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Retail theft charges can be aggregated under § 971.36

State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2019 WI App 2, petition for review granted 4/9/19, affirmed by a divided court2019 WI 101; Lopez case activity; Rodriquez case activity).

Lopez and Rodriguez were each charged with a single count being party to the crime of felony retail theft of more than $500 but less than $5,000 based on seven separate incidents occurring over two weeks at the same store. Each separate incident involved the theft of less than $500. (¶2). Can the state aggregate the incidents into a single felony count under § 971.36, or does that create a duplicity problem (charging two or more offenses in a single count) that must be avoided by charging seven separate misdemeanors? Aggregate away! sayeth the court of appeals.

¶11     Wisconsin Stat. §971.36 is entitled “Theft; pleading and evidence; subsequent prosecutions.” The statute provides that, “in any criminal pleading for theft, it is sufficient to charge that the defendant did steal the property (describing it) of the owner (naming the owner) of the value (stating the value in money).” Sec. 971.36(1). It also provides that, “[i]n any case of theft involving more than one theft,” the thefts may be prosecuted as a single crime if certain specified requirements are satisfied. Sec. 971.36(3)[(intro.)]. Wisconsin Stat. ch. 943, which addresses “crimes against property,” contains ten separate statutes criminalizing various types of theft. See Wis. Stat. §§ 943.20 (theft), 943.205 (theft of trade secrets), 943.45 (theft of telecommunications service), 943.455 (theft of commercial mobile service), 943.46 (theft of video service), 943.47 (theft of satellite cable programming), 943.50 (retail theft), 943.61 (theft of library material), 943.74 (theft of farm-raised fish), and 943.81 (theft from a financial institution). Section 943.20, which we have described as the “general theft statute,” see State v. Ploeckelman, 2007 WI App 31, ¶14, 299 Wis. 2d 251, 729 N.W.2d 784, itself identifies five separate and distinct theft offenses. See State v. Seymour, 183 Wis. 2d 683, 699 and 702, 515 N.W.2d 874 (1994).

¶12     Wisconsin Stat. § 971.36(3)(a) refers generally to “theft.” If the legislature had intended to restrict the application of § 971.36(3)(a) to one or more of the numerous theft offenses identified in Wis. Stat. ch. 943, that intent could have been made plain by saying so. See Clokus v. Hollister Min. Co., 92 Wis. 325, 327, 66 N.W. 398 (1896). However, nothing in § 971.36(3)(a) indicates that the legislature intended to limit that provision to a specific type or types of theft. For this court to construe § 971.36(3)(a) as if the words “under Wis. Stat. § 943.20” were part of § 971.36(3)(a), we would be undertaking judicial legislation and not judicial construction. See Clokus, 92 Wis. at 327. Accordingly, we conclude that § 971.36(3)(a) is not limited in its application to § 943.20 and that it applies as well to retail theft under Wis. Stat. § 943.50.

Having concluded the offenses may be aggregated, the next question becomes whether the statutory prerequisites for doing so are satisfied. Those prerequisites are: (1) the property belonged to the same owner; and (2) the thefts were committed pursuant to a single intent or design or in execution of a single deceptive scheme. § 971.36(3)(a). “We perceive no dispute that the property belonged to the same owner (Wal-Mart) and that the alleged thefts were committed pursuant to a single deceptive scheme (pretending to purchase items via the self-check-out). Accordingly, we conclude that the State may charge the alleged multiple acts of retail theft at issue in this case as a single crime.” (¶14).

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