained in the
previous section that members of the conspiracy knowingly made
false representations to AT&T with the intent of deceiving and
defrauding the company. The fifth element is satisfied by the
20
No. 11AP691
fact that Steffes made hundreds of phone calls over AT&T's phone
lines.9 Finally, on the last two elements, AT&T was deceived
into parting with its property in that it relied on the
fictitious business names and stolen personal identifying
information that Steffes and his co-conspirators provided as a
means of fraudulently setting up phone numbers. As all the
9
The phrase "[o]btains title to property" found in Wis.
Stat. § 943.20(1)(d) seems to indicate that a defendant must
acquire actual legal title to an item to be convicted of theft
by fraud. The court of appeals addressed this issue in State v.
Meado, 163 Wis. 2d 789, 793, 472 N.W.2d 567 (Ct. App. 1991),
when it was presented with the question of whether a defendant
who fraudulently obtained a lease——but not full title——to a van
could be prosecuted under the statute. The answer was yes,
because if the court "adopted [Meado's] argument that actual
title is required to pass, an actor would have to obtain the
legal document that is evidence of the title before the actor
could be charged with violating" § 943.20(1)(d). Meado, 163
Wis. 2d at 798 (emphasis in original). This reading of the
statute "would reward the industrious and designing thief who,
having perpetrated the proper fraud by making false
representations, could escape criminal liability as long as the
official title remained with the owner as security." Id. The
Wisconsin Criminal Jury Instructions Committee agrees with this
view as well. Wis JI——Criminal 1453A, Comment 5.
We concur with the Meado court's interpretation of Wis.
Stat. § 943.20(1)(d). Very few pieces of property actually have
a legal title with a name on it. If the state had to show that
a defendant was a title holder of the property he stole, theft
by fraud would be impossible to prosecute for a wide swath of
cases. Furthermore, it would be absurd if fraudulently
obtaining title to a home or vehicle were criminalized but the
exact same conduct were legal so long as the perpetrator were
only leasing. Cf. Kalal v. Circuit Court for Dane Cnty., 2004
WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (observing that
statutes are interpreted to avoid absurd or unreasonable
results). For these reasons, we hold that 943.20(1)(d) only
requires the prosecution to show that the defendant obtained the
property.
21
No. 11AP691
elements of theft by fraud were met in this case, it is
irrelevant whether Steffes could have been prosecuted under a
different statute.
V. CONCLUSION
¶31 Two issues are presented in this case. The first is
whether submitting fictitious business names and stolen personal
identifying information is a "false representation" under Wis.
Stat. § 943.20(1)(d). Steffes alleges that such conduct is not
a false representation because the statute requires that the
actor make an express promise to pay. The second issue is
whether the applied electricity that AT&T uses to power its
network is included within the definition of "property" found in
§ 943.20(2)(b). Steffes argues that his conviction cannot be
sustained because the evidence at trial showed that he stole
telephone services and not property.
¶32 On the first issue we hold that Steffes made "false
representations" to AT&T. The theft-by-fraud statute says that
"'[f]alse representation' includes a promise made with intent
not to perform if it is part of a false and fraudulent scheme."
Wis. Stat. § 943.20(1)(d) (emphasis added). Because the word
"includes" is not restrictive, the statute clearly anticipates
that other conduct aside from an express promise falls under the
umbrella of a "false representation." The scope and history of
the theft-by-fraud statute make plain that providing fictitious
business names and stolen personal identifying information to a
22
No. 11AP691
phone company as a way of avoiding payment falls within the
meaning of "false representation."
¶33 As to the second issue, "property" under the theft-by-
fraud statute is defined as "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." Wis. Stat.
§ 943.20(2)(b) (emphasis added). Relying on the plain language
of the statute in conjunction with commonly used dictionaries,
we conclude that Steffes stole electricity from AT&T. AT&T
purchases and stores electricity to power its network. When
consumers make phone calls, AT&T must buy more electricity. The
conspiracy perpetrated against AT&T therefore deprived the
company of its property. We affirm the court of appeals.
By the Court.—The decision of the court of appeals is affirmed.
23
No. 2011AP691-CR.ssa
¶34 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). In common
parlance, Matthew Steffes, the defendant, and his co-
conspirators set up a complicated scheme to steal from the
telephone company. They intended to, and did, bilk the
telephone company of what the telephone company sells——telephone
services.
¶35 The defendant is not, however, guilty of a crime
unless the State can prove beyond a reasonable doubt that he
violated the terms of a specific statute. Why? Because there
are no common law crimes in Wisconsin.1 All crimes are
statutorily defined.
¶36 The defendant in the present case was charged with,
and found guilty of, violating Wis. Stat. §§ 943.20(1)(d)2 and
943.20(3)(c),3 a class G felony. These statutes criminalize
1
Wis. Stat. § 939.10. See also State v. Genova, 77
Wis. 2d 141, 145-46, 252 N.W.2d 380 (1977).
2
Wisconsin Stat. § 943.20(1)(d) reads:
(1) Acts. Whoever does any of the following may be
penalized as provided in sub. (3):
. . . .
(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.
3
Wisconsin Stat. § 943.20(3)(c) provides:
(3) Penalties. Whoever violates sub. (1):
1
No. 2011AP691-CR.ssa
fraudulently obtaining the property of another with a value in
excess of $10,000.
¶37 The question of law presented in the instant case is,
as the majority opinion states at ¶15: "[W]hether the applied
electricity that AT&T uses to power its network is included in
the definition of 'property' found in § 943.20(2)(bparlan)." As
the majority opinion explains at ¶¶9-10, the telephone company
uses electricity to power the transmission of telephone calls.4
¶38 Electricity is specifically enumerated as "property"
subject to the statute.5 Wisconsin Stat. § 943.20(2)(b) defines
the word "property" for purposes of the statute as follows:
"'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."6
¶39 Services, including telephone services, are not
included within the statutory definition of property.7
. . . .
(c) If the value of the property exceeds $10,000, is
guilty of a Class G felony.
4
I agree with the majority opinion that the defendant
engaged in false representation to defraud the telephone
company.
5
The jury was instructed that under Wisconsin law the term
"property" includes electricity.
6
Wis. Stat. § 943.20(2)(b).
7
Theft of services cannot be prosecuted under Wis. Stat.
§ 943.20 of the Criminal Code. See William A. Platz, The
Criminal Code, 1956 Wis. L. Rev. 350.
2
No. 2011AP691-CR.ssa
¶40 I write on two issues of law presented: (1) whether
stealing telephone services from the telephone company
constitutes stealing electricity under the statute at issue; and
(2) if so, whether the value of the telephone services equals
the value of the electricity stolen under the statute at issue.
Early drafts of the statute in 1950 (Bill No. 784, S.) and
1953 (Bill No. 100, A.,), included explicit language listing
services as property subject to theft under § 943.20. See
Drafting Records for 1950 Bill No. 784, S. and 1953 Bill No.
100, A., on file at Wis. Legislative Reference Bureau, Madison,
Wis.
The legislature later removed all language regarding
services and intangible property from the statute it eventually
enacted in 1955. Ch. 696, Laws of 1955, § 943.20(2)(a) (eff.
July 1, 1956).
In 1960, Gordon B. Baldwin, Professor of Law and assistant
dean at the University of Wisconsin Law School, summarized the
comprehensive changes to the Criminal Code regarding
misappropriation. He explained that the definition of property
in § 943.20 "does not reach the deceiver who takes labor and
services from another without any intention of paying."
Professor Baldwin advised that "[i]f criminal sanctions are
needed to protect [service providers] specific statutes must be
enacted."
Professor Baldwin wrote:
The comprehensive definition of property in the
Criminal Code does not, however, reach all persons who
intend a misappropriation. It does not reach the
deceiver who takes labor and services from another
without any intention of paying. The doctor,
architect, engineer and garagemen [sic] may be
victimized and deserves protection, but the property
definitions are not comprehensive enough to cover
these misappropriations of services and time. If
criminal sanctions are needed to protect them specific
statutes must be enacted (emphasis in original).
Gordon B. Baldwin, Criminal Misappropriation in Wisconsin – Part
I, 44 Marq. L. Rev. 253, 262 (Winter 1960-61).
3
No. 2011AP691-CR.ssa
¶41 The State chose, as is its prerogative, to charge the
defendant with violation of the felony statute.8 I do not agree
with the State or the majority opinion that stealing telephone
services that apply electricity is stealing electricity within
the meaning of Wis. Stat. § 943.20. Even if stealing the
telephone services can be shoehorned into the statutory concept
of stealing electricity, I do not agree with the majority that,
as a matter of law or fact, the value of electricity stolen is
the same as the market value or replacement value of the
telephone services stolen. I therefore dissent.
I
¶42 I conclude as a matter of statutory interpretation
that the defendant did not steal electricity from the telephone
company under the statute at issue.
¶43 Electricity powers our 21st Century world. We all
purchase electricity or use electricity purchased by others to
power our lives. The telephone company purchases electricity
and provides services that are powered by electricity.
¶44 The majority opinion defines electricity: "[I]n its
everyday parlance [electricity] means something that provides
power" and that "[a] straightforward reading of this statute
combined with the use of dictionaries unequivocally supports the
8
The State might have charged and proved a violation of
Wis. Stat. § 943.45, entitled "Theft of Telecommunications
Service." The penalty is, at most, a Class B misdemeanor.
The State in future similar cases might use Wis. Stat.
§ 943.50, creating a felony for the theft of services valued at
more than $500. This statute was enacted in 2011, after the
defendant's conduct and the trial in the present case occurred.
4
No. 2011AP691-CR.ssa
State's view that Steffes stole electricity from AT&T."
Majority op., ¶¶25-26.
¶45 The majority opinion seems to rely on two theories to
support its interpretation of the statutory word "electricity."
First, it asserts that "applied electricity" is included within
the statutory word "electricity." Second, it asserts that the
telephone company differs from the typical user of electricity
or service provider that powers its services with electricity.
Why? Because the telephone company, unlike other users of
electricity or service providers, owns the electricity.
Majority op., ¶¶26, 30.
¶46 The majority opinion, the State, and the court of
appeals interpret the word "electricity" in the statute to
include "applied electricity."
¶47 The majority opinion defines the word "electricity,"
as we stated above, but does not define the phrase "applied
electricity." The phrase "applied electricity" does not appear
in dictionaries or in glossaries discussing electricity.9 So
what is the meaning of the phrase?
¶48 At trial, the State presented testimony that telephone
services are included in the definition of "property" because
telephone service uses an "applied form of electricity." Robert
Lindsley, an electrical engineer and manager for the telephone
9
See, e.g., 8 Cyclopedia of Applied Electricity 483 (1921)
(glossary of electrical terms); see also Clair A. Bayne, Applied
Electricity & Electronics 656-70 (2000) (glossary of important
terms).
5
No. 2011AP691-CR.ssa
company offered his expert opinion that "when you, you know, use
your phone, you are using an applied form of electricity."10
¶49 In its brief to the court of appeals, the State argued
that "[t]he 'property' obtained by the installation and use of
the fraud [sic] telephone lines by false representation were
[sic] valuable telephone services which involve an 'applied
form' of electricity and, as such, is 'property' within the
scope of the statute. . . . Those calls simply could not be
completed without electricity (unless the co-conspirators used
tin cans and miles of string to transmit voice impulses).
Electricity is an essential component of telephone
service . . . ."11
¶50 Interpreting the statutory word "electricity"
appearing in Wis. Stat. § 943.20(2)(b), the court of appeals
concluded as a matter of law that "electricity" as used in the
statute includes "applied electricity," that is, that the
10
Testimony of Robert Lindsley, in part:
When the telephone company bills a telecommunications
network, it also bills a power network to support that
telecommunications network. That power network
splices electricity to the telephone network, and
without that electricity, the telephone network would
not be able to——to cause communications to occur over
that network. Basically, when you, you know, use your
phone, you are using an applied form of electricity.
When Robert Lindsley was asked whether he knew the
telephone company's cost to power the phone system, he testified
that he did not.
11
State's court of appeals brief at 16.
6
No. 2011AP691-CR.ssa
statute includes electricity used to transmit the human voice
via telephone lines.12
¶51 In its brief before this court, the State argues that
"property" under Wis. Stat. § 943.20(2)(b) includes electricity
in its applied form; that "[t]he electricity and the telephone
system to which it was applied were inextricably linked," and
that "[e]lectricity is an essential component of telephone
service . . . ."13
¶52 Thus, the phrase "applied electricity" simply refers
to the application of electricity in some manner. The phrase is
used to mean how and when electricity is used to power a
particular product or service. The phrase "applied
electricity," as used in the majority opinion, means the
telephone company applies electricity in the delivery of
telephone services. More broadly, "applied electricity" means
any application of electricity.
¶53 This use of the phrase "applied electricity" is the
ordinary use of the phrase. Accordingly, the Cyclopedia of
Applied Electricity describes itself as "a complete and
practical working treatise on the generation and application of
electric power."14 According to the Cyclopedia: "The
12
State v. Steffes, 2012 WI App 47, ¶¶23-24, 340
Wis. 2d 576, 812 N.W.2d 529.
13
State's Brief at 28.
14
1 Cyclopedia of Applied Electricity 7 (1921). Still, the
term "applied electricity" is not found in the Table of Contents
or the Index.
7
No. 2011AP691-CR.ssa
applications of the electric current are numberless and are to
be found in every home. . . . Think again of the telephone, the
wire and wireless telegraphs, and the thousands of other
application of the electric spark, and electric energy which
contribute to our daily comfort."15
¶54 Thus, stealing "applied electricity" means in the
present case, according to the majority opinion, stealing the
electricity used to power the telephone services. Majority op.,
¶5.
¶55 If the criminal statute at issue includes electricity
used to power telephone services as property, then the majority
opinion has, in effect, rewritten the statute to include
numerous services that are powered by electricity.
¶56 The State attempts to avoid this result by
distinguishing telephone services from other "services [that]
The phrase "applied electricity" is most often used as a
textbook title, in a similar manner to the phrase "Applied
Mathematics."
See also Principles of Electricity Applied to Telephone and
Telegraph Work (1961) (The title page describes the text as "[a]
Training Course Text Prepared for Employees of the Long Lines
Department, American Telephone and Telegraph Company." The
Preface explains that this edition of the text "has required the
introduction of certain basic concepts and principles not dealt
with in earlier editions, as well as numerous examples to
illustrate their applications in practice."); Clair A. Bayne,
Applied Electricity and Electronics (2000) (The phrase "applied
electricity" is in the title of the text, but is not found in
the Table of Contents, the Index, or the Glossary of Important
Terms.).
15
1 Cyclopedia of Applied Electricity 8 (1921). For a
discussion of electricity applied to the telephone, see 8
Cyclopedia of Applied Electricity 11-90 (1921).
8
No. 2011AP691-CR.ssa
involve the use of electricity (i.e., legal advice over a
telephone or the barber's use of electric hair clippers)." From
the State's vantage point, electricity is incidental to numerous
services but, in contrast, integral to the telephone.
Employees, skills, time, machinery, and labor are incidental to
telephone services but, in contrast, according to the State,
integral to other services that use electricity. The State's
brief explains the differences among service providers that use
applied electricity as follows:
The obvious difference is that the telephone lines
cannot function, and so the service cannot be
provided, without an enabling electrical system:
electricity is essential to the service. A telephone
system cannot exist without it. The customer who
purchases access to a phone line purchases the
electricity that powers it. Legal services and a
haircut can, theoretically, be provided without using
electricity (a face-to-face meeting with a lawyer; a
barber's scissors or straight razor). The electricity
used in connection with those services is only
incidental to the service itself. It is the value of
the lawyer's skill and time, and the barber's skill
and labor, that is lost when those services are
fraudulently obtained by the lawyer's client or the
barber's customer. The telephone company loses the
value of the applied form of electricity when its
services are fraudulently obtained; the value of the
telephone company's spent employee skills, time and
labor are only incidental to that service.16
¶57 This argument is unpersuasive, and the majority
opinion rightfully refuses to adopt it.
¶58 Service providers other than the telephone company
require electricity to operate. For example, the dentist uses
electricity to power the lights, the dental chair, the drill,
16
State's Brief at 32 n.15 (emphasis in original).
9
No. 2011AP691-CR.ssa
the electric toothbrush, the suction apparatus, the ultrasonic
sterilizer, the sealant gun, the x-ray machine, the security
system, and computers. Even the old-school barber, with only
her scissors and straight razor, needs lights to see what she is
doing. As I recently discovered, when the electricity is shut
off for a few hours, the barber closes up shop.
¶59 Without electricity, neither the telephone company nor
the dentist nor the barber can operate. Electricity is
essential and integral to telephone and dental and barbering
services and telephone and dental and barbering services all
also require human skills, time, labor, and equipment.
¶60 In lieu of the State's argument that "electricity is
integral to telephone services," the majority opinion
distinguishes telephone services using "applied electricity"
from other services using "applied electricity" based on the
notion that the telephone company owns the electricity that
powers the telephone services. Robert Lindsley explained that
the telephone company purchases AC power from the commercial
utility, converts the electricity into DC power, and stores that
energy in batteries so that in the event of a power outage, the
telephone company can use the energy from the batteries to power
the telephone system.17
17
Testimony from AT&T expert Robert Lindsley:
There are two different forms of power. There is AC
power, which is what you would get out of your AC
outlet at your home, and you are getting that from the
commercial utility. And then there is DC power. The
difference between AC and DC power is DC power, which
is direct current power, can be stored in batteries.
AC power cannot be stored in batteries.
10
No. 2011AP691-CR.ssa
¶61 The majority opinion promotes the "ownership"
distinction as follows:
The difference, however, between not paying a
dentist's or barber's bill and defrauding a phone
company is that the dentist or barber do not own the
electricity they use to provide services to customers,
but rather pay a utility company to heat and light
their offices. AT&T, by contrast, must buy AC power,
turn it into DC power, and store it in batteries at
one of its networks. The electricity used by AT&T is
thus its "property" for purposes of the theft-by-fraud
statute.18
¶62 The majority opinion's theory of the distinctiveness
of electricity that powers telephone service based on the
telephone company's ownership of electricity is not supported by
fact or law.
¶63 First, it seems to me that the majority opinion may be
misreading the record regarding the concept of and importance of
the telephone company's storage and "ownership" of electricity.
Very little testimony discusses this issue. No one focused on
this topic at trial. Yet a plain reading of Robert Lindsley's
testimony seems to indicate that the telephone company only
converts and stores electricity for use during a power outage
and may simply transmit the electricity it normally receives.
So the telephone company actually buys AC power from
the commercial utility, rectifies that DC——or excuse
me. The AC power into a DC form, stores that energy
in batteries so that if we lose commercial power to
our central office, your phone continues to work.
18
Majority op., ¶26 (emphasis in original).
11
No. 2011AP691-CR.ssa
¶64 Furthermore, other service providers may also store
(and thus "own") electricity for later use.19 A dentist
purchases electricity to charge the laptop, cell phone, cordless
phone, portable x-ray machine, and other portable electronic
devices. The dentist stores the electricity in the devices'
batteries and then uses the electricity later to perform a
service.20
19
The majority opinion attempts to distinguish the
telephone company from other service providers and yet asserts
at the same time that comparing service providers creates a
slippery slope and unnecessary hypotheticals. Majority op.,
¶¶26-27.
Looking at how other service providers use electricity and
at whether theft of their services can be prosecuted under the
majority opinion's interpretation of the statute at issue is
helpful to ensure that the statute is being interpreted
correctly and that it will be applied consistently in the future
to similar cases. Were a person to fraudulently acquire cable
television or internet service or a ticket on an electric train,
could that person be successfully prosecuted for stealing
electricity under the majority opinion's interpretation of the
statute at issue in the present case?
20
See John Bird, Electrical and Electronic Principles and
Technology 28-29 (3d ed. 2007):
The battery is now over 200 years old and batteries
are found almost everywhere in consumer and industrial
products. Some practical examples where batteries are
used include:
In laptops, in cameras, in mobile phones, in cars, in
watches and clocks, for security equipment, in
electronic meters, for smoke alarms, for meters used
to read gas, water and electricity consumption at
home, to power a camera for an endoscope looking
internally at the body, and for transponders used for
toll collection on highways throughout the world.
12
No. 2011AP691-CR.ssa
¶65 Second, as a matter of law, the majority opinion's
reliance on the telephone company's "ownership of electricity"
as the determinative factor under the statute at issue is
erroneous. This ownership distinction is contrary to law and
the purpose of the theft statute.21
¶66 The purpose of the theft statutes is to prevent the
taking of property without the consent of the owner or the
person who has constructive or actual possession.22
¶67 Property may be stolen from anyone who has the right
to possess and use a thing to the exclusion of others.23
Possession and control over the use of property is all that is
required in order for it to be stolen. Electricity may be
diverted (stolen) from one that takes and stores electricity or
one that simply pays to possess and use electricity.
21
Mitchell v. State, 84 Wis. 2d 325, 339, 267 N.W.2d 349
(1978) (the offenses involving personal property contained in
Chapter 943 consistently make possession of the property, not
ownership, the key factor).
See also Wis. Stat. § 943.32(3) (for purposes of the
robbery statute, "owner" means a person in possession of
property whether the person's possession is lawful or unlawful).
See also Wis. Stat. § 971.33, Possession of property (in
the prosecution of a crime committed by stealing, damaging, or
fraudulently receiving or concealing personal property, it is
sufficient if it is proved that at the time the crime was
committed either the actual or constructive possession or the
general or special property in any part of such property was in
the person alleged to be the owner thereof).
22
See generally 3 Wayne R. LaFave, Substantive Criminal Law
§ 19.2(a) (2d ed. 2003).
23
See Mitchell v. State, 84 Wis. 2d 325, 339, 267
N.W.2d 349 (1978).
13
No. 2011AP691-CR.ssa
¶68 The two dead giveaways for me that the State was
prosecuting the defendant for theft of telephone services, not
for the theft of electricity, were the charging documents and
the State's argument that the value of the telephone services
stolen equals the value of the electricity stolen.24
¶69 The criminal complaint and information do not mention
electricity. These documents simply allege that the defendant
stole both services and property.
¶70 The only reference in the complaint to the stolen
property and its value is in Section 1 of the complaint,
entitled Summary of Allegations, which explains, "All tolled
[sic], SBC representatives calculate that this fraud group
bilked the Phone Company out of about $40,000 in phone service
fees."
¶71 The First Amended Information alleges that the
defendant conspired to "obtain[] title to the property of [the
telephone company], having a value exceeding $10,000 . . . [by
making] a false promise to pay for telephone service
24
According to testimony at trial, telephone service fees
paid by telephone customers not only pay for the electricity
used to power the system, but also pay for the transmission
wires, cables, offices, employees, and other machines and
equipment.
14
No. 2011AP691-CR.ssa
accounts . . . ." The information does not specify the property
that was the object of the conspiracy.25
25
The defendant was initially charged in 2004, pled no
contest, was sentenced, and then was permitted to withdraw his
no-contest plea in 2009. After the plea was withdrawn, a Third
Amended Information was filed, which restated charges filed
years earlier in the First Amended Information. The Third
Amended Information is not in the record, but the First Amended
Information is in the record, and represents the charges brought
at trial.
First Amended Information:
COUNT 01: CONSPIRACY TO MISAPPROPRIATE PERSONAL
IDENTIFYING INFORMATION, HABITUAL CRIMINALITY (As to
Defendants Matthew Steffes and Joshua Howard)
Between about July 1, 2002 and December 1, 2002, at
various locations within the County of Milwaukee, with
intent that a crime be committed, did combine with
another for the purpose of committing a crime, viz:
The crime of Identity Theft . . .
COUNT 02: CONSPIRACY TO COMMIT THEFT BY FRAUD (VALUE >
$10,000), HABITUAL CRIMINALITY (As to Defendants
Matthew Steffes and Joshua Howard)
Between about July 1, 2002 and July 1, 2003, at
various locations within the County of Milwaukee, with
intent that a crime be committed, did combine with
another for the purpose of committing a crime, viz.:
The crime of Theft by Fraud, whereby the conspirators
did combine for the purpose of obtaining title to the
property of SBC, having a value exceeding $10,000, by
intentionally deceiving SBC with a false
representation known by the conspirators to be false,
viz. a false promise to pay for telephone service
accounts created in the name of Nick Steffes, which
representation made with intent to defraud and which
did defraud SBC, and furthermore one or more co-
conspirators did an act to effect the conspiracy's
object contrary to Wisconsin Statutes section
943.20(1)(d) & (3)(c) and 939.31 and 939.62 (emphasis
added).
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No. 2011AP691-CR.ssa
¶72 The State not only made no effort to explain in the
charging documents that the defendant stole electricity, but
also made no effort at trial to quantify or qualify the amount
or type of electricity stolen, or its value at the time it was
stolen.
¶73 The State has the burden to prove what property was
stolen——how much property, what kind of property, and the value
of the property.
¶74 The State did not proffer any information at trial to
quantify, qualify, or value the electricity that was allegedly
stolen——how much electricity, what kind of electricity, or the
value of the electricity stolen. Rather, the State proved the
number of telephone minutes used and the value of the telephone
services.
COUNT 03: CONSPIRACY TO COMMIT THEFT BY FRAUD (VALUE >
$10,000), HABITUAL CRIMINALITY (As to Defendants
Matthew Steffes and Joshua Howard)
Between about July 1, 2002 and July 1, 2003, at
various locations within the County of Milwaukee, with
intent that a crime be committed, did combine with
another for the purpose of committing a crime, viz.:
The crime of Theft by Fraud, whereby the conspirators
did combine for the purpose of obtaining title to the
property of SBC, having a value exceeding $10,000, by
intentionally deceiving SBC with a false
representation known by the conspirators to be false,
viz. a false promise to pay for telephone service
accounts created in the name of Jamie Douyette, which
representation was made with intent to defraud and
which did defraud SBC, and furthermore one or more co-
conspirators did an act to effect the conspiracy's
object contrary to Wisconsin Statutes section
943.20(1)(d) & (3)(c) and 939.31 and 939.62 (emphasis
added).
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No. 2011AP691-CR.ssa
¶75 The best the majority opinion can put forth (and it is
not good enough to convince me) is to explain that "AT&T
purchases and stores electricity to power its network. When
consumers make phone calls, AT&T must buy more electricity. The
conspiracy perpetrated against AT&T therefore deprived the
company of its property." Majority op., ¶5.
¶76 For the reasons set forth, I conclude that the
defendant's bilking the telephone company was theft of telephone
services, not theft of electricity under the statute. As
Assistant Attorney General William Platz and Professor Gordon
Baldwin both explained more than a half century ago, theft of
services is not covered by Wis. Stat. § 943.20. The simple fact
that electricity is used to power telephone service does not
morph a theft of these services into a theft of electricity.
II
¶77 Even if stealing telephone services would constitute
stealing electricity under the statute at issue, and it does
not, the value of the electricity stolen is not, as a matter of
law or fact, equal to the value of the telephone services. The
State and the majority opinion can add whatever adjectives they
like before the term "electricity," but to convict an individual
for a Class G felony under § 943.20, the State must prove that
the individual in fact stole a quantifiable and valuable amount
of electricity in excess of $10,000.
¶78 The value of the electricity stolen is an important
factor because the penalty for theft ranges from a misdemeanor
17
No. 2011AP691-CR.ssa
through a Class G felony depending on the value of the property
stolen.26
¶79 Value is statutorily defined as "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."27
¶80 Although the fair market value (or replacement value)
of the stolen property is not an element of theft, when a
criminal statute prescribes a penalty based on the value of the
property, the fact finder (here the jury) determines the value
of the property stolen and the jury's determination must be
supported by the evidence. The sentence for a theft felony
cannot stand when there is no factual basis for the value of the
stolen property.28
¶81 The burden is on the State to prove the value of the
stolen electricity. The majority erroneously flips the burden
26
In Sartin v. State, this court explained:
While . . . the value of the property stolen is not an
element of the crime of theft, nevertheless value is
of the utmost importance in determining the applicable
penalty upon conviction.
Sartin v. State, 44 Wis. 2d 138, 148, 170 N.W.2d 727 (1969).
See also White v. State, 85 Wis. 2d 485, 490, 492-93, 271
N.W.2d 97 (1978).
27
Wis. Stat. § 943.20(2)(d).
28
White v. State, 85 Wis. 2d 485, 490, 492-93, 271
N.W.2d 97 (1978) (a factual basis must be established for value;
"Value must be determined before an appropriate penalty can be
imposed . . . ."); Sartin v. State, 44 Wis. 2d 138, 151, 170
N.W.2d 727 (1969).
18
No. 2011AP691-CR.ssa
to the defendant to prove the quantity and value of electricity
used to make each call. Majority op., ¶24 n.8.
¶82 The State proved only the "fair market value" of the
telephone calls, not the "fair market value" of the electricity
stolen and not the "replacement cost" of the electricity stolen.
The State was content with not offering the quantity and value
of the stolen electricity even though at trial AT&T's engineer,
Robert Lindsley, testified that it would be possible to
determine how much electricity was used to power each of the
defendant's phone calls, but "it would be a very labor intensive
process."
¶83 Moreover, according to the testimony, the cost of the
electricity used to provide telephone service does not equal the
amount the telephone company charges for telephone service.
Additional costs beyond the cost of electricity factor into the
fees the telephone company charges for telephone service.
Testimony at trial was that the telephone service fees paid by
consumers not only pay for the electricity used to power the
system, but also pay for the transmission wires, cables,
offices, employees, and other machines and equipment.
¶84 Thus, the fair market value of the stolen telephone
service that the State offered at trial is not equal to the fair
market value of the electricity stolen. Accordingly, as a
matter of law or fact, the State did not prove the value of the
electricity stolen.
¶85 The majority opinion follows the lead of the court of
appeals, equating "applied electricity" to the entire telephone
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No. 2011AP691-CR.ssa
service as follows: "[T]he market value to the telephone
company of the services [fraudulently obtained] is the correct
measure of the value of the stolen property in this
case. . . . The undisputed evidence is that the phone company
lost over $26,000 in billable services——i.e. applied
electricity . . . ."29
¶86 The State did not prove the value of the electricity
stolen. Even if the statute is interpreted to mean the applied
electricity in the present case, and I do not so interpret the
statute, the State did not prove that the value of the stolen
property exceeds $2,500.30 Under these circumstances the felony
conviction must be vacated, a conviction of a Class A
misdemeanor must be entered, and the cause must be remanded for
resentencing.31
¶87 For the reasons set forth, I dissent.
¶88 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
29
State v. Steffes, 2012 WI App 47, ¶¶23-24, 340
Wis. 2d 576, 812 N.W.2d 529.
30
The minimum value of property stolen required for theft
to be classified as a felony is $2,500. Wis. Stat.
§ 943.20(3)(a) If the value of the property does not exceed
$2,500, [whoever violates sub. 1] is guilty of a Class A
misdemeanor.
31
White v. State, 85 Wis. 2d 485, 493, 271 N.W.2d 97
(1978).
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No. 2011AP691-CR.ssa
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