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Venue for obstruction in wrong county

By: dmc-admin//August 30, 2010//

Venue for obstruction in wrong county

By: dmc-admin//August 30, 2010//

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Obstructing an officer must be prosecuted in the county where the act of obstruction occurs, not in the county of the underlying investigation being obstructed.

The Wisconsin Court of Appeals on Aug. 17 reversed the conviction of a defendant who gave false information in Barron County, to an officer from Chippewa County, because the charge should have been tried in Barron County.

In July 2007, a burglary was discovered at the Cornell community center in Chippewa County. The theft was investigated by a county deputy sheriff. The deputy spoke to Donald L. Schultz, who denied involvement.

The investigation was later taken over by the Cornell Police Department. An officer of that department later interviewed Schultz again, this time in Barron County.

As a result of the investigation, Schultz was charged in Chippewa County with burglary, felony theft, and two counts of obstructing an officer. The first obstruction count was based on his statements to the deputy in Chippewa County; the second was based on his statements to the police officer in Barron County.

The trial court refused to give a venue instruction to the jury on the second count, concluding that Schultz failed to timely raise the issue. The jury acquitted him of burglary, but found him guilty of the other three charges.

Schultz appealed, and, in an opinion by Judge Edward R. Brunner, the Court of Appeals reversed the obstruction charge stemming from the statements made in Barron County.

The court first held that it was error not to instruct the jury on venue: “A defendant need not challenge venue, or request a venue instruction, before trial; instead, he or she may put the state to its proof and determine whether an instruction is warranted after hearing the evidence.”

The court next considered whether to remand for a new trial or to direct that a judgment of acquittal be entered.

The court concluded that the evidence was insufficient to support a conviction for obstructing an officer, and thus, a new trial is precluded by double jeopardy.

The state argued that venue was appropriate in Chippewa County pursuant to sec. 971.19(2), which 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.”

But the court found that the only requisite act was Schultz’ knowing obstruction. “Consequently,” the court wrote, “the obstruction statute does not contemplate venue in any county where the officer may take further investigative steps.”

Accordingly, the court held the evidence was insufficient, and that double jeopardy precludes retrial.

Case analysis

The venue statute, sec. 971.19, contains numerous subsections permitting venue in a county other than the one in which the crime was committed, and obstructing an officer would be an appropriate crime for such an exception.

Ultimately, where obstruction consists of giving false information to mislead an officer, the effect of the crime is felt in the county in which the underlying crime occurred, not where the act of obstruction occurs.

A special exception for obstruction would also eliminate a possible anomaly in the statute — had the obstruction occurred out of state, rather than in another county of Wisconsin, arguably, venue would have been proper in Chippewa County.

Section 971.19(6) provides, “If an offense is commenced outside the state and is consummated within the state, the defendant may be tried in the county where the offense was consummated.”

The defendant in such a case could argue that the crime is “consummated” as soon as he stops giving false information to the officer. But the state could reasonably argue that the definition of “consummated” is “realized” or “achieved,” and that occurs only in the Wisconsin county where the underlying investigation is based.

However, this interpretation might be foreclosed by the statement in the court’s opinion that, “the obstruction statute does not contemplate venue in any county where the officer may take further investigative steps.”

The state would have to make a creative argument why this language should be limited to venue pursuant to subsec. 971.19(2), and is not applicable to venue pursuant to subsec. (6).

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