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Double Jeopardy – Multiplicity: Burglary (Intent to Steal) While Armed, § 943.10(2)(a) (1997-98) and Burglary (Intent to Steal) While Committing Battery, § 943.10(2)(d) (1997-98)

State v. Shawn A. Beasley, 2004 WI App 42, PFR filed 3/26/04
For Beasley: Robert Ruth

IssueWhether charges and convictions for burglary while armed (§ 943.10(2)(a)) and burglary while committing battery (§ 943.10(2)(d)) are multiplicitous.


¶5. We reject Beasley’s challenge for two reasons. First, the subsections of Wis. Stat. § 943.10(2) do not define penalty enhancers, they define distinct crimes. Second, Beasley has not met his burden of showing that the legislature did not intend to impose multiple punishments.…

¶12. In Beasley’s view, the subsections of Wis. Stat. § 943.10(2) define penalty enhancers for the underlying crime of burglary, as defined in § 943.10(1). …

¶14. Penalty enhancers, such as those defined in Chapter 939, authorize specified increases to separate specified penalties for underlying crimes. Thus, the underlying crime has a penalty, and the enhancer adds an additional penalty. Because of this structure, when the facts support multiple penalty enhancers, multiple enhancers may normally be applied to the same underlying crime. That is not the structure of Wis. Stat. § 943.10(2).

¶15. The subsections of Wis. Stat. § 943.10(2) each define a complete stand-alone crime. …

¶16. Further, unlike penalty enhancers, the various aggravating circumstances in the subsections of Wis. Stat. § 943.10(2) cannot be added to the underlying crime of burglary, either singly or in multiples. The reason is simple: they are fully defined stand-alone crimes, not penalty enhancers.

¶20. Having rejected Beasley’s penalty enhancer argument, we now apply the first step of multiplicity analysis, the Blockburger test. The question is “whether each of the offenses in this case requires proof of an element or fact that the other does not.” Derango, 236 Wis. 2d 721, ¶30. It is readily apparent that Count 5 requires proof of an element and a fact that Count 6 does not, namely, while armed with a dangerous weapon. Similarly, Count 6 requires proof of an element and a fact that Count 5 does not, namely, battery.

¶24. Beasley’s only other legislative intent argument is based on language in the comment to Wis. Stat. § 343.11 in 1953 A.B. 100 (a prior version of the aggravated burglary statute), which states:

Before a person can be convicted under this section, it is necessary to find the existence of all the elements necessary to constitute a crime under section 343.10 [currently sec. 943.10(1)], and in addition the existence of one of the aggravating factors set forth in this section.

Comment to Wis. Stat. § 343.11, 1953 A.B. 100 (codified as Laws of 1953, ch. 623 (the Criminal Code)). This language, however, does not support Beasley’s legislative intent argument. To the contrary, it describes the statutory scheme in a manner consistent with our discussion rejecting Beasley’s enhancer argument.

There’s been surprisingly little litigation aimed at defining the boundary between substantive offense and sentencing enhancement. And what little there is isn’t terribly helpful. Compare, for example, State v. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248 (§ 941.29(2m) (1997-98), which contains language “whoever violates … is guilty of a Class D felony,” is substantive offense), with State v. Morris, 108 Wis.2d 282, 322 N.W.2d 264 (1982) (similar language in § 946.62 (1979-80) creates sentence enhancer). The court’s conclusion in Beasley’s instance isn’t indefensible, but it doesn’t really come to grips with the problem he poses: what if the jury found him guilty of burglary in both counts, but then refused to find the existence of either aggravator? He would then stand convicted of two counts of the (indisputably) same offense; that simply can’t be right. The court’s way of finessing the problem is to say that this is really a challenge to the jury instructions and, because there wasn’t an objection, this potential defect has been (mirabile dictu!) waived. ¶¶17-18. The court’s discussion (see ¶19) suggests that it has misconstrued the argument; either that, or it simply refuses to accept the idea that any jury under any circumstances could fail to find the … enhancers? aggravators? try: additional elements that allow for greater punishment for the same underlying offense.


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