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MADISON - Joshua T. Howard's Milwaukee Circuit Court conviction for conspiracy to commit theft by fraud in a "burn-out phone scam" was unanimously affirmed by the Wisconsin Court of Appeals in a decision issued today. In the "burn-out" scheme, Howard, an inmate at Waupun Correctional Institution, and his co-conspirators established telephone accounts under other people's names and then used the telephone numbers until the telephone company shut down the accounts for nonpayment of bills. While confined at Waupun, Howard used the fraudulently obtained telephone numbers to place more than 2,000 collect calls from July 2002 through May 2003, totaling about 40,000 minutes of talking time.
"Inmate Howard stole property using a fraudulent scheme," said Attorney General Van Hollen, whose office handled the appeal for the state. "The conviction was correct and I am pleased to see it affirmed."
Howard initially pled guilty to the crime, stipulating to restitution of more than $38,000 to the telephone company. Howard later attempted to retract his plea, claiming that the fraudulent-theft statute's definition of "property" did not include "telephone services" and that he therefore could not have legally pled to a crime under the statute. The Milwaukee County Circuit Court denied Howard's motion, and Howard appealed.
In affirming the conviction, the court of appeals rejected Howard's interpretation of the statute and agreed with the State's view. The court noted that the statute specifically defines "property" to include "electricity" but "does not specifically distinguish the type of electricity being used, or which utility is providing the electricity." The court then determined, as an indisputable fact, "that when one consumes telephone service, one is consuming an applied form of electricity that uses an electric current to transmit the human voice," and thus the scam fell within the scope of the statute.
At the time of his conviction in this case, Howard was serving a 133-year sentence for unrelated crimes. Howard had been previously convicted of multiple felonies, including first-degree sexual assault of a child, second-degree sexual assault of a child, child enticement-prostitution, and soliciting a child for prostitution. Howard received a 9 years 6 months sentence in the fraudulent theft case, to run consecutively to his other sentences.
Assistant Attorney General Christopher G. Wren represented the State in the proceedings in the Wisconsin Court of Appeals. Assistant District Attorney Bruce Landgraf of the Milwaukee County District Attorney's office represented the State in the circuit court.
The Wisconsin Court of Appeals opinion is available at: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=34305.