State v. Lopez, Appeal Nos. 2017AP913-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: SHERMAN, J.
• Citation: 385 Wis.2d 482,922 N.W.2d 855,2019 WI App 2
• Decision Date: 06 December 2018
• Docket Number: 2017AP914-CR,Appeal Nos. 2017AP913-CR
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Autumn Marie Love LOPEZ, Defendant-Respondent. State of Wisconsin, Plaintiff-Appellant, v. Amy J. Rodriguez, Defendant-Respondent.

385 Wis.2d 482
922 N.W.2d 855
2019 WI App 2

STATE of Wisconsin, Plaintiff-Appellant,
v.
Autumn Marie Love LOPEZ, Defendant-Respondent.

State of Wisconsin, Plaintiff-Appellant,
v.
Amy J. Rodriguez, Defendant-Respondent.^†

Appeal Nos. 2017AP913-CR
2017AP914-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: March 12, 2018
Opinion Filed: December 6, 2018

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Lisa E.F. Kumfer, assistant attorney general, and Brad D. Schimel, attorney general.

On behalf of the defendant-respondent Autumn Marie Love Lopez, the cause was submitted on the brief of Tristan S. Breedlove, assistant state public defender of Madison.

On behalf of the defendant-respondent Amy J. Rodriguez, the cause was submitted on the letter of Philip J. Brehm, Janesville, joining in the brief of Tristan S. Breedlove, assistant state public defender of Madison.

Before Sherman, Kloppenburg and Fitzpatrick, JJ.

SHERMAN, J.

385 Wis.2d 485

¶1 In these consolidated appeals, the State appeals judgments of the circuit court dismissing the State's criminal complaints against Autumn Marie Love Lopez and Amy Rodriguez. Lopez and Rodriguez were each charged with a single count of retail theft of items valued at more than $500 but less then $5,000, as parties to a crime. See WIS. STAT. §§ 943.50(1m)(c) and (4)(bf), and 939.05 (2015-16).¹ On Lopez's and Rodriguez's motions, the circuit court dismissed the complaints on the ground they are improperly duplicitous. The State argues that the complaints are not improperly duplicitous because it has authority under WIS. STAT. § 971.36(3)(a) to charge as one continuous offense the multiple alleged acts of retail theft that underlie the single charge. Alternatively, the State argues that it can do so pursuant to its general prosecutorial charging discretion. For the reasons discussed below, we conclude that the State may charge the multiple alleged acts of retail theft as one continuous offense pursuant to § 971.36(3)(a). Therefore,

385 Wis.2d 486

we reverse the judgments dismissing the complaints and remand for further proceedings.

BACKGROUND

¶2 Lopez and Rodriguez were each charged with retail theft of items valued at more than $500 but less than $5,000, as party to a crime, a class I felony. See WIS. STAT. §§ 943.50(1m)(c) and (4)(bf), and 939.05. The complaints against Lopez and Rodriguez each alleged that, on seven separate occasions over a two-week period in January 2017, Lopez and Rodriguez stole merchandise from Wal-Mart through a scheme in which Lopez, a Wal-Mart employee, would assist Rodriguez at a self-check-out and would pretend to scan items, intentionally fail to scan items, and/or void items that were scanned. The complaints alleged that Lopez and Rodriguez stole merchandise totaling the following amounts on the following days:

1. January 10—$218.99;

2. January 12—$313.95;

3. January 13—$221.46;

4. January 16—$257.49;

5. January 19—$132.62;

6. January 20—$181.28; and

922 N.W.2d 858

7. January 25—$126.33.

¶3 Lopez and Rodriguez separately moved the circuit court to dismiss the complaints on the ground that the complaints are duplicitous. According to Lopez and Rodriguez, the State could only charge them with

385 Wis.2d 487

seven distinct violations of WIS. STAT. §§ 943.50(1m)(c) and (4)(a), each a class A misdemeanor. In response, the State argued that it has authority under WIS. STAT. § 971.36(3)(a) to combine the seven possible misdemeanors to charge a violation of § 943.50(1m)(c) and (4)(bf), a class I felony. Section 971.36(3)(a) permits the State to charge multiple "thefts" as one continuing act if "[t]he 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." Alternatively, the State argued that it has authority to charge the multiple acts as one continuous offense under its general discretionary charging authority.

¶4 The circuit court granted Lopez's and Rodriguez's motions to dismiss without prejudice. The court concluded that the State does not have authority under WIS. STAT. § 971.36(3)(a) to charge the multiple thefts as one continuous offense because § 971.36(3)(a) applies only to theft charged under WIS. STAT. § 943.20, and not to retail theft under WIS. STAT. § 943.50. The court did not address whether the State has authority to charge the separate incidents as one continuous offense under the State's discretionary charging authority. The State appeals.

DISCUSSION

¶5 The State contends that it has authority to charge the alleged acts of retail theft at issue here as one continuous offense under WIS. STAT. § 971.36(3)(a), or, alternatively, under its general discretionary charging authority.² For the reasons explained below, we

385 Wis.2d 488

conclude that the State has authority under § 971.36(3)(a) to charge the multiple alleged acts of retail theft as one continuous offense. Because this conclusion is dispositive, we do not reach the question of whether the State has authority to do so pursuant to its discretionary charging authority. See Sweet v. Berge , 113 Wis.2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (if a decision on one point disposes of the appeal, the court will not decide other issues raised).

¶6 If two or more distinct and separate offenses are charged in a single count, the complaint is defective as duplicitous and must generally be dismissed. State v. George , 69 Wis.2d 92, 99, 230 N.W.2d 253 (1975). Duplicitous indictments are prohibited because they: deny adequate notice of the charge to be defended; present a threat of a non-unanimous jury verdict; impair a defendant's ability to assert a double jeopardy defense; present a threat of prejudice and confusion arising from evidentiary rulings; and present a threat that the defendant will not be appropriately sentenced for the crime charged. See State v. Lomagro , 113 Wis.2d 582, 586-87, 335 N.W.2d 583 (1983). See also State v. Copening , 103 Wis.2d 564, 572, 309 N.W.2d 850 (Ct. App. 1981). However, pursuant to WIS. STAT. § 971.36(3)(a), "in any case of theft involving more than one theft, all thefts may be prosecuted as a single crime" without rendering the charge duplicitous, if "[t]he property belonged to

922 N.W.2d 859

the

385 Wis.2d 489

same owner and the thefts were committed pursuant to a single intent and design or...