State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09
For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: Evidence held sufficient to sustain conviction for attempted theft from person, where Tidwell demanded money from a restaurant clerk, hit his fist on cash register and fax machine next to cash register, and tried to grab and take the fax machine:
¶10 In the case at bar, Tidwell contends that the facts of this case are not “circumstances which made stealing particularly dangerous and undesirable.” Hughes, 218 Wis. 2d at 545. We disagree. Here, Tidwell approached Rondeau while she was behind the cash register counter and demanded money. The counter was very narrow and had only one entrance which was blocked by Tidwell, leaving Rondeau trapped in a small area within arms reach of Tidwell. When Rondeau did not immediately give Tidwell the money, he began smashing the fax machine and cash register with his fists, becoming louder and louder in his demands for the money.¶11 Tidwell even tried to grab the fax machine and a brief tug of war ensued between he and Rondeau before it was released. These actions caused Rondeau to be legitimately “upset; shaking and scared.” Tidwell’s actions, the shouting, the grabbing of the fax machine, and the pounding on the fax machine and cash register, are “the type of ‘particularly dangerous and undesirable’ actions to which theft from the person should apply.” See Graham, 237 Wis. 2d 620, ¶10. We conclude that there is sufficient evidence to allow a reasonable jury to find beyond a reasonable doubt that Tidwell was guilty of theft “from the person.”
The court also concludes that Rondeau had constructive possession of the restaurant’s property, hence the attempted theft was of his “person,” ¶12. Compare, Byrd v. Israel, 513 F. Supp. 1077, 1082 (E.D. Wis. 1981) (holding that “it was the store rather than its employees that were robbed”: “‘Although an allegation that the property taken was owned by one person and proof that it was owned by another may give rise to a fatal variance in larceny cases, the rule is otherwise as to robbery, (because) a taking by force or putting in fear is the gist of the offense.’ 67 Am.Jur.2d Robbery § 66 (1973) (footnotes omitted). See Walton v. State, 64 Wis.2d 36, 41-42, 218 N.W.2d 309 (1974). It matters less that the property belonged to a particular owner than that it belonged to someone other than the robber. See State v. Bowden, 62 N.J.Super. 339, 162 A.2d 911 (1960).”). It does seem as if the offense could have been charged as attempted robbery of the restaurant, and the net result is that the court of appeals has blurred the distinction between theft and robbery.