Oct. 26, 2022 – Two statutes that create homicide liability for aiding and abetting the acquisition of drugs that cause a fatal overdose are not unconstitutionally vague, the Wisconsin Court of Appeals has held.
State v. Hibbard, 2022 WI App 53 (Sept. 21, 2022), the Court of Appeals District II held that the statutes were sufficiently precise to inform average persons of their effect.
Texts Between Father and Daughter
On the weekend of July 8-9, 2017, Taralyn Hibbard spent the weekend with a friend in Sullivan.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Over the weekend, Taralyn texted her father Terry Hibbard about bringing drugs to his house when she returned from Sullivan. Hibbard replied that he was interested in acquiring some drugs.
Terry Hibbard picked up Taralyn on July 9, then drove her to an apartment building in Milwaukee. There, Taralyn bought heroin from Davion Poe.
Hibbard and Taralyn returned to Hibbard’s residence in Ozaukee County. Once there, Taralyn gave Hibbard some of the heroin.
The Ozaukee County Sheriff’s Department went to Hibbard’s residence on the morning of July 10, after receiving a report that someone had died there.
In a bedroom, deputies found Taralyn dead. Near her body, the deputies found a syringe that was later determined to contain heroin and fentanyl and Taralyn’s cell phone.
The medical examiner conducted an autopsy and found heroin and fentanyl in Taralyn’s system, and concluded that she’d died from acute mixed drug intoxication. Taralyn was 32 years old.
Conviction for Reckless Homicide
Poe was convicted of reckless homicide for selling Taralyn the drugs that killed her.
After Poe was convicted, the police arrested Hibbard. The Ozaukee County District Attorney charged him with first-degree reckless homicide as a party to a crime under
Wis. Stat. section 940.02(2)(a) and
A jury found Hibbard guilty. Hibbard filed for post-conviction relief. He argued that the evidence was insufficient to prove that he’d aided and abetted Poe in delivering drugs to Taralyn.
Hibbard argued that even if he were liable for his daughter’s death, section 940.02(2)(a) was unconstitutionally vague. The circuit court rejected Hibbard’s arguments. Hibbard appealed.
Evidence Was Sufficient
Writing for a three-judge panel, Judge Lisa Neubauer explained that when viewed in the light most favorable to the prosecution, the evidence introduced against Hibbard was sufficient to convict him.
Neubauer pointed out that the jury heard undisputed testimony that Poe had sold heroin to Taralyn, who took the heroin to Hibbard’s residence and died there after using the heroin.
Judge Neubauer reasoned that the jury could thus have easily concluded that Taralyn died from using the drugs sold to her by Poe. Similarly, Neubauer explained, the evidence linking Hibbard to the drugs supplied to Taralyn by Poe was sufficient to sustain his conviction.
“The jury could conclude that the text messages between Hibbard and Taralyn established his knowledge that Poe intended to deliver heroin to her, and that he picked up Taralyn and drove her to the place where she had arranged to meet Poe in order to facilitate that transaction,” Judge Neubauer wrote.
Only Aided Buyer?
Hibbard argued that the evidence showed only that he helped Taralyn to buy the heroin, not that he helped Poe sell the heroin.
He cited a Wisconsin Supreme Court case in which the court overturned the conviction of a man who had sold a small amount of cocaine to a bartender before telling her he could sell her a bigger amount of cocaine.
In that case, the supreme court held that the legislature didn’t intend that a buyer-seller relationship for a small amount of drugs for personal use would constitute a conspiracy and make the buyer liable for a felony.
But Hibbard’s reasoning – that his actions could aid only Poe in selling the heroin or Taralyn in buying it, not both – was flawed, Neubauer explained.
“In picking up Taralyn – who could not drive – and driving her to meet Poe, Hibbard assisted both Poe’s delivery of heroin and his daughter’s acquisition of it,” Judge Neubauer wrote.
“That Hibbard did not communicate directly with Poe, and may have wanted to obtain some of the drugs for his own use, does not change the fact that his conduct assisted Poe in delivering the drugs to Taralyn,” Neubauer wrote.
Statutes Clearly Identify Conduct
Hibbard’s vagueness argument, which the court of appeals interpreted as an as-applied rather than a facial challenge, fared no better.
Hibbard argued that sections 940.02(2)(a) and 939.05(5)(2)(b) were imprecise as to what conduct constitutes aiding and abetting a delivery of deadly drugs.
He also argued that the statutes provided no real guidance to the police or prosecutors in determining what level of involvement would subject a potential abettor to liability.
But Judge Neubauer explained that neither argument could overcome the presumption of constitutionality or establish that the interaction of the two statutes made the statute unconstitutionally vague.
“Together, these statutes clearly identify three actions – manufacture, distribution, and delivery – that are prohibited with respect to controlled substances, and further specify that the term ‘delivery’ includes an attempt, actual or constructive, to transfer the controlled substance from one person to another,” Neubauer wrote.
“Hibbard does not identify any language in section 940.02(2)(a) that the average person would be unable to decipher, and we conclude that a person wanting to follow the law is given sufficient guidelines in the text of the statute as to the conduct it proscribes,” Judge Neubauer wrote.
More Than Just a Driver
Neubauer pointed out that Hibbard’s argument minimized his role in the transaction that led to his daughter’s death.
“The evidence showed that Hibbard’s conduct went beyond merely accepting and using a portion of the drugs his daughter purchased,” Judge Neubauer wrote.
“He encouraged his daughter to obtain the drugs and drove her to the location where she met the seller so she could do so. That he transported only the buyer to the meeting place does not mean that his conduct did not also facilitate the seller’s delivery of drugs.”