State v. Seymour

Plaintiff-Respondent,† Wisconsin, State

v. Defendant-Appellant. Douglas Seymour, Appeals Court of September No. 91-2962-CR. Submitted on briefs 20, 1993. May 1992. Decided 591.) (Also reported in 502 N.W.2d granted. to review †Petition defendant-appellant

For the the cause was sub- mitted on the briefs of John M. Brinckman of Brinckman, Brinckman & S.C. of La Crosse and Janet Flaherty, A. Jenkins of Johns & S.C. of La Crosse. plaintiff-respondent For the the cause was submit- Doyle, ted on attorney general, the brief of James E. Marguerite attorney and general. Moeller, M. assistant Dykman Sundby,

Before Gartzke, P.J., JJ. Douglas Seymour SUNDBY, J. was convicted of employee, two counts theft an in violation of sec. 943.20(l)(b), Stats. On each count the information charged Seymour conjunctive: "[B]y in the virtue of his employment... having possession custody money [Seymour] intentionally . . . used, transferred, and possession money retained of such without the owner's contrary authority consent, to his and with intent any convert to person his own use or to the use of other added.) except (Emphasis the owner-" However, jury trial court disjunctive, instructed the in the instructing Seymour guilty that it should find if it was beyond satisfied a reasonable doubt that he intention- possession ally used, transferred, concealed or retained money alleged have he was stolen. by instructing jury Seymour in the claims that jury disjunctive requiring that unani- without agree mously violated, he the trial of the offenses right deprived verdict him of his to unanimous court guilty on less find him evidence and allowed agree. beyond We reasonable doubt. than verdict The state does not concede that "duplicitous," does if the trial but concede was jury, the when it instructed the error court erred agree harm- the error was not not We harmless. Seymour's conviction therefore reverse less and appeal disposition of makes Our order a new trial. Seymour's unnecessary other for to consider it us claims.

Seymour Con- formed Clower and Paul Clower Seymour employee. Seymour an struction, Inc. was Seymour Enterprises, consulting service, a also formed through Construction. Clower which billed its services Seymour of credit $25,000 line and obtained Clower checking opened They corporation's four bank. at the and of Construction two in the name Clower accounts, Sey- Enterprises. Seymour Later, name of two in the of for $25,000 line credit a second mour obtained occasionally Enterprises, Seymour used to which was supplement cash flow. Construction's Clower Seymour was on

The two counts of theft line his use Clower Construction's convicted involved purposes. Seymour Enterprises' trial, At for of credit authority only he to use cor- had testified that Clower Seymour personal purposes. porate testified funds for authority. parties had that that both Seymour case, state's At the conclusion grounds that on the dismiss the information moved to to the evidence was insufficient show Seymour that had "used" or Clower "transferred" Construction's The that if money. prosecutor argued you "[e]ven accept [Seymour's] argument as the use transfer we have option, charged well, retained] possession Iso do not think that certainly any ground there is on which to dismiss this case." The prosecutor also argued that the "transfer" of Clower Construction was money money "hidden" "and the came never back so we still have retention and The trial possession." court denied Seymour's motion dismiss.

Thus, the state that could considered find it Seymour if guilty satisfied to the requisite "used," either degree proof Seymour "trans- ferred" "retained Clower possession" money. Construction's Consistent with the state's posi- tion, in jury instructions conference the prosecutor requested pattern instruction, theft Wis J I—Criminal 1444, be modified to include "transferred" and "retained possession." pattern instruction would have instructed the as follows: you

If are satisfied beyond reasonable doubt defendant, from the evidence this case that the virtue of his employment, possession money had another, belonging to the defendant intention- ally money used consent, such without the owner's contrary authority, to his and with intent convert use, you it to his own should find the defendant guilty.

During instruction conference, the trial court "I stated: don't think that it would be fatal if for exam- ple [the instructed in regard use, was] to transfer, added.) conceal or retain." (Emphasis Subsequently, the prosecutor asked trial court: "Are four all alter- natives going to be given use, transfer, conceal, or —

308 possession?" responded, "I think trial court retain Seymour's objection, court . Over the trial so . . jury: instructed beyond a doubt you

If are satisfied reasonable defendant, by evidence in this case that the from the money employment, possession of his had of virtue another, intention- belonging to that the defendant used, transferred, retained ally concealed or of such without con- possession money the owner's to sent, contrary authority, and intent his use, should the defen- you it to his own find convert as to the count under consideration. guilty dant added.]1 [Emphasis "duplicitous."

Seymour attacks the verdict as charging ordinarily applied "Duplicity" term to a is a joining single "Duplicity count of in a is 'the document. separate United offenses.'" two more distinct and or (W.D. Supp. 511, Wis. Brown, v. 521 F. States 1981) (quoting 1 C. Pro Wright, Federal Practice (1980)). § also 2D at 306 See cedure: Criminal George, 253, 257 92, 99, 230 N.W.2d v. Wis. 2d State (counts (1975) duplicitous complaint trans if several offense). joined actions actually modified, given tracked sec. instruction

1As Stats., instruction. 943.20(1)(b), closely pattern more than Stats., 943.20, provides part: Section (1) following may penalized as any be does Whoever (3): provided in sub. (b) office, By employment, or or as business virtue his custody money bailee, having ... inten- possession or or trustee conceals, uses, transfers, possession of such tionally retains authority, consent, contrary his money without the owner's ... any person his own use or the use with intent to convert to added.] except [Emphasis owner....

In State, Jackson v. 1, Wis. 2d 284 N.W.2d 685 (Ct. 1979), App. complaint charging we held that a 943.20(1)(a), duplici theft under Stats., would be charged disjunctive by tous if it the defendant in the alleging away that "he took and carried or used or (empha transferred, 11, etc." Id. at 284 N.W.2d at 689 943.20(1)(a) original). penalizes person sis in Section a "[intentionally away, who uses, takes and carries possession conceals, transfers, or retains of movable property of another without his consent and with deprive permanently possession intent to the owner added.) property." (Emphasis paragraph of such Because )(a) (1 "uses," includes "transfers," "conceals" or possession" paragraph "retains offenses, as as does (1)(b), construing paragraph we conclude that decisions )(a) (1 persuasive construing paragraph in (1)(b). charged Seymour

Because the information in the conjunctive, subject objection being it is not duplicitous. jury charged conjunc- Had the been in the language tive information, there would have problem. general been no constitutional "The rule is guilty that when a returns a verdict on an indict- charging conjunctive ment several acts in the . . . the respect verdict stands if the evidence is sufficient with any charged." one of the acts Turner v. States, United (1970). 396 U.S.

By charging conjunctive, duplic- in the the vices of ity are avoided:

A duplicitous indictment charges is one that separate offenses count. The overall vice duplicity is that general cannot ver- finding dict render its offense, making on each it difficult to determine whether a conviction rests on effects only of the offenses on both. Adverse one of may improper include notice the on defendant him, shaping in of charges against prejudice the sentencing, limiting in in evidentiary rulings, jeopardy, appeal, exposure review to double on will danger of the that a conviction course verdict as to each result from a less than unanimous separate offense. (6th States v. Duncan, 1104, 1108 n.4

United F.2d 1988) Wright, 1 C. Practice & (citing Cir. Federal LaFave & J. (1982); 2D 142 2 W. § Procedure: Criminal 19.2(e) (1984)). In this Israel, Procedure § Criminal that he was case, Seymour the information advised retaining posses- using, charged transferring that he he had notice Thus, sion of stolen money. charge that be defend the against prepared should all those he did of acts. how- duplicitous,

The information herein became of trial it was at the close ever, when amended In the verdict for the word "and." substitute "or" the court noted that conference, the trial instructions but the disjunctive, was in the of the statute language The trial court in the conjunctive. information was in the be stated the information should stated that "or." therein should be and the word "and" disjunctive the wording the on said, change will "[I] The court as is concerned [i]nformation as far charges this time to the —I'm concerned make sure it adheres at the statute embezzlement, when the term using about defines it theft." clearly defense was not his

Seymour prejudiced it did not occur of the information because amendment its case to the jury. after each had party presented until However, occurred when prejudice if the jury it find Seymour guilty instructed that could beyond Seymour was satisfied a reasonable doubt that pos- used, had or or or transferred, concealed retained money alleged session he was to have stolen. At point, duplicity one of the vices of manifested general guilty itself. "A verdict of will not reveal guilty whether the found defendant of one guilty guilty crime and others, not all." 1 C. Wright, Federal Practice and Procedure: Criminal (1982). §2D 142, at 475 Jackson,

In we said when there alterna offense, tive elements and the defendant is charged with elements, those alternative the trial court following duplic must do one of the to avoid the vice of ity. 92 Wis. 2d at 284 N.W.2d at 690.2 The court require may that the state elect the offenses it jury. "Alternatively, wishes to submit to the if more jury, than one is submitted to the the court must jury may they instruct the that before find the defen guilty, they unanimously agree dant on must they proven beyond alternative element find was a rea sonable doubt." Id. Because alternative "elements" or separate jury offenses were submitted this jury case, and the not was instructed that it must agree unanimously Seymour on the element or offense jury committed, instructions were erroneous and Seymour's right jury violated to a unanimous verdict proved guilty by be anof offense evidence satis fying beyond-a-reasonable-doubt standard.3

2It is more accurate to describe the alternative "elements" separate the offense of theft as frequently offenses. The cases separate use "elements" of an offense to describe crimes which given title, are descriptive common such "theft." 3 I, "Sections 5 and 7 of Article of the Wisconsin Constitu tion, guarantee right by jury. to trial The decisions this court have long assumed this right that includes the ato unani-

312 little reli- place that we should argues The state United on Jackson because the on, case we relied ance (5th 1977), Cir. was States v. Gipson, 553 F.2d 453 Arizona, v. in Schad 501 the Court "disparaged" (1991). L. Ed. 2d The dissent —, —, U.S. that Schad than the state and asserts further goes resolving new entirely approach commands an of duplicity. issues in Schad was first- charged

The defendant aside, was set and, after his conviction murder degree murder he retried on theories of both premeditated was sixth, eighth He felony-murder. argued unanimous amendments required and fourteenth cases, as distinct from those where in state capital L. Ed. 2d at 563-64. imposed. lesser penalties begged this argument said plurality opinion was to raised; challenge defendant's real the question murder as a first-degree Arizona's characterization Schad, Id. at 564. The issue the plural- crime. state's but the unanimity, not one of said, ity Id. at conduct. limits in criminal defining permissible was not persuaded this the plurality 565. For purpose, test groupings" "distinct that Gipson's conceptual limits of of the permissible answered the question Id. at 567. crime definition. legislatures out pointed

The plurality opinion committing means of enumerate alternative frequently elements separate to state intending a crime without crimes: separate 134, 138, 280 State, Wis. 2d Holland v. 91

mous verdict." (1980) (cita (1979), denied, 445 U.S. 931 cert. N.W.2d omitted). evidentiary is standard The reasonable-doubt tions clause of the process the due applicable to the states made 358, 363-64 Winship, 397 U.S. amendment. In re fourteenth (1970). question statutory whether alternatives consti- independent

tute elements of the offense therefore does not. call tautology; rather, .. for a mere it is a question statutory substantial construction....

If a State's courts have determined that certain statutory alternatives are mere means of commit- offense, ting single a rather independent than crime, elements of the we simply liberty are not at ignore that determination and conclude that the are, fact, alternatives in independent elements under state law. (citation omitted).

Id. at 568 course, if Conversely, a state's courts have determined that certain statutory alternatives are independent offenses, the United States Supreme Court is not at liberty ignore that determination and conclude that are, alternatives fact, in mere means of committing offense. Wisconsin's courts have appellate determined statutory use, transfer, conceal, alternatives — retain possession offenses. independent —are

The due test process which the dissent suggests Schad, replaces is, test jury-unanimity under a means of merely "measur[ing]... the sense of appro- Id. at 570. In other priate specificity." words, the due clause of the process fourteenth amendment protects criminal defendant a state's against "freakish defini- tion of the elements of a crime that finds no analogue Id. or in the criminal history law of other jurisdictions." (footnote omitted). the Schad plurality's at 571 Thus, due test process does not replace jury-unanimity requirement; the plurality merely opines state's definition of a crime must be tested against due process clause. Because does not Seymour claim the legislature's definition "theft" is or the 943.20(14)(b), Stats., power "freakish" beyond Schad is our the irrelevant case. legislature, simply Our in case is limited to determining this inquiry Did the legislature's legislature the intent: intend "transfers," alternatives, "uses," the "con statutory or mere means of possession" ceals" "retains are offense, legislature or did the committing intend to define offenses? We believe that independent State v. in the Wisconsin Court decisions Supreme Genova, 141, (1977), Wis. 2d 252 N.W.2d 380 and v. State 2d 378 N.W.2d 883 Tappa, Wis. (1985), legislature that we conclude that the require 943.20(1)(b), Stats., enumerate inde intended in sec. mere the offenses and not means pendent be offense theft committed. may

Genova 943.20(1)(a), sec. Tappa construed in Stats., persuasive interpreting but enacted Stats. The two statutes were 943.20(1)(b), of the criminal as of the revision simultaneously part 1955. 696, Laws of code. Chapter trial Genova, court

In the court concluded that charging defendant complaint dismissed a incorrectly The 943.20(1)(a), Stats. defendant theft under sec. with of another con transferring property charged trial interpreted to the statute. The court trary take property first as defendant requiring statute one then, addition, engage from its owner and The kinds of conduct. supreme listed alternatively argument state's accepted court disagreed be in the not disjunctive, statute should read conjunctive: be read the statute should argues State "ors" in the statute: takes following appeared

if the or transfers or conceals or away, and carries uses interpretation agree retains. We with the State's 943.20(1)(a), violation of sec. the statute that a Stats., taking from the owner. need not include a Genova, 145, Wis. 2d at 252 N.W.2d at 382 (empha 77 "An individual who The court said that: original). sis in takes, uses, transfers, con one of those any does acts — violate the statute." possession ceals or retains —would Id. at 147, 252 N.W.2d at 384. defendant was convicted of three Tappa,

In the 943.20(1)(a), Stats.: one count counts of theft under sec. trans stolen and two counts of concealing property such Defendant moved to dismiss property. ferring is the Multiplicity charg information multiplicitous. Tappa, counts. 127 of a offense ing separate The court 161, rejected 2d at 378 N.W.2d at 885. Wis. the information was mul- argument defendant's 943.20(1)(a) "is to be The court said that sec. tiplicitous. Id. at 167-68, 378 N.W.2d read as five acts." disjunctive Genova, 77 Wis. 2d at 145, 252 N.W.2d at (citing at 888 382-83). construed Jackson: The court also Jackson decision does not stand for the proposi- plead only one of the five

tion that the state must Jackson requires each elements of the theft statute. complaint allege only or count in an information disjunc- elements of the theft statute if a one of the terms. charge non-synonymous tive would use disjunctive separate terms describes a Each of deprivation. type property way It in no "theft" prosecution charges limits the number may file. added).

Id. at 168, (emphasis 378 N.W.2d at 889 mul- To determine whether the information was Tappa whether tiplicitous, court considered transfer and concealment were different sufficiently justify charging them as separate offenses. Id. at 168- 69, 378 N.W.2d at 889. The court said that: "A defen dant ought tried, not be charged, or convicted for offenses that are alike substantially when are a they Id. part general same transaction or episode." at 169, 378 N.W.2d at 889 Eisch, State v. (quoting Wis. (1980)). 2d 25, 34, 291 N.W.2d 800, 805 The court con cluded transfer concealment were significantly different acts: "We hold that a common sense reading 943.20(1)(a), the statute [sec. Stats.] supports conclusion that transfer and concealment offenses." separate 127 Wis. 2d at Tappa, N.W.2d at 890. The court therefore concluded that state's right to allege multiple under sec. charges 943.20(l)(a) "is subject dis prosecutorial charging Id. at cretion and to judicial discretion sentencing." 171, 378 N.W.2d at 890. Tappa State, discussed Manson v. court also (1981). In Manson the 413, 304

101 Wis. 2d N.W.2d 729 defendant contended that the trial court's instruction on armed him of robbery deprived a unanimous verdict. The court looked at 943.32(1), (1977), Stats. determine whether the statute defined two offenses: force, robbery by use of and threat of immi robbery by nent use of force. Id. at 419, N.W.2d at 732. The court said: 943.32(1)

[I]f we determine that sec. defines two jury unanimity crimes then it is clear that as to each crime is to convict the required defendant of each If crime. we determine the statute creates a crime, single we must then determine whether the jury may be disjunctive instructed the without being jury unanimity required instructed that is to each alternative.

Id. the determination concluded that The court or two sepa- crime single the statute defined whether Id. at 422, intent. on legislative depended rate crimes to the determi- factors relevant at 734. The 304 N.W.2d "(1) of the language the intent are: of legislative nation (2) the context of history the statute; legislative (3) conduct; and proscribed nature of the statute; for the (4) punishment of multiple the appropriateness Id. conduct." these in relation to statute analyzing

After reading sense that "a common factors, court stated fair to offenders is reasonable and of the statute Id. at is intended." is that one offense society concluded The court further at 736. 304 N.W.2d force imminent use of the threat of of force and the use ele but comprise similar sufficiently were Id. at 429-30, 304 robbery. of armed ment of the offense that: "The essence The court said at 737. N.W.2d owner to part compelling is robbery offense from defen resulting under compulsion his property of the owner against person conduct directed dant's Id. presence." is in the owner's another who against stated further at 737. The court 430, 304 N.W.2d at between to decide obliged not be that, "The should committing ways statutorily prohibited two indistinguish practically if the two ways crime able." Id. an concluded The court therefore means by as to the unanimity instruction requiring crime of rob the defendant committed Id. was not bery required. transfer, conceal use, does not argue

The state indistinguish- are "practically retaining possession or statutory however, contends, able." It under theft committing for alternatives different as not so 943.20(l)(b), Stats., significantly require jury unanimity precise on the manner in which the statute was violated. The state relies on (11th 1984), Acosta, United States v. 748 F.2d 577 Cir. (6th McPherson, and United States v. 782 F.2d 66 Cir. 1986). In cases, each these the defendant was con- violating § victed of 18 U.S.C. 656 and attacked the

jury grounds instruction on the that the instruction jury authorized the to return a non-unanimous verdict. penalized "embezzles, The statute purloins whoever abstracts, willfully misapplies any moneys, [a member] funds or credits of bank In each ...." case jury according was instructed to the statute. In rejected each case the court attack on the defendant's In Acosta, instructions. the court held that the single generic offense, statute "embraces" but a "the willfully taking money offense of of a bank one of employees, may its which offense be committed sev- (a ways: embezzling taking), eral abstracting alternative (a (a purloining taking), taking), and mis- (a applying taking)." Acosta, 748 F.2d at 579. In Appeals McPherson, the Sixth Circuit Court of reached the same result as the Acosta court.

Each court considered that its decision was con- by Turner, Turner, trolled 396 U.S. 398. In the second charged under 26 count of an indictment defendant knowingly purchasing, dispensing § U.S.C. 4704 with distributing original heroin not in or from the stamped package. Court held: The to her- respect

The conviction on Count with general . rule is that oin must be affirmed. . . an indict- guilty

when a returns verdict on conjunctive, several acts in the charging ment did, if the Turner's indictment the verdict stands respect any one of the evidence is sufficient charged. proved acts Here the evidence Turner was case with

distributing heroin. The status of the allegations to the is irrelevant to the respect other of validity Turner's conviction. at

396 U.S. 420-21. Acosta and McPherson our conclusion. support statute the court found to Each case involved a misapplication synonymous the offense allege Here, if not we are presented persuasive, terms. decisions hold- Supreme Wisconsin Court precedential, "uses," "transfers," "conceals" and the words ing are not synonyms defining "retains possession" theft, offenses. In the separate but describe offense intended legislature of evidence that the to use absence 943.20(l)(b), Stats., differently than these words sec. Stats., 943.20(l)(a), these in sec. we can- it uses words words were intended to describe not conclude that such offense, rather committing mere means same have examined offenses. We describing separate than comments the Criminal Code Interim Committee's 943.20, Stats., sections, con- including the code 696, 1955], Laws of 814, [Chapter tained in bill No. A. also Melli and intent. See such and find no evidence of the Pre- Comparative Analysis Remington, Theft —A Code, 1954 WlS. L. sent Law and the Criminal Proposed Rev. 253 Criminal Misappropriation (1954); Baldwin, MARQ. (1960-61). L. Rev. I, in Wisconsin —Part for sec. development instructions 943.20(l)(b), confirms our conclusion that Stats., intended the statute to state distinct legislature violating rather mere stat- offenses than means of Theft by Employe, ute. Wisconsin JI —Criminal (Embezzlement), was originally pub- Trustee Bailee lished in 1966. The instruction read in part: 943.20(l)(b) of the

Theft, in sec. as defined by one is committed Criminal Code of Wisconsin having . . . (employment)) his . . . (by who virtue of intentionally money . . . custody or of possession (conceals) (retains (uses) of) (transfers) possession consent, con- the owner's (money).. such . without with intent to convert authority, to his and trary except any person use of other his own use or to the the owner. a reasonable doubt you beyond

If satisfied defendant, by that the from the evidence in this case or (employment)... possession had virtue of his ... (describe question), that custody property in (con- (used) (transferred) intentionally defendant cealed) (retained of) property such possession contrary to his the owner's consent without defendant you should find the authority . . . then (com- (information) in the charged of theft as guilty plaint) .... satisfied, you then

If, however, not so you are (not (not guilty guilty) must find the defendant theft). omitted). (italics Footnote in footnotes original;

Id. "The last sentence stated: instruction's eleven to the (in be should parentheses) instruction appropriate committee instructions . . ." Plainly, given. 943.20(l)(b), in defined theft, considered the court offenses on which consisted of distinct Stats., instruct as appropriate. should revised and JI —Criminal

Wisconsin Instructions Jury the Criminal approved revision involved The revision 1989. September Committee reference to changes, editorial nonsubstantive Foot- the footnotes. an value, updating finding in part: note two states para- in the first summary of this offense instruction, and the elements

graph, rather simplification of a considerable represent "Uses" was . . . statutory definition. complex "transfers," "conceals" than selected rather carry these all possession of." Rather than "retains the instruc- throughout parentheses alternatives more efficient concluded it was tion, the Committee ought to be simpler statement to select cases. cover the most common enough to general (1990). It is 1444, at n.2 J I—Criminal Wisconsin by sim- did not consider clear that the committee plifying making a substantive it was the instruction change. therefore, not, does The 1989 revision interpretation change represent in the committee's 943.20(l)(b), Stats. sec. they precedential, jury not instructions are

While authority. persuasive 175 Wis. 2d Olson, State v. Eire (1993). The 661, 667 n.10 n.10, 498 N.W.2d 628, 642 jury instruc- 943.20, Stats., the of sec. construction first instructions drafted the tions committee which especially persuasive two because law is under the new served on of the committee of the five members Advisory in 1953-55 Committee, which Code Criminal prepared it was ulti- in the form in which the statute mately 150, 2d at 252 Genova, 77 Wis. enacted. See Attorney Gen- addition, In Assistant N.W.2d at 385.4 J. Professor Frank A. Platz and eral William 4 Genova, Reming Frank J. in Professor In his amicus brief proposed not have argued the committee would ton that the Crimi former members of theft instruction unless the four agreed the instruction Advisory that nal Code Committee Advisory Committee and purpose properly construed 150, 252 at 385. statute. 77 Wis. 2d at N.W.2d the drafters of the 322 on the commit- advisory served who also Remington, instruction advisers to as technical tee, served Id. committee. 943.20(l)(b), Stats., rela- sec.

After analyzing to the determination relevant tion to the factors the legisla- no indication that intent, we find legislative be construed that section is to intended that ture conclude 943.20(l)(a), Stats. We from sec. differently 943.20(l)(b) intended to the legislature and not theft by employee, offenses of define distinct Our conclu- offense. committing means of mere trial at a new given be Seymour requires sion need instructed. We shall be properly by Seymour; raised additional issues not address the not which may trial error alleged relate to these issues recur. cause reversed

By Judgment Court. — remanded. relies majority

DYKMAN, (dissenting). J. 155, 2d v. 127 Wis. Tappa, State cases, a trilogy upon Genova, v. Wis. 2d (1985), State 77 378 N.W.2d State, v. and Jackson (1977), 252 N.W.2d (Ct. 1979), authority App. N.W.2d 685 1, 284 2dWis. certain denied Seymour for its conclusion L. Ed. 2d Arizona, 501 U.S. —, 115 v. But Schad rights. be used analysis that a different (1991),1 requires 555 una to jury that the right contention a analyzing when statute a because was violated nimity being a crime as define instructions jury corresponding ways. different several, conceptually committed 1 are to noted, to this case citations otherwise Unless joined by by Souter and Justice opinion delivered plurality Kennedy. Rehnquist and Justices O'Connor Chief Justice 323 Schad identifies this issue as governed by one clause of the fourteenth amendment to due process 115 States Constitution. L. Ed. 2d at 564-66. United Jackson, United of In we the rationale accepted (5th 1977), Gipson, States v. F.2d 453 Cir. as to cases. But Schad does not Gip accept jury-unanimity son's approach. course, example is to tempting,

It of follow Gipson single searching of the extent of for some question serve to answer the fac- criterion will convinced, however, of ing us. We are trying impracticability any of derive test specificity the level definitional for of and verdict Constitution, by think that permitted and we speci- instead of such test our sense of appropriate a ficity concept process is a due distillate of its demands fundamental fairness.... for Schad, L. 569. Ed. 2d at Schad

Both the and the concurrence plurality acts or freakish of which identify generic groupings due clause if process offend the arguably would on which a required agree not the method were permit- the statute. A crime which defendant violated embezzlement, jury findings ted combination any murder, evasion or lit- driving, tax burglary, reckless Schad, Ed. 2d or or robbery 115 L. at tering, Schad, return, Ed. 2d at 577 to file tax 115 L. failure (Scalia, J., legislative concurring), examples not survive a due chal- might process extremes could 940.225(1), (1985-86), Stats. have Section lenge. unanimity if challenge, to such a open been statute, or That by instruction verdict. required not as, assault first-degree defined sexual now repealed, person with a other sexual contact among things, as nonconsensual younger, or years age twelve use, or threat of of a use, danger- contact sexual ous weapon. Schad is test deferen- developed by highly

The new "The undertaken with a threshold enquiry tial. is to determine legislative competence presumption ends between means and relationship appropriate Schad, L. Ed. in the elements of a crime." defining 2d for this "Respect legislative competence at 569. restraint ... against judicial second-guessing counsels Court, it Id. ." is recognizing impossible test two means determining define a for when single sepa- are as two exemplify inherently so disparate follows: offenses, inquiry rate defined the new particular way defining a crime Where a State's use, it is long history, widespread or is in has a be to demon- unlikely that defendant will able proof shifted the burden of strate that State has offense, or is an inherent element as to what multiple as a crime offenses has defined Conversely, def- inherently separate. a freakish finds no of a crime that inition elements in criminal law of other analogue history will the defendant's burden. jurisdictions lighten omitted). (footnote Id. at 570-71 Schad's historical I conclude analysis,

Using freakish 943.20(1)(b), Stats., not contain a does that the use I also conclude definition of embezzlement. "retains "uses," "transfers," "conceals" the terms history have words, long of," or similar possession somewhat, shows abridged That history, Wisconsin. the following. 22-26 define ch. secs. (1849), Stats.

Revised "embez- words using of embezzlement various sorts "take," "dispose zle," convert," "sell" "fraudulently (1913), "embezzle," of." Section Stats. uses convert," "take," "fraudulently "carry away" and 343.20, (1929), "secrete." Section Stats. uses the words "embezzle," convert," "take," "fraudulently "carry and "secrete." away" 943.20(l)(b), Section Stats. (1955), the uses words found statute. present concepts using,

The transferring, concealing of another's retaining possession property have been a of Wisconsin part criminal law since statehood. Then, now, as these have been stated in the concepts disjunc- tive. Nor is the Wisconsin definition of embezzlement embezzlement unique. Michigan prohibits using of," words "convert," "take" and "secrete" dis- "dispose Michigan Comp. (West junctively. 750.174 § Laws Ann. 1991). Illinois embezzlement in its theft stat- prohibits Comp. ute, III. 720 ILCS 5/16-1 Stat. Ann. (West/Smith-Hurd 1993), using the words "obtains or exerts unauthorized control over." Iowa defines embez- zlement theft, the words using "using," "disposing of," "conceals" and in the "appropriates" disjunctive. (1993). 714.1 Minnesota also defines § Iowa Code theft, embezzlement as using "takes," "uses," the words "transfers," "conceals" and "retains of' in possession the disjunctive. 609.52, subd. 2. § Minnesota Stat. Ann. (West 1993). 1987 & Supp.

All of the states surrounding Wisconsin use more word, than one in the disjunctive, to embezzle- prohibit ment. The words used by these states are similar or identical to the words to embezzlement pertaining found our statute theft, 943.20(l)(b), prohibiting "uses," Stats.: "transfers," "conceals" and "retains pos- session of."

I conclude that under Schad's "long history" "widespread tests, use" Seymour was not deprived due of law the process trial court's refusal by instruct it be unanimous as to which acts that must Seymour committed. Schad makes it clear although ways once, it all at state cannot have defining, great have latitude in their criminal states attorney prose- only It is a district wishes to law. where generic statutes which have a or freakish cute under may which a crime be com- combination methods caution, must and then mitted that he she exercise required unanimously only if is decide not by the defendant. the method used majority's response to Schad is conclude Seymour not is irrelevant because does case legislature's in sec. that the definition of theft claim 943.20(l)(b), Seymour is freakish. does not Stats., in the claim. But the Schad court held that make that claim, a fourteenth amendment absence of such permitted a a not offended where state stating two different factual without which of convict guilty at verdict. it used to arrive its circumstances had Seymour posits might problem he is that The that though jurors did not even twelve have been convicted particular agree crime. his actions constituted problem the state defines the occurs, whether That or as a means of commission "crime" alternative disjunctive whenever a offenses, elements or series requirement given of unanim- is without a instruction ity. no effect on the distinctions have These jurors signifi- And the so instructed. deliberations point under these is that a conviction of Schad cant process due clause of does not offend the circumstances amendment. the fourteenth argument the same in Schad made defendant requirement Seymour una- makes —the setting

nimity aside. Five his conviction necessitated rejected Supreme assertion, Court members process challenge. identifying it as a due majority, writing I for a I now address Were would Seymour's dissent, of error. But other assertions why explanation I would an of additional reasons Seymour's judgment of conviction has little affirm analysis such is out- value. The slim benefit of weighed by an judicial the efficient allocation of resources. my Accordingly, I for dif- limit this dissent reasons fering majority's jury-unanimity analysis.

Case Details

Case Name: State v. Seymour

Court Name: Court of Appeals of Wisconsin

Date Published: May 20, 1993

Citation: 502 N.W.2d 591

Docket Number: 91-2962-CR

Court Abbreviation: Wis. Ct. App.