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Jury instruction defining “drug” using dictionary was proper in ch. 51 commitment based on drug dependency

Marathon County v. Zachary W., 2014AP955, District 3, 12/2/14 (1-judge decision; ineligible for publication); case activity

Even if the circuit court erred it provided multiple definitions of the term “drug” when instructing the jury hearing a ch. 51 commitment case.

The County sought to commit Zachary under ch. 51 on the ground that he was drug dependent, § 51.20(1)(a)1., based on allegations that he was habitually “huffing” gasoline. (¶¶2-3). At trial the parties disputed whether gasoline is a “drug,” which is not defined in ch. 51. Zachary focused on the similar definitions of “drug” §§ 450.01(10) and 961.01(11), and got the court-appointed doctors to agree gasoline didn’t meet these definitions. The County, by contrast, relied on the Merriam-Webster dictionary to argue “drug” is defined as “something and often an illegal substance that causes addiction, habituation, or a marked change in consciousness.” (¶¶4-7).

The court decided to allow both parties’ definitions in, “for whatever use [the jury] may think it might be beneficial to them” and ultimately gave the following instruction:

[I]n the law, legal terms are to be given the meaning set forth in the statute. Chapter 51, however, does not define the meaning of the term “drug.” Accordingly, the court has permitted the introduction of a definition contained elsewhere in the statutes and has also taken judicial notice of another given in the Merriam-Webster dictionary. It’s basically up to you to consider those and the arguments of attorneys and the evidence in deciding this case. (¶9).

Zachary argues it was error to allow the jury to consider multiple definitions of the term “drug” because that allowed the jury to decide a question of law and pick whatever definition it liked. Assuming the instruction was erroneous, the court of appeals concludes it didn’t prejudice Zachary because the dictionary definition was the right one, and giving Zachary’s definitions in addition to the dictionary definition benefited him by allowing the jury to consider his argument that gasoline wasn’t a drug:

¶20     …. If the court was to instruct on a single definition, it should have used the broader Merriam-Webster definition. …[A] narrow definition of “drug” does not fit the scope and purpose of Wis. Stat. ch. 51. When a word is used in a statute but is not specifically defined, the common and approved usage of the word or phrase applies. Propp v. Sauk Cnty. Bd. of Adjustment, 2010 WI App 25, ¶16, 323 Wis. 2d 495, 779 N.W.2d 705; … Because chapter 51 does not define “drug,” it was appropriate to consult a dictionary for a definition that contained the common and approved usage of the word in light of the statute. Propp, 323 Wis. 2d 495, ¶16; …

¶21      The circuit court’s decision to provide the jury with a broader dictionary definition of the term “drug” comports with the legislature’s clear intent to secure treatment for people abusing drugs to the point of endangering themselves or others. The County argues, and we agree, in light of the evidence presented at trial, that its Merriam-Webster definition provides a fair, plain, and reasonable meaning of “drug,” appropriate in the treatment-oriented context of Wis. Stat. ch. 51. In contrast, as the County pointed out, Zachary’s statutory definitions come from regulation-oriented chapters that were not enacted for a purpose relating to treatment. The County’s definition assisted the jury in making a reasonable analysis of the evidence, see [State v.] Fonte, [2005 WI 77,] 281 Wis. 2d 654, ¶9, [698 N.W.2d 594,] by providing a definition of drug that reflected its common, ordinary, and accepted meaning—a meaning reflecting the context and the purpose of chapter 51. See [State ex. rel.] Kalal [v. Circuit Court for Dane County, 2004 WI 58], 271 Wis. 2d 633, ¶46[, 681 N.W.2d 110].

¶22      By submitting several definitions for the jury to consider in light of the evidence and their own commonsense, Zachary was given the benefit of the jury’s consideration of its narrow, technical definitions of “drug.” Whether giving multiple definitions was error, that decision did not result in prejudice that could justify a new trial. The result would not have been different had the circuit court instructed the jury on a single definition of “drug,” because, had it done so, it should have used the Merriam-Webster definition.

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