State v. Lippold
| Decision Date | 22 July 2008 |
| Docket Number | No. 2007AP1773-CR.,2007AP1773-CR. |
| Citation | 2008 WI App 130,757 N.W.2d 825 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Kenneth W. LIPPOLD, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL> |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Michael J. Losse, assistant attorney general, with oral argument by Michael J. Losse.
Before CURLEY, P.J., WEDEMEYER and KESSLER, JJ.
Kenneth W. Lippold appeals the judgment convicting him, following a jury trial, of seven counts of receiving stolen property, as a party to the crime, contrary to WIS. STAT. §§ 943.34(1)(bm) (created effective Feb. 1, 2003, 2001 Wis. Act 109) and 939.05 (2001-02).1 Lippold argues that the trial court erred in failing to dismiss the charges against him because the State never established venue in Milwaukee County. He submits that "no direct evidence was presented that [he] received the property in Milwaukee County or that he transported the property through Milwaukee County." Because an element of the crime "receiving stolen property" is that the property must be stolen, and here, that act occurred in the County of Milwaukee, the State proved venue beyond a reasonable doubt. Moreover, at trial, ample circumstantial evidence was presented that Lippold possessed the stolen property in Milwaukee County. Consequently, we affirm.
¶ 2 On February 21, 2006, Lippold was charged with one count of receiving stolen property, contrary to WIS. STAT. § 943.34(1)(c) (amended effective Feb. 1, 2003, 2001 Wis. Act 109). Approximately one year later, the State filed an amended information charging Lippold with seven counts of receiving stolen property, as a party to a crime, contrary to WIS. STAT. §§ 943.34(1)(bm) and 939.05.2
¶ 3 The charges arose when St. Luke's Hospital discovered numerous respirators missing prior to conducting routine preventative maintenance on them. Investigators from St. Luke's and the police began to trace what happened to the respirators using their serial numbers. The investigation led to an Illinois company that claimed to have purchased some of the respirators directly from Lippold. Lippold was a salesman of medical devices and equipment, and in this capacity, he had access to the hospital's respirators. In addition, a shipping label was recovered that was used to ship one of the missing respirators to a purchaser in Missouri. The label bore Lippold's Wauwatosa address where he lived and stored medical devices and equipment in his garage. Records later established that the equipment was sold between November 2003 and November 2004.
¶ 4 As part of the investigation, Lippold was interviewed by a hospital investigator and a police detective and was asked whether he had information regarding the missing respirators. Lippold claimed that he bought the respirators from a guy named "Steve" at a restaurant in Kenosha County. Lippold was unable to provide any contact information for Steve, or any information other than a very general physical description, that might aid investigators in locating Steve. The hospital investigator testified that during the interview, Lippold offered to "make it right" to the hospital by paying them $70,000, roughly the cost of the missing equipment. Lippold was later terminated from his employment.
¶ 5 Lippold pled not guilty and requested a jury trial. During the jury trial, after the State rested, Lippold moved to dismiss, challenging the correctness of charging and trying this case in Milwaukee County. His attorney argued that nothing occurred in Milwaukee County, as Lippold told the police he received the property in Kenosha County. The trial court instructed the jury on the question of venue and the jury was asked to "consider whether the crime was committed in Milwaukee County." However, no specific question on the verdict asked the jurors to determine if venue was proven, and, if it was, whether it was proven by direct or circumstantial evidence. The jury returned verdicts convicting Lippold of all seven counts.
¶ 6 Following the jury trial, the trial court heard argument once again as to whether venue was properly established in Milwaukee. Lippold contended that the fact the property was stolen in Milwaukee was insufficient evidence of venue because the element of receiving stolen property, which requires that the property be stolen, is not an "act." Lippold's attorney argued that the only counties where a trial could be held were counties "where the property [was] actually received or transported through." His attorney also argued that the evidence connecting the respirators to Milwaukee County via a shipping label for one of the stolen pieces of equipment, which bore Lippold's home address in Wauwatosa, was insufficient because there was no evidence presented as to which UPS store handled the shipping. He contended that people often list their home addresses when shipping goods, but that does not mean that the shipped item actually was at the home of the sender.
¶ 7 The trial court determined that because the respirators were stolen in Milwaukee County, that was sufficient evidence to connect Milwaukee County to the stolen property and denied the motion. This appeal follows.
¶ 8 Lippold contends that the trial court erred when it denied his motion to dismiss because no direct evidence was presented during the trial that he received the equipment in Milwaukee County or transported it through the county. Further, he argues that when a person is charged with the crime of receiving stolen property, the county where the property was stolen is insufficient to establish venue.3 Noting that this is a question of first impression, Lippold relies on five cases from other jurisdictions for support. We are not persuaded.
¶ 9 "`The term venue refers to the locality of the prosecution; venue sets the particular judicial district in which a criminal charge is to be filed and in which it will be tried.'" State v. Anderson, 2005 WI 54, ¶ 27, 280 Wis.2d 104, 695 N.W.2d 731 (quoting 4 WAYNE R. LAFAVE et al., Criminal Procedure § 16.1(a), at 458 (2d ed. 1999)) (one set of internal quotation marks omitted). In contrast, jurisdiction "`refers to the authority or power of the court to take action on a particular charge.'" Id. (quoting 4 WAYNE R. LAFAVE et al., Criminal Procedure § 16.1(a), at 458 (2d ed. 1999)).
¶ 10 In his brief and at oral argument, Lippold challenged the standard of review proposed by the State. It is well-established that following a trial, we are obligated to give deference to a jury verdict. As established in State v. Corey J.G., 215 Wis.2d 395, 407-08, 572 N.W.2d 845 (1998), "[w]e will not reverse a conviction based upon the State's failure to establish venue unless the evidence, viewed most favorably to the [S]tate and the conviction, is so insufficient that there is no basis upon which a trier of fact could determine venue beyond a reasonable doubt." Although venue in Wisconsin must be proven beyond a reasonable doubt, it is not an element of the crime, but rather a matter of procedure, which refers to the place of trial. State v. Dombrowski, 44 Wis.2d 486, 501-02, 171 N.W.2d 349 (1969). We first dispose of Lippold's argument that the charges against him have to be dismissed because venue must by proven by direct evidence of his receiving or transporting the equipment in Milwaukee County. Venue need not be proven by direct evidence. Smazal v. State, 31 Wis.2d 360, 363, 142 N.W.2d 808 (1966) (). It can also be proven by circumstantial evidence. Id. Venue may be established by proof of facts and circumstances from which it may be reasonably inferred.4 Id. ¶ 11 We next address Lippold's claim that no evidence was presented at trial to support venue in Milwaukee County. As noted, no Wisconsin case addresses the question of what type of evidence is needed to establish venue in a charge of receiving stolen property. However, State v. Swinson, 2003 WI App 45, 261 Wis.2d 633, 660 N.W.2d 12, is instructive. Swinson was charged with multiple counts of theft by fraudulent representation. Id., ¶ 1. After being convicted by a jury, Swinson brought a postconviction motion claiming, inter alia, that there was insufficient evidence at trial to support bringing the charges in Sheboygan County. Id.
¶ 12 The underlying facts are that Swinson was employed by the Kohler Company as a project manager for a renovation project. Id., ¶ 6. In that capacity, project managers could contract with outside vendors for goods and services. Id. After the construction was completed, an audit was conducted because of significant cost overruns. Id., ¶¶ 6-7. The audit revealed that no goods could be found at the project for one particular company. Id., ¶¶ 11-12. At trial, evidence was submitted that payment would be made after verification and a project manager could initial an invoice to verify work. Id., ¶ 8. An analysis of the account records indicated that approximately $264,824 had been paid to the suspect company. Id., ¶ 10. The company's invoices and purchase orders were addressed to the Kohler Company in Sheboygan County. Id., ¶ 7. Ultimately, this company was linked to Swinson by bank records. Id., ¶ 10. At trial, Swinson admitted that he was the only employee who worked at the suspect company. Id., ¶ 17.
¶ 13 On appeal, Swinson claimed "that the State failed to produce sufficient evidence to show that any of the elements of the offense occurred in Sheboygan [C]ounty." Id., ¶ 18. This court determined that the wording of WIS. STAT. § 971.19(2) was crucial. See Swinson, 261 Wis.2d...
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