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Double Jeopardy – Multiplicity – § 940.02(2)(a) and § 948.40(4)(a): Not Multiplicitous

State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe

Issue/Holding: Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a), ¶¶1-21. The offenses are not the same “in law”—each containing at least one element not in the other—and therefore Patterson bears the burden of overcoming a presumption in favor of cumulative punishment.

¶12      Patterson argues that Wis. Stat. § 939.66(2) shows a clear legislative intent not to allow punishment for both reckless homicide and contributing to the delinquency of a child with death as a consequence. However, this argument, albeit in the context of § 939.66(2m), was rejected in DavisonDavison explained that the statute is ambiguous and the statute’s legislative history does not show a legislative intent to prevent cumulative punishments. Davison, 263 Wis. 2d 145, ¶¶74, 90. Instead, the Davison court concluded that § 939.66(2m) can reasonably be interpreted as allowing two convictions for battery as long as two battery crimes have been chargedSee Davison, 263 Wis. 2d 145, ¶¶65-67. The reasons why the Davison court reached these conclusions need not be repeated here. Rather, what matters is that the Davison court effectively rejected the proposition that § 939.66(2) shows a clear legislative intent not to allow punishment for both a charged criminal homicide and a charged less serious type of criminal homicide.

¶19      In short, Wis. Stat. § 940.02(2)(a) and Wis. Stat. § 948.40(4)(a) address two different categories of proscribed conduct that differ markedly in their essential nature. That Patterson’s particular conduct happens to fall within a relatively limited area covered by both statutes does not show that the legislature intended only one punishment.

The court merely “assume(s), without deciding, that ‘homicide’ in § 939.66(2) includes contributing to the delinquency of a child with death as a consequence,” ¶11 n. 5.

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