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Obstructing or Resisting Warden, § 29.951 – Single Crime with Multiple Modes of Commission – Unanimity not Required

State v. David A. Dearborn, 2008 WI App 131, affirmed, 2010 WI 84, ¶2 n. 3
For Dearborn: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: Unanimity is not required on whether the defendant “resisted” or “obstructed” a warden on a charge of violating § 29.951, ¶¶21-42.

All the rest is commentary. (Translated: the court undertakes a lengthy analysis that won’t be summarized.) Of particular note, though: the court plainly means to apply the result to § 946.41, even if but glancing reference is made, ¶14 n. 5 (“These definitions of “resist” and “obstruct” are the same as those in the pattern jury instructions for Wis. Stat. § 946.41.”); and ¶17 n. 12 (“we do not intend to suggest there is a difference in meaning between the term “obstruct” in the two statutes, and we do not see any significant difference between the dictionary definition we employ here and the definition in Wis JI—Criminal 1766”). Anticipate, then, attempts to import this holding into § 946.41, notwithstanding that resisting (1765) and obstructing (1766) are embodied by entirely separate pattern instructions.


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