State v. Cissell
| Decision Date | 23 December 1985 |
| Docket Number | No. 84-891-CR,84-891-CR |
| Citation | 127 Wis.2d 205,378 N.W.2d 691 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Ronnie D. CISSELL, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Peter D. Goldberg, Asst. State Public Defender, for defendant-respondent.
The issues of the case are:
(1) Whether the elements of sec. 52.05(1), Stats., 1 describing the crime of felony abandonment, are identical to the elements of sec. 52.055(1), 2 describing the crime of misdeameanor failure to support.
(2) If the elements of felony abandonment are identical to the elements of misdemeanor failure to support, does the state violate a defendant's right to equal protection or due process by charging him with the felony instead of the misdemeanor.
(3) Whether the felony abandonment statute violates due process because it is vague.
(4) Whether the felony abandonment statute creates a strict liability crime for which the penalty is unconstitutionally excessive.
Although we conclude that the elements of the two crimes are identical, we hold that there is no constitutional infirmity in the felony abandonment statute.
On March 2, 1979, a court liaison worker for the Milwaukee County Department of Social Services signed a criminal complaint charging the defendant, Ronnie D. Cissell The complaint alleged that the defendant had not paid any money for his child's support from 1973 through 1979, and that he had been ordered to make such payments in the amount of $12,459.33.
with intentionally and willfully neglecting to provide for the support and maintenance of his minor child, leaving her in destitute and necessitous circumstances, contrary to sec. 52.05(1), Stats.
The defendant was arrested on August 14, 1980, pursuant to the warrant signed in March of 1979. The preliminary examination was conducted on January 7, 1983, at which time the defendant was bound over for trial.
The defendant filed several pretrial motions and motions in limine, including a motion to reduce the charge to the misdemeanor of failure to support under sec. 52.055, Stats., as well as a motion to dismiss based on the alleged unconstitutionality of sec. 52.05.
The Milwaukee circuit court, Judge Janine Geske, held that the defendant's constitutional rights to due process and equal protection of the law were violated by charging him with the felony and ordered that the charge against the defendant be reduced to the misdemeanor of nonsupport. The court based its holding on the conclusion that the elements of the two crimes are identical. The court of appeals, 124 Wis.2d 776, 370 N.W.2d 293, in an unpublished decision, affirmed the circuit court's decision solely on equal protection grounds.
The first issue we consider is whether the felony abandonment statute has elements that are identical to the misdemeanor nonsupport statute. The circuit court construed the element of "willful" nonsupport under the felony statute to be equivalent to "intentional" nonsupport under the misdemeanor statute. The court also construed "destitute or necessitous circumstances" in the felony to mean any breach of the duty of support. Based on this construction, the need for support under the felony statute does not have to be greater than the need that satisfies the misdemeanor statute.
As a general proposition, the word willful cannot be defined without reference to its use in a specific statute. In State v. Preston, 34 Wis. 675, 685 (1874), we specifically noted that willful is susceptible of different meanings in different contexts. We repeated that conclusion in Dept. of Transp. v. Transp. Comm., 111 Wis.2d 80, 87, 330 N.W.2d 159 (1983), stating that "Preston makes clear that there is no one and certain meaning that can be ascribed to 'wilful' which will in all cases convey its meaning."
The state relies on Preston to demonstrate that willful and intentional have different meanings when both terms are used in criminal statutes. The state relies specifically on the following passage from Preston:
This court repeated the general principle of Preston, that willful usually expresses the concept of legal malice in a criminal statute, in Dept. of Transp. v. Transp. Comm., 111 Wis.2d 80, 87, 330 N.W.2d 159. From these decisions, the state argues that willful means more than intentional when both terms are used in the criminal statutes under consideration.
We are unpersuaded that the Preston or Dept. of Transp. decisions stand for the proposition that willful means more than intentional when both terms are used in Section 939.23(3), Stats., defines intentionally when that term is used in the criminal code. The definition provides: " 'Intentionally' means that the actor either has a purpose to do the thing or cause the result specified or believes that his act, if successful, will cause that result." We construe this definition to be a general statement of the mens rea element of criminal intent crimes. Although sec. 52.055 is not part of the criminal code, it is a crime which requires proof of criminal intent by its own language. The requirement of criminal intent also is suggested by the seriousness of the penalty provision. See State v. Collova, 79 Wis.2d 473, 482, 255 N.W.2d 581 (1977). The statutory definition of intentionally, therefore, is applicable to sec. 52.055.
these criminal statutes. The Preston decision compared the different meanings of willful as used in criminal statutes and noncriminal statutes. It did not compare willful and intentional when both terms are used in criminal statutes. The Dept. of Transp. decision also compared the meanings of willful as used in criminal and regulatory statutes. The precise issue before this court, therefore, has not been decided. We define the issue to be whether willful requires proof of a different state of mind than intentional when both terms are used in the two criminal statutes under consideration.
In Preston, we defined willful to mean malice or evil intent. This definition is merely a statement of criminal intent. We do not consider it significant that Preston defined criminal intent in different language than sec. 939.23(3), Stats., because the legislature did not enact that statute until 1955. Furthermore, although the statute does not specifically refer to malice, that concept is embodied in the statutory definition of criminal intent. Black's Law Dictionary (5th ed. 1979), defines malice as: "The intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent." Black's also states that malice is not necessarily personal hate or ill will. We conclude, therefore, that malice as used to define willful has the same meaning as criminal intent under sec. 939.23(3).
Our conclusion that the term willful in sec. 52.05, Stats., has the same meaning as intentionally is supported by our previous definitions of that term. In Zitlow v. State, 213 Wis. 493, 498, 252 N.W. 358 (1934), the court construed willful in the abandonment statute, which was numbered sec. 351.30 at the time, to mean:
"The term 'wilfil' as here used involves either a design or intent on the part of the person charged to evade the duties which the law casts upon him by reason of his marriage and parenthood, or a neglect based upon aversion or disinclination to work generally, or to work of a particular kind." (Emphasis added.)
This definition equates willful and intent and does not make a distinction between the two words. This court continued to adhere to this definition in State v. Schlueter, 262 Wis. 602, 604, 55 N.W.2d 878 (1952).
We conclude from our analysis that willful has the same meaning in sec. 52.05, Stats., as intentionally does in sec. 52.055.
We must next consider whether the phrase "destitute or necessitous circumstances" requires a different element of proof than failure to satisfy the duty of support. The phrase "destitute or necessitous circumstances" appears in the felony statute, sec. 52.05(1), Stats., but not in the misdemeanor statute, sec. 52.055, for failure to support. The state contends that the phrase requires proof of greater deprivation than the failure to support statute requires.
Our previous decisions construing the destitute or necessitous circumstance requirement do not support the state's argument. We have not required proof of actual and extreme deprivation. In Brandel v. State, 161 Wis. 532, 535, 154 N.W. 997 (1915), in analyzing the abandonment statute, the court defined necessitous circumstances essentially in terms of the standard "A wife is in necessitous circumstances, within the meaning of the statute, when she does not have property or money available for such necessities or ordinary comforts of life as her husband can reasonably furnish, even though she has the clothing, furniture, and ornaments usually owned by a woman in her station in life or receives aid from others."
of living to which the wife was entitled given her husband's resources:
The court relied on Brandel in State v. Freiberg, 35 Wis.2d 480, 486, 151 N.W.2d 1 (1967), where we...
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