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Interfering with Child Custody, § 948.31(2) – Elements; Sexual Assault – Multiplicity; Mug Shot – Admissibility

State v. Scott E. Ziegler, 2012 WI 73, on certificationcase activity

Interfering with Child Custody, § 948.31(2) – Elements

Language in State v. Bowden2007 WI App 234, ¶18, 306 Wis. 2d 393, 742 N.W.2d 332, that one method of violating § 948.31(2) (interference with child custody) requires the parent’s “initial permission” to take child, is now “withdrawn”:

¶52  Pursuant to the plain language of Wis. Stat. § 948.31(2), a person is guilty of interference with child custody if, without the consent of the child’s parents, the person either (a) “causes a child to leave” the child’s parents, (b) “takes a child away” from the child’s parents, or (c) “withholds a child for more than 12 hours” from the child’s parents.  See also Wis JI——Criminal 2167.  Specific to the third method of interference, therefore, the State must prove three elements: (1) on the date of the alleged offense, the child was under the age of 18 years; (2) the defendant withheld the child for more than 12 hours from the child’s parents; and (3) the child’s parents did not consent.

¶53  As the court of appeals correctly acknowledged in its certification, nothing in the text of Wis. Stat. § 948.31(2) suggests that the State must also prove that the defendant had the parents’ initial permission to take the child.  Indeed, the statute’s only arguable reference to permission comes in the form of the phrase “without the consent of the parents”——a phrase that requires the State to prove that the defendant was without the parents’ permission to withhold their child for more than 12 hours.  Moreover, the common and ordinary meaning of the phrase “withholds a child . . . from the child’s parents” does not suggest that the actor necessarily had the parents’ initial permission to take the child.  The word “withhold” is commonly understood to mean “[t]o keep in check; restrain” or “[t]o refrain from giving, granting, or permitting.”  The American Heritage Dictionary of the English Language 2050-51 (3d ed. 1992). Thus, a defendant withholds a child from the child’s parents within the meaning of § 948.31(2) if the defendant restrains the child or otherwise refrains from giving the child to the child’s parents, irrespective of whether the defendant had the parents’ initial permission to take the child.

¶54  Accordingly, in answer to the certified question, we conclude that the court of appeals’ interpretation of the phrase “withholds a child for more than 12 hours from the child’s parents” in Wis. Stat. § 948.31(2), as set forth in Bowden, is contrary to the plain language of the statute.  We therefore withdraw from Bowden any language that suggests that § 948.31(2) requires the State to prove that the defendant had the parents’ “initial permission” to take the child.  The remainder of Bowden retains its precedential value.[10]

Bowden otherwise retains precedential value, ¶7 n. 3, quoting Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, ¶56, 326 Wis. 2d 729, 786 N.W.2d 78 (“a court of appeals decision expressly overruled by this court no longer retains any precedential value, unless this court expressly states that it is leaving portions of the court of appeals decision intact” (emphasis added)). Also see discussion, here, re: distinction between decisions merely “reversed” and “expressly overruled.”

The dissent argues that the majority’s construction yields absurd results and a “staggering(ly)” broad reach to the statute, ¶¶92-128. Details won’t be recited here, except to say that the “proposed solution to this dilemma is to rely on prosecutorial discretion to ensure that the statute is applied only in appropriate situations,” ¶108. But it is worth noting that Bowden‘s construction was undertaken at the State’s urging, 2007 WI App 234, ¶18 (“The State posits that the withholding method of interference focuses on permission, not being in the parent’s presence. We agree.”). That doesn’t mean that second thoughts are always and necessarily precluded, of course, but it does raise at least a bit of a concern if appellate courts are going to adopt different constructions in support of affirmance, at the State’s behest and in the absence of change in caselaw or statutory text. Not that we’re cynical or anything. What about the due process-notice inhibitor (see discussion, here)? It goes unremarked by the court, probably because Ziegler doesn’t appear to have raised it, so we’ll never know its chance of success.

Sexual Assault – Multiplicity

Multiple sexual assault counts involving one victim were not multiplicitous – though identical in law, they were not identical in fact. See State v. Eisch, 96 Wis. 2d 25, 30-31, 291 N.W.2d 800 (1980) and State v. Hirsch, 140 Wis. 2d 468, 410 N.W.2d 638 (Ct. App. 1987), (uncontroversially) analyzed.

¶60  We review multiplicity claims according to a well-established two-pronged methodology. First, the court determines whether the offenses are identical in law and fact using the “elements-only” test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932). Patterson, 329 Wis. 2d 599, ¶12; State v. Davison, 2003 WI 89, ¶43, 263 Wis. 2d 145, 666 N.W.2d 1.  Under the “elements-only” test, two offenses are identical in law if one offense does not require proof of any fact in addition to those which must be proved for the other offense. See Blockburger, 284 U.S. at 304.  Still, offenses identical in law are not necessarily identical in fact.  See State v. Eisch, 96 Wis. 2d 25, 30-31, 291 N.W.2d 800 (1980).  Two offenses, which are legally identical, are not identical in fact if the acts allegedly committed are sufficiently different in fact to demonstrate that separate crimes have been committed.  See id. at 31; Multaler, 252 Wis. 2d 54, ¶¶56-57.

¶73  Comparing Eisch and Hirsch to the instant case, it is readily apparent that the five alleged acts comprised in Counts 10 through 14 of the information are much more akin to those acts at issue in Eisch.  The five alleged acts——fellatio, digital penetration of Nicole’s vagina, the touching of Nicole’s breasts, the touching of Ziegler’s penis, and the striking of Nicole’s buttocks——are significantly different in nature, involving different methods of intrusion and contact and different areas of Ziegler and Nicole’s bodies.  While the five alleged acts took place in the course of the same evening, each act is distinct and hence “required a new volitional departure” in Ziegler’s course of conduct.  See Eisch, 96 Wis. 2d at 36; see also Multaler, 252 Wis. 2d 54, ¶¶56-57.  Accordingly, we conclude that the five alleged acts are sufficiently different in fact to demonstrate that Ziegler committed five separate crimes.

Mug Shot – Admissibility in Evidence 

No error in admitting into evidence the defendant’s mug shot and showing it to the complainant for identification purposes, where: the complainant was shown the defendant’s mug shot after being unable to identify him court; the mug shot wasn’t published to the jury; and, the State didn’t suggest to the jury that the mug shot implied that the defendant had a prior record, ¶¶78-82. United States v. Harrington, 490 F.2d 487 (2nd Cir. 1973) (“introduction of the defendant’s mug shot constitutes reversible error unless … three prerequisites are satisfied”) assumed applicable and discussed, but holding neither adopted nor rejected. State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582 (“”evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary”), deemed inappliable:

¶82  In the instant case, Samantha’s identification of Ziegler through his mug shot did not constitute a showup.  The identification occurred in court, during trial.  By that time, Ziegler was no longer only a suspect but rather a charged defendant.  What is more, there is no indication that misidentification was an issue at Ziegler’s trial, as every other alleged victim identified Ziegler, in court, as the perpetrator.  We therefore see no reason to apply Dubose to the instant case, and Ziegler points us to none.

Stun Belt 

No error to require that Ziegler wear stun belt in court, given that it would not have been visible to the jury, ¶¶83-86. State v. Champlain, 2008 WI App 5, ¶22, 307 Wis. 2d 232, 744 N.W.2d 889 (trial court has sua sponte duty to inquire into necessity for visible restraint), and State v. Miller, 2011 WI App 34, ¶4, 331 Wis. 2d 732, 797 N.W.2d 528 (trial court needn’t consider necessity of stun belt if not visible), discussed.

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