                                                            2019 WI 101

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2017AP913-CR & 2017AP914-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Appellant,
                            v.
                       Autumn Marie Love Lopez,
                                 Defendant-Respondent-Petitioner.
                       ------------------------------------------------
                       State of Wisconsin,
                                 Plaintiff-Appellant,
                            v.
                       Amy J. Rodriguez,
                                 Defendant-Respondent.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 385 Wis. 2d 482,922 N.W.2d 855
                               PDC No:2019 WI App 2 - Published

OPINION FILED:         November 27, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 9, 2019

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Green
   JUDGE:              James R. Beer

JUSTICES:
   CONCURRED:          R.G. BRADLEY, J. concurs, joined by KELLY, J.
                       (except for footnote 2 and statement in ¶34 that
                       she does not join the lead opinion). (opinion
                       filed)
                       KELLY, J. concurs (except for ¶25-31). (opinion
                       filed)

  DISSENTED:
  NOT PARTICIPATING:   A.W. BRADLEY, J. dissents, joined by DALLET, J.
                       (opinion filed)

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by        Kelsey Loshaw   and Susan E. Alesia, assistant state
public defenders. There was an oral argument by Kelsey Loshaw.
    For the plaintiff-appellant, there was a brief filed by
Lisa E.F. Kumfer, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Lisa E.F. Kumfer.




                                2
                                                                  2019 WI 101
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
Nos.    2017AP913-CR & 2017AP914-CR
(L.C. Nos.   2017CF39 & 2017CF40)

STATE OF WISCONSIN                       :              IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Appellant,                                 FILED
       v.                                                    NOV 27, 2019
Autumn Marie Love Lopez,                                         Sheila T. Reiff
                                                             Clerk of Supreme Court
             Defendant-Respondent-Petitioner.


State of Wisconsin,

             Plaintiff-Appellant,

       v.

Amy J. Rodriguez,

             Defendant-Respondent.




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



       ¶1    ANNETTE KINGSLAND ZIEGLER, J.       This is a review of a

published decision of the court of appeals in two consolidated

cases, State v. Lopez and State v. Rodriguez, 2019 WI App 2, 385

Wis. 2d 482, 922 N.W.2d 855, reversing the Green County circuit
                                                    Nos.   2017AP913-CR & 2017AP914-CR



court's     order.1     The    circuit      court     order     dismissed    without

prejudice     the   criminal     complaints        against     Autumn    Marie     Love

Lopez     ("Lopez")     and    Amy    J.    Rodriguez       ("Rodriguez"),       which

charged them with a single count of retail theft of items valued

at more than $500 and less than $5,000, as parties to a crime,

contrary to Wis. Stat. §§ 943.50(1m)(c) and (4)(bf), and 939.05

(2015-16).2      The circuit court concluded that the State may not

charge multiple acts of misdemeanor retail theft as a single

felony.     The court of appeals reversed and concluded that the

State may charge multiple acts of retail theft as one continuous

offense pursuant to Wis. Stat. § 971.36(3)(a).                        We affirm the

court of appeals.

     ¶2     Pursuant to Wis. Stat. § 971.36(3), "[i]n any case of

theft     involving     more     than      one    theft,     all    thefts   may    be

prosecuted    as    a   single    crime"        provided    certain    criteria     are

satisfied.       This court must decide whether the statutory term

"theft" includes the statutory charge of retail theft.                           Lopez

argues that it does not.             She argues that "theft" includes only
the five modes of theft described in Wis. Stat. § 943.20, not

retail theft.       The State argues that "theft" means any type of

theft, including retail theft.

     ¶3     We   conclude      that     "theft"     under    Wis.   Stat.    § 971.36

includes retail theft under Wis. Stat. § 943.50.                        We therefore

     1   The Honorable James R. Beer presided.
     2 All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                            2
                                                      Nos.   2017AP913-CR & 2017AP914-CR



conclude that the State has authority to charge multiple retail

thefts      under    § 943.50     as     one   continuous      offense       pursuant    to

§ 971.36(3).         Thus, we affirm the court of appeals.3


                   I.    FACTUAL BACKGROUND AND PROCEDURAL POSTURE

       ¶4     On     February      16,    2017,       the    State    filed     criminal

complaints against Lopez and Rodriguez.                      The complaints allege

that the two women committed a series of retail thefts from Wal-

Mart in Monroe, Wisconsin.                Specifically, the complaints allege

that       between      January   10     and       January   25,     2017,    Lopez     and

Rodriguez together committed seven retail thefts.                        Lopez was an

employee at Wal-Mart.             The State alleges that Lopez pretended to

assist Rodriguez at a self-check-out register.                        Lopez allegedly

pretended to scan merchandise for Rodriguez, but in reality she

either did not scan it or voided the scan.                     Rodriguez would then

exit Wal-Mart with her stolen merchandise.                           The seven retail

thefts ranged in individual value from $126.33 to $313.95.                              The

total value of all the stolen merchandise was $1,452.12.
       ¶5     The State could have charged Lopez and Rodriguez each

with seven separate class A misdemeanor retail thefts, contrary

to Wis. Stat. § 943.50(1m)(c) and (4)(a).4                     Instead, pursuant to

       Justice Daniel Kelly joins this opinion except paragraphs
       3

25 through 31. Curiously, while Justice Rebecca Grassl Bradley
joins our mandate and seemingly agrees with at least a portion
of the analysis, she nonetheless does not join any part of this
opinion.
       4   The statute provides, in pertinent part, as follows:

              943.50      Retail theft; theft of services.               . . .
                                                                             (continued)
                                               3
                                                  Nos.   2017AP913-CR & 2017AP914-CR



Wis. Stat. §§ 971.36(3)(a)5 and 943.50(4)(bf),6 the State charged

Lopez and Rodriguez with, as parties to the crime, a single

class I felony count of retail theft of items valued at more

than       $500    and    less   then   $5,000.    Lopez    and   Rodriguez    each


            (1m) A person may be penalized as provided in
       sub. (4) if he or she does any of the following
       without the merchant's consent and with intent to
       deprive the merchant permanently of possession or the
       full purchase price of the merchandise or property:

                  . . .

            (c) Intentionally transfers merchandise held for
       resale by a merchant or property of a merchant.

                  . . .

                  (4)    Whoever violates this section is guilty of:

            (a)   . . . a Class A misdemeanor, if the value
       of the merchandise does not exceed $500.

Wis. Stat. § 943.50(1m)(c) and (4)(a).
       5   The statute, in pertinent, part provides:

            971.36 Theft; pleading and evidence; subsequent
       prosecutions. . . .

            (3) In any case of theft involving more than one
       theft, all thefts may be prosecuted as a single crime
       if:

            (a) The property belonged to the same owner and
       the thefts were committed pursuant to a single intent
       and design or in execution of a single deceptive
       scheme; . . . .

       Wisconsin Stat. § 943.50(4)(bf) provides that "[w]hoever
       6

violates this section is guilty of: . . . A Class I felony, if
the value of the merchandise exceeds $500 but does not exceed
$5,000."


                                            4
                                                    Nos.   2017AP913-CR & 2017AP914-CR



separately moved to dismiss the complaints, arguing that the

State could only charge them with seven misdemeanors.

    ¶6      The circuit court held a hearing on both motions to

dismiss.     The circuit court granted both motions to dismiss

without prejudice.          It concluded that "theft" did not include

retail theft, and the State could not aggregate retail thefts

under Wis. Stat. § 971.36(3).            The State appealed.

    ¶7      The     court      of     appeals        reversed.         Lopez,       385

Wis. 2d 482, ¶15.         It concluded that "the State has authority

under    § 971.36(3)(a)      to     charge    the    multiple     alleged    acts   of

retail     theft     as     one      continuous        offense."          Id.,      ¶5.

Specifically, the court of appeals concluded that the statute

"refers generally to 'theft,'" is not limited to theft under

Wis. Stat. § 943.20, and applies to retail theft under Wis.

Stat. § 943.50.      Id., ¶12.

    ¶8      Lopez7 filed a petition for review in this court.                       We

granted the petition.


                              II.     STANDARD OF REVIEW

    ¶9      This case requires this court to interpret Wis. Stat.

§ 971.36    to     determine        whether    the     statutory      term   "theft"

    7  State v. Lopez and State v. Rodriguez, 2019 WI App 2, 385
Wis. 2d 482, 922 N.W.2d 855, were consolidated for appeal and
remain so before this court. Although Rodriguez did not file a
petition for review, she has informed this court that she wishes
to join Lopez's arguments before this court.        We need not
determine whether she has complied with appellate procedure in
so doing. Because these cases remain consolidated, she is bound
by our determination in this case.


                                          5
                                                        Nos.    2017AP913-CR & 2017AP914-CR



includes the charge of retail theft.                           "The interpretation and

application of a statute present questions of law that this

court reviews de novo while benefitting from the analyses of the

court of appeals and circuit court."                     State v. Alger, 2015 WI 3,

¶21, 360 Wis. 2d 193, 858 N.W.2d 346 (citing State v. Ziegler,

2012 WI 73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238).                               Thus, we

review de novo whether "theft" includes retail theft.


                                          III.       ANALYSIS

                                A.    Statutory Interpretation

       ¶10    We    begin       our    analysis        with     the   language    of    the

relevant statute, Wis. Stat. § 971.36.                         State ex rel. Kalal v.

Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633,

681 N.W.2d 110.           The purpose of statutory interpretation is to

give the statute "its full, proper, and intended effect."                               Id.,

¶44.     If the statutory language is plain, we end the inquiry and

give the language its "common, ordinary, and accepted meaning,

except       [we    give]       technical        or    specially-defined        words    or
phrases . . . their technical or special definitional meaning."

Id., ¶45.

       ¶11    This court also analyzes the context and structure of

a statute to determine its meaning.                            Statutory language "is

interpreted in the context in which it is used; not in isolation

but    as    part    of     a    whole;     in       relation    to   the    language    of

surrounding or closely-related statutes . . . ."                            Id., ¶46.    "A

statute's purpose or scope may be readily apparent from its
plain language or its relationship to surrounding or closely-

                                                 6
                                                Nos.   2017AP913-CR & 2017AP914-CR



related statutes——that is, from its context or the structure of

the statute as a coherent whole."             Id., ¶49.

      ¶12   If analyzing a statute's language in context "yields a

plain, clear statutory meaning, then there is no ambiguity" and

we end the inquiry.       Kalal, 271 Wis. 2d 633, ¶46 (quoting Bruno

v.   Milwaukee   Cty.,    2003     WI   28,    ¶20,    260    Wis. 2d 633,         660

N.W.2d 656) (internal quotations omitted).                We conclude that the

plain meaning of Wis. Stat. § 971.36 is unambiguous.                       We base

that conclusion on the language of the statute and confirm that

conclusion using traditional tools of statutory construction.

                         1.   Wisconsin Statute § 971.36

      ¶13   Wisconsin     Stat.    § 971.36,      which      is    found   in      the

criminal procedure chapter of the statutes, is entitled "Theft;

pleading and evidence; subsequent prosecutions."                    It provides,

in relevant part, as follows:

           (1) In any criminal pleading for theft, it is
      sufficient to charge that the defendant did steal the
      property (describing it) of the owner (naming the
      owner) of the value of (stating the value in money).

             . . .

           (3) In any case of theft involving more than one
      theft, all thefts may be prosecuted as a single crime
      if:

           (a) The property belonged to the same owner and
      the thefts were committed pursuant to a single intent
      and design or in execution of a single deceptive
      scheme; . . . .
      ¶14   Subsection    (1)     addresses     how    to    properly      draft    a

criminal    pleading    for   theft.        Subsection       (3)   addresses    the
State's authority to charge multiple thefts as a single crime.

                                        7
                                                       Nos.    2017AP913-CR & 2017AP914-CR



Put simply, the State may charge multiple thefts as one theft if

they are all from the same owner and committed together with the

same intent and design, or in the same scheme.                            Section 971.36

does not define "theft," but the word "theft" appears elsewhere

in the Wisconsin Statutes.

                              2.    Theft-related statutes

       ¶15    The    word    "theft"      appears       in      ten   criminal       statute

titles in Chapter 943 "Crimes Against Property."                              The chapter

sets   forth      multiple    criminal         theft    offenses.         First       is   the

general theft statute.             Then the chapter sets forth other fact-

specific theft offenses, one being retail theft.                          See Wis. Stat.

§§ 943.20 ("Theft"); 943.205 ("Theft of trade secrets"); 943.45

("Theft      of   telecommunications            service");        943.455      ("Theft      of

commercial mobile service"); 943.46 ("Theft of video service");

943.47 ("Theft of satellite cable programming"); 943.50 ("Retail

theft;       theft    of     services");           943.61       ("Theft       of      library

material");       943.74     ("Theft      of   farm-raised        fish");      and     943.81

("Theft from a financial institution").
       ¶16    Lopez    argues      that     retail      thefts        under    Wis.       Stat.

§ 943.50 cannot be aggregated under Wis. Stat. § 971.36.                                      A

person    commits     retail       theft       under    § 943.50        "if    he    or    she

[commits      any    mode    of    retail      theft]         without   the    merchant's

consent and with intent to deprive the merchant permanently of

possession or the full purchase price of the merchandise or

property."        § 943.50(1m).        The eight modes of commission are:

intentionally altering merchandise prices; intentionally taking
and    carrying       away     merchandise;            intentionally          transferring
                                               8
                                                   Nos.   2017AP913-CR & 2017AP914-CR



merchandise; intentionally concealing merchandise; intentionally

retaining      possession       of     merchandise;       intentionally    removing

theft detection devices from merchandise; using or possessing

with intent to use a theft detection shielding device to shield

merchandise; and using or possessing with intent to use a theft

detection device remover to remove a theft detection device from

merchandise.      § 943.50(1m)(a)-(h).

       ¶17    Lopez    argues        that    the   only    crimes   that    can   be

aggregated under Wis. Stat. § 971.36(3) are theft crimes under

Wis. Stat. § 943.20.8                Section 943.20 defines five modes of

committing theft.        They can be summarized as: theft of movable

property;      theft    of   money,         negotiable     security,   instrument,

paper, or negotiable writing by one in possession; theft of

property from one with a superior interest; theft by fraud; and

theft by failure to return property after expiration of a lease

or rental agreement.            § 943.20(1)(a)-(e).          Thus, in Wisconsin,

"theft" is used to describe a variety of theft crimes.

  3.       "Theft" includes retail theft under Wis. Stat. § 943.50.
       ¶18    Since the legislature has used "theft" to describe a

variety of crimes, the parties in this case disagree on what the

word "theft" in Wis. Stat. § 971.36 means.                     Lopez argues that

"theft" includes only theft crimes under Wis. Stat. § 943.20,

entitled "Theft."        Specifically, she argues that: (1) "theft" is

a term of art defined by its elements in § 943.20; (2) "theft"

       Section 943.20, while entitled "Theft," does not contain
       8

the word "theft" in the text of the statute.


                                             9
                                                   Nos.    2017AP913-CR & 2017AP914-CR



in   § 971.36      should    be     read   narrowly       because   "any"     modifies

"case," and not "theft"; (3) other theft crimes have their own

aggregation statutes, tending to show that the legislature did

not intend retail theft to be aggregated; and (4) retail theft

is different from "theft" because it requires proof that the

owner was a merchant and the items were merchandise held for

sale.

       ¶19    The State argues that "theft" is not limited to theft

crimes   under     Wis.     Stat.    § 943.20,     and     includes    retail     theft

under Wis. Stat. § 943.50.             Specifically, the State argues that:

(1) Wis. Stat. § 971.36 uses broad language and applies to "any

case of theft"; (2) the legislature meant "theft" to include

retail    theft     because    the    legislature         designated    it    a   theft

crime; and (3) the legislature could have explicitly excluded

retail theft from "theft" under § 971.36 by stating it applied

only to § 943.20 or by drafting a separate aggregation statute

for retail theft, but failed to do so.                    We agree with the State

and conclude that "theft" under § 971.36 is not limited to theft
under § 943.20.

       ¶20    To   begin,    Wis.    Stat.      § 971.36(3)     applies      "[i]n   any

case     of    theft      involving        more     than      one     theft . . . ."

§ 971.36(3).       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."                     Id.    Lopez would have

this court read the phrase "any case" in isolation.                           But that

argument ignores the plain language of the statute.                          The plain


                                           10
                                               Nos.   2017AP913-CR & 2017AP914-CR



language of § 971.36(3) applies to "any case of theft involving

more than one theft."       Id. (emphasis added.)

       ¶21   Furthermore,   there   is    no    limiting       language    in   the

statute.     The legislature could have written, "In any case of

theft   [under   s.   943.20]   involving      more     than    one   theft,    all

thefts may be prosecuted as a single crime . . . ."                   But it did

not.    In contrast, the legislature did include limiting language

in the three aggregation statutes that follow § 971.36.                         See

Wis.     Stat.    §§ 971.365(1)(a)        ("In        any      case   under      s.

961.41(1)(em), 1999 stats., or s. 961.41(1)(cm), (d), (e), (f),

(g) or (h) involving more than one violation, all violations may

be prosecuted as a single crime . . . ."); 971.366 ("In any case

under s. 943.201 or 943.203 involving more than one violation,

all violations may be prosecuted as a single crime . . . .");

and 971.367 ("In any case under s. 946.79 involving more than

one violation, all violations may be prosecuted as a single

crime . . . .").      When the legislature does not include limiting

language in a statute, we decline to read any into it.                    State v.
Kozel, 2017 WI 3, ¶39, 373 Wis. 2d 1, 889 N.W.2d 423 ("'We will

not read into the statute a limitation the plain language does

not evidence.'") (quoting Cty. of Dane v. LIRC, 2009 WI 9, ¶33,

315 Wis. 2d 293, 759 N.W.2d 571).          The legislature did not limit

§ 971.36(3) to theft under § 943.20.             Thus, we decline to read

Lopez's requested limitation into the statute.

       ¶22   Lopez argues that because retail theft does not have

its own specific aggregation statute the legislature did not
intend retail theft to be aggregated.            See Wis. Stat. §§ 971.366
                                     11
                                                   Nos.   2017AP913-CR & 2017AP914-CR



and 971.367 (aggregating other fact-specific theft offenses).

We disagree.        The fact that other aggregation statutes exist

does not demonstrate that the legislature excluded retail theft

from aggregation under Wis. Stat. § 971.36.                  Rather, the absence

of   any    limiting       language      in    § 971.36(3)        shows   that    the

legislature did not exclude retail theft from aggregation under

that section.           Contrary to Lopez's argument, the legislature

endowed prosecutors with the authority to aggregate retail theft

under § 971.36(3).

      ¶23   Lopez also argues that retail theft under Wis. Stat.

§ 943.50 does not qualify as "theft" under Wis. Stat. § 971.36

because it requires proof that the owner was a merchant and the

items taken were merchandise held for sale.                       But even when a

theft is of merchandise taken from a merchant, it nonetheless is

a "theft."       Thus, we find Lopez's argument unpersuasive.

      ¶24   We conclude that "theft" under Wis. Stat. § 971.36(3)

includes    retail      theft    under   Wis.     Stat.    § 943.50.      Thus,    we

conclude that the State may charge multiple retail thefts under
§ 943.50    as    one    continuous      offense     pursuant     to   § 971.36(3).

This conclusion is based on the plain meaning of the statute.

We   confirm     this    plain   meaning       conclusion    by    looking   at   the

context of the statute.

      ¶25   The parties argue that statute titles are permissive

indicators of meaning in this case.                 Lopez argues titles matter

because "Theft" is the title of Wis. Stat. § 943.20 (the only

theft statute which predates Wis. Stat. § 971.36(3)) and "theft"
is the word the legislature used in § 971.36(3).                          The State
                                          12
                                                        Nos.    2017AP913-CR & 2017AP914-CR



argues    that     titles       matter       because      "theft"       is    the     word     the

legislature used in § 971.36(3) and the word "theft" appears in

ten    statute     titles    in     Chapter      943.          Statute       titles    are     not

dispositive.        To the extent that we may consider statute titles

as part of the context in which we interpret statutory meaning,

here    the    titles     provide       further       confirmation           for    our     plain

meaning analysis.

       ¶26     "Context     is     important         to    meaning."               Kalal,      271

Wis. 2d 633, ¶46.           In fact, a statute's "title and headings are

permissible indicators of meaning."                       Antonin Scalia & Bryan A.

Garner,       Reading     Law:    The    Interpretation           of     Legal      Texts       221

(2012);      see   also     id.    at    21-24       ("Title-and-Headings              Canon").

This    court      has    previously         concluded         that    "reference         to    [a

statute's] title is appropriate" in statutory interpretation.

State     v.    Dorsey,      2018       WI    10,     ¶30,      379     Wis. 2d 386,            906

N.W.2d 158.         "The    titles . . . of            the      statutes . . . are              not

part of the statutes."             Wis. Stat. § 990.001(6).                   But the titles

are part of a statute's context and can be relevant to statutory
interpretation.           See     Dorsey,      379     Wis. 2d 386,          ¶30;     see      also

Aiello v. Vill. of Pleasant Prairie, 206 Wis. 2d 68, 73, 556

N.W.2d 697         (1996)        ("Although         titles        are        not      part      of

statutes, . . . they may be helpful in interpretation.").

       ¶27     A statute's title is not part of the statute, but it

is language approved by the legislature.                        The legislature adopts

the statute's title.              Scalia & Garner, supra ¶26, at 221.                          When

the legislature adopts non-statutory language in titles, that


                                              13
                                                     Nos.    2017AP913-CR & 2017AP914-CR



language has meaning and reflects a decision of the legislature.

The United States Supreme Court has said:

       [The] heading is but a short-hand reference to the
       general subject matter involved . . . . [H]eadings and
       titles are not meant to take the place of the detailed
       provisions of the text.     Nor are they necessarily
       designed to be a reference guide or a synopsis . . . .
       For interpretive purposes, they are of use only when
       they shed light on some ambiguous word or phrase.
       They are but tools available for the resolution of a
       doubt.   But they cannot undo or limit that which the
       text makes plain.
Id. (quoting Brotherhood of R.R. Trainmen v. Baltimore & Ohio

R.R., 331 U.S. 519, 528-29 (1947)).

       ¶28   And this court has said:

            Titles to sections of a statute are not part of
       the statute.   Sec. 990.001(6), Stats.   However, such
       titles may be resorted to in order to resolve a doubt
       as to statutory meaning.       Federal Rubber Co. v.
       Industrial Comm., [185 Wis. 299, 301, 201 N.W. 261
       (1924)]. However, the converse of the latter rule is
       also true that titles should not be resorted to in
       order to create a doubt where none would otherwise
       exist.
Wisconsin    Valley     Imp.    Co.    v.     PSC,     9    Wis. 2d 606,     618,   101
N.W.2d 798 (1960).        In short, a statute's title may not be used

to contradict its text or to create ambiguity where its meaning

is plain.      But the title may be used to confirm a statute's

meaning.

       ¶29   Although    we    do    not     rely    on     the   relevant   statutes'

titles to interpret meaning here, we note that this court has

previously relied on a statute's title as context to interpret

its meaning.      For example, in State v. Matasek, we concluded
that   the   phrase     "at    the    time      of   sentencing"      in   Wis.   Stat.

                                           14
                                     Nos.   2017AP913-CR & 2017AP914-CR



§ 973.015 (2011-12) includes the disposition of probation.9       2014

WI 27, ¶¶34, 39, 353 Wis. 2d 601, 846 N.W.2d 811.      In support of

that conclusion, we stated, "The probation statute is part of

chapter 973 of the statutes, which is entitled 'Sentencing.'"

Id., ¶37 (emphasis added).   The court did the same in Dorsey.

In that case, we interpreted Wis. Stat. § 904.04(2)(b)(1).          We

concluded, "In the context of its title, 'Greater latitude,' we

interpret subd. (2)(b)(1). as adopting the common law greater

latitude rule to permit the admission of other, similar acts of

domestic abuse with greater latitude."   Dorsey, 379 Wis. 2d 386,

¶31 (emphasis added).10




     9 Probation is not a sentence.       State v. Horn, 226
Wis. 2d 637, 647, 594 N.W.2d 772 (1999). But the disposition of
probation occurs "at the time of sentencing."       Wis. Stat.
§ 973.015.
     10Furthermore, in Wisconsin we have come to know the names
of certain crimes by the statute title rather than the elements
outlined in the statute language. See State v. Davison, 2003 WI
89, 263 Wis. 2d 145, 666 N.W.2d 1 (referring to aggravated
battery, not "caus[ing] substantial bodily harm to another by an
act done with intent to cause bodily harm to that person . . . "
contrary to Wis. Stat. § 940.19(2)); State v. Asboth, 2017 WI
76, 376 Wis. 2d 644, 898 N.W.2d 541 (referring to robbery, not
"with the intent to steal, tak[ing] property from the person or
presence of the owner" by "threatening the imminent use of force
against the person of the owner" with a "dangerous weapon"
contrary to Wis. Stat. § 943.32(1)(b), (2)); State v. Arberry,
2018 WI 7, 379 Wis. 2d 254, 905 N.W.2d 832 (referring to retail
theft, not taking merchandise "without the merchant's consent
and with intent to deprive the merchant permanently of
possession or the full purchase price of the merchandise . . . "
contrary to Wis. Stat. § 943.50(1m)).


                               15
                                               Nos.   2017AP913-CR & 2017AP914-CR



     ¶30    In     sum,    statute    titles      historically       have    had

significance in Wisconsin case law.            Courts have indeed observed

titles to confirm statutory interpretation or even to resolve an

ambiguity.       Titles may provide context.          Thus, we conclude that

we may here consult statute titles to confirm our interpretation

of the plain meaning of the statutes at issue.

     ¶31    The plain language of Wis. Stat. § 971.36(3) refers to

"theft" generally.         That same word——"theft"——is found in the

title of Wis. Stat. § 943.50, "Retail theft; theft of services."

The "Retail theft" portion of the title provides context for and

confirms our interpretation of the word "theft" in § 971.36(3).

We conclude that the general reference to "theft" in § 971.36(3)

includes retail theft under § 943.50.                 Thus, we conclude that

the State may charge multiple retail thefts under § 943.50 as

one continuous offense pursuant to § 971.36(3).11

     ¶32    The court of appeals concluded that the State properly

exercised    its    Wis.   Stat.   § 971.36(3)    authority     in   this   case

because the merchandise "belonged to the same owner," Wal-Mart,
and "the thefts were committed pursuant to a single intent and

     11The State argued, in the alternative, that it has
discretionary authority to charge multiple retail thefts as one
single felony.    Because we conclude the State has statutory
authority pursuant to Wis. Stat. § 971.36(3), we do not address
whether it has discretionary authority.   Lopez argued that the
State does not have discretionary authority to charge multiple
retail thefts as one single felony because the charge would be
improperly duplicitous.   Because we do not address the State's
discretionary authority argument, and because we determine this
case is properly aggregated under § 971.36, we need not address
Lopez's duplicity argument.


                                      16
                                                   Nos.   2017AP913-CR & 2017AP914-CR



design or in execution of a single deceptive scheme."                           Wis.

Stat. § 971.36(3)(a); Lopez, 385 Wis. 2d 482, ¶14.                        We do not

disturb that conclusion.


                                IV.      CONCLUSION

    ¶33     We   conclude   that    "theft"        under    Wis.   Stat.    § 971.36

includes retail theft under Wis. Stat. § 943.50.                        We therefore

conclude that the State has authority to charge multiple retail

thefts   under   § 943.50     as   one    continuous        offense     pursuant   to

§ 971.36(3).     Thus, we affirm the court of appeals.



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

affirmed.




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     ¶34    REBECCA GRASSL BRADLEY, J.              (concurring).     I join the

mandate of the lead opinion1 affirming the decision of the court

of appeals.     I agree that under a plain meaning analysis, the

word "theft" used in        Wis. Stat. § 971.36(3) includes retail

theft; therefore, the State can aggregate the seven instances of

retail thefts into one charge.           I cannot, however, join the lead

opinion's   analysis      because   it       improperly     relies    on   sources

beyond the unambiguous text of the statute we interpret.2

     ¶35    As a preliminary matter, the lead opinion should have

more thoroughly explained why Amy J. Rodriguez, who did not

participate    in   the    appeal   before          this   court,    nevertheless

appears in the caption.        The State brought criminal complaints

against Autumn Marie Love Lopez and Rodriguez separately in the

circuit court.      Both women filed separate motions to dismiss,

which the circuit court granted.                Both women appealed to the

court of appeals, at which point the State filed a motion asking

the court of appeals to consolidate the two cases for purposes

of briefing and disposition.         The court of appeals granted the


     1 I refer to Justice Ziegler's opinion as the "lead opinion"
because Section III.G.4. of the court's internal operating
procedures provides that "[i]f . . .      the opinion originally
circulated as the majority opinion does not garner the vote of a
majority of the court, it shall be referred to in separate
writings as the 'lead opinion' unless a separate writing garners
the vote of a majority of the court."
     2 Although the lead opinion correctly concludes that "theft"
under Wis. Stat. § 971.36(3) includes retail theft, the lead
opinion's reliance on statutory titles to inform its analysis of
the text permeates the lead opinion's reasoning to the extent
that I cannot join the opinion.


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State's motion.          As a result, the captions from Lopez's and

Rodriguez's cases were joined into one consolidated caption.

      ¶36    Only Lopez filed a petition for review of the court of

appeals     decision.       Rodriguez      declined        to   ask   this    court    to

review the decision of the court of appeals adverse to her.

Rodriguez never filed a petition for review nor did she file a

letter saying she joins the petition for review filed by Lopez.

      ¶37    Although Attorney Tristan Breedlove represented Lopez

in   the    court   of    appeals,      Attorneys     Susan       Alesia   and   Kelsey

Loshaw represent Lopez before this court.                         On June 10, 2019,

Attorneys Alesia and Loshaw filed the first brief on behalf of

Petitioner     Lopez.       On    June    28,    2019,      the    State     filed    its

response brief.3         On July 10, 2019, Rodriguez's attorney filed a

letter stating:

      I must correct my previous letter from today.        I
      represent Defendant-Respondent Amy J. Rodriguez.   The
      State has filed its brief.    I expect that Defendant-
      Respondent-Petitioner Autumn Marie Love Lopez, by
      Attorney Tristan Breedlove, will be filing a response
      brief setting forth the same positions she presented
      to the court of appeals.    I expect the issues to be
      discussed in Attorney Breedlove's brief will be
      identical to the issues existing in my client's case.
      I do not intend to file a brief on my client's behalf
      and do not intend to participate in oral argument. My
      client will be joining Attorney Breedlove in her
      argument.
(Emphasis added.)          Rodriguez's attorney's letter includes some

factual     errors,      both    with    respect      to    who    represents     Lopez

(Breedlove was no longer Lopez's lawyer; Attorneys Alesia and

      3The State's brief erroneously lists both Lopez and
Rodriguez as petitioners. As noted, only Lopez is a petitioner.


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                                            No.    2017AP913-CR & 2017AP914-CR.rgb


Loshaw were) and with regard to which briefs had been filed

(Lopez filed the first brief and the State filed the response).

Further, Rodriguez's attorney told the court he would not be

filing a brief on his client's behalf or giving oral argument,

but Rodriguez would join "Breedlove in her argument."                   Clearly,

Rodriguez    could     not   have   filed     a    brief   in   this   court    or

participated in oral argument because she was not a petitioner.4

Moreover, Breedlove did not make any argument in this court so

Rodriguez could not "join" Breedlove's argument.

      ¶38   Although the lead opinion acknowledges that Rodriguez

did   not   file   a   petition     seeking       review   in   this   court,   it

nevertheless notes that Rodriguez "join[s]" Lopez's arguments

before us.    See lead op., ¶8 n.7.           Because Rodriguez never filed

a petition for review, Rodriguez could not participate in this

matter at all without requesting leave of the court to do so.5

Instead of allowing a non-party to skirt the rules of appellate

procedure and "join" the petitioner's argument, the lead opinion

instead should have indicated that, having elected not to file
her own petition, Rodriguez is bound by the court's decision

with respect to Lopez's petition.                 By allowing a non-party to

"join" a petitioner's "argument," the lead opinion suggests the

rules of appellate procedure need not be followed.

      4Rodriguez's caption remained consolidated with Lopez's
because once the cases are consolidated on appeal, the captions
remain together unless a court orders otherwise.
      5See Wis. Stat. § 809.62(1r) providing the rules governing
the petition for review process and declaring that "Supreme
court review is a matter of judicial discretion, not of
right[.]"

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      ¶39   As   far     as     the    reasoning       underlying       the   court's

decision, the lead opinion should have relied solely on the

statutory    text   instead       of   attempting       to    divine     legislative

"intent"    or   elevating      the    importance      of    statutory    titles      in

ascertaining the meaning of a law.               Despite its conclusion that

the plain text of the statute is unambiguous, the lead opinion

nevertheless     agrees        with    the    State's        argument    that     "the

legislature meant 'theft' to include retail theft" and says "the

legislature's plain meaning applies broadly."                     Lead op., ¶¶19-

20.   An interpretation based on what the legislature intended a

statute to mean is improper.                 "'[W]e do not inquire what the

legislature meant; we ask only what the statute means.'"                         State

ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶39,

271 Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted).                        Courts

disregard    what   the       legislature     may    have     "intended"      when    it

passed a law and instead ascertain the meaning of the words the

legislature actually enacted because "[i]t is the enacted law,

not the unenacted intent, that is binding on the public."                         Id.,
¶44; see also Winebow, Inc. v. Capitol-Husting Co., 2018 WI 60,

¶40, 381 Wis. 2d 732, 914 N.W.2d 631 (Rebecca Grassl Bradley,

J.,   dissenting)      ("[L]egislative        intent    behind    enactment      of    a

law . . . cannot govern statutory interpretation.                       Rather, our

analysis must focus on the statutory language itself[.]"); State

v. Grandberry, 2018 WI 29, ¶55, 380 Wis. 2d 541, 910 N.W.2d 214

(Kelly, J., concurring) ("[W]e give effect only to what the

legislature does, not what it tried to do.").                    The legislature's
intent should play no role in the court's analysis; we analyze

                                          4
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the   text     of   the         statute    in     ascertaining              its    meaning.           See

Antonin      Scalia         &     Bryan     A.        Garner,          Reading          Law:       The

Interpretation         of       Legal     Texts,      391-396          (2012)       ("[C]ollective

intent    is    pure        fiction       because          dozens       if    not       hundreds      of

legislators have their own subjective views on the minutiae of

bills they are voting on[.]"); see also Robert E. Keeton, Keeton

on Judging in the American Legal System 210-11 (Lexis Pub. 1999)

("'[L]egislative            intent' . . . is               a    legal        fiction.          Only    a

natural person can have a state of mind such as intent.                                               No

legal entity such as a legislature can have an 'intent' in a

strictly factual sense.").

      ¶40      The lead opinion acknowledges that if the statutory

language is plain and unambiguous, we end our inquiry into its

meaning.        Lead       op.,     ¶¶10,       12.        The       lead     opinion      correctly

concludes      that     the       plain    meaning         of        Wis.    Stat.      § 971.36      is

unambiguous.          Lead        op.,    ¶12.        The       lead    opinion         should     have

stopped there.          Instead, the lead opinion devotes nearly half of

its   analysis        to     a    discussion          of       statutory          titles,      lending
unwarranted         significance             to        their           role        in       statutory

interpretation.

      ¶41      Titles       are    not     part       of       the    statute's         text.      The

legislature itself says so in Wis. Stat. § 990.001(6):                                             "The

titles to subchapters, sections, paragraphs and subdivisions of

the statutes and history notes are not part of the statutes."

While titles have been employed as "permissible indicators of




                                                  5
                                                       No.   2017AP913-CR & 2017AP914-CR.rgb


meaning"6 we have for over half-a-century limited their use to

resolving doubt or ambiguity in the text.                                 Wisconsin Valley

Improvement Co. v. Public Serv. Comm'n, 9 Wis. 2d 606, 618, 101

N.W.2d 798 (1960) ("[T]itles may be resorted to in order to

resolve     a    doubt       as    to    statutory      meaning.");       Pulsfus     Poultry

Farms,      Inc.       v.    Town       of    Leeds,    149     Wis. 2d 797,        806,   440

N.W.2d 329 (1989) ("Titles may be used to resolve doubts as to

ambiguous statutory meaning even though they are not part of the

law."); State v. Black, 188 Wis. 2d 639, 645, 526 N.W.2d 132

(1994) ("In the face of such plain and unambiguous language we

must disregard the title of the statute.                             Consideration of a

statutory title may be used only to resolve doubt as to the

meaning of the statute.") (internal citation omitted).

      ¶42       The         lead     opinion         recites       these      longstanding

principles,           but     does      not    apply     them.       The     lead     opinion

explicitly holds the applicable statute in this case is plain

and   not       ambiguous.              Nevertheless,        the   lead    opinion     relies

heavily on statutory titles in order to support its conclusion.
Doing so weakens it by suggesting the text itself is not enough

to answer the question presented.

      ¶43       The danger of employing statutory titles as part of

the court's reasoning is not trivial.                        Employing such tools in a

manner contrary to fundamental rules of textual interpretation

risks "undo[ing] or limit[ing] that which the text makes plain."

Scalia & Garner, Reading Law at 221 (quoting Brotherhood of R.R.

      6Antonin Scalia & Bryan A. Garner,                            Reading    Law:        The
Interpretation of Legal Texts, 221 (2012).


                                                 6
                                          No.    2017AP913-CR & 2017AP914-CR.rgb


Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29

(1947)).     For example, in State v. Dorsey,7 the lead opinion

misused a statutory title to read in "evidentiary preconditions

wholly    absent   from   the   text."      Id.,     379     Wis. 2d 386,   ¶73

(Rebecca Grassl Bradley, J., concurring).             Although in this case

the lead opinion does not use statutory titles to read something

into the statutory text, its extensive and unnecessary reliance

on titles in its reasoning signals a willingness to bend if not

altogether     rewrite     longstanding         principles     of    statutory

interpretation.     The lead opinion seems to give titles the same

interpretive significance as the text, which flies in the face

of the cardinal rule that the "text must control over title."

Aiello v. Vill. of Pleasant Prairie, 206 Wis. 2d 68, 73, 556

N.W.2d 697 (1996).

    ¶44     The lead opinion could have applied Wisconsin cases

that recognize titles as nothing more than "tools available for

the resolution of a doubt" and confine their use to "shed light

on some ambiguous word or phrase."8             Doing so would have ended

    7    2018 WI 10, 379 Wis. 2d 386, 906 N.W.2d 158.
    8  Scalia & Garner, Reading Law at 221 (quoting Brotherhood
of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519,
528-29 (1947)). Notably, and unlike Wisconsin, the United States
Code contains no provision expressly excluding titles from the
statutes, which explains federal courts' reliance on titles to
ascertain statutory meaning in the presence of ambiguity.
Recognizing   that  many   state  legislatures   address  titles
differently, the authors of Reading Law advise the interpreter
to check the statutes for the legislature's directives regarding
the use of titles.   Scalia & Garner, Reading Law at 224. Given
the Wisconsin legislature's declaration that titles "are not
part of the statutes," titles should not be used even to resolve
an ambiguity. Wis. Stat. § 990.001(6).

                                     7
                                    No.   2017AP913-CR & 2017AP914-CR.rgb


the analysis after construing the plain meaning of the statute

without resort to sources extraneous to the text.          Because the

lead opinion did not apply the unadulterated canons of statutory

interpretation or the legislature's directive that titles are

not part of the statutes, I respectfully concur.

    ¶45   I am authorized to state that Justice DANIEL KELLY

joins this concurrence except for footnote 2 and the statement

in ¶34 that I do not join the lead opinion.




                                8
                                   No.   2017AP913-CR & 2017AP914-CR.dk


    ¶46   DANIEL KELLY, J.   (concurring).     I join the majority

opinion except for ¶¶25-31; I also join Justice Rebecca Grassl

Bradley's concurrence except for footnote 2 and her statement

that she does not join the lead opinion in ¶34.




                               1
                                                  No.    2017AP913-CR & 2017AP914-CR.awb


     ¶47     ANN      WALSH    BRADLEY,      J.         (dissenting).          When     the

legislature writes the word "theft" in a statute, it means theft

and only theft.            It does not mean "theft of trade secrets,"1

"theft of farm-raised fish"2 or "retail theft."3

     ¶48     We presume that the legislature chooses its statutory

language     "carefully        and   precisely"          to    express      its    desired

meaning.     Industry to Indus., Inc. v. Hillsman Modular Molding,

Inc., 2002 WI 51,             ¶19 n.5, 252 Wis. 2d 544, 644 N.W.2d 236.

"Theft"    is    a    word    with   a   precise        meaning     set    forth   in   the

statutes.4

     ¶49     Yet     the     majority/lead     opinion5         ignores     the    precise

meaning    the       legislature     has   afforded           the   term    and    instead

     1   See Wis. Stat. § 943.205.
     2   See Wis. Stat. § 943.74.
     3   See Wis. Stat. § 943.50.
     4   See Wis. Stat. § 943.20.
     5 Justice Ziegler's opinion observes that Justice Kelly
joins   the   opinion  "except   paragraphs   25   through  31."
Majority/lead op., ¶3 n.3.   Thus, I refer to Justice Ziegler's
opinion as the "majority/lead" opinion throughout this dissent
because the opinion in its entirety is not joined by a majority
of the court.   The opinion is a "majority" except with respect
to paragraphs 25 through 31, which discuss the use of statutory
titles in interpreting a statute.     These paragraphs represent
the rationale of only three justices and thus constitute a lead
opinion.

     The only reference to "lead opinions" in our Internal
Operating Procedures (IOPs) states that if during the process of
circulating and revising opinions, "the opinion originally
circulated as the majority opinion does not garner the vote of a
majority of the court, it shall be referred to in separate
writings as the 'lead opinion' unless a separate writing garners
the vote of a majority of the court." IOP III.G.4.
                                                                             (continued)
                                           1
                                                    No.    2017AP913-CR & 2017AP914-CR.awb


broadly stretches its application.                       The majority/lead opinion's

interpretation       of    the     theft       aggregation         statute,     Wis.    Stat.

§ 971.36,    employs        a    heretofore         unrecognized           "plain    meaning"

analysis which belies the plain text of the statute, the larger

statutory context, and the statute's history.

    ¶50     Accordingly, I respectfully dissent.

                                               I

    ¶51     This     case       arises   from       charges        filed    against    Autumn

Marie Love Lopez and Amy Rodriguez related to a string of seven

retail thefts that took place over a period of a little over two

weeks in January of 2017.                  Majority/lead op., ¶4.                   The State

alleges that Lopez, a Wal-Mart employee, would pretend to assist

Rodriguez at a self-check-out register, but would not actually

properly scan merchandise.               Id.       Rodriguez was then able to walk

out with the stolen merchandise.                   Id.

    ¶52     The value of the merchandise taken using this method

ranged from $126.33 to $313.95 per occurrence, and the value of

everything    taken       was    $1,452.12         in     total.      Id.      Rather    than
charging     Lopez    and       Rodriguez          with     seven     separate       class   A

misdemeanor retail theft counts, the State sought to charge each


     For further discussion of our procedure regarding lead
opinions, see Koss Corp. v. Park Bank, 2019 WI 7, ¶76 n.1, 385
Wis. 2d 261, 922 N.W.2d 20 (Ann Walsh Bradley, J., concurring).
See also two prior certifications from the court of appeals that
have asked us to reexamine our lead opinion procedure. State v.
Dowe, 120 Wis. 2d 192, 192-93, 352 N.W.2d 660 (1984) (per
curiam); State v. Hawley, No. 2015AP1113-CR, unpublished
certification, 2-3 (Nov. 21, 2018); see also State v. Lynch,
2016 WI 66, ¶145, 371 Wis. 2d 1, 885 N.W.2d 89 (Abrahamson and
Ann Walsh Bradley, JJ., concurring in part, dissenting in part).


                                               2
                                                      No.     2017AP913-CR & 2017AP914-CR.awb


of them with a single class I felony count.                                Id., ¶5; see Wis.

Stat.      § 943.50(4)(a)           &    (bf)   (providing          that    one    who   commits

retail theft is guilty of a class A misdemeanor if the value of

the merchandise does not exceed $500 and a class I felony if the

value       of   the    merchandise           exceeds    $500       but     does   not    exceed

$5,000).

       ¶53       Making no distinction between the crimes of theft and

retail       theft,     the    State         cited    Wis.     Stat.       § 971.36(3)(a)       as

authority        for    an    aggregation        of     retail      theft     charges.         The

statute provides that "[i]n any case of theft involving more

than one theft, all thefts may be prosecuted as a single crime

if . . . [t]he          property         belonged       to    the    same     owner      and   the

thefts were committed pursuant to a single intent and design or

in execution of a single deceptive scheme . . . ."                                    Lopez and

Rodriguez moved to dismiss the complaints against them, arguing

that       "theft"     as    used       in   § 971.36        does   not     encompass     retail

theft.

       ¶54       Agreeing with Lopez and Rodriguez, the circuit court
dismissed the charges without prejudice.                             On appeal, the court

of appeals reversed.                Purporting to engage in a "plain meaning"

analysis, a majority of this court6 now affirms the court of

appeals, transforming misdemeanor charges into a felony.


       Justice Ziegler's majority/lead opinion and Justice
       6

Rebecca Grassl Bradley's concurrence both ultimately approve of
the aggregation of charges in this case.        Although in this
dissent I largely address the majority/lead opinion, the
concurrence likewise does not base its conclusion on the
particular meaning of "theft" set forth in Wis. Stat. § 943.20.


                                                 3
                                                  No.    2017AP913-CR & 2017AP914-CR.awb


                                            II

       ¶55   The    majority/lead         opinion       correctly       identifies         this

case    as   presenting        an     issue      of     statutory        interpretation.

However, its analysis quickly goes astray.                        The issue before the

court is discrete——whether "theft" as utilized in Wis. Stat.

§ 971.36(3)(a)       includes       the    crime        of    "retail     theft."          The

majority/lead opinion responds in the affirmative, applying a

heretofore unrecognized plain meaning analysis that belies the

theft aggregation statute's plain language.

       ¶56   As     noted,     Wis.       Stat.       § 971.36(3)(a),          the      theft

aggregation        statute,    provides:              "[i]n       any   case       of   theft

involving more than one theft, all thefts may be prosecuted as a

single crime if . . . [t]he property belonged to the same owner

and the thefts were committed pursuant to a single intent and

design or in execution of a single deceptive scheme . . . ."

       ¶57   The     majority/lead         opinion           purports    to    apply        our

established statutory interpretation methodology.                             Its analysis

and conclusion rely heavily on the use of statutory titles.
Indeed, a substantial part of the analysis is spent justifying

its use of statutory titles as part of a plain meaning analysis—

—but to no avail.         See majority/lead op., ¶¶25-30.

       ¶58   Although the majority/lead opinion declares over and

over again that it is engaging in a "plain meaning" analysis, it

apparently        fails   to    recognize         that        under     the    established

statutory    interpretation           methodology,           it   cannot      do    what    it

purports to do.



                                            4
                                                  No.    2017AP913-CR & 2017AP914-CR.awb


       ¶59    The legislature has clearly declared that a title is

not part of a statute.             Wis. Stat. § 990.001(6).                   The title of a

statute      can    never     be    used   to     establish          a    statute's      plain

meaning.       Rather,       once    ambiguity       is       found,      reference      to   a

statute's title is permissible to relieve ambiguity.                               State v.

Dorsey, 2018 WI 10, ¶30, 379 Wis. 2d 386, 906 N.W.2d 158.

       ¶60    Nevertheless, the majority/lead opinion asserts that

titles are part of a statutory plain meaning analysis because

"titles are part of a statute's context . . . ."                               Majority/lead

op., ¶26.      We have previously described a statute's context as

"including the language and structure of surrounding or closely

related      statutes . . . ."             Bostco       LLC     v.       Milwaukee    Metro.

Sewerage Dist., 2013 WI 78, ¶46, 350 Wis. 2d 554, 835 N.W.2d 160

(citations omitted).

       ¶61    The majority/lead opinion's contention that something

that   is    not    part     of    the   statutes       can    now       be   included    when

examining a statute's context is both novel and unsupportable.

Resting      upon    such     a     faulty       foundation,         the       majority/lead
opinion's analysis cannot be sustained.

       ¶62    In short, the majority/lead opinion's use of title as

part of a plain meaning statutory analysis finds no mooring in

the law.      The very cases cited by the majority/lead opinion as

authority supporting such a premise, upon closer examination,

either are distinguishable or actually undermine the premise.

See,   e.g.,       Dorsey,    379    Wis. 2d 386,         ¶30    (explaining          that    a

statutory     title    is     a    permissible      indicator            of    meaning   when
resolving ambiguity); Wisconsin Valley Imp. Co. v. Pub. Serv.

                                             5
                                                         No.   2017AP913-CR & 2017AP914-CR.awb


Comm'n, 9 Wis. 2d 606, 618, 101 N.W.2d 798 (1960) (same).                                    For a

more       extensive      discussion           of    this      fundamental      flaw      in    the

majority/lead           opinion's         analysis,         see   Justice      Rebecca      Grassl

Bradley's concurrence, ¶¶40-42.

       ¶63       With     the       above      discussion         of     the    majority/lead

opinion's analytical infirmities out of the way, I turn to what

actually          is      the            established           statutory       interpretation

methodology.            Our interpretation of a statute should begin with

the language itself.                 State ex rel. Kalal v. Cir. Ct. for Dane

Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.                                     If the

meaning of the statute is plain, we need not inquire further.

Id.        We are to give statutory language its "common, ordinary,

and accepted meaning, except that technical or specially-defined

words       or    phrases           are     given        their    technical        or     special

definitional meaning."                   Id.

       ¶64       Consistent with Kalal, Wis. Stat. § 990.01(1) provides

that "[a]ll words and phrases shall be construed according to

common and approved usage; but technical words and phrases and
others       that      have     a    peculiar        meaning      in    the    law      shall   be

construed        according          to    such      meaning."          Although      Wis.    Stat.

§ 971.36 does not define "theft," a "peculiar meaning in the

law" is not far away.                 Namely, Wis. Stat. § 943.20 prohibits the

crime       of    "theft,"          setting         forth      five    different        modes    of

commission for theft.7                     Accordingly, pursuant to § 990.01(1),

       7   Wisconsin Stat. § 943.20(1) provides:

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

                                                                                     (continued)
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(a) Intentionally takes and carries away, uses,
transfers, conceals, or retains possession of movable
property of another without the other's consent and
with intent to deprive the owner permanently of
possession of such property.

(b) By virtue of his or her office, business or
employment, or as trustee or bailee, having possession
or custody of money or of a negotiable security,
instrument, paper or other negotiable writing of
another, intentionally uses, transfers, conceals, or
retains   possession    of   such    money,   security,
instrument, paper or writing without the owner's
consent, contrary to his or her authority, and with
intent to convert to his or her own use or to the use
of any other person except the owner.      A refusal to
deliver   any   money   or   a   negotiable   security,
instrument, paper or other negotiable writing, which
is in his or her possession or custody by virtue of
his or her office, business or employment, or as
trustee or bailee, upon demand of the person entitled
to receive it, or as required by law, is prima facie
evidence of an intent to convert to his or her own use
within the meaning of this paragraph.

(c) Having a legal interest in movable property,
intentionally and without consent, takes such property
out of the possession of a pledgee or other person
having a superior right of possession, with intent
thereby to deprive the pledgee or other person
permanently of the possession of such property.

(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.

(e) Intentionally fails to return any personal
property which is in his or her possession or under
his or her control by virtue of a written lease or
written rental agreement after the lease or rental
agreement has expired.  This paragraph does not apply
to a person who returns personal property, except a
motor vehicle, which is in his or her possession or
                                               (continued)
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when       the    legislature      refers   to    "theft"      it    refers    to     the

particular meaning set forth by the elements of § 943.20.                           There

is no other meaning of "theft" in our statutes for us to apply.8

       ¶65       Further, the statute's syntax supports the view that

"theft" in Wis. Stat. § 971.36(3) is limited to "theft" and does

not encompass "retail theft."                 To explain, § 971.36(3) applies

"[i]n      any    case    of    theft"   (emphasis     added).       "Any"    modifies

"case," not "theft."             If the statute were written to apply "in a

case of any theft" the result may be different.                       However, this

is not the language the legislature chose.

       ¶66       This narrow interpretation of "theft" is consistent

with the larger statutory context in which the theft aggregation

statute lies.            Several other aggregation provisions are very

near       to    Wis.    Stat.    § 971.36,      and   each    of    these    statutes

specifically, by statute number, states the crimes to which it

applies.          See    Wis.    Stat.   §§ 971.366     ("In   any   case     under    s.

943.201 or 943.203 involving more than one violation . . . ")


       under his or her control by virtue of a written lease
       or written rental agreement, within 10 days after the
       lease or rental agreement expires.

       See
       8      Wis   JI——Criminal    1441   (theft——Wis.   Stat.
§ 943.20(1)(a)), 1444 (theft by employee, trustee, or bailee
(embezzlement)——§ 943.20(1)(b)), 1450 (theft by one having an
undisputed interest in property from one having superior right
of   possession——§ 943.20(1)(c)),   1453A   (theft   by  fraud:
representations made to the owner, directly or by a third
person——§ 943.20(1)(d)), 1453B (theft by fraud: representations
made to an agent——§ 943.20(1)(d)), 1453C (theft by fraud:
failure to disclose as a representation——§ 943.20(1)(d)), 1455
(theft by failure to return leased or rented property——
§ 943.20(1)(e)) (2019).


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(emphasis added), 971.367 ("In any case under 946.79 involving

more than one violation . . . ") (emphasis added).

       ¶67   Had the legislature wanted Wis. Stat. § 971.36(3) to

apply to retail theft under Wis. Stat. § 943.50, it certainly

could     have      said    so.         These       other       aggregation          statutes

demonstrate       that     the    legislature            knew    how     to    specifically

delineate the application of an aggregation statute, yet chose

not to in this instance.                Instead, it used the word "theft," a

word with a "peculiar meaning in the law."

       ¶68   Viewing the majority/lead opinion in conjunction with

the other aggregation statutes raises more questions than it

answers      with    regard       to    the       breadth       of     the    majority/lead

opinion's determination.

       ¶69   Is     the    majority/lead          opinion       concluding          that    Wis.

Stat.     § 971.36(3)       applies      to       all     "theft       offenses?"            See

majority/lead op., ¶15.                Are "theft offenses" those that have

the word "theft" in their titles only?                      See id., ¶¶25-30.               What

about,    for     example,       the    crimes      of     unauthorized         use    of    an
individual's personal identifying information or documents under

Wis.     Stat.    § 943.201       and    unauthorized            use     of    an    entity's

identifying information or documents under Wis. Stat. § 943.203?

Courts have referred to such charges as "identity theft."                                    See

State v. Stewart, 2018 WI App 41, ¶26, 383 Wis. 2d 546, 916

N.W.2d 188.

       ¶70   The majority/lead opinion creates confusion regarding

the application of aggregation statutes to these crimes.                                   Each
has its      own specific aggregation provision.                         See    Wis. Stat.

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§ 971.366.          Yet, the majority/lead opinion is unclear as to

whether its holding extends to "identity theft" charges.

        ¶71     Further, the history of the theft aggregation statute

indicates that its provisions were intended to apply to Wis.

Stat. § 943.20 only.         The modern versions of both the theft and

theft aggregation statutes were enacted in 1955.                 Wis. Stat. §

943.20 (1955-56); Wis. Stat. § 955.31 (1955-56); see L. 1955, c.

696.9        At this time, § 943.20 was the only theft-titled statute.

All         other   "fact-specific   theft       offenses"    cited    by    the

majority/lead opinion came later.10          See majority/lead op., ¶15.

Consequently, "any case of theft" under the theft aggregation

statute clearly referred to only § 943.20 at the time of the

statute's passage.

       Wisconsin Stat. § 955.31 was renumbered to Wis. Stat. §
        9

971.36 in 1969.   The substance of the statute did not change.
L. 1969, c. 255, § 63.

       Wisconsin Stat. § 943.45 ("Theft of telecommunications
        10

service,"  originally entitled "obtaining telecommunications
service by fraud") was enacted in 1961.        L. 1961, c. 248.
Section 943.205 ("Theft of trade secrets") was enacted in 1965.
L. 1965, c. 438.         Section   943.50 (originally entitled
"shoplifting," now "retail theft; theft of services") was
enacted in 1969.    L. 1969, c. 254.    Wisconsin Stat. § 943.61
("Theft of library material") was enacted in 1979 as Wis. Stat.
§ 943.60.    L. 1979, c. 245, § 4.     Both Wis. Stat. § 943.46
(currently entitled "Theft of video service") and Wis. Stat.
§ 943.47, ("Theft of satellite cable programming") were enacted
in 1987. 1987 Wis. Act 345, §§ 2-3. Wisconsin Stat. § 943.455
(currently entitled "Theft of commercial mobile service,"
originally entitled "Theft of cellular telephone service") was
enacted in 1991.    1991 Wis. Act 39, § 3619m.    Section 943.74
("Theft of farm-raised fish") was enacted in 2001.     2001 Wis.
Act 91, § 3.      Lastly, Wis. Stat. § 943.81 ("Theft from a
financial institution") was enacted in 2005. 2005 Wis. Act 212,
§ 8.


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    ¶72     It    should    be   observed    that    under   the     majority/lead

opinion's argument, retail theft charges could not have been

aggregated under Wis. Stat.            § 971.36 at the time the retail

theft    statute    was    enacted.         Wisconsin    Stat.       §    943.50   was

originally titled "shoplifting," and not "retail theft."                           See

Wis. Stat. § 943.50 (1969-70).11                The majority/lead opinion's

reliance on the statutory title would thus have provided no

support for the proposition that § 943.50 denominates a "theft"

offense.    See majority/lead op., ¶31.              "Shoplifting" is not the

crime of "theft," just as "retail theft" is not "theft."

    ¶73     In sum, the majority/lead opinion's interpretation of

the theft aggregation statute rests upon an unsupportable plain

meaning analysis, which runs counter to established principles

of statutory interpretation.           It betrays the statute's text, the

statute's context, and the statutory history.

    ¶74     For    the     reasons    set    forth     above,    I       respectfully

dissent.

    ¶75     I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.




    11 See L. 1981, c. 270, § 2 (amending title of § 943.50 from
"Shoplifting" to "Retail theft").


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