State v. Dennis Brantner ( 2020 )

2020 WI 21
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP53-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Dennis Brantner,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: February 25, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 3, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Fond du Lac
JUDGE: Peter L. Grimm
JUSTICES:
KELLY, J., delivered the majority opinion of the court, in which
ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ.,
joined, and in which ROGGENSACK, C.J. and ZIEGLER, J., joined as
to parts I, II, III.B, III.C, and IV. ROGGENSACK, C.J., filed a
concurring opinion, in which ZIEGLER, J., joined.
NOT PARTICIPATING:
HAGEDORN, J., did not participate.
ATTORNEYS:
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.
2020 WI 21
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP53-CR
(L.C. No. 2015CF457)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. FEB 25, 2020
Dennis Brantner, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
KELLY, J., delivered the majority opinion of the Court, in which
ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ., joined,
and in which ROGGENSACK, C.J. and ZIEGLER, J., joined as to parts
I, II, III.B, III.C, and IV. ROGGENSACK, C.J., filed a concurring
opinion, in which ZIEGLER, J., joined.
Brian K. Hagedorn, J., did not participate.
REVIEW of a decision of the Court of Appeals. Affirmed in
part, reversed in part, and the cause is remanded to the circuit
court for further proceedings consistent with this opinion.
¶1 DANIEL KELLY, J. 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
No. 2018AP53-CR
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
I. BACKGROUND
¶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
1 All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2 This is a review of the court of appeals, State v. Brantner,
No. 2018AP53-CR, unpublished order (Wis. Ct. App. Jan. 2, 2019),
which summarily affirmed the Fond du Lac County postconviction
court's denial of Mr. Brantner's postconviction motion, the
Honorable Peter L. Grimm, presiding.
2
No. 2018AP53-CR
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
3
No. 2018AP53-CR
bail-jumping charge.3 Consequently, the list of charges against
Mr. Brantner comprised:4
(1) Possession of oxycodone (20mg), a Schedule II
narcotic substance, without a valid prescription,
contrary to Wis. Stat. § 961.41(3g)(am);
(2) Felony bail jumping contrary to Wis. Stat.
§ 946.49(1)(b) for possessing oxycodone 20mg;
(3) Possession of oxycodone (5mg), a Schedule II
narcotic substance, without a valid prescription,
contrary to Wis. Stat. § 961.41(3g)(am);
(4) Felony bail jumping contrary to Wis. Stat.
§ 946.49(1)(b) for possessing oxycodone 5mg;
(5) Possession of hydrocodone, a Schedule II narcotic
substance, without a valid prescription, contrary to
Wis. Stat. § 961.41(3g)(am);
(6) Felony bail jumping contrary to Wis. Stat.
§ 946.49(1)(b) for possessing hydrocodone;
(7) Possession of zolpidem, a controlled substance,
without a valid prescription, contrary to Wis. Stat.
§ 961.41(3g)(b);
(8) Felony bail jumping contrary to Wis. Stat.
§ 946.49(1)(b) for possessing zolpidem;
(9) Possession of cyclobenzaprine, a prescription drug,
contrary to Wis. Stat. § 450.11(7)(h); and
3 One of the conditions of Mr. Brantner's bond in the Kenosha
County felon-in-possession case was that he commit no new crimes.
4 Initially, the charges against Mr. Brantner on counts one,
three, and five also included penalty enhancers pursuant to Wis.
Stat. § 961.495 (2017-18) for possession of a controlled substance
within 1000 feet of the Fond du Lac County jail; however, the State
voluntarily dismissed all of the penalty enhancers prior to voir
dire.
4
No. 2018AP53-CR
(10) Felony bail jumping contrary to Wis. Stat.
§ 946.49(1)(b) for possessing cyclobenzaprine.5
¶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.
II. STANDARD OF REVIEW
¶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 ("The
Counts one, three, and five are Class I felonies; the bail
5
jumping charges are Class H felonies; and counts seven and nine
are misdemeanors.
5
No. 2018AP53-CR
question of whether the evidence was sufficient to sustain a
verdict of guilt in a criminal prosecution is a question of law,
subject to our de novo review.").
¶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.
III. ANALYSIS
¶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.
A. Venue
¶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)
("Criminal actions shall be tried in the county where the crime
was committed, except as otherwise provided."). Answering Mr.
Brantner's argument requires us to consult the criminal statutes
6
No. 2018AP53-CR
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
The penalty for possessing a Schedule II narcotic drug,
6
such as oxycodone, is provided by Wis. Stat. § 961.41(3g)(am):
Schedule I and II Narcotic Drugs. If a person possesses
or attempts to possess a controlled substance included
in schedule I or II which is a narcotic drug, or a
controlled substance analog of a controlled substance
included in schedule I or II which is a narcotic drug,
the person is guilty of a class I felony.
The penalty for possessing non-scheduled controlled substances
is provided by Wis. Stat. § 961.41(3g)(b):
Other drugs generally. Except as provided in pars. (c)
to (g), if the person possesses or attempts to possess
a controlled substance or controlled substance analog,
other than a controlled substance included in schedule
I or II that is a narcotic drug or a controlled substance
analog of a controlled substance included in schedule I
or II that is a narcotic drug, the person is guilty of
a misdemeanor, punishable under s. 939.61.
7
No. 2018AP53-CR
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) ("No person may possess . . . ."); Wis. Stat.
§ 450.11(7)(h) ("[N]o person may possess . . . ."). 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. 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
7 Subsection (1i)(b), which addresses opioid antagonists, is
not relevant to this case. Wis. Stat. § 450.11(1i)(b). And Mr.
Brantner does not claim he obtained the cyclobenzaprine in
compliance with § 450.11.
8
No. 2018AP53-CR
a consistent, established meaning throughout the Wisconsin
criminal statutes . . . ." Id. at 15-16.8
¶13 Both parties recommended Wis JI——Criminal 6030 (2016) to
us as an appropriate explanation of this "consistent, established
meaning." This instruction describes two senses in which we may
understand the term "possession." In the first sense, "possessed"
means "the defendant knowingly had actual physical control of a
substance." Id. In the second sense, a "substance is (also) in
a person's possession if it is in an area over which the person
has control and the person intends to exercise control over the
substance." Id.
¶14 We can glean from Schwartz and Wis JI——Criminal 6030,
therefore, that "possessing" something requires both knowledge and
control. Here, it is the "control" component of possession with
which Mr. Brantner takes exception. The instruction's first
definition of control contemplates the ability to kinetically
influence the object in question. The instruction expresses this
idea as "actual physical control," which Black's Law Dictionary
defines as "[d]irect bodily power over something, esp. a vehicle."
Actual Physical Control, Black's Law Dictionary (11th ed. 2019).
¶15 The second "control" test does not require the ability
to physically manipulate the object directly. Instead, it reflects
8 State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (1994),
addressed Wis JI——Criminal 920 (2000), the general "possession"
instruction. This case, of course, focuses on Wis JI——Criminal
6030 (2016), which is the jury instruction specific to Wis. Stat.
§ 961.41(3g). However, the definition is the same in each
instance, which the comments to Wis JI——Criminal 6030 acknowledge.
9
No. 2018AP53-CR
the defendant's ability to exercise power over the object
indirectly. In the words of the jury instruction, possession
occurs when the object is in an area over which the defendant has
control, and he intends to exercise that control. "Control" is a
common and frequently used word. There is nothing technical or
specialized about it, and so we look to the dictionary for a
common, ordinary definition.9 Turning to Webster's Third New
International Dictionary, we find two particularly helpful
definitions. First, Webster's says "control" means "to exercise
restraining or directing influence over." Control, Webster's
Third New International Dictionary (496 (1986) (definition
4(a)(1))). It also provides that "control" means "to have power
over." Id. (definition 4(a)(2)). Similarly, The Oxford English
Dictionary, as relevant here, offers the following definitions of
"control": (1) "The fact or power of directing and regulating the
actions of . . . things; direction, management; command[;] and (2)
"To exercise power or authority over; to determine the behavior or
action of, to direct or command; to regulate or govern." Control,
The Oxford English Dictionary (definitions 2.a. (noun) and 3.a.
(verb), respectively). Likewise, Black's Law Dictionary defines
"control," in relevant part, as meaning "[t]o exercise power or
influence over." Control, Black's Law Dictionary (11th ed. 2019).
The consistent principle linking all of these definitions is that
9See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 ("Statutory language
is given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning.").
10
No. 2018AP53-CR
an individual may control an object without directly and personally
affecting it physically. Instead, one may control the object
through the exercise of authority, direction, or command. We will
refer to this type of control as "indirect power."
¶16 The sum of this definitional work is that, within the
meaning of Schwartz and Wis JI——Criminal 6030, Mr. Brantner
possessed the pills in his boot if he knew they were there and he
either: (1) "had actual physical control" (that is, "direct bodily
power") over them; or (2) they were "in an area over which [he]
ha[d] control and [he] intend[ed] to exercise control over" them
(that is, he had "indirect power" over the pills). If those
elements coincided in Fond du Lac County, then venue was proper.
¶17 According to Mr. Brantner, they did not coincide. He
says he "lost possession of the pills when he was taken into
custody in Kenosha County because that is when he lost control of
the pills."10 Specifically, he says his arrest meant he could no
longer "ingest, sell, destroy or otherwise dispossess himself of
[the pills]. He could not do anything except leave them right
where they were." He concludes that under these circumstances,
"[w]hen a government bears down on an individual with such heavy
force, the individual loses control of any substances on his person
as a matter of law." That an individual should cease to control—
—and consequently cease to possess——everything on his person upon
arrest is a surprising proposition. That has never been the law
10Mr. Brantner does not challenge the knowledge component of
possession, and so we need not address it here.
11
No. 2018AP53-CR
in Wisconsin, and our courts regularly uphold convictions in which
police discover contraband after arresting the person who
possesses it. See, e.g., State v. Delap, 2018 WI 64, 382
Wis. 2d 92, 913 N.W.2d 175 (affirming judgment of conviction for,
inter alia, possession of drug paraphernalia discovered in search
after arrest); State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786
N.W.2d 97 (defendant convicted based on drugs found in his vehicle
after arrest); State v. Stewart, 2011 WI App 152, 337 Wis. 2d 618,
807 N.W.2d 15 (affirming denial of motion to suppress cocaine
discovered in search of trunk after arrest and thereby upholding
conviction for possession of cocaine with intent to deliver); State
v. Smiter, 2011 WI App 15, 331 Wis. 2d 431, 793 N.W.2d 920
(affirming judgment of conviction for possession of cocaine with
intent to deliver stemming from discovery of cocaine pursuant to
a vehicle search after defendant's arrest for possession of
marijuana).
¶18 But the deeper problem with Mr. Brantner's argument is
that it misses the point of our "possession" jurisprudence. In
this case, one of the following must be the possessor of the pills:
(1) Mr. Brantner; (2) the sheriff's deputies; or (3) no one. The
purpose of our analysis is not to make metaphysical distinctions,
but merely to distinguish between these three possibilities. We
can rule out the deputies as the possessors pretty easily——they
did not know the pills existed until Mr. Brantner handed them his
boot, which means the knowledge element of possession was
12
No. 2018AP53-CR
missing.11 Mr. Brantner rules himself out as the possessor because
he claims he lacked control over them. So he says we must conclude
that nobody possessed the pills. The pills, that is to say, that
were in his boot. Not only is such a conclusion counterintuitive,
it does not logically follow from the definition of "possession."
Here is why.
¶19 As we observed above, Mr. Brantner contests only the
"control" component of possession——he admits he knew the pills
were in his boot. The evidence presented in his trial, however,
leaves no doubt about his control of the pills in Fond du Lac
County. He took off his right boot with no difficulties during
the booking process, but claimed a muscle spasm kept him from
removing his drug-laden boot. Finding no reprieve in his delaying
tactics, he eventually removed the boot and handed it to the
sheriff's deputy in the processing room. So Mr. Brantner exercised
"direct bodily power" over the pills by first delaying their
conveyance to the deputy and then physically handing them over.
In his brief, Mr. Brantner largely concedes that this is evidence
of control over the pills:
If th[is] situation had unfolded inside a friend's
living room, with no law enforcement involvement
whatsoever, then Brantner clearly would be exercising
actual physical control over the pills by removing his
boot and handing it to his friend. Handing an object to
11We base our analysis on the understanding that the
detectives did not know of the pills in Mr. Brantner's boot before
they transported him to Fond du Lac County, and we express no
opinion on how this case would resolve had they known of them while
still in Kenosha County.
13
No. 2018AP53-CR
someone is precisely the type of act that "actual
physical control" refers to in ordinary circumstances.
We agree that this is precisely the type of act that exemplifies
actual physical control. Mr. Brantner, however, says this does
not count in this case because of the extraordinary circumstances
in which he handed over the boot. In Mr. Brantner's telling, those
circumstances relieved him of possession of the pills as a matter
of law because he was handing officials the evidence necessary to
arrest him for the crimes with which the State eventually charged
him. But Mr. Brantner never explained how his "extraordinary
circumstances" proposition could negate the physical control he
actually exerted over the drug-containing boot. If we were to
credit his position, we would have to conclude that the boot
somehow made its way from Mr. Brantner to the sheriff's deputy
with no human intervention. The laws of physics, as we presently
understand them, do not allow for such a phenomenon.
¶20 Mr. Brantner also argues the evidence was insufficient
to prove the alternative method of establishing control, to wit,
through the exercise of indirect power over the pills. Upon arrest
in Kenosha County, he says, he lost his ability to direct the
disposition of the pills. He says the State's argument that he
"maintained possession of the pills solely by manifesting an intent
to exercise control over them" is nonsensical: "The State's claim
that Brantner maintained physical control over the pills through
the power of thought is odd. Brantner is unable to find any
authority from any jurisdiction holding that an individual
14
No. 2018AP53-CR
maintained constructive possession of an item on his person without
maintaining actual physical possession [of] it."
¶21 Mr. Brantner need not go far to find the authority he
believes does not exist. He already acknowledged that Wis JI——
Criminal 6030 (which he recommended to us) provides a second means
of establishing the control element of possession. Under Schwartz
and this jury instruction, a factfinder could conclude that Mr.
Brantner still controlled the pills after his arrest if he could
have exerted indirect power over them through the exercise of
authority, direction, or command. If he had wanted to avoid venue
in Fond du Lac County, he could have asked the detectives (while
they were all still in Kenosha County) to remove his boot because
he no longer wished to have on his person the contraband it
contained. The detectives surely would have been willing to assist
him in accomplishing that goal, and in doing so they would have
demonstrated that Mr. Brantner had indirect power over the pills
in his boot. Mr. Brantner dismisses this as a Hobson's choice:
"If Brantner was required to tell the officers about the pills to
terminate his possession of them, then Brantner was effectively
required to choose between the protections of the right to remain
silent and the right to venue." But that is not true at all. Mr.
Brantner has the right to proper venue, not venue in Kenosha County
come what may. He chose to maintain the secrecy of the pills,
which inevitably led to their presence in Fond du Lac County. And
upon arrival in Fond du Lac County, he could have made the request
he chose not to make in Kenosha County. The fact that he chose to
15
No. 2018AP53-CR
remain silent does not mean he did not have indirect power over
the pills, it just means he decided not to exercise it.
¶22 We conclude the evidence was such that the jury could
determine that Mr. Brantner possessed the pills in Fond du Lac
County beyond a reasonable doubt, which made venue in that county
proper. Mr. Brantner admittedly knew of the pills' presence in
his boot. And he exercised direct physical power over them when
he handed his drug-laden boot to the officials during the booking
process. He also had indirect power over the pills even after the
arrest because he could have requested the detective's assistance
in ridding himself of the contraband's presence. The fact that he
chose not to exercise that indirect power does not mean he lacked
control over the pills. For these reasons, we affirm the court of
appeals with respect to the venue issue.12
B. Multiplicity
¶23 The State charged Mr. Brantner with (amongst other
offenses) possession of 20mg oxycodone pills (Count 1), and 5mg
oxycodone pills (Count 3), both in violation of Wis. Stat.
§ 961.41(3g)(am). Mr. Brantner says these counts are
12 Mr. Brantner also says the Wisconsin and United States
Constitutions guaranteed to him the right to a trial in Kenosha
County, not Fond du Lac County. See, e.g., Wis. Const. art. I,
§ 7 ("In all criminal prosecutions the accused shall enjoy the
right to . . . a speedy public trial by an impartial jury of the
county or district wherein the offense shall have been committed;
which county or district shall have been previously ascertained by
law."). But he also recognized, as he must, that these rights
were dependent on the location at which he committed the offenses.
As demonstrated above, he committed them in both Kenosha and Fond
du Lac Counties. Consequently, venue in Fond du Lac County was
consistent with his asserted constitutional rights.
16
No. 2018AP53-CR
multiplicitous because § 961.41(3g)(am) proscribes possession of
this drug without regard to the dosage of the pills. We agree.
¶24 Claims are multiplicitous when the State charges a
defendant more than once for the same offense. State v. Ziegler,
2012 WI 73, ¶59, 342 Wis. 2d 256, 816 N.W.2d 238; State v. Rabe,
96 Wis. 2d 48, 61, 291 N.W.2d 809 (1980) ("Multiplicity arises
where the defendant is charged in more than one count for a single
offense."). Such charges violate our state and federal
constitutions because they place the defendant in jeopardy of
multiple convictions for the same offense. Ziegler, 342
Wis. 2d 256, ¶59 ("The Double Jeopardy Clause of the Fifth
Amendment of the United States Constitution and its parallel
provision of the Wisconsin Constitution, Article I, Section 8(1),
prohibit multiple punishments for the same offense."). Charges
are not multiplicitous, however, when the statutes "authorize
cumulative punishments for the same offense." State v. Davison,
2003 WI 89, ¶¶36-37, 263 Wis. 2d 145, 666 N.W.2d 1 ("In situations
where the legislature intends to authorize cumulative punishments
for the same offense, we no longer say that the charges are
'multiplicitous' or that they violate double jeopardy. Use of the
term 'multiplicitous' should be limited to situations in which the
legislature has not authorized multiple charges and cumulative
punishments.").
¶25 "We review multiplicity claims according to a well-
established two-pronged methodology." Ziegler, 342 Wis. 2d 256,
¶60. First, we employ the "elements-only" test to determine
whether the offenses are identical in both law and fact. Id.,
17
No. 2018AP53-CR
(citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).
The result of this step determines whether we will presume, in the
second step of the analysis, that the statutes provide for
cumulative punishment. Davison, 263 Wis. 2d 145, ¶¶43-44. If the
offenses are identical in law and fact, we presume "that the
legislature did not intend to permit multiple punishments."
Patterson, 329 Wis. 2d 599, ¶15. "The State may rebut that
presumption only by a clear indication of contrary legislative
intent." Ziegler, 342 Wis. 2d 256, ¶61. If the offenses differ
in law or fact, then they are not the "same" for double jeopardy
purposes, and we therefore presume that the statutes allow for
cumulative punishment. Patterson, 329 Wis. 2d 599, ¶15. The
defendant can overcome the presumption if he can prove that,
notwithstanding the separate offenses, "the legislature did not
intend to authorize cumulative punishments." Ziegler, 342 Wis. 2d
256, ¶62. If it did not, then there has been a due process
violation as opposed to a double jeopardy violation. Id.
1. The "Elements-Only" Analysis
¶26 Mr. Brantner says the offenses described in Counts 1 and
3 of the State's Complaint are the same both in law and in fact
because they both charge him with possessing oxycodone contrary to
Wis. Stat. § 961.41(3g)(am). Offenses are identical in law "if
one offense does not require proof of any fact in addition to those
which must be proved for the other offense." Ziegler, 342
Wis. 2d 256, ¶60. They are identical in fact unless they are
"separated in time or are of a significantly different nature."
State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980). To be
18
No. 2018AP53-CR
"separate in time" means that "there was sufficient time for
reflection between the acts such that the defendant re-committed
himself to the criminal conduct." Multaler, 252 Wis. 2d 54, ¶56.
Charges are "'different in nature' even when they are the same
types of acts as long as each required 'a new volitional departure
in the defendant's course of conduct.'" Id., ¶57.
¶27 We begin with assessing whether the offenses described
in Counts 1 and 3, both of which charged Mr. Brantner with
violating Wis. Stat. § 961.41(3g)(am), are identical in law. This
statute 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
the analog.
§ 961.41(3g). The statute goes on to distinguish between different
types of controlled substances to determine the gravity of the
offense. According to Wis. Stat. § 961.16(2)(a)11., the pills
referenced in both Counts 1 and 3 were Schedule II narcotic drugs,
which comprise (inter alia), "[a]ny material, compound, mixture or
preparation which contains any quantity" of oxycodone. (Emphasis
added.) Possession of Schedule II narcotic drugs (such as
oxycodone) is a Class I felony:
(am) Schedule I and II narcotic drugs. If a person
possesses or attempts to possess a controlled substance
included in schedule I or II which is a narcotic drug,
or a controlled substance analog of a controlled
substance included in schedule I or II which is a
narcotic drug, the person is guilty of a Class I felony.
19
No. 2018AP53-CR
§ 961.41(3g)(am). Because our statutes proscribe possession of
pills without regard to the amount of oxycodone they might contain,
there is no legal distinction between possessing a pill containing
20mg of oxycodone as opposed to one containing only 5mg of
oxycodone. That, however, is the only difference between Counts
1 and 3. As a result, neither count "require[d] proof of any fact
in addition to those which must be proved for the other offense."
See Ziegler, 342 Wis. 2d 256, ¶60. We must therefore conclude
that the offenses described in Counts 1 and 3 are identical in
law.
¶28 The State says Counts 1 and 3 are different in fact
because they were different in both time and nature. It says they
are different in nature because it "had to prove that Brantner
committed two different volitional acts of possession by obtaining
two different types of oxycodone pills from different sources,
showing that each possession required 'a new volitional departure'
by Brantner." See, e.g., Multaler, 252 Wis. 2d 54, ¶57 (explaining
that charges are "'different in nature' . . . as long as each
required 'a new volitional departure in the defendant's course of
conduct.'"). The counts are different in time, the State says,
because "Brantner either had to have taken possession of the 20mg
oxycodone pills at some point when Michael[13] had a prescription
for 20mg oxycodone pills, or obtained them from somewhere else."
Either way, the State says, "Brantner had to complete the act of
Michael is Mr. Brantner's brother, and it is the State's
13
theory that Mr. Brantner stole the pills from him.
20
No. 2018AP53-CR
taking possession of each type of pill separately, therefore those
acts were separate in time . . . ." See, e.g., Multaler, 252
Wis. 2d 54, ¶56 (explaining that offenses are different in time if
"there was sufficient time for reflection between the acts such
that the defendant re-committed himself to the criminal
conduct.").
¶29 Although the State is correct about what it had to prove,
it is not possible to reconcile its conclusion with the evidence
of record.14 The evidence certainly shows that Mr. Brantner
possessed 20mg and 5mg oxycodone pills. But nothing in the record
directly establishes that Mr. Brantner obtained the different
dosages via "two different volitional acts" or temporally
separated acts of acquisition. To remedy this dearth of evidence,
the State proposed that we conclude the offenses were different in
both nature and time through necessary inference from the evidence
of record.
¶30 The State's inferential reasoning cannot, by itself,
connect its premises to its conclusions. Instead, its argument
outsourced most of the evidentiary work to some pretty hefty
The record says very little about how Mr. Brantner obtained
14
the pills. At trial, the jury heard a recording of a phone call
between Mr. Brantner and his significant other in which Mr.
Brantner commented that he had gotten the pills from his brother,
Michael, and that he'd had the pills since 2010. Detective Vergos
testified that he attempted to ascertain the source of the pills
by searching Michael's home. He testified that he discovered
prescription pill bottles that matched four of the five types of
pills and dosages found in Mr. Brantner's boot, but that he found
no evidence that Michael had a prescription for 20mg oxycodone
pills.
21
No. 2018AP53-CR
assumptions. The foundational assumption is that Mr. Brantner
could not have obtained the 20mg and 5mg pills at the same time.
It derives this assumption from one of two alternative scenarios,
both of which rely on their own chain of assumptions. The first
scenario started with the assumption that Mr. Brantner obtained
all of the oxycodone pills from his brother's house. The State
further assumed that his brother never had both 20mg and 5mg pills
in the house at the same time. This assumption, however, required
supporting assumptions of its own. So it assumed that the brother
obtained both the 20mg and 5mg pills from valid prescriptions. It
then observed that, when Mr. Brantner was arrested, his brother
had a prescription for only the 5mg oxycodone pills. From this
the State assumed that the 20mg pills must have come from a prior
(and now superseded) prescription. The State had to also assume
that the brother did not fill the prescription for the 5mg pills
until he had used all of the 20mg pills from the assumed previous
prescription. If we stack up all of these assumptions, the State
says, we reach the conclusion that Mr. Brantner's brother never
had 20mg and 5mg pills in the house at the same time. And that
necessarily means Mr. Brantner had to have acquired the pills at
different times.
¶31 Alternatively, the State allows for the possibility that
the 20mg and 5mg pills actually were in the brother's house at the
same time. In this scenario, the State assumes that the brother
assiduously kept his 20mg and 5mg pills separated into their
respective, closed containers. To obtain both types of pills,
therefore, Mr. Brantner would have had to open two separate
22
No. 2018AP53-CR
containers to access the drugs, thereby introducing a temporal
distinction (however small) between the acquisitions.
¶32 The State needs all of these assumptions (or their
alternatives) to be true to operationalize its "necessary
inference" argument. But one need not be a cynic to recognize
that the State's assumptions describe a world that is substantially
neater and more precise than the one in which we live. It is
altogether possible that each of the State's assumptions (or its
alternatives) reflect the process by which Mr. Brantner actually
obtained the 20mg and 5mg oxycodone pills. But there is nothing
to say that any of the assumptions is necessarily true. For
example, Mr. Brantner's brother could have obtained the 20mg pills
without a prescription, making it possible for him to have the
20mg and 5mg pills in the house at the same time. Or he may have
had prescriptions for both 20mg and 5mg pills that overlapped; or
he may not have finished the 20mg pills before filling the
prescription for the 5mg pills, either of which circumstance would
make it possible for both dosages to be present in the house at
the same time. And nothing says that, assuming Mr. Brantner's
brother had 20mg and 5mg pills in the house at the same time, he
would keep them carefully separated into different containers.
And even if he did, nothing says Mr. Brantner did not just swipe
the containers at the same time and only later emptied them into
a bag for transport in his boot.
¶33 All of this means that, according to the record before
us, there is nothing to suggest that Mr. Brantner must have
obtained the 20mg and 5mg pills separately. If Mr. Brantner
23
No. 2018AP53-CR
obtained all the oxycodone pills simultaneously, it is not possible
for there to have been different volitional departures in his
course of conduct (meaning the offenses are not "different in
nature"). And simultaneous acquisition also necessarily means
they cannot be "different in time." Nothing in the record suggests
that the State's assumptions describe the method by which Mr.
Brantner obtained the oxycodone pills. So, unless we credit those
assumptions (and we do not), the offenses described in Counts 1
and 3 are the same in fact.15
¶34 We conclude that, pursuant to the Blockburger elements-
only test, the offenses described in Counts 1 and 3 are identical
in law and fact.
2. Cumulative Punishment
¶35 Our resolution of the elements-only test means we
presume our statutes do not permit multiple punishments for the
offenses described in Counts 1 and 3. See Patterson, 329
Wis. 2d 599, ¶15. However, we allow the State to "rebut that
presumption . . . by a clear indication of contrary legislative
intent." Ziegler, 342 Wis. 2d 256, ¶61; see also Whalen v. United
15It is worth noting that there is no easily discernible
limiting principle to the State's inferential assumptions. For
example, the State's reasoning would appear to support charging
Mr. Brantner with 37 counts of possessing oxycodone pills——one
count for each of the 35 20mg pills, and one count for each of the
5mg pills. The State could simply postulate that Mr. Brantner
took one pill from his brother each day to reduce the chances of
discovery, thereby resulting in an assumed total of 37 individual
volitional acts. The State's reasoning would require no evidence
that Mr. Brantner obtained the pills like this, only that he could
have obtained them in that manner.
24
No. 2018AP53-CR
States, 445 U.S. 684, 692 (1980) ("Accordingly, where two
statutory provisions proscribe the 'same offense,' they are
construed not to authorize cumulative punishments in the absence
of a clear indication of contrary legislative intent.").
¶36 In this case, however, we need not perform this analysis.
The State's argument with respect to this aspect of the
multiplicity rubric anticipated success in demonstrating that the
offenses described in Counts 1 and 3 are different in fact. If it
had succeeded, of course, Mr. Brantner would have borne the burden
of rebutting the presumption that the statutes allow for multiple
punishments. So the State focused its argument entirely on
explaining why Mr. Brantner could not rebut the presumption. As
it turns out, the State did not succeed in proving the offenses
are different in fact, and its brief did not provide for such a
contingency. So Mr. Brantner enjoys the presumption that the
statutes do not allow for multiple punishments for the same
offense, and the State has offered no argument against that
presumption. We will not develop an argument where the State has
chosen not to. See Clean Wis., Inc. v. Pub. Serv. Comm'n of Wis.,
2005 WI 93, ¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 ("We will
not address undeveloped arguments."). Therefore, we conclude that
the presumption remains and, consequently, that Counts 1 and 3 are
multiplicitous.16
16The State concedes "that if one of the oxycodone charges
is vacated [as multiplicitous], then the corresponding bail
jumping charge must be vacated as well." The parties did not fully
address this issue before the court, and we will therefore rely on
the State's concession in this case rather than deciding the issue.
25
No. 2018AP53-CR
C. Resentencing
¶37 The circuit court fashioned a complex sentence based on
the ten charges for which the jury returned a guilty verdict. In
particular, the court sentenced Counts 1 and 3 differently, despite
both having been oxycodone-related charges, because it believed it
was "more logical and fair to consider one [of the two oxycodone
charges]——Count 1 for prison." However, because Counts 1 and 3
are multiplicitous, Mr. Brantner argues that "[t]he appropriate
remedy . . . is resentencing on all counts." The State says the
appropriate remedy is to remand the matter to the circuit court to
allow it to determine whether resentencing is appropriate. We
agree with the State.
¶38 "[W]hen a defendant is convicted of and sentenced for
multiple offenses and one conviction and sentence is vacated
because it was held to be multiplicitous, the validity of all
sentences is implicated and resentencing on the remaining
convictions is permissible." State v. Sinks, 168 Wis. 2d 245,
255, 483 N.W.2d 286 (Ct. App. 1992) (citing State v. Martin, 121
Wis. 2d 670, 672-73, 360 N.W.2d 43 (1985)). Accordingly, "the
trial court has the inherent power to resentence, but it need not
exercise that power." Sinks, 168 Wis. 2d at 255. We therefore
remand the matter to the circuit court to exercise its discretion
in determining whether resentencing is appropriate in light of our
conclusion that Counts 1 and 3 are multiplicitous.
IV. CONCLUSION
¶39 We affirm the court of appeals with respect to its
conclusion that venue in Fond du Lac County was proper. We reverse
26
No. 2018AP53-CR
the court of appeals with respect to its conclusion that Counts 1
and 3 were not multiplicitous and remand to the circuit court for
further proceedings consistent with this opinion.
¶40 By the Court.—The decision of the court of appeals is
affirmed in part, reversed and part, and the cause is remanded to
the circuit court for further proceedings consistent with this
opinion.
¶41 BRIAN K. HAGEDORN, J., did not participate.
27
No. 2018AP53-CR.pdr
¶42 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). Part of
our obligation as supreme court justices is to take complicated
legal issues and decide them in a way that simplifies and explains
them. I write in concurrence because the majority opinion does
the opposite. It takes a simple issue, possession, and makes it
complicated. It also has the potential to confuse the meaning of
possession, which is employed throughout Wisconsin's criminal
code. Therefore, although I agree that possession was shown at
trial, I join none of the majority's discussion of possession. I
do, however, join the majority opinion's discussion and decision
on the double jeopardy issue. Accordingly, I respectfully concur.
I. BACKGROUND
¶43 On March 27, 2015, Fond du Lac County Sheriff's Office
detectives took Dennis Brantner into custody on an arrest warrant
as he was leaving the Kenosha County Courthouse. Upon arresting
Brantner, Detective Vergos asked Brantner if he had anything on
him that the detective should know about before he patted him down
for the detectives' safety. Brantner did not disclose 54 pills,
controlled substances, which he had placed in his left boot.
¶44 Brantner was handcuffed to a belly belt for the trip to
Fond du Lac County. When the detectives and Brantner arrived at
the Fond du Lac County Jail, Brantner said he had cramps in his
legs. He then asked to go to the bathroom. His handcuffs were
removed, and Detective Vergos took him to the bathroom. Detective
Vergos remained with Brantner until he was finished. Detective
Vergos then took Brantner to the booking area where Brantner was
1
No. 2018AP53-CR.pdr
told to remove his outer shirt and boots. Brantner took off his
outer shirt, but said that he had cramps in his legs and indicated
difficulty in removing his left boot. Detective Vergos offered to
help him remove his boot. Brantner refused the detective's help
and removed both boots himself. He gave them to the booking
officer, who found a baggie containing 54 pills inside Brantner's
left boot.
¶45 At trial, Detective Vergos testified and a video
recording of Brantner's intake was played for the jury. The
circuit court also admitted into evidence and played audios of
Brantner's jail phone calls, where he admitted that he got the
pills from his brother, Michael.
¶46 The State charged Brantner with three counts of
possession of narcotic drugs and two misdemeanors for the other
pills in the baggie. Before trial, Brantner contested venue in
Fond du Lac County, asserting that he did not possess the drugs in
Fond du Lac County. He asserted that because he was handcuffed to
a belly belt during his transport to Fond du Lac County, he could
not control the pills in his boot and therefore, he did not possess
them. He contends that the last time he possessed them was in
Kenosha County before he was handcuffed.
¶47 At trial, the circuit court gave the following jury
instruction on the offense of possession of a controlled substance:
[T]he Wisconsin Statutes make[] it a crime to possess a
controlled substance.
Before you may find the defendant guilty of this
offense, the State must prove by evidence which
satisfies you beyond a reasonable doubt that the
following three elements were present.
2
No. 2018AP53-CR.pdr
One, the defendant possessed a substance oxycodone,
"OP" "20" 20 milligrams.
"Possessed" means that the defendant knowingly had
actual physical control of a substance.
A substance is also in a person's possession if it
is in an area over which the person has control and the
person intends to exercise control over the substance.
. . . .
Two, the substance was oxycodone. Oxycodone is a
controlled substance whose possession is prohibited by
law, without a valid prescription.
Three, the defendant knew or believed that the
substance was oxycodone, a controlled substance, and the
defendant did not have a valid prescription.
You cannot look into a person's mind to determine
knowledge or belief. Knowledge or belief must be found,
if found at all, from the defendant's acts, words, and
statements, if any, and from the facts and circumstances
in this case bearing upon knowledge or belief.
A criminal case is required to be tried in the
county where the crime was committed.
If you are satisfied beyond a reasonable doubt that
defendant committed the offense charged in Fond du Lac
County, you should find the defendant guilty.
The definition of possession in the instructions given at trial is
word-for-word consistent with Criminal Jury Instruction 920, which
is employed to define possession throughout the criminal
code: "'Possession' means that the defendant knowingly had actual
physical control of the item." Wis JI——Criminal 920 (2000).
II. DISCUSSION
¶48 Brantner's arguments about possession are focused on
trying to avoid venue in Fond du Lac County. Sufficiency of the
evidence is the standard used for deciding whether the State proved
facts sufficient to support venue in Fond du Lac County. State v.
3
No. 2018AP53-CR.pdr
Corey J.G., 215 Wis. 2d 395, 407-08, 572 N.W.2d 845 (1998). An
appellate court "will not reverse a conviction based on the failure
of the State 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. Swinson, 2003 WI App 45,
¶19, 261 Wis. 2d 633, 660 N.W.2d 12.
¶49 Brantner grounds his venue argument in the contention
that he did not possess the pills in Fond du Lac County because he
could not reach them while he was handcuffed. His argument misses
the mark for several reasons. First, even if one were to buy
Brantner's argument that he could not possess the pills while
handcuffed, which I do not, handcuffs were removed when he got to
the Fond du Lac County Jail. His antics about leg cramps and
difficulty removing his left boot demonstrate physical control of
the pills that he knew were in his boot. Furthermore, it was
Brantner who handed his left boot containing the pills to the
booking clerk.
¶50 Second, Brantner has never objected to the correctness
of those instructions——either at trial or in his petition for
review. Nor does he bring a claim of ineffective assistance based
on an erroneous jury instruction. Therefore, before us, the
instructions on possession, set forth above, are uncontroverted.
State v. Shea, 221 Wis. 2d 418, 430, 585 N.W.2d 662 (1998). Third,
the jury made a finding of possession consistent with the circuit
court's instructions on possession, i.e., that Brantner knowingly
had actual physical control of the pills. It was uncontroverted
4
No. 2018AP53-CR.pdr
that the pills were in Brantner's boot, pills that he obtained
from his brother, Michael. Pills in a boot are not different from
the facts in State v. Harris, 190 Wis. 2d 718, 721, 528 N.W.2d 7
(Ct. App. 1994), where Harris was charged in Milwaukee County with
possession when cocaine was discovered in his shoe during a
probation search.
¶51 Fourth, possession has "a consistent, established
meaning throughout the Wisconsin criminal statutes." State v.
Peete, 185 Wis. 2d 4, 16, 517 N.W.2d 149 (1994) (giving essentially
the same instruction in regard to possession as the circuit court
gave here). There was sufficient evidence for a jury reasonably
to find that Brantner knowingly had actual physical control of the
pills in Fond du Lac County. That he also knowingly had actual
physical control of the pills in Kenosha County does not diminish
the evidence of possession in Fond du Lac County. As Wis. Stat.
§ 971.19(2) provides: "Where 2 or more acts are requisite to the
commission of any offense, the trial may be in any county in which
any of such acts occurred." State v. Elverman, 2015 WI App 91,
¶38, 366 Wis. 2d 169, 873 N.W.2d 528.
¶52 Finally, Brantner knowingly had actual physical control
of the pills in his boot in Fond du Lac County, which boot was on
his foot until he took it off and handed it to the booking agent.
Brantner's ruse that he was having leg cramps and therefore had
difficulty removing his boot only goes to confirm that he knew the
pills were in his boot when he was in Fond du Lac County, and he
was exerting control over them so that he would not be required to
hand them over to the booking agent. The uncontested facts
5
No. 2018AP53-CR.pdr
presented at trial were sufficient evidence for a jury to find
that Brantner "knowingly had actual physical control" of the pills
until he gave his boot to the officer at the Fond du Lac County
Jail.
III. CONCLUSION
¶53 The majority opinion takes a simple issue, possession,
and makes it complicated. The majority opinion also has the
potential to confuse the meaning of possession, which is employed
throughout Wisconsin's criminal code. Therefore, although I agree
that possession was shown at trial, I join none of the majority's
discussion of possession. I do, however, join the majority
opinion's discussion and decision on the double jeopardy issue.
Accordingly, I respectfully concur.
¶54 I am authorized to state that Justice ANNETTE KINGSLAND
ZIEGLER joins this concurrence.
6
No. 2018AP53-CR.pdr
1