State v. Jackson

984 N.W.2d 744 (Table)

2023 WI App 1

STATE of Wisconsin, Plaintiff-Respondent,

v.John Anthony JACKSON,^† Defendant-Appellant.

Appeal Nos. 2021AP804-CR

2021AP805-CR

Court of Appeals of Wisconsin.

November 8, 2022

PER CURIAM.

¶1 In this consolidated appeal, John Anthony Jackson appeals from judgments convicting him of two counts of trafficking of a child, one count of human trafficking, one count of second-degree sexual assault of a child, one count of soliciting a child for prostitution, and one count of physical abuse of a child. Jackson also appeals from orders denying in part his postconviction motion.

¶2 On appeal, Jackson contends that: (1) his conviction for human trafficking and one of his convictions for child trafficking were multiplicitous; (2) the circuit court erroneously instructed the jury that Jackson could be convicted of child trafficking if he transported a child, and the error was not harmless; and (3) newly discovered evidence entitles him to a new trial. For the reasons discussed below, we reject Jackson's arguments, and affirm.

BACKGROUND

¶3 Jackson was charged with seven different crimes relating to three children—Angela, Melanie, and Greta—in two separate complaints.¹ In Milwaukee County Circuit Court case No. 2017CF3795, the State charged Jackson with five counts involving Angela: (1) child trafficking; (2) human trafficking where the trafficking was done by causing or threatening to cause bodily harm; (3) second-degree sexual assault of a child who had not attained the age of sixteen years; (4) soliciting a child for prostitution; and (5) physical abuse of a child intentionally causing bodily harm.

¶4 In Milwaukee County Circuit Court case No. 2018CF137, the State charged Jackson with two counts of child trafficking. The first count alleged that Jackson knowingly attempted to recruit Greta, a child, for the purpose of a commercial sex act. The second count alleged that Jackson knowingly transported Melanie, a child, for the purpose of a commercial sex act.

¶5 The circuit court joined both cases for trial. The jury found Jackson guilty of all counts as charged. Jackson filed a motion for postconviction relief. Relevant to this appeal, Jackson contended that: (1) the child trafficking counts which involved Melanie and Greta should be dismissed because the circuit court improperly instructed the jury that trafficking could be committed by transporting a child, and to the extent that Jackson's objection was forfeited, trial counsel was ineffective; (2) Jackson could not be convicted of both child trafficking of Angela and human trafficking of Angela; and (3) Jackson was entitled to a new trial based on newly discovered evidence.

¶6 The circuit court granted in part, and denied in part, the postconviction motion. The circuit court granted Jackson's request to dismiss the child trafficking count involving Melanie. The circuit court denied the remainder of Jackson's claims. The circuit court found that the inclusion of the "transportation modality" in the jury instructions for the count involving Greta constituted harmless error. Next, the circuit court found that child trafficking and human trafficking were not identical in law and fact, and Jackson failed to meet his burden of demonstrating that the legislature did not intend cumulative punishments. In addition, the circuit court found that Jackson had not met the criteria for showing newly discovered evidence.

¶7 Jackson now appeals from the part of the order denying him relief. Additional relevant facts are discussed below.

ARGUMENT

I. Multiplicity

¶8 Jackson first argues that his conviction for human trafficking, involving Angela and his conviction for child trafficking involving Angela are multiplicitous.

¶9 "Multiplicity arises where the defendant is charged in more than one count for a single offense." State v. Rabe , 96 Wis. 2d 48, 61, 291 N.W.2d 809 (1980). "[M]ultiplicitous charges are impermissible, because they violate the double jeopardy provisions of the state and federal constitutions." Id. Whether two offenses are multiplicitous is a question of law that we review de novo. State v. Brantner , 2020 WI 21, ¶8, 390 Wis. 2d 494, 939 N.W.2d 546.

¶10 When reviewing a multiplicity claim, a two-step test is used. State v. Davison , 2003 WI 89, ¶¶42-45, 263 Wis. 2d 145, 666 N.W.2d 1. First, we examine whether the offenses are identical in law and fact. Id. , ¶43. Second, we examine whether the legislature intended to allow multiple punishments. Id. , ¶45.

¶11 To start, Jackson observes that the two offenses at issue involve the same person (Angela), the same time period, and the same address. Even if we were to assume that the offenses are identical in fact—and we emphasize we are not making that finding here—the offenses are not identical in law. Each offense requires proof of an element that the other does not. See id. , ¶41 (stating that "[a]s a general proposition, different elements of law distinguish one offense from another when different statutes are charged").

¶12 Child trafficking requires proof that the individual trafficked was a child,² and was trafficked for the purpose of a commercial sex act. WIS. STAT. § 948.051(1) (2015-16).³ In contrast, human trafficking does not require that the individual trafficked was a certain age. See WIS. STAT. § 940.302. Human trafficking is also not limited to trafficking for the purpose of a commercial sex act, but includes trafficking "for the purposes of labor or services." Sec. 940.302(2)(a)1. In addition, human trafficking requires proof that the defendant engaged in certain types of acts, including "causing or threatening to cause bodily harm," "using or threatening to use force or violence," or "using any scheme, pattern, or other means to directly or indirectly coerce, threaten, or intimidate any individual." Sec. 940.302(2)(a)2. Thus, child trafficking and human trafficking are not the same in law.

¶13 Having concluded that Jackson's convictions are not the same in law, we next examine whether the legislature intended to prohibit multiple punishments. See Davison , 263 Wis. 2d 145, ¶45. If the offenses are different in law or fact, the defendant bears the burden of overcoming the presumption that the legislature intended to authorize multiple punishments. State v. Ziegler , 2012 WI 73, ¶62, 342 Wis. 2d 256, 816 N.W.2d 238.

¶14 To determine legislative intent we analyze four factors: "(1) all applicable statutory language; (2) the legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment for the conduct." Davison , 263 Wis. 2d 145, ¶50.

¶15 We first examine the applicable statutory language. Jackson focuses on the language in the human trafficking statute, WIS. STAT. § 940.302(2)(a). The human trafficking statute states "[e]xcept as provided in s. 948.051 [the child trafficking statute], whoever knowingly engages in trafficking is guilty of a Class D felony[.]" According to Jackson, the "except as provided" language means "don't charge here" and instead charge under the child trafficking statute. We disagree.

¶16 As the State suggests, the "except as provided" language simply means that there is another way that a defendant may be found guilty of trafficking. If the legislature intended to prohibit a court from sentencing a defendant for both human trafficking and child trafficking, the legislature could have said so. See Southport Commons, LLC v. DOT , 2021 WI 52, ¶32, 397 Wis. 2d 362, 960 N.W.2d 17 ("The legislature is presumed to ‘carefully and precisely’ choose statutory language to express a desired meaning." (citation omitted)). For example, the legislature could have expressly stated that a person shall not be convicted under both the human trafficking statute and the child trafficking statute. Cf. WIS. STAT. § 939.72 (prohibiting convictions for both inchoate and completed crimes). Alternatively, the legislature could have designated one of the offenses as a lesser included offense and prohibited a court from entering a conviction for both crimes. See WIS. STAT. § 939.66(1) - (7) (stating that "[u]pon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both").

¶17 Next, we consider the legislative history and the context. The legislature created both the human trafficking statute and the child trafficking statute in 2007 Wisconsin Act 116, §§ 35, 37. An accompanying Wisconsin Legislative Council Act Memo references both crimes, but does not include any language indicating that multiple punishments are prohibited or explain the "except as provided" language. Thus, we conclude that the legislative history and context does nothing to overcome the presumption that the legislature intended multiple punishments.

¶18 Finally, we examine the nature of the proscribed conduct and the appropriateness of multiple punishments.⁴ Here, each statute addresses different interests. Child trafficking focuses on prohibiting children from being trafficked. See WIS. STAT. § 948.051(1). In contrast, human trafficking prohibits any individual from being trafficked by the use of violence, threats, coercion, or other types of specified behavior. See WIS. STAT. § 940.302(2)(a). Thus, the legislature could have thought it appropriate to convict and punish a defendant for both offenses—trafficking a child and trafficking using violence, threats, coercion, or other types of behavior. See Davison , 263 Wis. 2d 145, ¶99 ; State v. Selmon , 175 Wis. 2d 155, 159, 165-67, 498 N.W.2d 876 (Ct. App. 1993) (rejecting a multiplicity challenge to a defendant's convictions for second-degree sexual assault of a child and second-degree sexual assault with the use of force because the legislature had recognized two distinct groups of victims—those assaulted through the use of force and those assaulted due to age).

¶19 Therefore, for the reasons stated above, we conclude that Jackson has not overcome the...