State v. Dearborn, No. 2007AP1894-CR.

CourtCourt of Appeals of Wisconsin
Writing for the CourtVergeront
Citation758 N.W.2d 463,2008 WI App 131
Docket NumberNo. 2007AP1894-CR.
Decision Date24 July 2008
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. David A. DEARBORN, Defendant-Appellant.
758 N.W.2d 463
2008 WI App 131
STATE of Wisconsin, Plaintiff-Respondent,
v.
David A. DEARBORN, Defendant-Appellant.
No. 2007AP1894-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs January 2, 2008.
Opinion Filed July 24, 2008.

[758 N.W.2d 465]

On behalf of the defendant-appellant, the cause was submitted on the briefs of Eileen A. Hirsch, assistant public defender, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Anthony J. Pozorski, Sr., assistant district attorney, Lancaster.

Before HIGGINBOTHAM, P.J., VERGERONT and BRIDGE, JJ.

¶ 1 VERGERONT, J.1


David Dearborn appeals a judgment of conviction for assaulting or otherwise obstructing, or resisting a conservation warden contrary to WIS. STAT. § 29.951 (2005-06)2 and for possession of tetrahydrocannabinols (THC) contrary to WIS. STAT. § 961.41(3g)(e). He makes two contentions on appeal. First, he asserts his constitutional right to a unanimous verdict was violated by the jury instruction stating that he may be found guilty of violating § 29.951 if the jury found he assaulted or resisted or obstructed a conservation warden, rather than requiring the jury to unanimously agree on which he did. Second, he asserts the circuit court erred in denying his motion to suppress evidence found from a search of the passenger compartment of his vehicle.

¶ 2 We conclude that WIS. STAT. § 29.951 defines one crime with multiple modes of commission and comports with the applicable fundamental fairness standard embodied in the due process clause. Therefore, the jury did not need to be unanimous on the mode of commission and the jury instruction did not violate Dearborn's constitutional right to a unanimous jury verdict.

¶ 3 We also conclude, relying on State v. Littlejohn, 2008 WI App 45, 307 Wis.2d 477, 747 N.W.2d 712,3 that the search of the passenger compartment of Dearborn's vehicle did not violate his constitutional right to be free from unreasonable search and seizure. Accordingly, we affirm.

BACKGROUND

¶ 4 The charges arose out of events occurring after a Department of Natural Resources (DNR) warden, Martin Stone, pulled over a truck that Dearborn was driving. The warden and a state trooper, who later arrived in response to the warden's call, were the only witnesses to the

758 N.W.2d 466

incident at the trial. The following summary of facts is based on their testimony.

¶ 5 The warden was on duty, parked in an area along the lower Wisconsin River and observing people fishing. A man in a truck pulled up next to his vehicle, made a rude gesture, and drove off. The warden ran the truck's license plates and discovered that the owner of the vehicle, David Dearborn, had a revoked driver's license. The warden followed the truck and pulled it over, activating his lights. Dearborn, the driver and only occupant, got out of his truck and walked towards the warden. After the warden instructed Dearborn to get back into his truck, Dearborn shut and locked his truck door and remained outside. The warden obtained Dearborn's driver's license, verified his identity, and double checked his revoked status with dispatch after Dearborn denied he was revoked. The warden then told Dearborn he was under arrest for operating a vehicle after revocation. Dearborn became upset, resisted being handcuffed, and refused to turn over his car keys at the warden's request. Believing Dearborn was going to run, the warden tried to grab his wrist and the two became entangled and fell to the ground.

¶ 6 Once on the ground, Dearborn continued to resist being handcuffed by pushing and kicking. After getting up, the warden tried to subdue Dearborn with pepper spray, but was unsuccessful because Dearborn swung his jacket at the warden, thereby avoiding the spray. Dearborn ran to a nearby house, picked up rocks of varying sizes, and positioned himself as if he was going to throw them at the warden. He dropped the rocks after the warden drew his gun. Dearborn ran to the front door of the house and grabbed the door, shaking it and yelling and screaming. The warden caught up with him and tried once again to get Dearborn's hands behind his back, but Dearborn started kicking and punching again. This time the warden was able to partially subdue Dearborn with pepper spray and he called for backup. A state trooper arrived and he and the warden together were able to make Dearborn let go of the door handle and to handcuff him. They sat Dearborn in the trooper's squad car, but he refused to put his feet in; he complied when the trooper threatened to "make him" do it.

¶ 7 Once Dearborn was in the squad car, the warden searched the passenger compartment of Dearborn's vehicle and found a container holding a small amount of marijuana and some objects that the warden identified as drug paraphernalia.

¶ 8 The State charged Dearborn with assaulting or otherwise resisting or obstructing a warden in violation of WIS. STAT. § 29.951, possession of THC in violation of WIS. STAT. § 961.41(3g)(e), and possession of drug paraphernalia in violation of WIS. STAT. § 961.573(1). Dearborn filed a pretrial motion to suppress the evidence discovered in his vehicle on the ground that the search was unconstitutional. The court denied the motion.

¶ 9 At the jury instruction conference Dearborn proposed an instruction for the WIS. STAT. § 29.951 charge that referred only to resisting a warden. The State's proposal described the first element of the offense as "assault[ing], resist[ing] or obstruct[ing]" and also defined "resist[ing]" and "obstruct[ing]." Dearborn defended his proposed instruction and objected to the State's proposal on the ground that, if the jury received instructions on both resisting and obstructing, some jurors could find him guilty of one, some of the other, and that would deny him the right to a unanimous jury verdict. The court disagreed with Dearborn and gave the instruction prepared by the State, which did not require the jury to unanimously agree as

758 N.W.2d 467

to whether Dearborn specifically resisted or obstructed.

¶ 10 The jury found Dearborn guilty of the WIS. STAT. § 29.951 charge and the THC possession charge and not guilty of possession of drug paraphernalia. The court sentenced Dearborn to four months in jail on the former charge, one month on the latter charge, stayed both sentences, and ordered probation for one year.

DISCUSSION

¶ 11 Dearborn raises two issues on appeal: (1) did the jury instruction the court gave on the WIS. STAT. § 29.951 charge violate his constitutional right to a unanimous verdict? and (2) was the search of his vehicle unreasonable under the Fourth Amendment to the United States Constitution?

I. Unanimity

¶ 12 WISCONSIN STAT. § 29.951, provides:

Resisting a warden. Any person who assaults or otherwise resists or obstructs any warden in the performance of duty shall be subject to the penalty specified in s. 939.51(3)(a) [a Class A misdemeanor].4

¶ 13 The jury was instructed that there were four elements to the offense, each of which must be proved beyond a reasonable doubt: (1) the defendant assaulted, resisted, or obstructed a conservation warden; (2) the conservation warden was doing an act in an official capacity; (3) the conservation warden was acting lawfully; and (4) the defendant knew that Martin Stone was a conservation warden acting in his official capacity and with lawful authority and knew the conduct would constitute an assault of the warden or would resist or obstruct the warden.

¶ 14 With respect to the first element, the jury was instructed:

1. The defendant assaulted, resisted, or obstructed a conservation warden.

To resist a conservation warden means to oppose the warden by force or threat of force. The resistance must be directed to the warden personally.

To obstruct a conservation warden means that the conduct of the defendant prevented or made more difficult the performance of the warden's duties.5

¶ 15 Dearborn contends that, by referring to "resists" and "obstructs," WIS. STAT. § 29.951 proscribes two separate types of conduct.6 The instruction, he asserts, allows

758 N.W.2d 468

the jury to find Dearborn guilty if he either resisted or obstructed without instructing the jury that it must be unanimous in deciding which act Dearborn did. Thus, he argues, some jurors may have decided that Dearborn resisted because there was evidence that he opposed the warden by force or threat. Others may not have been persuaded that he resisted, viewing that evidence as self-defense in response to unreasonable or excessive force; these latter jurors may have decided he obstructed based on other evidence that could meet the definition given for "obstruct." This, he asserts, is a violation of his constitutional right to a unanimous verdict.

¶ 16 The State responds that unanimity is not required on whether Dearborn's conduct constituted assaulting or resisting or obstructing a warden in the performance of duty.7

¶ 17 The right to a jury trial guaranteed by article I, sections 5 and 7 of the Wisconsin Constitution includes the right to a unanimous verdict with respect to the ultimate issue of guilt or innocence. State v. Derango, 2000 WI 89, ¶ 13, 236 Wis.2d 721, 613 N.W.2d 833. The primary justification for the unanimity requirement is that it ensures that each juror is convinced that the prosecution has proved each essential element of the offense beyond a reasonable doubt. Id. "Jury unanimity, however, is required `only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged, and ... not ... with respect to the alternative means or ways in which the crime can be committed.'" Id., ¶ 14 (citations omitted) (alteration in original).

¶ 18 The threshold question in a unanimity challenge is therefore whether the statute creates multiple offenses or a single offense with multiple modes of commission. Id. This presents a question of statutory construction, which is a...

To continue reading

Request your trial
7 practice notes
  • State Of Wis. v. Dearborn, No. 2007AP1894-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 15, 2010
    ...the evidence of the search on the grounds that it was not a valid search incident to arrest. Dearborn, 313 Wis.2d 767, ¶¶ 43-441, 758 N.W.2d 463. But the court agreed to hear the issue because it was a question of law, was briefed by the parties, and was of sufficient public interest to mer......
  • State v. Schmidt, Appeal No. 2018AP2128-CR
    • United States
    • Court of Appeals of Wisconsin
    • June 10, 2021
    ...is required with respect to the alternative means of committing the crime. State v. Dearborn, 2008 WI App 131, ¶19, 313 Wis. 2d 767, 758 N.W.2d 463. ¶32 Under this fundamental fairness test, the court looks to two factors to determine whether unanimity is required as to the means of satisfy......
  • State v. Devries, No. 2009AP3166–CR.
    • United States
    • Court of Appeals of Wisconsin
    • May 17, 2011
    ...the legislature provided that each way was independent of the others. See State v. Dearborn, 2008 WI App 131, ¶ 21, 313 Wis.2d 767, 780, 758 N.W.2d 463, 469, aff'd 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97.II. ¶ 4 In support of its contention that Devries had four prior “convictions” under ......
  • State v. Green, Appeal No. 2011AP2137-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 8, 2012
    ...away from a warden's hold in an attempt to prevent handcuffing." State v. Dearborn, 2008 WI App 131, ¶27, 313Page 9Wis. 2d 767, 758 N.W.2d 463. We are satisfied that the officers' testimony in this case provided sufficient evidence to support a jury finding that Green resisted an officer. W......
  • Request a trial to view additional results
7 cases
  • State Of Wis. v. Dearborn, No. 2007AP1894-CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 15, 2010
    ...the evidence of the search on the grounds that it was not a valid search incident to arrest. Dearborn, 313 Wis.2d 767, ¶¶ 43-441, 758 N.W.2d 463. But the court agreed to hear the issue because it was a question of law, was briefed by the parties, and was of sufficient public interest to mer......
  • State v. Schmidt, Appeal No. 2018AP2128-CR
    • United States
    • Court of Appeals of Wisconsin
    • June 10, 2021
    ...is required with respect to the alternative means of committing the crime. State v. Dearborn, 2008 WI App 131, ¶19, 313 Wis. 2d 767, 758 N.W.2d 463. ¶32 Under this fundamental fairness test, the court looks to two factors to determine whether unanimity is required as to the means of satisfy......
  • State v. Devries, No. 2009AP3166–CR.
    • United States
    • Court of Appeals of Wisconsin
    • May 17, 2011
    ...the legislature provided that each way was independent of the others. See State v. Dearborn, 2008 WI App 131, ¶ 21, 313 Wis.2d 767, 780, 758 N.W.2d 463, 469, aff'd 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97.II. ¶ 4 In support of its contention that Devries had four prior “convictions” under ......
  • State v. Green, Appeal No. 2011AP2137-CR
    • United States
    • Court of Appeals of Wisconsin
    • August 8, 2012
    ...away from a warden's hold in an attempt to prevent handcuffing." State v. Dearborn, 2008 WI App 131, ¶27, 313Page 9Wis. 2d 767, 758 N.W.2d 463. We are satisfied that the officers' testimony in this case provided sufficient evidence to support a jury finding that Green resisted an officer. W......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT