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Partial SCOW defense win; two charges for two different strength pills multiplicitous

State v. Brantner, 2020 WI 21, 2/25/20, affirming in part and reversing in part a summary order, 2018AP53; case activity (including briefs)

Brantner was arrested (for reasons unrelated to this case) in Kenosha County by Fond du Lac County detectives. They took him to jail in Fond du Lac, where a booking search revealed several different types of pills concealed in his boot. He was tried, convicted and sentenced in Fond du Lac on five counts of drug possession and five associated bail-jumping counts. The supreme court now rejects his argument that he didn’t “possess” any of the drugs in Fond du Lac County–that the arrest in Kenosha terminated his possession because he lacked control over the pills. But it agrees with him that his conviction on two of the counts (with their associated bail-jumping counts) is a double-jeopardy violation; the bare fact that he had pills with two different oxycodone dosages (5 and 20 milligram) will not support two different charges of possessing that drug.

First, the possession issue. Branter doesn’t claim he never possessed the pills. Rather, the argument is that, once he was arrested in Kenosha, his possession was over. The reason it could matter where the possession happened is that, besides the elements of an offense, the state must typically prove beyond a reasonable doubt that the offense happened in the county where it’s being tried: that is, that it’s being tried in the proper venue. See Wis. Stat. § 971.19. Whether the proof was good enough to support a verdict is a question of sufficiency of the evidence, so that’s the rubric under which the court addresses the venue/possession question. (¶7).

The court sifts through case law, dictionaries, and pattern jury instructions before coming to these two operative definitions of possession: Mr. Brantner possessed the pills in his boot in Fond du Lac if, while there, he

knew they were there and he either: (1) “had actual physical control” (that is, “direct bodily power”) over them; or (2) they were “in an area over which [he] ha[d] control and [he] intend[ed] to exercise control over” them (that is, he had “indirect power” over the pills).

(¶16). It goes on to reject his arguments that he lacked “control” over the pills after arrest because he could no longer “ingest, sell, destroy, or otherwise dispossess himself of the pills. He could not do anything except leave them right where they were.” (Id.). The court points out that he could (and did) manipulate the pills at the jail, and also that he could have, by disclosing their existence, caused them to be taken from him in Kenosha. The discussion and the result are pretty commonsensical. (¶¶18-22).

But not commonsensical enough for the concurrence. The Chief Justice, joined by Justice Ziegler, complains that the majority has turned the simple issue of possession “complicated” to the potential confusion of the bench and bar. Oddly it never explains just what complications the majority has introduced. Rather, the concurring opinion seems miffed that the majority has bothered with a close examination of the meaning of “possession.” It’s not an attack on the quality of the majority’s analysis; it’s an “I know it when I see it” complaint that no analysis of “possession” is necessary.

Turning to multiplicity, the court (here unanimous) nicely summarizes the inquiry:

“We review multiplicity claims according to a well-established two-pronged methodology.” Ziegler, 342 Wis. 2d 256, ¶60. First, we employ the “elements-only” test to determine whether the offenses are identical in both law and fact. Id., (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). The result of this step determines whether we will presume, in the second step of the analysis, that the statutes provide for cumulative punishment. Davison, 263 Wis. 2d 145, ¶¶43-44. If the offenses are identical in law and fact, we presume “that the legislature did not intend to permit multiple punishments.” Patterson, 329 Wis. 2d 599, ¶15. “The State may rebut that presumption only by a clear indication of contrary legislative intent.” Ziegler, 342 Wis. 2d 256, ¶61. If the offenses differ in law or fact, then they are not the “same” for double jeopardy purposes, and we therefore presume that the statutes allow for cumulative punishment. Patterson, 329 Wis. 2d 599, ¶15. The defendant can overcome the presumption if he can prove that, notwithstanding the separate offenses, “the legislature did not intend to authorize cumulative punishments.” Ziegler, 342 Wis. 2d 256, ¶62. If it did not, then there has been a due process violation as opposed to a double jeopardy violation. Id.

(¶25).

Applying the Blockburger test, the court concludes the oxycodone possession counts are identical in law: the statute simply forbids possession any oxycodone without a prescription and there aren’t separate offenses for separate concentrations. (¶27).

The state contends, though, that the offenses are not identical in fact, because it had shown “Brantner committed two different volitional acts of possession by obtaining two different types of oxycodone pills from different sources, showing that each possession required ‘a new volitional departure’ by Brantner.” (¶28). The court observes that the state has shown no such thing: the only record evidence is that Brantner got all the pills from his brother, and there’s no support for the claim that he got them at different times or by separate acts. (¶¶29-34).

Of course, showing the offenses to be identical in fact and in law creates only a presumption against multiple punishments; the presumption can be overcome by evidence of contrary legislative attempt. But the state doesn’t attempt this lift, and the court (in salutary observance of an oft-ignored principle) doesn’t do it for them either. (¶¶35-36). It thus holds the two oxycodone counts (and the associated bail-jumps) multiplicitous. It remands to the circuit court; that court is instructed to decide, in its discretion, whether the vacation of two counts requires a restructuring of the entire global sentence. (¶¶37-38).

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