Oct. 2, 2009 – A statutory exception permitting the criminal prosecution of a 17-year-old does not operate to remove a 17-year-old from the protection of the statute criminalizing “contributing to the delinquency of a child,” the Wisconsin Court of Appeals held.

In State v. Patterson, 2008AP1968, Patrick Patterson gave or sold the controlled narcotic Oxycodone to 17-year-old Tanya S., who died as a result of ingesting the drug. Among other crimes, a jury convicted Patterson of first-degree reckless homicide by delivery of a controlled substance under Wis. Stat. § 940.02(2)(a) and contributing to the delinquency of a child with death as a consequence under Wis. Stat. § 948.40(4)(a).

In a post-conviction action, Patterson argued that he could not have contributed to the delinquency of Tanya S. because it is legally impossible to contribute to the delinquency of a person who is 17-years-old or older.

Wis. Stat. § 938.02 defines “delinquent” as a “juvenile who is 10 years of age or older” and “less than 18 years of age,” except for a 17-year-old who is “alleged to have violated [a law].” Because Tanya S. was criminally possessing the drugs he gave her, she should not be categorized as a “delinquent” within the meaning of § 938.02 (3m), Patterson argued.

“We will assume for purposes of Patterson’s argument, that the definition of ‘juvenile’ in Wis. Stat. § 938.02 applies for purposes of defining ‘delinquency’ in Wis. Stat. § 948.40,” the court wrote. “Nonetheless, Patterson’s statutory analysis ignores the fact that a seventeen-year-old is only excepted from the definition of ‘juvenile’ for a single purpose, the ‘purpose of investigating or prosecuting’ the ‘person who is less than 18 years of age.’

“Here, the question is not whether Tanya S. is a ‘juvenile’ for purposes of prosecuting her, but instead for purposes of prosecuting Patterson,” the court continued. “Thus, Tanya S. was a ‘juvenile’ for purposes of Patterson’s prosecution for contributing to the delinquency of a child with death as a consequence.”

Cumulative punishment

Patterson also argued that reckless homicide by delivery of a controlled substance and contributing to the delinquency of a child with death as a consequence are multiplicitous.

The court of appeals disagreed, applying a two-part test found in State v. Eaglefeathers, 2009 WI App 2. Under the first prong, the court asked whether the offenses were identical in law and fact, finding that they were not. Accordingly, the court explained, the presumption under the second prong inquiring into legislative intent is that lawmakers purposefully authorized cumulative punishments.

“We determine legislative intent for purposes of a multiplicity claim using four factors: (1) statutory language; (2) legislative history and context; (3) the nature of the conduct involved; and (4) the appropriateness of multiple punishments,” the court explained.

To demonstrate legislative intent in his favor, Patterson cited Wis. Stat. § 939.66, which provides that, “Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both.” The statute then lists criminal homicide among those crimes within its scope.

But the court of appeals said this argument was made unsuccessfully before the Wisconsin Supreme Court in State v. Davison, 2003 WI 89.

Turning to the third legislative intent factor, the court of appeals rebuffed Patterson’s argument that the proscribed conduct in question – giving drugs to the victim and causing her death – is the same for both crimes. “The fact that the underlying conduct is the same is not, by itself, enough to show that the legislature intended only one punishment,” the court wrote. “All it shows here is that the two offenses are identical in fact, a point that is not in dispute.”

Analyzing the fourth factor, the court explained that the first-degree reckless homicide charge targets the particular circumstance of this case, distributing a controlled substance, without concerning children at all. By contrast, contributing to the delinquency of a child “focuses on the protection of children.”

Accordingly, the court concluded, the two criminal statutes address “two different categories of proscribed conduct that differ markedly in their essential nature.”

“That Patterson’s particular conduct happens to fall within a relatively limited area covered by both statutes does not show that the legislature intended only one punishment,” the court remarked.