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Theft by Fraud, § 943.20(1)(d) — Elements — Agency

State v. Todd W. Timblin, 2002 WI App 304
For Timblin: Alex Flynn

Issue: Whether agency necessarily becomes an element of theft by fraud, § 943.20(1)(d), when the defendant obtains the property through an intermediary.

Holding: The intermediary must actually be an agent before an agency relationship is necessary to state’s proof. Where, as here, the intermediary acted as a mere “conduit” for delivering money between defrauded victims and defendant — where the victims self-managed the money by maintaining control over when and to whom the money would be turned over; and where there was no “manifestation” of an intent to establish an agency relationship — agency was not an element of the offense. ¶¶22-30. Theft by deception is a species of fraud, and may subject the maker of a fraudulent misrepresentation to liability for loss incurred by someone who didn’t directly hear it, if the maker intends or has reason to expect that the misrepresentation will be repeated to the other person. And, because there was sufficient evidence in this case that the defendant intended or had reason to expect that the victims would relied on the misrepresentations he made to the intermediary, there was an adequate factual basis for the guilty pleas. ¶¶31-33.

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