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Venue: Instruction, Proof; Obstructing: Proof; Instruction: Recently Stolen Property

State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply

Venue – Instruction

¶12 Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v. Corey J.G., 215 Wis. 2d 395, 409, 572 N.W.2d 845 (1998); Swinson, 261 Wis. 2d 633, ¶19. A defendant need not challenge venue, or request a venue instruction, before trial; instead, he or she may put the State to its proof and determine whether an instruction is warranted after hearing the evidence. The jury instruction conference is a permissible time at which to request a venue instruction. Accordingly, the court erred when it refused to so instruct the jury.

The trial court refused to give a venue instruction because objection to venue must be raised before trial. As the blockquote indicates, this was wrong. As to the merits — venue instruction isn’t given automatically, but only when contested, ¶10 — the court separately rules that venue wasn’t proven so that judgment of acquittal must be entered on that charge.

Venue – Proof – Obstructing

Proof of venue in Chippewa County, where the obstructing trial was held, was insufficient, the evidence indisputably showing that the offense occurred in Barron County. (Schultz misled an officer in Barron who was investigating a crime that had occurred in Chippewa.) The State argues that venue in Chippewa was nonetheless appropriate under § 971.19(2) (trial may be in any county in which acts requisite to commission of the offense occurred); the theory was that the misleading statements in Barron led to additional investigative efforts in Chippewa.

¶16 We cannot accept the State’s argument because the obstruction statute, Wis. Stat. § 946.41, clearly contains a temporal element that focuses on the officer’s status at the time of the defendant’s conduct. Obstruction requires proof that the defendant knowingly obstructed an officer while the officer was acting in his or her official capacity and with lawful authority. Henes v. Morrissey, 194 Wis. 2d 338, 353, 533 N.W.2d 802 (1995). Although the obstruction statute evaluates the conduct of two actors—the defendant and the officer—it does so simultaneously, at the time of the defendant’s act. Consequently, the obstruction statute does not contemplate venue in any county where the officer may take further investigative steps. Moreover, if venue may be predicated on subsequent investigative measures, we would have to evaluate each police act following obstruction and determine whether the act was sufficiently attributable to the defendant’s conduct to support venue—an inquiry that may be practically difficult, if not impossible. We therefore conclude Wis. Stat. § 971.19(2) is inapplicable to the crime of obstructing an officer.

Obstructing – Sufficiency

Schultz’s misrepresentations as to his whereabouts at the time of an offense under investigation supported obstructing conviction, ¶18. State v. Hamilton, 120 Wis. 2d 532, 542, 356 N.W.2d 169 (1984) (refusal to provide identifying information not obstructing), distinguished.

The court stresses that Schultz, unlike Hamilton, did more than merely refuse to identify himself: “Instead, Schultz affirmatively misrepresented his location on the night of the robbery and told Kowalczyk he did not perform at the party as scheduled, frustrating Kowalczyk’s efforts to determine the location of the stolen equipment and the identity of the thief,” id. Schultz argued (Br.-in-Ch., p. 18) that Schultz didn’t impede Kowalczyk, a sheriff’s deputy who merely referred the burglary complaint to the local town officer for investigation. If you give false information have you necessarily made the investigation more difficult? That doesn’t seem right — it would be in the nature of a conclusive presumption — but it does seem to be the court’s position, at least implicitly.

Instruction – Possession of Recently Stolen Property

On charge of theft, standard instruction on recently stolen property was properly submitted to jury, ¶19. Instructional language, “Evidence has been presented that the defendant possessed recently stolen property,” didn’t invade jury’s fact-finding province.

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