State v. Church

• Decision Date: 17 December 1998
• Docket Number: No. 97-3140-CR,97-3140-CR
• Citation: 223 Wis.2d 641,589 N.W.2d 638
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. William J. CHURCH, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 638

589 N.W.2d 638

223 Wis.2d 641

STATE of Wisconsin, Plaintiff-Respondent, v. William J. CHURCH, Defendant-Appellant. ^d No. 97-3140-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 2, 1998.

Opinion Released Dec. 17, 1998.

Opinion Filed Dec. 17, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Mitchell E. Cooper, assistant state public defender, Madison office.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Susan M. Crawford, assistant attorney general with whom on the brief was James E. Doyle, attorney general.

Before DYKMAN, P.J., EICH and DEININGER, JJ.

DEININGER, J.

William Church was convicted of several offenses stemming from an incident in which he drugged and sexually assaulted a seventeen-year-old boy in a hotel room. Church's convictions include two counts of child enticement, under § 948.07, STATS., which he appeals on the grounds that the two counts are multiplicitous because they are based on a single act of enticement. We conclude that the two counts are multiplicitous because § 948.07 does not permit multiple punishments for one act of enticement simply because the defendant intended multiple misdeeds, rather than a single misdeed, with the victim. We reverse his conviction on one count of enticement and remand for re-sentencing on all remaining convictions.

BACKGROUND

The facts relevant to this appeal are undisputed. Church invited Jayson M., a seventeen-year-old boy, to travel with him from Cedar Rapids, Iowa, to the Wisconsin Dells. After Church and Jayson visited the Wisconsin Dells, they went to a hotel in Madison. In the hotel room, Church gave Jayson a marijuana cigarette, which they both smoked. Church also gave Jayson an alcohol drink, which Church had surreptitiously laced with a prescription painkiller. After Jayson fell asleep, Church exposed and photographed Jayson's penis, and he touched Jayson's penis several times. After Jayson slept for approximately two hours, he awoke when he felt Church touching his penis. Jayson left the hotel room and reported the A jury found Church guilty of five offenses: child sexual exploitation, contrary to § 948.05(1)(a), STATS.; delivering a controlled substance, contrary to § 961.41(1)(H)1, STATS.; second-degree sexual assault, contrary to § 940.225(2)(d), STATS.; and two counts of child enticement, one for enticement with intent to cause a child to expose a sex organ (§ 948.07(3), STATS.), and a second for enticement with intent to give a controlled substance to a child (§ 948.07(6), STATS.). Prior to sentencing, Church moved unsuccessfully to dismiss one of the enticement counts as multiplicitous. The court sentenced him to thirteen years in prison for the sexual assault, and it withheld sentence on the remaining convictions, ordering two twenty-four-year probation terms on the enticement counts, as well as a ten-year and six-year probation term, all concurrent with each other but consecutive to the prison sentence. Church appeals only his two convictions for child enticement.

incident to police officers who happened to be at the hotel.

ANALYSIS

The question before us is whether one act of enticing one child can support multiple enticement convictions because, at the time Church took Jayson into the hotel room, Church intended to commit multiple misdeeds. ¹ The State contends that Church's multiple convictions are permissible because each conviction is supported by Church's intent to do a different prohibited act, and each conviction represents the violation of a different subsection of the child enticement statute. Church contends that the two convictions are multiplicitous because they impose multiple punishments for a single offense.

The crime of child enticement is defined in § 948.07, STATS., which provides:

Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class BC felony:

(1) Having sexual contact or sexual intercourse with the child in violation of s. 948.02 or 948.095.

(2) Causing the child to engage in prostitution.

(3) Exposing a sex organ to the child or causing the child to expose a sex organ in violation of s. 948.10.

(4) Taking a picture or making an audio recording of the child engaging in sexually explicit conduct.

(5) Causing bodily or mental harm to the child.

(6) Giving or selling to the child a controlled substance or controlled substance analog in violation of ch. 961.

When a defendant is charged with more than one count for a single offense, the charges are multiplicitous. See State v. Rabe, 96 Wis.2d 48, 61, 291 N.W.2d 809, 815 (1980). Multiplicitous convictions violate the prohibition against double jeopardy contained in the Fifth Amendment of United States Constitution, which provides: "[N]o person shall be subject for the same offence to be twice put in jeopardy of life or limb." ² Whether Church's two convictions for child enticement violate the Fifth Amendment protection against double jeopardy is a question of law which we decide de novo. See State v. Sauceda, 168 Wis.2d 486, 492, 485 N.W.2d 1, 3 (1992).

The United States Supreme Court has identified three protections afforded by the double jeopardy provision: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (citations omitted). In cases implicating the protection against multiple punishments, the question is whether the punishments are for the "same offense." The answer depends on the intent of the legislature in drafting the criminal statutes under which the defendant is convicted. "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

Thus, although Church invokes the protection of the federal and state constitutions, the issue before us must be resolved as a question of statutory interpretation. If the legislature, in drafting § 948.07, STATS., intended multiple punishments for a single act of child enticement when that act was motivated by an intent to do multiple wrongs, then Church's convictions are not multiplicitous. If the legislature did not intend multiple punishments, then Church's convictions are constitutionally barred. See Sauceda, 168 Wis.2d at 492, 485 N.W.2d at 3-4.

The legislature's intent regarding multiple punishment is not plainly stated in § 948.07, STATS. Church contends that the language of the statute indicates a legislative intent to impose only a single punishment because of the use of the term "any" in the first part of the statute. He argues that the term "any" does not mean "only one," but should be read as "one or more." Thus, the statute should be interpreted to mean: whoever entices a child with intent to commit one or more of the following acts is guilty of a single felony. As he points out, however, according to the dictionary, "any" means "one, some, every, or all without specification." ³ The dictionary definition demonstrates that Church's proffered interpretation is a reasonable one, but not necessarily the only reasonable one.

Because the legislature's intent under § 948.07, STATS., regarding multiple punishment is ambiguous, we employ the two-prong test the Wisconsin Supreme Court has adopted to evaluate whether charges are multiplicitous. First, a court must determine whether the offenses are "identical in the law and in fact." If identical in both law and fact, the charges are multiplicitous. Second, if the offenses are not the same in law or fact, the court must determine whether the legislature nevertheless intended the multiple offenses to be brought as one count. See State v. Anderson, 219 Wis.2d 740, 747, 580 N.W.2d 329, 333 (1998).

a. Identity in Law.

Our first inquiry is whether the offenses are identical in law. Church's child enticement convictions were brought under a single statutory section, § 948.07, STATS., but each involved an intent element enumerated in different statutory subsections, § 948.07(3) and § 948.07(6). The State contends that because each subsection requires proof of a fact that the other does not, under the rule articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the two subsections are separate offenses and therefore Church may be punished under both. ⁴ We disagree.

We conclude that the question of whether Church's two convictions under § 948.07, STATS., are identical in law cannot be answered simply by applying the Blockburger rule. In Blockburger, the United States Supreme Court held that "[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. 180 (emphasis added). The principle underlying the Blockburger rule is that the legislature's enactment of separate criminal statutory provisions requiring proof of separate facts is an expression of legislative intent to permit multiple punishments. Under Blockburger, the existence of separate criminal statutory provisions requiring proof of separate facts gives rise to a presumption that the legislature intended multiple punishments, although that presumption may be rebutted by a clear legislative expression to the contrary. See Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 67...