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.
2

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.
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,

 v.

Autumn Marie Love Lopez,

 Defendant-Respondent-Petitioner.

FILED

NOV 27, 2019

Sheila T. Reiff

Clerk of Supreme Court

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 

2

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

3

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 WalMart 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 

 

3 Justice Daniel Kelly joins this opinion except paragraphs 

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

4

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; . . . .

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

violates this section is guilty of: . . . A Class I felony, if 

the value of the merchandise exceeds $500 but does not exceed 

$5,000."
Nos. 2017AP913-CR & 2017AP914-CR 

5

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

6

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

7

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

8

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

9

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" 

 

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

the word "theft" in the text of the statute.
Nos. 2017AP913-CR & 2017AP914-CR 

10

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 
Nos. 2017AP913-CR & 2017AP914-CR 

11

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 
Nos. 2017AP913-CR & 2017AP914-CR 

12

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 
Nos. 2017AP913-CR & 2017AP914-CR 

13

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 
Nos. 2017AP913-CR & 2017AP914-CR 

14

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

15

§ 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.

10 Furthermore, 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)).
Nos. 2017AP913-CR & 2017AP914-CR 

16

¶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 

 

11 The 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. 
Nos. 2017AP913-CR & 2017AP914-CR 

17

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

1

¶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 DefendantRespondent-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 

 

3 The State's brief erroneously lists both Lopez and 

Rodriguez as petitioners. As noted, only Lopez is a petitioner.
No. 2017AP913-CR & 2017AP914-CR.rgb

3

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.

 

4 Rodriguez's caption remained consolidated with Lopez's 

because once the cases are consolidated on appeal, the captions 

remain together unless a court orders otherwise.

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

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

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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. 

 

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

Interpretation of Legal Texts, 221 (2012).
No. 2017AP913-CR & 2017AP914-CR.rgb

7

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).
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8

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

1

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

1

¶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)
No. 2017AP913-CR & 2017AP914-CR.awb

2

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

3

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. 

 

6 Justice Ziegler's majority/lead opinion and Justice 

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

4

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

5

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

6

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

7

 

(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)
No. 2017AP913-CR & 2017AP914-CR.awb

8

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.

8 See 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).
No. 2017AP913-CR & 2017AP914-CR.awb

9

(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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10

§ 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. 

 

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

971.36 in 1969. The substance of the statute did not change. 

L. 1969, c. 255, § 63. 

10 Wisconsin Stat. § 943.45 ("Theft of telecommunications

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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