State v. Kanarowski

• Decision Date: 05 August 1992
• Docket Number: No. 90-2734-CR,90-2734-CR
• Citation: 489 N.W.2d 660,170 Wis.2d 504
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Richard W. KANAROWSKI, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 660

489 N.W.2d 660

170 Wis.2d 504

STATE of Wisconsin, Plaintiff-Appellant, v. Richard W. KANAROWSKI, Defendant-Respondent.

No. 90-2734-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 16, 1992.

Opinion Released Aug. 5, 1992.

Opinion Filed Aug. 5, 1992.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen.

On behalf of the defendant-respondent, the cause was submitted on the brief of William A. Pangman of William A. Pangman & Associates, S.C., of Waukesha.

Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.

BROWN, Judge.

The state appeals the trial court's dismissal of a four-count information charging Richard W. Kanarowski with two counts of reckless endangerment, one count of battery, and one count of disorderly conduct--all arising from one incident. The trial court concluded that the four charges were multiplicitous under Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). We reverse the dismissal and remand for trial because the test for multiple charging is found not in Grady but in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and the Blockburger test indicates that the four charges against Kanarowski are not multiplicitous.

On September 21, 1989, Kanarowski allegedly attacked Richard Meiser and Robert Wieting with a baseball bat. At the preliminary examination, the victims testified that they were walking in downtown Hartford and stopped at a store window to look at some pictures. Meiser said that while he was standing in front of the window, he was suddenly hit on the top of the head and fell to the ground. He turned and saw Kanarowski step back, swing a bat and hit Wieting. Wieting testified that while he was looking in the window, he heard a thump behind him, turned around and was hit on the forehead. After the two men were hit, a crowd formed on the sidewalk. Several of the victims' companions grabbed Kanarowski and sat on him until police arrived. Meiser and Wieting were taken to the hospital, where Wieting received five stitches for the cut on his forehead.

Four charges were issued against Kanarowski: (1) one count of reckless endangerment of the safety of each victim in violation of sec. 941.30(1), Stats. (Counts I and II); (2) one count of aggravated battery of Wieting in violation of sec. 940.19(3), Stats. (Count III); and (3) one count of disorderly conduct in violation of sec. 947.01, Stats. (Count IV). The trial court dismissed the case, concluding that because the same course of conduct was the basis for the four charges, multiple charging was improper under Grady. ¹

Multiple charging based on a single course of conduct implicates the federal and state constitutional protections against double jeopardy for the same offense. See State v. Rabe, 96 Wis.2d 48, 61, 291 N.W.2d 809, 815 (1980). Determining whether multiple charges violate constitutional protections presents an issue of law which we review de novo without deference to the trial court. State v. Sauceda, 168 Wis.2d 486, 492, 485 N.W.2d 1, 3 (1992).

The state argues that Grady is not applicable to this case because Grady prohibits multiple prosecutions for the same course of conduct. It does not address the situation where there is a single prosecution with multiple charges for the same course of conduct. The state is correct. Where a single course of conduct gives rise to multiple charges to be prosecuted in a single trial, the proper test to determine whether there is a double jeopardy violation is the "elements only" test of Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. See Sauceda, 168 Wis.2d at 493-94 & nn. 7 & 8, 485 N.W.2d at 4-5. Grady 's "single course of conduct" test is a subsequent test to be applied only in cases of successive prosecutions, and only if the multiple charges have survived the Blockburger test. See State v. Poveda, 166 Wis.2d 19, 23, 479 N.W.2d 175, 176 (Ct.App.1991). Thus, the trial court improperly applied the Grady test to the instant case which did not involve a second prosecution for a previously prosecuted course of conduct.

The constitutional protections against double jeopardy in a single prosecution are meant to prevent a single offense from being arbitrarily transformed into multiple offenses with multiple punishments. The constitution does not prevent a single course of conduct from being broken down into its component parts, each of which constitutes a separate offense. See Sauceda, 168 Wis.2d at 492-93, 485 N.W.2d at 3-4. To determine in a particular case whether the state has legitimately broken down a single course of conduct into multiple offenses, the Blockburger test requires that each charged offense require proof of an element or fact that the other does not. Sauceda, 168 Wis.2d at 493 n. 8, 485 N.W.2d at 4.

Applying Blockburger to the instant case, we determine that the multiple charges did not violate Kanarowski's constitutional protections against double jeopardy. Kanarowski was charged with recklessly endangering safety, aggravated battery, and disorderly conduct. The reckless endangerment charges require proof that the defendant endangered another's safety under circumstances showing utter disregard for human life. There is no requirement that the defendant intended harm to anyone. See sec. 941.30(1), Stats. In contrast, the crime of aggravated battery requires proof of intent to cause bodily harm and proof that the conduct created a high probability of great bodily harm. See sec. 940.19(3), Stats. Likewise, the crime of disorderly conduct differs from reckless endangerment and aggravated battery because it requires proof that the offensive conduct was violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly and that it tended to cause or provoke a disturbance. See sec. 947.01, Stats. No showing of endangering safety or intent to harm is required for disorderly conduct.

Each count is based upon different facts, not the same facts. Swinging a baseball bat at the head of two persons looking in a window shows reckless endangerment of safety, regardless of whether the bat made contact with anyone or whether Kanarowski intended harm to anyone. Concerning the battery charge, the fact that Kanarowski's bat made contact with Wieting's forehead indicates intent to harm, and the fact that the blow created a cut requiring five stitches shows actual bodily harm. Regarding the disorderly conduct charge, the fact that Kanarowski's behavior drew a crowd and required the police to be summoned shows that the behavior actually caused a disturbance. Thus, the charges are supported by the appropriate differing facts and pass muster under Blockburger.

The state contends that the analysis is at an end once we determine that the Blockburger test has been satisfied. As it has often argued in past cases, the state again asserts that in cases where different criminal statutes are invoked arising out of the same act, we need only determine whether the facts support multiple charging under Blockburger. We need not and should not also consider whether the legislature intended that there be multiple charging under the facts of the case.

The underlying reasoning for the state's contention is as follows: sec. 939.65, Stats., gives a clear indication of legislative intent to allow multiple charging. That statute provides:

If an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.

The state then posits that the only preclusion to the application of this statute is sec. 939.66, Stats., which states: "Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both." The state observes that sec. 939.66 overcomes sec. 939.65 only where the charged offense is one of the statutorily enumerated lesser included offenses of another charged offense. Because the facts here do not involve any included offenses, sec. 939.65 controls. By that statute, the legislature was saying that if there are two or more separate crimes involved in one act, it is intended that multiple charging is allowed, period.

The recent supreme court opinion in Sauceda, however, shows the state's argument to be incorrect. In that case, our supreme court stated that passing the Blockburger test presumptively allows for multiple punishments. The court wrote that a contrary intent may be derived from the language of the statutes, the legislative history, the nature of the proscribed conduct and the appropriateness of multiple punishments....