State v. Lopez

• Citation: 389 Wis.2d 156,2019 WI 101,936 N.W.2d 125
• Decision Date: 27 November 2019
• Docket Number: Nos. 2017AP913-CR & 2017AP914-CR,s. 2017AP913-CR & 2017AP914-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Autumn Marie Love LOPEZ, Defendant-Respondent-Petitioner. State of Wisconsin, Plaintiff-Appellant, v. Amy J. Rodriguez, Defendant-Respondent.
• Court: United States State Supreme Court of Wisconsin

389 Wis.2d 156

936 N.W.2d 125

2019 WI 101

STATE of Wisconsin, Plaintiff-Appellant,

v.Autumn Marie Love LOPEZ, Defendant-Respondent-Petitioner.

State of Wisconsin, Plaintiff-Appellant,

v.Amy J. Rodriguez, Defendant-Respondent.

Nos. 2017AP913-CR & 2017AP914-CR

Supreme Court of Wisconsin.

Oral Argument: September 9, 2019

Opinion Filed: November 27, 2019

For the defendant-appellant-petitioner, there were briefs filed by Kelsey Loshaw and Susan E. Alesia, assistant state public defenders. There was an oral argument by Kelsey Loshaw.

For the plaintiff-appellant, there was a brief filed by Lisa E.F. Kumfer, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Lisa E.F. Kumfer.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of a published decision of the court of appeals in two consolidated cases, State v. Lopez and State v. Rodriguez, 2019 WI App 2, 385 Wis. 2d 482, 922 N.W.2d 855, reversing the Green County circuit court's order.¹ The circuit court order dismissed without prejudice the criminal complaints against Autumn Marie Love Lopez ("Lopez") and Amy J. Rodriguez ("Rodriguez"), which charged them with a single count of retail theft of items valued at more than $500 and less than $5,000, as parties to a crime, contrary to Wis. Stat. §§ 943.50(1m)(c) and (4)(bf), and 939.05 (2015-16).² The circuit court concluded that the State may not charge multiple acts of misdemeanor retail theft as a single felony. The court of appeals reversed and concluded that the State may charge multiple acts of retail theft as one continuous offense pursuant to Wis. Stat. § 971.36(3)(a). We affirm the court of appeals.

¶2 Pursuant to Wis. Stat. § 971.36(3), "[i]n any case of theft involving more than one theft, all thefts may be prosecuted as a single crime" provided certain criteria are satisfied. This court must decide whether the statutory term "theft" includes the statutory charge of retail theft. Lopez argues that it does not. She argues that "theft" includes only the five modes of theft described in Wis. Stat. § 943.20, not retail theft. The State argues that "theft" means any type of theft, including retail theft.

¶3 We conclude that "theft" under Wis. Stat. § 971.36 includes retail theft under Wis. Stat. § 943.50. We therefore conclude that the State has authority to charge multiple retail thefts under § 943.50 as one continuous offense pursuant to § 971.36(3). Thus, we affirm the court of appeals.³

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 On February 16, 2017, the State filed criminal complaints against Lopez and Rodriguez. The complaints allege that the two women committed a series of retail thefts from Wal-Mart in Monroe, Wisconsin. Specifically, the complaints allege that between January 10 and January 25, 2017, Lopez and Rodriguez together committed seven retail thefts. Lopez was an employee at Wal-Mart. The State alleges that Lopez pretended to assist Rodriguez at a self-check-out register. Lopez allegedly pretended to scan merchandise for Rodriguez, but in reality she either did not scan it or voided the scan. Rodriguez would then exit Wal-Mart with her stolen merchandise. The seven retail thefts ranged in individual value from $126.33 to $313.95. The total value of all the stolen merchandise was $1,452.12.

¶5 The State could have charged Lopez and Rodriguez each with seven separate class A misdemeanor retail thefts, contrary to Wis. Stat. § 943.50(1m)(c) and (4)(a).⁴ Instead, pursuant to Wis. Stat. §§ 971.36(3)(a)⁵ and 943.50(4)(bf),⁶ the State charged Lopez and Rodriguez with, as parties to the crime, a single class I felony count of retail theft of items valued at more than $500 and less then $5,000. Lopez and Rodriguez each separately moved to dismiss the complaints, arguing that the State could only charge them with seven misdemeanors.

¶6 The circuit court held a hearing on both motions to dismiss. The circuit court granted both motions to dismiss without prejudice. It concluded that "theft" did not include retail theft, and the State could not aggregate retail thefts under Wis. Stat. § 971.36(3). The State appealed.

¶7 The court of appeals reversed. Lopez, 385 Wis. 2d 482, ¶15, 922 N.W.2d 855. It concluded that "the State has authority under § 971.36(3)(a) to charge the multiple alleged acts of retail theft as one continuous offense." Id., ¶5. Specifically, the court of appeals concluded that the statute "refers generally to ‘theft,’ " is not limited to theft under Wis. Stat. § 943.20, and applies to retail theft under Wis. Stat. § 943.50. Id., ¶12.

¶8 Lopez⁷ filed a petition for review in this court. We granted the petition.

II. STANDARD OF REVIEW

¶9 This case requires this court to interpret Wis. Stat. § 971.36 to determine whether the statutory term "theft" includes the charge of retail theft. "The interpretation and application of a statute present questions of law that this court reviews de novo while benefitting from the analyses of the court of appeals and circuit court." State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346 (citing State v. Ziegler, 2012 WI 73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238 ). Thus, we review de novo whether "theft" includes retail theft.

III. ANALYSIS

A. Statutory Interpretation

¶10 We begin our analysis with the language of the relevant statute, Wis. Stat. § 971.36.

State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. The purpose of statutory interpretation is to give the statute "its full, proper, and intended effect." Id., ¶44. If the statutory language is plain, we end the inquiry and give the language its "common, ordinary, and accepted meaning, except [we give] technical or specially-defined words or phrases ... their technical or special definitional meaning." Id., ¶45.

¶11 This court also analyzes the context and structure of a statute to determine its meaning. Statutory language "is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes ...." Id., ¶46. "A statute's purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely-related statutes—that is, from its context or the structure of the statute as a coherent whole." Id., ¶49.

¶12 If analyzing a statute's language in context "yields a plain, clear statutory meaning, then there is no ambiguity" and we end the inquiry. Kalal, 271 Wis. 2d 633, ¶46, 681 N.W.2d 110 (quoting Bruno v. Milwaukee Cty., 2003 WI 28, ¶20, 260 Wis. 2d 633, 660 N.W.2d 656 ) (internal quotations omitted). We conclude that the plain meaning of Wis. Stat. § 971.36 is unambiguous. We base that conclusion on the language of the statute and confirm that conclusion using traditional tools of statutory construction.

1. Wisconsin Statute § 971.36

¶13 Wisconsin Stat. § 971.36, which is found in the criminal procedure chapter of the statutes, is entitled "Theft; pleading and evidence; subsequent prosecutions." It provides, in relevant part, as follows:

(1) In any criminal pleading for theft, it is sufficient to charge that the defendant did steal the property (describing it) of the owner (naming the owner) of the value of (stating the value in money).

...

(3) In any case of theft involving more than one theft, all thefts may be prosecuted as a single crime if:

(a) The property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme; ....

¶14 Subsection (1) addresses how to properly draft a criminal pleading for theft. Subsection (3) addresses the State's authority to charge multiple thefts as a single crime. Put simply, the State may charge multiple thefts as one theft if they are all from the same owner and committed together with the same intent and design, or in the same scheme. Section 971.36 does not define "theft," but the word "theft" appears elsewhere in the Wisconsin Statutes.

2. Theft-related statutes

¶15 The word "theft" appears in ten criminal statute titles in Chapter 943 "Crimes Against Property." The chapter sets forth multiple criminal theft offenses. First is the general theft statute. Then the chapter sets forth other fact-specific theft offenses, one being retail theft. See Wis. Stat. §§ 943.20 ("Theft"); 943.205 ("Theft of trade secrets"); 943.45 ("Theft of telecommunications service"); 943.455 ("Theft of commercial mobile service"); 943.46 ("Theft of video service"); 943.47 ("Theft of satellite cable programming"); 943.50 ("Retail theft; theft of services"); 943.61 ("Theft of library material"); 943.74 ("Theft of farm-raised fish"); and 943.81 ("Theft from a financial institution").

¶16 Lopez argues that retail thefts under Wis. Stat. § 943.50 cannot be aggregated under Wis. Stat. § 971.36. A person commits retail theft under § 943.50 "if he or she [commits any mode of retail theft] without the merchant's consent and with intent to deprive the merchant permanently of possession or the full purchase price of the merchandise or property." § 943.50(1m). The eight modes of commission are: intentionally altering merchandise prices; intentionally taking and carrying away merchandise; intentionally transferring merchandise; intentionally concealing merchandise; intentionally retaining possession of merchandise; intentionally removing theft detection devices from merchandise; using or possessing with intent to use a theft detection shielding device to shield merchandise; and using or possessing with intent to use a theft detection device remover to remove a theft detection device from merchandise. § 943.50(1m)(a)-(h).

¶17 Lopez argues that the only crimes that can be aggregated under Wis. Stat. § 971.36(3) are theft crimes under Wis. Stat. § 943.20.⁸ Section 943.20 defines five modes of committing theft. They can be summarized as: theft of movable property; theft of money, negotiable security,...