Chapter 943

subch. III of ch. 943 SUBCHAPTER III

MISAPPROPRIATION

943.20 943.20 Theft.

943.20(1) (1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):

943.20(1)(a) (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.

943.20(1)(b) (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.

943.20(1)(c) (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.

943.20(1)(d) (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.

943.20(1)(e) (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.

943.20(2) (2) Definitions. In this section:

943.20(2)(ac) (ac) “Adult at risk” has the meaning given in s. 55.01 (1e).

943.20(2)(ad) (ad) “Elder adult at risk” has the meaning given in s. 46.90 (1) (br).

943.20(2)(ae) (ae) “Individual at risk” means an elder adult at risk or an adult at risk.

943.20(2)(ag) (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.

943.20(2)(am) (am) “Patient” has the meaning given in s. 940.295 (1) (L).

943.20(2)(b) (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.

943.20(2)(c) (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.

943.20(2)(cm) (cm) “Resident” has the meaning given in s. 940.295 (1) (p).

943.20(2)(d) (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.

943.20(3) (3) Penalties. Whoever violates sub. (1):

943.20(3)(a) (a) If the value of the property does not exceed $2,500, is guilty of a Class A misdemeanor.

943.20(3)(bf) (bf) If the value of the property exceeds $2,500 but does not exceed $5,000, is guilty of a Class I felony.

943.20(3)(bm) (bm) If the value of the property exceeds $5,000 but does not exceed $10,000, is guilty of a Class H felony.

943.20(3)(c) (c) If the value of the property exceeds $10,000 but does not exceed $100,000, is guilty of a Class G felony.

943.20(3)(cm) (cm) If the value of the property exceeds $100,000, is guilty of a Class F felony.

943.20(3)(d) (d) If any of the following circumstances exists, is guilty of a Class H felony:

943.20(3)(d)1. 1. The property is a domestic animal.

943.20(3)(d)3. 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.

943.20(3)(d)4. 4. The property is taken after physical disaster, riot, bombing or the proximity of battle has necessitated its removal from a building.

943.20(3)(d)5. 5. The property is a firearm.

943.20(3)(d)6. 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.

943.20(3)(e) (e) If the property is taken from the person of another or from a corpse, is guilty of a Class G felony.

943.20(4) (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.

943.20 History 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.

943.20 Cross-reference Cross-reference: Misappropriation of funds by contractor or subcontractor as theft, see s. 779.02 (5).

943.20 Annotation If one person takes property from the person of another, and a second person carries it away, the evidence may show a theft from the person under sub. (1) (a) and sub. (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).

943.20 Annotation Theft is a lesser included offense of robbery. Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972).

943.20 Annotation 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).

943.20 Annotation 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).

943.20 Annotation 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).

943.20 Annotation 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).

943.20 Annotation 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).

943.20 Annotation 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).

943.20 Annotation Sub. (1) (e) does not unconstitutionally imprison one for debt. State v. Roth, 115 Wis. 2d 163, 339 N.W.2d 807 (Ct. App. 1983).

943.20 Annotation A person may be convicted under sub. (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).

943.20 Annotation 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).

943.20 Annotation “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).

943.20 Annotation 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, 501 N.W.2d 461 (Ct. App. 1993).

943.20 Annotation The definition of “bailee” under s. 407.102 (1) is not applicable to sub. (1) (b). Discussing definitions of “bailment” and “bailee.” State v. Kuhn, 178 Wis. 2d 428, 504 N.W.2d 405 (Ct. App. 1993).

943.20 Annotation 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).

943.20 Annotation 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).

943.20 Annotation 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.

943.20 Annotation 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, the defendant’s 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.

943.20 Annotation 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.

943.20 Annotation 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.

943.20 Annotation 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.

943.20 Annotation 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.

943.20 Annotation The intent of the “from the person” penalty enhancer under sub. (3) (e) is to cover circumstances that make 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 the manager’s 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.

943.20 Annotation 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.

943.20 Annotation Affirmed on other grounds. 2013 WI 53, 347 Wis. 2d 683, 832 N.W.2d 101, 11-0691.

943.20 Annotation There is no requirement under sub. (1) (d) that at least one co-conspirator expressly promise that the co-conspirator 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.

943.20 Annotation 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.

943.20 Annotation Section 971.36 (3) (a) and (4) allows 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.

943.20 Annotation In this case, the court’s determination that the subcontractor did not prove its theft-by-contractor claim because the prime contractor was “solvent and always able to pay” was incorrect as a matter of law when the evidence unquestionably showed that the prime contractor retained and used the money it owed to the subcontractor to support the prime contractor’s general account for payment of its own business obligations. The fact that the prime contractor, almost a year after it refused the subcontractor’s first demand for payment and after the subcontractor’s second demand, placed the entire contract amount into the trust account of the prime contractor’s attorney amounted to little more than a continued refusal to pay the amount owed. Century Fence Co. v. American Sewer Services, Inc., 2021 WI App 75, 399 Wis. 2d 742, 967 N.W.2d 32, 19-2432.

943.20 Annotation In this case, when the subcontractor undisputedly completed the job as the contract required, a question about how much work was necessary to complete the job was irrelevant to the question of what was owed to the subcontractor under the contract. The prime contractor had no legitimate ground for withholding payment simply because it, after-the-fact, may have regretted not negotiating the contract differently. There was no “bona fide” dispute. Century Fence Co. v. American Sewer Services, Inc., 2021 WI App 75, 399 Wis. 2d 742, 967 N.W.2d 32, 19-2432.

943.20 Annotation A prime contractor cannot cure its theft once the crime is completed. Century Fence Co. v. American Sewer Services, Inc., 2021 WI App 75, 399 Wis. 2d 742, 967 N.W.2d 32, 19-2432.

943.20 Annotation A landlord who failed to return or account for a security deposit ordinarily could not be prosecuted under this section. 60 Atty. Gen. 1.

943.20 Annotation Both conversion and civil theft under sub. (1) (b) and s. 895.446 (1) require the victim to have an ownership interest in the property converted or stolen. Under the agreement in this case, the plaintiff operated a brain injury center in the defendant’s nursing facility; the defendant handled all billing and collections for the services the plaintiff provided; and, through a process outlined in the agreement, the defendant remitted the funds collected to the plaintiff. However, the defendant failed to follow through on its obligations under the contract, redirecting the plaintiff’s funds to pay the defendant’s employees and other creditors instead. When one party receives funds from an outside source and is required to remit those funds to the other party, that is enough to create an ownership interest. Milwaukee Center for Independence, Inc. v. Milwaukee Health Care, LLC, 929 F.3d 489 (2019).

943.20 Annotation 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).

943.20 Annotation Sub. (1) (b) is 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. Aslanukov v. American Express Travel Related Services Co., 426 F. Supp. 2d 888 (2006).

943.201 943.201 Unauthorized use of an individual’s personal identifying information or documents.

943.201(1) (1) In this section:

943.201(1)(a) (a) “Personal identification document” means any of the following:

943.201(1)(a)1. 1. A document containing personal identifying information.

943.201(1)(a)2. 2. An individual’s card or plate, if it can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds.

943.201(1)(a)3. 3. Any other device that is unique to, assigned to, or belongs to an individual and that is intended to be used to access services, funds, or benefits of any kind to which the individual is entitled.

943.201(1)(b) (b) “Personal identifying information” means any of the following information:

943.201(1)(b)1. 1. An individual’s name.

943.201(1)(b)2. 2. An individual’s address.

943.201(1)(b)3. 3. An individual’s telephone number.

943.201(1)(b)4. 4. The unique identifying driver number assigned to the individual by the department of transportation under s. 343.17 (3) (a) 4.

943.201(1)(b)5. 5. An individual’s social security number.

943.201(1)(b)6. 6. An individual’s employer or place of employment.

943.201(1)(b)7. 7. An identification number assigned to an individual by his or her employer.

943.201(1)(b)8. 8. The maiden name of an individual’s mother.

943.201(1)(b)9. 9. The identifying number of a depository account, as defined in s. 815.18 (2) (e), of an individual.

943.201(1)(b)10. 10. An individual’s taxpayer identification number.

943.201(1)(b)11. 11. An individual’s deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a).

943.201(1)(b)12. 12. Any of the following, if it can be used, alone or in conjunction with any access device, to obtain money, goods, services, or any other thing of value or benefit, or if it can be used to initiate a transfer of funds: