State v. Davis
| Decision Date | 22 October 1992 |
| Docket Number | No. 91-0759-CR,91-0759-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Leola DAVIS, a/k/a Lee Al Sharaah, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
For the defendant-appellant the cause was submitted on the briefs of Morris D. Berman of Giesen & Berman, S.C., of Madison.
For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen.
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
Leola Davis appeals from a judgment convicting her of two counts of obtaining telephone service by fraud in violation of sec. 943.45(1)(e), Stats. She raises two issues: (1) whether the two-count charge was multiplicious; and (2) whether the trial court improperly admitted "other wrongs" evidence. We decide both issues against Davis and affirm the convictions.
Davis was charged with opening two telephone service accounts under fictitious names and running up nearly $7,000 in unpaid charges. She moved to dismiss the information on grounds that the charges were multiplicious, charging her twice for the same conduct, thereby violating her right not to be placed twice in jeopardy for the same offense. The trial court denied the motion and Davis was convicted on both counts. Other facts will be discussed in the body of the opinion.
The state may not charge a single offense in separate counts, because doing so would violate the double jeopardy provisions of the United States and Wisconsin Constitutions. State v. Tappa, 127 Wis.2d 155, 161, 378 N.W.2d 883, 885 (1985). We employ a two-part test to determine whether a charge is multiplicious. We look first to whether the offenses are "identical in law and fact." Id. at 162, 378 N.W.2d at 886. If they are, charging the defendant with more than one crime would place him or her twice in jeopardy for the same act. If it is determined that the two are not identical in both law and fact, the charges may still be multiplicious, and thus invalid, if it is shown that the legislature intended the "allowable unit of prosecution" for the offense to be only a single count. Id. at 164, 378 N.W.2d at 887.
Since Davis was charged with two violations of the same statute, the charges are the same in law. Whether they are the same in fact, however, depends upon whether one count requires proof of an additional fact which the other does not. Tappa, 127 Wis.2d at 163, 378 N.W.2d at 886. It is an additional fact test, not an additional element test. State v. Hamilton, 146 Wis.2d 426, 437, 432 N.W.2d 108, 113 (Ct.App.1988).
The first count of the information charged Davis with obtaining telephone service by fraud when she opened an account in the name "Cheryl Sloan" on October 8, 1985, and between that date and February 3, 1986, ran up more than $6,000 in unpaid charges. The second count charged Davis with the same offense for opening a second account on November 19, 1985, this one in the name and failing to pay $900 in charges on that account.
She argues that the two counts are multiplicious because there was but a single scheme--to obtain telephone service in the name of others--and that "divi[ding] that unitary scheme into multiple charges was an artificial fractioning of a single course of conduct." We disagree.
We note first that Davis's argument would demand a single charge if Davis had, for example, fraudulently obtained service from the General Telephone Company in La Crosse under the name Cheryl Sloan in 1985 and then, two years later, defrauded Wisconsin Bell in Milwaukee by charging calls to a telephone credit card without the card owner's consent. Such a result makes no sense.
Here, while there is some overlap, the offenses were separated in time. Davis opened the S. & L. account more than a month after she opened the Sloan account, and she continued to obtain service on that account for more than a month after the "Sloan" offense was completed. "Under Wisconsin law, offenses ... are different in fact if [they] are either separated in time or are significantly different in nature." State v. Stevens, 123 Wis.2d 303, 322, 367 N.W.2d 788, 798, cert. denied, 474 U.S. 852, 106 S.Ct. 151, 88 L.Ed.2d 125 (1985).
Nor are offenses the same in fact when each involves a separate volitional act. "Where there is a separate volitional act, there is a basis for a separate charge." State v. Bergeron, 162 Wis.2d 521, 535, 470 N.W.2d 322, 327 (Ct.App.1991). In Tappa, the defendant was charged with concealing the movable property of another and with transferring the property--all under the same statute. The supreme court rejected his multiplicity defense, stating: 127 Wis.2d at 170, 378 N.W.2d at 890 (emphasis added).
Here, Davis, having opened one account in a false name and having received telephone service on that account for over a month, settled upon a second false name and opened and obtained unpaid-for service on a second account. These are separate and distinct volitional acts and thus formed an adequate basis for a separate charge.
It also required proof of different facts. To prove the first count, the state was required to establish that Davis falsely ordered telephone service in the name of Cheryl Sloan and failed to pay for it. To prove the second, the state had to prove that Davis falsely ordered and failed to pay for services on a different line in a different name--S. & L. Financial--"a significantly different evidentiary fact that is not required or pertinent to proof on the [first] count[ ]." State v. Sauceda, 163 Wis.2d 553, 578, 472 N.W.2d 798, 808 (Ct.App.1991), rev'd, 168 Wis.2d 486, 485 N.W.2d 1 (1992). We conclude that the two offenses are not the same in fact.
Moving to the second element of the test, we may look to the language of the statute, its legislative history and context, the nature of the proscribed conduct, and the propriety of multiple punishments for the defendant's conduct, to determine whether, despite the fact that the offenses are not identical in both fact and law, the legislature nonetheless intended to limit the allowable unit of prosecution to a single charge. Tappa, 127 Wis.2d at 165, 378 N.W.2d at 887.
Section 943.45(1), Stats., penalizes one who "obtains ... telecommunications service" through a "contrivance ... or [other] means to avoid payment of lawful charges." If the "avoid[ed]" charges do not exceed $500, the offense is a misdemeanor; if they exceed that amount, it is a felony. The concluding subsection of the statute, sec. 943.45(4), then states: "When there has been more than one unlawful obtaining ... by an offender ... the aggregate of the charges for the ... service unlawfully obtained ... shall determine the grade of the offense."
Davis and the dissenting judge read sub. (4) as plainly evincing the legislature's intent that when a defendant engages in more than one act of fraudulently obtaining telecommunications service, the aggregate amount of the unpaid charges for those services "shall determine the grade of the offense." Such a reading, of course, writes the nonitalicized language out of the statute.
We do not see sub. (4) as defining the offense. It exists only to provide a means of distinguishing between two levels of criminal culpability and punishment for the offense of fraudulently obtaining telecommunications service. It allows the charges for the service so obtained to be aggregated in order to determine whether a particular offense will be processed as a misdemeanor or a felony. It states plainly that the aggregate of the unpaid charges "shall determine the grade of the offense," not the offense itself. It neither defines the offense nor mandates lumping two separate and distinct frauds--two separate and distinct offenses--into a single charge. 2
We agree with the state that the allowable unit of prosecution in this case is each separate plan or scheme to obtain telecommunications service by fraud. And the value of individual calls made pursuant to or in connection with each separate plan or scheme to defraud may be aggregated to determine the grade of the offense--whether it is a felony or misdemeanor.
The state, pursuing its case against Davis for fraudulently obtaining telephone service, sought to introduce evidence of eight prior instances in which Davis had obtained goods or services without paying for them. The trial court granted the state's request with respect to two such incidents in which she had obtained or retained goods by misrepresenting her identity, and it denied the request with respect to the other incidents because they simply involved Davis obtaining goods and not paying for them and thus lacked the element of active misrepresentation or misidentification.
The challenged testimony concerns two incidents. In one, an employee of a door-to-door vacuum cleaner sales organization testified that when he went to Davis's house to reclaim a machine sold to her after she had been unable to secure financing, she lied about her identity--telling him she was only a babysitter, and that Davis was not at home. In the second, an employee of a radio-television dealer testified that when she attempted to secure the return of a rental video recorder, Davis stated that her cousin, Lee Al Sharaah, had taken the recorder to California and was going to ship it back to Wisconsin at some later time. 3
Section 904.04(2), Stats., allows the admission of otherwise inadmissible character evidence if it is offered not to show that the defendant...
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