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Evidence was sufficient to establish intent to deprive owner of property

State v. Adam J. Gajeski, 2014AP612-CR, District 3, 10/7/14 (1-judge; ineligible for publication); case activity

The evidence was sufficient to support the guilty verdict on a theft charge because the jury could have reasonably inferred Gajeski intended to permanently deprive the owner of the property at the time he took the property.

After an altercation with Lydia, his estranged wife, Adam Gajeski took her two cell phones and left her home. She called police, who then called Gajeski and told him to bring the phones to the police station. Gajeski instead returned them to Lydia. By the time of Gajeski’s trial on theft, battery, DC, and witness intimidation charges, the two had reconciled, and Lydia recanted the version of events she conveyed to the police. (¶¶2-8). Gajeski was convicted nonetheless, and the court of appeals rejects his single claim—that the evidence was insufficient to prove one element of the theft charge, namely, intent to permanently deprive Lydia of the cell phones.

¶16      This court will not substitute its judgment for the jury’s, “unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.” [State v.Poellinger, 153 Wis. 2d [493,] 507[, 451 N.W.2d 752 (1990)]. Here, it is undisputed Adam deliberately took Lydia’s phones away from her and away from her house. The consequences of taking another person’s property are practically banal in their inevitability:  the owner is going to call the police, submit a theft report, and charges will be filed. The domestic nature of this dispute does not change the facts, or the reasonable inferences arising from the facts. Adam and Lydia’s relationship has no bearing on the jury’s ability to find that Adam acted with intent in taking Lydia’s phones, and that he did not intend to return them, but only did so under police direction. The jury could have reasonably inferred Adam intended to permanently deprive Lydia of her property at the time of the taking because of these deliberate actions, and thus concluded Adam “intend[ed] all of the natural and probable and usual consequences of his deliberate acts.” See [State v.] Genova, 91 Wis. 2d [595,] 613-14, n.19[, 283 N.W.2d 483 (Ct. App. 1979)]. In addition, the jury’s question regarding the definition of permanent possession indicates its specific consideration of the very element disputed in this case.

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