MADISON — Two women can be prosecuted for felony retail theft in Green County as the Wisconsin Supreme Court concluded Nov. 27 that the women’s alleged series of petty thefts can be charged as one crime.
By a 5-2 vote, the court upheld an appeals court ruling that reversed Green County Circuit Judge James Beer’s dismissal of retail theft conspiracy charges in 2017 against Autumn Marie Love Lopez, Monroe, and Amy J. Merino, Portage, formerly Amy J. Rodriguez of Monroe.
According to court documents:
Lopez, 28, was a Monroe Walmart employee and helped Rodriguez, 39, at a self-check-out to avoid properly scanning merchandise that Rodriguez pretended to purchase.
The seven alleged thefts occurred between Jan. 10 and Jan. 25, 2017. The alleged thefts ranged between $126.33 and $331.96, which is below the $500 threshold to charge each as a felony. The total value of all the alleged stolen merchandise was $1,452.
Instead of charging the women with seven misdemeanors, they were each charged with one felony count of conspiracy to commit retail theft.
Beer dismissed the charges without prejudice concluding that the state does not have the authority under the statute it used to charge the multiple thefts as one offense. Also, the statute didn’t apply to retail theft.
The state appealed and, last December, the District IV Court of Appeals reversed Beer’s dismissal, finding that a theft case involving more than one incident 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.
Before the state’s high court, Lopez’s attorney State Public Defender Kelsey Loshaw renewed her argument that the series of petty thefts cannot be combined in order to charge them as a felony. Loshaw also argued that the theft statute used to charge the women with felonies doesn’t include retail theft. While the statute includes five kinds of theft, it omits retail theft and Loshaw noted that in deciding cases, the state Supreme Court requires a plain reading of the statute.
“Theft means theft. Asking this court to read in extra words such as ‘retail’… is inconsistent with this court’s precedent,” Loshaw wrote the court.
However, the state’s winning argument was interpreting the statute’s broad language to apply to “any case of theft” which the legislature meant to include retail theft.
“(T)he legislature meant ‘theft’ to include retail theft because the legislature designated it a theft crime; and the legislature could have explicitly excluded retail theft from “theft” under (the statute) … by drafting a separate aggregation statute for retail theft,” Assistant Attorney General Lisa Kumfer wrote the court.
Writing for the majority, Justice Annette Ziegler stated:
“The plain language of the statute makes clear that the legislature’s plain meaning applies broadly to ‘any case of theft involving more than one theft’,” she wrote in the 17-page opinion.
Rodriguez, now Merino, did not participate in the appeal to the Wisconsin Supreme Court.
Calls to District Attorney Craig Nolen and Loshaw for comment on the decision were not returned by deadline.
Maximum penalties for conviction of a misdemeanor offense are a $10,000 fine, nine months in jail or both.
If convicted on retail theft conspiracy, Lopez and Merino face maximum penalties of 3 and a half years in prison, a $10,000 fine or both.