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§ 943.20(1)(b) and (3)(c) – Theft as Trustee/Bailee in Business Setting – Elements – Sufficiency of Evidence

State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak


¶57      Next, we address Doss’s argument that there was insufficient evidence to support her conviction under Wisconsin Statute § 943.20(1)(b). Doss correctly recites the elements the State was required to establish to obtain a conviction: that (1) she had possession of money as a result of her position as a personal representative of her father’s estate; (2) she initially retained possession of the money contrary to her authority and without the owner’s consent; (3) she knew that retention of the money was contrary to her authority and without the owner’s consent; and (4) she intended to convert the money to her own. See Wis JI——Criminal 1444 & Comment n.1; State v. Blaisdell, 85 Wis. 2d 172, 176, 270 N.W.2d 69 (1978).


¶64      We are in accord with the conclusion of the court of appeals that:

[t]here was evidence in the record from which a jury could reasonably infer all the elements of the crime charged. Doss withdrew all of the money from the M&I estate account and opened a SunTrust account with the estate money. The record reflects that Doss withdrew the funds from the SunTrust account on September 15, 2004. In October, 2004, the Wisconsin probate court held a hearing at which Doss appeared by telephone. The court ordered Doss to pay $70,555.47 (the estate funds) to the clerk of courts. Doss did not comply with the order. Thus, the jury could reasonably infer that Doss retained possession of the funds. Accordingly, we conclude the evidence was sufficient to support the verdict.

Doss, 305 Wis. 2d 414, ¶27. We also note that the money obtained by Doss from the estate account was never returned to the estate account. We conclude that Doss has failed to establish that the evidence, viewed most favorably to the State, was so insufficient as a matter of law that no reasonable trier of fact could have found guilt beyond a reasonable doubt. See Tri-Tech Corp. of Am., 254 Wis. 2d 418, ¶28; Poellinger, 153 Wis. 2d at 501.


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