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State v. Patrick R. Patterson, 2009 WI App 61, PFR 10/30/09

court of appeals decision, for Patterson: David R. Karpe

Multiplicity – First-Degree Reckless Homicide by Delivery of Controlled Substance, § 940.02(2)(a) and Contributing to Delinquency Resulting in Death of Child, § 948.40(4)(a): Not Multiplicitous
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.

¶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.

Possession of Controlled Substance – Sufficiency of Evidence – Presence of Drugs in Body

¶25      There is no dispute that testing revealed that Tanya S. had Oxycodone in her system at the relevant time. However, as Patterson argues, the presence of drugs in someone’s system, standing alone, is not sufficient evidence to support a conviction for possession of a controlled substance. See State v. Griffin, 220 Wis. 2d 371, 381, 584 N.W.2d 127 (Ct. App. 1998). “Possession” in this context requires evidence that the individual had a substance in his or her control. See id. at 381 (citing Wis JI—Criminal 920). Still, as we explained inGriffin, “‘when combined with other corroborating evidence of sufficient probative value, evidence of [ingestion] can be sufficient to prove possession.’” Griffin, 220 Wis. 2d at 381 (citation omitted). That is the situation here.

Various witnesses saw Patterson give Oxycodone to Tanya S., ¶26.

Contributing to Delinquency of Child, § 948.40(4)(a) – “Child” Element Includes 17-Year-Olds

¶29      We will assume, for purposes of Patterson’s argument, that the definition of “juvenile” in Wis. Stat. § 938.02 applies for purposes of defining “delinquency” in Wis. Stat. § 948.40. Nonetheless, Patterson’s statutory analysis ignores the fact that a seventeen-year-old is only excepted from the definition of “juvenile” for a single purpose, the “purpose[] of investigating or prosecuting” the “person who is less than 18 years of age.” See § 938.02(10m). Here, the question is not whether Tanya S. is a “juvenile” for purposes of prosecuting her, but instead for purposes of prosecuting Patterson. Thus, Tanya S. was a “juvenile” for purposes of Patterson’s prosecution for contributing to the delinquency of a child with death as a consequence. [12]

Opinion Testimony – One Witness’s Comment on another”s Truthfulness

¶35      The first three alleged instances of misconduct are similar. In each instance, the prosecutor sought to demonstrate the possible unreliability of one witness’s recollection by using seemingly inconsistent recollections of another witness. For example, in one instance the prosecutor asked: “So if all other witnesses said that at 11:00 your mom was already home … that would be wrong?” We see no Haseltine problem with these three instances because the prosecutor was not asking a witness to opine as to whether another witness was telling the truth.

¶36      The fourth alleged instance does appear to have involved a Haseltine violation. The prosecutor asked a police investigator: “Do you believe [a witness the investigator interviewed] was being truthful when she gave [certain] information to you …?” The investigator answered, “I believe she was being truthful.” It does not appear that this exchange was offered for any purpose other than bolstering the credibility of the other witness. Cf. State v. Snider, 2003 WI App 172, ¶27, 266 Wis. 2d 830, 668 N.W.2d 784 (detective’s testimony offered to show the detective’s thought process during his investigation); State v. Smith, 170 Wis. 2d 701, 718-19, 490 N.W.2d 40 (Ct. App. 1992) (a detective’s testimony that he did not believe a witness was properly introduced to show why he continued interrogating the witness). Accordingly, we will assume that the exchange ran afoul of Haseltine.

This tainted exchange, however, wasn’t “particularly important”; no harm, no foul, ¶37.

Multiplicity

Possession of Controlled Substance

Contributing to Delinquency of Child, § 948.40(4)(a)

Opinion Testimony

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