State v. Copening

• Decision Date: 08 July 1981
• Docket Number: No. 79-246-CR,79-246-CR
• Citation: 103 Wis.2d 564,309 N.W.2d 850
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Roy W. COPENING, a/k/a Amos Wade, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 850

309 N.W.2d 850

103 Wis.2d 564

STATE of Wisconsin, Plaintiff-Respondent, v. Roy W. COPENING, a/k/a Amos Wade, Defendant-Appellant.

No. 79-246-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 28, 1981.

Opinion released July 8, 1981.

Opinion Filed July 8, 1981.

Richard L. Cates, State Public Defender, and William J. Tyroler, Asst. State Public Defender, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., and Jerome S. Schmidt, Asst. Atty. Gen., for plaintiff-respondent.

Before DECKER, C. J., VOSS, P. J., and BROWN, J.

BROWN, Judge.

Roy Copening was convicted of conspiracy to commit theft by fraud, contrary to secs. 943.20(1)(d) and (3)(b) and 939.31, Stats. Upon this appeal, ¹ Copening raises numerous challenges to the validity of the criminal complaint and information. Because we conclude Copening's arguments are uncompelling, we affirm the judgment of conviction.

A criminal complaint filed on March 15, 1978 alleged the following facts. On March 3, 1978, Alvin Jones opened a checking account at the First National Bank of Kenosha under the title of "Jones Plumbing Repair Service." Jones deposited $50 in the account. Subsequently, Jones and an unidentified man deposited a $500 check in that account, receiving $300 cash from the bank. On March 6, Jones and an unidentified man deposited a second $500 check into the First National-Jones Plumbing account, receiving $200 cash. Both deposited checks were drawn on O'Hare International Bank and were found to have insufficient funds in their accounts. Also on March 6, Jones opened a checking account at the Brown National Bank in Kenosha. This account was also titled "Jones Plumbing Repair Service," and Jones deposited $50 in that account. Jones withdrew $100 from the Brown National Bank account on March 8.

Copening, using the name Amos Wade, opened a checking account on March 8 at the West Kenosha State Bank. The account was titled "Wade Plumbing Service."

The defendant deposited checks totaling $1,500 in the account and received $100 in cash. The deposited checks were drawn on the Federal Bank of Chicago and were subsequently returned for insufficient funds.

On March 8, Copening, purporting to be Wade, deposited in the Brown National-Jones Plumbing account a $1,000 check made payable to Jones Plumbing Repair Service and endorsed by Jones. The complaint states the check "was drawn on the account of the West Kenosha State Bank." Although not specifically stated, it is clear from the complaint and testimony at the preliminary examination that the check in question was drawn on the West Kenosha-Wade Plumbing account with Amos Wade as maker. At the same time, Copening presented a personal check for $100 dated March 8, 1978 with Jones as maker and drawn on the Brown National Bank. Copening received $100 in cash from the bank. On March 10, Copening was arrested at the West Kenosha State Bank when he attempted to cash a personal check for $450 with Amos Wade as maker payable to Wade Plumbing Service.

The complaint further alleged that both businesses were nonexistent and that Copening is not Amos Wade. It lastly alleged that Brown National Bank, First National Bank and West Kenosha State Bank were "deceived and defrauded by said false representations" made, with intent to defraud the banks, by Jones and Copening who knew the statements to be false. The complaint cited secs. 943.20(1)(d) and (3)(b) and 939.32, Stats., the theft by fraud and attempt statutes.

On appeal, Copening challenges the sufficiency of the complaint and information. Because Copening attacks each document on several grounds, we will deal with his contentions seriatim.

Copening contends the complaint fails to confer personal jurisdiction because it is duplicitous and ambiguous. ² Copening moved the trial court to dismiss the complaint because "it fails to set forth the essential facts constituting the offense charged, and further fails to set forth such facts from which a magistrate could infer that the defendant committed the crime with which he stands charged." Basically, Copening challenged the complaint on probable cause grounds.

An objection based on a defect in the institution of a criminal proceeding must be raised before trial by motion or be deemed waived. Lampkins v. State, 51 Wis.2d 564, 570, 187 N.W.2d 164, 167 (1971); sec. 971.31(2), Stats. The defects asserted by Copening on appeal were not presented to the trial court. Section 971.30(2), Stats., requires that motions "be in writing and shall state with particularity the grounds therefore ...." (Emphasis added.) Copening's failure to present his argument to the trial court precludes appellate review as a matter of right. Bailey v. State, 65 Wis.2d 331, 350, 222 N.W.2d 871, 881 (1974).

This court may, in certain circumstances, address an issue otherwise waived. The supreme court in Maclin v. State, 92 Wis.2d 323, 284 N.W.2d 661 (1979), stated:

This question was raised for the first time in the briefs that are before us on this appeal. We have frequently said that even the claim of a constitutional right will be deemed waived unless timely raised in the trial court. Cordes v. Hoffman (1963), 19 Wis.2d 236, 120 N.W.2d 137; Goyer v. State (1965), 26 Wis.2d 244, 131 N.W.2d 888; Rafferty v. State (1966), 29 Wis.2d 470, 138 N.W.2d 741. We have, however, concluded that this court may nevertheless decide a constitutional question not raised below if it appears in the interests of justice to do so and where Id. at 328-29, 284 N.W.2d at 664, quoting Bradley v. State, 36 Wis.2d 345, 359-59a, 153 N.W.2d 38, 44, 155 N.W.2d 564 (1967).

there are no factual issues that need resolution.

Despite Copening's failure to raise the particular grounds in the trial court, we will reach the merits of his argument. Both duplicity and ambiguity of the complaint raise constitutional implications conceivably arguable in a post-conviction motion under sec. 974.06, Stats. In the interests of efficient judicial administration, we choose to address Copening's contentions. We also note the paucity of precedent involving a factual situation where the defendant is charged with a continuing conspiracy to commit theft by fraud. The arguments raised by Copening are likely to be raised by other defendants involved in similar check kiting schemes. Therefore, we will address the merits of his claims.

DUPLICITY

Copening first contends the complaint is duplicitous because it joins several thefts in a single offense. He urges this court to view the fraudulent receipts of cash from the various banks as distinct offenses. The state contends the complaint reflects one continuous transaction with a single criminal design. The state points out that Copening and Jones were engaged in what is commonly known as "check kiting." Such a scheme necessarily involves several preliminary fraudulent representations to set up the various bank accounts between which the checks are passed. These several acts do not, the state contends, detract from the single design to commit theft by fraud.

A complaint is duplicitous when it joins two or more distinct and separate offenses in a single count. Harrell v. State, 88 Wis.2d 546, 555, 277 N.W.2d 462, 465 (Ct.App.1979). A duplicitous charge is defective because the jury may find the defendant guilty without the state proving each element of the offense beyond a reasonable doubt. Jackson v. State, 92 Wis.2d 1, 11, 284 N.W.2d 685, 689-90 (Ct.App.1979). However, "where an offense is composed of continuous acts it may be charged as one offense without rendering the charge duplicitous." Blenski v. State, 73 Wis.2d 685, 695, 245 N.W.2d 906, 912 (1976). The nature of the charge is a matter of election on the part of the state. State v. George, 69 Wis.2d 92, 100, 230 N.W.2d 253, 257-58 (1975).

The complaint alleged attempted theft by fraud. In some instances, theft by fraud may be accomplished by a single act. In other cases, when a defendant is operating an ongoing fraudulent scheme, it may be necessary to allege several individual transactions which, considered together, reflect the fraudulent operation. We can conceive of no other manner in which a check kiting operation, such as involved here, can be alleged. ³ Although each check passed represents a distinct taking, it is within the state's discretion to charge the entire scheme as a single offense. The single criminal design to commit theft is inferable from the complaint.

Copening next argues that the complaint was so ambiguous that he was deprived of adequate notice of the charges and accusations against him. Like his previous argument, Copening has no right to appellate review of the issue because it was not raised in the trial court. However, for the reasons stated above, we choose to address the merits of his argument.

A defendant's right to be informed of the nature and cause of the accusations is guaranteed by the sixth amendment to the federal constitution and Art. I, § 7 of the Wisconsin Constitution. The test to determine whether a complaint meets that Copening claims the complaint was vague as to which of his actions formed the basis for his culpability and as to which banks were defrauded. He argues there was no notice of which, if any, acts of others were to be imputed to him at trial. He further states he was unable to determine which statements were allegedly fraudulent or relied on by the banks.

constitutional standard is twofold: (1) whether the accusation is such that the defendant can determine whether it states an offense to which he is able to plead and prepare a defense, and (2) whether conviction or acquittal is a bar to another prosecution for the same offense. State v. George, 69 Wis.2d at 97, 230 N.W.2d at 256; Holesome v. State, 40 Wis.2d 95, 102, 161 N.W.2d 283, 287 (1968).

The court in Blenski v. State, 73 Wis.2d at 696, 245 N.W.2d at 912, ruled that when charging a continuous offense and the charge is stated in the...