COURT OF APPEALS DECISION DATED AND RELEASED February 25, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
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No. 96-2670-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
JACK D. THOMAS,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Florence County:
ROBERT A. KENNEDY, Judge. Reversed.
MYSE, J. The State of Wisconsin
appeals an order dismissing six of the seven counts of intentionally aiding and
abetting hunting deer out of season, contrary to § 939.05(2), Stats., and Wis. Adm. Code § NR 10.01(3)(e), and six of the seven counts
of intentionally aiding and abetting shining deer while in the possession of a
firearm, contrary to §§ 939.05(2) and 29.245(3)(a), Stats. Thomas was
also charged with seven counts of failing to tag a deer which are not at issue
in this appeal. The State argues that
the charges are not multiplicitous and should not have been consolidated. Because each charge represented a separate
activity, the charges are not multiplicitous and we reverse the order.
The facts are undisputed. During the night of December 28, 1995,
Thomas and two other men went hunting for deer. The men drove in a pickup truck shining the fields for deer. Upon spotting the deer, the men would fire
directly from the pickup truck and then mark the spot with a stake in the road
so they could find the poached deer later.
This poaching went on from approximately 7 p.m. to 11 p.m. The group killed seven deer in this time, six
of which were shot by the defendant.
The men then picked up the seven poached deer, transported them to a
farm and slaughtered them.
From the above facts,
Thomas was charged with seven counts each of intentionally aiding and abetting
in the shining of deer, intentionally aiding and abetting in the hunting of
deer out of season, and intentionally aiding and abetting in the failure to tag
a deer. Thomas argued that six of the
counts for shining and six of the counts for hunting were multiplicitous and
moved to dismiss them. The trial court
agreed the charges were multiplicitous and dismissed the counts, leaving one
count of shining and one count of hunting to be prosecuted. The State now appeals.
Charging a single
offense as multiple counts violates the double jeopardy clause of the state and
federal constitutions. State v.
Rabe, 96 Wis.2d 48, 61, 291 N.W.2d 809, 815 (1980). This court independently reviews questions
of constitutional fact which require the "application of constitutional
principles to the facts as found."
State v. Hirsch, 140 Wis.2d 468, 470, 410 N.W.2d 638, 639
(Ct. App. 1987). Therefore, we review
the issues presented in this appeal without deference to the trial court's
determination.
Wisconsin uses a
two-prong test to determine whether charges are multiplicitous. Id. at 471, 410 N.W.2d at
639. First, the court must determine
whether the offenses are "identical in law and fact." Id. (quoting Rabe,
96 Wis.2d at 63, 291 N.W.2d at 816). If
so, the charges are multiplicitous and may not be charged as separate
offenses. Second, even if the charges
are different in law and fact, they may still be multiplicitous if the
legislature intended the charges to be brought as a single count. Hirsch, 140 Wis.2d at 471-72,
410 N.W.2d at 639-40. The overall test
is one of "fundamental fairness or prejudice to the defendant." State v. Eisch, 96 Wis.2d 25,
34, 291 N.W.2d 800, 805 (1980).
Our first inquiry is
whether the offenses are identical in law and fact. This court concludes that the counts, as additional counts of the
same offense, are identical in law. The
offenses, however, are different in fact.
In determining whether charged acts are different in fact, Wisconsin
applies the "additional fact" test.
Rabe, 96 Wis.2d at 63, 291 N.W.2d at 816. Under this test, each count requires proof
of an additional fact which the other count or counts do not. Id. When the alleged additional "facts are either separated in
time or are of a sufficiently different nature," they satisfy the
additional fact test. Eisch,
96 Wis.2d at 31, 291 N.W.2d at 803.
Turning to the counts
for intentionally aiding and abetting the shining of deer, Thomas contends that
the shining of deer is an ongoing, continuous activity. This court disagrees. The statute provides: "No person may
use or possess with intent to use a light for shining deer or bear while the
person is hunting deer or bear or in possession of a firearm, bow and arrow or
crossbow." Section 29.245(3)(a), Stats.
The statute defines "shining" as the "casting of rays of
a light on a field, forest or other area for the purpose of illuminating,
locating or attempting to illuminate or locate wild animals." Section 29.245(1)(d), Stats.
Under the statute, each
act of shining is a separate and distinct activity. Once a person casts rays of light onto a field or forest with the
requisite intent, he is guilty of shining.
This activity is not ongoing as it concludes every time the light is
turned off or new area is illuminated.
Thomas contends that the State's theory leads to an absurdity in that if
a person illuminates a field which contains fifty deer, then there can be fifty
counts of shining. This is not so. The number of animals illuminated is not an
element of the statute. Rather, the
statute focuses solely upon the defendant's conduct in casting rays of light
onto fields, forests or other areas to locate or illuminate wild animals.
The next inquiry is
whether the legislature intended the shining counts to be brought as a single
count. When determining legislative
intent for multiplicity purposes, this court examines four factors: "(1) the language of the statute; (2)
the legislative history and the context of the statute; (3) the nature of the
proscribed conduct; and (4) the appropriateness of multiple punishment for the
conduct." State v. Tappa,
127 Wis.2d 155, 165, 378 N.W.2d 883, 887 (1985). The statute itself does not describe the intended unit of
prosecution. The statute also does not
provide for any gradation in penalty for numerous offenses. See § 29.99, Stats. The lack of
gradations in a statute is viewed as indicating the legislature's intent to
have separate offenses charged. State
v. Grayson, 172 Wis.2d 156, 164, 493 N.W.2d 23, 27 (1992).
The context of the
statute and the appropriateness of the multiple punishment both indicate a
legislative intent to permit multiple charges.
The statute is designed to protect the State's wildlife by preventing
the shining of animals. Individuals will
not be deterred from shining deer if four hours of shining warrants only a single
count. Since the statute is designed to
prevent illegal hunting, to consolidate numerous incidents of shining into a
single count would undercut the purpose of the statute. Further, the nature of the proscribed
conduct warrants multiple punishments.
Each incident of shining deer is a distinct, separate activity. With each new shining incident, a defendant
is exhibiting a new intent to violate the statute requiring a new count. See id. at 165, 493
N.W.2d at 28. Therefore, because the
shining counts are not multiplicitous, the trial court erred in dismissing the
six counts of intentionally aiding and abetting the shining of deer.
We also conclude that
the counts for intentionally aiding and abetting in the hunting of deer are not
multiplicitous. Once again, the
additional fact test must be applied. Thomas argues that he did not hunt seven
times, rather, he simply aided in the killing of seven deer during a single
hunt. "Hunting" is
statutorily defined to include "shooting, shooting at, pursuing, taking,
catching or killing any wild animal or animals ...." Section 29.01(8), Stats. Applying the
language of the statute, we conclude that Thomas was not engaged in a single hunt. Once an animal has been killed, caught, or
even shot at, a hunt has taken place.
Thomas argues that hunting is a continuous activity subject only to a
single count. While hunting activities
may be ongoing in nature, each time Thomas shot, killed, or otherwise satisfied
the definition of hunting under § 29.01(8), he engaged in a separate hunt of a
different animal at a different time in a different place.
In this case, Thomas
aided in seven hunts. Thomas personally
shot six deer and assisted in the shooting of the seventh. Each time Thomas pointed his rifle and fired
at an animal, he hunted it. After each
firing, Thomas had the option to return home but instead decided to hunt
again. Each hunt, although similar
factually, was substantially different to satisfy the additional element
test. After each kill, a stake would be
placed in the road so the group could relocate the poached deer later. The three men would then locate additional
deer conceivably some time later as the entire incident took approximately four
hours. The sighting and shooting of or
at a different deer at a different time is sufficient to satisfy the additional
fact test. See Eisch,
96 Wis.2d at 31, 291 N.W.2d at 803.
For the same reason the
legislature did not intend the shining counts to be brought as a single count,
this court concludes that the legislature did not intend the hunting counts to
be brought as a single count. Because
the seven counts of intentionally aiding and abetting in hunting deer and the
seven counts of intentionally aiding and abetting in the shining of deer while
in the possession of a firearm are not
multiplicitous, the order dismissing the six counts of each is reversed.
By the Court.—Order
reversed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.