decision below: 2009 WI App 161; for Patterson: David R. Karpe
Issues:
Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?
Can one contribute to the delinquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?
Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”
Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?
§ 939.66(2) says that one “less serious type of criminal homicide” is a lesser included of a more serious homicide. Can, therefore, Patterson be convicted of delinquency resulting in death and reckless homicide (same act, same victim, of course)? The court of appeals thought so, reasoning that the logic of State v. Jimmie Davison, 2003 WI 89 (“§ 939.66(2m) can reasonably be interpreted as allowing two convictions for battery as long as two battery crimes have been charged”) transfers to subsec. (2).
