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Theft-by-fraud conviction upheld based on indirect “communication” from defendant to victim

State v. David Phillip Foley, 2013AP1722-CR/2013AP1723-CR; district 1, 6/17/14 (unpublished); case activity

Under § 943.20(1)(d), theft by fraud requires, among other things, that the defendant made a false representation to the owner of the property that the defendant stole.  This does not require direct communication between the defendant and the victim.  It is sufficient that the defendant made a statement to a third party with the intent or reasonable expectation that it would be communicated to the victim.

In this case, the “statement” was a check.  The defendant persuaded his partner, Bystra, to make out $7,000 check to him drawn on their Sport ‘N Cuts business account.  The defendant knew the business lacked the funds to cover the check.  Nevertheless, he presented it to the bank for payment and argued that he made no misrepresentation to the bank.  His partner did the deed.  The court of appeals didn’t buy it:

Slip op. ¶13      It is well-established law that a defendant need not directly communicate with the victim of his fraudulent scheme to be guilty of theft by fraud. State v. Timblin, 2002 WI App 304, ¶31, 259 Wis. 2d 299, 657 N.W.2d 89. In fact, Wis JI—Criminal 1453A provides for just such a situation, stating that:

It is not required that the defendant directly communicated with the owner [of the stolen property]. The defendant is responsible for a statement made to a third person if the defendant intended or had reason to expect that the statement would be repeated to, or its substance communicated to, the owner [of the stolen property] and that it would influence the owner’s conduct in the transaction.  Id. at 1-2.

Slip op. ¶14      In his brief to this court, Foley admits:  (1) that he gave Bystra a $10,000 check from the E*Trade account, knowing that there were insufficient funds to cover the check; (2) that Bystra gave Foley a $7000 check from the Sport ‘N Cuts account, at Foley’s request, because Bystra was falsely led to believe that the $10,000 E*Trade check was valid; (3) that Foley presented this $7000 check to Anchor Bank, knowing that it was not backed by sufficient funds; and (4) that Foley then used the $7000 check made out to him by Bystra from the Sport ‘N Cuts account to obtain a $7000 cashier’s check from Anchor Bank. It was reasonable for the jury to find, based on these facts conceded by Foley, that Foley’s representation to Bystra—primarily that Foley had sufficient funds to pay the $10,000 check written to Sport ‘N Cuts from Foley’s E*Trade account—“would be repeated to” Anchor Bank and be used to influence Anchor Bank to issue Foley a $7000 cashier’s check despite a lack of funds in the Sport ‘N Cuts account.

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