State v. Samuel R. Osornio

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
July 18, 2025 the bound volume of the Official Reports.
Samuel A. Christensen
Clerk of Court of Appeals A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2368-CR Cir. Ct. No. 2020CF223

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SAMUEL R. OSORNIO,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Columbia County: TODD J. HEPLER, Judge. Reversed and cause remanded with
directions.

Before Kloppenburg, P.J., Blanchard, and Taylor, JJ.

¶1 BLANCHARD, J. Samuel Osornio was charged with first-degree
reckless homicide by delivery of heroin, based on allegations that he delivered
No. 2024AP2368-CR

heroin to A.B. and that A.B. fatally overdosed on this heroin.1 Osornio was
separately charged with delivery of the heroin that allegedly was a substantial
contributor to A.B.’s death. A jury found Osornio guilty on both charges,
although the circuit court entered a conviction on the reckless homicide charge
alone. Osornio raises two issues on appeal.

¶2 Osornio contends that he is entitled to a new trial because the circuit
court improperly admitted other-acts evidence elicited by the prosecution. See
WIS. STAT. § 904.04(2) (2023-24) (“evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show that the person
acted in conformity therewith”); State v. Sullivan, 216 Wis. 2d 768, 772-73, 576
N.W.2d 30 (1998) (setting forth test to determine whether other-acts evidence is
admissible).2 This consisted of testimony by Y.Z. that Osornio delivered heroin to
Y.Z. just minutes before Osornio allegedly delivered to A.B. the heroin that the
State alleges was a substantial factor in causing A.B.’s death. We conclude that
Osornio fails to establish that the court erred in admitting the other-acts evidence,
which the prosecution relied on for the limited purpose of attempting to rebut one
of Osornio’s defenses, namely, that the drug that he intended to deliver to A.B.
was marijuana, not heroin.

¶3 Osornio’s other argument involves a multiplicity issue, based on the
fact that the State charged him with both the reckless homicide of A.B. and with
the delivery of the heroin that allegedly resulted in A.B.’s death. This exposed

1
We refer to the victim as A.B. and to a witness who was called by the prosecution at
trial as Y.Z.; these are not their actual initials.
2
All references to the Wisconsin Statutes are to the 2023-24 version.

2
No. 2024AP2368-CR

Osornio to the potential for punishment twice for the same offense of delivering
heroin to A.B. Osornio contends that he is entitled to a new trial because his two
trial attorneys were constitutionally ineffective in failing to timely recognize and
address the multiplicity issue. Osornio contends that, if his counsel had moved the
circuit court before trial to dismiss the heroin delivery charge, this would have set
up a follow-up request by the defense that the court give a jury instruction to treat
the delivery charge as a lesser-included offense of the reckless homicide charge.3
And, according to Osornio, based on the way jury deliberations played out at trial,
if the jury had been instructed regarding the lesser-included offense from the start,
it would have found him guilty of, at worst, the lesser offense of heroin delivery.
Applying the Sixth Amendment standards for ineffective assistance of counsel, we
conclude that Osornio is entitled to a new trial because he has shown both
deficient performance and prejudice. Accordingly, we reverse for a new trial.

BACKGROUND

¶4 Count One in the criminal complaint and information against
Osornio alleged first-degree reckless homicide, in violation of WIS. STAT.
§ 940.02(2). According to the complaint, Osornio delivered heroin to A.B. in the
parking lot of a store in the City of Portage, Columbia County, on February 6,
2020, and A.B. died on or about the next day from the combined effects of A.B.’s
use of that heroin and alcohol. Count Two alleged that Osornio violated WIS.

3
As explained infra in note 9, Osornio is incorrect in arguing that the prosecution was
limited to charging and proceeding to trial on only one of the two offenses. But for reasons we
discuss in this opinion, this error does not undermine Osornio’s broader point that defense
counsel at trial missed the opportunity to consider asking the circuit court to give a lesser-
included instruction, with the reasonable probability that this would have resulted in the jury
returning a verdict on only a single count, namely, the lesser of the two offenses.

3
No. 2024AP2368-CR

STAT. § 961.41(1)(d)1. when he delivered the heroin to A.B. in the parking lot,
with the amount of heroin being three grams or less.4 Thus, Counts One and Two
alleged precisely the same conduct—Osornio’s intentional delivery of three grams
or less of heroin to A.B., in violation of § 961.41(1)(d)1.—but Count One included
the additional allegations that A.B. used that heroin and that this heroin use was a
substantial factor in causing his death.

¶5 Regarding the other-acts evidence issue, the circuit court granted a
prosecution motion before trial to allow the admission of evidence aimed at
establishing the following: that Osornio delivered heroin to Y.Z. late on the
morning of February 6 in the Portage parking lot, just minutes before he allegedly
delivered a separate batch of heroin to A.B. in the same parking lot. As discussed
in more detail in the Discussion section below, Y.Z. gave testimony to this effect
at trial.

¶6 Regarding the multiplicity issue, the circuit court instructed the jury
at trial, consistent with WIS JI—CRIMINAL 1021, that the prosecution, in charging
first-degree reckless homicide, assumed the burden of proving beyond a
reasonable doubt each of the following five elements on the facts of this case:

1. Osornio delivered a substance to A.B.;

2. The substance was heroin;

4
On its face, the criminal complaint is ambiguous regarding the State’s theory on
Count Two, the heroin delivery count. The complaint leaves unclear whether the charge was that
Osornio delivered heroin to A.B. or instead that he delivered heroin to “a female” (later identified
to be Y.Z.; A.B. was male) shortly before the alleged delivery to A.B. But without dispute
between the parties, the circuit court removed any ambiguity at trial by instructing the jury that
the alleged delivery to Y.Z. was conduct “for which [Osornio] is not on trial,” and therefore
Count Two was based on his alleged heroin delivery to A.B. and not on his alleged heroin
delivery to Y.Z.

4
No. 2024AP2368-CR

3. Osornio knew or believed that the substance was heroin;

4. A.B. used the heroin that was delivered by Osornio; and

5. A.B. died as a result of A.B.’s use of this heroin,
meaning that it was a substantial factor in causing the
death.

¶7 Consistent with WIS JI—CRIMINAL 6020, the circuit court instructed
the jury that delivery of a controlled substance has the following three elements on
the facts of this case:

1. Osornio delivered a substance to A.B.;

2. The substance was heroin; and

3. Osornio knew or believed that the substance was heroin.

¶8 It is not disputed that Counts One and Two are multiplicitous on the
facts of this case. The two offenses are identical in law and fact under the
“elements-only” test set forth in Blockburger v. United States, 284 U.S. 299, 304
(1932), in that all of the elements of the delivery charge are also elements in the
homicide charge based on the same alleged facts, and neither side argues that the
legislature intended to allow multiple punishments for this criminal conduct. See
State v. Ziegler, 2012 WI 73, ¶¶59-63, 342 Wis. 2d 256, 816 N.W.2d 238.

¶9 But the multiplicity issue created by the charging of both offenses
was not noticed by either party or the circuit court until after a series of events,
including extensive jury deliberations, which are detailed in the Discussion section
below.

¶10 After defense counsel eventually called the multiplicity issue to the
attention of the circuit court, the court attempted to resolve the issue by giving a
supplemental instruction summarized below. In the end, the jury returned guilty

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No. 2024AP2368-CR

verdicts on both counts and the circuit court entered a guilty verdict only on
Count One, reckless homicide. The court sentenced Osornio on that single count.

¶11 Represented by new counsel, Osornio filed a postconviction motion
for a new trial, claiming ineffective assistance of trial counsel based on the
multiplicity issue that we discuss below, and the circuit court held a Machner
hearing.5 The two defense attorneys both testified that they did not notice the
multiplicity issue until the jury was deep into its deliberations, and defense
counsel identified no strategic reason for not addressing the issue sooner.

¶12 The circuit court denied the postconviction motion. Osornio
appeals.

DISCUSSION

¶13 For reasons explained below, we conclude that a new trial is
required as a result of ineffective assistance of trial counsel in connection with the
multiplicity issue. Both sides treat Osornio’s challenge to the other-acts evidence
strictly as an alternative basis to grant Osornio a new trial. This approach could
suggest that this court should limit its attention to the ineffective assistance issue if
we conclude, as we do, that a new trial is required based on ineffective assistance.
See Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300,
786 N.W.2d 15 (“Typically, an appellate court should decide cases on the
narrowest possible grounds.”). But, primarily in the interest of judicial efficiency,

5
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) (describing
need for evidentiary hearing to allow circuit court to evaluate the constitutional effectiveness of
the defendant’s trial counsel, at which trial counsel typically testifies).

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No. 2024AP2368-CR

we explain our conclusion that the other-acts evidence is admissible because this
issue may well resurface at a retrial and it is fully briefed on appeal.

I. Other-Acts Evidence

A. Other-Acts Legal Standards

¶14 Evidence of “other crimes, wrongs, or acts” of a person (here,
Osornio) “is not admissible to prove” the person’s character “in order to show that
the person acted in conformity therewith.” See WIS. STAT. § 904.04(2)(a). But
this rule “does not exclude the evidence when offered for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. Under Wisconsin case law, such evidence is
admissible if all of the following is shown:

 the evidence is offered for a permissible purpose under § 904.04(2)(a);

 the evidence is relevant under WIS. STAT. § 904.01; and

 the probative value of the evidence is not substantially outweighed by
the risk of unfair prejudice under WIS. STAT. § 904.03.

State v. Dorsey, 2018 WI 10, ¶8, 379 Wis. 2d 386, 906 N.W.2d 158 (citing
Sullivan, 216 Wis. 2d at 772-73). The proponent of the evidence must identify a
permissible purpose and bears the burden of showing relevance; in contrast, the
opponent has the burden of demonstrating that the probative value of the evidence
is substantially outweighed by the danger that it will create unfair prejudice. State
v. Marinez, 2011 WI 12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399.

¶15 The issue is whether the circuit court erroneously exercised its
discretion when it allowed the admission of other-acts evidence over Osornio’s
objection. See State v. Payano, 2009 WI 86, ¶40, 320 Wis. 2d 348, 768 N.W.2d

7
No. 2024AP2368-CR

832. To decide that issue, we assess “whether the circuit court ‘reviewed the
relevant facts; applied a proper standard of law; and using a rational process,
reached a reasonable conclusion.’” Id., ¶41 (quoted source omitted). “Although
the proper exercise of discretion contemplates that the circuit court explain its
reasoning, when the court does not do so, we may search the record to determine if
it supports the court’s discretionary decision.” Randall v. Randall, 2000 WI App
98, ¶7, 235 Wis. 2d 1, 612 N.W.2d 737; accord State v. Hurley, 2015 WI 35, ¶29,
361 Wis. 2d 529, 861 N.W.2d 174.

B. Additional Background

¶16 The prosecution moved the circuit court before trial for a ruling
allowing the admission of evidence that, approximately five minutes before
Osornio allegedly delivered heroin to A.B. in the parking lot of a retail store,
Osornio delivered a separate batch of heroin to Y.Z. in the same parking lot. The
prosecution proffered that Y.Z. would testify to this.

¶17 One prosecution argument for the admission of the other-acts
evidence was that its permissible probative value would be to support a finding by
the jury that Osornio intended to deliver heroin and not marijuana to A.B. The
prosecution’s goal was to counter Osornio’s anticipated defense to both
Counts One and Two that he delivered marijuana, not heroin, to both A.B. and
Y.Z.6 Consistent with that position, in oral argument to the court, the prosecutor

6
This was not the only argument made by the prosecution in support of its other-acts
motion. We refer below to additional prosecution arguments in the course of addressing
arguments made by Osornio.

8
No. 2024AP2368-CR

said in part that the value of Y.Z.’s testimony was that it would show that it was
heroin that Osornio sold to Y.Z. just before he sold heroin to A.B.

¶18 Defense counsel opposed admission of the other-acts evidence.
Counsel argued that it would amount to nothing more than “propensity evidence.”
That is, counsel contended that its primary effect would be to support the
impermissible inference that, because Osornio delivered heroin to Y.Z., he should
be found guilty on both charges because he is the kind of person who deals heroin.
See WIS. STAT. § 904.04(2)(a). Defense counsel asked that, if the circuit court
granted the prosecution motion, the court give a limiting instruction discouraging
the jury from relying on it as propensity evidence.

¶19 The circuit court ruled that the prosecution could elicit the other-acts
evidence for “permissible purposes,” such as “motive” or “lack of mistake.” The
court asked defense counsel to draft a limiting instruction for review by the
prosecution and the court.

¶20 During trial, Y.Z. gave the following brief testimony, corroborated
in part by video evidence that the prosecution played for the jury. At
approximately 11:35 a.m. on February 6, 2020 (which the jury would learn was
about five minutes before the alleged delivery to A.B.), Y.Z. met Osornio in the
parking lot of a Portage store. Y.Z. bought heroin from Osornio, and this was not
the first time that he had sold heroin to Y.Z. During cross examination, defense
counsel suggested in part that, instead of buying heroin from Osornio that day,
Y.Z. gave him Suboxone (a medication used to treat opioid use disorder) in
exchange for marijuana. Y.Z. denied this in her responses.

9
No. 2024AP2368-CR

¶21 With no objection from the prosecution, the circuit court gave the
jury the following limiting instruction regarding the other-acts evidence, based on
WIS JI—CRIMINAL 275:

Evidence has been presented regarding other
conduct of the defendant for which the defendant is not on
trial.

Specifically, evidence has been … presented that
the defendant provided heroin to [Y.Z.] If you find that
this conduct did occur, you should consider it only on the
issue of context or background.

You may not consider this evidence to conclude that
the defendant has a certain character or certain character
trait and that the defendant acted in conformity with that
trait or character with respect to the offense charged in this
case.

The evidence was received on the issue of context
or background, that is, to provide a more complete
presentation of the evidence relating to the offense charged.

You may consider this evidence only for the
purpose I have described, giving it the weight you
determine it deserves. It is not to be used to conclude that
the defendant is a bad person and for that reason is guilty of
the offense charged.

¶22 During its initial closing argument, the prosecution made the
following argument based on the other-acts evidence (without elaborating on these
points in a meaningful way in its rebuttal closing argument):

In the … minutes preceding the drug transaction
that took place between [A.B.] and Mr. Osornio, [Y.Z.] is
this some other chick that needs to be served first,[7] and
[Y.Z.] came before you and admitted quite plainly that she
was a heroin addict. Not … a THC user. She doesn’t use

7
The phrase “some other chick that needs to be served first” was a reference to the
following trial evidence. In a text message that was one in a series exchanged by Osornio and
A.B. on the day of the two alleged heroin deliveries, Osornio stated, “I gotta serve this chick.”

10
No. 2024AP2368-CR

marijuana, but she admitted that she was a heroin addict.
And she admitted to you that on this particular day, she
arrived in the [store] parking lot, went to Mr. Osornio’s
vehicle, and purchased heroin.

For context, that helps you understand the
transaction that happened in [A.B.’s] white Infinity…. You
can see—or you heard the testimony that … Mr. Osornio’s
Jeep—admittedly, it’s beyond any doubt that it’s him and
his Jeep—pulls into the [store] parking lot, never enters the
store. He’s there to sell, not to buy. He sells heroin to
[Y.Z.], and then he sells heroin to [A.B.]

¶23 Defense counsel, in closing argument, challenged Y.Z.’s credibility
based on Y.Z.’s “prior convictions for lying,” her history as a “[l]ong-time heroin
user,” and on the propositions that Y.Z. once “had a known drug house in Adams
County” and that Y.Z. “admitted that she’s the one who connected [Osornio] with
his source of heroin.” Counsel suggested that Y.Z. lied when she testified that she
had never delivered heroin to another person.

C. Analysis

¶24 We conclude that Osornio fails to show that the circuit court
erroneously exercised its discretion in allowing the prosecution to elicit the other-
acts evidence. Under the circumstances here, a reasonable judge could determine
that Y.Z.’s testimony was offered for the permissible purpose of purporting to
show Osornio’s intent (that is, his conscious objective) of delivering heroin (not
marijuana) to A.B., that it was relevant, and that its probative value was not
substantially outweighed by the risk that it would create unfair prejudice.

Permissible Purpose

¶25 For the most part, Osornio challenges the State’s ability to satisfy the
first prong of the test. He contends that the other-acts evidence was not in fact
admitted based on the intent purpose. We conclude that the State has met its

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No. 2024AP2368-CR

burden on this prong. The jury would reasonably have understood that it was to
rely on Y.Z.’s testimony, if the jury deemed it credible, only to show Osornio’s
intent to deliver heroin and not marijuana to A.B. and further would reasonably
have understood that it should not rely on the testimony to draw conclusions about
Osornio’s character or a character trait.

¶26 As Osornio acknowledges, proof of intent is one permissible purpose
for other-acts evidence. See WIS. STAT. § 904.04(2)(a) (rule against character
evidence “does not exclude the evidence when offered for other purposes, such as
… intent”). Further, Osornio acknowledges that the prosecution in its written
pretrial motion identified intent as a purpose, in an attempt to meet its burden of
proving intentional delivery of heroin to A.B.

¶27 Osornio’s argument is that the other-acts evidence was not properly
admitted because: the prosecution did not use the word “intent” at the hearing on
this issue; the prosecution made alternative arguments based on its purported
purpose to use the other-acts evidence to provide “context” or to complete the
“panorama” of the charges; the circuit court did not use the word “intent” in
making its decision; and the jury was not instructed using the specific term
“intent.”

¶28 We agree with Osornio to the extent that the prosecution in its
arguments to the circuit court, the court in explaining its decision, and the court in
giving the limiting instruction, could have been clearer in identifying intent as one
permissible purpose. And, in particular, we agree with Osornio that one argument
that the prosecution advanced in the circuit court was flawed. The prosecution’s
argument was that Y.Z.’s testimony was admissible because it was “part of the
panorama of evidence needed to completely describe the crime that occurred and

12
No. 2024AP2368-CR

is thereby inextricably intertwined with the crime.” See State v. Dukes, 2007 WI
App 175, ¶¶25, 28-30, 303 Wis. 2d 208, 736 N.W.2d 515 (evidence of drugs in the
possession of someone who had just left defendant’s residence was permissibly
introduced to prove an element of the defendant keeping a drug house). Here,
unlike the situation in Dukes, the alleged heroin delivery to Y.Z. was criminal
conduct that was distinct from the charged heroin delivery to A.B. At least so far
as the prosecution presented its arguments to the circuit court, this was not
evidence that was necessary to complete the picture of the alleged delivery to A.B.
The State does not show that the “panorama” concept applies here.

¶29 At the same time, however, defense counsel was properly placed on
notice through the prosecution’s pretrial motion that the prosecution identified
Osornio’s intent as one permissible purpose for Y.Z.’s testimony. Further, when
the circuit court granted the motion to admit this evidence and identified motive
and lack of mistake as permissible purposes, this could reasonably be interpreted
to have been a reference to the intent concept—that proof of the alleged delivery
of heroin (as opposed to marijuana) to Y.Z. could properly support proof of the
alleged delivery of heroin (as opposed to marijuana) to A.B. Motive, like intent,
is an acceptable purpose under WIS. STAT. § 904.04(2). And, while “motive”
typically refers to a person’s underlying reason or cause to act, in the context of
the simple facts here, the court’s use of “motive” was plainly meant to cover the
concept of Osornio’s conscious objective of delivering heroin and not marijuana.
See Randall, 235 Wis. 2d 1, ¶7 (court of appeals may search the record to
determine whether it supports circuit court discretionary decision). That is, the
court was evidently referring to the same intent concept that the prosecution
identified in its written motion and alluded to in its oral argument, which we
conclude was a permissible purpose. See Peasley v. State, 83 Wis. 2d 224, 232,

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No. 2024AP2368-CR

265 N.W.2d 506, 510-11 (1978) (“evidence relating to the defendant’s prior sales
activities as evidence of his intent to deliver the cocaine” was admissible as other-
acts evidence).

¶30 Turning to the limiting instruction given to the jury regarding the
other-acts evidence, it is true that, as summarized above, the instruction spoke in
terms of evidence “received on the issue of context or background, that is, to
provide a more complete presentation of the evidence relating to the offense
charged.” This aspect of the instruction, standing alone, was arguably ambiguous.

¶31 But, as also summarized above, the only meaningful reference that
the prosecution made to the other-acts evidence in its closing arguments was
unambiguously rooted in the intent purpose. Specifically, the prosecutor told the
jury that, if the jury chose to credit Y.Z.’s testimony, it was relevant to show that
Y.Z. got heroin from Osornio and not marijuana, from which (along with other
evidence) the jury was invited to infer that A.B. also got heroin from Osornio.
The prosecutor used the potentially ambiguous word “context.” In doing so,
however, the prosecutor unambiguously made the point that Osorio “sells heroin
to [Y.Z.], and then he sells heroin to” A.B. For its part, the defense invited jurors
to dismiss Y.Z.’s testimony about getting heroin from Osornio as self-serving and
false, which the jury was free to do. This left the jury with a potentially
ambiguous “context” instruction, but with only one reasonable way to interpret it.

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No. 2024AP2368-CR

If the jury credited Y.Z.’s testimony, the jury could consider it in assessing
Osornio’s alleged purpose of delivering heroin to A.B.8

¶32 In sum on this prong of the Sullivan test, Osornio fails to persuade
us that there is a risk that the jury could reasonably have failed to understand that
it was to consider the evidence as bearing on the disputed issue of intent to
distribute heroin. The only reasonable interpretation of the record is that the jury
should have considered Y.Z.’s testimony (if it chose to credit the testimony) not to
form an opinion about Osornio’s character or any character trait, but instead for
any light that it might shed on his alleged intent to deliver heroin and not
marijuana to A.B.

Relevance

¶33 “[T]he relevance inquiry is two-fold: first, ‘[t]he evidence must
relate to a fact or proposition of consequence’; second, the evidence must have
probative value, that is, ‘a tendency to make a consequential fact more or less
probable than it would be without the evidence.’” Dorsey, 379 Wis. 2d 386, ¶44
(cited authority omitted).

¶34 Osornio essentially acknowledges that, if the other-acts evidence
was offered for a permissible purpose, it was relevant to show Osornio’s intent to

8
The State briefly contends that Osornio cannot be heard to argue that the circuit court
admitted Y.Z.’s testimony for an impermissible purpose because Osornio drafted the limiting
instruction. We note that this occurred at the direction of the circuit court, and that the draft
created by the defense was reviewed by the prosecution and accepted by the circuit court for
delivery to the jury. On a related point, the State also now contends that a permissible purpose
was to provide “context and background,” by which the State may mean to refer to something
other than intent. But we need not address these contentions by the State, because we conclude
that the court did not erroneously exercise its discretion in allowing Y.Z.’s testimony for the
purpose of intent.

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No. 2024AP2368-CR

sell heroin to A.B., conceding the issue. We conclude that the State has shown the
second prong of the test.

Probative Value Compared with Unfair Prejudice

¶35 We conclude that Osornio fails to show that the probative value of
the other-acts evidence was substantially outweighed by the risk that it would
create unfair prejudice. When Osornio’s argument about a permissible purpose is
resolved against him, as we do for the reasons discussed above, he offers little
argument on the third prong. He notes that the circuit court itself at one point
expressed to counsel, outside the presence of the jury, confusion about whether
Y.Z.’s testimony was “other acts” evidence or instead direct evidence on
Count Two. From this, Osornio contends that the jury must have shared that
confusion. But Osornio does not support the premise of confusion either by the
court or by the jury, at least by the time the jury received its initial set of
instructions from the court. The court clearly conveyed to the jury that Y.Z.’s
testimony was not direct evidence on Count Two, but instead should be considered
for limited purposes related to the alleged delivery to A.B. See supra note 4.

¶36 Further, we agree with the State’s characterization of Y.Z.’s
testimony as “brief and sterile,” which reduced the likelihood that the other-acts
evidence could have caused the jury to base its verdict on emotions such as
outrage, disgust, or other improper considerations.

¶37 In sum on the other-acts evidence issue, we conclude that the circuit
court had a reasonable basis to conclude that the State carried its burden on the
first two prongs of the Sullivan test and that Osornio failed to carry his burden on
the third prong.

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No. 2024AP2368-CR

II. Ineffective Assistance on Multiplicity Issue

¶38 As stated above, there is no dispute that, based on the alleged facts
here, Counts One and Two were identical in law and fact under the “elements-
only” test set forth in Blockburger, 284 U.S. at 304, and that the legislature did
not intend to allow multiple punishments for this criminal conduct. See Ziegler,
342 Wis. 2d 256, ¶¶59-63. The prosecution was free to pursue both charges at
trial but, given the bar against double jeopardy, Osornio could be punished for
only one.9

¶39 Unlike in some appeals that involve multiplicity, however, Osornio
does not argue that he received multiple punishments for the same offense. For
example, our supreme court has addressed claims by a defendant that his right to
be free of double jeopardy was violated, first, when he pleaded no contest to and
was sentenced for both second-degree reckless homicide and homicide by
intoxicated use of a vehicle and, second, when he pleaded to and was sentenced
for both of two counts of second-degree reckless endangerment. See State v.
Lechner, 217 Wis. 2d 392, 396-98, 576 N.W.2d 912 (1998). Here, in contrast, the

9
Osornio argues that the prosecution was obligated to choose between pursuing the
reckless homicide charge or the heroin delivery charge, but this is incorrect. “[I]t is permissible
to charge more than one count” in such circumstances, “even if the state may not punish a
defendant on more than one count.” See State v. Davison, 2003 WI 89, ¶¶38, 51-52, 263 Wis. 2d
145, 666 N.W.2d 1 (second emphasis added) (citing Ohio v. Johnson, 467 U.S. 493, 500 (1984));
see also WIS. STAT. §§ 939.65, 939.66(1) (statutes generally authorizing the bringing of
multiplicitous charges but allowing conviction on only one). “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[s] for such multiple offenses in a
single prosecution.” Johnson, 467 U.S. at 500. It remains, however, that defense counsel failed
to recognize that Osornio could not be punished on both counts and that, therefore, a lesser-
included instruction was an option.

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No. 2024AP2368-CR

multiplicity issue was brought to the circuit court’s attention in time for the court
to enter a conviction and sentence Osornio on the reckless homicide charge alone.

¶40 Osornio argues in pertinent part that deficient performance by his
attorneys related to multiplicity cost him the probable outcome of a conviction on,
at most, the delivery charge. As part of this argument, Osornio contends,
incorrectly, that defense counsel should have recognized that the prosecution, in
addressing Osornio’s alleged delivery of heroin to A.B., was required to choose
between charging either a single count of reckless homicide or a single count of
heroin delivery. See supra note 9 (regarding the incorrect argument). But Osornio
correctly contends that, because the State charged reckless homicide, either side
could have requested an instruction on the lesser-included offense of heroin
delivery. This instruction would have informed the jury that it must “make every
reasonable effort to agree unanimously on [its] verdict on the” greater offense of
reckless homicide “before considering” the lesser charge of heroin delivery, and to
turn to the lesser offense only “after full and complete consideration of the
evidence.” WIS JI—CRIMINAL 112.10

10
We observe that, if the prosecution here had elected to proceed to trial on the more
serious reckless homicide charge alone, defense counsel might have considered the all-or-nothing
strategy of choosing not to pursue a lesser-included instruction. See State v. Kimbrough, 2001
WI App 138, ¶32, 246 Wis. 2d 648, 630 N.W.2d 752 (reasoning that, given evidence at issue, a
reasonable defense counsel “might decide that an all-or-nothing strategy was viable,” i.e., seeking
the better potential outcome of acquittal on the greater offense—walking away without a
conviction—and giving up the potential relatively less attractive outcome of a conviction on the
lesser-included offense alone); see also State v. Eckert, 203 Wis. 2d 497, 510, 553 N.W.2d 539
(Ct. App. 1996) (defense counsel did not perform deficiently by making “a strategic decision not
to request a lesser-included instruction because it would be inconsistent with, or harmful to, the
general theory of defense”). But that is not what occurred. The prosecution elected to proceed on
both charges.

18
No. 2024AP2368-CR

¶41 Osornio contends that, if he had not been deprived of the benefit of a
jury that properly understood, from the start of its deliberations, that it had to
follow the lesser-included instruction, there was a reasonable probability of the
following occurring. The jury first would have made reasonable efforts at
unanimity, by considering all of the relevant evidence, and then reached a
deadlock on the reckless homicide charge. Then, it would have sought to reach a
verdict on the heroin delivery charge. This would have left Osornio with, at worst,
a conviction on the lesser charge.

¶42 After discussing legal standards and additional background, we
explain why we agree with Osornio to the extent that he has shown that there is a
reasonable probability that he would not have been convicted of reckless homicide
if the jury had been given the lesser-included instruction from the start.

A. Ineffective Assistance of Counsel Legal Standards

¶43 The Sixth and Fourteenth Amendments to the United States
Constitution, and Article I, Section 7 of the Wisconsin Constitution, guarantee
criminal defendants the right to effective assistance of counsel. State v.
Arrington, 2022 WI 53, ¶71, 402 Wis. 2d 675, 976 N.W.2d 453. In order to be
deemed constitutionally ineffective, counsel’s performance must be deficient, and
the deficient performance must be prejudicial. Id. (citing authority that includes
Strickland v. Washington, 466 U.S. 668 (1984)).

¶44 To establish deficient performance, the defendant must prove that
“‘counsel’s performance fell below an objective standard of reasonableness.’” Id.,
¶72 (quoting State v. Maday, 2017 WI 28, ¶54, 374 Wis. 2d 164, 892 N.W.2d
611). Courts are to “‘indulge a strong presumption’” that counsel’s challenged

19
No. 2024AP2368-CR

performance fell “‘within the wide range of reasonable professional assistance.’”
Id. (quoting Strickland, 466 U.S. at 689).

¶45 To establish prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id., ¶74 (quoting
State v. Domke, 2011 WI 95, ¶54, 337 Wis. 2d 268, 805 N.W.2d 364).

B. Additional Background

¶46 The circuit court here initially instructed the jury on the elements of
Counts One and Two and directed it to attempt to return verdicts on both counts,
without informing it that the heroin delivery charge was a lesser-included offense
of the reckless homicide charge on the facts alleged by the prosecution. The jury
began deliberations shortly before 12:30 p.m. on the second day of the two-day
trial.

¶47 Shortly before 2:05 p.m., the jury sent out a note with this question:
“Do[] the different colors of heroin mean two different sources?” Neither party
cites record evidence that places the substance of this question about heroin colors
in meaningful context. For our purposes, this note stands only for the proposition
that the jury appeared to be fully engaged in deliberations based on the initial
instructions. The parties both recommended, and the circuit court agreed, to
respond only that the jury should rely on its collective memory of the evidence.
The jury resumed deliberations.

¶48 At about 3:45 p.m., having deliberated for a total of over three hours,
the jury sent out a second note with two statements and a question: “We have a

20
No. 2024AP2368-CR

conclusion on Count Two. We cannot come to an agreement on Count One. How
should we proceed?”

¶49 In response, the circuit court decided to give the jury the
“Supplemental Instruction on Agreement,” WIS JI—CRIMINAL 520, commonly
referred to as the “Allen instruction,” after Allen v. United States, 164 U.S. 492
(1896), which may be given after a jury has expressed an inability to reach an
agreement.11 After giving the Allen instruction and sending the jury back out to
resume deliberating, the court asked counsel outside the jury’s presence to
consider the court’s options going forward “if the jury continues to be deadlocked
on Count 1.”

¶50 At 6:20 p.m., with the jury still deliberating, the attorneys went back
on the record outside the presence of the jury so that the defense could raise an
issue. The issue was multiplicity. The prosecution agreed that the two counts
were multiplicitous.

11
The Allen instruction, given by circuit court here, states:

You jurors are as competent to decide the disputed issues of fact
in this case as the next jury that might be called to determine
such issues.

You are not going to be made to agree, nor are you going to be
kept here until you agree. It is your duty to make an honest and
sincere attempt to arrive at a verdict. Jurors should not be
obstinate; they should be open-minded; they should listen to the
arguments of others, and talk matters over freely and fairly, and
make an honest effort to come to a conclusion on all the issues
presented to them.

You will please retire again to the jury room.

21
No. 2024AP2368-CR

¶51 The defense position was that, if the jury had been instructed from
the start regarding its required approach, given the greater and lesser charged
offenses, it would have returned a verdict on Count Two when it announced at
about 3:45 p.m. that it could not reach an agreement on Count One, with no need
for the Allen instruction. This was so, the defense argued, because the jury would
have understood, from the lesser-included instruction, that if it was unable to reach
a unanimous verdict on the only charge, reckless homicide, then it should attempt
to return a verdict on the lesser-included offense of heroin delivery. For these
reasons, the defense requested that the circuit court “call the jury in, accept [its]
verdict on Count 2, and excuse” the jury. In contrast, the prosecution asked the
court to give the jury the lesser-included instruction and advise it to continue to
deliberate.

¶52 The circuit court denied the defense motion to essentially accept
from the jury a verdict on Count Two, ruling that the jury should “continue to
deliberate on Count 1 because I don’t think they’re deadlocked yet. They’re still
requesting information, and they’re still deliberating on Count 1.” At the same
time, the court (at least initially) also did not follow the prosecution
recommendation to provide the lesser-included instruction.

¶53 In the meantime, the jury had sent out a third note, indicating that it
was written at 6:10 p.m. This note asked for a hard copy of a series of text
messages between Osornio and A.B. These texts had been admitted as evidence
and published to the jury via a screen during the trial. With the agreement of the
parties, the circuit court directed that the jury be provided with a hard copy of the
text messages.

22
No. 2024AP2368-CR

¶54 At around 7:08 p.m., with the jury continuing to deliberate, the
prosecution requested that the court give the jury a modified version of the lesser-
included instruction, tailored to the circumstances. The defense did not object to
the wording of this modified lesser-included instruction, although the defense
preserved its preference for a different general approach. The court agreed to give
this instruction, doing so at approximately 7:16 p.m. The following was the
substantive text:

You should make every reasonable effort to agree
unanimously on your verdict on Count 1. However, if after
full and complete consideration of the evidence, you
conclude that further deliberation would not result in
unanimous agreement on Count 1, you should sign your
verdict on Count 2 and inform the Court of your verdict.

We observe that, by the time the jury received this modified lesser-included
instruction, it had been deliberating for a total of approximately six and one-half
hours.

¶55 At about 8:16 p.m., the jury returned with verdicts of guilty on both
Count One and Count Two. The circuit court entered a conviction on Count One
only.

¶56 As referenced above, Osornio filed a postconviction motion claiming
ineffective assistance of trial counsel based on the multiplicity issue, and at the
Machner hearing, both defense counsel testified that they did not notice the
multiplicity issue until shortly before they returned to court at approximately
6:20 p.m., and there is no dispute that the prosecution and the circuit court also
had not noticed that the counts were multiplicitous.

¶57 The circuit court denied the postconviction motion. The court
assumed deficient performance and concluded that Osornio failed to show

23
No. 2024AP2368-CR

prejudice as a result of the assumed deficiencies. The court did not discount the
defense position that, if the jury had been given the lesser-included instruction
from the start, then it might have returned a guilty verdict on the lesser-included
delivery charge alone. But in denying the motion, the court reasoned that the
following was an “equally plausible” outcome: if the jury had been given the
lesser-included instruction from the start, then it “would not have reached a point
of deadlock” on the reckless homicide charge before it fully considered all of the
evidence and the legal standards, and that, after such full consideration, the jury
would have returned a proper guilty verdict on reckless homicide, with no need to
move on to consider the lesser-included offense. The court stated that “[t]here is
no indication in the record that [the jury] had exhausted all reasonable efforts to
agree on the reckless homicide charge after deliberation of about three hours, after
factoring in time for lunch.”

C. Analysis

¶58 We now explain why we conclude that Osornio has shown that
defense counsel was deficient in failing to timely recognize and address the
multiplicity issue. We also conclude that Osornio has shown at least a reasonable
probability that, if counsel had done so, the result of the trial would have been
different, and that this undermines our confidence in the outcome of the trial.

Deficient Performance

¶59 The State on appeal implicitly assumes that defense counsel’s
performance was deficient. The circuit court explicitly made the same assumption
in ruling on the postconviction motion. These assumptions are appropriate. The
performance of counsel was objectively unreasonable. Even after taking into
account the “‘strong presumption’” that their performance fell “‘within the wide

24
No. 2024AP2368-CR

range of reasonable professional assistance,’” we conclude that it “‘fell below an
objective standard of reasonableness.’” See Arrington, 402 Wis. 2d 675, ¶72
(quoted sources omitted). Overlooking the multiplicity issue was not reasonable
professional assistance. It is true that the issue was caught in time to allow the
court to avoid imposing multiple punishments for the same offense. But Osornio
was nevertheless deprived of the opportunity to request the lesser-included
instruction.

¶60 As noted above, both defense counsel at the Machner hearing
explained that they entirely missed the issue until the jury was deep into its
deliberations and that they did not have a sound strategic reason not to seek the
lesser-included instruction. The circuit court credited this testimony. That
distinguishes this case from those cases in which only the greater offense is
charged and defense counsel adopts, or could reasonably adopt, an all-or-nothing
strategy of encouraging the jury to acquit by not giving it the option of convicting
on a lesser-included offense. See supra note 10. Again, the prosecution pursued
both offenses, and there is no evidence that could support a conclusion that
defense counsel had or could have had a strategic reason not to request the lesser-
included instruction.

¶61 Further, we see no reason to think that the circuit court here would
have had a basis to deny a motion to give the lesser-included instruction if the
defense had requested it. The missed potential benefit to Osornio should have
been obvious from the time the case was charged through to the time of trial.
Applying the objective standard of reasonableness, the three overlapping elements
in the two counts should have prompted double jeopardy concerns by defense
counsel before trial.

25
No. 2024AP2368-CR

¶62 Multiplicity issues present questions of law. State v. Davison, 2003
WI 89, ¶15, 263 Wis. 2d 145, 666 N.W.2d 1. Here, defense counsel was not
required to undertake factual investigation or deep research in order to spot the
multiplicity issue and take effective related steps. This area of Wisconsin law is
not new or obscure. See WIS JI—CRIMINAL 112 (noting an original publication
date of 1962); see also Harrell v. State, 88 Wis. 2d 546, 572-74, 277 N.W.2d 462
(Ct. App. 1979) (citing authority that includes F. Remington and A. Joseph,
Charging, Convicting and Sentencing the Multiple Crim. Offender, 1961 WIS. L.
REV. 528, 545, and 1 WHARTON’S CRIM. L. AND PROC., § 32, at 67-68 (Anderson
ed. 1957)).

¶63 It is true that some multiplicity issues can be nuanced. There can be
complicated disputes about the manner in which the charges brought by the State,
or the proof at trial, splits an alleged course of conduct into multiple violations of
the same statute. See State v. Koller, 2001 WI App 253, ¶¶42-44, 248 Wis. 2d
259, 635 N.W.2d 838 (referring to “the subtlety of some multiplicity challenges”),
holding modified by State v. Schaefer, 2003 WI App 164, ¶52, 266 Wis. 2d 719,
668 N.W.2d 760; see also Davison, 263 Wis. 2d 145, ¶38 (noting that care must
be taken to distinguish between charging options available to prosecutors and
prohibited punishments). Defense counsel are in some cases presented with
“complicated” choices, “involving legal expertise and trial strategy,” in deciding
whether to request one or more lesser-included instructions. State v. Eckert, 203
Wis. 2d 497, 509, 553 N.W.2d 539 (Ct. App. 1996). But here, we discern nothing
in the record or in the uncontested postconviction testimony of trial counsel that
provides a reason to think that the issue should have been difficult for defense
counsel to spot or that, once spotted in a timely manner, it should have been
difficult for defense counsel to address.

26
No. 2024AP2368-CR

Prejudice

¶64 We conclude that it is reasonably probable that the outcome of
Osornio’s trial would have been different if defense counsel had taken the
following simple steps, consistent with defense counsels’ postconviction hearing
testimony, which was credited by the circuit court. Given that the prosecution
decided to pursue both charges at trial, counsel should have called the multiplicity
problem to the attention of the circuit court and requested the lesser-included
instruction well before counsel eventually took these steps. If that had happened,
there is at least a substantial likelihood that the jury would have returned a verdict
on the heroin delivery count alone.

¶65 It appears very likely that the hypothetical verdict on the heroin
delivery charge alone at about 3:45 p.m. would have been guilty. This is because,
if the jury’s agreement had been for a verdict of not guilty on Count Two, then the
jury should have immediately recognized that it was obligated to return a verdict
of not guilty on Count One, since all of the elements of Count Two were included
in Count One.

¶66 But of course a verdict of guilty on Count Two alone would have
been a result decidedly more favorable for Osornio than a conviction for reckless
homicide alone. And that more favorable result was a distinct possibility, in light
of the jury’s 3:45 p.m. note. The note can be reasonably interpreted to mean that
the jury had reached a deadlock on the reckless homicide charge, despite
reasonable efforts, but that it was fully prepared to return a verdict on the heroin
delivery charge. On these facts, there is at least a reasonable probability that, if
the jury had been given the lesser-included instruction from the start, then by
about 3:45 p.m. it would have considered itself to have already made “every

27
No. 2024AP2368-CR

reasonable effort to agree unanimously on [its] verdict on the” greater offense of
reckless homicide, “after full and complete consideration of the evidence,” and,
accordingly, proceeded to resolve the lesser charge of heroin delivery with a single
verdict on that count. See WIS JI—CRIMINAL 112.

¶67 As we have noted, making the prejudice-prong probability
determination requires consideration of the “totality of the evidence” that was
before the finder of fact. See Strickland, 466 U.S. at 695. But even when we take
into account the benefit to the prosecution of the other-acts evidence discussed
above, there were potentially viable defense theories. This included the defense
theory that, even if A.B. had gotten heroin from Osornio, and even if A.B. had
used that heroin, that use was not a substantial factor in A.B.’s death, given
evidence of contemporaneous alcohol consumption, ongoing heart disease, and
signs of chronic alcohol abuse. There is no room for an argument that Osornio
cannot show prejudice because the evidence was so strong that the jury would
have convicted Osornio of reckless homicide regardless of the lesser-included
offense issue.

¶68 We observe that aspects of the lesser-included instruction somewhat
overlap with the substance of the Allen instruction, in that the lesser-included
instruction urges the jury to make “every reasonable effort to agree” “after full and
complete consideration of the evidence” on the greater offense. The lesser-
included instruction is not as strongly worded as the Allen instruction, but it points
in the same direction. Therefore, if the jury here had been given the lesser-
included instruction from the start, it would have been directly encouraged to bear
down, from the first minutes of its deliberations, on the reckless homicide charge
before moving on, if necessary, to consider the heroin delivery charge.

28
No. 2024AP2368-CR

¶69 With this dynamic in mind, there is merit to the State’s argument, as
far as it goes, that if the jury had been given the lesser-included instruction from
the start, it might not, as of around 3:45 p.m., have considered itself to have made
“every reasonable effort to agree unanimously on [its] verdict on the” greater
offense of reckless homicide, “after full and complete consideration of the
evidence.” This is one possibility. But given the record summarized above, the
State fails to persuade us that there is not a substantial likelihood that a jury given
this instruction from the start would have used its initial hours of deliberation to
conclude—in applying all of the instructions, including the lesser-included
instruction—that it should return a verdict of guilty on the heroin delivery count
alone.

¶70 Expanding on this topic, the State makes a fair point in emphasizing
the following. From 3:45 p.m. onwards, each time the jury was given the direction
to, or at least allowed to, continue to deliberate, it did not report itself to be hung
on either count—not after it received the Allen instruction after it sent out the
3:45 p.m. note, not after it sought the text messages via the note sent at 6:10 p.m.,
and not after it received the modified lesser-included instruction at 7:16 p.m. We
agree that these extended periods of additional deliberation increase the
probability that, even if the jury had been given the lesser-included instruction
from the start, it would have returned a guilty verdict on Count One alone at some
point. But these extended efforts by the jury do not establish what would have
happened by about 3:45 p.m. under those circumstances. That is, the jury’s
extended efforts do not reduce to the level of mere conceivability or
insubstantiality the probability that it would have returned a guilty verdict on
Count Two alone.

29
No. 2024AP2368-CR

¶71 For these reasons, we disagree with the circuit court’s conclusion
that the record contains “no indication” that the jury “exhausted all reasonable
efforts to agree on the reckless homicide charge after deliberation of about three
hours, after factoring in time for lunch.” The jury’s unqualified statements in the
3:45 p.m. note create a substantial probability that the jury might have returned a
verdict on Count Two alone by that point, which would have left the court with no
reason to give the Allen instruction. It is true that, by all appearances, the jury
dutifully resumed deliberations after receiving the Allen instruction, following its
direction to redouble the jury’s efforts at reaching one or more verdicts. But
again, the fact of extended subsequent jury deliberations, which eventually
produced two guilty verdicts, is not necessarily inconsistent with a reasonable
probability that, had the jury received the lesser-included instruction from the
start, it would have returned a guilty verdict on Count Two alone.

¶72 The circuit court essentially conceded as much when it stated in its
written decision on the postconviction motion that it appeared to be “equally
plausible” either way as to what the jury might have done if it had been given the
lesser-included instruction from the start. We need not decide whether it is
somewhat more likely, or perhaps somewhat less likely, that the jury under those
circumstances would have deadlocked on the greater offense or instead would
have returned a verdict of guilty on that offense. Either way, our confidence in the
outcome is undermined.

¶73 Our supreme court has emphasized the teaching of the U.S. Supreme
Court that a defendant seeking to show prejudice based on deficient performance
of counsel does not need to “prove [that] the outcome would ‘more likely than not’
be different” absent the deficient performance. State v. Sholar, 2018 WI 53, ¶44,
381 Wis. 2d 560, 912 N.W.2d 89 (quoting Strickland, 466 U.S. at 693). Instead,

30
No. 2024AP2368-CR

“the prejudice component asks ‘whether it is reasonably likely the result would
have been different.’” State v. Langlois, 2017 WI App 44, ¶20, 377 Wis. 2d 302,
901 N.W.2d 768 (quoting Harrington v. Richter, 562 U.S. 86, 111 (2011)). “‘The
likelihood of a different result must be substantial, not just conceivable.’” Id.
(quoting Harrington, 562 U.S. at 112). Applying these standards here, there is a
substantial, and not merely a conceivable, likelihood that a jury that was properly
instructed from the start would have reached a more favorable result for Osornio.

¶74 In sum on this issue, we conclude that Osornio has shown both
deficient performance by defense counsel at trial and resulting prejudice, which
requires the reversal of the judgment of conviction and a new trial.12

CONCLUSION

¶75 For all these reasons, we affirm the circuit court’s decision to admit
the other-acts evidence, but we reverse its decision to deny the postconviction
motion, and we remand for a new trial.

By the Court.—Judgment and order reversed and cause remanded
with directions.

Recommended for publication in the official reports.

12
Osornio also argues that trial events related to the multiplicity issue require a new trial
based on alternative theories of plain error and reversal in the interest of justice. We need not
address these alternative theories in light of our conclusion that defense counsel was
constitutionally ineffective in connection with the multiplicity issue.

31