County where goods stolen was proper venue

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The county where property was stolen is a proper venue for a charge of receiving stolen property.

Kenneth W. Lippold was a salesman of medical devices, and had access to respirator machines at St. Luke’s Hospital, in Milwaukee County.

Numerous respirators were found missing, and were eventually recovered in Illinois.

During an investigation, Lippold admitted selling the respirators, but denied stealing them, instead claiming that he bought them in Kenosha County from a man identified only as “Steve.”

Lippold was charged with receiving stolen property in Milwaukee County. The jury found him guilty, and the circuit court rejected his argument that the state failed to prove venue was properly established in Milwaukee County.

Lippold appealed, but the Court of Appeals affirmed, in a decision by Judge Patricia S. Curley.

The court concluded that venue was proper, pursuant to sec. 971.19(2).

That statute reads, “Where 2 or more acts are requisite to the commission of any offense, the trial may be in any county in which any of such acts occurred.”

The crime of receiving stolen property has three elements:

(1) that the defendant intentionally received the property;

(2) that the property was stolen property; and

(3) that the defendant knew the property was stolen.

The court concluded that, because the property was stolen in Milwaukee County, therefore, the second element of the crime occurred in Milwaukee, and venue was properly established.

Lippold argued that that the second element is not an “act” in the classical sense, but that the word “stolen” merely describes the property.

However, the court disagreed, noting that, in the governing precedent, State v. Swinson, 2003 WI App 45, 261 Wis.2d 633, 660 N.W.2d 12, not all the elements of the crime — theft by fraud — were traditional “acts” either, yet venue was proper in the county where the victim was located.

The court acknowledged numerous cases from other jurisdictions holding that venue in a given county was improper in a receiving stolen property case, even though that is where the underlying theft occurred.

However, the court found them distinguishable, because of the absence of a statute comparable to sec. 971.19(2).

Finally, the court noted the strong circumstantial evidence that Lippold did not merely receive the stolen property, but was party to the actual theft. The court noted his easy access to the property, among other factors.

Case analysis

The case is a good candidate for reversal in the Supreme Court.

The court concludes that, because the property was stolen in Milwaukee County, therefore a requisite element of the offense occurred there, within the meaning of sec. 971.19(2).

The easiest way to conceptualize why this interpretation is incorrect is to consider the two different meanings of the word “stolen”: one, as a verb (the past participle of “steal”; and two, as an adjective that modifies the noun “property.”

If “stolen” is used as a verb in the receiving stolen property statute, sec. 943.34, then the court would be correct: the property was “stolen” in Milwaukee County, therefore, one of the requisite acts occurred there.

However, “stolen” is not used as a verb in sec. 943.34, but as an adjective to describe “property.”

The property is and remains “stolen” wherever its location may be, whether it stays in Milwaukee County, or travels to Kenosha County, or Illinois. While the theft may occur in Milwaukee, no element requisite for the offense of receiving stolen property occurs there.

The Court of Appeals rejected a variation of this argument, by stating that the same could be said of some of the elements in the Swinson case.

However, Swinson is easily distinguishable.

Swinson was charged with theft by fraud, and the Court of Appeals held that venue was proper in Sheboygan County, where the victim was defrauded, despite the lack of any evidence that Swinson committed any unlawful acts in that county.

However, one of the elements of theft by fraud is “that the victim was deceived by such representation”; another is “that the victim was defrauded by such representation.”

The victim indisputably was both deceived and defrauded in Sheboygan County. These are both actions that occurred in Sheboygan County, and thus, venue is proper there under sec. 971.19(2).

However, if “stolen” is used as an adjective, rather than as a verb, in sec. 943.34 — which it is — then there is no relevant act that occurred in Milwaukee County in the case at bar.

The court’s second basis for affirming Lippold’s conviction is even more suspect — the extensive evidence that Lippold was the actual thief.

Given that Lippold had unfettered access to the property, his claim that someone known only as “Steve” stole it, and then sold it to him, is unlikely to be true.

Nevertheless, the state obviously felt it could not prove that Lippold was the thief beyond a reasonable doubt, so it charged him only with receiving stolen property.

Unfortunately for the state, for the same reason it cannot prove Lippold was the thief, it also can’t prove that any element of receiving stolen property occurred in Milwaukee.