State v. Carrington

• Decision Date: 11 March 1986
• Docket Number: No. 85-1378-CR,85-1378-CR
• Citation: 386 N.W.2d 512,130 Wis.2d 212
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Paul CARRINGTON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 512

386 N.W.2d 512

130 Wis.2d 212

STATE of Wisconsin, Plaintiff-Respondent, v. Paul CARRINGTON, Defendant-Appellant.

No. 85-1378-CR.

Court of Appeals of Wisconsin.

Submitted on Brief, Jan. 3, 1986.

Opinion Released March 11, 1986.

Opinion Filed March 11, 1986.

Bronson C. La Follette, Atty. Gen., Madison, for plaintiff-respondent; Stephen W. Kleinmaier, Assistant Atty. Gen., of counsel.

Elizabeth E. Stephens, Asst. State Public Defender, Milwaukee, for defendant-appellant.

Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.

WEDEMEYER, Judge.

After a jury trial, Paul Carrington appeals from a judgment of conviction of two counts of endangering safety by conduct regardless of life while armed, contrary to secs. 941.30 and 939.63(1)(a)3., Stats. Carrington claims that the trial court violated his due process rights when it refused to submit a jury instruction on a lesser included offense and that the evidence was insufficient to support his conviction. We hold that although there was sufficient evidence to sustain Carrington's conviction, the trial court erred in not submitting the lesser included offense instruction of endangering safety by reckless conduct in the use of a dangerous weapon, contrary to sec. 941.20(1)(a), Stats. We therefore reverse and remand this cause for a new trial.

The following facts are not disputed. Carrington went to a tavern one summer night and ordered a beer. Apparently as a joke, the bartender spiked Carrington's first beer with rum and then proceeded to pour another beer down the drain. Carrington was not amused. He asked that his beer be replaced. When his request was denied, he sought to help himself by going behind the bar. The bartender was equally unamused and got out his pistol to prevent this action. Incensed, Carrington left the premises and returned shortly with a sawed-off shotgun. He displayed the gun to the bartender and demanded a beer. The bartender complied.

Meanwhile, two nearby police officers, Quezaire and Jenkins, had been alerted. Looking through a window the officers observed Carrington holding a shotgun in an upright position while talking to the bartender. Both officers were dressed in casual civilian clothes. After requesting backup help, the officers proceeded to the front entrance of the tavern to keep Carrington under surveillance. Officer Quezaire observed Carrington leave by a rear exit and proceed down the sidewalk away from the two officers. Carrington, a military veteran, was carrying the shotgun in a "port arms" position, i.e. perpendicular across the front of his body with the barrel pointing up at a forty-five degree angle.

From this point on there is a marked difference of opinion as to what exactly transpired. Quezaire claimed that he twice called to Carrington: "Stop, police" before Carrington halted. Both Quezaire and Jenkins testified that Carrington stopped, turned, leveled his weapon in a horizontal position and pointed it in their direction. When Quezaire saw Carrington level the gun in his direction, he quickly fired one shot, but it hit a garbage dumpster that was midway between the two. Carrington then fired his gun and Quezaire returned four more rounds.

Carrington, on the other hand, asserts that while he was proceeding away from the tavern he heard one call of "Halt, police," followed by four shots. Looking over his shoulder he saw a large person doing the shooting. Carrington claims that he did not aim his gun at anyone, that he though someone coming out of the bar was firing at him, and that all he did was fire one shot in the air and duck into an alley.

Carrington was approximately seventy-one feet from the officers when the shooting took place. Although the weapon Carrington carried was a sawed-off shotgun, the shot actually fired was of a type used primarily in deer hunting. This pellet was not recovered. Carrington's shotgun, when using such a rifled shell, has a horizontal range up to 200 yards, but its range is greater when fired vertically.

Carrington was charged with two felony counts of endangering safety by conduct regardless of life while armed. ¹ Sec. 941.30, Stats. ² At trial, Carrington requested that the court instruct the jury on the misdemeanor offense of endangering safety by reckless conduct in the operation of a dangerous weapon. Sec. 941.20(1)(a), Stats. ³ The trial court refused, holding that this offense was not a lesser included one because it contained an additional statutory element. That is, the trial court reasoned that the use of a dangerous weapon was an essential element of the requested misdemeanor charge, but was only a "penalty enhancer" of the felony charge. The jury convicted Carrington on both counts, the trial court entered concurrent sentences of six years each, and Carrington appeals.

The matter of whether to instruct the jury on a lesser included charge is a question of law. State v. Salter, 118 Wis.2d 67, 83, 346 N.W.2d 318, 326 (Ct.App.1984). This court is not bound by the trial court's determination of a question of law. Id. A trial court is not permitted to instruct on a lesser crime which is not included in the charged offense, Hawthorne v. State, 99 Wis.2d 673, 680, 299 N.W.2d 866, 869 (1981), but a trial court's failure to submit an appropriate lesser included offense instruction when requested is prejudicial error entitling the defendant to a new trial. Id. at 684, 299 N.W.2d at 871.

To determine the propriety of submitting a charge to a jury on a lesser included offense, the trial court must employ a two-step analysis. First, the trial court must decide whether the proposed lesser offense is statutorily included within the greater offense. Randolph v. State, 83 Wis.2d 630, 643, 266 N.W.2d 334, 340 (1978) (citation omitted). Then it must decide whether the evidence viewed most favorably to the accused provides a reasonable ground both for acquittal on the greater charge and for conviction on the lesser charge. Id. at 643-44, 266 N.W.2d at 340. Because the trial court here determined that endangering safety by reckless conduct in the operation of a dangerous weapon was not a lesser included charge, it never reached the second step of this analysis.

Although both parties, on appeal, agree that the trial court erred in concluding that the use of a dangerous weapon was only a "penalty enhancer" and not an element of the greater offense, we must undertake an independent analysis of the relevant criminal charges and their statutory elements. It is well settled that our courts are committed to an "elements only" analysis of whether one offense is included within another. Hagenkord v. State, 100 Wis.2d 452, 481, 302 N.W.2d 421, 436 (1981). "[A]n offense is a 'lesser included' one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be proved for the 'greater' offense." Id.; sec. 939.66(1), Stats.

There are two elements under sec. 941.20(1)(a), Stats., comprising the misdemeanor crime of reckless use of weapons: (1) the defendant engaged in reckless conduct in the operation or handling of a dangerous weapon; and (2) the defendant endangered another's safety by his operation or handling of a firearm. See Wis J I--Criminal 1321. To support a conviction for the felony crime of endangering safety by conduct regardless of life, sec. 941.30, Stats., the defendant's conduct must be proven (1) to have been imminently dangerous to another, (2) to have evinced a depraved mind regardless of human life, and (3) to have actually endangered another. State v. Toliver, 104 Wis.2d 289, 294, 311 N.W.2d 591, 594 (1981); see Wis J I--Criminal 1345. Adding the charge "while armed" to a criminal complaint requires the use of sec. 939.63, Stats., which provides in part:

Penalties; use of a dangerous weapon. (1)(a) If a person commits a crime while ... using ... a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased....

....

(b) The increased penalty provided in this subsection does not apply if ... using ... a dangerous weapon is an essential element of the crime charged. [Emphasis added.]

In the instant case, Carrington was formally charged with violating secs. 941.30 and 939.63(1)(a), Stats., i.e. endangering safety "while armed." In rejecting Carrington's argument that "use of a dangerous weapon" was an element of the criminal charge against him, the trial court observed:

Apparently our appellate courts have not ruled on the question ... whether or not the use of a dangerous weapon, which is found in a separate section of the statute, as a penalty enhancer, once charged now becomes an element of the crime. It would seem to me it's not an element of the crime, that it is strictly a penalty enhancer.

We disagree. Section 939.63 is indeed a penalty enhancer, but unlike the "repeater" statute, sec. 939.62, Stats., it requires the establishment of a separate fact (here, the use of a dangerous weapon) as well as the elements of the underlying offense. See comment, Wis J I--Criminal 990. The repeater statute increases the penalty for a particular crime but does not change the nature of the crime. State v. McAllister, 107 Wis.2d 532, 537, 319 N.W.2d 865, 868 (1982) (citation omitted). Also, a repeater charge is relevant only to the action of the trial judge in imposing sentence after the jury has made a finding of guilt in respect to the crime tried before it. Id. at 538, 319 N.W.2d at 868 (citation omitted).

As the drafters of the jury instruction on sec. 939.63, Stats., noted, this statute closely resembles the concealing identity statute, sec. 946.62, Stats. See comment Wis J I--Criminal 990. In Haldane v. State, 85 Wis.2d 182, 195, 270 N.W.2d 75, 81 (1978), our supreme court considered the defendant's argument that he was subjected to double jeopardy because he was punished both for armed robbery under sec. 943.32(1)(b) and (2), Stats., and for committing...