Wisconsin Court of Appeals: One death can equal two homicides.

• Author: Ziemer, David

Byline: David Ziemer

The plain language of sec. 939.66(2) states that a defendant cannot be convicted of both homicide and [a] crime which is a less serious type of criminal homicide than the one charged.

Nevertheless, the Wisconsin Court of Appeals held on Oct. 1 that he can.

Patrick R. Patterson provided Oxycodone to Tanya S. when she was 17 years old, and she died as a result of ingesting the drug.

Patterson was convicted of first-degree reckless homicide by delivery of a controlled substance, under sec. 940.02(2)(a), and contributing to the delinquency of a child with death as a consequence, under sec. 948.40(4)(a).

He argued that conviction for both charges violated sec. 939.66(2), but the both circuit court and Court of Appeals disagreed.

The court concluded that the Wisconsin Supreme Court's opinion in State v. Davison, (http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=16490) 2003 WI 89 was dispositive.

Davison was convicted of both aggravated battery and battery by a prisoner. He argued that sec. 939.66 barred the multiple convictions.

The statute provides, in relevant part:

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

(2) A crime which is a less serious type of criminal homicide than the one charged.

(2m) A crime which is a less serious or equally serious type of battery than the one charged.

The court concluded that, just as the court in Davison permitted multiple battery convictions despite subsec. (2m), multiple homicide convictions are permitted despite subsec. (2).

Judge Paul Lundsten wrote for the court, the Davison court concluded that sec. 939.66(2m) can reasonably be interpreted as allowing two convictions for battery as long as two battery crimes have been charged. The reasons why the Davison court reached these conclusions need not be repeated here. Rather, what matters is that the Davison court effectively rejected the proposition that sec. 939.66(2) shows a clear legislative intent not to allow punishment for both a charged criminal homicide and a charged less serious type of criminal homicide.

As an addition factor, the court also noted that contributing to the delinquency of a minor, causing death, is not technically a homicide charge.

The court said, Although sec. 948.40(4)(a) requires death as a consequence, it focuses on the protection of children and the prevention...