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Joinder: Felon-in-Possession and Offense Involving Weapon

State v. Joshua A. Prescott, 2012 WI App 136; case activity

Felon-in-possession, § 941.29, was properly joined for trial with reckless injury by use of dangerous weapon:

¶17      Based on our review of the record, we agree with the trial court that the charges were properly joined. The felon in possession and reckless injury charges were “based on the same act or transaction.” See Wis. Stat. § 971.12(1). Evidence of both charges was based almost entirely upon the July 27, 2010 shooting of T.O. Multiple witnesses testified at trial, all providing testimony either as to Prescott’s efforts to obtain a gun, the shooting itself, or Prescott’s efforts to get rid of the gun. The facts underlying both charges overlap significantly. Conducting two trials with essentially the same evidence would have been against the interest of judicial economy.

Nor, granting proper joinder of counts, was severance required under a substantial-prejudice analysis, ¶18, citing State v. Hoffman, 106 Wis. 2d 185, 210, 316 N.W.2d 143 (Ct. App. 1982).

¶19      The only evidence the jury heard about Prescott’s prior conviction was the stipulation, stating simply that the prior act “if committed by an adult in this State would be a felony for the purposes of Wisconsin Statute Section 941.29.” After instructing the jury on the elements of each of the charges, the trial court instructed the jury to consider each charge separately, stating “[y]our verdict for the crime charged in one count must not affect your verdict on any other count.” We presume that juries follow instructions.  See State v. Johnston, 184 Wis. 2d 794, 822, 518 N.W.2d 759 (1994).

¶20      Here, the record contains overwhelming evidence of Prescott’s guilt of first-degree reckless injury, which we conclude overcomes any prejudice that might have resulted from the felony conviction stipulation. ….

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