Opinion
No. 2014AP612–CR.
2014-10-7
STATE of Wisconsin, Plaintiff–Respondent, v. Adam J. GAJESKI, Defendant–Appellant.
Appeal from a judgment of the circuit court for Brown County: Tammy Jo Hoc, Judge. Affirmed.
¶ 1 CANE, THOMAS, Reserve Judge.
This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted.
Adam Gajeski appeals a judgment of conviction for misdemeanor theft. He challenges the sufficiency of the evidence to support his conviction, contending there is no evidence or reasonable inference to support a finding that he intended to permanently deprive his wife, Lydia Gajeski, of her cell phones. The judgment is affirmed.
For clarity, Adam and Lydia are referred to by their first names.
¶ 11 The criminal complaint alleges Adam “did intentionally take and carry away the movable property of Lydia A Gajeski, without consent and with intent to permanently deprive the owner of possession of the property, contrary to sec. 943.20(1)(a) & (3)(a) Wis. Stat.” Adam concedes he intentionally took and carried away Lydia's property without her consent. However, he argues there is no evidence that he acted with the requisite intent to permanently deprive Lydia of possession of her cell phones.
¶ 12 On appeal, both parties cite the law of other jurisdictions. While an examination of case law from other jurisdictions can be helpful when there is little case law in our own state on an issue, it is not helpful here. For example, the parties use California law, where the intent to commit theft ostensibly mirrors our own, as that state requires the “intent to permanently deprive the owner of possession.” People v. Avery, 27 Cal.4th 49, 54, 115 Cal.Rptr.2d 403, 38 P.3d 1 (Cal.2002). However, California case law has developed an alternative way to fulfill the intent element: by proving there was intent to deprive the owner of a major portion of the possession's value or enjoyment. See id. at 58, 115 Cal.Rptr.2d 403, 38 P.3d 1. There is no case law to that effect in Wisconsin. Therefore, the parties' arguments regarding whether “[Adam] deprived [Lydia] of her phones at ... the peak of their value” are unpersuasive.
The State also cites a case from Georgia. This too is unsuitable for comparison as Georgia's statute on theft does not require the state to prove intent to permanently deprive. See Ga.Code Ann. § 16–8–2.
¶ 13 Despite the limited case law with facts similar to those in this case, there is Wisconsin case law that deconstructs the dispositive issue of intent. Determining intent is a notoriously difficult task. See Sartin v. State, 44 Wis.2d 138, 145, 170 N.W.2d 727 (1969) (quoting Strait v. State, 41 Wis.2d 552, 559, 164 N.W.2d 505 (1969) (“The difficulty with a case like the instant one ... is that often there is no direct evidence going to the issue of intent.... ‘If intent required definite and substantive proof, it would be almost impossible to convict, absent facts disclosing a culmination of the intent.’ ”). Our supreme court therefore instructed that “[t]he mind of an alleged offender ... may be read from his acts, conduct, and inferences fairly deducible from all the circumstances.” Id. Further, “[w]hen there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all of the natural and probable and usual consequences of his [or her] deliberate acts.” Genova, 91 Wis.2d at 613–14, n. 19, 283 N.W.2d 483.
The jury instructions on the theft count echoed this language: “You cannot look into a person's mind to find knowledge and intent. Knowledge and intent must be found, if found at all, from the Defendant's acts, words, and statements, if any, and from all of the facts and circumstances in this case bearing upon knowledge and intent.”
¶ 14 Adam contends the record is devoid of any evidence from which the jury could form a reasonable inference that he had any intent other than to temporarily possess the phones in order to prevent Lydia from calling the police. He argues the temporary nature of his intent to possess is apparent from the brief amount of time that Lydia was without her phones; his admission to the police that he took the phones and his willingness to return them; and from the domestic nature of the dispute, which he alleges sets it apart from typical stranger-to-stranger theft scenarios. Adam also cites cases that distinguish taking and using another's property from taking with intent to permanently deprive, alleging his own case is more similar to the former category. See People v. Carr, A134689, 2013 WL 5375653 (unpublished Cal. Ct.App. Sept. 26, 2013) (Court compared defendant's temporary taking of a cell phone for emergency use to “joyriding” and held it did not constitute theft). Adam himself points out that he never used Lydia's phones—they were not taken, as in Carr because he needed to temporarily use them in an emergency; rather, he took them with the specific purpose of depriving Lydia of her ability to use her cell phones. Thus, Adam's argument is unpersuasive.
Adam argues,
This was a dispute between spouses that tangentially involved marital property. There was no reason to believe Lydia would not get the phones back once things calmed down and, in fact, she did get them back within two to three hours. This was not, moreover, a burglary, robbery, or other stranger to stranger incident that, by its context alone, would allow a jury to reasonably infer an intent to permanently deprive.
Why Adam believes this scenario—a taking by one spouse from another—cannot establish, “by its context alone,” intent to permanently deprive is a mystery to this court. Adam's argument seems to suggest Lydia lacked independent rights over her property.
¶ 15 The State counters Adam's arguments, responding that an examination of Adam's conduct and the circumstances surrounding the taking unquestionably provided the jury with enough evidence to infer Adam had the intent to permanently deprive Lydia of possession of her phones. As the State correctly points out, “[i]ntent is a state of mind existing at the time a person commits an offense.” Sartin, 44 Wis.2d at 145, 170 N.W.2d 727. The State argues Adam's state of mind at the time of taking could be surmised from the sum of his actions: he physically took the phones from Lydia; he refused her requests to return them; he left with her property; and he kept her property until he was ordered to return it by the police. These facts provided an adequate basis for the jury's finding of Adam's intent at the time of taking to deprive Lydia of permanent possession of the phones.
¶ 16 This court will not substitute its judgment for the jury's, “unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.” Poellinger, 153 Wis.2d at 507, 451 N.W.2d 752. Here, it is undisputed Adam deliberately took Lydia's phones away from her and away from her house. The consequences of taking another person's property are practically banal in their inevitability: the owner is going to call the police, submit a theft report, and charges will be filed. The domestic nature of this dispute does not change the facts, or the reasonable inferences arising from the facts. Adam and Lydia's relationship has no bearing on the jury's ability to find that Adam acted with intent in taking Lydia's phones, and that he did not intend to return them, but only did so under police direction. The jury could have reasonably inferred Adam intended to permanently deprive Lydia of her property at the time of the taking because of these deliberate actions, and thus concluded Adam “intend[ed] all of the natural and probable and usual consequences of his deliberate acts.” See Genova, 91 Wis.2d at 613–14, n. 19, 283 N.W.2d 483. In addition, the jury's question regarding the definition of permanent possession indicates its specific consideration of the very element disputed in this case.
¶ 17 Given the narrow standard of review, this court is satisfied the jury could form a reasonable inference that Adam intended to permanently deprive Lydia of possession of her cell phones. Thus, there was sufficient evidence to support Adam's theft conviction and the jury's verdict will not be disturbed.
Judgment affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)4.