State v. Tidwell
321 Wis. 2d 596, 2009 WI App 153, 774 N.W.2d 650 (2009)
Rule of Law:
The crime of "theft from the person" under Wis. Stat. § 943.20(3)(e) applies when the theft occurs under circumstances that are "particularly dangerous and undesirable," even if the property is not physically touching the victim, provided the victim is in close proximity and has constructive possession of the property.
Facts:
- On March 3, 2007, Cleveland R. Tidwell entered the Marina Gardens Restaurant and walked to the counter where the cash register was placed.
- Tidwell told Star Rondeau, the manager and lone employee behind the counter, to "[g]ive me the money" in a soft voice.
- When Rondeau, thinking Tidwell was joking, responded by telling him to "[g]et out of here," Tidwell became angry, smashing a fist on the fax machine next to the cash register and loudly repeated, "Give me the money."
- Tidwell then grabbed the fax machine and tried to take it, leading to a brief tug-of-war with Rondeau.
- Tidwell subsequently let go of the fax machine and began smashing the cash register with both of his fists, again demanding Rondeau give him the money.
- The counter where the cash register was placed contained only one exit, which was blocked by Tidwell, leaving Rondeau trapped within arms reach of Tidwell.
- As the manager on duty, Rondeau was responsible for collecting money from the receipts and supervising the restaurant.
- Tidwell's actions, including the shouting, grabbing, and pounding, caused Rondeau to be "upset; shaking and scared."
- Tidwell was apprehended by two on-duty police officers who were having a meal at the restaurant.
Procedural Posture:
- Cleveland R. Tidwell was charged and convicted by a jury in the Kenosha County Circuit Court of attempted theft from the person of another.
- Tidwell appealed his judgment of conviction to the Wisconsin Court of Appeals.
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Issue:
Does sufficient evidence exist for a reasonable jury to find a defendant guilty of attempted theft "from the person of another" when the defendant demands money from a restaurant manager, who is trapped behind a counter, physically assaults the cash register in her immediate proximity, and she has constructive possession of the money, even though the money is not physically on her person?
Opinions:
Majority - Anderson, J.
Yes, sufficient evidence exists for a reasonable jury to find a defendant guilty of attempted theft "from the person of another" because the circumstances were "particularly dangerous and undesirable" and the victim had constructive possession of the money, even though it was not physically on her person. The court affirmed the conviction by interpreting Wis. Stat. § 943.20(3)(e) in line with its prior holdings in State v. Hughes and State v. Graham. The court reiterated that the "from the person" penalty enhancer aims to cover "circumstances which made stealing particularly dangerous and undesirable" and that a fact-specific inquiry, rather than a broad or narrow standard, is appropriate. In this case, Tidwell's actions—trapping Rondeau, repeatedly demanding money, smashing the fax machine and cash register, and engaging in a tug-of-war—were deemed "particularly dangerous and undesirable." The court further clarified that the property does not need to be physically touching the victim. Given Rondeau's role as manager and her close proximity to the cash register, she was in "constructive possession" of the money, which, combined with the dangerous circumstances, satisfied the statutory requirement for "theft from the person."
Analysis:
This case significantly clarifies and potentially broadens the interpretation of "theft from the person" in Wisconsin by affirming that the property does not need to be physically attached to or touching the victim, and that constructive possession combined with dangerous circumstances can satisfy the statutory requirement. It reinforces the court's preference for a fact-specific inquiry focused on whether the situation creates a "particularly dangerous and undesirable" environment, rather than a rigid definition. This precedent suggests that future cases will likely emphasize the victim's proximity, their control over the property, and the aggressor's threatening actions when determining if the "from the person" enhancer applies, thereby increasing the scope of situations that may qualify for enhanced penalties.
