Background
On August 9, 2018, Dominic Gabriel Mazzucco stole a vehicle in Milwaukee County. Over the following two days he drove north and west, at one point picking up a passenger who exited the vehicle upon learning it was stolen. On August 11, officers located Mazzucco with the vehicle at a convenience store in Horicon, Dodge County, and arrested him.
Mazzucco was convicted in Milwaukee County of taking and driving a vehicle without the owner’s consent under Wis. Stat. § 943.23(2) for his conduct in that county. He subsequently pleaded no contest in Dodge County to operating a motor vehicle without the owner’s consent under § 943.23(3) for his conduct on August 11. The Dodge County circuit court denied his postconviction motion arguing that the second prosecution violated double jeopardy, finding the two offenses separate in fact. Mazzucco appealed.
The Court’s Holding
The Court of Appeals affirmed, holding that the two prosecutions did not constitute a double jeopardy violation because the Milwaukee County and Dodge County offenses were different in fact. Applying the multiplicity framework from State v. Ziegler, 342 Wis. 2d 256 (2012), the court assumed without deciding that the two statutory offenses were identical in law, but concluded that the offenses were sufficiently different in fact to permit successive prosecution and cumulative punishment.
The court found that Mazzucco’s renewed decision to drive the stolen vehicle on August 11 — two days after the initial taking, in a different county, and following the intervening circumstance of a passenger abandoning the vehicle upon learning it was stolen — constituted a new volitional departure rather than an unavoidable continuation of the original offense. Relying on State v. McKinnie, 252 Wis. 2d 172 (Ct. App. 2002), and Harrell v. State, 88 Wis. 2d 546 (Ct. App. 1979), the court held that the breaks in time, geography, and circumstance provided ample opportunity for reflection, defeating the double jeopardy claim. The court also distinguished Brown v. Ohio, 432 U.S. 161 (1977), reasoning that unlike the artificial temporal division condemned in that case, the separation here was substantively meaningful.
Key Takeaways
- Under Wisconsin law, successive prosecutions for operating the same stolen vehicle are not barred by double jeopardy when the second instance of driving occurs after a meaningful interval involving changes in time, location, and intervening circumstances — each such episode can constitute a new volitional departure.
- The double jeopardy multiplicity analysis is disjunctive: if two offenses differ in either law or fact, there is no constitutional violation — courts need not find both.
- Brown v. Ohio’s prohibition on artificially dividing a single crime into temporal or spatial units does not apply where the factual separation between offenses is genuine and substantive rather than prosecutorial artifice.
- This opinion is unpublished and may not be cited as precedent in Wisconsin courts except as permitted by Wis. Stat. Rule 809.23(3).
Why It Matters
This decision reinforces that Wisconsin prosecutors may charge a defendant separately in each county where a stolen vehicle was operated, provided sufficient temporal, geographic, or circumstantial breaks exist between the episodes of driving. Defense counsel handling multi-county vehicle theft cases should carefully evaluate whether intervening events — a passenger departure, an overnight stop, crossing county lines — may undermine a double jeopardy defense that would otherwise appear straightforward.
The case also illustrates the limits of Brown v. Ohio as a federal constitutional backstop. While Brown guards against prosecutorial overreach through artificial charge-splitting, it does not collapse genuinely distinct criminal acts into one simply because they involve the same stolen property over a continuous period of days.