On Point blog, page 1 of 2
Failing to raise joint-account defense to embezzlement charge wasn’t ineffective
State v. Phyllis M. Schwersenska, 2018AP1619-CR, District 4, 4/30/20 (not recommended for publication); case activity (including briefs)
Schwersenska was convicted of embezzling money from a joint bank account she held with her daughter, H.R. The court of appeals holds trial counsel wasn’t ineffective for failing to raise the defense that, as joint owner of the account, none of the money in the account belonged solely to H.R. and so she can’t be guilty of theft from H.R.
SCOTUS: Federal immigration law doesn’t preempt state identity theft prosecutions
Kansas v. Garcia, USSC No. 17-384, 2020 WL 1016170, 3/3/20, reversing and remanding State v. Garcia, 401 P.3d 588 (Kan. 2017); Scotusblog page (including links to briefs and commentary)
In a five-to-four vote, the Supreme Court has upheld Kansas’s prosecution of noncitizens who used stolen social security numbers to gain employment.
The Kansas Supreme Court held that federal law in the form of the Immigration Reform and Control Act precluded prosecution of Garcia and some other defendants for identity theft because of 8 U.S.C.
Challenges to armed robbery conviction and sentence rejected, but sentence credit granted
State v. Sean N. Jones, 2018AP948-CR, District 3, 8/20/19 (not recommended for publication); case activity (including briefs)
Jones makes various challenges to his conviction and sentence for being to party to the crime of armed robbery. The court of appeals rejects all of his claims except the last one, involving sentence credit.
SCOW: Burglary locations are modes, not elements
United States v. Dennis Franklin and Shane Sahm, 2019 WI 64, 6/6/19, answering a question certified by the Seventh Circuit; case activity (including briefs)
For state practitioners, the most interesting thing about Franklin is that it happened at all. Certified questions to the Wisconsin Supreme Court are rare, and a certified question presented in a federal criminal case regarding a matter of state criminal law is unheard of.
SCOW will weigh in on aggregation of retail theft charges
State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2017AP913-CR & 2017AP914-CR, petition for review granted 4/9/19; case activity (including briefs)
Issue:
Does either Wis. Stat. § 971.36 or inherent prosecutorial charging discretion allow a prosecutor to charge a single felony count of retail theft for multiple separate acts of theft, each involving less than $500 in merchandise, committed over a span of time?
Retail theft charges can be aggregated under § 971.36
State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2019 WI App 2, petition for review granted 4/9/19, affirmed by a divided court, 2019 WI 101; Lopez case activity; Rodriquez case activity).
Lopez and Rodriguez were each charged with a single count being party to the crime of felony retail theft of more than $500 but less than $5,000 based on seven separate incidents occurring over two weeks at the same store. Each separate incident involved the theft of less than $500. (¶2). Can the state aggregate the incidents into a single felony count under § 971.36, or does that create a duplicity problem (charging two or more offenses in a single count) that must be avoided by charging seven separate misdemeanors? Aggregate away! sayeth the court of appeals.
SCOW to address whether each structure listed in burglary statute is an “element”
United States v. Dennis Franklin & Shane Salm, 2018AP1346-CQ, certification granted 8/15/18; case activity
The Seventh Circuit certified the following question of law to the Wisconsin Supreme Court:
Whether the different location subsections of the Wisconsin burglary statute, Wis. Stat. § 943.10(1m)(a)–(f), identify alternative elements of burglary, one of which a jury must unanimously find beyond a reasonable doubt to convict, or whether they identify alternative means of committing burglary,
Identity theft doesn’t require some extra act of “representing” in addition to “use” of identifying documents
State v. Christopher A. Mason, 2018 WI App 57; case activity (including briefs)
Applying its newly minted decision in State v. Stewart, 2018 WI App 41, the court of appeals holds that the “representing” element of identity theft under § 943.201 can be proven with the same evidence that proves the defendant “used” the identifying information or documents.
Identity theft statute applied to defendant’s forgery of documents he submitted at sentencing hearing
State v. Theoris Raphel Stewart, 2018 WI App 41; case activity (including briefs)
Facing sentencing for failure to pay child support, Stewart forged some documents to support his argument for probation rather than a prison sentence. For his trouble he was charged with and convicted of identity theft under § 943.203(2). The court of appeals rejects his argument that his use of the forged documents did not violate that statute.
Court of appeals rejects challenges to admission and sufficiency of evidence
State v. James E. Gray, 2017AP452-CR, 6/6/18, District 2, (not recommended for publication); case activity (including briefs)
The court of appeals here affirms several trial court evidentiary decisions and holds that the State presented sufficient evidence to support convictions for 5 counts of identity theft. As you might guess, the decision hinges on the harmless error doctrine and facts specific to this case.