State v. Dominic Gabriel Mazzucco

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 4, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2288 Cir. Ct. No. 2018CF251

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DOMINIC GABRIEL MAZZUCCO,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dodge County: KRISTINE A. SNOW, Judge. Affirmed.

Before Blanchard, Kloppenburg, Taylor, JJ.

Per curiam opinions 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).

¶1 PER CURIAM. Dominic Gabriel Mazzucco appeals a judgment
convicting him of operating a motor vehicle without the owner’s consent, see WIS.
No. 2024AP2288

STAT. § 943.23(3) (2023-24), and an order denying postconviction relief.1
Mazzucco argues that this conviction is barred by double jeopardy because he was
previously convicted in Milwaukee County of taking and driving the same vehicle
without consent under § 943.23(2). We affirm.

¶2 The material facts are brief and undisputed. On August 9, 2018,
Mazzucco stole a vehicle in Milwaukee County. Over the next two days
Mazzucco drove north and west, and at one point picked up a passenger who got
out of the vehicle after learning it was stolen. On August 11, officers found
Mazzucco with the vehicle at a Kwik Trip in Horicon, Dodge County, and arrested
him. Mazzucco was convicted in Milwaukee County of the take-and-drive offense
based on his conduct in that county, and later pleaded no contest in this case to
operating without consent based on the Horicon incident. The circuit court denied
Mazzucco’s postconviction motion that alleges a double jeopardy violation,
concluding that the two crimes are separate in fact.

¶3 Whether successive prosecutions are multiplicitous under the double
jeopardy clause is a question of law that we review de novo. State v. Patterson,
2010 WI 130, ¶12, 329 Wis. 2d 599, 790 N.W.2d 909. A multiplicity analysis
asks whether the two offenses are identical in law and in fact. State v. Ziegler,
2012 WI 73, ¶60, 342 Wis. 2d 256, 816 N.W.2d 238. “[I]f the offenses are
different in law or fact, … we are no longer concerned with a double jeopardy
violation….” Id., ¶62 (emphasis added). For purposes of this appeal, we assume
that the two offenses are identical in law and focus on whether they are identical in
fact.

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP2288

¶4 Two offenses are not identical in fact if the acts are sufficiently
different to show that separate crimes were committed. Id., ¶60. Put differently,
offenses are different in fact when each reflects a new volitional departure or when
there is sufficient time for reflection between the acts. State v. McKinnie, 2002
WI App 82, ¶11, 252 Wis. 2d 172, 642 N.W.2d 617; Harrell v. State, 88 Wis. 2d
546, 560, 277 N.W.2d 462 (Ct. App. 1979). When offenses are different in fact,
we presume that the legislature intended to allow cumulative punishments.
Ziegler, 342 Wis. 2d 256, ¶62.

¶5 McKinnie is particularly instructive. There, the defendant was
charged with carjacking for taking a vehicle on May 21 and with operating the
same vehicle without the owner’s consent on May 22. McKinnie, 252 Wis. 2d
172, ¶¶2-3. This court rejected the defendant’s double jeopardy argument,
explaining that the later driving occurred after sufficient time for reflection and
therefore constituted a new volitional departure. Id., ¶11. Harrell applied the
same principle in a different factual context. In that case, two sexual assaults were
separated by an interval that included conversation and other intervening conduct,
and this court concluded that the interval gave the defendant sufficient time to
again commit himself to criminal conduct. Harrell, 88 Wis. 2d at 560.

¶6 The principle articulated in McKinnie and Harrell resolves this
appeal. Mazzucco’s Milwaukee County take-and-drive offense occurred on
August 9. Two days later, after traveling to another county and after a passenger
refused to remain in the stolen vehicle, Mazzucco again chose to drive it. These
breaks in time, geography, and circumstance provided ample opportunity for
reflection. The August 11 driving therefore constitutes the type of new volitional
departure described in McKinnie. Like the second assault in Harrell, Mazzucco’s

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No. 2024AP2288

renewed decision to drive the vehicle two days later, in another county and after
intervening events, was not the unavoidable continuation of the original offense.

¶7 Mazzucco relies on Brown v. Ohio, 432 U.S. 161 (1977), but Brown
does not require a different result. In Brown, the United States Supreme Court
held that Ohio could not prosecute a defendant for both auto theft and joyriding
based on the same nine-day course of conduct when, under the Ohio statutes at
issue, joyriding was a lesser-included offense of auto theft. Id. at 163-69. The
Court cautioned that a state may not avoid double jeopardy by dividing a single
crime into artificial temporal or spatial units. Id. at 169. Here, however, the
separation is not artificial. Under McKinnie and Harrell, Mazzucco’s renewed
decision to drive the vehicle two days later, in another county and after intervening
events, makes the Dodge County offense different in fact from the Milwaukee
County offense. Because the Dodge County offense is different in fact from the
Milwaukee County offense, Mazzucco has not established a double jeopardy
violation.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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