Statutory Interpretation – Theft

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WI Supreme Court

Case Name: State of Wisconsin v. Autumn Marie Love Lopez, et al.

Case No.: 2019 WI 101

Focus: Statutory Interpretation – Theft

This is a review of a published decision of the court of appeals in two consolidated cases, State v. Lopez and State v. Rodriguez, 2019 WI App 2, 385 Wis. 2d 482, 922 N.W.2d 855, reversing the Green County circuit court’s order. The circuit court order dismissed without prejudice the criminal complaints against Autumn Marie Love Lopez (“Lopez”) and Amy J. Rodriguez (“Rodriguez”), which charged them with a single count of retail theft of items valued at more than $500 and less than $5,000, as parties to a crime, contrary to Wis. Stat. §§ 943.50(1m)(c) and (4)(bf), and 939.05 (2015-16). The circuit court concluded that the State may not charge multiple acts of misdemeanor retail theft as a single felony. The court of appeals reversed and concluded that the State may charge multiple acts of retail theft as one continuous offense pursuant to Wis. Stat. § 971.36(3)(a). We affirm the court of appeals.

Pursuant to Wis. Stat. § 971.36(3), “[i]n any case of theft involving more than one theft, all thefts may be prosecuted as a single crime” provided certain criteria are satisfied. This court must decide whether the statutory term “theft” includes the statutory charge of retail theft. Lopez argues that it does not. She argues that “theft” includes only the five modes of theft described in Wis. Stat. § 943.20, not retail theft. The State argues that “theft” means any type of theft, including retail theft.

We conclude that “theft” under Wis. Stat. § 971.36 includes retail theft under Wis. Stat. § 943.50. We therefore conclude that the State has authority to charge multiple retail thefts under § 943.50 as one continuous offense pursuant to § 971.36(3). Thus, we affirm the court of appeals.

Affirmed

Concur: R.G. BRADLEY, J. concurs, joined by KELLY, J. (except for footnote 2 and statement in ¶34 that she does not join the lead opinion). (opinion filed) KELLY, J. concurs (except for ¶25-31). (opinion filed)

Dissent:

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.