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SCOW extends theft-of-property statute to phone services

State v. Steffes, 2013 WI 53, on review of a published court of appeals opinion; case activity; majority opinion by Justice Gableman; Chief Justice Abrahamson and Justice Bradley dissent.

Authored by J. Gableman

Given the absence of precedent, Wisconsin Supreme Court may be out on a limb (or, rather, a pole) on this one.  Apparently, while in prison, Matthew Steffes and his cohorts figured out a way to submit a fictitious business name and stolen personal information to AT&T in order to obtain a phone number.  They used that number until AT&T shut it down for non-payment.  They repeated the process over and over to obtain free telephone services.  It was a clever scheme for about 18 months or 322 phone calls.  Then Steffes got busted.  A jury convicted him of 2 counts of conspiracy to commit theft of property by fraud under Wis. Stat. § 943.20(1)(d), which says it is illegal to:

Obtain[] title to property of another person by intentionally deceiving the person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. “False representation” includes a promise made with intent not to perform if it is a part of a false and fraudulent scheme.  (Emphasis supplied).

Steffes’s appeal presented two issues—the first of which isn’t terribly controversial:  Is the submission of fictitious business names and stolen personal information a “false representation” under the above statute?  Steffes says he never promised to pay AT&T a dime, ergo the statute doesn’t apply.  Nonsense.  The statute doesn’t require an “express promise” to pay, says the majority.  Providing false information in order to evade payment is sufficient.  Slip op. ¶23.  The dissent agrees.  Id. ¶37, n.4.

The second issue, by contrast, is charged.  The term “property” clearly includes things like “electricity” or “gas.”  See Wis. Stat. § 943.20(2)(b).  But does “property” include a service powered by electricity? The majority says “yes,” even though (as the dissent notes) the theft of services cannot be prosecuted under the theft-of-property statute.  Slip op. ¶39, n.7.  Here’s how the majority relies on the “plain language of the statute” to read “electricity” as “telephone services”:

¶5 . . . AT&T purchases and stores electricity to power its network.  When consumers make phone calls, AT&T must buy more electricity.  The conspiracy perpetrated against AT&T therefore deprived the company of its property.

Whoa.  The State never charged Steffes with stealing electricity.  The criminal complaint and the information assert that he stole telephone services.  No problem, says the majority, “telephone services” are just a form of “applied electricity.”  Uh oh.  Know any friendly neighborhood high school or college nerds who’ve figure out how to get free cable t.v. or internet service?  Theft for sure, but of “electricity” or “services?”  It’s a distinction with meaning because theft of electricity/property over $2,500 in value is potentially a Class H felony.  See Wis. Stat. § 943.20(3).  Theft of telecommunications service is at most a Class B misdemeanor.  See dissent at ¶41, n.8.and Wis. Stat. § 943.45.  See also § 943.455 and § 943.46 re theft of mobile and video services.

The majority turns its gaze from the precipice beneath its feet.  “We do not share Steffes’s prosecutorial slippery slope concerns.”  Slip op. ¶26.  “[I]t is our job to adjudicate the dispute in front of us.  It is thus not necessary for us to resolve the hypotheticals laid out by Steffes.” [Steffes conjured the person who obtains legal, dental or barber services (all of which consume electricity) with no intention of paying for them.]  Just in case, keep a sled (or a parachute) handy for a possibly thrilling descent down the theft-of-property statute.

The dissent makes another interesting point.  At trial, the State bore the burden of proving the value of the market electricity stolen because that, in turn, determines the penalty to be imposed.  Here, the State established the value of the telephone services stolen (about $28,000), not the market value of the property/ electricity stolen.  The State’s own expert testified that the value of the phone service included not only the cost of the stolen electricity but also the cost of transmission wires, cables, offices, employees, machines and equipment.  Because the State failed to prove the value of the stolen property/electricity, the dissent would vacate the felony conviction, enter a Class A misdemeanor conviction, and remand the case for resentencing.  Slip op. ¶¶77-86.

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