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Forgery § 943.38(2) – Elements: Intent to Defraud not Element

State v. Daniel T. O’Shea, 221 Wis. 2d 418, 585 N.W.2d 662 (Ct. App. 1998)
For O’Shea: Jeffrey D. Knickmeier

Issue/Holding: Forgery, §.943.38(2), does not require that the offender act with intent to defraud.

Our first inquiry must be to the language of the statute, particularly to the language in subsection 2 that refers to subsection 1.  Subsection 2 states that an offender violates the subsection when he or she knowingly “utters … any forged writing or object mentioned in sub. (1).”  Section 943.38(2), Stats.  Subsection 1 sets out four types of writings or objects.  Section 943.38(1)(a)-(d).  Based on the unambiguous language of the statute, we are satisfied that subsection 2 does not incorporate the requirement of subsection 1 that the offender act with an intent to defraud.  Subsection 2 merely incorporates the four types of writings or objects described within subsection 1.  We conclude that subsection 2, when read alone or together with subsection 1, does not require an offender to act with an intent to defraud.  Consequently, there was sufficient evidence to convict Shea of violating § 943.38(2).

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