State v. Hibbard

404 Wis.2d 668

982 N.W.2d 105

2022 WI App 53

STATE of Wisconsin, Plaintiff-Respondent,

v.Terry L. HIBBARD, Defendant-Appellant.^†

Appeal No. 2020AP1157-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: June 16, 2022

Opinion Filed: September 21, 2022

On behalf of the defendant-appellant, the cause was submitted on the brief of Megan Sanders-Drazen, assistant state public defender, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sara-Lynn Shaeffer, assistant attorney general, Joshua L. Kaul, attorney general.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

NEUBAUER, J.

¶1 This appeal requires us to examine Wisconsin's "Len Bias" law, WIS. STAT. § 940.02(2)(a) (2017-2018),¹ which makes the "manufacture, distribution or delivery" of a controlled substance a first-degree reckless homicide offense if "another human being uses the controlled substance ... and dies as a result of that use," and WIS. STAT. § 939.05, which as relevant here makes a person liable for a criminal offense if the person "[i]ntentionally aids and abets" its commission.² A jury found Terry L. Hibbard guilty of first-degree reckless homicide, party to a crime, contrary to §§ 940.02(2)(a) and 939.05, as the result of his involvement in a drug deal that led to the death of his daughter from an overdose. Hibbard appeals the judgment of conviction and an order denying his postconviction motion, contending that the evidence to prove that he aided and abetted the seller's delivery of the drugs to his daughter, the buyer, was insufficient, or, if sufficient, that § 940.02(2)(a) is unconstitutionally vague as applied to aiders and abettors. We reject Hibbard's challenges and affirm the judgment and order.

BACKGROUND

¶2 The evidence presented at Hibbard's trial established the following facts. On Monday, July 10, 2017, the Ozaukee County Sheriff's Department responded to a report of a deceased person at Hibbard's residence. Upon arrival, the responding officer encountered Hibbard and his wife, who directed the officer to a bedroom in which Hibbard's 32-year old daughter, Taralyn, lay dead. A detective with the department responded to the scene and located: (1) a syringe near Taralyn's body which was later determined to contain heroin and fentanyl ; (2) a "drug kit" in the bedroom containing a lighter and additional syringes; and (3) Taralyn's cell phone. The detective also observed bruises and contusions on Taralyn's body that he suspected could have been injection sites. The medical examiner who performed an autopsy on Taralyn found heroin and fentanyl in her system and determined the cause of death to be acute mixed drug intoxication.

¶3 Another officer who responded to the scene spoke with Hibbard. Hibbard told the officer that Taralyn "did not have access to a vehicle" and did not drive. He also denied knowing that Taralyn was using drugs. Through further investigation, the officer learned that Taralyn had spent the weekend before her death with a friend at his residence in Sullivan, Wisconsin. Text messages on Taralyn's phone showed that she had communicated with Hibbard over the weekend about bringing drugs back to Hibbard's residence when she returned. The messages reflected Hibbard's interest in obtaining drugs. The messages also showed that Taralyn asked Hibbard to meet her at a fast food restaurant where she would be dropped off and to "[b]ring your pipe." Taralyn's phone also contained text messages between her and a person identified as "Cheese" about purchasing heroin.

¶4 After reviewing these messages, the police reinterviewed Hibbard, who told them that after picking up Taralyn on Sunday, July 9, he drove her to an apartment complex in Milwaukee where she purchased heroin from Cheese. Hibbard and Taralyn then returned to his residence, where she gave him some of the heroin. Taralyn was found dead in her bedroom the following morning.

¶5 The police identified Cheese as Davion Poe. Poe was arrested and ultimately convicted of reckless homicide. Following Poe's conviction, the police arrested Hibbard and charged him with first-degree reckless homicide, as party to a crime, in violation of WIS. STAT. §§ 940.02(2)(a) and 939.05. Hibbard pled not guilty and, after the close of evidence at trial, moved to dismiss the case arguing that the State had not established a prima facie case for liability under § 939.05 because there was no evidence that Hibbard had aided or abetted Poe. At most, Hibbard argued, the evidence showed that he had helped Taralyn obtain the drugs; it did not show that Poe was aware that Hibbard would assist him in delivering the drugs to Taralyn. The circuit court did not rule on the motion, saying it would look at the relevant jury instructions and consider the parties’ arguments.

¶6 The following day, the circuit court finalized the jury instructions with the parties but did not mention the motion to dismiss. The court instructed the jury on the elements of the first-degree reckless homicide offense and the legal standards governing liability under WIS. STAT. § 939.05(2)(a) and (b) for "[d]irectly commit[ting]" or "[i]ntentionally aid[ing] and abet[ting] the commission of" the homicide offense. In its closing argument, the State told the jury that the "whole key here is whether or not the defendant's conduct as it is ... whether that conduct fits the crime that he's been charged with. In other words, whether or not he truly was an aider and abettor." The jury found Hibbard guilty and the circuit court sentenced him to six years of initial confinement, followed by four years of extended supervision.

¶7 Hibbard filed a postconviction motion, arguing that the evidence was insufficient to show he aided and abetted Poe's delivery of drugs to Taralyn and that, if he was liable for her death, then WIS. STAT. § 940.02(2)(a) was unconstitutionally vague. The circuit court denied Hibbard's motion. The court rejected Hibbard's first argument because the evidence showed that Hibbard "did things that put this deal, that enabled Poe to deliver the drugs. Without Terry Hibbard's participation and assistance to Taralyn to getting there, she wouldn't get the heroin." Hibbard "knew that Poe was going to be committing a criminal act, and he acted in furtherance of that conduct. He was aware of the fact that a crime was being committed, and participated in its perpetration by driving Taralyn." This was sufficient, in the court's view, to submit the case to the jury.

¶8 The court also rejected Hibbard's vagueness challenge, invoking the presumption of constitutionality and concluding that WIS. STAT. § 940.02(2)(a) "is [not] unconstitutional in terms of what it allows a reasonable person to discern about their conduct approaching criminal conduct." Hibbard appeals.

DISCUSSION

I. Sufficiency of the Evidence

¶9 Hibbard first challenges the sufficiency of the evidence to support his conviction. This court independently reviews whether the evidence was sufficient to sustain the jury verdict, "but in so doing, we view the evidence most favorably to sustaining the conviction." State v. Hanson , 2012 WI 4, ¶15, 338 Wis. 2d 243, 808 N.W.2d 390. Evidence is insufficient to support a conviction only if, viewed most favorably to the State, it "is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger , 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).

¶10 The interpretation and application of WIS. STAT. §§ 940.02(2)(a) and 939.05 are integral to Hibbard's sufficiency-of-the-evidence challenge. The proper interpretation of a statute presents a question of law that we review independently. State v. Grandberry , 2018 WI 29, ¶11, 380 Wis. 2d 541, 910 N.W.2d 214. We begin with the text of those statutes.

¶11 WISCONSIN STAT . § 940.02(2)(a) makes it a Class C felony to "manufacture, distribut[e], or [deliver] ... a controlled substance ... if another human being uses the controlled substance ... and dies as a result of that use." This statute "was created as a specific type of criminal homicide to prosecute anyone who provides a fatal dose of a controlled substance." State v. Patterson , 2010 WI 130, ¶37, 329 Wis. 2d 599, 790 N.W.2d 909. A "delivery" under the statute occurs when a controlled substance is transferred from one person to another. WIS JI—CRIMINAL 1021; WIS. STAT. § 961.01(6).

¶12 The other statute involved, WIS. STAT. § 939.05, makes a person "concerned in the commission" of an offense criminally liable for that offense even though the person "did not directly commit it." As relevant here, § 939.05(2)(b) provides that a person is "concerned in the commission of the crime" if the person "[i]ntentionally aids and abets the commission of it." In Krueger v. State , 84 Wis. 2d 272, 267 N.W.2d 602 (1978), our supreme court explained that the elements of aiding and abetting are (1) "undertak[ing] conduct (either verbal or overt action) which as a matter of objective fact aids another person in the execution of a crime" and (2) "consciously desir[ing] or intend[ing] that [the] conduct will yield such assistance." Id. at 285, 267 N.W.2d 602 (citation omitted). These concepts have been incorporated into pattern jury instructions which provide that a person "intentionally aids and abets the commission of a crime when, acting with knowledge or belief that another person is committing or intends to commit a crime," the person knowingly either (1) "assists the person who commits the crime" or (2) "is ready and willing to assist and the person who commits the crime knows of the willingness to assist." WIS JI—CRIMINAL 400, 405, 406.

¶13 Viewed in the light most favorable to the State, the evidence at trial was sufficient to sustain Hibbard's conviction. The jury heard that Poe sold heroin to Taralyn, who took it to Hibbard's home and into the room where she was found dead the next day. An...