Jacobsen was charged with 8 offenses for stealing $500,000 from her employer, and she was convicted on 3 counts. The charges were based on 289 individual thefts occurring over 3 years. On appeal she claimed her trial lawyer was ineffective for failing advise her that, and for failing to seek dismissal because, the charges were duplicitous or multiplicitous. In her view, the State had to charge her with either a single offense for her entire course of conduct or separate offenses for each of the 289 thefts. The court of appeals held that the charges were neither duplicitous, nor multiplicitous. Slip op. ¶¶ 17, 32-35.
Both parties requested publication of the court’s decision The State specifically sought clarification that “discrete acts that may be aggregated to form a single continuing offense may be subdivided into multiple continuing offenses without violating the multiplicity doctrine. (Resp. Br. 1). The court of appeals’ decision rests on § 971.36(3)(a) (“all thefts may be prosecuted as a single crime if . . . [t]he property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme”).
The court of appeals also expends considerable energy distinguishing State v. George, 69 Wis. 2d 92, 99-100, 230 N.W.2d 253 (1975)(examining §945.03 re commercial gambling), which held: “The defendant, at the election of the state, can be charged with one continuous offense but only one, or with one or more specific individual offenses but not both . . .” And to further support its reasoning, the court reaches over (and pretty far back) to United States v. Carter, 804 F.2d 508, 511 (9th Cir. 1986), which holds that the government may group acts by date so that each count meets the statute’s jurisdictional requirement. The Carter dissent at 518 offers a more vivid description of the problem: “According to the majority, every time the total value of a series of shipments of stolen property passes a multiple of $5,000, a bell rings and a new federal crime is committed. I believe the majority confuses jurisdictional requirements with the substantive elements of an offense.”
Ask not for whom the bell tolls. Given the dearth of authority on § 971.36(3)(a) as applied to thefts, this case may live to see another appellate court.