Theft by Fraud — sufficiency of the evidence

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Wisconsin Supreme Court

Criminal

Theft by Fraud — sufficiency of the evidence

Where the defendant obtained free telephone services by creating fictitious accounts, the evidence is sufficient to support a theft by fraud conviction.

“On the first issue we hold that Steffes made ‘false representations’ to AT&T.  The theft-by-fraud statute says that ‘”[f]alse representation” includes a promise made with intent not to perform if it is part of a false and fraudulent scheme.’  Wis. Stat. § 943.20(1)(d) (emphasis added).  Because the word ‘includes’ is not restrictive, the statute clearly anticipates that other conduct aside from an express promise falls under the umbrella of a ‘false representation.’  The scope and history of the theft-by-fraud statute make plain that providing fictitious business names and stolen personal identifying information to a phone company as a way of avoiding payment falls within the meaning of ‘false representation.’”

“As to the second issue, ‘property’ under the theft-by-fraud statute is defined as ‘all forms of tangible property, whether real or personal, without limitation including electricity, gas and documents which represent or embody a chose in action or other intangible rights.’  Wis. Stat. § 943.20(2)(b) (emphasis added).  Relying on the plain language of the statute in conjunction with commonly used dictionaries, we conclude that Steffes stole electricity from AT&T.  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.  We affirm the court of appeals.”

Affirmed.

2011AP691-CR State v. Steffes

Gableman, J.

Attorneys: For Appellant: Jensen, Jeffrey W., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Brien, Daniel J., Madison