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Two DC convictions from same incident not multiplicitious

State v. George W. Mallum, III, 2016AP765-CR, District 1, 12/13/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Mallum was convicted of two counts of disorderly conduct arising out of a single incident, but because the charges were not identical in fact the convictions are not multiplicitous.

Charges are multiplicitous if they are identical in law and fact, though even if the charges are not identical in law and fact they may still be multiplicitous if the legislature intended the charges to be brought as one single charge. State v. Rabe, 96 Wis. 2d 48, 63, 291 N.W.2d 809 (1980). While the DC charges against Mallum are identical in law, they are not identical in fact because they are “separated in time or are of a significantly different nature in fact,” State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980):

¶11     Here, there is evidence that shows there were two separate acts of disorderly conduct. The first act of disorderly conduct was when Mallum argued with his wife and waved the gun around. The second act of disorderly conduct was when Mallum became belligerent and used profanity against his wife and the female police officer. Although the acts occurred in a short time frame, the two acts … were separated by Mallum’s grandson disarming Mallum and Mallum briefly calming down. These two sets of facts are sufficiently different in nature for the jury to convict Mallum on both counts…. Furthermore, Mallum has identified no authority to support the notion that the legislature intended counts two and three to be brought as a single charge, and we are aware of none. See Rabe, 96 Wis. 2d at 63. ….

The court also rejects Mallum’s argument that whether he was subject to the domestic abuse surcharge under § 973.055(1)(a) should have been submitted to the jury so it could decide whether the state proved the facts necessary for imposition of the surcharge. The court read Mallum as arguing that “domestic abuse” was an “element” of DC, which the court correctly observes is not true. (¶¶13-14). Mallum didn’t develop an argument that the surcharge is effectively an enhancer based on specific facts of the case rather than a prior conviction and therefore, under Apprendi v. New Jersey, 530 U.S. 466 (2000), must be submitted to a jury before it can be imposed.

Mallum did cite Apprendi (among other cases) to argue that the circuit court illegally imposed a lifetime firearm possession ban based on the domestic abuse aspect of the case. The circuit court didn’t actually do that, however; it simply advised Mallum that he faced a lifetime ban under federal law because he’d been convicted of a misdemeanor crime of domestic abuse, 18 U.S.C. § 922(g)(9). (¶¶15-17). Mallum also challenged the constitutionality of that ban, but his challenge isn’t ripe because he hasn’t been charged for violating it. (¶18). Not to mention that if he were charged, he’d be in federal, not state, court; Wisconsin’s ban on firearm possession, § 941.29, isn’t triggered by conviction for a misdemeanor crime of domestic violence.

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{ 1 comment… add one }
  • Peter Heyne December 14, 2016, 9:40 am

    For a developed argument that the “Domestic Abuse” label on criminal charges adds facts that the jury must find (or the defendant must personally admit at a plea hearing), such that the trial judge can impose the Domestic Abuse Surcharge (such that the DV Repeater can then later validly apply), especially in cases involving a DC where there is no specific victim/target listed in the jury instruction (contrast with the JI for Battery, etc.), see the detailed brief with a fully fleshed-out Apprendi argument in this pending appeal: State v. Lonel L. Johnson, Jr., Appeal Number 2016AP000851.

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