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02-0275 State v. Timblin

By: dmc-admin//November 25, 2002//

02-0275 State v. Timblin

By: dmc-admin//November 25, 2002//

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Accordingly, the complaint charging defendant with felony theft by deception was not defective because the court failed to inform him that proof of agency was required for counts 15 and 18.

There was no agency relationship here because the Graffs always self-managed their money, maintaining control over decisions when and to whom to give their money. Moreover, there was no manifestation of any intention to create an agency relationship.

“The Graffs divested themselves of their own money-Lichtensteiger did not. Lichtensteiger shared with the Graffs the news about Timblin’s ‘investment opportunity.’ He repeated statements made by Timblin to the Graffs, and he delivered checks-signed by the Graffs, drawn from their own account and paid to the order of Timblin-to Timblin. Lichtensteiger was no more than a conduit between the Graffs and Timblin. Agency might arguably be found if the Graffs had given Lichtensteiger cash or access to their checking account and asked him to make investment decisions on their behalf-but they did not. If that had happened, Kennedy might well control. However, that did not happen and there was no agency relationship.”

Accordingly, the trial court did not err in denying defendant’s motion to withdraw his guilty pleas.

Judgment affirmed.

Recommended for publication in the official reports.

Dist II, Washington County, Ziegler, J., Anderson, J.

Attorneys:

For Appellant: Alex Flynn, Milwaukee

For Respondent: Todd K. Martens, West Bend; Maura F. J. Whelan, Madison

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