State v. Clausen

• Decision Date: 05 January 1982
• Docket Number: No. 80-1273-CR,80-1273-CR
• Citation: 313 N.W.2d 819,105 Wis.2d 231
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Raymond CLAUSEN, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 819

313 N.W.2d 819

105 Wis.2d 231

STATE of Wisconsin, Plaintiff-Respondent, v. Raymond CLAUSEN, Defendant-Appellant-Petitioner.

No. 80-1273-CR.

Supreme Court of Wisconsin.

Argued Nov. 4, 1981.

Decided Jan. 5, 1982.

William J. Tyroler, Asst. State Public Defender, for defendant-appellant-petitioner.

Mary V. Bowman, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

CALLOW, Justice.

This is a review of a decision of the court of appeals 101 Wis.2d 733, 306 N.W.2d 305 affirming the September 20, 1979, judgment of Raymond Clausen's conviction for home improvement fraud, contrary to sec. 100.20(2), Stats., as implemented by Wis.Adm.Code, sec. Ag 110.02(7)(b), and sec. 100.26(3), Stats., entered by Milwaukee county circuit court Judge Patricia S. Curley.

The facts in this case reveal that on November 21, 1978, defendant Raymond L. Clausen entered into a contract with Pablo M. Borda and his father to perform certain home improvement work, ¹ for a contract price of $1,900. Borda paid a $250 down payment and continued to make payments pursuant to the contract schedule, totaling $1,322. The contract provided that work would commence November 21, 1978, and be completed by April 15, 1979.

Defendant Clausen ceased working on the Borda home shortly before Christmas, 1978. Borda attempted to contact Clausen approximately ten times following this to ascertain when the work would be completed. When Borda was able to speak with Clausen, Clausen informed him that he was not working on the home because either the weather was inclement ² or his assistant was hospitalized or unavailable. Clausen never told Borda that he would be unable to complete the work or provided him with a date when the work would be finished. Evidence in the record reveals that during February, March, and April, 1979, Clausen was working on three or four other contracts notably for the remodeling of a Ben Franklin store, and that "in most instances" Clausen performed the work on those contracts himself.

On April 15, 1979, Borda phoned Clausen and informed him that he had one week to complete the work before Borda would consult his attorney. When the week elapsed, Borda hired a new contractor to complete the job. ³ Clausen was then charged with violating sec. 100.20(2), Stats.1977, ⁴ as implemented by Wis.Adm.Code sec. Ag 110.02(7)(b) and sec. 100.26(3), Stats.1977. ⁵ (Hereinafter all citations will be to the 1977 Wis.Stats.) Clausen's defense was that he was unable to complete the project because of a delay beyond his control.

The issue before us on this appeal is the propriety and constitutionality of a jury instruction given at Clausen's trial. Clausen was charged with failing to complete work on the date specified in the Borda home improvement contract, in violation of the Wisconsin Administrative Code provision dealing with prohibited trade practices. Wis.Adm.Code sec. Ag 110.02 (hereinafter Ag 110.02) provides in pertinent part:

"Ag 110.02 Prohibited trade practices. No seller shall engage in the following unfair methods of competition or unfair trade practices:

"....

"(7) ...

"(b) Fail to begin or complete work on the dates or within the time period specified in the home improvement contract, or as otherwise represented, unless the delay is for reason of labor stoppage, unavailability of supplies or materials, unavoidable casualties, or any other cause beyond the seller's control. Any changes in the dates or time periods stated in a written contract shall be agreed to in writing.

"(c) Fail to give timely notice to the buyer of reasons beyond the seller's control for any delay in performance, and when the work will begin or be completed."

Clausen was specifically charged under Ag 110.02(7)(b) above. He defended on the grounds that he had informed Borda that inclement weather and unavailability of help precluded his timely completion of the contract. After instructing the jury on the elements of the offense, ⁶ the trial court gave the following instructions which are the subject of our review:

"Wisconsin law requires that a home improvement contractor begin or complete work on the dates or within the time period in which the contractor represented either in the contract or verbally that he would do so unless the delay is for reason of labor stoppage, unavailability of supplies or materials, unavoidable casualties, or any other cause beyond the seller's control.

" ...

"The home improvement law recognizes that there may be reasons beyond the control of the seller of home improvements which delay his performance of the work. However, the home improvement law requires that timely notice be given to the buyer of the home improvements informing the buyer of the reasons of the delay in performance and when the work will begin or be completed." (Emphasis added.)

As authority for the above italicized instruction, the trial court relied upon Ag 110.02(7)(c). The defense counsel objected to this instruction, contending that he had prepared a defense tailored to the charge in the complaint (Ag 110.02(7)(b)) and that the instruction regarding timely notice broadened the elements of the charged offense by including a description of a violation under Ag 110.02(7)(c). The trial court responded by noting that subsection (7)(c) "wouldn't have to be charged ... in order to have it become relevant. The purpose of jury instructions is to advise the jurors as to the law." The trial court went on to say, "that if, in fact, this is the law and defense has come up regarding the performance under a contract, that the jury is entitled to that information."

The defendant Clausen claimed that at the beginning of the trial the state had drafted and brought to the court an instruction dealing with elements of the crime, and it had been given to the jury. The court noted the instruction was given at the beginning of the trial at the request of the defense counsel. Defense counsel objected to the notice instruction being given at the close of the trial because he said, "I predicated my defense on what I thought the instruction was going to be." The court observed that elements of the offense are distinguishable from defenses and that the court must instruct on the law after the close of testimony, giving attention to the law as it applies to the defenses raised; that the state cannot be expected to know what the defenses will be at the beginning of the trial.

The trial court stated that the defense was based on justifiable delay, and the state then asked for the instruction on the law dealing with the notice requirement of that defense to be brought to the attention of the jury. The court went on to say, "It would seem to me that you would also be assumed to know what the law was regarding the defense on which you relied upon." The court concluded that the instruction dealing with the requirement that timely notice be given for the reasons of delay in performance did "not modify" the instructions on elements of the charged offense, and it gave the requested instruction.

The court of appeals affirmed, holding "(t)he fact that the instruction incorporates language drawn from subsection (c) does not alter the appropriateness of the instruction in the context of a charge of violating subsection (b). We reject the defendant's contention that the instruction charged an offense other than pursuant to regulation (b)." We affirm the decision of the court of appeals and hold that Clausen's rights to due process and adequate notice were not violated by inclusion of the jury instruction at issue. ⁷

We note that the home improvement trade is subject to comprehensive and stringent rules designed to protect the consumer. In a recent decision dealing with a violation of Chapter Ag 110 and a penalty imposed under sec. 100.26(3), Stats., the court of appeals concluded:

"The history of the statute (100.26(3)) makes it plain that the legislature intended that there be no excuse for failing to follow the rules. With the public outcry concerning the home improvement trade in the last several years, one would think that anyone connected with the home improvement trade would first and foremost make sure that they were following the rules explicitly. In this case, despite the clear and unconfusing guidelines mentioned in the administrative code relating to preparing a contract with consumers, (the defendant) deviated from the directions. That imprudence is specifically what the statute was designed to prevent. There is no excuse for failing to follow the code."

State v. Balestrieri, 87 Wis.2d 1, 8, 274 N.W.2d 269 (Ct.App.1978), aff'd. by an evenly divided court 96 Wis.2d 361, 291 N.W.2d 579 (1980) (per curiam opinion, concluding sec. 100.26(3), dealing with neglecting or failing to obey any regulation or order, does not require proof of intent). We are cognizant that any penal statute must be construed strictly in favor of the defendant. E.g., State v. Schaller, 70 Wis.2d 107, 110, 233 N.W.2d 416 (1975); State ex rel. Gaynon v. Krueger, 31 Wis.2d 609, 619, 143 N.W.2d 437 (1966); State v. Wrobel, 24 Wis.2d 270, 275, 128 N.W.2d 629 (1964). A statute must be construed, however, in light of its manifest object, the evil sought to be remedied. "Although we recognize the general rule relied upon by the defendants as stated in State v. Schaller, 70 Wis.2d 107, 233 N.W.2d 416 (1975), that penal statutes are to be strictly construed in favor of the accused, it is equally true that this rule of construction does not mean that only the narrowest possible construction must be adopted in disregard of the purpose of the statute." State v. Tronca, 84 Wis.2d 68, 80, 267 N.W.2d 216 (1978). See also: State ex rel. State Public Defender v. Percy, 97 Wis.2d 627, 635, 294 N.W.2d 528 (Ct.App.1980); Berns v. Wisconsin Employment Relations Comm., 99 Wis.2d 252, 265, 299 N.W.2d 248 (1980); State ex rel. First National Bank & Trust v. Skow, ...