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COURT OF APPEALS
DECISION
DATED AND FILED
July 22, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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State of Wisconsin,
Plaintiff-Respondent,
v.
Kenneth W. Lippold,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Milwaukee County: charles
f. kahn, jr., Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 CURLEY, P.J. 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). 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.
I. Background.
¶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.
¶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.
II. Analysis.
¶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. 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) (“[T]he lack of direct proof does not necessarily mean
venue was not proved beyond a reasonable doubt.”). 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. 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 633, ¶20. The statute reads: “‘Where 2 or more acts are requisite to the
commission of any offense, the trial may be in any county in which any of such acts occurred.’” Id.
(quoting § 971.19(2) (emphasis in Swinson)). Noting that the specific statute for theft by
fraud required more than two acts, this court concluded that, “if any element occur[red] in Sheboygan
[C]ounty, then that county can be the place of trial.” Id.,
¶21 (emphasis in Swinson). Finding that
several elements of the crime of theft by fraud occurred in Sheboygan, this court affirmed the
convictions. Id., ¶¶21-24, 60. As set forth in Wis JI—Criminal 1453, there are six
elements to establish theft by fraud. Swinson,
261 Wis. 2d
633, ¶20. They are:
First, that the
defendant made a false representation to (name owner of property).
Second,
that the defendant knew that such representation was false.
Third,
that the defendant made such representation with intent to deceive and to
defraud (name owner of property).
Fourth,
that the defendant obtained title to the property of (name owner of property)
by such false representation.
Fifth,
that (name owner of property) was deceived by such representation.
Sixth,
that (name owner of property) was defrauded by such representation.
Id. (quoting Wis JI—Criminal 1453).
¶14 This court reasoned that:
First,
the record shows that the invoices were addressed to the Kohler Company at the Sheboygan [C]ounty address and this is sufficient
circumstantial evidence to establish that the invoices were received in Sheboygan [C]ounty. See Smazal, 31 Wis. 2d at 363-64, 142 N.W.2d 808. The record establishes that an element
occurred in Sheboygan [C]ounty because it
establishes that Kohler was deceived by Swinson’s false representation in Sheboygan [C]ounty.
Second,
the record shows that purchase orders were “billed to” Kohler’s accounts
payable department at the Sheboygan
[C]ounty address. This is sufficient
circumstantial evidence that the relevant checks were cut from the accounts
payable department located at the Sheboygan
[C]ounty address. Swinson makes a point
of arguing that the bank location from which each check was drawn was not
proved by the State; the bank location can be significant to prove venue but is
not controlling because also significant is the location where the check is
“cut.” Once a check is “cut” or signed
in Sheboygan
county, Kohler has parted with money.
That is, it has been defrauded by acting on the false representation in Sheboygan [C]ounty. This also establishes the occurrence of an
element in Sheboygan
[C]ounty.
Swinson
makes much of the fact that the State put forth no evidence that the invoices
were prepared in Sheboygan
[C]ounty. Swinson admitted that he
prepared the invoices–the location where the invoices were prepared is not
controlling. It is the act of making the
false statement and not the manner in which it is made that is important. Cf. State v. Timblin, 2002 WI App 304, ¶30,
259 Wis. 2d
299, 657 N.W.2d 89 (in Timblin, we affirmed a conviction
for theft by fraud where all the false statements were passed through a conduit
to the victims). We are satisfied that
the evidence sufficiently establishes that Kohler was deceived and defrauded in
Sheboygan
[C]ounty. The State sufficiently proved
venue in Sheboygan
[C]ounty.
Swinson,
261 Wis. 2d
633, ¶¶22-24.
¶15 Here, the trial court correctly instructed the jury that there
are three elements of the crime of receiving stolen property:
Receiving
stolen property is defined in Section … 943.34 of the Criminal Code of
Wisconsin as committed by one who intentionally receives stolen property. Before you may find the defendant guilty of
this offense, the State must prove by evidence which satisfies you beyond a
reasonable doubt that the following three elements were present.
One,
the defendant intentionally received the BiPAP Vision respirator with respect
to that particular count among the charges that you consider. Intentionally requires that the defendant had
the mental purpose to receive the property.
To receive means to acquire possession or control of the property.
The
second element of the offense the State must prove beyond a reasonable doubt is
that the BiPAP Vision respirator with respect to that count was stolen
property. Property is stolen when it has
intentionally been taken from the owner without consent and with the intent …
to deprive the owner of its possession permanently.
The
third element of the offense is that the property – when the property was
received, the defendant knew that it was stolen property.
You
cannot look into a person’s mind to find intent or knowledge. Intent and knowledge must be found, if found
at all, from the defendant’s acts, words and statements, if any, and from all
the facts and circumstances in the case bearing upon intent and knowledge.
If
you are satisfied beyond a reasonable doubt that all three elements of this
offense have been proved, you should find the defendant guilty with respect to
that count that you’re considering. If
you’re not so satisfied, you must find the defendant not guilty.
¶16 Extrapolating from the holding in Swinson, we conclude that
because the crime of receiving stolen property requires more than two acts, and
one of the acts is that the property must be stolen and that act occurred in
Milwaukee County, venue was properly established. Lippold argues that the element of the crime
of receiving stolen property—that the State needs to prove the property was
stolen—is not an “act” in the classical sense; rather, the word “stolen” simply
describes the type of property needed to fulfill the requirements of the
crime. Again, we look to Swinson
for assistance. In Swinson,
several of the elements are not “acts” as Lippold would have us define
them. Instead, they appear to be states
of mind. Consequently, we are satisfied
that Lippold reads Swinson too narrowly.
¶17 Despite the similarity of the Swinson facts to those
present here, Lippold submits that five foreign cases support his
position. Again, we are not
persuaded. Our review of these cases
reveals that these states either have drastically different laws than ours or
the facts are distinguishable.
¶18 In the oldest of the cases cited by Lippold, Pollard
v. Virginia, 261 S.E.2d 328, 329-30 (Va. 1980), the Virginia Supreme
Court addressed venue in a case where Pollard was charged in Richmond,
Virginia, with receiving stolen property, an air hammer. Pollard was a City of Richmond, Virginia,
employee. Id. at 329. He was under surveillance by police in an
investigation of the suspected theft of city property. Id. He was seen leaving his home located in a
different county than Richmond and traveling to
an equipment rental store that was also in a different county than Richmond. Id. At the store, the police seized numerous
pieces of equipment in Pollard’s pickup truck and items from the store
identified by the store manager as having been sold previously to him by
Pollard. Id.
The air hammer in issue was such an item and was the property of
the City of Richmond
that had been assigned to a truck driver who did not testify. Id. at
329‑30. The air hammer had
disappeared months before. Id. at
330.
¶19 Pollard gave conflicting explanations of how he obtained the
seized items (including the air hammer).
Id. at
329. Pollard told the police he acquired
some of the items at the city dump and others were purchased from garbage truck
drivers. Id. The store manager said Pollard claimed he
bought the air hammers from bankruptcy sales and going-out-of-business
sales. Id. In finding that venue had not been proven, the
court observed that the air hammer in issue was a part of the store inventory
obtained from Pollard previously, and thus there was “meager proof” that
Pollard received the property in Richmond. Id. at
330. The Commonwealth attempted to prove
venue through circumstantial evidence, as no statute such as our Wis. Stat. § 971.19(2) apparently
existed. We are satisfied that the case
is inapposite. First, Virginia had no special statute similar to
our § 971.19(2). In addition, our
circumstantial evidence is much stronger than the facts in the Pollard
case.
¶20 The Supreme Court of Alabama
also tackled the venue issue in a receiving stolen property case in Watts
v. Alabama, 435 So. 2d 135 (Ala.
1983). The evidence presented strongly
suggested that someone other than Watts stole the property and then sold it to Watts. Id. at
135. While a special statute was
referenced that said “[w]hen property is stolen in one county and carried into
another, venue is in either county,” the supreme court found it inappropriate
to charge the receiver of stolen property in the county where the property was
stolen “absent some proof connecting [the charged person] with the theft or
possession in that first county.” Id. at 136
(internal quotation marks and citations omitted).
This finding conflicts with the Swinson holding. Swinson specifically establishes
that criminal charges can be brought in the county where any of the elements of
the crime occurred. Swinson, 261 Wis. 2d 633, ¶21. In addition, unlike the facts in Watts, our facts strongly suggest Lippold was
involved in the original theft of the respirators; indeed, we have facts that
suggest Lippold was the thief.
¶21 In 1987, the Colorado Supreme Court, in the case of Colorado
v. Cortez, 737 P.2d 810, 810 (Colo. 1987), was presented with a case
where Cortez had been acquitted of burglary and found guilty of theft by
receiving. The underlying facts are that
a burglary occurred in Adams County,
Colorado. Id. The next day, Cortez attempted to pawn an item
taken in the burglary in Denver,
Colorado. Id. at
811. After the store owner became
suspicious, Cortez was arrested. Id. Cortez told the police that he received the
items that were stolen at a restaurant after a man he met at a bar asked him to
pawn the items to raise money to purchase marijuana. Id. Cortez was charged in Adams County,
where the burglary occurred. Id. In a motion seeking acquittal at the close of
the prosecution’s case against him, Cortez challenged venue for the theft by
receiving charge. Id.
The trial court disagreed with his challenge, but the Court of
Appeals reversed. Id.
¶22 The supreme court affirmed the court of appeals. Id. at
814. The supreme court acknowledged that
a statute (similar to our Wis. Stat. § 971.19(2))
existed, but refused to apply it because the counties were in different
judicial districts. Cortez, 737 P.2d at
812. The court held, “Proper venue
exists under section 18-1-202(7), 8B C.R.S. (1986), in any county in which
separate offenses are committed as part of the same criminal episode only if the counties are within the same
judicial district.” Cortez, 737
P.2d at 812 (emphasis in Cortez). The court went on to hold that a different
venue statute, which read “‘[e]xcept as otherwise provided by law, criminal
actions shall be tried in the county where the offense was committed or in any
other county where an action in furtherance of the offense occurred,” was
inapplicable because the jury acquitted Cortez of burglary after being
instructed that “it was permissible to infer from the defendant’s exclusive
possession of the recently stolen property that the defendant participated in
the original taking of the property.” Id. at
812-14 (citation and one set of internal quotation marks omitted). In sum, the Colorado statute similar to our
special venue statute applies only if the two counties are in the same judicial
district and the only other potentially applicable statute does not apply
unless there is “‘sufficient evidence to tie the defendant to an act in
furtherance of the offense in [the charging county].’” Id. at
812-13 (citation omitted).
¶23 Lippold also points to Kansas v. Alvarez, 678 P.2d 1132
(Kan. Ct. App. 1984), abrogated by State v. Martinez, 874 P.2d 617 (Kan. 1994), for
support. In this case, a pickup truck
was stolen in one Kansas
County and Alvarez was
arrested in another after having been seen driving it. Id. at
1134. After Alvarez was charged with
theft in the county where the pickup was stolen, information came to light that
Alvarez came into possession of the truck in the county where he was seen
operating the truck. Id. The State amended the complaint to include an
alternative charge of receiving stolen property in the second county. Id. The court of appeals concluded that K.S.A. 22‑2609,
a special statute that in theft or robbery cases permitted venue in any county
where the property was taken, did not permit the charge of receiving stolen
property to be tried in the county where the truck was stolen. Id. at
1136. It held, the “statute was not
intended to expand that general rule by allowing one to be prosecuted for
receiving stolen property in any county other than that where the property was
allegedly received.” Id.
While that is the holding of the case, a later supreme court
case, Martinez,
abrogated Alvarez. There, the
court left no room for doubt by stating:
“The Court of Appeals’ conclusion concerning the application of K.S.A.
22-2609 is not supported by any authority.
K.S.A. 22-2609, a venue statute, applies to all of the acts of theft set
out in K.S.A. 21-3701. The holding in … Alvarez
… to the contrary is disapproved.” Martinez,
874 P.2d at 623.
¶24 Finally, a Texas
appellate case also addressed venue in a receiving stolen property case. See
Jones
v. Texas,
979 S.W.2d 652 (Tex. Crim. App. 1998).
In Jones, eight video cameras were stolen in a burglary in Brazos County. Id. at
653‑54. Four of the video cameras
were recovered from pawn shops in Austin. Id.
at 653. Jones claimed he was approached
by several men at his home in Burleson
County and given the
cameras, which he then pawned using his driver’s license in each
transaction. Id. at 653‑54. He was charged with theft by receiving stolen
property in Brazos
County. Id.
at 654. At the close of the State’s
case, he moved for a verdict of acquittal, arguing that “the State had not
produced ‘a scintilla of evidence’ to show that he had anything to do with the
burglary.” Id.
¶25 There, the court’s determination that venue was not proven was
dominated by a change in the law. Prior
to the adoption of the Model Penal Code, the offense of theft by receiving had
its own special venue statute permitting prosecution “in the county where the
theft was committed.” Id. at 656. The statute was later revised and this
language was dropped, and under the new venue statute, “[v]enue for theft by
receiving attaches at the time and place the offender takes control of the
property.” Id. at 657.
In contrast, however, to the venue statute applicable in Jones,
we have a specific statute that permits prosecution in the county where the
theft occurred. See Wis. Stat. § 971.19(2).
¶26 In sum, the foreign authority cited by Lippold is either
anchored on venue statutes unlike ours, or driven by significantly different
facts.
¶27 Finally, we note that the circumstantial evidence pointing to
Lippold engaging in acts in Milwaukee County, including the actual theft, was
extremely strong. As a salesman, Lippold
had unhampered access to the stolen equipment which was located in Milwaukee County.
He could have easily stored the equipment in his garage as he routinely
kept medical equipment there. There were
phone calls between Lippold and the companies he sold the respirators to,
presumably made while Lippold was in Milwaukee County, and there was a shipping
label related to a purchase order for one of the stolen units with Lippold’s
return address in Milwaukee County. More
damaging was Lippold’s offer to pay for the equipment—an act not usually
offered by the innocent—and Lippold’s preposterous story about receiving stolen
property worth thousands of dollars from the unknown “Steve” also pointed to
Lippold’s complicity.
¶28 Unlike the cases relied on by Lippold, the facts here point to
Lippold being the thief, as well as the receiver of stolen property. Accordingly, we affirm.
By the Court.—Judgment affirmed.