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Conspiracy to Commit Theft by Fraud, §§ 939.31, 943.20(1)(d): Value of Stolen Property:Sufficiency of Evidence; Sentencing: Accurate Information – Partial Acquittal

State v. Matthew R. Steffes, 2012 WI App 47 (recommended for publication), petition for review granted, 10/16/12; for Steffes: Jeffrey W. Jensen; case activity

Conspiracy to Commit Theft by Fraud, §§ 939.31, 943.20(1)(d) – Sufficiency of Evidence 

Evidence held sufficient to sustain Steffes’ conviction for conspiracy to commit theft by fraud, based on his participation in a prisoners’ “burn-out” telephone scam. (Defined as fraudulently establishing phone lines under false or assumed names, with no intention of paying.)

¶16      In Steffes’ case, there was ample evidence for the jury to convict him of conspiracy to commit theft of property by fraud.  As noted, the State submitted numerous recordings and other documents implicating Steffes.  For example, the recordings of various calls from the prison involving Steffes not only discussing the burn-out scheme, but also instructing others on how to conduct the scheme, were played for the jury.  Additionally, Agent Drazkowski submitted letters written by Howard to Steffes discussing the scheme and instructing Steffes what to do regarding the use of specific burn-out lines.  In total, Steffes made over 300 calls using burn-out phone lines, totaling over 6500 minutes of talk time and, as will be discussed further infra, over $26,000 of value in applied electricity.  This evidence was sufficient to establish that Steffes:  (1) intended to steal and use phone services that did not belong to him via fraudulent means; (2) agreed with “at least one other person to commit the crime;” and (3) performed acts “in furtherance of the conspiracy.”  See Routon, 304 Wis. 2d 480, ¶18; Wis JI—Criminal 570; West, 214 Wis. 2d at 476.

Conspiracy requires intent to commit a crime, agreement with another to commit the crime, and an act in furtherance of the objective, ¶14. Theft by fraud (the objective of this alleged conspiracy) requires obtaining title to property by intentional deceit with a knowingly false representation made with intent to defraud which does defraud, ¶15. Steffes raised two challenges. First, he argued that no member of the alleged conspiracy expressly made a false representation. The court squarely rejects the premise, ¶17: “Section 943.20(1)(d) does not require direct evidence of—as Steffes argues—a false promise expressly made.  See id. Rather, it requires that the offender “intentionally deceiv[e]” the victim “with a false representation … known to be false, made with intent to defraud.”  See id.” Second, he argued that he joined the conspiracy after it was launched, therefore the crime had already been committed. This crime meets the same fate as the first: “there is also no legal requirement that to join the conspiracy, Steffes must have been involved in the burn-out scheme before the first co-conspirator initially contacted the phone company,” ¶18.

Sufficiency of Evidence – Value of Stolen Property 

The court rejects Steffes’ several arguments that value was insufficiently proven: the services allegedly stolen (phone service) are not “tangible property” within § 943.20(2)(b); the value of the “applied electricity” involved in the theft wasn’t established; in any event, the phone company suffered no economic loss from the scheme.

¶23      Construing the statutory language to give words their ordinary meaning, as we are required to do, see State v. Tucker, 2005 WI 46, ¶11, 279 Wis. 2d 697, 694 N.W.2d 926, we conclude that the term “electricity” found in Wis. Stat. § 943.20(2)(b) is broad enough to encompass the transmission of electricity over telephone lines.  The statute does not specifically distinguish the type of electricity being used, or which utility is providing the electricity.  The lack of such specificity convinces us that the legislature intended the term “electricity” to be interpreted broadly, and that electricity used to transmit the human voice via telephone lines falls within the term “electricity” used in § 943.20(2)(b).  See State v. Quintana, 2008 WI 33, ¶32, 308 Wis. 2d 615, 748 N.W.2d 447 (“When the legislature does not use words in a restricted manner, the general terms should be interpreted broadly to give effect to the legislature’s intent.”).

¶24      We further conclude that the market value to the telephone company of the services that the burn-out scam fraudulently obtained is the correct measure of the value of the stolen property in this case.  While Steffes argues that the phone company suffered no economic loss from the burn-out scam, he provides no support for the contention that the value of the stolen electricity ought to be valued this way.  See State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322 (The court of appeals “may choose not to consider arguments unsupported by references to legal authority, arguments that do not reflect any legal reasoning, and arguments that lack proper citations to the record.”).  Indeed, his argument runs contrary to the plain language of the statute, which provides that the measure of value of the stolen property is its fair market value.  See Wis. Stat. § 943.20(2)(d).  The undisputed evidence is that the phone company lost over $26,000 in billable services—i.e., applied electricity—on the fraudulent “Nick’s Heating and Cooling,” “Douyette Advertising Service” and “Douyette Typing Service” accounts.  There was, therefore, sufficient evidence for the jury to rely on in determining that the market value to the phone company for each count of conspiracy under which Steffes was charged exceeded $10,000.  See Watkins, 255 Wis. 2d 265, ¶68; Wis. Stat. § 943.20(3)(bf)-(c).

Sentencing – Accurate Information – Partial Acquittal 

Sentencing took into account Steffes’ participation in a scheme involving stolen identities, though the jury acquitted him of a charge of identity theft. Nonetheless, his right to sentencing on the basis of accurate information wasn’t violated:

¶27      In Steffes’ case, the trial court did not err by noting that Steffes was involved in a scheme in which the identities of vulnerable people were stolen, even if Steffes was in fact acquitted of the identity theft charge.  This is because “[a] sentencing court may consider uncharged and unproven offenses and facts related to offenses for which the defendant has been acquitted.”  See State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341 (footnote omitted).  Therefore, Steffes is not entitled to resentencing.

Also see, State v. Marhal, 172 Wis. 2d 491, 501-503, 493 N.W.2d 758, 763-764 (Ct. App. 1992) (“a sentencing court may consider conduct for which the defendant has been acquitted”; therefore: “Information upon which a trial court bases a sentencing-decision, as opposed to a finding of guilt, need not, of course, be established beyond a reasonable doubt.”)

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