State v. Wolske

• Decision Date: 20 January 1988
• Docket Number: No. 87-0533-CR,87-0533-CR
• Citation: 143 Wis.2d 175,420 N.W.2d 60
• Parties: STATE of Wisconsin, Plaintiff-Appellant and Cross-Respondent, v. Frederick J. WOLSKE, Defendant-Respondent and Cross-Appellant.
• Court: Wisconsin Court of Appeals

Page 60

420 N.W.2d 60

143 Wis.2d 175

STATE of Wisconsin, Plaintiff-Appellant and Cross-Respondent, v. Frederick J. WOLSKE, Defendant-Respondent and Cross-Appellant.

No. 87-0533-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 20, 1987.

Opinion Released Jan. 20, 1988.

Opinion Filed Jan. 20, 1988.

Review Denied.

Donald J. Hanaway, Atty. Gen. and Daniel J. O'Brien, Asst. Atty. Gen., for State.

Daniel Fay of Law Firm of Daniel P. Fay, S.C., Pewaukee, for Wolske.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

BROWN, Presiding Judge.

The major issue is whether a person may be charged, convicted and punished for both homicide by intoxicated operation of a motorboat and homicide by highly negligent operation arising out of the same incident. The trial court held that even though the intoxication and negligence charges were neither multiplicious, in the classic sense of the term, nor lesser included offenses, multiple punishment would be inappropriate. It thereupon dismissed the charges without prejudice. We agree with the state that the legislature intended to permit multiple prosecutions and punishments for these charges and that such intention is constitutional. We address other issues as well.

The facts are that defendant Frederick J. Wolske was operating a motorboat at an allegedly high rate of speed when it collided with another motorboat. The collision resulted in the death of one person and serious injury to another. Chemical tests indicated that Wolske's blood alcohol level was .224%.

The complaint charged three counts in relation to each victim. Regarding the deceased, Wolske was charged with (1) causing death by operating a boat while under the influence of an intoxicant contrary to sec. 940.09(1)(a), Stats.; (2) causing death by operating a boat while having a blood alcohol concentration (BAC) of .10% or more contrary to sec. 940.09(1)(b); and (3) causing death by a high degree of negligence in operating a boat, contrary to sec. 940.08(1), Stats.

Regarding the seriously injured victim, the counts were similar except that great bodily harm was substituted for death as the gravamen for the counts, thereby implicating sec. 940.25(1)(a) and (b) and sec. 940.245(1), Stats. This case comes to us following the trial court's dismissal of all charges.

A defendant may be charged and convicted of multiple crimes arising out of one criminal act if the legislature intends it. Geitner v. State, 59 Wis.2d 128, 130-31, 207 N.W.2d 837, 839 (1973). See also sec. 939.65, Stats., and Missouri v. Hunter, 459 U.S. 359, 366-69, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983).

A means of discerning legislative intent is the "additional element" test adopted in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), and codified in Wisconsin at secs. 939.66 and 939.71, Stats. Simply stated, if each statutory crime requires proof of a fact for conviction which the other does not require, then it can be said that the legislature has promulgated separate, distinct offenses providing for multiple convictions and punishments. State v. Bohacheff, 114 Wis.2d 402, 411-12, 338 N.W.2d 466, 470-71 (1983).

A comparison of the elements of the statutes involved reveals that the negligence statutes, secs. 940.08 and 940.245, Stats., require the state to prove operation of a vehicle with a high degree of negligence, whereas the intoxication statutes, secs. 940.09 and 940.25, Stats., require the state to prove operation of a vehicle while under the influence of an intoxicant. See State v. Caibaiosai, 122 Wis.2d 587, 593, 363 N.W.2d 574, 577 (1985); Wis J I--Criminal 1170.

Wolske contends, however, that this difference is merely superficial, and that the statutes therefore fail to meet the additional element test of Blockburger. This is so, he argues, because if the state proves operation of a vehicle while intoxicated, then under Caibaiosai it has also shown negligence per se. Id. at 595, 363 N.W.2d at 578. Wolske therefore concludes that there is no additional fact which must be proven under the negligence statutes which is not satisfied by a showing of intoxicated operation under the intoxication statutes.

Wolske is correct in asserting that it is negligence per se to operate a vehicle while intoxicated. Id. However, Wolske's position ignores the different historical facts the state must prove for conviction under the separate statutes. A violation of the intoxication statutes requires proof of intoxication but does not require proof of erratic or negligent operation of a vehicle. Id. at 593, 600, 363 N.W.2d at 577, 581. Conversely, a violation of the negligence statutes requires proof of highly negligent operation of a vehicle, but does not require proof of intoxication. See secs. 940.08 and 940.245, Stats. Moreover, one can be intoxicated while operating a vehicle without doing so in a highly negligent manner and can be highly negligent in the operation of a vehicle without being intoxicated. Thus, the negligence and intoxication statutes require proof of distinct factual elements.

The distinction between the factual elements of the negligence and intoxication statutes becomes clearer when considering the issue of causation. Under the intoxication statutes, the state must prove a causal connection between a defendant's operation of a vehicle while intoxicated and the death or injury of the victim. See Caibaiosai at 594, 363 N.W.2d at 577. Negligence need not be shown as a causal element. See id. at 600, 363 N.W.2d at 581.

Under the negligence statutes, the state must prove a causal connection between the operation of a vehicle with a high degree of negligence and the victims' death or injury. See secs. 940.08 and 940.245, Stats. Thus, as shown through causation, the state is proving a fact under one statute--death or injury from intoxicated operation versus death or injury from highly negligent operation--that it is not proving under the other statute. This satisfies the Blockburger additional elements test.

In addition to examining whether the statutory language requires proof of additional elements, this court also looks to the nature of the proscribed conduct and the appropriateness of multiple punishments to determine whether the legislature intended multiple prosecutions and convictions. Bohacheff, 114 Wis.2d at 410, 338 N.W.2d at 470.

The conduct proscribed by the intoxication statutes is operating a vehicle while intoxicated and thereby causing death or great bodily harm. See Caibaiosai, 122 Wis.2d at 591, 363 N.W.2d at 576. The intoxication statutes' purpose is to "provide maximum safety for all users of the highways of this state" from the harm threatened by "[o]peration of motor vehicles by persons who are under the influence of an intoxicant." See id. (quoting secs 2051(13)(a)1 and 2051(13)(b)1, ch. 20, Laws of 1981).

The negligence statutes proscribe the conduct of operating a vehicle in a highly negligent manner, causing death or great bodily harm. See secs. 940.08 and 940.245, Stats. The apparent purpose of the negligence statutes is to provide maximum safety for highway users or, in this case, users of the waterways from the harm threatened by the operation of motor vehicles or boats in a highly negligent manner. See id.; see also Hart v. State, 75 Wis.2d 371, 379-84, 249 N.W.2d 810, 813-15 (1977).

Thus, the nature of the conduct proscribed by each statute protects a distinct interest of the victim and the public. Where the statutes intend to protect multiple and varied interests of the victim and the public, multiple punishments are appropriate. Bohacheff, 114 Wis.2d at 416, 338 N.W.2d at 473. Moreover, multiple punishments are appropriate where the grounds for punishment are different. Id. Here the grounds for punishment are significantly different. The intoxication statutes are grounded on the principle that persons should be punished for operation of a vehicle while intoxicated because it creates "a risk that will not be tolerated." Caibaiosai, 122 Wis.2d at 595, 363 N.W.2d at 578. The negligence statutes are grounded on the principle that persons should be punished for operation of a vehicle in a highly negligent manner creating unreasonable risk and high probability of death or harm to another. See Hart, 75 Wis.2d at 382, 249 N.W.2d at 814.

The different conduct proscribed and different grounds for the negligence and intoxication statutes along with their distinct factual elements convince us that multiple prosecutions, convictions and punishments were intended by the legislature. We therefore agree with the state's appeal and conclude that the multiple charges in the complaint were properly brought. We reverse the trial court's order dismissing the complaint on multiplicity grounds.

Wolske also contends that the trial court properly dismissed the complaint on grounds of potential jury confusion. The court determined that confusion would result from the different standards of proof on the element of causation under the negligence and intoxication statutes. To escape liability on the intoxication charges, a defendant bears the burden of proving that the death or injury would have resulted even had he not been intoxicated. Secs. 940.09(2) and 940.25(2), Stats. As to the negligence charges, however, the state has the burden of proving beyond a reasonable doubt that the defendant's high degree of negligence caused the death or injury. Secs. 940.08 and 940.245, Stats.

While we understand the trial court's concern over jury confusion, we conclude that the trial court abused its discretion in ordering dismissal of the complaint as the remedy to potential confusion. Section 971.12(3), Stats., provides that where there is potential for prejudice to a defendant, the court may order separate trials for each count. The less drastic remedy of severance would serve the purpose of preventing jury confusion, see Butala v. State, 71 Wis.2d 569, 579-80, 239...