State v. Adam P. Rogers

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 II
February 18, 2026
To:
Hon. Daniel S. Johnson
Circuit Court Judge
Electronic Notice
Michele Jacobs
Clerk of Circuit Court
Walworth County Courthouse
Electronic Notice
Leonard D. Kachinsky
Electronic Notice
John W. Kellis
Electronic Notice
You are hereby notified that the Court has entered the following opinion and order:
2024AP2448-CR State of Wisconsin v. Adam P. Rogers (L.C. #2021CF33)
Before Neubauer, P.J., Grogan, and Lazar, 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).
Adam P. Rogers appeals from a judgment entered on a jury verdict and an order denying
his postconviction motion. Based upon our review of the briefs and Record, we conclude at
conference that this case is appropriate for summary disposition. See WIS. STAT. RULE 809.21
(2023-24).1 For the following reasons, we affirm.
At Rogers’s trial, a hotel manager testified that on January 4, 2021, he saw water leaking
directly under one of the hotel rooms, which he then entered and saw that the room was flooded.
1 All references to the Wisconsin Statutes are to the 2023-24 version.

No. 2024AP2448-CR
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He saw two people, Gary and Mary,2 unconscious in the overflowing bathtub; Gary’s face was
submerged in the water. He dialed 911. After their arrival, law enforcement and then
Emergency Management Services tried to revive Gary, who had no pulse. While Mary survived,
Gary died. Law enforcement found a little plastic baggie and a “rock substance” resembling
illegal drugs in the room.
Mary testified that on January 4, 2021, she or Gary called Rogers to obtain drugs. Rogers
delivered what Gary and Mary believed was heroin, but lab results determined was fentanyl.
Mary testified that she and Gary used the drug in the hotel room where they were later found
unconscious.
The forensic pathologist who performed Gary’s autopsy testified that it revealed that
Gary died of acute fentanyl toxicity. While drowning was the cause of death, fentanyl led to the
drowning and was a substantial factor in Gary’s death.
Law enforcement testified that on January 8, 2021, they conducted a controlled buy
where they had Mary call Rogers to obtain drugs. Mary and Rogers met at a convenience store
where Mary bought heroin from Rogers. Law enforcement arrested Rogers.
Law enforcement charged Rogers with one count of first-degree reckless homicide
(Count One, allegedly occurring on January 4, 2020), contrary to WIS. STAT. § 940.02(2)(a); and
two counts of delivery of heroin (Count Two, allegedly occurring on January 4; and
Count Three, allegedly occurring on January 8), contrary to WIS. STAT. § 961.41(1)(d)1.
2 Consistent with the policy in WIS. STAT. RULE 809.19(1)(g), the victims are identified by
pseudonyms.

No. 2024AP2448-CR
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Rogers pleaded not guilty to all counts. The jury returned a verdict of guilty on all
counts. The trial court sentenced Rogers on Count One to twelve years’ initial confinement and
ten years’ extended supervision consecutive to any other sentence, on Count Two to costs only,
and on Count Three to four years’ initial confinement and four years’ extended supervision
concurrent to any other sentence.
In August 2024, Rogers filed a postconviction motion, asking the circuit court to vacate
his conviction on Count Two on the ground that it was multiplicitous with Count One. Rogers
had not brought up this issue at trial. The court denied Rogers’s motion. The court held that
while Counts One and Two were identical in law, the two charges differed in fact as they
involved drug deliveries to two separate people. Rogers timely appealed.
Rogers claims that his constitutional rights protecting him from double jeopardy have
been violated by what he alleges are the State’s multiplicitous charges against him. See U.S.
CONST. amend. V; WIS. CONST. art. I, § 8. “‘[A] constitutional right may be forfeited in criminal
… cases by the failure to make timely assertion of the right ….[’]” State v. Koller, 2001 WI App
253, ¶41, 248 Wis. 2d 259, 635 N.W.2d 838 (quoting Michel v. Louisiana, 350 U.S. 91, 99
(1955), reh’g denied, 350 U.S. 955 (1956) (citation omitted). “[A] multiplicity objection is
waived if not raised prior to the time the case is submitted to the jury.” Koller, 248 Wis. 2d 259,
¶44 (emphasis added). A defendant who waives this objection “may not obtain relief unless he
shows that an omitted multiplicity objection constituted ineffective assistance of counsel.” Id.;
see State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (“[T]he normal procedure
in criminal cases is to address waiver within the rubric of the ineffective assistance of counsel.”).
Whether a defendant has “adequately preserved [a claim] for appeal is a question of law this
court reviews de novo.” State v. Coffee, 2020 WI 1, ¶17, 389 Wis. 2d 627, 937 N.W.2d 579.

No. 2024AP2448-CR
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Here, Rogers failed to make his multiplicity objection at trial, prior to the time the case
was submitted to the jury. In his postconviction motion, he fails to allege ineffective assistance
of counsel, which is the proper recourse for pursuing his forfeited claim. Thus, we affirm on the
basis that Rogers forfeited his claim.
Therefore,
IT IS ORDERED that the judgment and order of the circuit court are summarily affirmed.
See WIS. STAT. RULE 809.21.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Samuel A. Christensen
Clerk of Court of Appeals