State v. Ryan Thomas Defoe

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT III

April 30, 2025
To:
Hon. Kelly J. McKnight Heidi E. Brewer
Circuit Court Judge Electronic Notice
Electronic Notice
Lisa E.F. Kumfer
Deidre Zifko Electronic Notice
Clerk of Circuit Court
Bayfield County Courthouse
Electronic Notice

You are hereby notified that the Court has entered the following opinion and order:

2024AP1304-CRLV State of Wisconsin v. Ryan Thomas Defoe (L. C. No. 2024CF16)

Before Stark, P.J., Hruz, and Gill, JJ.

Summary disposition orders may not be cited in any court of this state as precedent or

authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

Ryan Thomas Defoe seeks leave to appeal a nonfinal order denying his motion to dismiss

this case. Defoe sought dismissal on the ground that certain of the charges were multiplicitous,

in violation of his double jeopardy rights under the United States and Wisconsin Constitutions.

In light of our supreme court’s decision in State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114

(1980) (on motion for reconsideration), where the court urged the court of appeals to carefully

exercise its discretion in considering whether to hear permissive appeals denying motions to

dismiss based on double jeopardy claims, we ordered briefing on the merits of the double

jeopardy issue. Based upon our review of the briefs and record, we conclude at conference that

the petition fails to satisfy the criteria for permissive appeal. See WIS. STAT. § 808.03(2)
No. 2024AP1304-CRLV

(2023-24);1 State v. Webb, 160 Wis. 2d 622, 632, 467 N.W.2d 108 (1991). We therefore deny

leave to appeal.

In the criminal complaint, the State alleged that Defoe was involved in a domestic

altercation with the victim when “he grabbed a telescope and swung the telescope like a baseball

bat” at the victim’s face, causing her injury. The State charged Defoe with the following four

counts: (1) aggravated battery with intent to cause bodily harm; (2) first-degree recklessly

endangering safety; (3) mayhem; and (4) disorderly conduct.2 All of the offenses were charged

as acts of domestic abuse.

Defoe sought dismissal of the complaint on the grounds that the aggravated battery with

intent to cause bodily harm charge and the mayhem charge are multiplicitous and that the

first-degree recklessly endangering safety charge and the disorderly conduct charge are

multiplicitous. He argued that the multiplicitous charges violated his double jeopardy rights.

The circuit court held a nonevidentiary hearing on the motion. After hearing arguments

from the parties, the court found that the charged counts were not multiplicitous and did not

violate Defoe’s double jeopardy rights. Thereafter, the court entered a written order denying the

motion. Defoe petitioned this court for leave to appeal that nonfinal order.

“[A] party is generally entitled to only one appeal as of right.” Culbert v. Young,

140 Wis. 2d 821, 826, 412 N.W.2d 551 (Ct. App. 1987). “Piecemeal or interlocutory appeals are

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
The State subsequently filed an amended complaint, which added counts of battery and
disorderly conduct, both as acts of domestic abuse. Defoe concedes on appeal that his motion to dismiss
did not address these counts.

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No. 2024AP1304-CRLV

strongly disfavored” because they “frequently result in useless and time-consuming multiple

appeals which ordinarily can and should be considered in a single appeal.” Id. Moreover,

“[i]nterlocutory appeals are particularly disfavored in criminal cases.” State v. Borowski,

164 Wis. 2d 730, 735, 476 N.W.2d 316 (Ct. App. 1991).

With these principles in mind, this court may grant a petition for leave to appeal if the

petitioner shows that doing so will: “(a) Materially advance the termination of the litigation or

clarify further proceedings in the litigation; (b) Protect the petitioner from substantial or

irreparable injury; or (c) Clarify an issue of general importance in the administration of justice.”

WIS. STAT. § 808.03(2). In addition, the petitioner must show “a substantial likelihood of

success on the merits.” See Webb, 160 Wis. 2d at 632.

“The United States Supreme Court has stated that the Double Jeopardy Clause provides

three separate protections.” State v. Davison, 2003 WI 89, ¶19, 263 Wis. 2d 145, 666 N.W.2d 1.

As relevant here, “it protects against multiple punishments for the same offense”—known as

multiplicity. Id., ¶¶19, 37 (emphasis and citation omitted). Importantly, our supreme court has

explained that “in discussing multiplicity, a reference to ‘charges’ must be employed carefully,

because it is permissible to charge more than one count, even if the state may not punish a

defendant on more than one count.” Id., ¶38 (citing Ohio v. Johnson, 467 U.S. 493, 500

(1984)). “The Johnson case distinguishes prosecution on overlapping charges for the same

offense from punishment on those charges for the same offense and explains that prosecution

does not equal punishment.” Davison, 263 Wis. 2d 145, ¶27; see also Johnson, 467 U.S. at 500

(“While the Double Jeopardy Clause may protect a defendant against cumulative punishments

for convictions on the same offense, the Clause does not prohibit the State from prosecuting

respondent for such multiple offenses in a single prosecution.”).

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No. 2024AP1304-CRLV

In this case, Defoe has merely been charged with multiple counts. He has not been

convicted and subjected to punishment on more than one count. We will not presume that he

will be convicted, or if convicted, that the circuit court will sentence him in a manner that

violates the Double Jeopardy Clause. Accordingly, Defoe’s multiplicity challenge is not ripe for

adjudication because no multiplicity issue can arise unless and until he is convicted. This

circumstance is not the type of double jeopardy challenge considered in Jenich, which involved

a successive prosecution. Accordingly, we are not persuaded that interlocutory review is

warranted in this case.

Therefore,

IT IS ORDERED that Defoe’s petition for leave to appeal is denied.

IT IS FURTHER ORDERED that this summary disposition order will not be published.

Samuel A. Christensen
Clerk of Court of Appeals

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