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SCOW slices single course of conduct into 2 acts and 3 crimes, finds no Double Jeopardy violation

State v. Heather L. Steinhardt, 2017 WI 62, 6/21/17, affirming a per curiam court of appeals opinioncase activity (including briefs)

Steinhardt led her 12 year old daughter to her bedroom so that her husband (the child’s step father) could have sex with her. In fact, Steinhardt sat on the bed while the assault occurred. The majority holds that leading the daughter to the assault and sitting on the bed during the assault are 2 different acts supporting 3 different crimes and punishments. Justice Abrahamson (joined by A.W. Bradley) calls Steinhardt’s crimes “revolting and detestable” but insists the “constitutional guarantees against double jeopardy protect us all, even Heather Steinhardt.” Dissent ¶47.

The State charged Steinhardt with Count 1: failure to protect a child from sexual assault per §948.02(3), Count 2: 1st degree sexual assault of a child, party to a crime, per §948.02(1)(e) and 939.05, and Count 3: child enticement per §948.07(1). She received a 37.5 year prison sentence.

The test for determining whether charges are multiplicious asks: (1) are the charged offenses identical in law and fact; and (2) if not, did the legislature intend the multiple offenses to be brought as a single count? State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d (1989). The State conceded, and SCOW agreed, that Counts 1 and 2 were identical in law due to the operation of §939.66(2p), which makes failure to protect a child from sexual assault a lesser included offense of 1st degree sexual assault of a child under 13.  So the big fight in this case was over whether Counts 1 and 2, which both rested on the same probable cause section of the State’s complaint, were identical in fact. The majority says they were not:

¶23 Here, we have an act of omission——Steinhardt sitting on the bed observing Walter sexually assault her child—— supporting Count 1 and an act of commission——Steinhardt bringing her daughter to the bedroom——supporting Count 2. As in both Eisch and Ziegler, there is a difference in Steinhardt’s conduct that amounts to a significant change in activity. Sitting on the bed is a departure from bringing F.G. to the bedroom and represents a change in Steinhardt’s activity such that her conduct is different in nature. Indeed, sitting on the bed is such a departure from Steinhardt’s conduct of bringing F.G. to the bedroom that we can say Steinhardt came “to a fork in the road,” Harrell, 88 Wis. 2d at 558 (quoting Irby v. United States, 390 F.2d 432, 437 (D.C. Cir. 1967) (Leventhal, J., concurring)), and departed from her earlier course of conduct such that we have two separate volitional acts, see Eisch, 96 Wis. 2d at 36 (emphasizing that each crime required “a separate volitional act”). Unlike Hirsch where the acts were similar in nature, here we have a change that had to take place between Steinhardt acting in the first instance (bringing her daughter into the bedroom) and Steinhardt failing to act (sitting on the bed and observing Walter sexually assault her daughter) in the second. Furthermore, F.G. was subjected to a new and different humiliation, danger, and pain with each act her mother took. Consequently, we conclude that Counts 1 and 2 are not identical in fact and therefore Steinhardt’s convictions on both counts do not violate double jeopardy.

Abrahamson reaches the opposite conclusion:

¶50 . . . Counts 1 and 2 are identical in law and fact;. . . the legislature did not intend that these two counts for two offenses identical in law and fact under two subsections of a single statute would result in two convictions, see Wis. Stat. §939.66(1) and (2p) and . . .  convictions for both counts are multiplicitous. I further conclude that Count 3 is not identical in law with the other counts but that the legislature did not intend that Heather Steinhardt’s single, brief course of conduct subject her to multiple convictions and that her conviction of Count 3 is multiplicitous.

Abrahamson worries that the majority’s reasoning could lead to the State overcharging offenses and imposing multiple sentences for a single act or course of conduct. She asks how courts are to distinguish between acts of omission and commission when a single act may be cast as either. Steinhardt’s act of bringing her daughter to her husband’s room (which the majority calls an act of commission) may be restated as an act of omission (failing to remove the child from harm’s way). The act of sitting on the bed during the assault (which the majority calls an act of omission) could be restated as an act of commission (facilitating the assaults).

¶91 . . . Under the majority opinion, Heather Steinhardt apparently could be charged with additional offenses, namely, an offense for each distinct sexual intrusion that Walter inflicted on the child.

¶92 In the Eisch case, 96 Wis. 2d at 27 . . . the court viewed each sexual assault as a different intrusion on the body of the victim. Here Walter committed three different sexual intrusions on the child and apparently Heather Steinhardt might be charged with party to a crime for each assault.

¶93 Each charge of a sexual assault supports its own penalty and the sentences for multiple assaults can be consecutive. A real question exists whether it is fundamentally fair to allow such charging and sentencing in the instant case when Heather Steinhardt’s course of conduct took place over a relatively brief period of time and was all part of the same episode.

Note: Our post on the PFR grant predicted that SCOW would clarify State v. Kelty governing the review of double jeopardy challenges in cases where the defendant pled. That doesn’t seem to have happened.

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