*1 Plaintiff-Respondent, Wisconsin, State
v. R. Matthew Steffes,
Defendant-Appellant-Petitioner.
Supreme Court of Wisconsin February argument No. Oral 2011AP691. 20, 2013.
Decided June 2013 WI 101.) (Also reported in 832 N.W.2d *3 defendant-appellant-petitioner, For the there were by Jeffrey argu- Jensen, Milwaukee, briefs W and oral by Jeffrey ment W.Jensen. plaintiff-respondent, argued
For the the cause was by attorney general, O'Brien, Daniel J. assistant with attorney Hollen, whom on general, brief was J.B. Van legal Gorn, with assistance from Jason extern. GABLEMAN, 1. MICHAEL J. J. We review published appeals affirming decision the court of R. Matthew Steffes's conviction of two counts of con spiracy to commit theft of fraud. See State v. App Steffes, 47, WI 340 Wis. 2d 812 N.W.2d prison, part conspiracy 529. While in Steffes was of a phone defrauded AT&T out of more $28,000 than through furnishing services scheme involved company Specifically, with fraudulent information. Stef help family fes and his cellmate—with the friends prison members outside fictitious busi —submitted personal identifying ness names and stolen information up to AT&T to set numbers. Steffes would then knowledge make collect calls these numbers *4 they paid plan would never be for. The would work for phone time; short bursts of once it was clear that the bill going paid, was not to be AT&T would shut down the conspiracy number. Steffes and the other members of the up would then move and on set a new number. eighteen-month plan, Over the course of the life of this phone charge. calls, Steffes made 322 free of charged subsequently con ¶ and 2. Steffes conspiracy commit theft of victed two counts of $10,000. in See Wis. Stat. fraud of excess of 943.20(3)(c) (2011-12).1 943.20(l)(d), §§ 939.31, and presented The ¶ in this case. 3. Two issues are submitting fictitious business names first is whether identifying personal is "false information a and stolen 943.20(l)(d). § representation" Steffes under Wis. Stat. representation alleges is a false such conduct not that requires an make the statute that the actor because pay. express promise The second issue is whether applied AT&T its network that uses to "property" found included within the definition 943.20(2)(b). argues cannot that his conviction Steffes that at trial showed be sustained because the evidence property. and not he stole services made issue hold that Steffes 4. On the first we theft-by-fraud representations" stat- to AT&T.The "false promise says representation' '[f]alse a that" includes ute perform part if a made intent not to it is of false 943.20(l)(d) (emphasis fraudulent scheme." Wis. Stat. added). restrictive, Because the word "includes"is clearly anticipates other conduct aside from statute express promise of a "false an falls under umbrella theft-by- history representation." scope plain providing busi- make fictitious fraud statute identifying personal information ness names and stolen avoiding way payment company falls as meaning representation." "false within "property" issue, As under to the second theft-by-fraud tangible statute is defined as "all forms are subsequent All the Wisconsin Statutes references to Nothing has otherwise indicated. the 2011-12 version unless conduct changed any since the relevant applicable occurred.
property, personal, whether real or without limitation including electricity,gas represent and documents which embody intangible rights." chose action or other 943.20(2)(b) added). (emphasis Relying Wis. Stat. on plain language conjunction of the statute in commonly dictionaries, used we conclude that Steffes purchases stole electricity from AT&T.AT&T and stores its network. When consumers make phone buy electricity. calls, AT&T must more The con- spiracy perpetrated against deprived AT&T therefore company property. the appeals. its affirm We the court of
I. FACTUALBACKGROUND ¶ 6. While Matthew Steffes and Joshua Howard Waupun were Institution, cellmates at the Correctional Howard devised an illicit scheme that would allow the prison. two of them to make free collect from calls The conspiracy family as worked follows. Friends and mem prison up phone bers outside the walls would set by giving phone number false information to the company dummy this case AT&T.2Once the num —in up, ber was set Howard and Steffes could make unlim ited collect calls to the number. benefit to the they people setting up the fraudulent numbers was that phone period would receive free service for a short phone company time. After would shut the number unpaid process bills, down because of would start again. over losses, SBC was the company that suffered the but at the time of trial it renamed AT&T. See Shawn been Young, had Purchase, Name,
SBC Completes AT&T New J., Takes Wall St. 19, 2005, confusion, exclusively Nov. at A8. To avoid we will designate phone company throughout "AT&T" opin- as this ion. *6 long-lasting, plan in- elaborate and 7. The was (who
volving also has a child father, his Steffes's sister Howard), friends, cousin, and another with his several sum, In woman who has a child with Howard. May phone created numbers were between
fraudulent May operation Part entailed 2002 and giving of AT&T, names to while other fictitious business personal identifying using up set numbers were stolen through a health care clinic information obtained an where Steffes's sister's roommate worked. Over period made 322 2002 and Steffes 18-month totaling from 6,562 calls The loss to AT&T minutes.
setting up phone the fraudulent numbers and the unpaid $28,061.41. calls was HISTORY
II. PROCEDURAL charged con 8. Steffes was with two counts of spiracy in excess of to commit theft fraud 943.20(l)(d), §§ pursuant $10,000 939.31, to Stat. 943.20(3)(c).3 conspiracy is Section 939.31 provides "whoever, that intent a statute and it agrees committed, combines with another crime be or may, purpose committing crime if one or for the conspiracy parties act does an to more of imprisoned object, or both." The effect its be fined or 943.20(l)(d), theft-by-fraud makes it a crime statute, person by inten- "title to of another obtain helped brought charges Steffes set The State two because the fictitious business up group one numbers under "Douyette Cooling" under Heating & and another name "Nick's Advertising The loss to "Douyette Typing Service" or Service." $13,541.63 latter and the AT&T from the former $14,519.78. acquitted of one count of charged also with but
Steffes was identity theft. conspiracy commit
tionally deceiving person representa with a false which false, tion is known to be made with intent to person defraud, and which does defraud the whom it "Property" tangible is made." is defined as "all forms of property, personal, whether real or without limitation including electricity, gas repre and documents which embody intangible sent a chose in action or other 943.20(2)(b). rights." pled guilty Steffes and the proceeded jury case to a trial.4 Lindsley, engineer
¶ 9. AT&T, Robert an tes- making phone using tified at trial that someone call applied electricity," "an form and that all companies "power need network" to connect electric- *7 ity telephone key understanding to the network. The concept, Lindsley explained, this in rests the difference power. power AC DC between and AC is the through Conversely, that runs in outlets a DC wall. power Lindsley's words, in In stored batteries. "the actually company buys power AC from the utility[,] [turns] power commercial form, AC DC into a [and] energy stores that so if batteries that we lose power your phone commercial office, to our central continues to work." According Lindsley,
¶ 10. AT&T customers are given pair." a "subscriber This is a wire that connects registered phone the line to the switch at AT&T's phone central office. The switch is what directs a call to the dialed circuit, number and connects the when so using only customer makes a call he is not the pair, subscriber but also the from switch. As Lindsley explicated, digitize signal, it "We the so uses originally charged Steffes was in 2004 but did not stand until years procedural history trial five later. Because the leading up hand, germane the trial is not to the issues at we will not recount it.
equipment either call that can transmit systems, through fiberoptic or even cables, over cable using through radio towers." radio links counts of con Steffes was convicted of two 11. spiracy The court sentenced to commit theft fraud. by thirty years prison months of
him followed to two supervision con count, on to be served extended each conspiracy currently. He the and other members severally jointly pay the full and also ordered were appealed $28,061.41 in restitution to AT&T.Steffes loss argued: appeals his conviction to court (1) support his convic the evidence was insufficient to during promise" "false made tion because no was (2) conspiracy; applied form of commission of the electricity by AT&T akin to used is more a service theft-by-fraud purposes thus is not statute.5 appeals published opinion,
¶ 12. In the court of his 2d On the Steffes, affirmed conviction. during promise" issue of whether a "false was made argued conspiracy, no member of Steffes because actually conspiracy telephone company that told the pay promise" services, he for the no "false would theft-by-fraud appeals The court of held that made. express require an false
statute does not evidence of only promise; requires offender that "the *8 repre- 'intentionally deceiv[e]' the victim 'with a false made with intent false, . . sentation . known 943.20(l)(d)). § (quoting Id., ¶ Stat. 17 defraud.'" identifying information that the false Here, all resentencing alleged he entitled to also that Steffes jury instructions. court erroneous the circuit issued that As sentencing before this court. not his claim Steffes does raise 7, issue, that in footnote we address jury for the instruction infra, opinion. of this conspirators gave represen- to AT&T amounted to false ¶ 576, tations. 340 Wis. 2d 17. Steffes, question applied As 13. to the second —whether electricity theft-by-fraud under the appeals presence —the court of held 943.20(2)(b) "electricity" § term in Wis. Stat. is "broad enough encompass the transmission of over lines." 576, 340 Wis. Steffes, 2d specifically distinguish Because the statute does types electricity, ap- between different the court of peals legislature reasoned that the intended term "electricity" applied broadly encompass to be and to transmitted over lines. Id. granted petition
¶ 14. We Steffes's for review and appeals. now affirm the court of
III. STANDARDOF REVIEW presented ¶ 15. There are two issues for our re submitting view. The first is whether fictitious business personal identifying names and stolen information is 943.20(l)(d). representation" "false under Wis. Stat. applied electricity The second is whether the AT&T within uses to its network is included 943.20(2)(b). "property" definition found in These questions statutory interpretation are which we USA, review de novo. Crown Castle Inc. v. Orion Constr. Group, LLC, ¶29, 12, 2012 WI 339 Wis. 2d N.W.2d332.
IV DISCUSSION submitting ¶ 16. We first hold that fictitious busi- personal identifying ness names and stolen information setting up phone as a means numbers constitutes *9 theft-by-fraud representation" purposes of the "false for question hold that because we On the second statute. purchase its and store AT&T must by property Steffes it out its network, was defrauded conspirators. reasons, For Steffes these and his fellow conspiracy prosecuted appropriately to commit for was presented by at trial evidence theft fraud elements of crime. satisfied all the Submitting A. Fictitious Business Names and Stolen Identifying
Personal Information Constitutes Representation"
"False by History Property Fraud of Theft of by its of theft fraud traces roots 17. The crime Britain, which to a Act of the Parliament Great 1757 provided that knowingly designedly, by false persons
All
who
pretense
any person
or
obtain from
or
pretenses,
shall
merchandizes,
persons, money, goods, wares or
any person
persons
or
intent
to cheat or defraud
imprisoned,
same ...
...
fined and
or ... be
shall be
put
pillory,
publicly whipped
or...
trans-
ported
years ....
...
for the term of seven
Survey
A
Simon,
Offenses,
James E.
Worthless Check
(1961) (quoting
2, c.24,
29,
14
30
30
Mil. L. Rev.
Geo.
1). passage
English
statute,
Prior to the
of this
obtaining
recognize
the "crime of
common law did
pretenses,"
it was then known.
false
as
(Conn. App.
Semrau,
Ct.
State v.
199 A.2d
1963).
remedy for
was de-
Instead, someone who
"[W]e
court:
are
out of
civil
frauded
making
let
man
a fool of another:
not to indict one
(1703) Eng. Rep.
bring
"Reg.
Jones,
him
his
v.
action
(Q.B.).
*10
passed by
¶ 18. The law
a
Parliament served as
template
pretense
for false
in
statutes most American
Survey
Simon,
states.
A
Worthless Check
14
Offenses,
of
very
compi
Indeed,
Mil. L.
at 30.
Rev.
Wisconsin's
first
language.
lation of statutes contained similar
See Wis.
(1849).6
134,
1859,
Stat. ch.
33
As this court
in
stated
goals
pretense
one of the
of the false
statute was to
"protect the weak and credulous from the
and
wiles
stratagems
cunning."
of
Green,
the artful and
State v.
7
(1859)
[*685]
(quoting
[*676],
Wis. 571
preme
580
the Su
interpretation
Judicial
of
Court Massachusetts's
an
Drew,
identical statute in Commonwealth v.
36
(1837)).
appeals
179,
Mass.
recently
184
Or as the court of
more
purpose
creating
described it:
"The
in
protect unsuspecting
statute was to
citizens from swin
realizing
larceny
who,
dlers
the crimes of
and
required
embezzlement
be taken without
consent,
the owner's
obtained
of others
by
misrepresenta
their
with
consent means of willful
lying."
O'Neil,
tion and
v.
141
deliberate
State
2dWis.
(Ct.
1987).
App.
535, 539,
written the false whereof would be forgery, punished by imprisonment as he shall in the state prison years year, not more than nor than one five less fine exceeding fifty five hundred dollars nor less than dollars. (1849). 134, §
Wis. Stat. ch. v. 1955; State 696, ch. Laws See
into one law. (Ct. App. Meado, 789, 797, 472 N.W.2d 163 Wis. 2d 1991) ("One objectives 1955 revision was of the fully prohibition language simplify to state statutes."). previous It is this than the fewer words contemporary apply background in mind that we argument must be that his conviction statute to Steffes's conspiracy promised no member of because reversed pay thus no "false services and for the AT&T representation" was made. *11 Conspirator Falls Under as a
2. Steffes's Conduct 943.20(1)(d) § Stat. illegal theft-by-fraud makes it ¶ 20. The to: by person inten- title to of another
Obtain[] representa- a false tionally deceiving person with false, intent made with tion is known to be which person to whom it defraud, does defraud the and which promise includes a representation" "False is made. of a false part if it is a perform
made with intent not to and fraudulent scheme. 943.20(l)(d). § Steffes was Because Stat.
Wisconsin
charged
conspiracy
fraud, the
theft
to commit
only
required
prove
of the
one member
State was
representation."
conspiracy
Stat.
See Wis.
made a "false
providing
§
fictitious business
939.31. We hold
identifying
personal
information to
names and stolen
phone
setting up temporary
company
intent of
with the
representation."
a "false
numbers constitutes
understanding why
key
ar-
Steffes's
¶ 21. The
gument
sentence of
is the second
lacks merit
says
representation
"includes
that a false
statute. It
promise
perform."
made with intent not to
Wis. Stat.
943.20(l)(d)
added).
(emphasis
If "includes"
re
were
placed
position
"is,"
with "means" or
Steffes's
would be
stronger footing.
though,
on
"includes,"
word
is not
Singer
2A
restrictive. See
Singer,
Norman J.
& J.D. Shambie
(7th
Statutory Construction,
Sutherland
47:7
2012) ("[T]he
usually
ed. West
word 'includes' is
a term
enlargement,
It, therefore,
not of limitation ....
conveys the conclusion that
there are other items
enumerated....")
though
specifically
includable,
(citations omitted). "Including"
way
saying
is another
Popenhagen,
"is
55,
not limited to." See State v.
2008 WI
¶ 41 n.20,
601,
309 Wis. 2d
7 reasons, argument For similar we dismiss that Steffes's gave improper jury the circuit court The instructions. standard jury representation" instructions for theft fraud define "false past existing expressions as "one of or fact. It does not include
696 that the State Steffes's view Having rejected of the conspiracy to show that a member required was services, we hold that to for the promised pay phone that a "false representation" there was evidence ample customers require made. new Telephone companies for a reason: if the to contact information provide the information enables pay, customer does not and if service, off demand payment, shut company A proceedings. collection necessary, begin therefore violated contractual are company's rights in order when individuals false information give correct, If telephone pro- evade Steffes were payment.
viders would be to undertake exhaustive back- required JI —Criminal 1453A. opinions representations law." Wis. language "[a] also added that circuit court used this but may expressed, may implied or it be from all representation surrounding Steffes of the circumstances the transaction." alleges addition rendered the court's instructions this legally incorrect. matter, general first note that a circuit court has
As a we on the facts of a case. give wide latitude to instructions based (1988). 274, 289, McCoy, 2d State v. 143 Wis. N.W.2d may regarding both the lan The court exercise its discretion "Only jury Id. if the guage emphasis of the instruction. instructions, whole, jury or communicated an as a misled the a new will we reverse and order incorrect statement the law 185, Laxton, 29, 254 2d trial." State v. 2002 WI N.W.2d 784. making express promise to explain opinion, an
As we this represen- only way, to make a "false pay way, is one but not the entirely case, only facts in this it was tation." Given the did, jury it to instruct as appropriate for the circuit court say legally for the court to it would have been incorrect but as express promise pay, representation required an a false its discretion was well within Steffes believes. The circuit court the words that it did. choose *13 ground checks on each customer to ensure potential the information accurate. The theft- provided was by-fraud statute does not the State to show that require a consumer made an to retailers that express promise he would the full amount The evidence in pay owed. this case more than supports jury's finding Poellinger, false were made. See State v. representations (this (1990) 493, 507, 451 153 Wis. 2d N.W.2d 752 court if any will a conviction reasonable inferences uphold it). support
B. The Form Used is Electricity AT&T Applied 943.20(2)(b) Under Wis. Stat.
"Property" 24. Steffes next that his conviction alleges should reversed because he and his co- what stole was not but rather tele conspirators property, Steffes, elec- According applied services.8 argument presented Steffes also a narrower version of this There, appeals. before the court of he asserted that the evidence prove adduced at trial insufficient to that he stole more $2,500 electricity, than worth of and thus his convictions should felony be reduced from a to a misdemeanor. See Stat. 943.20(3)(a) (making it a Class A misdemeanor if the $2,500). stolen does not exceed Steffes does not make this court, event, argument any reject before our and in we this (an trial, Lindsley engineer) contention. At when Robert AT&T call, typical phone was asked how much is used in a replied "quantify" he that he could not the amount "because every depending circuit different" on the distance of the call. presented Steffes no evidence that the amount $2,500. State, meanwhile, made its stolen was less than $13,541.63 property in count one and case that Steffes stole counts, $14,519.78 jury was asked the count two. On both following on the verdict form: $10,000? the value of the stolen more than
Was Yes No
tricity by does not fall AT&T to its network used responds that the statute. The State the ambit of within powers the AT&T owns the because by conspiracy Steffes lines, carried out clearly AT&T's to theft of and the others amounted property fraud. via theft-by- "property"
¶ restate, under the 25. To tangible prop- is defined as "all forms of fraud statute erty, personal, limitation in- real or without whether cluding electricity, gas represent and documents which embody intangible rights." in action or other a chose 943.20(2)(b) added). "Electricity" (emphasis Wis. Stat. given specific in the statute. a
is not definition "When usage statute, we word of common is not defined may dictionary meaning." its turn to a to ascertain Sokolowski, Servs., Burbank Grease LLC v. 2006 WI NO, you preceding question If then answer this answer question: $5,000? property than Was the value of the stolen more Yes_No_ NO, you preceding question then answer this
If answer question: $2,500? Was the value of the stolen more than Yes_No_ AT&T jury stolen from answered that $10,000 the evidence
worth more than on both counts. Given jury's State, presented at trial we will not disturb $10,000 applied that Steffes stole more than conclusion AG, 51, 2000 WI electricity from AT&T. See Morden v. Cont'l 325, courts 39, ("[AJppellate 2d 235 Wis. 611 N.W.2d jury's that sustains the search the record for credible evidence verdict, jury that the could support not for evidence to a verdict not."). did have reached but 14, 274, 294 Wis. 2d 781. In search- N.W.2d
ing dictionary appropriate for the definition of "electric- ity" "ordinary-meaning we are mindful of the canon," provides "[w]ords which are to be understood ordinary, everyday meaning their the context —unless they indicates that bear a technical sense." Antonin Bryan Reading Interpre- Garner, Scalia & A. Law: The (2012). Legal tation Texts 69 A court "should assume contextually appropriate ordinary meaning unless nothing there is think reason to otherwise." Id. at 70. As *15 943.20(2)(b) "electricity" in indicates that was in- meaning, tended to a technical have we will look at the understanding dictionary common of the word. One "electricity" "[e]lectric defines as an current used or regarded power." Heritage as a source of The American (5th 2011). Dictionary English Language ed. of similarly: supply Another defines it "A of electric building current in laid on Dictionary a or room." Shorter Oxford (6th 2007). English dictionary a ed. And published theft-by-fraud time the around the current "electricity" statute was enacted defined as an "electric examples current" with of its use as "to install electric- ity; by electricity." a run machine The Random House (1966). Dictionary English Language Cours- ing through these definitions the notion "electricity," everyday parlance, word as it is used in its something provides power. means straightforward reading ¶ 26. A this unequivocally combined with the use of dictionaries supports electricity the State's stole view that Steffes lexicographi- from AT&T.To surmount this textual and parade hurdle, cal Steffes describes a of horribles that supposedly uphold if his convic- will be unleashed we 943.20(l)(d). example, Stef- tion under Wis. Stat. For pay bill a dental or barber fes claims that the failure to by prosecution because for theft fraud could result cleaning teeth use when dentists and barbers cutting difference, however, between not hair. The defrauding phone paying a dentist's or barber's bill and company the dentist and barber do not own is that electricity they provide customers, but use to services to light utility company pay heat and their rather buy power, by AC turn it AT&T, contrast, must offices. power, at one of its and store it batteries
into DC AT&T is thus its The used networks. purposes theft-by-fraud "property" statute. difference, do not share Given this fundamental we prosecutorial slippery slope Steffes's concerns. Robert Of. (1990) Tempting ("Judges Bork, H. America 169 they lawyers slippery slope analogies; live on the bottom."). supposed are not to ski it to the more, does not issue advi 27. What is this court sory opinions interpreted on how a statute could be different factual scenarios in future cases. See Gro Grotenrath, 381, 384, tenrath v. 215 Wis. 254 N.W.631 (1934) ("[C]ourts ordinarily advisory render will opinions questions propounded have not where *16 arise."). may job Rather, arisen and it is our to never adjudicate dispute in front of us. It thus not necessary by hypotheticals laid for us to resolve the out (Or. Seaton, 547, Steffes. See Gortmaker v. 450 P.2d 548 1969) (en banc) ("It appellate jurispru is fundamental to hypotheti abstract, dence that courts do not sit 'to decide (citation omitted). .'") contingent questions cal, or ... argument ¶ An not issue raised at oral —but by under
briefed Steffes—is that Steffes's conduct fell statute, service" Wis. the "theft of telecommunications § parties did not address this Stat. 943.45. Because the question, Steffes could be
we will not answer whether 701 943.45(1). charged any provisions of the in See under (Ct. Pettit, 627, 646, 2d 633 State v. 171Wis. N.W.2d 1992) App. (noting appellate may that an court decline briefed); v. to address issues that are not see also State (1990) Johnson, 121, 124, 2d 449 N.W.2d845 Wis. briefed). (declining do, an not to address issue We pause however, to could have note whether Steffes charged been a different crime for the same determinative conduct is con of whether Steffes's by viction for theft fraud was valid. deciding prosecutor in 29. That a has discretion charges bring in
what
is codified
this state's
punishable
"[I]fan act forms the basis for a crime
law:
statutory
prosecution
provision,
under more than one
may proceed
any
provisions."
under
all
or
such
gives
said,
Stat.
939.65. As we have
"This section
green light
charges,
may
multiple
which
result
statutory provi
multiple convictions, under different
Davison,
¶89,
51,
2d
sions." State v.
2003 WI
263 Wis.
removed).
entirely
(emphasis
145,
It is
666 N.W.2d
permissible
prosecutor
charging
for a
to base a
decision
by
legislature
upon
penalty
scheme set
for each
potential
Batchelder, 442 U.S.
crime. United States v.
Cf.
(1979) ("The prosecutor may
114,
be influenced
penalties
upon conviction,
fact,
available
but this
give
standing alone,
of the
does not
rise
a violation
Clause.").
long
Equal
or Due Process
As
as a
Protection
arbitrary
charging
decision is not based on an
discriminatory
religion,
race or
classification such as
prosecutors
deciding
have broad discretion
what
charges
bring.
App
Ploeckelman,
31,
State v.
2007 WI
The ultimate
13, 299 Wis. 2d
chased AC from power by storing It thus the into DC it in batteries. was electricity, satisfying one. element number owner explained in the elements, As for the next three we conspiracy previous section that members of the know ingly representations made false to AT&T with deceiving defrauding company. The intent of fifth the fact that Steffes made element satisfied phone lines.9 hundreds of calls over AT&T's 9 found in Stat. phrase property" "[o]btains The title to Wis. 943.20(l)(d) acquire defendant must seems to indicate that a by fraud. The legal actual title to an item to be convicted of theft Meado, appeals court of addressed this issue State v. (Ct. 1991), 789, 793, it was App. 2d when 472 N.W.2d presented question -with the of whether a defendant who could fraudulently obtained a lease —but not full title —to a van yes, because if prosecuted under the statute. answer was actual title is "adopted argument [Meado's] the court legal required pass, an actor would have obtain document of the title before the actor could be that is evidence 943.20(l)(d). Meado, 2d at charged violating" § 163 Wis. original). reading of the statute "would (emphasis This who, having perpe- designing reward the industrious and thief by making representations, false could proper trated the fraud title remained escape liability long criminal as as the official *18 Finally, elements, on the last two AT&T was deceived parting property in into with its that it relied on the personal identify- fictitious business names and stolen ing co-conspirators information that Steffes and his fraudulently provided setting up phone as a means of by numbers. As all the elements of theft fraud were met case, in this it is irrelevant whether Steffes could have prosecuted been under a different statute.
V CONCLUSION presented ¶ 31. issues are in this case. The Two submitting first is whether fictitious business names personal identifying and stolen information is a "false 943.20(l)(d). § representation" under Wis. Stat. Steffes alleges representation that such conduct is not a false requires because the that the actor make an statute express promise pay. The second issue is whether the applied electricity that AT&T uses to its network "property" is included within the definition of found 943.20(2)(b). § argues Steffes that his conviction cannot security." Jury with the owner as Id. The Wisconsin Criminal agrees well. Instructions Committee with this view as Wis 1453A, JI —Criminal Comment 5. interpretation concur with the Meado court's
We
943.20(l)(d). Very
actually
pieces
Stat.
few
have a
legal title with a name on it. If the state had to show that a
stole,
holder of the
he
theft
defendant was a title
impossible
prosecute
for a wide swath of
fraud would be
Furthermore,
fraudulently
if
obtain
cases.
it would he absurd
ing
vehicle
criminalized but the exact
title to a home or
were
legal
long
perpetrator
only
as the
were
same conduct were
so
58,
leasing.
Cnty.,
Kalal v. Circuit Court
Dane
2004 WI
Cf.
633,
(observing that statutes
271 Wis. 2d
¶ issue, 33. As to the second tangible theft-by-fraud as "allforms of statute is defined personal, property, limitation real or without whether repre- gas including electricity, and documents which intangible embody in action or other a chose sent or added). 943.20(2)(b) § (emphasis rights." Re- Stat. conjunction language lying plain of the statute on the commonly dictionaries, conclude used we purchases AT&T from AT&T. Steffes stole power When its network. and stores buy more calls, AT&T must make consumers electricity. against perpetrated conspiracy AT&T property. company deprived We its therefore By appeals. decision the Court.—The affirm the court appeals is affirmed. the court of (dissent- ABRAHAMSON, C.J. S. 34. SHIRLEY parlance, ing). Steffes, the defen- Matthew In common complicated up co-conspirators set dant, his and telephone company. They scheme to steal from the telephone company to, did, intended bilk the telephone company what the services. sells— guilty not, 35. The defendant is however, of a prove beyond crime unless the State can a reasonable specific doubt that he violated the terms of a statute. Why? Because there are no common law crimes in statutorily Wisconsin.1 All crimes are defined. present
¶ 36. The
defendant
case was
charged
guilty
violating
with, and
of,
found
Wis. Stat.
943.20(l)(d)2
§§
943.20(3)(c),3
felony.
a class G
fraudulently obtaining
These statutes criminalize
$10,000.
of another with a value in excess of
question
presented
¶ 37. The
of law
in the instant
majority
opinion
is,
case
as
states
at
"[Wjhether
applied electricity
¶ 15:
that AT&T
uses to
its network is included in the definition of
§
'property'
943.20(2)(bparlan)."
major-
found in
As the
Genova,
Wis. Stat.
939.10. See also State v.
77 Wis. 2d
(1977).
141, 145-46,
provided in sub. (d) property person by intentionally Obtains title to of another deceiving person representation with a false which is known to false, defraud, he made with intent to and which does defraud the person representation" to whom it is made. "False includes a promise perform part made intent not if it it is a of a false and fraudulent scheme. 943.20(3)(c) § provides: 3Wisconsin Stat.
(3) (1): Penalties. Whoever violates sub. (c) property $10,000, guilty If the value of the exceeds is of a Class felony. G
706 9-10, telephone company explains at ity opinion ¶¶ telephone transmission uses calls.4 as enumerated specifically Electricity 38. Stat. to the Wisconsin subject statute.5
"property" 943.20(2)(b) for "property" purposes § defines word " forms means all statute as follows: 'Property' of the real or without personal, whether tangible property, and documents gas limitation including electricity, other embody chose action or represent which rights."6 intangible services, Services, are including statutory prope included within definition
rty.7 agree majority
4 I defendant opinion with the engaged in false defraud the com representation pany. 5 jury The law the was instructed that under Wisconsin electricity. "property" term includes 943.20(2)(b). § Wis. Stat. Stat. prosecuted Theft of services cannot be under Wis. The 943.20 of the Criminal Code. See William Platz, A. Code, Criminal L. 1956 Wis. Rev. 350. (Bill S.) 784, Early drafts statute in 1950 No. (Bill listing 100, A.,), explicit language No. included See Draft- property subject
services as theft under 943.20. 100, A., 784, Bill 1953 Bill
ing Records No. S. and No. Bureau, Madison, Wis. Legislative on file at Wis. Reference language ser- legislature regarding later removed all eventually it intangible from the vices (eff. 943.20(2)(a) July 696, 1955, § in 1955. Laws of enacted Ch. 1956).
1, Baldwin, of Law and assistant
In Gordon B. Professor School, University of Wisconsin Law summarized dean at the regarding Code comprehensive changes to the Criminal explained He the definition misappropriation.
707 I 40. write on two issues of law presented: (1) whether stealing telephone services from the tele- phone company constitutes stealing electricity under (2) issue; at if so, and whether value of the telephone services the value equals stolen under the statute at issue. chose, The State as is its prerogative,
charge the defendant violation felony statu I te.8 do not agree with State or majority opinion that stealing telephone services that apply stealing electricity within the meaning if Stat. 943.20. stealing Even the telephone services can be statutory shoehorned into the concept of I stealing electricity, agree do with the majority §in "does 943.20 not reach the deceiver who takes labor and any another paying." services from without intention of Profes- sor Baldwin advised that criminal are "[i]f sanctions needed to protect providers] specific [service statutes must be enacted." Baldwin
Professor wrote: comprehensive The in definition the Criminal Code not, however, persons misappropria- does reach all who intend a and takes labor services tion. It does not reach the who deceiver any doctor, paying. from without another intention of archi- The tect, engineer garagemen may and [sic] victimized deserves protection, comprehensive hut definitions are not enough misappropriations cover these and time. If services protect specific criminal sanctions are needed them statutes original). (emphasis must be enacted in - Baldwin, Gordon B. Misappropriation Criminal Wisconsin (Winter 1960-61). I, Marq. 253, Part L. Rev. might charged proved The State have a violation of 943.45, Wis. Stat. entitled "Theft of Telecommunications is, most, penalty Service." misdemeanor. The at a Class B similar future might State cases use Wis. Stat. § 943.50, creating a felony for the theft of services valued at more than This statute enacted in after the $500. present defendant's conduct and the in the case trial occurred. *22 electricity- fact, that, law the value of a matter of or as replacement or the as the market value stolen is same telephone I therefore dis- services stolen. value of sent.
I interpre- statutory ¶ I as matter of 42. conclude electricity from tation defendant did steal that the telephone company statute at issue. under the Century Electricity powers ¶ world. our 21st 43. electricity purchased purchase electricity use We all by or telephone company our The others lives. purchases electricity provides that services are powered by electricity. electricity: majority "[I]n opinion
¶ 44. The defines something parlance [electricity] everyday that its provides power" means reading straightforward "[a] and that this the use of dictionaries un- statute combined with equivocally supports that the State's view Steffes stole electricity Majority op., ¶¶ from AT&T." 25-26. majority rely opinion
¶ on 45. The seems two statutory support interpretation its theories to "applied "electricity." First, word it asserts that electric- ity" statutory "electricity." is included -within the word telephone company it that the differs Second, asserts provider typical or from user of service electricity. Why? powers Because its services with company, telephone other users of unlike electricity. Majority op., providers, service owns ¶¶ 26, majority opinion, State, and the 46. The "electricity" appeals interpret in the the word
court of "applied electricity." statute to include majority opinion the word "elec- defines 47. The tricity," define the above, but does not as we stated phrase electricity." phrase "applied "applied elec-
tricity" appear glossaries does not in dictionaries or in discussing electricity.9 meaning So what is the phrase? presented testimony
¶ 48. At trial, State are services included the definition of "property" "applied because service uses an electricity." Lindsley, engi form of Robert an electrical *23 manager telephone company neer and for the offered opinion expert you, you your his phone, know, that "when use using you applied electricity."10 are an form of appeals, ¶ In 49. its brief to the of court the State argued "[t]he 'property' by that obtained the installation telephone [sic] and use of the fraud lines false representation [sic] telephone were valuable services 'applied electricity which involve an form' of and, as 'property' scope such, is within the of the statute. . . . simply completed Those calls could not be without (unless electricity co-conspirators used tin cans and string impulses). Electricity miles of to transmit voice is component telephone an essential of . . . service ."11 (1921) See, e.g., Cyclopedia Applied Electricity 483 of terms); (glossary of Bayne, Applied electrical see Clair A. also (2000) Electricity & (glossary important Electronics 656-70 of terms). 10Testimony part: of Lindsley, Robert telephone company network,
When the bills a telecommunications power support it bills a that also network telecommunications power splices electricity telephone That network. network to the network, electricity, telephone and without that network would not be able cause to—to communications to occur over that know, Basically, you, you your you phone, use network. when are using applied electricity. an form of Lindsley When Robert he was asked whether knew the telephone company's power system, cost he testi- fied did that he not. 16. appeals State's court of brief at "electricity" statutory Interpreting
¶ word 50. 943.20(2)(b), appearing of court in Wis. Stat. "electricity" appeals as as a matter of law that concluded electricity," "applied is, in the includes used electricity used to transmit that the statute includes telephone lines.12 human via voice court, the State its brief before this 51. In 943.20(2)(b)
argues "property" under Stat. electricity "[t]he applied form; that in its includes system electricity telephone it to which was "[electricity inextricably applied linked," and that were component service . . . ."13 an essential is electricity" phrase "applied simply Thus, the application in some manner. refers to the phrase is used mean how and when particular product or service. The used phrase "applied
electricity," majority as in the used telephone company applies opinion, electric- means broadly, ity delivery in the More services. electricity" any application electricity. "applied means *24 electricity" phrase "applied ¶ is 53. This use of the ordinary phrase. Accordingly, Cyclo the use of the pedia Applied Electricity itself as "a com describes of generation working plete practical and treatise on the application power."14According to the and of electric Cyclopedia: applications are "The of the electric current 12 Steffes, State 23-24, v. 47, 2d App 2012 340 Wis. WI ¶¶ 529. 812 N.W.2d 13 Brief at 28. State's 14 (1921). Still, Cyclopedia Applied Electricity of "applied electricity" not found in the Table of Contents term is or the Index. phrase electricity" most often as a "applied is used title, phrase "Applied in a similar manner to the
textbook Mathematics." every and are in
numberless to be found home. . . . again telephone, Think of the the wire and wireless telegraphs, application and the thousands of other of spark, energy the electric and electric which contribute daily to our comfort."15 stealing "applied electricity" Thus, 54. means in present according majority opinion, case,
the stealing to the electricity power telephone used Majority op., ¶ services. 5. If the criminal statute at issue includes property, used to as services majority opinion has,
then in effect, rewritten the powered include statute to numerous services that are by electricity. attempts
¶ 56. The State to avoid this result distinguishing telephone services from other "services (i.e., [that] legal involve the use of advice over a or the barber's use electric of hair clippers)." vantage point, electricity From the State's is but, contrast, incidental numerous services in inte- gral telephone. Employees, time, to the skills, machin- Principles Electricity Telephone Applied See also and of (1961) (The Telegraph page "[a] Work title describes the text as Training Prepared Employees Long Course Text Telephone Department, Telegraph Lines American Com- pany." explains The Preface this edition the text "has required concepts certain prin- the introduction of basic editions, ciples in not dealt with earlier as well as numerous examples applications practice."); to illustrate their Clair A. (The (2000) Bayne, Applied Electricity phrase and Electronics "applied electricity" text, the title but is not found in Contents, Index, Important or the Glossary Table Terms.). *25 (1921). Cyclopedia Applied Electricity 8 For a discus- electricity applied telephone, Cyclopedia sion of to the see 8 (1921). Applied Electricity 11-90 but, services telephone are incidental to and labor ery, State, to other integral to contrast, according in the explains use The State's brief electricity. services that that use ap- service among providers the differences electricity as follows: plied telephone lines cannot is that
The obvious difference the provided, function, without and so the service cannot electricity to enabling system: is essential an electrical system A cannot exist without it. the service. to line purchases
The customer who access a Legal it. services purchases electricity powers the that can, provided without theoretically, be and a haircut (a electricity meeting lawyer; face-to-face with using razor). electricity straight The used scissors or barber's only to the connection with those services is incidental time, lawyer's itself. It is the value of the skill service labor, is when those and the barber's skill and lost fraudulently lawyer's the client are obtained services telephone company barber's loses the customer. electricity applied form of when its value obtained; fraudulently the value of the services are skills, spent time and telephone company's employee only incidental to service.16 labor are and the unpersuasive, This is argument 57. it. refuses majority opinion rightfully adopt Service other than the providers For electricity operate. example, company require lights, the dentist uses chair, drill, toothbrush, dental the electric sterilizer, the sealant suction the ultrasonic apparatus, machine, and com- x-ray security system, gun, barber, her only scis- Even old-school puters. what she is razor, sors needs see straight lights discovered, when the doing. As I recently hours, up shop. closes shut for a the barber off few original). (emphasis Brief at 32 n.15 State's *26 electricity, telephone ¶ 59. Without neither the company operate. nor the dentist nor the barber can Electricity integral telephone is essential and to and barbering telephone dental and services and and dental barbering require all skills, services also human equipment. time, labor, and argument
¶ 60. In lieu of the State's that "electric ity integral telephone majority opin services," is the distinguishes telephone using "applied ion tricity" services elec using "applied electricity"
from other services telephone company on based the notion that the owns electricity powers the that the services. Rob Lindsley explained telephone company ert that the purchases power utility, AC from the commercial con power, verts into DC and stores that energy power in so that in the event a batteries outage, telephone company energy use can from power telephone system.17 the batteries to promotes majority opinion ¶ 61. The "owner- ship" distinction as follows: however, difference,
The paying between not a dentist's defrauding phone company barber's bill and a is that electricity they the dentist or do not use barber own the provide customers, but pay services rather 17Testimony AT&T expert Lindsley: from Robert power. power, are There two different forms of There is AC which you your your home, you get is what would out of outlet at AC getting utility. are that from commercial And then is DC there power. power power, The between DC difference AC and is DC power, power is which direct current can be stored batteries. AC cannot be stored in batteries. company buys actually power So AC from utility, power commercial rectifies DC—or excuse me. The AC form, energy
into DC so that if lose stores batteries we office, your phone our commercial central continues to work. AT&T, light their offices.
utility company to heat and power, contrast, buy power, turn it into DC by must AC networks. in batteries at one its and store it "property" AT&T thus its used theft-by-fraud statute.18 purposes *27 of the distinc- opinion's theory The majority 62. ¶ service that electricity powers tiveness of electric- ownership on the telephone company's based fact law. ity is or supported me First, majority 63. it seems to the
¶ regarding the record opinion may be misreading importance company's of and of the concept Very little testi- electricity. and storage "ownership" on this topic discusses this issue. No one focused mony testi- reading Lindsley's at trial. Yet a of Robert plain the telephone company seems to indicate that mony during and for use electricity converts stores only electricity transmit it may simply and power outage normally receives. Furthermore, may other providers 64. service "own") (and use.19 A for later electricity
also store thus cell charge laptop, dentist purchases electricity 18Majority op., (emphasis original). in 26¶ distinguish the tele- majority attempts opinion The yet providers and asserts at phone company from other service providers creates comparing time that service same Majority slope unnecessary hypotheticals. op., slippery and 26-27. ¶¶ electricity and
Looking providers use at how other service under prosecuted can be at theft of their services whether at issue is opinion's interpretation of the statute majority correctly being interpreted statute is helpful to ensure similar applied consistently in the future to it be and that will fraudulently acquire cable television person cases. Were a train, could that or a on an electric internet service ticket phone, portable machine, cordless phone, x-ray other electronic portable devices. The dentist stores the in the devices' batteries and then uses the perform later a service.20 Second, law, as a matter the majority opinion's reliance on the telephone company's "owner as ship electricity" the determinative factor under the at is issue erroneous. This ownership distinction is contrary to law and the purpose theft statute.21 person successfully prosecuted stealing electricity under majority opinion's interpretation of the statute at issue in present case? Bird, John Principles See Electrical and Electronic (3d 2007): Technology 28-29 ed. battery years now over old and batteries are found everywhere products. in almost consumer and industrial Some
practical examples where batteries are used include:
cars,
laptops,
cameras,
phones,
In
in
in mobile
watches and
*28
clocks,
security
meters,
equipment,
for
in electronic
smoke
for
alarms,
gas,
electricity consump-
for meters used to read
water and
home,
endoscope looking
tion at
for an
camera
internally
body,
transponders
at
and for
for
the
used
toll collection
highways throughout
on
the world.
21
State,
325, 339,
Mitchell
Wis. 2d
v.
84
(1978) (the involving personal property offenses contained in Chapter consistently possession 943 make property, of the not factor). ownership, key the 943.32(3) (for § Stat. purposes robbery
See also Wis. of the statute, person possession "owner" in property means a of unlawful). the person's possession whether lawful or is (in 971.33, also Stat. property
See Wis. Possession of prosecution by stealing, of a crime damaging, committed or fraudulently receiving concealing personal or property, it is if proved sufficient it is at time crime was possession committed either the actual constructive or the general or special property any part property of in such thereof). person alleged to be the owner 716 pre purpose is to ¶ the theft statutes The of 66. taking property of the without the consent vent the person or actual has constructive or the who owner possession.22 anyone may Property
¶ who from be stolen 67. thing right possess use to the exclusion and has the the use and control over others.23 Possession required it in order to be is all that (stolen) Electricity may from one be diverted stolen. simply pays and stores or one that takes electricity. possess use and giveaways ¶ for me that dead two prosecuting of tele the defendant for theft State was electricity, phone services, not for the theft of were argument charging that the documents and the State's equals stolen the value value of services stolen.24 complaint information do 69. The criminal allege electricity. simply These mention documents property. that the defendant stole services and both complaint only in the 70. The reference its 1 of the stolen value is Section Summary complaint, Allegations, ex- entitled which representatives plains, [sic], "All calculate tolled SBC group Company out of that this fraud bilked the Phone $40,000 in fees." about service LaFave, Wayne Criminal generally R. Substantive See 19.2(a) (2d 2003). Law ed. State, 325, 339, N.W.2d 349 Mitchell v. 84 Wis. 2d See (1978). *29 trial, fees testimony telephone to service According at telephone only pay not for the paid by customers pay for the transmission system, but also used to wires, cables, offices, equip- and employees, and other machines ment. 71. The alleges First Amended Information
the defendant conspired title the "obtainO of [the telephone company], having exceeding a value $10,000... [by a making] promise false to pay for service accounts ...." The information does specify property that object was the conspiracy.25 25The initially charged 2004, pled defendant was in no
contest, sentenced, was and permitted then was to withdraw his plea withdrawn, no-contest plea 2009. After the Third filed, Amended charges Information was which restated filed years earlier in the First Amended Information. The Third record, Amended Information is not but the First record, Amended represents Information is in the and charges brought at trial. First Amended Information: COUNT 01: CONSPIRACY TO MISAPPROPRIATE PERSONAL (As INFORMATION, IDENTIFYING HABITUAL CRIMINALITY Howard)
to Defendants Matthew and Steffes Joshua July 1, 2002, Between about 2002 and December at various Milwaukee, County locations within the of with intent that a crime committed, purpose be did combine with another for the of crime, committing a viz: Identity The crime of Theft... COUNT 02: CONSPIRACY TO COMMIT THEFT BY FRAUD (VALUE (As $10,000), > HABITUAL CRIMINALITY to Defen- Howard)
dants Matthew Steffes Joshua July 1, 1, 2003, July Between about 2002 and at various locations Milwaukee, County within the with intent that a crime be committed, purpose did combine with another for of commit- crime, ting a viz.: Fraud, by whereby conspirators crime Theft did purpose obtaining SBC, combine for the title having exceeding $10,000, by intentionally deceiving a value SBC representation false, conspirators with a false known to promise pay viz. false service accounts created in Steffes, representation the name of Nick which made with intent to SBC, defraud and which did defraud one furthermore or more *30 no effort to explain not made only 72. The State ¶ stole the defendant the documents charging or no at trial to quantify made effort but also electricity, stolen, its or electricity or of type the amount qualify time it stolen. value at the was to what prove State has the burden 73. The
¶ kind of what property, was stolen —how much property. and the value of the property, at not information any The State did proffer electricity the qualify, to value quantify, trial kind what electricity, much allegedly was stolen —how stolen. or the value of the electricity, Rather, telephone the number of proved the State services. used and the value of minutes can forth majority put 75. The best the opinion me) (and is to explain it to convince good enough and purchases that "AT&T stores object contrary co-conspirators conspiracy's an did act effect 943.20(l)(d) (3)(c) and 939.31 and
to Wisconsin Statutes section & added). (emphasis 939.62 THEFT BY 03: TO FRAUD COUNT CONSPIRACY COMMIT (As (VALUE $10,000), > to Defen- HABITUAL CRIMINALITY Howard) dants Matthew Steffes and Joshua 1, 2003, July July and at various locations Between about Milwaukee, County that a crime be with intent within the committed, purpose for the of commit- combine with another did crime, ting a viz.: Fraud, whereby conspirators by did The crime of Theft SBC, obtaining purpose title for combine intentionally deceiving $10,000, by exceeding SBC having a value false, conspirators to be representation known with a false promise created in pay service accounts viz. a false Douyette, representation made of Jamie which name SBC, and furthermore one did intent to defraud and which defraud object conspiracy's co-conspirators effect the did an act to or more (3)(c) 943.20(l)(d) & contrary section to Wisconsin Statutes added). (emphasis 939.31 939.62 its network. When consumers calls, make AT&T buy electricity. conspiracy perpetrated must more against deprived company AT&T therefore of its *31 property." Majority op., ¶ 5.
¶ forth, 76. For I the reasons set conclude that the bilking telephone company defendant's the of theft telephone electricity services, not theft of the under Attorney statute. As Assistant General Platz William explained and Professor Gordon Baldwin both more century ago, than a half theft of services is not covered by simple electricity Wis. Stat. 943.20. The fact that is morph used to service does not a theft electricity. of these services into a theft of II stealing ¶ 77. Even if services would stealing electricity constitute issue, under the statute at electricity not, and it does the not, value of the stolen is equal fact, as matter of telephone or law to the value the majority opinion services. The the State and adjectives they can add whatever like before the term "electricity," but an to convict individual for a G Class felony prove 943.20, under must the State that the quantifiable in individual fact stole a and valuable electricity amount of $10,000. excess of ¶ 78. The of the value stolen an is important penalty ranges factor the because for theft through felony depend from a misdemeanor a Class G ing property on value the stolen.26 State, Sartin v. In explained: this court
While .. . the value of the stolen not an is element of the theft, importance crime of nevertheless value is of the utmost determining applicable penalty upon conviction. statutorily
¶ as "the market Value is defined 79. theft the cost to the victim value at the time of the replacing time after within reasonable theft, whichever is less."27 (or replace Although fair market value value) property is not an element of the stolen ment penalty prescribes a based theft, when a criminal (here property, the fact finder on the value jury) property stolen and the determines the value of the jury's supported the evidence. determination must felony when there for a theft cannot stand sentence property.28 factual basis for the value of the stolen no prove value burden is on the State to 81. The erroneously majority flips electricity. The of the stolen quantity prove the burden to the defendant to op., Majority to make each call. value of used *32 ¶ 24 n.8. only proved the "fair market value" 82. The State telephone of "fair market value" the calls,
of the electricity not the "replacement cost" of the and not the
stolen
electricity
offer-
State
content with not
stolen. The
was
ing
electricity
quantity
even
the
and value of the stolen
Lindsley,
engineer,
though
testi-
at
Robert
trial AT&T's
possible
much
fied
electricity
it
to determine how
that would be
power
the defendant's
used to
each of
was
very
phone calls,
"it
labor intensive
would be a
but
process."
(1969).
State,
138, 148,
Sartin v.
44 Wis. 2d
State,
490, 492-93,
485,
¶ 83. Moreover, the the electricity provide telephone of cost used to service equal telephone company not does the amount charges telephone beyond for service. Additional costs electricity telephone of the cost company charges factor into the fees the telephone Testimony service. at telephone paid by trial that the service fees consum- only pay electricity ers not system, for the used to pay
but wires, also for the cables, transmission employees, equipment. offices, and other machines and Thus, the fair market value the stolen service the State offered at trial is not equal electricity to the fair market value of the stolen. Accordingly, fact, as a matter law or the State did not prove the value of the stolen. majority opinion
¶ 85. The follows the lead appeals, equating "applied electricity" court to the "[T]he entire service as follows: market telephone company [fraudu value of the services lently obtained] is the correct measure of the value of undisputed the stolen in this . case... The phone company $26,000 evidence is that the lost over ,"29 electricity... applied billable services—i.e. prove
¶ 86. The State did not
the value of the
interpreted
stolen. Even if the
applied electricity
present case,
mean the
in and I
interpret
prove
do
so
statute,
the State did not
$2,500.
the value of the stolen
exceeds
felony
Under these
circumstances
conviction must
*33
29State
Steffes,
App 47,
23-24,
v.
2012 WI
Wis. 2d
340
¶¶
576,
WALSH (1978). State, 485, 493, 271 2d N.W.2d v.White 85 Wis.