State v. Brantner
| Decision Date | 25 February 2020 |
| Docket Number | No. 2018AP53-CR,2018AP53-CR |
| Citation | 390 Wis.2d 494,2020 WI 21,939 N.W.2d 546 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Dennis BRANTNER, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner, there were briefs filed by Taylor Rens and Krug & Rens LLC, West Allis. There was an oral argument by Taylor Rens.
For the plaintiff-respondent, there were briefs filed by Lisa E.F. Kumfer, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Lisa E.F. Kumfer.
¶1 Fond du Lac County sheriff's detectives arrested Mr. Brantner at the Kenosha County courthouse and transported him to the Fond du Lac County jail to face criminal charges unrelated to this case. During the booking process, a sheriff's deputy discovered a cache of narcotics and prescription medications in Mr. Brantner's boot, a discovery that gave rise to his trial in this case in the Fond du Lac County circuit court. Mr. Brantner says he should not have been tried in Fond du Lac County because he did not possess the drugs when the deputy discovered them—not because the drugs were not there—but because the arrest in Kenosha County terminated, as a matter of law, his ability to possess any contraband on his person. We disagree. Mr. Brantner did not lose possession of the drugs in his boot upon his arrest in Kenosha County. And because he still possessed the drugs in Fond du Lac County, venue there was proper.
¶2 Mr. Brantner also says that two of the charges on which the jury convicted him were multiplicitous. One of the charges was for possession of 20mg oxycodone pills in violation of Wis. Stat. § 961.41(3g)(am) (2017-18).1 The other was for possession of 5mg oxycodone pills in violation of the same statute. We agree with Mr. Brantner, and so reverse the court of appeals with respect to his multiplicity challenge.2
¶3 Six years ago, Mr. Brantner was in the Kenosha County circuit court defending against a charge that he was a "felon in possession of a firearm." As he left the courtroom, he immediately encountered two Fond du Lac County sheriff's detectives. They were there to arrest him in connection with a thirty-year-old homicide. The detectives handcuffed Mr. Brantner with a belly belt, patted him down, searched his pockets, and transported him to Fond du Lac County for processing.
¶4 The booking process at the Fond du Lac County jail required Mr. Brantner to remove the outer layer of his clothing, including his footwear. He removed his right boot easily enough but encountered difficulty with his left boot. He said he had a muscle spasm in his calf, which he addressed by striking his leg for 20-30 seconds. One of the detectives offered to help him remove the boot, but Mr. Brantner declined. Eventually, with the muscle spasm apparently resolved, Mr. Brantner successfully removed his remaining boot and turned it over to the sheriff's deputy processing his belongings. Inside the boot the deputy found a bag containing a total of 54 pills, comprising: (1) 35 20mg oxycodone pills; (2) two 5mg oxycodone pills; (3) two pills containing both 325mg of acetaminophen and 5mg of hydrocodone ; (4) 11 12.5mg zolpidem pills; and (5) four 10mg cyclobenzaprine pills. Nothing in the record indicates that, before Mr. Brantner handed his boot to the deputy, the detectives had known the drugs were in Mr. Brantner's boot.
¶5 Mr. Brantner did not have a valid prescription for any of the pills in his boot, so the State charged him with five counts of possession—one for each category of drug and dosage. The State also paired each possession charge with a corresponding felony bail-jumping charge.3 Consequently, the list of charges against Mr. Brantner comprised:4
¶6 The jury found Mr. Brantner guilty on all counts and he received his sentence in due course. He subsequently filed a postconviction motion in which he claimed that venue did not lie in Fond du Lac County and that the two charges for possessing oxycodone (counts one and three) were multiplicitous. The court denied Mr. Brantner's motion, and the court of appeals summarily affirmed. We granted Mr. Brantner's petition for review and now affirm the court of appeals with respect to venue, but reverse with respect to counts one and three because they are multiplicitous.
¶7 Although venue is not an element of a crime, the State must nonetheless establish it beyond a reasonable doubt. State v. Dombrowski, 44 Wis. 2d 486, 501-02, 171 N.W.2d 349 (1969). We review venue challenges for sufficiency of evidence, so "[w]e will not reverse a conviction based upon the State's failure to establish venue unless the evidence, viewed most favorably to the state and the conviction, is so insufficient that there is no basis upon which a trier of fact could determine venue beyond a reasonable doubt." State v. Corey J.G., 215 Wis. 2d 395, 407–08, 572 N.W.2d 845 (1998). Whether such a basis exists is a question of law we review independently of the court of appeals. State v. Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410 ().
¶8 Whether two or more charges are multiplicitous is a question of law subject to our independent review.
State v. Patterson, 2010 WI 130, ¶12, 329 Wis. 2d 599, 790 N.W.2d 909 ; State v. Multaler, 2002 WI 35, ¶52, 252 Wis. 2d 54, 643 N.W.2d 437.
¶9 Mr. Brantner challenges his conviction for two reasons. First, he says that he should not have been tried in Fond du Lac County because his arrest in Kenosha County terminated, as a matter of law, his ability to possess any contraband on his person. Therefore, he concludes, he had a right to have a jury hear his case in Kenosha County, the last geographical location he says he possessed the pills in his boot. Second, he claims the State may not charge him with two separate charges for possessing oxycodone simply because the pills contained different amounts of the narcotic. We conclude that Fond du Lac County was a proper venue for the case, but that the oxycodone-related possession charges were multiplicitous.
¶10 Mr. Brantner says he is entitled to trial in Kenosha County because, generally speaking, the State must try a defendant in the county in which the crime occurred. Wis. Stat. § 971.19(1) (). Answering Mr. Brantner's argument requires us to consult the criminal statutes defining the crimes' elements so that we may identify where they were fulfilled. As relevant here, possession of controlled substances is unlawful pursuant to Wis. Stat. § 961.41(3g), which says:
No person may possess or attempt to possess a controlled substance or a controlled substance analog unless the person obtains the substance or the analog directly from, or pursuant to a valid prescription or order of, a practitioner who is acting in the course of his or her professional practice, or unless the person is otherwise authorized by this chapter to possess the substance or analog.[6 ]
The unauthorized possession of prescription drugs is unlawful according to Wis. Stat. § 450.11(7)(h), which says: "Except as provided in sub. (1i)(b), no person may possess a prescription drug unless the prescription drug is obtained in compliance with this section."7
¶11 The crimes with which Mr. Brantner was charged were obviously possessory in nature, which means he committed the crimes where he "possessed" the pills in his boot. Wis. Stat. § 961.41(3g) (); Wis. Stat. § 450.11(7)(h) (). So we must discern the meaning of the term "possess" within the context of §§ 961.41(3g) and 450.11(7)(h). The answer to that question, as applied to the facts of this case, will tell us where venue lies.
¶12 This is not the first time we have had cause to explore the meaning of "possess" in our statutes. In Schwartz v. State, 192 Wis. 414, 212 N.W. 664 (1927), the State claimed the defendant unlawfully possessed intoxicating liquor by virtue of its mere presence in his business premises.
We said that "[i]t is perfectly plain that the possession of liquor which is made unlawful is the possession under some claim of right, control, or dominion with knowledge of the facts." Id. at 418, 212 N.W. 664. And in State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (1994), we recognized that "the Wisconsin criminal jury instructions provide a standard definition for the term ‘possession[,]’ " and that "the term ‘possession’ has a consistent, established meaning throughout the Wisconsin criminal statutes ...." Id. at 15-16, 517 N.W.2d...
To continue reading
Request your trial
-
State ex rel. Zignego v. Wis. Elections Comm'n
...words or phrases are given their technical or special definitional meaning." See Kalal , 271 Wis. 2d 633, ¶45, 681 N.W.2d 110 ; State v. Brantner , 2020 WI 21, ¶15 n.9, 390 Wis. 2d 494, 939 N.W.2d 546 ; see also WIS. STAT. § 990.01(1).¶71 For these reasons, we conclude that the phrase "boar......
- State v. Schultz
-
State v. A. G. (In re A.G.)
...supreme court justices is to take complicated legal issues and decide them in a way that simplifies and explains them." State v. Branter, 2020 WI 21, ¶42, 390 Wis.2d 494, 939 N.W.2d 546 (Roggensack, C.J., concurring). The concurrence does not fulfill this obligation. If a justice deprives t......
-
State v. Wise
...intent to the contrary, with the State bearing the burden under the first presumption and the defendant under the second. State v. Brantner , 2020 WI 21, ¶25, 390 Wis. 2d 494, 939 N.W.2d 546. ¶12 A conclusion that the legislature did not intend multiple punishments results in either a doubl......
-
THE DEMISE OF THE LAW-DEVELOPING FUNCTION: A CASE STUDY OF THE WISCONSIN SUPREME COURT.
...Senate v. Thompson, 424 N.W.2d 385, 387 (Wis. 1988) ("[I]t is this court's function to develop and clarify the law."); State v. Brantner, 939 N.W.2d 546, 525 (Wis. 2020) (Roggensack, C.J., concurring) ("Part of our obligation as supreme court justices is to take complicated legal issues and......