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Failure to require jury to decide whether conduct qualified for sentence enhancer was error and prejudiced defendant

State v. Lonel L. Johnson, Jr., 2014AP2888-CR, District 3, 9/15/15 (not recommended for publication); case activity

High fives for the defense! The domestic abuse repeater enhancer applied to this defendant increased his maximum penalty for the charged offense. Thus, the court of appeals held (and the State conceded) that the jury had to find, beyond a reasonable doubt, that his underlying conduct qualified as an act of domestic abuse. That’s what Apprendi v. New Jersey, 530 U.S. 466 (2000) requires, but it didn’t happen here.  The real win, however, is that for once the State did NOT prevail on its claim of harmless error!!

The State charged the defendant with disorderly conduct, battery, strangulation and suffocation, and false imprisonment–each count as a domestic abuse offense under §968.075(1)(a). The State also charged the defendant both as a repeater and a domestic abuse repeater for all 4 offenses.  See §§ 939.62(1) and 939.621. The court of appeals decision recounts the facts of the case in detail, but the bottom line is this:

[W]hile the evidence discussed above would have permitted the jury to conclude Johnson’s disorderly conduct was an act of domestic abuse, other evidence supported a conclusion that Johnson committed disorderly conduct, but his actions did not constitute domestic abuse. Specifically, the jury could have found Johnson guilty of disorderly conduct based on his actions toward the police. Slip op.¶29.

ON this record, we cannot agree with the circuit court that “[t]here was nothing in the court record that would find [Johnson] guilty of disorderly conduct towards any victim other than [his] wife. Slip op.¶30.

The State also argued that the defendant forfeited the argument that the jury had to determine whether his act of disorderly conduct constituted domestic abuse. That didn’t fly because the defendant never waived his right to a jury trial on the domestic abuse issue. Slip op.¶34. In addition, an appellate court has the discretionary power to review waived instructional errors that go to the integrity of the fact-finding process. See State v. Hatch, 144 Wis. 2d 810, 824, 425 N.W.2d 27 (Ct. App. 1988). That’s the kind of error that occurred here, so the court of appeals would review the issue even is the defendant had forfeited it. Slip op.¶36.

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