Sufficiency of evidence of conspiracy
Thums was charged with offering money to Trepanier, a fellow prison inmate, to kill Thums’s ex-wife and others associated with her. (¶2). In response to Trepanier’s questions about how he’d be paid, Thums told Trepanier to burglarize his ex-wife’s mother’s home and then drew a map depicting the location of that home and his ex-wife’s home. (¶3). Thums had earlier drawn a map showing just his ex-wife’s home. (¶2). The state relied on the drawing of the maps to prove the third element of the conspiracy charge–namely, an act by one of the conspirators in furtherance of the conspiracy. (¶11). The court rejects Thums’s argument that drawing the map was insufficient to prove that element:
¶12 We explained in [State v.] Peralta[, 2011 WI App 81, 334 Wis. 2d 159, 800 N.W.2d 512] that the overt act is an act “done ‘toward the commission of the intended crime,’ and must go ‘beyond mere planning and agreement.” Id. at ¶19 (quoted source omitted). Any act “which [is] a step toward accomplishing the criminal objective … is sufficient.” Id. We also explained in Peralta that “‘[i]f an overt act is committed in furtherance of the conspiracy, then regardless of the act’s importance to the overall scheme, there is no need to prove that the conspirators made a serious effort to carry out their agreement.’” Id., ¶22 (quoted source omitted).
¶13 In the present case, we conclude that Thums’ act of drawing the map depicting where his ex-wife lived was an act “beyond mere planning and agreement,” and was instead a “step toward accomplishing the criminal objective” of having Thums’ ex-wife killed. See Wis JI—Criminal 570. Drawing the map and giving it to Trepanier was not, as Thums asserts, merely part of the formation of the agreement. Rather, it was an overt act that moved the plan forward. Accordingly, we conclude that the evidence was sufficient to support Thums’ conspiracy to commit first-degree intentional homicide conviction.
Propriety of response to jury question
During deliberations the jury asked a question regarding the conspiracy to commit first-degree intentional homicide charge: “How do we decipher between ‘Act’ and ‘Planning’? …In this case is the planning the act?” (¶17). The parties agreed that “the jury need[ed] to be reminded that an element is an act beyond mere planning,” and the court orally instructed the jury there must be an act that goes beyond “mere planning an agreement” and that the state alleged the drawing of the maps was the necessary act. (Id.). The court rejects Thums’s challenge to this instruction as improperly endorsing the state’s theory of prosecution and mistakenly telling the jury the element was planning an agreement because Thums did not object to it at trail and because Thums fails to develop an argument that trial counsel was ineffective for failing to object. (¶¶17-20, 37-38).
Multiplicitousness of conspiracy and solicitation charges
Thums’s convictions for both conspiracy and solicitation to commit first-degree intentional homicide are not multiplicitous under the two-part multiplicity test. Under that test, the court first asks if the charged offenses are identical in law and fact. If they are not, the legislature is presumed to have intended to permit cumulative punishment, and the defendant may overcome the presumption only by showing a clear legislative intent that cumulative punishments are not authorized. State v. Beasley, 2004 WI App 42, ¶¶7-10, 271 Wis. 2d 469, 678 N.W.2d 600.
¶25 We agree with the State that the two offenses are not identical in law because each offense requires proof of an element or elements that the other offense does not require. See Beasley, 271 Wis. 2d 469, ¶7. Namely, conspiracy to commit first-degree intentional homicide requires proof that the defendant was a part of a conspiracy to commit the crime and the performance of an act in furtherance of that conspiracy, neither of which are proof requirements for solicitation to commit first-degree intentional homicide. Similarly, solicitation to commit first-degree intentional homicide requires proof that the defendant advised another individual to commit the crime, which is not a proof requirement for conspiracy to commit first-degree intentional homicide.
¶28 Thums argues that the legislature did not intend to allow convictions for both solicitation to commit first-degree intentional homicide and conspiracy to commit first-degree intentional homicide because it has prohibited individuals from being convicted of both an attempt to commit a crime and the commission of the crime, and because it has prohibited individuals from being convicted of both solicitation or conspiracy offenses as well as being a party to the crime of the underlying completed offense. See Wis. Stat. §§ 939.72(3) and 939.66(4) (prohibiting conviction for the crime charged and for attempt to commit that crime), and Wis. Stat. §§ 939.72(1) and (2) (prohibiting conviction for solicitation or conspiracy as well as being party to the completed crime). However, as pointed out by the State, Thums was not convicted of first-degree intentional homicide and attempt to commit first-degree intentional homicide. Nor was he convicted of being a party to the crime of first-degree intentional homicide. To the extent Thums means to suggest that these are informative comparisons, we fail to discern his logic. So far as we can tell, the situations covered by the legislature are different and not helpful with respect to resolving the challenge made by Thums. Thus, Thums has not shown clear legislative intent not to allow convictions for solicitation and conspiracy to commit the same underlying crime based on the legislature’s prohibition of convictions for both a crime and an attempt to commit that crime or for being a party to that crime.
The court also rejects Thums’s argument based on Monoker v. State, 582 A.2d 525, 529 (Md. 1989), that allowing separate punishments for both solicitation and conspiracy to commit first-degree intentional homicide is fundamentally unfair because the facts underlying the convictions “stem from the same acts and aim towards the same purpose” because that case applied a rule of lenity regarding legislative intent in this setting that Wisconsin does not follow. (¶¶29-30).
Exercise of discretion in imposing a fine
The circuit court erroneously exercised its discretion in imposing a $44,887 fine without determining Thums’s ability to pay as required by, e.g., State v. Ramel, 2007 WI App 271, ¶15, 306 Wis. 2d 654, 743 N.W.2d 502, so the portion of the judgment imposing the fine is reversed and the case remanded for the court to make that determination. (¶¶8, 49).