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§ 943.10, Burglary (Entry with Intent to Commit Felony) — Unanimity as to Intended Felony not Required

State v. Gordon Hammer, 216 Wis. 2d 214, 576 N.W.2d 285 (Ct. App 1997)
For Hammer: Charles W. Jones, Jr.

Issue: Whether juror unanimity is required for burglary, as to which felony was intended during the unlawful entry.

Holding:

In addressing Hammer’s unanimity claim, we engage in a two-step process. We must first determine whether this statute creates only one offense with multiple modes of commission or, whether the statute creates multiple offenses defined by each distinct felony the defendant intended to commit. …The language of the statute indicates that the crime here is one single offense with multiple modes of commission. …

We next address whether the modes of commission were conceptually similar or conceptually distinct. …

With this guidance regarding a somewhat indeterminate concept, we conclude that the modes of commission here are not conceptually distinct. It is clear from the statute that the legislature focused on the intent to commit a felony, not any particular felony. Therefore, all the felonies are conceptually similar for the purposes of unanimity because each and every felony provides the predicate intent element. There is no difference in penalty irrespective of which underlying felony or combination of felonies was intended. Rather, it is Hammer’s single entry into the dwelling with the requisite intent that constitutes the crime.

Under these circumstances, Hammer was not entitled to a unanimity instruction regarding the felonies that formed the basis of his intent to enter the dwelling. The jury merely needed to conclude that Hammer unlawfully entered the dwelling with an intent to commit a felony. The trial court did not erroneously instruct the jury.

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