THE DECEPTIVE SCHEME: MULTIPLE MISDEMEANORS CAN BE AGGREGATED INTO A SINGLE FELONY CHARGE.

State v. Lopez, 2019 WI APP 2 (filed 6. Dec. 2018) (ordered published 31 Jan. 2019)

Holding:  The state can charge multiple misdemeanor retail thefts as a single felony theft.

Summary:  This case involved a scheme between a Walmart employee and a customer.  The Walmart employee would pretend to scan or void items at a self-check-out and the customer would leave with the items.  This occurred on seven different occasions with each time involving stolen items valued under $500 which would be a Class A misdemeanor.  The State aggregated the total value of the items stolen which exceeded the $500 limit for a misdemeanor and charged them with a Class I felony.

The defendants contested the aggregation of the charges into one Felony charge under the theory of duplicity. The rule against duplicity ordinarily prohibits a prosecutor from charging in one count of a complaint two or more offences provided by the law.  The circuit court agreed and dismissed the complaints.

The appeals court reversed this decision.  Wis. Stat. 971.36(3)(a) states, “in any case of theft involving more than one theft, all thefts may be prosecuted as a single crime’ without rendering the charge duplicitous, if the property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme”.

The Appeals court concluded that the prerequisites for the state to invoke this statute were met, namely that the property belonged to the same owner (Walmart) and that the alleged thefts were committed pursuant to a single deceptive scheme. (pretending to purchase items via the self-check-out).

Lessons learned:  If you steal multiple times from the same store with the same scheme  and the total amount stolen is over the misdemeanor limit, you can be charged with a felony.  Also, don’t steal.

If you have additional questions about criminal law or would like to speak to an attorney about handling a criminal case, please contact the Dickinson Law Offices, LLC at (262) 581-6955