THEFT OF PROPERTY

The State must prove 4 elements:

1. That you intentionally took and carried away movable property of another (The term “intentionally” means that you must have had the “mental purpose” to take and carry away property)
2. That owner of the property did not consent to taking and carrying away the property
3. That you knew that the owner did not consent
4. That you intended to deprive the owner permanently of the possession of the property

Often a defense to this charge is that the accused did not mean to “take and carry away” the item. This is raised quite often in shoplifting situations where the item is in a shopping bag and the person claims that they intended to pay for it but forgot. Another common defense is that a person intended to borrow the item and, therefore, did not intend to “permanently deprive” the owner of the property.

Prosecutors have the discretion to add up the value of all goods and charge the maximum available felony or break up the items to charge several misdemeanors. A charge of theft can have drastic consequences for your future employment or licensing goals. Often employers look very dimly upon those with convictions for offenses involving “crimes of moral turpitude.” Companies and public employers alike either have policies excluding felons or just generally do not trust those with a history of stealing. This is particularly true if the crime was of multiple violations or of a protracted nature. Certain state and federal licenses, such as license to practice law or be a securities broker, may not be available or more difficult to obtain with a conviction for theft, whether misdemeanor or felony.

Wisconsin penalties for Theft:

• Under $2,500: 9 months maximum (misdemeanor)
• $2,500 to $5,000: 18 months (felony)
• $5,000 to $10,000: 3 years (felony)
• $10,000 or greater: 5 years

Theft is a 5 year felony if the item taken is an animal, obtained by looting, is a firearm, or is taken from an elderly or mentally disable “vulnerable” person, regardless of the item’s value

In addition to proving the 4 elements of theft, the State must prove:

1. That you were a contractor
2. That you had a trust account established for a client
3. That you took the assets out of the trust account for a purpose other than what those funds are authorized for

Imperative to a strong defense in these cases is the maintenance of company records. Your accuser will not be happy and will want to make your life miserable. If you do not have detailed records regarding what funds were used for what purposes, your defense will be a he said/she said examination of the facts. In these kinds of cases you are still presumed innocent until the state can prove you guilty, but it is much more difficult to defend and assert facts without company receipts.

In addition to proving the 4 elements of theft, the State must prove:

1. That you used your position at a business to take the possessions or assets of the owner of that business

Occasionally, less-than-upright business owners and managers will report theft from business to the police so that the managers and owners can do one of many things, including: cover their own reputation and legitimacy if they have been losing money or stealing from the company themselves; write down business losses for tax purposes; and even collect on their insurance policies for the loss. In these situations, you must be prepared to engage in an extensive accounting of what you did and what your former employer thinks you did. We will need to examine and dissect your bank records to prove that you did not take money that was not yours.

In addition to proving the 4 elements of theft, the State must prove:

1. That you made a false representation which you knew to be false in order to obtain the property/possessions of another

In these cases, the most difficult element for the state to prove is that you knew you were making a false representation. If you believed what you were saying, then you are not guilty of this offense. Unfortunately, the state will assume that you knew what you were doing was wrong. Even though you are presumed innocent by the law, your defense must be prepared to prove your innocence.

Statutory Definition:

Theft, as defined in section 943.20(1)(d) of the Criminal Code of Wisconsin, is committed by one who obtains title to property of another person by intentionally deceiving an agent of that person with a false representation which is known to be false, made with intent to defraud, and which does defraud the owner of the property.

The State must prove the following elements:

1. (Name) was the owner of property.
2. (Name) was the agent of the owner.
   An agent is a person authorized to act on the owner’s behalf.
3. The defendant made a false representation to the agent.
   This requires that the false representation be one of past or existing fact. It does not include expressions of opinions or representations of law.
4. The defendant knew the representation was false.
5. The defendant made the representation with intent ot deceive the agent and to defraud the owner.
   It is not required that the defendant knew the identity of the owner.
6. The defendant obtained title to the property of the owner by making the false representation to the agent.
7. The agent was deceived by the representaion.
8. The owner was defrauded by the representation.
   This requires that the owner of property did in fact part with title to property in reliance (at least in part) on the false representation.

The State must prove 3 elements:

1. The defendant obtained _______ at a _________.
2. The defendant knew (he)(she) was obligated to pay for the _________.
3. The defendant intentionally absconded without paying.

“Intentionally absconded” requires that the defendant left with the mental purpose to avoid paying for the _______.

The State must prove 4 elements:

1. That you intended to defraud
2. That you falsely made an object or writing
3. That the writing or object purports to be the writing or object of another
4. That you did not have the authority from that person to make that writing

These kinds of cases are normally associated with writing checks. Forgery charges also are commonly associated with theft from business charges. You can be charged with both forgery and theft from business in the same complaint if the State can show that the both charges were not done at the same time and based on the same conduct.

The penalties for Forgery can range from a class A Misdemeanor punishable by 9 months in the county jail, up to a Class H Felony punishable by 3 years in prison.

The State must prove 4 elements:

1. That you intentionally entered a building
2. That you entered the building without the consent of the person in lawful possession of that building
3. That you knew that the entry was without consent
4. That you entered the building with intent to steal or commit a felony

“Intent to steal” requires that you had the mental purpose to take and carry away movable property of another without their consent and that you intended to deprive the owner permanently of possession of the property. The charge becomes aggravated if you are armed upon entry or arm yourself after entering.

Wisconsin penalties for Burglary:

• Burglary: 7 years prison (felony)
• Armed Burglary: 40 years prison (felony)

The state must prove 2 elements:

1. That you had received or concealed stolen property
2. That you knew it was stolen property

Short of a confession, this crime is difficult for the state to prove. It relies almost entirely on your state of mind at the time you received the alleged stolen property. If you did not know that the property was stolen, you have an absolute defense.

Wisconsin penalties for Receiving Stolen Property:

• 9 months county jail – 5 years prison

The State must prove 5 elements:

1. That you damaged a building by means of fire.
2. That you did so intentionally.
3. That the building belonged to another person.
4. That you damaged such building without the owner’s consent.
5. That you knew that the building belonged to another person and knew that the other person did not consent to the damage of the building.

Absent an eyewitness, Arson is often a difficult charge to prove. Even with witnesses, unless they see you directly ignite the fire, their testimony is usually circumstantial. Often the prosecutor will call witnesses that will testify about a possible motive, such as jealously of an ex-lover, bitterness in a divorce, an attempt to kill occupants of a building, or a desire to get insurance money for the property.

Wisconsin penalties for Arson:

• 25 years

The State must prove 2 elements:

1. That you were presenting a false claim
2. That you presented that false claim to obtain money or other considerations

Insurance fraud is a very serious charge in that you are dealing with a very well-funded and highly-motivated plaintiff, an insurance company. It will essentially be two district attorneys prosecuting you for this crime. The insurance company will conduct its own investigation, which will be very thorough, and the police will follow that investigation up in case the insurance company missed anything. These are extremely difficult cases and are very consequential for any future hopes of being insured by a reputable insurance company.

Wisconsin penalties for Insurance Fraud:

• 9 months in jail – 1 year and 6 months in prison

The state must prove 4 elements:

1. That you intentionally used, attempted to use, or possessed with intent to use any personal identifying information of another
2. That you used that information without authorization from that person
3. That you represented to someone else that you were that person
4. That you used that information to obtain something of value, avoid civil or criminal prosecution, or harm the reputation of the other person

Identity theft crimes are becoming more and more common place. It is even possible for someone to be charged with this crime because someone else is stealing your identity to perpetuate the fraud. The defense in these kinds of cases must be extremely diligent and thorough in order to ensure that records are legitimate and not fraudulent.

Wisconsin penalty for Identity Theft:

• 3 years in prison

The state must prove 3 elements:

1. That you made a verbal or written statement
2. That the statement maliciously threatened to accuse another of something they did not do
3. That you made this statement to profit financially

This is commonly referred to as blackmail, and it is illegal. Even if the allegation you want to make is true, it is illegal to demand hush money. The burden to prove your guilt rests on the state and absent a taped encounter, it will be difficult for the state to meet its burden.

Wisconsin penalty for Extortion:

• 3 years in prison

The State must prove 3 elements:

1. That the document was a writing by which legal rights or obligations are created or transferred (A bank check is such a writing).
2. That you falsely made or altered the check, or an endorsement on the check. The check or the endorsement must have been falsely made or altered to appear to have been made by another person, or at another time, or with different terms, or by authority of someone who did not give such authority.
3. That you falsely made or altered a check or an endorsement with intent to defraud. “Intent to defraud” means that you had the purpose to obtain property that you were not entitled to receive.

As with theft, if there are multiple violations, they can be added up so that the felony can be charged. Or, the prosecutor may just pick a few for misdemeanor charges and ask for restitution on the rest. The State may use virtually indisputable evidence that there were insufficient funds in your account or that the account was closed. This is a very common offense but will generally only be charged criminally if the victim makes a serious complaint and presses the issue.

Wisconsin penalties for Issuance of a Worthless Check:

• Under $2,500: 9 months jail (misdemeanor)
• Over $2,500: 18 months prison (felony)

The State must prove 4 elements:

1. That the victim was the “owner” of property. “Owner” means a person in possession of property.
2. That you took the property from the person or from the presence of the victim.
3. That you took the property with the intent to steal. This requires that you had the mental purpose to take and carry away property of another without consent and that you intended to deprive the victim permanently of possession of the property.
4. That you used force against the person with the intent to overcome or prevent physical resistance or physical power of resistance to the taking or carrying away of the property.

The main distinction between robbery and regular theft is the requirement of use of force against a person. Even if you do not actually have a weapon, if the victim reasonably believes that you do, that is enough for a finding of “armed.”

Wisconsin penalties for Robbery:

• Robbery: 10 years prison
• Armed Robbery: 25 years prison