State v. Kurzawa

509 N.W.2d 712, 180 Wis. 2d 502

• Court: Wisconsin Supreme Court
• Decided: January 12, 1994
• Docket: 92-0926-CR
• Status: Published

Opinions

JON P. WILCOX, J.

This is a review under sec. (Rule) 809.62, Stats., of a published decision of the court of appeals¹ reversing Walworth County Circuit Court Judge James L. Carlson's determination that the state's attempt to prosecute the defendant, Michael J. Kurzawa (Kurzawa) in Walworth County on 54 counts of forgery did not violate Kurzawa's constitutional protection against being placed twice in jeopardy for the same offense. Because we believe the Walworth County prosecution does not violate Kurzawa's constitutional rights, we reverse and remand.

Background

This appeal has a complicated and lengthy history. In 1977, Br. Robert Beckes and his wife, Dr. Clarice Beckes, each established their own medical practice in the city of Milwaukee. Beginning in 1977, and continuing until some time in 1986, Kurzawa provided professional services in connection with the business aspects of the Beckes' practices. He was instrumental in the initial set-up of the offices. He also provided ongoing assistance in such areas as personnel decisions, the development of marketing strategies, bill-paying, and general bookkeeping responsibilities. The performance of these services allowed Kurzawa access to the Beckes' business checking accounts and bank records.

All of the criminal charges against Kurzawa, first in Milwaukee County, and later in Walworth County, stem from allegations that during this period he signed and made payable to himself checks drawn against the Beckes1 business checking accounts. These checks were discovered during the course of an audit requested by Robert Beckes in 1986 after he had grown concerned over his practice's financial condition.

That audit revealed that Kurzawa had signed the name of either Robert or Clarice Beckes on checks drawn against their business accounts with the Greater Milwaukee Bank. Many of these checks were payable to parties other than Kurzawa, and apparently went towards legitimate business expenses. In other instances, however, Kurzawa signed checks made payable either to himself or his business. The Beckes claim that Kurzawa was not entitled to those assets. It is conceded by all parties that Kurzawa was not authorized to sign checks on these accounts.

Following an investigation by the forgery unit of the Milwaukee Police Department, Kurzawa was charged in Milwaukee County with one count of embezzlement, contrary to secs. 943.20(1)(b) and (3)(c), Stats. Shortly before trial, the criminal information was amended so as to charge Kurzawa with two counts of theft by fraud, where the value of the property exceeds $2,500, in violation of secs. 943.20(1)(d) and (3)(c). Count one of the amended information involved the property of Dr. Robert Beckes; count two involved the property of Dr. Clarice Beckes.

The theft by fraud charges against Kurzawa went to trial on September 25, 1990. Following the state's presentation of its case-in-chief, Judge William D. Gardner granted Kurzawa's motion for acquittal on all charges. Judge Gardner based his order on what he regarded as several flaws in the prosecution's legal theory of the case.² The merits of the case did not go to the jury-

Then, by criminal complaint dated April 10, 1991, Kurzawa was charged in Walworth County with 54 counts of uttering a forged writing (forgery), in violation of sec. 943.38(2), Stats. Each count arises from a separate check written on the business account of either Robert or Clarice Beckes. The 54 checks in question were written during a time that spanned April 16, 1985 to March 24, 1986. There is no question but that these 54 checks were among those checks that served as the basis for the prior Milwaukee County theft by fraud prosecution.

On October 18, 1991, Kurzawa moved the Wal-worth County Circuit Court to dismiss the charges against him on double jeopardy grounds. Essentially, his argument was that under the analysis articulated in Grady v. Corbin, 495 U.S. 508, (1990), he had already been prosecuted for this offense in the Milwaukee County theft by fraud trial. Judge Carlson dismissed Kurzawa's motion, and ordered the Wal-worth County prosecution to proceed.

Kurzawa appealed Judge Carlson's non-final order to the court of appeals. Following an unsuccessful attempt to certify the issue to the Wisconsin Supreme Court, the court of appeals reversed Judge Carlson's order, and remanded the case with instructions to dismiss the criminal complaint.

In the court of appeals' view, the Walworth County forgery prosecution failed Grady's double jeopardy analysis. The opinion's author, Judge Nettesheim, noted that Grady established a new two-step analysis for "successive prosecution" cases such as Kurzawa's. In the first step, the inquiry is whether the second prosecution passes the "same elements" test of Blockburger v. United States, 284 U.S. 299 (1932). That test asks whether each offense, "requires proof of a fact which the other does not." Id. at 304. Applying that test, the court of appeals compared the statutory elements of theft by fraud, sec. 943.20(1)(d), with those of forgery, sec. 943.38(2), and found that they survived Blockburger because, "they neither have identical statutory elements, nor is one the lesser-included of the other." Kurzawa, 173 Wis. 2d at 775.

The court then proceeded to the second inquiry under Grady, one it characterized as whether, "to establish an essential element of an offense charged... the state will attempt to prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at 776. In its analysis, the court of appeals had the benefit of a series of stipulations made by the parties. In one such stipulation, the state acknowledged that in the Milwaukee County prosecution, it sought to establish the element of 'false representation' by proving that Kurzawa obtained money from the Beckes' accounts by forging their names as the purported makers of the checks and naming himself as payee. The court then compared that fact with the following stipulations regarding the conduct the state intended to rely upon in the Walworth County forgery prosecution:

1) Between a date prior to May, 1983 and the end of March, 1986, Mr. Kurzawa wrote a number of checks to himself or his business on the Beckes' business accounts, forging their names as the drawers of the checks. These checks included the checks which are set forth in Counts 1 through 54 of this information.

2) Mr. Kurzawa presented the checks set forth in Counts 1 through 54 of the information for cashing or deposit into accounts held in his name at the Walworth State Bank in Walworth County, Wisconsin.

3) Neither Dr. Robert Beckes nor Dr. Clarice Beckes gave the defendant permission to make the checks, to sign their names to the checks, or to present the checks for cashing anywhere. Id.

The court of appeals found that these stipulations revealed that the state was attempting to prosecute Kurzawa for the same "core conduct" in successive prosecutions. This, the court concluded, was precisely what Grady forbids. Id.

Judge Nettesheim also wrote a separate concurrence wherein he questioned the continuing vitality of Grady, particularly in light of the Supreme Court's subsequent holding in United States v. Felix, — U.S. —, 112 S. Ct. 1377 (1992), and the Wisconsin Supreme Court's post-Grady decision, State v. Sauceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992). Kurzawa, 173 Wis. 2d at 777, 778-79 (Nettesheim, J., concurring). Judge Nettesheim recognized that Sauceda dealt with the situation where multiple offenses are tried in a single prosecution, while Grady was addressed to instances of successive prosecutions. Nonetheless, he felt that Sauceda, which relied almost exclusively on a Block-burger analysis, and Grady could lead to unjustifiably disparate results. Id. at 780.

In April of 1993, we agreed to hear the state's appeal of the court of appeals decision, and scheduled oral arguments for September of that year. In the interim, on June 28,1993, the United States Supreme Court overturned its barely three-year-old Grady decision in United States v. Dixon, — U.S. —, 125 L. Ed. 2d 556 (1993). In Dixon, five justices criticized Grady for what they viewed as that decision's lack of historical grounding and its demonstrated unworkability in practice. Id. at 573-76. These same five justices further rejected the idea, which lay at the heart of Grady, that the double jeopardy clause required a different method of analysis for cases involving successive prosecutions than it did for multiple punishment cases. Id. at 573. The Dixon majority returned to Blockburger's "same elements" test for virtually all double jeopardy questions. Id.

Kurzawa concedes that under Blockburger, the Walworth County forgery prosecution can proceed. Still, he advances three arguments why Blockburger should not be the test for his double jeopardy claims. First, he maintains that Dixon, and its return to Block-burger's "same elements" test cannot be retroactively applied to his case because such an application violates ex post facto principles embodied in the Due Process Clause. Second, he argues that even if Dixon can be applied without violating due process, this court should nonetheless reject its approach. He insists that Dixon was wrongly decided, and that we should adopt a Grady-like "same conduct" double jeopardy approach in successive prosecution cases. Finally, he argues that under Supreme Court precedent predating both Grady and Dixon, his Walworth County prosecution is barred on double jeopardy grounds. We discuss each of these arguments in turn.

I.

Kurzawa's first argument is that retroactive application of Dixon's double jeopardy analysis to his case violates the ex post facto protections embodied in the Due Process Clause. His reasoning is that at the time of his Milwaukee County prosecution, Grady, decided on May 29, 1990, was the prevailing law of double jeopardy. According to Kurzawa, the state cannot, consistent with Grady, prosecute him for that "same conduct" again in Walworth County. In other words, Kurzawa believes that as of the date of his Milwaukee County acquittal, Grady provided him with a double jeopardy defense to the Walworth County forgery charges. He concedes that such a defense does not exist under Dixon. As a result, Dixon, if applied retroactively, exposes him to punishment from which he was previously immune. Such an "after the fact" increase in punishment, he believes, violates ex post facto principles.

The state, for its part, gives short shrift to Kurzawa's ex post facto arguments. It maintains that under Griffith v. Kentucky, 479 U.S. 314 (1987), new rules with respect to criminal prosecutions can always be applied retroactively to cases in the direct appeal "pipeline." In this case, the "new rule" is Dixon's return to the double jeopardy analysis of Blockburger. Because this new rule was announced while Kurzawa's case was in the "pipeline", it can automatically be applied to Kurzawa.

11]

We begin by noting that the principles underlying the Ex Post Facto Clause apply to judicial pronouncements as well as to legislative acts. As the Supreme Court has stated:

The ex post facto clause is a limitation upon the powers of the legislature... and does not on its own force apply to the Judicial Branch of Government. But the principle on which the clause is based-the notion that persons have a right to have fair warning of that conduct which will give rise to criminal penalties-is fundamental to our concept of constitutional liberty. As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment.

Marks v. United States, 430 U.S. 188, 191-192 (1977). See also, Bouie v. City of Columbia, 378 U.S. 347 (1964). Accordingly, our task is to determine whether the application of Dixon's analysis in this case violates ex post facto principles, thereby depriving Kurzawa of due process.

The United States Supreme Court has on various occasions articulated the protections afforded by the Ex Post Facto Clause:

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

Beazell v. Ohio, 269 U.S. 167, 169-170 (1925). See also, Collins v. Youngblood, 497 U.S. 37, 42 (1990).

The Supreme Court's discussion in Marks illustrates these principles. The Marks defendants faced charges arising from their transport of allegedly obscene materials. This conduct continued through February 27, 1973. Marks, 430 U.S. at 189-190. Their trial was set for the following October. On June 21, 1973, the United States Supreme Court decided Miller v. California, 413 U.S. 15 (1973). In Miller, the court adopted a broader definition of obscenity than that which it had espoused earlier in Memoirs v. Massachusetts, 383 U.S. 413 (1966). The issue in Marks centered on which definition of obscenity should be applied: the Memoirs standard, or the more inclusive Miller standard.

The Supreme Court held that the Marks defendants could not, consistent with due process, be prosecuted under the new, tougher Miller standard. Marks, 430 U.S. at 196. The reason was that at the time they engaged in their allegedly illegal behavior, Memoirs, not Miller, was the law. Because the new Miller standard criminalized conduct that was innocent when committed, it could not be retroactively applied to those defendants. Id.

Marks also reveals why the state's reliance on Griffith's "pipeline" theory of retroactivity can be misplaced when ex post facto concerns are raised. In Marks, the new rule at issue, the broader Miller obscenity standard, was announced while the case was in the direct appeal "pipeline". Nevertheless, the Supreme Court held that applying that new standard retroactively violated the defendants' due process rights. This reasoning conflicts with the state's expansive application of Griffith to ex post facto analysis.

When a criminal defendant raises Ex Post Facto Clause concerns with respect to the application of new law, courts must look to see whether the application violates one or more of that clause's recognized protections. Specifically, the court must determine whether the new law criminalizes conduct that was innocent when committed, increases the penalty for conduct after its commission, or removes a defense that was available at the time the act was committed. Collins, 497 U.S. at 52. Only when these protections are not violated does Griffith allow retroactive application.

Kurzawa claims that retroactive application of Dixon violates the ex post facto protection against increased punishment because under the double jeopardy analysis of Grady, he could not have been prosecuted in Walworth County for the "same conduct." Kurzawa's argument ignores one of the fundamental aspects of ex post facto analysis, that being its focus on changes in the law relative to the time of the defendant's allegedly illegal behavior. That focus arises from the clause's animating principle, namely that "persons have a right to fair warning of that conduct which will give rise to criminal penalties...." Marks, 430 U.S. at 192. This principle, "fundamental to our concept of constitutional liberty", Id., is premised on the right to know how to conform one's conduct to the law, and the consequences of not doing so, at the time one engages in that conduct.³ This explains why ex post facto analysis is concerned with changes in the law relative to the time the defendant engaged in his allegedly illegal behavior.

It also explains why Kurzawa's reliance on Grady itself is misplaced. The conduct for which Kurzawa faces prosecution in Walworth County occurred no later than March of 1986. Grady was not decided until May of 1990, more than four years later. Dixon's rejection of Grady in and of itself cannot support an ex post facto clause defense.⁴

The real question with respect to Kurzawa's due process/ex post facto arguments is whether Dixon exposes him to a prosecution, and therefore punishment, from which he would have been free under the law as it existed at the time of his alleged acts, or whether it merely restored double jeopardy analysis to the state that existed at that time. Our examination of Supreme Court precedent in this area leads us to believe that the latter is true. As a result, we reject those arguments.⁵

The Fifth Amendment's Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The clause has been construed to encompass three separate constitutional protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717 (1969). We will refer to the first two of these as protections against "successive prosecutions" and the third as protection from "multiple punishments."

There can be no dispute that in cases involving multiple punishments in a single prosecution, Block-burger's "same elements" test is the accepted method for determining which offenses are the same for double jeopardy clause purposes. See, Sauceda, 168 Wis. 2d at 489. Under Blockburger, the inquiry is whether each offense contains a statutory element not contained in the other; if not, they are the same for double jeopardy purposes and multiple punishments are prohibited. Blockburger, 284 U.S. at 304.

The task before the court in Grady and Dixon, though, was to define the appropriate double jeopardy analysis for cases such as Kurzawa's that involve successive prosecutions. In Dixon, five justices, led by Justice Scalia, held that Blockburger was the correct analysis in such cases. These justices believed that Grady's "same conduct" approach was "wholly inconsistent with earlier Supreme Court precedent ..." and that "there is no authority except Grady for the proposition that it [the term 'same offense'] has different meanings in the two contexts." Dixon, — U.S. —, 125 L. Ed. 2d. at 573 (emphasis in original).

We agree that prior to Grady, Blockburger's "same elements" test was the prevailing law for all double jeopardy claims, including those involving successive prosecutions. As a result, Dixon's return to Blockburger merely places Kurzawa in precisely the same position he faced when he engaged in the conduct at issue. A review of the cases relied upon by Grady to support its two-step "same conduct" approach confirms our view. With one possible exception, none of those cases provide any direct support for Grady. Rather, they all rely on a Blockburger-type analysis.

In Brown v. Ohio, 432 U.S. 161 (1977), the Supreme Court held that a defendant who had already been convicted for "joyriding" could not subsequently be prosecuted for auto theft. Under Ohio law, conviction for joyriding required proof that the defendant did "purposely take, operate, or keep any motor vehicle without the consent of the owner." Id. at 162 n.1. The auto theft statute, on the other hand, simply stated that, "No person shall steal any motor vehicle." Id. at 163 n.2. There was no dispute that the two prosecutions arose from the same conduct. Citing the Ohio Court of Appeals' determination that joyriding was a lesser-included offense of auto theft, the Supreme Court held that the auto theft prosecution violated double jeopardy. In so doing, the Court relied strictly on a Blockburger "same elements" test. Id. at 168.⁶

Grady also tried to draw support for its "same conduct" from the holding in Ashe v. Swenson, 397 U.S. 436 (1970). In Ashe, the jury at the initial trial found that the defendant was not one of the robbers participating in the hold-up of a poker game. The Supreme Court held that resolution of that issue to the defendant's benefit in the first trial estopped the state from relitigating that same issue at a second trial involving a different victim of that same robbery. Id. at 445. The court's decision in Ashe was grounded in the law of collateral estoppel as applied to previously litigated facts. As such, Ashe provides little if any support to Grady's double jeopardy approach, especially in cases such as Kurzawa's .where the merits of the case never reached the jury.⁷

A third case relied upon by Grady is Harris v. Oklahoma, 433 U.S. 682 (1977). In Harris, the defendant was convicted of felony murder in connection with the robbery of a grocery store. The Oklahoma Court of Criminal Appeals determined that proof of the underlying felony, armed robbery, was necessary to prove the requisite intent for felony murder. Id. at 682. In a brief per curiam decision, the Supreme Court held that Harris's subsequent prosecution for the underlying felony of armed robbery was barred by the Double Jeopardy Clause. Id.

In Dixon, Justice Scalia maintained that Harris is completely consistent with a Blockburger analysis because the underlying substantive offense was actually just a lesser-included offense of the greater crime. Dixon, — U.S. —, 125 L. Ed. 2d at 574-75. In other words, felony murder could not have been proved without also proving the lesser crime, armed robbery. We agree with that analysis, and with the conclusion that Harris reflects a Blockburger-type analysis.

Illinois v. Vitale, 447 U.S. 410 (1980), represents another successive prosecution case where the Supreme Court applied a Blockburger analysis. The defendant in Vitale was first convicted for failure to reduce speed in connection with his role in an auto accident. Id. at 412. Later, the state charged him with involuntary manslaughter with a motor vehicle, proof of which requires "reckless operation of a motor vehicle." Id. at 416-17. The Illinois Supreme Court, relying on Brown, held that failure to reduce speed was a lesser-included offense of involuntary manslaughter because the recklessness element of involuntary manslaughter could be established by proving a reckless failure to reduce speed. Id. at 417.

The United States Supreme Court reversed. Applying a very strict Blockburger analysis, the court focused exclusively on the statutory elements of the two offenses, and determined that because it was possible to prove involuntary manslaughter without proving a failure to reduce speed, the latter was not a lesser-included of the former. Id. at 418-19. The court distinguished Brown on the grounds that in that case, "the prosecutor who had established auto theft necessarily has established joyriding as well." Id. at 417.

The majority opinion in Grady ignored that fact. Instead, it focused on Vitale's suggestion that if, in the involuntary manslaughter prosecution, the state in fact relied on the failure to reduce speed to prove the recklessness element of involuntary manslaughter, the defendant would have a "substantial" double jeopardy argument. Grady, 495 U.S. at 515-16. Again, we believe Grady makes too much of this dicta. As Justice Scalia pointed out in Dixon, the suggestion in Vitale does not say that the defendant would have a "winning" argument should that occur, only that he would have a substantial one. Dixon, — U.S. —, 125 L. Ed. 2d at 575.

In fact, the only case relied on by Grady that may illustrate the application of something other than a Blockburger analysis is the nineteenth century case, In re Nielsen, 131 U.S. 176 (1889). In Nielsen, the defendant was first convicted of unlawful cohabitation with two women, and then convicted of adultery with one of the women the following day. Id. at 185. The Supreme Court granted defendant's petition for habeas corpus relief on the grounds that the adultery prosecution violated the double jeopardy clause.

It is not clear exactly what analysis the Nielsen court applied to that defendant's double jeopardy claim.⁸ In any event, we believe Nielsen is exceedingly weak authority for Grady's "same conduct" approach. First, we note the opinion's obvious age and lack of clarity. Second, we are aware of at least one double jeopardy case from roughly the same period, also involving successive prosecutions arising from the same conduct, where the Supreme Court relied solely on a Blockburger-type analysis without even mentioning Nielsen. Gavieres v. United States, 220 U.S. 338 (1911).⁹

Finally, we note that in State v. Brooks, 215 Wis. 134,254 N.W. 374 (1934), this court specifically limited Nielsen to its "peculiar circumstances", and applied a strict "same elements" test to the state's attempt at successive prosecutions. Id. at 139. In Brooks, the question was whether the defendant's prior conviction for lewd and lascivious behavior barred a subsequent prosecution for adultery. The court determined that the offenses were not the same for double jeopardy purposes because, "there are distinct elements in one which are not included in the other, though both relate to one transaction." Id. at 140.

To summarize, dictum in several Supreme Court cases prior to Grady does express the sentiment that an approach other than Blockburger is required when successive prosecutions are attempted. We nonetheless agree with Dixon's conclusion that prior to Grady, Blockburger was the law for determining which offenses were the same in such cases.¹⁰ In fact, Grady itself seems to recognize this distinction between sentiment and law when it speaks of adopting the "suggestion" set forth in Vitale dicta. Grady, 495 U.S. at 510. Accordingly, we believe that at the time Kur-zawa engaged in the conduct for which he stands accused, Blockburger's "same elements" test was the standard by which his double jeopardy claim would have been analyzed. We conclude, therefore, that applying such an analysis now does not violate his due process rights.

II.

Kurzawa next argues that irrespective of ex post facto considerations, this court should reject Dixon because it was wrongly decided. Kurzawa urges us, rather, to interpret the Wisconsin Constitution's Double Jeopardy Clause so as to provide broader protections for defendants such as himself that face successive prosecutions.

Kurzawa's arguments with respect to the wisdom of Dixon virtually mirror those advanced by Justice Brennan in Grady, and Justice Souter in his Dixon dissent. Dixon, — U.S. —, 125 L. Ed. 2d 556, 598 (Souter, J., dissenting.) We see little need to reiterate those arguments, or for that matter, the counter arguments championed by Justice Scalia in both those cases.

Generally, this court's construction of Wisconsin's prohibition against double jeopardy is guided by the rulings of the United States Supreme Court. State v. Barthels, 174 Wis. 2d 173, 181, 495 N. W.2d 341 (1993). We believe that Grady, and its "same conduct" approach to double jeopardy analysis, is a poor candidate for persuading us to deviate from that course. During its brief life span, Grady was heavily criticized for being unsupported by precedent, for allowing unjust results,¹¹ and for proving unworkable in practice.¹² To this list, we would add Grady's infidelity to the language of the Double Jeopardy Clause itself, which prohibits successive prosecutions of the "same offense," not the "same conduct," as another reason not to adopt its methodology.¹³

We believe that Blockburger, and the case law developed around it, adequately protect the interests embodied in the Double Jeopardy Clause. Under Block-burger, the state cannot successively prosecute a defendant for two offenses unless each offense necessarily requires proof of an element the other does not. Neither can the state prosecute an offense whose elements are "incorporated" into the elements of an offense already prosecuted. Dixon, — U.S. —, 125 L. Ed. 2d at 569. Finally, the state cannot relitigate factual issues that have already been adjudicated to the defendant's benefit in an earlier prosecution. Ashe, 397 U.S. at 446. These protections ensure that defendants will not be forced to unfairly "run the gauntlet" a second time for the same offense.

Of course, we recognize that the Double Jeopardy Clause's prohibition against "successive prosecutions" protects different interests than does its prohibition against "multiple punishments."¹⁴ Still, we do not believe that these different interests necessarily require or even recommend separate analyses. Block-burger's emphasis on statutory elements is simple and objective. It provides defendants, courts, and prosecutors certainty as to which offenses are the same for double jeopardy purposes. Moreover, it is the approach that best comports with the language of the double jeopardy clause. Blockburger is not a perfect test, but it is better than Grady's "same conduct" approach. We hereby follow the United States Supreme Court and adopt the analysis of Dixon and Blockburger in double jeopardy cases involving successive prosecutions.

Under a Blockburger "same elements" test, theft by fraud, sec. 943.20(1)(d), Stats., and uttering a forged writing, sec. 943.38(2), are different offenses, and can be prosecuted in separate prosecutions. Kurzawa does not dispute that fact. Comparing the statutory elements of the two offenses, it is clear that each requires proof of an element or elements which the other does not.¹⁵ Most significantly, theft by fraud requires proof that the defendant intended to deceive and defraud the owner, and that the owner was in fact deceived and defrauded. Forgery does not. Forgery requires proof that the defendant forged a writing, and that the writing was one "by which legal rights or obligations are created or transferred." Theft by fraud does not. Since the two offenses each require proof of an element the other does not, they survive Blockburger analysis, and they can be prosecuted separately.

III.

In his final argument, Kurzawa seeks to characterize the Walworth County forgery prosecution as falling under the "incorporation" species of lesser-included offenses, exemplified by the pre-Grady case, Harris. We do not agree with Kurzawa's arguments in that regard. The Supreme Court has made clear that its holding in Harris was premised on the fact that a conviction for the "greater offense" in that case, felony murder, necessarily required proof of all the elements of the "lesser offense," armed robbery. Dixon, — U.S. —, 125 L. Ed. 2d at 574. In other words, the statutory definition of felony murder "incorporated" the underlying offense of armed robbery. This led the court to conclude that for double jeopardy purposes, felony murder was not a "separate offense distinct from its various elements." Vitale, 447 U.S. at 420.¹⁶

That is not the case with these offenses. As shown above, a theft by fraud conviction does not necessarily require proof of all the elements of forgery. In that regard, Kurzawa's case is more analogous to the situation in Vitale, where the court allowed the prosecution for involuntary vehicular manslaughter because that offense did not always require proof of failure to reduce speed, the offense for which Vitale had previously been convicted. Id. at 419. It is true that in Vitale, the court "suggested" that the state's reliance on Vitale's failure to reduce speed to prove involuntary manslaughter would give Vitale a "substantial" double jeopardy argument. Id. at 421. In Dixon, the Supreme Court overruled Grady and decided that that "substantial" claim was not a winning claim. So it is with Kurzawa's double jeopardy arguments. We believe that the state's attempt to prosecute Kurzawa in Walworth County does not violate the Double Jeopardy Clause. Accordingly, we reverse the decision of the court of appeals, and remand this case to the circuit court for further proceedings not inconsistent with this opinion.

By the Court. — The decision of the court of appeals is reversed and the case is remanded to the circuit court.

1 State v. Kurzawa, 173 Wis. 2d 769, 496 N.W.2d 695 (Ct. App. 1993).

2 Specifically, the Wisconsin theft by fraud statute, sec. 943.20(1)(d), Stats., requires that a false representation be made either to the owner of the property or the owner's agent. Wis. J I — Criminal 1453. The state attempted to prove that Kurzawa's false representations were made to the Beckes' financial institution, the Greater Milwaukee Bank. Judge Gardner determined that the relationship between depositor and financial institution is one of creditor/debtor, not principal/agent. Therefore, the state failed to prove an essential element of the crime. Judge Gardner's analysis in this respect is not a subject of this appeal.

3 It is accepted as an axiom of American constitutional law that failure to give a defendant fair warning of the consequences of his conduct, when such conduct is determined to be unlawful only after the fact, provides a constitutional defense. Waukesha Memorial Hospital v. Baird, 45 Wis. 2d 629, 636, 173 N.W.2d 700 (1970).

4 Kurzawa's reliance on Rubino v. Lynaugh, 845 F.2d 1266 (5th Cir. 1988), is similarly unavailing. In Rubino, the new judicial interpretation removed a defense that had been available to the defendant when he allegedly committed his offenses. Id. at 1268.

5 We note that Collins, decided in 1990, casts considerable doubt as to whether, in future cases, changes in the law of double jeopardy will in any event support an ex post facto argument. In Collins, the Supreme Court appeared to confine ex post facto violations to "alterations in 'the legal definition of the offense' or 'the nature or amount of the punishment imposed for its commission.'" Collins, 497 U.S. 37, 50, quoting Beazell, 269 U.S. at 169-170. Prior to Collins, the ex post facto clause apparently embraced any change which "altered the situation of a party to his disadvantage." Collins, 497 U.S. at 50. We need not decide whether changes in double jeopardy law qualify under either of these standards because our decision today is based oh the determination that Dixon merely places Kurzawa in the position he faced when he engaged in his suspect activity. "It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law." Miller v. Florida, 482 U.S. 423, 431 (1987).

Last term, in State v. Koch, 175 Wis. 2d 684, 499 N.W.2d 152 (1993), we relied on Griffith to retroactively apply the new "48-hour" rule announced in County of Riverside v. McLaughlin, — U.S. —, 111 S. Ct. 1661 (1991). Such reliance was proper in that case because retroactive application of that new rule did not violate any ex post facto protections.

6 In Grady, Justice Brennan's majority opinion cites language contained in a Brown footnote (Brown, 432 U.S. at 166-67 n.6), to support the argument that something other than Blockburger is required in successive prosecution cases. Grady, 495 U.S. at 519. We do not find Justice Brennan's reliance on that footnote persuasive in that it is pure dictum, and does nothing to alter the fact that in Brown, a case involving successive prosecutions arising from the same conduct, the court applied a Blockburger-type analysis.

7 Although Ashe did conclude that collateral estoppel principles were embodied in the Double Jeopardy Clause, Ashe, 397 U.S. at 445, the decision's focus on collateral estoppel rather than double jeopardy is revealed in the opinion's following observation:

The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again. Id. at 446.

8 Five justices in Grady maintained that the prosecutions for adultery and unlawful cohabitation each required proof the other did not. See, Grady, 495 U.S. at 519. Apparently, they believed that unlawful cohabitation required proof of cohabiting with two or more women while adultery did not, and that adultery required proof of marriage while unlawful cohabitation did not.

In Dixon, five justices believed that Nielsen was consistent with a Blockburger analysis, and that the court in Nielsen barred the adultery prosecution only after it determined that adultery was simply a lesser-included offense of unlawful cohabitation. Dixon, — U.S. —, 125 L. Ed. 2d at 573-74.

Commentators have remarked on Nielsen's lack of clarity in this respect. See, e.g., Eli J. Richardson, Matching Tests for Double Jeopardy Violations with Constitutional Interests, 45 Vand. L. Rev. 273, 295 n.155 (concluding that, "in fact, it is difficult to determine the exact basis for Nielsen").

9 In Gavieres, the Supreme Court cited with approval the following language from an earlier Massachusetts case, Morey v. Commonwealth, 108 Mass. 433 (1871):

The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment from the other. Gavieres, 220 U.S. at 342.

10 A number of commentators agree with our conclusion that Grady represented a significant break with past Supreme Court precedent. See, e.g., Craig J. Webre, Grady v. Corbin: Successive Prosecutions Must Survive Heightened Double Jeopardy Protection, 36 Loy. L. Rev. 1171, 1182 (1991) ([Grady] is significant in that it alters nearly sixty years of established precedent."); Diane M. Resch, "High Comedy but Inferior Justice": The Aftermath of Grady v. Corbin, 75 Marq. L. Rev. 265, 273 (1991) ("The rule of law articulated in Grady v. Corbin is a dramatic expansion of the Blockburger test."); Eli J. Richardson, Matching Double Jeopardy Violations with Constitutional Interests, 45 Vand. L. Rev. 273, 296 (1991) (concludes that Grady is unsupported by earlier Supreme Court precedent); Sara Barton, Grady v. Corbin: An Unsuccessful Attempt To Define 'Same Offense,' 25 Ga. L. Rev. 143, 155 (1990) (observes that not until Grady did Justice Brennan succeed in removing Blockburger's "almost exclusive hold over the definition of'same offense'").

11 This criticism generally arises in light of the outcome in Grady itself. In Grady, the defendant, while intoxicated, drove his vehicle across the center line, striking two oncoming vehicles, killing one of the drivers. Grady, 495 U.S. at 511. He was charged and pled guilty to two misdemeanor traffic tickets, one for crossing the center line, and the other for driving while intoxicated. Id. at 512-13. Subsequently, the state attempted to prosecute him for criminally-negligent homicide. Attendant to that prosecution the state submitted a bill of particulars that said it intended to rely on the traffic offenses to prove the homicide charges. Id. at 514-15. The Supreme Court held that the homicide prosecution violated the Double Jeopardy Clause because, "the State has admitted that it will prove the entirety of the conduct for which Corbin was convicted-driving while intoxicated and failing to keep right of the median-to establish essential elements of the homicide and assault charges." Id. at 523.

12 See, United States v. Felix, — U.S. —, 112 S. Ct. 1377, 1383-84 (1992), wherein the Supreme Court was forced to back away from a "literal" reading of Grady, "because of difficulties which have already arisen in its interpretation."

See also, Craig J. Webre, Grady v. Corbin: Successive Prosecutions Must Survive Heightened Double Jeopardy Protection, 36 Loy. L. Rev. 1171, 1185 (1991) ("Certainty, simplicity, and justice could have been achieved by retaining the traditional Blockburger test as the exclusive means of defining the 'same offense1 in successive prosecutions. .. ."); and, Diane M. Resch, "High Comedy but Inferior Justice": The Aftermath of Grady v. Corbin, 75 Marq. L. Rev. 265, 281 (1991) ("Historically, the Blockburger test has served as an objective and practical framework by which to determine whether the Double Jeopardy Clause bars a subsequent prosecution. Whatever shortcomings the Blockburger test may have had, Grady v. Corbin does not remedy them.").

13 Kurzawa also argues that we should construe the Double Jeopardy Clause of the Wisconsin constitution more broadly than its federal counterpart based on the Preamble to our state constitution, which, he argues, evinces a greater emphasis on "the blessings of freedom" than it does on the "general welfare." Without deciding the precise merits of Kurzawa's constitutional analysis, we reject his reasoning because our holding today does nothing to jeopardize the "blessings of freedom" ensured the citizens of this state.

14 In Grady, Justice Brennan argued that the interests underlying the Double Jeopardy Clause's protection against successive prosecutions went beyond that Clause's protection against multiple punishments:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.

Grady 495 U.S. at 518, quoting Green v. United States, 355 U.S. 184, 187 (1957).

Justice Brennan also noted that successive prosecutions, "give the State an opportunity to rehearse its proof, thus increasing the risk of an erroneous conviction ...." Id.

15 The statutory elements of theft by fraud, sec. 943.20(1) (d), Stats., are:

First, that the defendant made a false representation to the owner of the property.

Second, that the defendant knew that such representation was false

Third, that the defendant made such representation with intent to deceive and to defraud the owner of the property.

Fourth, that the defendant obtained title to the property of the owner by such false representation.

Fifth, that the owner of the property was deceived by such representation.

Sixth, that the owner of the property was defrauded by such representation.

Wis. JI — Criminal 1453.

The statutory elements of uttering a forged writing under sec. 943.38(2), Stats., are:

First, that the writing was one by which legal rights or obligations are created or transferred.

Second, that the writing was falsely made.

Third, that the defendant uttered the writing as genuine.

Fourth, that the defendant knew the writing was falsely made.

Wis. JI — Criminal 1492.

16 In Dixon, Justice Scalia and Justice Kennedy applied a similar "incorporation" analysis to bar several prosecutions in that case. This is illustrated in their approach to defendant Dixon's double jeopardy claims. As a condition of his release pending his murder trial, Dixon was warned that "any criminal offense" would subject him to among other things, prosecution for contempt of court. While out on bond, Dixon was arrested for possession of cocaine with intent to deliver. As a result, he was found guilty of criminal contempt. Justices Scalia and Kennedy would have barred his prosecution on the cocaine charges because the drug offense "did not include any element not contained in his previous contempt offense. ..." Dixon, 125 L. Ed. 2d at 570.