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Right to unanimous jury verdict; continuing course of conduct chargeable as one count

State v. David J. Galarowicz, 2012AP933-CR, District 3, 12/11/12

court of appeals decision (1 judge; not eligible for publication); case activity

Galarowicz was not denied his right to a unanimous jury verdict on one count of disorderly conduct where the evidence showed an incident of disorderly conduct with the victim in the residence and additional conduct with the same victim in the residence after a twenty-minute pause. Galarowicz argued that his acts did not amount to a continuing course of conduct because there was a twenty-minute pause in the altercation; instead, the pause created two “separate and distinct acts” and the jury needed to choose unanimously which act constituted disorderly conduct. The court of appeals rejects this claim, relying on State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983) (rejecting unanimity challenge to verdict on one count of sexual assault where the evidence showed  the victim was taken to multiple locations and sexually assaulted six times during a two-hour period):

¶19      Here, similarly, Galarowicz’s conduct toward [the victim] in the residence constituted a continuous, unlawful event that was chargeable as one count.  His conduct was continuous because it involved the same type of behavior toward the same victim in the same location over the course of the evening.  The twenty-minute pause in the altercation is not legally significant….   Galarowicz’s yelling, swearing, and object throwing in the residence were alternative means of committing disorderly conduct.… We conclude unanimity was achieved because the jury agreed Galarowicz engaged in conduct that, under the circumstances, tended to cause or provoke a disturbance.

Even if the twenty-minute pause created two separate disorderly conduct offenses, the state has discretion to couple separately chargeable offenses into one count as long as the offenses were committed “by the same person at substantially the same time and relating to one continued transaction” (quoting Lomagro, 113 Wis. 2d at 587-89).  Though this discretion is limited by the prohibition against duplicitous charges, the issue of duplicity was waived by Galarowicz because he did not raise it in the circuit court.

Finally, the court refused to consider Galarowicz’s argument that some jurors may have found him guilty based on his conduct with police officers outside the residence. The state’s theory of prosecution was always that the disorderly conduct charge stemmed from his altercation with the victim in the residence, but despite the state’s clarification of the basis for the charge—both outside the presence of the jury and during closing argument—it was Galarowicz who suggested to the jury that the disorderly conduct charge stemmed from his altercation with police. “To the extent Galarowicz’s closing argument caused any juror to find him guilty based, not on an acceptance of the state’s theory but, instead, on a rejection of his theory, Galarowicz is precluded from raising this argument on appeal” (citing State v. Gary M.B., 2004 WI 33, ¶11, 270 Wis. 2d 62, 71, 676 N.W.2d 475 (“‘A defendant cannot create his own error by deliberate choice of strategy and then ask to receive benefit from that error on appeal’” ).

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