                                                                     2013 WI 53

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2011AP691-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Matthew R. Steffes,
                                  Defendant-Appellant-Petitioner.


                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 340 Wis. 2d 576, 812 N.W.2d 529
                                   (Ct. App. 2012-Published)
                                     PDC No: 2012 WI App 47

OPINION FILED:          June 20, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 12, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Thomas P. Donegan

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                        filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Jeffrey W. Jensen, Milwaukee, and oral argument by Jeffrey W.
Jensen.


       For      the    plaintiff-respondent,     the   cause   was   argued   by
Daniel J. O’Brien, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general, with assistance
from Jason Gorn, legal extern.
                                                                               2013 WI 53
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.    2011AP691

(L.C. No.   2004CF2138)

STATE OF WISCONSIN                                  :              IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,
                                                                           FILED
      v.
                                                                      JUN 20, 2013
Matthew R. Steffes,
                                                                         Diane M. Fremgen
             Defendant-Appellant-Petitioner.                          Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeal.                      Affirmed.



      ¶1     MICHAEL      J.    GABLEMAN,     J.         We    review      a   published
decision of the court of appeals affirming Matthew R. Steffes's

conviction    of   two     counts      of    conspiracy       to     commit    theft      of
property by fraud.             See State v. Steffes, 2012 WI App 47, 340

Wis. 2d 576, 812 N.W.2d 529.                While in prison, Steffes was part
of a conspiracy that defrauded AT&T out of more than $28,000 of

phone services through a scheme that involved furnishing the
company with fraudulent information.                    Specifically, Steffes and

his   cellmate——with           the   help   of     friends     and    family      members
                                                               No.   11AP691



outside    of   prison——submitted   fictitious    business     names    and

stolen personal identifying information to AT&T to set up phone

numbers.    Steffes would then make collect calls to these numbers

with the knowledge they would never be paid for.          The plan would

work for short bursts of time; once it was clear that the phone

bill was not going to be paid, AT&T would shut down the number.

Steffes and the other members of the conspiracy would then move

on and set up a new telephone number.        Over the course of the
eighteen-month life of this plan, Steffes made 322 phone calls,

free of charge.

     ¶2    Steffes was subsequently charged and convicted of two

counts of conspiracy to commit theft by fraud of property in

excess of $10,000.     See Wis. Stat. §§ 939.31, 943.20(1)(d), and

943.20(3)(c) (2011-12).1

     ¶3    Two issues are presented in this case.          The first is

whether submitting fictitious business names and stolen personal

identifying information is a "false representation" under Wis.

Stat. § 943.20(1)(d).     Steffes alleges that such conduct is not

a false representation because the statute requires that the

actor make an express promise to pay.            The second issue is

whether the applied electricity that       AT&T    uses   to    power   its

network is included within the definition of "property" found in

§ 943.20(2)(b).     Steffes argues that his conviction cannot be


     1
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.      Nothing has
changed in any applicable statute since the relevant conduct
occurred.

                                    2
                                                                    No.   11AP691



sustained because the evidence at trial showed that he stole

telephone services and not property.

      ¶4     On the first issue we hold that Steffes made "false

representations" to AT&T.        The theft-by-fraud statute says that

"'[f]alse representation' includes a promise made with intent

not to perform if it is part of a false and fraudulent scheme."

Wis. Stat. § 943.20(1)(d) (emphasis added).                   Because the word

"includes" is not restrictive, the statute clearly anticipates
that other conduct aside from an express promise falls under the

umbrella of a "false representation."              The scope and history of

the theft-by-fraud statute make plain that providing fictitious

business names and stolen personal identifying information to a

phone company as a way of avoiding payment falls within the

meaning of "false representation."

      ¶5   As to the second issue, "property" under the theft-by-

fraud statute is defined as "all forms of tangible property,

whether    real       or   personal,       without     limitation     including
electricity, gas and documents which represent or embody a chose

in    action     or    other    intangible         rights."        Wis.      Stat.

§ 943.20(2)(b) (emphasis added).            Relying on the plain language

of the statute in conjunction with commonly used dictionaries,

we   conclude    that Steffes    stole      electricity    from   AT&T.       AT&T

purchases and stores electricity to power its network.                        When

consumers make phone calls, AT&T must buy more electricity.                    The

conspiracy      perpetrated    against      AT&T     therefore    deprived     the

company of its property.       We affirm the court of appeals.


                                       3
                                                                             No.   11AP691



                                     I.     FACTUAL BACKGROUND

        ¶6        While Matthew Steffes and Joshua Howard were cellmates

at     the        Waupun     Correctional      Institution,      Howard    devised     an

illicit scheme that would allow the two of them to make free

collect calls from prison.                   The conspiracy worked as follows.

Friends and family members outside the prison walls would set up

a phone number by giving false information to the phone company—

—in this case AT&T.2                 Once the dummy number was set up, Howard
and Steffes could make unlimited collect calls to the number.

The benefit to the people setting up the fraudulent numbers was

that they would receive free phone service for a short period of

time.         After        the   phone    company    would    shut   the   number    down

because of unpaid bills, the process would start over again.

       ¶7         The   plan       was   elaborate   and     long-lasting,     involving

Steffes's father, his sister (who also has a child with Howard),

his cousin, several friends, and another woman who has a child

with Howard.            In sum, 60 fraudulent phone numbers were created

between May 2002 and May 2003. Part of the operation entailed
giving fictitious business names to AT&T, while other numbers

were        set    up      using    stolen    personal       identifying   information

obtained through a health care clinic where Steffes's sister's

roommate worked.                 Over an 18-month period in 2002 and 2003,

Steffes made 322 calls totaling 6,562 minutes.                       The loss to AT&T

        2
       SBC was the phone company that suffered the losses, but at
the time of trial it had been renamed AT&T.     See Shawn Young,
SBC Completes AT&T Purchase, Takes New Name, Wall St. J., Nov.
19, 2005, at A8.      To avoid confusion, we will exclusively
designate the phone company as "AT&T" throughout this opinion.

                                               4
                                                                               No.       11AP691



from setting      up the      fraudulent          phone     numbers     and        the   unpaid

calls was $28,061.41.

                              II.        PROCEDURAL HISTORY

     ¶8      Steffes was charged with two counts of conspiracy to

commit theft by fraud of property in excess of $10,000 pursuant

to   Wis.    Stat.     §§ 939.31,          943.20(1)(d),          and     943.20(3)(c).3

Section 939.31 is the conspiracy statute and it provides that

"whoever,    with    intent       that    a   crime       be   committed,          agrees    or
combines with another for the purpose of committing that crime

may, if one or more of the parties to the conspiracy does an act

to effect its object, be fined or imprisoned or both."                                      The

theft-by-fraud       statute,       § 943.20(1)(d),            makes    it     a    crime    to

obtain "title to property of another person by intentionally

deceiving the person with a false representation which is known

to be false, made with intent to defraud, and which does defraud

the person to whom it is made."                    "Property" is defined as "all

forms of tangible property, whether real or personal, without

limitation     including          electricity,        gas      and     documents          which
represent    or   embody      a    chose      in    action      or     other       intangible




     3
       The State brought two charges because Steffes helped set
up one group of phone numbers under the fictitious business name
"Nick's Heating & Cooling" and another under "Douyette Typing
Service" or "Douyette Advertising Service."     The loss to AT&T
from the former was $13,541.63 and the latter $14,519.78.

     Steffes was also charged with but acquitted of one count of
conspiracy to commit identity theft.

                                              5
                                                                             No.     11AP691



rights."         § 943.20(2)(b).          Steffes pled not guilty and the case

proceeded to a jury trial.4

        ¶9       Robert Lindsley, an engineer for AT&T, testified at

trial that someone making a phone call is using "an applied form

of electricity," and that all telephone companies need a "power

network" to connect electricity to the telephone network.                                 The

key to understanding this concept, Lindsley explained, rests in

the   difference       between       AC    and    DC   power.       AC   power      is   the
electricity that runs through outlets in a wall.                         Conversely, DC

power       is    stored     in    batteries.          In   Lindsley's      words,       "the

telephone company actually buys AC power from the commercial

utility[,]         [turns] AC power into a DC form, [and] stores that

energy in batteries so that if we lose commercial power to our

central office, your phone continues to work."

      ¶10        According    to    Lindsley,      AT&T      customers      are    given    a

"subscriber pair."            This is a wire that connects the registered

phone line to the switch at AT&T's central office.                            The switch

is what directs a phone call to the dialed number and connects
the circuit, so when a customer makes a phone call he is not

only using the subscriber pair, but also power from the switch.

As Lindsley         explicated, "We         digitize        the   signal,    so    it    uses

equipment that can transmit that telephone call either through




        4
       Steffes was originally charged in 2004 but did not stand
trial until five years later.    Because the procedural history
leading up to the trial is not germane to the issues at hand, we
will not recount it.

                                              6
                                                                               No.      11AP691



fiberoptic cables, over cable systems, or even through radio

links using radio towers."

        ¶11    Steffes was convicted of two counts of conspiracy to

commit theft by fraud.            The court sentenced him to two years in

prison followed by thirty months of extended supervision on each

count, to be served concurrently.                    He and the other members of

the conspiracy were also ordered to jointly and severally pay

the   full        $28,061.41    loss   in     restitution         to   AT&T.          Steffes
appealed his conviction to the court of appeals and argued: (1)

the evidence was insufficient to support his conviction because

no    "false       promise"    was     made    during       the    commission         of    the

conspiracy; (2) the applied form of electricity used by AT&T is

more akin to a service and thus is not property for purposes of

the theft-by-fraud statute.5

      ¶12      In a published opinion, the court of appeals affirmed

his conviction.             Steffes, 340 Wis. 2d 576.                   On the issue of

whether       a    "false     promise"      was     made    during       the   conspiracy,

Steffes argued that because no member of the conspiracy actually

told the telephone company that he would pay for the services,

no "false promise" was made.                The court of appeals held that the

theft-by-fraud statute does not require evidence of an express

false       promise;    the    statute      requires       only    that    "the       offender

'intentionally           deceiv[e]'           the     victim           'with      a        false

        5
       Steffes also alleged that he was entitled to resentencing
and that the circuit court issued erroneous jury instructions.
Steffes does not raise his sentencing claim before this court.
As for the jury instruction issue, we address that in footnote
7, infra, of this opinion.

                                               7
                                                                                       No.     11AP691



representation . . . known                   to     be    false,        made    with     intent      to

defraud.'"          Id., ¶17 (quoting Wis. Stat. § 943.20(1)(d)).                               Here,

all the false identifying information that the conspirators gave

to AT&T amounted to false representations.                               Steffes, 340 Wis. 2d

576, ¶17.

        ¶13    As to the second question——whether applied electricity

is   property        under       the    theft-by-fraud               statute——the        court       of

appeals held that the presence of the term "electricity" in Wis.
Stat.     § 943.20(2)(b)               is     "broad           enough     to     encompass          the

transmission of electricity over telephone lines."                                    Steffes, 340
Wis. 2d 576, ¶23.                Because the statute does not specifically

distinguish between different types of electricity, the court of

appeals       reasoned       that           the     legislature          intended        the        term

"electricity" to be applied broadly and to encompass electricity

transmitted over telephone lines.                        Id.

        ¶14    We    granted       Steffes's             petition       for     review       and    now

affirm the court of appeals.

                                   III. STANDARD OF REVIEW

        ¶15    There are two issues presented for our review.                                       The

first is whether submitting fictitious business names and stolen

personal       identifying         information            is     a   "false     representation"

under    Wis.       Stat.   § 943.20(1)(d).                    The   second     is     whether      the

applied       electricity        that        AT&T       uses    to   power      its    network        is

included        within       the        definition             of    "property"          found        in

§ 943.20(2)(b).          These are questions of statutory interpretation

which    we    review       de   novo.            Crown     Castle       USA,    Inc.     v.       Orion


                                                    8
                                                                            No.     11AP691



Constr. Group, LLC, 2012 WI 29, ¶12, 339 Wis. 2d 252, 811 N.W.2d

332.

                                         IV.     DISCUSSION

       ¶16    We    first       hold    that     submitting      fictitious       business

names and stolen personal identifying information as a means of

setting up phone numbers constitutes a "false representation"

for    purposes         of   the    theft-by-fraud        statute.    On    the     second

question     we     hold      that     because     AT&T   must   purchase     and    store
electricity to power its network, it was defrauded out of its

property     by    Steffes         and his fellow         conspirators.       For these

reasons, Steffes was appropriately prosecuted for conspiracy to

commit    theft         by    fraud    and   the    evidence     presented    at     trial

satisfied all the elements of that crime.

             A.     Submitting Fictitious Business Names and Stolen

        Personal Identifying Information Constitutes a "False

                                      Representation"

                   1.        History of Theft of Property by Fraud

       ¶17   The crime of theft by fraud traces its roots to a 1757

Act of the Parliament of Great Britain, which provided that

            All persons who knowingly and designedly, by
       false pretense or pretenses, shall obtain from any
       person   or    persons,   money,     goods,    wares    or
       merchandizes, with intent to cheat or defraud any
       person    or    persons   of     the     same . . . shall
       be . . . fined and imprisoned, or . . . be put to
       pillory,          or           publicly            whipped
       or . . . transported . . . for    the   term    of   seven
       years . . . .
James E. Simon, A Survey of Worthless Check Offenses, 14 Mil. L.

Rev. 29, 30 (1961) (quoting 30 Geo. 2, c.24, § 1).                         Prior to the

                                               9
                                                                      No.    11AP691



passage of this statute, English common law did not recognize

the "crime of obtaining property by false pretenses," as it was

then known.          State v. Semrau, 199 A.2d 580, 582 (Conn. App. Ct.

1963).        Instead, the remedy for someone who was defrauded out of

property was in civil court:               "[W]e are not to indict one man

for making a fool of another: let him bring his action."                         Reg.

v. Jones, (1703) 91 Eng. Rep. 330 (Q.B.).

        ¶18       The law passed by Parliament served as a template for
false       pretense    statutes   in    most   American   states.      Simon,      A
Survey       of    Worthless   Check    Offenses,   14   Mil.   L.   Rev.   at    30.

Indeed, Wisconsin's very first compilation of statutes contained

similar language.         See Wis. Stat. ch. 134, § 33 (1849).6             As this

court stated in 1859, one of the goals of the false pretense

statute was to "protect the weak and credulous from the wiles

and stratagems of the artful and cunning."                  State v. Green, 7

Wis. 571 [*676], 580 [*685] (1859) (quoting the Supreme Judicial

Court of Massachusetts's interpretation of an identical statute

in Commonwealth v. Drew, 36 Mass. 179, 184 (1837)).                    Or as the

        6
            That statute read:

     If any person shall designedly, by any false pretence
     or by any privy or false token, and with intent to
     defraud, obtain from any other person any money or
     goods, wares, merchandize or other property, or shall
     obtain with such intent the signature of any person to
     any written instrument, the false making whereof would
     be punishable as forgery, he shall be punished by
     imprisonment in the state prison not more than five
     years nor less than one year, or by fine not exceeding
     five hundred dollars nor less than fifty dollars.

Wis. Stat. ch. 134, § 33 (1849).

                                          10
                                                                                No.     11AP691



court of appeals more recently described it:                           "The purpose in

creating the statute was to protect unsuspecting citizens from

swindlers          who,    realizing    that     the        crimes    of    larceny          and

embezzlement required that property be taken without the owner's

consent, obtained the property of others with their consent by

means of willful misrepresentation and deliberate lying."                               State

v. O'Neil, 141 Wis. 2d 535, 539, 416 N.W.2d 77 (Ct. App. 1987).


       ¶19     In    the    ensuing    decades,        a    plethora       of    fraud       and

larceny      statutes      were    added   to   Wisconsin's          "offenses         against

property" statutory chapter.               See generally Wis. Stat. Ch. 343
(1953). The current theft-by-fraud statute was enacted in 1955

as a way of condensing these crimes into one law.                           See § 1, ch.

696, Laws of 1955; State v. Meado, 163 Wis. 2d 789, 797, 472

N.W.2d 567 (Ct. App. 1991) ("One of the objectives of the 1955

revision was to simplify the language and to state fully the

prohibition in fewer words than the previous statutes.").                               It is

with   this        background in mind         that     we    apply    the   contemporary

statute       to    Steffes's      argument     that       his   conviction           must   be

reversed because no member of the conspiracy promised to pay

AT&T for the phone services and thus no "false representation"

was made.

         2.        Steffes's Conduct as a Conspirator Falls Under Wis.

                                  Stat. § 943.20(1)(d)

       ¶20    The theft-by-fraud statute makes it illegal to:

       Obtain[] title to property                    of another person by
       intentionally deceiving the                   person with a false

                                           11
                                                                         No.     11AP691


       representation which is known to be false, made with
       intent to defraud, and which does defraud the person
       to whom it is made. "False representation" includes a
       promise made with intent not to perform if it is a
       part of a false and fraudulent scheme.
Wisconsin Stat. § 943.20(1)(d).                   Because Steffes was charged

with conspiracy to commit theft by fraud, the State was required

to prove that only one member of the conspiracy made a "false

representation."           See    Wis.    Stat.    § 939.31.        We    hold     that
providing         fictitious      business      names     and   stolen         personal

identifying information to a phone company with the intent of

setting      up     temporary     phone      numbers    constitutes       a      "false

representation."

       ¶21   The key to understanding why Steffes's argument lacks

merit is the second sentence of the statute.                     It says that a

false representation "includes a promise made with intent not to

perform."          Wis.   Stat.    § 943.20(1)(d)       (emphasis    added).         If

"includes"        were    replaced     with     "means"    or   "is,"      Steffes's

position would be on stronger footing.                     The word "includes,"

though, is not restrictive.                See 2A Norman J. Singer & J.D.
Shambie Singer, Sutherland Statutory Construction, § 47:7 (7th

ed. West 2012) ("[T]he word 'includes' is usually a term of

enlargement,        and    not    of     limitation . . . .      It,      therefore,

conveys the conclusion that there are other items includable,

though       not      specifically         enumerated . . . .")           (citations

omitted).     "Including" is another way of saying "is not limited

to."     See State v. Popenhagen, 2008 WI 55, ¶41 n.20, 309 Wis. 2d

601, 749 N.W.2d 611.           To reach the result desired by Steffes, we

would have to either rewrite or ignore the plain language of the

                                           12
                                                                        No.    11AP691



statute.       This we may not do.          See City of Menasha v. WERC, 2011

WI App 108, ¶18, 335 Wis. 2d 250, 802 N.W.2d 531 (noting that a

court       "may    not    substitute    [its]   judgment     for   that      of   the

legislature; [it] may not rewrite the statute.").

       ¶22     A court may read the word "includes" in a restrictive

manner       only    if    "there   is   some    textual    evidence      that     the

legislature intended the word 'includes' to be interpreted as a

term of limitation or enumeration."                  Popenhagen, 309 Wis. 2d
601, ¶43.          There is nothing in the two sentences of Wis. Stat.

§ 943.20(1)(d) to indicate that the legislature limited "false

representation"           to   situations    where   an    individual     makes     an

express promise to pay for items he has no intention of paying

for.        In fact, the statute quite clearly says just the opposite.

Accordingly, we reject Steffes's reading of the statute.7


        7
       For similar reasons, we dismiss Steffes's argument that
the circuit court gave improper jury instructions. The standard
jury   instructions    for  theft    by  fraud   define   "false
representation" as "one of past or existing fact.    It does not
include expressions of opinions or representations of law."
Wis. JI——Criminal 1453A.   The circuit court used this language
but also added that "[a] representation may be expressed, or it
may be implied from all of the circumstances surrounding the
transaction."   Steffes alleges that this addition rendered the
court's instructions legally incorrect.

     As a general matter, we first note that a circuit court has
wide latitude to give instructions based on the facts of a case.
State v. McCoy, 143 Wis. 2d 274, 289, 421 N.W.2d 107 (1988).
The court may exercise its discretion regarding both the
language and emphasis of the instruction.     Id.  "Only if the
jury instructions, as a whole, misled the jury or communicated
an incorrect statement of the law will we reverse and order a
new trial." State v. Laxton, 2002 WI 82, ¶29, 254 Wis. 2d 185,
647 N.W.2d 784.

                                            13
                                                                                     No.    11AP691



        ¶23    Having      rejected      Steffes's       view       that    the       State       was

required to show that a member of the conspiracy promised to pay

for the phone services, we hold that there was ample evidence

that a "false representation" was made.                              Telephone companies

require       new    customers      to   provide        contact       information           for    a

reason: if the customer does not pay, the information enables

the     company       to   shut    off      service,      demand          payment,         and     if

necessary,       begin       collection      proceedings.             A    phone       company's
contractual rights are therefore violated when individuals give

false information in order to evade payment.                               If Steffes were

correct,      telephone        providers      would      be     required        to     undertake

exhaustive          background     checks       on    each    potential         customer           to

ensure that the information provided was accurate.                                   The theft-

by-fraud      statute      does    not    require       the   State        to   show       that     a

consumer made an express promise to retailers that he would pay

the full amount owed.                 The evidence in this case more than

supports      the     jury's      finding    that       false       representations              were

made.     See State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d

752     (1990)       (this    court      will        uphold     a    conviction            if     any

reasonable inferences support it).




     As we explain in this opinion, making an express promise to
pay is one way, but not the only way, to make a "false
representation." Given the facts in this case, it was not only
entirely appropriate for the circuit court to instruct the jury
as it did, but it would have been legally incorrect for the
court to say that a false representation required an express
promise to pay, as Steffes believes. The circuit court was well
within its discretion to choose the words that it did.

                                             14
                                                                    No.   11AP691



          B.     The Applied Form of Electricity Used by AT&T is

               "Property" Under Wis. Stat. § 943.20(2)(b)

    ¶24   Steffes     next     alleges    that   his   conviction    should   be

reversed because what he and his co-conspirators stole was not

property, but rather telephone services.8              According to Steffes,



    8
       Steffes also presented a narrower version of this argument
before the court of appeals.       There, he asserted that the
evidence adduced at trial was insufficient to prove that he
stole more than $2,500 worth of electricity, and thus his
convictions should be reduced from a felony to a misdemeanor.
See Wis. Stat. § 943.20(3)(a) (making it a Class A misdemeanor
if the property stolen does not exceed $2,500).      Steffes does
not make this argument before our court, and in any event, we
reject this contention. At trial, when Robert Lindsley (an AT&T
engineer) was asked how much electricity is used in a typical
phone call, he replied that he could not "quantify" the amount
"because every circuit is different" depending on the distance
of the call.   Steffes presented no evidence that the amount of
electricity stolen was less than $2,500. The State, meanwhile,
made its case that Steffes stole $13,541.63 of property in count
one and $14,519.78 in count two. On both counts, the jury was
asked the following on the verdict form:

    Was the       value   of     the     property   stolen   more     than
    $10,000?

    Yes___ No ___

    If you answer the preceding question NO, then answer
    this question:

    Was the value of the property stolen more than $5,000?

    Yes___ No ___

    If you answer the preceding question NO, then answer
    this question:

    Was the value of the property stolen more than $2,500?

    Yes___ No ___

                                         15
                                                                       No.    11AP691



the applied electricity used by AT&T to power its network does

not fall within the ambit of the statute.                   The State responds

that because AT&T owns the electricity that powers the telephone

lines, the conspiracy           carried     out   by   Steffes   and   the   others

clearly amounted to theft of AT&T's property via fraud.

    ¶25    To        restate,    "property"       under    the    theft-by-fraud

statute is defined as "all forms of tangible property, whether

real or personal, without limitation including electricity, gas

and documents which represent or embody a chose in action or

other intangible rights."            Wis. Stat. § 943.20(2)(b) (emphasis

added).    "Electricity" is not given a specific definition in the

statute.     "When a word of common usage is not defined in a

statute, we may turn to a dictionary to ascertain its meaning."

Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶14, 294

Wis. 2d 274, 717 N.W.2d 781.              In searching for the appropriate

dictionary definition of "electricity" we are mindful of the

"ordinary-meaning canon," which provides that "[w]ords are to be

understood      in    their     ordinary,      everyday   meaning——unless        the

context indicates that they bear a technical sense."                         Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of



     The jury answered that the property stolen from AT&T was
worth more than $10,000 on both counts.      Given the evidence
presented at trial by the State, we will not disturb the jury's
conclusion that Steffes stole more than $10,000 of applied
electricity from AT&T.    See Morden v. Cont'l AG, 2000 WI 51,
¶39, 235 Wis. 2d 325, 611 N.W.2d 659 ("[A]ppellate courts search
the record for credible evidence that sustains the jury's
verdict, not for evidence to support a verdict that the jury
could have reached but did not.").

                                          16
                                                                                 No.     11AP691



Legal Texts 69 (2012).                    A court "should assume the contextually

appropriate ordinary meaning unless there is reason to think

otherwise."         Id. at 70.                 As nothing in § 943.20(2)(b) indicates

that "electricity" was intended to have a technical meaning, we

will       look    at    the          common     understanding     of    the    word.        One

dictionary defines "electricity" as an "[e]lectric current used

or    regarded      as        a       source    of   power."      The    American      Heritage

Dictionary of the English Language 575 (5th ed. 2011).                                  Another
defines it similarly:                    "A supply of electric current laid on in

a building or room."                    Shorter Oxford English Dictionary 807 (6th

ed.    2007).           And       a    dictionary     published    around      the   time    the

current theft-by-fraud statute was enacted defined "electricity"

as an "electric current" with examples of its use as "to install

electricity; a machine run by electricity."                              The Random House

Dictionary of the English Language 459 (1966).                            Coursing through

these definitions is the notion that the word "electricity," as

it    is    used    in        its       everyday     parlance,    means     something       that

provides power.

       ¶26    A    straightforward                reading   of    this   statute       combined

with the use of dictionaries unequivocally supports the State's

view that Steffes stole electricity from AT&T.                            To surmount this

textual and lexicographical hurdle, Steffes describes a parade

of horribles that will supposedly be unleashed if we uphold his

conviction         under          Wis.     Stat.      § 943.20(1)(d).          For     example,

Steffes claims that the failure to pay a dental or barber bill

could result in prosecution for theft by fraud because dentists


                                                     17
                                                                                        No.     11AP691



and    barbers       use       electricity         when      cleaning         teeth   and     cutting

hair.     The difference, however, between not paying a dentist's

or barber's bill and defrauding a phone company is that the

dentist      and     barber       do    not    own       the       electricity        they     use   to

provide services to customers, but rather pay a utility company

to heat and light their offices.                        AT&T, by contrast, must buy AC

power, turn it into DC power, and store it in batteries at one

of its networks.                 The electricity used by AT&T is thus its
"property" for purposes of the theft-by-fraud statute.                                           Given

this     fundamental            difference,             we        do    not     share       Steffes's

prosecutorial slippery slope concerns.                                 Cf. Robert H. Bork, The
Tempting of America 169 (1990) ("Judges and lawyers live on the

slippery slope of analogies; they are not supposed to ski it to

the bottom.").

       ¶27    What        is    more,       this    court          does   not    issue        advisory

opinions      on    how        a statute       could         be    interpreted        to    different

factual       scenarios          in     future          cases.            See     Grotenrath         v.

Grotenrath, 215 Wis. 381, 384, 254 N.W. 631 (1934) ("[C]ourts

will not ordinarily render advisory opinions where the questions

propounded have not arisen and may never arise.").                                         Rather, it

is our job to adjudicate the dispute in front of us.                                       It is thus

not necessary for us to resolve the hypotheticals laid out by

Steffes.          See Gortmaker v. Seaton, 450 P.2d 547, 548 (Or. 1969)

(en banc) ("It is fundamental to appellate jurisprudence that

courts       do     not    sit        'to     decide         abstract,         hypothetical,         or

contingent questions . . . .'") (citation omitted).


                                                   18
                                                                                       No.     11AP691



        ¶28     An issue raised at oral argument——but not briefed by

Steffes——is          that       Steffes's        conduct      fell     under     the    "theft       of

telecommunications                   service"       statute,       Wis.     Stat.        § 943.45.

Because the parties did not address this question, we will not

answer        whether          Steffes      could      be    charged      under    any       of     the

provisions in § 943.45(1).                       See State v. Pettit, 171 Wis. 2d

627,    646,        492       N.W.2d       633   (Ct.       App.   1992)    (noting          that    an

appellate          court       may    decline       to     address     issues     that       are    not
briefed); see also State v. Johnson, 153 Wis. 2d 121, 124, 449
N.W.2d 845 (1990) (declining to address an issue not briefed).

We do, however, pause to note that whether Steffes could have

been charged with a different crime for the same conduct is not

determinative of whether Steffes's conviction for theft by fraud

was valid.

        ¶29    That        a    prosecutor         has      discretion     in     deciding         what

charges to bring is codified in this state's law:                                  "[I]f an act

forms    the       basis        for    a   crime      punishable       under     more    than       one

statutory provision, prosecution may proceed under any or all

such provisions."                Wis. Stat. § 939.65.                As we have said, "This

section       gives       a     green      light      to    multiple     charges,       which       may

result        in     multiple          convictions,          under     different         statutory

provisions."              State v. Davison, 2003 WI 89, ¶51, 263 Wis. 2d

145,     666       N.W.2d         1     (emphasis          removed).        It     is        entirely

permissible for a prosecutor to base a charging decision upon

the penalty scheme set by the legislature for each potential

crime.         Cf.    United          States     v.      Batchelder,      442    U.S.    114,       125


                                                      19
                                                                            No.       11AP691



(1979)   ("The      prosecutor    may      be    influenced      by   the     penalties

available upon conviction, but this fact, standing alone, does

not give rise to a violation of the Equal Protection or Due

Process Clause.").          As long as a charging decision is not based

on an arbitrary or discriminatory classification such as race or

religion,     prosecutors     have     broad      discretion     in   deciding             what

charges to bring.           State v. Ploeckelman, 2007 WI App 31, ¶13,

299 Wis. 2d 251, 729 N.W.2d 784.                       The ultimate question is
whether the state can prove all the elements of the alleged

offense.

      ¶30   The elements of theft by fraud are: (1) the victim was

the   owner    of     property;      (2)        the    defendant      made        a    false

representation       to     the   owner;        (3)    the    defendant      knew          the

representation        was     false;       (4)        the    defendant       made          the

representation with intent to deceive and to defraud the owner;

(5) the defendant obtained title to the property by the false

representation;      (6) the      owner     was       deceived   or   misled          by   the

representation; (7) the owner parted with title to the property

in reliance on the false representation and was thus defrauded.

Wis JI——Criminal 1453A.           AT&T purchased AC power from a utility

company and turned it into DC power by storing it in batteries.

It was thus the owner of the electricity, satisfying element

number one.      As for the next three elements, we explained in the

previous section that members of the conspiracy knowingly made

false representations to AT&T with the intent of deceiving and

defrauding the company.           The fifth element is satisfied by the


                                           20
                                                                  No.    11AP691



fact that Steffes made hundreds of phone calls over AT&T's phone

lines.9       Finally, on the last two elements, AT&T was deceived

into       parting   with   its   property   in   that   it   relied    on   the

fictitious       business    names   and     stolen   personal   identifying

information that Steffes and his co-conspirators provided as a

means of fraudulently setting up phone numbers.                  As all the


       9
       The phrase "[o]btains title to property" found in Wis.
Stat. § 943.20(1)(d) seems to indicate that a defendant must
acquire actual legal title to an item to be convicted of theft
by fraud. The court of appeals addressed this issue in State v.
Meado, 163 Wis. 2d 789, 793, 472 N.W.2d 567 (Ct. App. 1991),
when it was presented with the question of whether a defendant
who fraudulently obtained a lease——but not full title——to a van
could be prosecuted under the statute.     The answer was yes,
because if the court "adopted [Meado's] argument that actual
title is required to pass, an actor would have to obtain the
legal document that is evidence of the title before the actor
could be charged with violating" § 943.20(1)(d).     Meado, 163
Wis. 2d at 798 (emphasis in original).     This reading of the
statute "would reward the industrious and designing thief who,
having   perpetrated   the   proper  fraud   by   making   false
representations, could escape criminal liability as long as the
official title remained with the owner as security."   Id.   The
Wisconsin Criminal Jury Instructions Committee agrees with this
view as well. Wis JI——Criminal 1453A, Comment 5.

     We concur with the Meado court's interpretation of Wis.
Stat. § 943.20(1)(d). Very few pieces of property actually have
a legal title with a name on it. If the state had to show that
a defendant was a title holder of the property he stole, theft
by fraud would be impossible to prosecute for a wide swath of
cases.    Furthermore, it would be absurd if fraudulently
obtaining title to a home or vehicle were criminalized but the
exact same conduct were legal so long as the perpetrator were
only leasing.   Cf. Kalal v. Circuit Court for Dane Cnty., 2004
WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (observing that
statutes are interpreted to avoid absurd or unreasonable
results).   For these reasons, we hold that 943.20(1)(d) only
requires the prosecution to show that the defendant obtained the
property.

                                       21
                                                                      No.   11AP691



elements   of   theft     by   fraud   were   met    in   this   case,      it    is

irrelevant whether Steffes could have been prosecuted under a

different statute.

                                  V.   CONCLUSION

     ¶31 Two issues are presented in this case.                  The first is

whether submitting fictitious business names and stolen personal

identifying information is a "false representation" under Wis.

Stat. § 943.20(1)(d).          Steffes alleges that such conduct is not
a false representation because the statute requires that the

actor make an express promise to pay.                 The second issue is

whether the     applied    electricity      that   AT&T   uses   to    power     its

network is included within the definition of "property" found in

§ 943.20(2)(b).     Steffes argues that his conviction cannot be

sustained because the evidence at trial showed that he stole

telephone services and not property.

     ¶32   On the first issue we hold that Steffes made "false

representations" to AT&T.          The theft-by-fraud statute says that

"'[f]alse representation' includes a promise made with intent

not to perform if it is part of a false and fraudulent scheme."

Wis. Stat. § 943.20(1)(d) (emphasis added).                 Because the word

"includes" is not restrictive, the statute clearly anticipates

that other conduct aside from an express promise falls under the

umbrella of a "false representation."              The scope and history of

the theft-by-fraud statute make plain that providing fictitious

business names and stolen personal identifying information to a




                                       22
                                                                      No.     11AP691



phone company as a way of avoiding payment falls within the

meaning of "false representation."

      ¶33    As to the second issue, "property" under the theft-by-

fraud statute is defined as "all forms of tangible property,

whether      real      or   personal,       without     limitation        including

electricity, gas and documents which represent or embody a chose

in    action      or    other      intangible       rights."         Wis.      Stat.

§ 943.20(2)(b) (emphasis added).              Relying on the plain language
of the statute in conjunction with commonly used dictionaries,

we   conclude     that Steffes      stole    electricity    from    AT&T.       AT&T

purchases and stores electricity to power its network.                          When

consumers make phone calls, AT&T must buy more electricity.                      The

conspiracy       perpetrated    against      AT&T     therefore     deprived     the

company     of   its   property.      We     affirm   the   court    of     appeals.

By the Court.—The decision of the court of appeals is affirmed.




                                        23
                                                                   No.    2011AP691-CR.ssa




      ¶34    SHIRLEY S. ABRAHAMSON, C.J.                 (dissenting).             In common

parlance,      Matthew         Steffes,       the      defendant,        and       his      co-

conspirators       set    up   a   complicated         scheme     to    steal      from     the

telephone     company.           They       intended    to,      and    did,       bilk     the

telephone company of what the telephone company sells——telephone

services.

      ¶35    The    defendant          is   not,    however,     guilty       of    a     crime

unless the State can prove beyond a reasonable doubt that he

violated the terms of a specific statute.                        Why?     Because there

are   no    common       law   crimes       in     Wisconsin.1         All     crimes      are

statutorily defined.

      ¶36    The defendant in the present case was charged with,

and found guilty of, violating Wis. Stat. §§ 943.20(1)(d)2 and

943.20(3)(c),3 a         class     G    felony.        These    statutes       criminalize

      1
       Wis. Stat. § 939.10.     See also State                           v.    Genova,       77
Wis. 2d 141, 145-46, 252 N.W.2d 380 (1977).
      2
          Wisconsin Stat. § 943.20(1)(d) reads:

      (1) Acts. Whoever does any of                        the     following         may     be
      penalized as provided in sub. (3):

             . . . .

      (d) Obtains title to property of another person by
      intentionally deceiving the person with a false
      representation which is known to be false, made with
      intent to defraud, and which does defraud the person
      to whom it is made. "False representation" includes a
      promise made with intent not to perform it if it is a
      part of a false and fraudulent scheme.
      3
          Wisconsin Stat. § 943.20(3)(c) provides:

      (3) Penalties. Whoever violates sub. (1):

                                              1
                                                         No.     2011AP691-CR.ssa


fraudulently obtaining the property of another with a value in

excess of $10,000.

     ¶37    The question of law presented in the instant case is,

as the majority opinion states at ¶15:               "[W]hether the applied

electricity that AT&T uses to power its network is included in

the definition of 'property' found in § 943.20(2)(bparlan)."                  As

the majority opinion explains at ¶¶9-10, the telephone company

uses electricity to power the transmission of telephone calls.4

     ¶38    Electricity is specifically enumerated as "property"

subject to the statute.5       Wisconsin Stat. § 943.20(2)(b) defines

the word    "property"   for   purposes     of   the   statute     as    follows:

"'Property' means all forms of tangible property, whether real

or personal, without limitation including electricity, gas and

documents which represent or embody a chose in action or other

intangible rights."6

     ¶39    Services,    including       telephone     services,        are   not

included within the statutory definition of property.7


            . . . .

     (c) If the value of the property exceeds $10,000, is
     guilty of a Class G felony.
     4
       I agree with the majority            opinion that the            defendant
engaged in false representation              to defraud the             telephone
company.
     5
       The jury was instructed that under Wisconsin law the term
"property" includes electricity.
     6
         Wis. Stat. § 943.20(2)(b).
     7
       Theft of services cannot be prosecuted under Wis. Stat.
§ 943.20 of the Criminal Code.       See William A. Platz, The
Criminal Code, 1956 Wis. L. Rev. 350.

                                     2
                                                    No.   2011AP691-CR.ssa


     ¶40   I write on two issues of law presented:          (1) whether

stealing   telephone   services       from   the   telephone     company

constitutes stealing electricity under the statute at issue; and

(2) if so, whether the value of the telephone services equals

the value of the electricity stolen under the statute at issue.


     Early drafts of the statute in 1950 (Bill No. 784, S.) and
1953 (Bill No. 100, A.,), included explicit language listing
services as property subject to theft under § 943.20.       See
Drafting Records for 1950 Bill No. 784, S. and 1953 Bill No.
100, A., on file at Wis. Legislative Reference Bureau, Madison,
Wis.

     The legislature later removed all language regarding
services and intangible property from the statute it eventually
enacted in 1955.   Ch. 696, Laws of 1955, § 943.20(2)(a) (eff.
July 1, 1956).

     In 1960, Gordon B. Baldwin, Professor of Law and assistant
dean at the University of Wisconsin Law School, summarized the
comprehensive   changes   to   the   Criminal  Code   regarding
misappropriation.  He explained that the definition of property
in § 943.20 "does not reach the deceiver who takes labor and
services from another without any intention of paying."
Professor Baldwin advised that "[i]f criminal sanctions are
needed to protect [service providers] specific statutes must be
enacted."

     Professor Baldwin wrote:

    The comprehensive definition of property in the
    Criminal Code does not, however, reach all persons who
    intend a misappropriation.     It does not reach the
    deceiver who takes labor and services from another
    without any intention of paying.           The doctor,
    architect, engineer    and garagemen [sic]      may be
    victimized and deserves protection, but the property
    definitions are not comprehensive enough to cover
    these misappropriations of services and time.       If
    criminal sanctions are needed to protect them specific
    statutes must be enacted (emphasis in original).

Gordon B. Baldwin, Criminal Misappropriation in Wisconsin – Part
I, 44 Marq. L. Rev. 253, 262 (Winter 1960-61).

                                  3
                                                                    No.   2011AP691-CR.ssa


      ¶41    The State chose, as is its prerogative, to charge the

defendant with violation of the felony statute.8                          I do not agree

with the State or the majority opinion that stealing telephone

services that apply electricity is stealing electricity within

the   meaning      of   Wis.   Stat.      § 943.20.          Even    if    stealing      the

telephone services can be shoehorned into the statutory concept

of stealing electricity, I do not agree with the majority that,

as a matter of law or fact, the value of electricity stolen is

the   same    as    the   market        value    or    replacement        value    of    the

telephone services stolen.              I therefore dissent.

                                            I

      ¶42    I   conclude      as   a    matter       of   statutory      interpretation

that the defendant did not steal electricity from the telephone

company under the statute at issue.

      ¶43    Electricity powers our 21st Century world.                             We all

purchase electricity or use electricity purchased by others to

power our lives.          The telephone company purchases electricity

and provides services that are powered by electricity.

      ¶44    The majority opinion               defines     electricity:         "[I]n   its

everyday     parlance [electricity]             means      something      that    provides

power" and that "[a] straightforward reading of this statute

combined with the use of dictionaries unequivocally supports the

      8
       The State might have charged and proved a violation of
Wis. Stat. § 943.45, entitled "Theft of Telecommunications
Service." The penalty is, at most, a Class B misdemeanor.

     The State in future similar cases might use Wis. Stat.
§ 943.50, creating a felony for the theft of services valued at
more than $500.    This statute was enacted in 2011, after the
defendant's conduct and the trial in the present case occurred.

                                            4
                                                                     No.   2011AP691-CR.ssa


State's      view        that    Steffes     stole     electricity           from   AT&T."

Majority op., ¶¶25-26.

       ¶45    The majority opinion seems to rely on two theories to

support its interpretation of the statutory word "electricity."

First, it asserts that "applied electricity" is included within

the statutory word "electricity."                  Second, it asserts that the

telephone company differs from the typical user of electricity

or service provider that powers its services with electricity.

Why?       Because       the    telephone    company,    unlike        other     users   of

electricity         or     service      providers,      owns     the         electricity.

Majority op., ¶¶26, 30.

       ¶46    The    majority        opinion,    the   State,    and       the   court   of

appeals      interpret         the   word   "electricity"       in     the    statute    to

include "applied electricity."

       ¶47    The majority opinion defines the word "electricity,"

as we stated above, but does not define the phrase "applied

electricity."        The phrase "applied electricity" does not appear

in dictionaries or in glossaries discussing electricity.9                                So
what is the meaning of the phrase?

       ¶48    At trial, the State presented testimony that telephone

services are included in the definition of "property" because

telephone service uses an "applied form of electricity."                            Robert

Lindsley, an electrical engineer and manager for the telephone



       9
       See, e.g., 8 Cyclopedia of Applied Electricity 483 (1921)
(glossary of electrical terms); see also Clair A. Bayne, Applied
Electricity & Electronics 656-70 (2000) (glossary of important
terms).

                                             5
                                                                           No.    2011AP691-CR.ssa


company offered his expert opinion that "when you, you know, use

your phone, you are using an applied form of electricity."10

        ¶49       In its brief to the court of appeals, the State argued

that "[t]he 'property' obtained by the installation and use of

the fraud [sic] telephone lines by false representation were

[sic]        valuable         telephone      services          which    involve       an    'applied

form' of electricity                  and,       as   such,      is    'property'      within      the

scope        of    the   statute. . . . Those                  calls    simply    could      not   be

completed without electricity (unless the co-conspirators used

tin   cans         and    miles       of   string         to    transmit    voice      impulses).

Electricity              is      an        essential           component         of        telephone

service . . . ."11

      ¶50         Interpreting             the        statutory         word      "electricity"

appearing in Wis. Stat. § 943.20(2)(b), the court of appeals

concluded as a matter of law that "electricity" as used in the

statute           includes      "applied         electricity,"          that     is,       that    the




        10
             Testimony of Robert Lindsley, in part:

      When the telephone company bills a telecommunications
      network, it also bills a power network to support that
      telecommunications   network.     That  power   network
      splices electricity to the telephone network, and
      without that electricity, the telephone network would
      not be able to——to cause communications to occur over
      that network. Basically, when you, you know, use your
      phone, you are using an applied form of electricity.

     When Robert Lindsley was asked whether he knew the
telephone company's cost to power the phone system, he testified
that he did not.
      11
             State's court of appeals brief at 16.

                                                      6
                                                                      No.    2011AP691-CR.ssa


statute includes electricity used to transmit the human voice

via telephone lines.12

       ¶51    In its brief before this court, the State argues that

"property" under Wis. Stat. § 943.20(2)(b) includes electricity

in its applied form; that "[t]he electricity and the telephone

system to which it was applied were inextricably linked," and

that    "[e]lectricity       is     an    essential       component          of     telephone

service . . . ."13

       ¶52    Thus, the phrase "applied electricity" simply refers

to the application of electricity in some manner.                            The phrase is

used    to    mean   how    and    when    electricity          is    used     to    power    a

particular       product      or        service.           The        phrase        "applied

electricity,"        as    used    in     the    majority        opinion,         means   the

telephone      company      applies       electricity         in      the     delivery       of

telephone services.           More broadly, "applied electricity" means

any application of electricity.

       ¶53    This use of the phrase "applied electricity" is the

ordinary      use of the phrase.                Accordingly,         the    Cyclopedia       of

Applied       Electricity     describes          itself       as      "a     complete      and

practical working treatise on the generation and application of

electric       power."14          According       to    the        Cyclopedia:            "The



       12
       State v. Steffes,                  2012     WI     App        47,    ¶¶23-24,       340
Wis. 2d 576, 812 N.W.2d 529.
       13
            State's Brief at 28.
       14
       1 Cyclopedia of Applied Electricity 7 (1921). Still, the
term "applied electricity" is not found in the Table of Contents
or the Index.

                                            7
                                                                No.    2011AP691-CR.ssa


applications of the electric current are numberless and are to

be found in every home. . . . Think again of the telephone, the

wire    and    wireless       telegraphs,      and    the     thousands        of     other

application of the electric spark, and electric energy which

contribute to our daily comfort."15

       ¶54    Thus,    stealing      "applied       electricity"      means         in   the

present case, according to the majority opinion, stealing the

electricity used to power the telephone services.                       Majority op.,

¶5.

       ¶55    If the criminal statute at issue includes electricity

used to power telephone services as property, then the majority

opinion      has,     in   effect,    rewritten       the     statute     to        include

numerous services that are powered by electricity.

       ¶56    The     State     attempts       to     avoid     this      result         by

distinguishing telephone          services      from    other    "services           [that]


     The phrase "applied electricity" is most often used as a
textbook title, in a similar manner to the phrase "Applied
Mathematics."

     See also Principles of Electricity Applied to Telephone and
Telegraph Work (1961) (The title page describes the text as "[a]
Training Course Text Prepared for Employees of the Long Lines
Department, American Telephone and Telegraph Company."       The
Preface explains that this edition of the text "has required the
introduction of certain basic concepts and principles not dealt
with in earlier editions, as well as numerous examples to
illustrate their applications in practice."); Clair A. Bayne,
Applied Electricity and Electronics (2000) (The phrase "applied
electricity" is in the title of the text, but is not found in
the Table of Contents, the Index, or the Glossary of Important
Terms.).
       15
       1 Cyclopedia of Applied Electricity 8 (1921).                                 For a
discussion of electricity applied to the telephone,                                  see 8
Cyclopedia of Applied Electricity 11-90 (1921).

                                           8
                                                               No.    2011AP691-CR.ssa


involve    the   use    of   electricity      (i.e.,     legal       advice    over   a

telephone or the barber's use of electric hair clippers)."                        From

the State's vantage point, electricity is incidental to numerous

services     but,      in    contrast,       integral     to     the        telephone.

Employees, skills, time, machinery, and labor are incidental to

telephone services but, in contrast, according to the State,

integral to other services that use electricity.                        The State's

brief explains the differences among service providers that use

applied electricity as follows:

    The obvious difference is that the telephone lines
    cannot function, and so the service cannot be
    provided, without an enabling electrical system:
    electricity is essential to the service.     A telephone
    system cannot exist without it.       The customer who
    purchases access to a phone line purchases the
    electricity that powers it.      Legal services and a
    haircut can, theoretically, be provided without using
    electricity (a face-to-face meeting with a lawyer; a
    barber's scissors or straight razor). The electricity
    used in connection with those services is only
    incidental to the service itself. It is the value of
    the lawyer's skill and time, and the barber's skill
    and labor, that is lost when those services are
    fraudulently obtained by the lawyer's client or the
    barber's customer.    The telephone company loses the
    value of the applied form of electricity when its
    services are fraudulently obtained; the value of the
    telephone company's spent employee skills, time and
    labor are only incidental to that service.16
     ¶57    This    argument     is    unpersuasive,          and     the     majority

opinion rightfully refuses to adopt it.

     ¶58    Service     providers     other    than     the    telephone      company

require electricity to operate.              For example, the dentist uses

electricity to power the lights, the dental chair, the drill,

     16
          State's Brief at 32 n.15 (emphasis in original).

                                         9
                                                                No.   2011AP691-CR.ssa


the electric toothbrush, the suction apparatus, the ultrasonic

sterilizer, the sealant gun, the x-ray machine, the security

system, and computers.           Even the old-school barber, with only

her scissors and straight razor, needs lights to see what she is

doing.      As I recently discovered, when the electricity is shut

off for a few hours, the barber closes up shop.

      ¶59    Without electricity, neither the telephone company nor

the   dentist      nor    the   barber    can    operate.         Electricity      is

essential and integral to telephone and dental and barbering

services and telephone and dental and barbering services all

also require human skills, time, labor, and equipment.

      ¶60    In lieu of the State's argument that "electricity is

integral      to     telephone       services,"         the     majority     opinion

distinguishes       telephone    services       using    "applied      electricity"

from other services using "applied electricity" based on the

notion     that    the   telephone   company     owns     the    electricity     that

powers the telephone services.                Robert Lindsley explained that

the telephone company purchases AC power from the commercial
utility, converts the electricity into DC power, and stores that

energy in batteries so that in the event of a power outage, the

telephone company can use the energy from the batteries to power

the telephone system.17
      17
           Testimony from AT&T expert Robert Lindsley:

      There are two different forms of power.    There is AC
      power, which is what you would get out of your AC
      outlet at your home, and you are getting that from the
      commercial utility. And then there is DC power. The
      difference between AC and DC power is DC power, which
      is direct current power, can be stored in batteries.
      AC power cannot be stored in batteries.
                                         10
                                                           No.   2011AP691-CR.ssa


      ¶61    The      majority    opinion      promotes    the      "ownership"

distinction as follows:

      The   difference,  however,  between   not  paying   a
      dentist's or barber's bill and defrauding a phone
      company is that the dentist or barber do not own the
      electricity they use to provide services to customers,
      but rather pay a utility company to heat and light
      their offices. AT&T, by contrast, must buy AC power,
      turn it into DC power, and store it in batteries at
      one of its networks. The electricity used by AT&T is
      thus its "property" for purposes of the theft-by-fraud
      statute.18
      ¶62    The majority opinion's theory of the distinctiveness

of   electricity      that    powers    telephone    service     based   on   the

telephone company's ownership of electricity is not supported by
fact or law.

      ¶63    First, it seems to me that the majority opinion may be

misreading the record regarding the concept of and importance of

the telephone company's storage and "ownership" of electricity.

Very little testimony discusses this issue.               No one focused on

this topic at trial.           Yet a plain reading of Robert Lindsley's

testimony     seems    to    indicate   that   the   telephone    company     only
converts and stores electricity for use during a power outage

and may simply transmit the electricity it normally receives.




      So the telephone company actually buys AC power from
      the commercial utility, rectifies that DC——or excuse
      me.   The AC power into a DC form, stores that energy
      in batteries so that if we lose commercial power to
      our central office, your phone continues to work.
      18
           Majority op., ¶26 (emphasis in original).

                                        11
                                                                 No.     2011AP691-CR.ssa


       ¶64    Furthermore, other           service     providers       may   also store

(and     thus    "own")      electricity     for       later   use.19        A   dentist

purchases electricity to charge the laptop, cell phone, cordless

phone,      portable   x-ray    machine,         and   other   portable      electronic

devices.        The dentist stores the electricity in the devices'

batteries       and   then    uses   the    electricity        later    to   perform   a

service.20




       19
       The   majority  opinion  attempts  to  distinguish  the
telephone company from other service providers and yet asserts
at the same time that comparing service providers creates a
slippery slope and unnecessary hypotheticals.    Majority op.,
¶¶26-27.

     Looking at how other service providers use electricity and
at whether theft of their services can be prosecuted under the
majority opinion's interpretation of the statute at issue is
helpful to ensure that the statute is being interpreted
correctly and that it will be applied consistently in the future
to similar cases.   Were a person to fraudulently acquire cable
television or internet service or a ticket on an electric train,
could that person be successfully prosecuted for stealing
electricity under the majority opinion's interpretation of the
statute at issue in the present case?
       20
       See John Bird, Electrical and Electronic Principles and
Technology 28-29 (3d ed. 2007):

       The battery is now over 200 years old and batteries
       are found almost everywhere in consumer and industrial
       products. Some practical examples where batteries are
       used include:

       In laptops, in cameras, in mobile phones, in cars, in
       watches   and clocks,    for  security   equipment, in
       electronic meters, for smoke alarms, for meters used
       to read gas, water and electricity consumption at
       home, to power a camera for an endoscope looking
       internally at the body, and for transponders used for
       toll collection on highways throughout the world.

                                            12
                                                                     No.   2011AP691-CR.ssa


      ¶65       Second, as a matter of law, the majority opinion's

reliance on the telephone company's "ownership of electricity"

as   the    determinative       factor       under      the    statute     at    issue    is

erroneous.        This ownership distinction is contrary to law and

the purpose of the theft statute.21

      ¶66       The purpose of the theft statutes is to prevent the

taking     of    property     without    the      consent      of    the   owner    or   the

person who has constructive or actual possession.22

      ¶67       Property may be stolen from anyone who has the right

to   possess      and   use    a     thing    to     the      exclusion     of     others.23

Possession and control over the use of property is all that is

required in order for it to be stolen.                              Electricity may be

diverted (stolen) from one that takes and stores electricity or

one that simply pays to possess and use electricity.


      21
       Mitchell v. State, 84 Wis. 2d 325, 339, 267 N.W.2d 349
(1978) (the offenses involving personal property contained in
Chapter 943 consistently make possession of the property, not
ownership, the key factor).

     See also Wis. Stat. § 943.32(3) (for purposes of the
robbery statute, "owner" means a person in possession of
property whether the person's possession is lawful or unlawful).

     See also Wis. Stat. § 971.33, Possession of property (in
the prosecution of a crime committed by stealing, damaging, or
fraudulently receiving or concealing personal property, it is
sufficient if it is proved that at the time the crime was
committed either the actual or constructive possession or the
general or special property in any part of such property was in
the person alleged to be the owner thereof).
      22
       See generally 3 Wayne R. LaFave, Substantive Criminal Law
§ 19.2(a) (2d ed. 2003).
      23
       See   Mitchell           v.     State,      84      Wis. 2d 325,          339,    267
N.W.2d 349 (1978).

                                             13
                                                                       No.    2011AP691-CR.ssa


     ¶68     The    two     dead    giveaways       for     me       that    the    State     was

prosecuting the defendant for theft of telephone services, not

for the theft of electricity, were the charging documents and

the State's argument that the value of the telephone services

stolen equals the value of the electricity stolen.24

     ¶69     The criminal complaint and information do not mention

electricity.        These documents simply allege that the defendant

stole both services and property.

     ¶70     The    only        reference    in    the    complaint          to    the     stolen

property    and     its     value     is    in    Section        1    of     the    complaint,

entitled    Summary        of    Allegations,       which    explains,             "All    tolled

[sic],     SBC    representatives           calculate       that       this       fraud     group

bilked the Phone Company out of about $40,000 in phone service

fees."

     ¶71    The      First        Amended        Information          alleges        that     the

defendant conspired to "obtain[] title to the property of [the

telephone company], having a value exceeding $10,000 . . . [by

making]     a      false        promise     to     pay    for         telephone           service




     24
       According to testimony at trial, telephone service fees
paid by telephone customers not only pay for the electricity
used to power the system, but also pay for the transmission
wires, cables, offices, employees, and other machines and
equipment.

                                             14
                                                 No.   2011AP691-CR.ssa


accounts . . . ."    The information does not specify the property

that was the object of the conspiracy.25

     25
       The defendant was initially charged in 2004, pled no
contest, was sentenced, and then was permitted to withdraw his
no-contest plea in 2009. After the plea was withdrawn, a Third
Amended Information was filed, which restated charges filed
years earlier in the First Amended Information.       The Third
Amended Information is not in the record, but the First Amended
Information is in the record, and represents the charges brought
at trial.

     First Amended Information:

     COUNT   01:  CONSPIRACY   TO  MISAPPROPRIATE  PERSONAL
     IDENTIFYING INFORMATION, HABITUAL CRIMINALITY (As to
     Defendants Matthew Steffes and Joshua Howard)

     Between    about July 1, 2002 and December 1, 2002, at
     various    locations within the County of Milwaukee, with
     intent    that a crime be committed, did combine with
     another   for the purpose of committing a crime, viz:

     The crime of Identity Theft . . .

     COUNT 02: CONSPIRACY TO COMMIT THEFT BY FRAUD (VALUE >
     $10,000), HABITUAL CRIMINALITY (As to Defendants
     Matthew Steffes and Joshua Howard)

     Between about July 1, 2002 and July 1, 2003, at
     various locations within the County of Milwaukee, with
     intent that a crime be committed, did combine with
     another for the purpose of committing a crime, viz.:

     The crime of Theft by Fraud, whereby the conspirators
     did combine for the purpose of obtaining title to the
     property of SBC, having a value exceeding $10,000, by
     intentionally     deceiving    SBC  with     a   false
     representation known by the conspirators to be false,
     viz. a false promise to pay for telephone service
     accounts created in the name of Nick Steffes, which
     representation made with intent to defraud and which
     did defraud SBC, and furthermore one or more co-
     conspirators did an act to effect the conspiracy's
     object   contrary    to   Wisconsin Statutes   section
     943.20(1)(d) & (3)(c) and 939.31 and 939.62 (emphasis
     added).

                                  15
                                                         No.   2011AP691-CR.ssa


     ¶72    The State not only made no effort to explain in the

charging    documents   that   the   defendant   stole   electricity,      but

also made no effort at trial to quantify or qualify the amount

or type of electricity stolen, or its value at the time it was

stolen.

     ¶73    The State has the burden to prove what property was

stolen——how much property, what kind of property, and the value

of the property.

     ¶74    The State did not proffer any information at trial to

quantify, qualify, or value the electricity that was allegedly

stolen——how much electricity, what kind of electricity, or the

value of the electricity stolen.          Rather, the State proved the

number of telephone minutes used and the value of the telephone

services.


     COUNT 03: CONSPIRACY TO COMMIT THEFT BY FRAUD (VALUE >
     $10,000), HABITUAL CRIMINALITY (As to Defendants
     Matthew Steffes and Joshua Howard)

     Between about July 1, 2002 and July 1, 2003, at
     various locations within the County of Milwaukee, with
     intent that a crime be committed, did combine with
     another for the purpose of committing a crime, viz.:

     The crime of Theft by Fraud, whereby the conspirators
     did combine for the purpose of obtaining title to the
     property of SBC, having a value exceeding $10,000, by
     intentionally     deceiving    SBC  with     a   false
     representation known by the conspirators to be false,
     viz. a false promise to pay for telephone service
     accounts created in the name of Jamie Douyette, which
     representation was made with intent to defraud and
     which did defraud SBC, and furthermore one or more co-
     conspirators did an act to effect the conspiracy's
     object   contrary    to   Wisconsin Statutes   section
     943.20(1)(d) & (3)(c) and 939.31 and 939.62 (emphasis
     added).

                                     16
                                                                  No.   2011AP691-CR.ssa


      ¶75    The best the majority opinion can put forth (and it is

not   good   enough      to   convince       me)   is    to     explain    that     "AT&T

purchases and stores electricity to power its network.                              When

consumers make phone calls, AT&T must buy more electricity.                          The

conspiracy     perpetrated         against    AT&T       therefore       deprived    the

company of its property."           Majority op., ¶5.

      ¶76    For   the    reasons      set    forth,       I    conclude     that    the

defendant's bilking the telephone company was theft of telephone

services,    not   theft      of    electricity         under    the    statute.      As

Assistant Attorney General William Platz and Professor Gordon

Baldwin both explained more than a half century ago, theft of

services is not covered by Wis. Stat. § 943.20.                        The simple fact

that electricity is used to power telephone service does not

morph a theft of these services into a theft of electricity.

                                         II

      ¶77    Even if stealing telephone services would constitute

stealing electricity under the statute at issue, and it does

not, the value of the electricity stolen is not, as a matter of

law or fact, equal to the value of the telephone services.                           The

State and the majority opinion can add whatever adjectives they

like before the term "electricity," but to convict an individual

for a Class G felony under § 943.20, the State must prove that

the individual in fact stole a quantifiable and valuable amount

of electricity in excess of $10,000.

      ¶78    The value of the electricity stolen is an important

factor because the penalty for theft ranges from a misdemeanor



                                         17
                                                           No.    2011AP691-CR.ssa


through a Class G felony depending on the value of the property

stolen.26

      ¶79    Value is statutorily defined as "the market value at

the time of the theft or the cost to the victim of replacing the

property within a reasonable time after the theft, whichever is

less."27

      ¶80    Although the fair market value (or replacement value)

of   the    stolen   property   is    not   an   element   of    theft,   when   a

criminal statute prescribes a penalty based on the value of the

property, the fact finder (here the jury) determines the value

of the      property stolen     and   the   jury's   determination        must be

supported by the evidence.             The sentence for a theft felony

cannot stand when there is no factual basis for the value of the

stolen property.28

      ¶81    The burden is on the State to prove the value of the

stolen electricity.       The majority erroneously flips the burden


      26
           In Sartin v. State, this court explained:

      While . . . the value of the property stolen is not an
      element of the crime of theft, nevertheless value is
      of the utmost importance in determining the applicable
      penalty upon conviction.

Sartin v. State, 44 Wis. 2d 138, 148, 170 N.W.2d 727 (1969).
See also White v. State, 85 Wis. 2d 485, 490, 492-93, 271
N.W.2d 97 (1978).
      27
           Wis. Stat. § 943.20(2)(d).
      28
       White v. State, 85 Wis. 2d 485, 490, 492-93, 271
N.W.2d 97 (1978) (a factual basis must be established for value;
"Value must be determined before an appropriate penalty can be
imposed . . . ."); Sartin v. State, 44 Wis. 2d 138, 151, 170
N.W.2d 727 (1969).

                                       18
                                                                   No.   2011AP691-CR.ssa


to the defendant to prove the quantity and value of electricity

used to make each call.             Majority op., ¶24 n.8.

       ¶82     The State proved only the "fair market value" of the

telephone calls, not the "fair market value" of the electricity

stolen and not the "replacement cost" of the electricity stolen.

The State was content with not offering the quantity and value

of the stolen electricity even though at trial AT&T's engineer,

Robert       Lindsley,      testified        that    it   would     be    possible      to

determine how much electricity was used to power each of the

defendant's phone calls, but "it would be a very labor intensive

process."

       ¶83     Moreover, according to the testimony, the cost of the

electricity used to provide telephone service does not equal the

amount    the      telephone       company    charges     for   telephone      service.

Additional costs beyond the cost of electricity factor into the

fees     the    telephone        company     charges      for   telephone      service.

Testimony at trial was that the telephone service fees paid by

consumers not only pay for the electricity used to power the

system,      but    also     pay    for      the    transmission     wires,     cables,

offices, employees, and other machines and equipment.

       ¶84     Thus, the fair market value of the stolen telephone

service that the State offered at trial is not equal to the fair

market    value     of     the   electricity        stolen.       Accordingly,     as   a

matter of law or fact, the State did not prove the value of the

electricity stolen.

       ¶85     The majority opinion follows the lead of the court of

appeals, equating "applied electricity" to the entire telephone

                                             19
                                                                     No.       2011AP691-CR.ssa


service      as     follows:        "[T]he      market      value    to        the    telephone

company of the services [fraudulently obtained] is the correct

measure       of     the    value      of       the    stolen       property          in      this

case. . . . The undisputed evidence is that the phone company

lost        over     $26,000     in         billable         services——i.e.                applied

electricity . . . ."29

       ¶86    The State did not prove the value of the electricity

stolen.       Even if the statute is interpreted to mean the applied

electricity in the present case, and I do not so interpret the

statute, the State did not prove that the value of the stolen

property exceeds $2,500.30             Under these circumstances the felony

conviction         must    be   vacated,         a    conviction          of     a    Class     A

misdemeanor must be entered, and the cause must be remanded for

resentencing.31

       ¶87    For the reasons set forth, I dissent.

       ¶88    I     am    authorized       to    state      that    Justice          ANN    WALSH

BRADLEY joins this opinion.




       29
       State v. Steffes,                    2012      WI     App    47,        ¶¶23-24,        340
Wis. 2d 576, 812 N.W.2d 529.
       30
        The minimum value of property                       stolen required for theft
to   be   classified  as  a   felony                        is   $2,500.  Wis.  Stat.
§ 943.20(3)(a) If the value of the                          property does not exceed
$2,500, [whoever violates sub. 1]                          is guilty of a Class A
misdemeanor.
       31
            White    v.    State,     85     Wis. 2d 485,          493,    271       N.W.2d 97
(1978).

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    No.   2011AP691-CR.ssa




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