MADISON — Felony retail theft charges were restored Thursday by a state appeals court against two Monroe women who allegedly scammed a Walmart store out of $1,415.
The District IV Court of Appeals concluded that on seven alleged occasions during a two-week span in January 2017, Amy J. Rodriguez and Autumn Marie Love Lopez conspired to steal merchandise.
Each was charged with one count of retail theft.
The appeals opinion overturns Green County Circuit Judge James Beer’s decision to dismiss the charges as duplicitous because he found that the law only allows the former store employee and her acquaintance to be charged with seven distinct misdemeanors.
Each alleged theft ranged in amount between $126.33 and $331.96, which is below the threshold to charge as a felony.
The criminal complaint alleged a scheme in which Lopez, 27, a Walmart employee, would assist Rodriguez, 38, at a self-check-out and would pretend to scan items, intentionally fail to scan items, or void items that were scanned.
Beer originally dismissed the charges without prejudice, concluding that the state does not have the authority under the statute it used to charge multiple thefts as one offense. Also, the statute didn’t apply to retail theft.
On appeal, the state contended it has the authority to charge the seven alleged acts of retail theft as one continuous offense under the statute it selected or under its general discretionary charging authority.
Lopez’s attorney, Tristan Breedlove, argued on appeal that the state cannot lump seven alleged acts together into a single felony because the acts were not committed at substantially the same time and were not part of a continuous transaction.
The appeals court noted that if separate and distinct offenses are charged in a single count, the complaint is defective as being duplicitous and must be dismissed. A duplicitous charge adds confusion as to what conduct the defendant would contest, can lead to double jeopardy and can also result in a non-unanimous jury verdict.
However, the appeals court found that a theft case involving more than one theft can be prosecuted as a single crime if the property belonged to the same owner and the thefts were committed in the same manner and with the same intent.
In concluding the charge was not duplicitous, Judge Gary Sherman wrote:
“We perceive no dispute that the property belonged to the same owner and that the alleged thefts were committed pursuant to a single deceptive scheme (pretending to purchase items via the self-check-out). Accordingly, we conclude that the State may charge the alleged multiple acts of retail theft at issue in this case as a single crime.”
Rodriguez’s attorney, Philip Brehm, said he would talk with Lopez’s attorney before deciding to seek further appeal of the opinion or continue further proceedings in Green County Circuit Court.
Assistant District Attorney Laura Kohl said the Attorney General’s office was asked to pursue an appeal because, “We didn’t believe the charges were duplicitous.”
“Our position was the statute was clear on its face and applied to all theft-related statutes,” Kohl said Friday.
If convicted, the charge carries maximum penalties of six years in prison and a $10,000 fine. Misdemeanor retail theft convictions carry a penalty of nine months in jail and a $10,000 fine.