Wis JI-Criminal 1443

Statutory Definition of the Crime

Theft by contractor, as defined in § 779.02(5) of the Wisconsin Construction Lien Law

and in § 943.20(1)(b) of the Criminal Code of Wisconsin, is committed by one who, under

an agreement for the improvement of land, receives money from the owner, and who,

without consent of the owner, contrary to his or her authority, intentionally uses any of the

money for any purpose other than the payment of claims due or to become due from the

defendant for labor or materials used in the improvements before all claims1 are paid2 [in

full] [or] [proportionally in cases of deficiency].3

State’s Burden of Proof

Before you may find the defendant guilty of this offense, the State must prove by

evidence which satisfies you beyond a reasonable doubt that the following five elements

were present.

Elements of the Crime That the State Must Prove

1. The defendant entered into an oral or written agreement for the improvement of

land.

(Building) (Repairing) (Altering) (________) a (house) (garage) (________)

is an improvement of land.4

2. The defendant received money from the owner under the agreement for the

improvement of land.5

[“Owner” means the owner of any interest in land who, personally or through

an agent, enters into a contract for the improvement of the land.]

3. The defendant intentionally used any of the money for a purpose other than the

payment of claims due or to become due from the defendant for labor or materials

used in the improvements before all claims were paid [in full]6 [proportionally in

cases of deficiency].7

4. The use of the money was without the consent of the owner of the land and

contrary to the defendant’s authority.

5. The defendant knew that the use of the money was without the consent of the

owner of the land and contrary to the defendant’s authority.8

Deciding About Knowledge and Intent

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 the facts and circumstances in this case bearing upon knowledge and

intent.9

Jury’s Decision

If you are satisfied beyond a reasonable doubt that all five elements of theft by

contractor have been proved, you should find the defendant guilty.

If you are not so satisfied, you must find the defendant not guilty.

IF FELONY THEFT IS CHARGED, A JURY DETERMINATION OF VALUE

MUST BE MADE. ADD THE FOLLOWING IF THE EVIDENCE WOULD

SUPPORT A FINDING THAT THE VALUE WAS MORE THAN THE

AMOUNT STATED IN THE QUESTION.10

[Determining Value]

[If you find the defendant guilty, answer the following question:

(“Was the value of the money used more than $100,000?”

Answer: “yes” or “no.”)

(“Was the value of the money used more than $10,000?”

Answer: “yes” or “no.”)

(“Was the value of the money used more than $5,000?”

Answer: “yes” or “no.”)

(“Was the value of the money used more than $2,500?”

Answer: “yes” or “no.”)

Before you may answer “yes,” you must be satisfied beyond a reasonable doubt that

the value of the property was more than the amount stated in the question.]

ADD THE FOLLOWING FOR FELONY CASES INVOLVING MORE THAN

ONE THEFT FROM THE SAME OWNER “PURSUANT TO A SINGLE

INTENT AND DESIGN,” AS PROVIDED IN § 971.36(3)(a).11

[In determining the value of the property stolen, you may consider all thefts that you

are satisfied beyond a reasonable doubt were from the same owner and committed by the

defendant pursuant to a single intent and design.]