State v. Culver
| Decision Date | 29 August 2018 |
| Docket Number | Appeal No. 2016AP2160-CR |
| Citation | 918 N.W.2d 103,384 Wis.2d 222,2018 WI App 55 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Norris W. CULVER, Sr., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Kaitlin A. Lamb, assistant state public defender of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Maura FJ Whelan, assistant attorney general, and Brad D. Schimel, attorney general. There was oral argument by Maura FJ Whelan.
Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
¶ 1 Norris W. Culver, Sr., appeals from a judgment convicting him of violating the "post or publish" of a private depiction statute and the felon-in-possession of a firearm statute and from an order rejecting his postconviction claims that those statutes are unconstitutional. Culver argues the "post or publish" statute is overbroad, vague, and violates the Commerce Clause. He also argues the felon-in-possession statute violates his constitutional right to bear arms because the felony he committed was nonviolent. We reject his challenges and affirm.
¶ 2 Culver posted nude photos of A.A.L. online without her permission.1 Culver admitted he posted the photos out of anger. A.A.L. told police Culver also was a felon who had firearms at his residence. Culver eventually admitted he had moved guns from A.A.L.’s residence to his garage. Three firearms were recovered. Culver was previously convicted of the felony of operating a motor vehicle while intoxicated (OWI) (fourth offense).
¶ 3 In June 2015, Culver was charged with one count of posting or publishing a private depiction of a person, as a repeater, contrary to WIS. STAT. §§ 942.09(3m)(a)2. (2013-14)2 and 939.62(1)(a), and three counts of possession of a firearm by a felon, as a repeater, contrary to WIS. STAT. §§ 941.29(2) and 939.62(1)(b). In August, Culver entered a guilty plea to the "post or publish" count and to one count of felon-in-possession.3
¶ 4 In September 2015, the circuit court held a sentencing hearing. Per the plea agreement, the State did not make a specific recommendation. Culver requested probation or, alternatively, less than eighteen months of initial confinement. On the "post or publish" count, a Class A misdemeanor, the circuit court imposed nine months in jail. On the felon-in-possession count, the court imposed a three-year and three-month prison sentence (fifteen months of initial confinement and two years of extended supervision). The sentences were to run consecutively.
¶ 5 In July 2016, Culver moved for postconviction relief, asserting that (1) the "post or publish" statute is facially unconstitutional because it is overbroad, vague, and violates the Commerce Clause, and (2) the felon-in-possession statute is unconstitutional as applied to him because his right to bear arms should not be denied on account of a felony (fourth offense OWI) that was nonviolent.4 After a hearing, the circuit court denied the motion. Culver appeals.5
¶ 6 Because Culver challenges the "post or publish" statute on overbreadth grounds, we quote from it at length. WISCONSIN STAT. § 942.09(3m)6 provides as follows:
Subsection (1) of the statute defines several terms, including the following:
Sec. § 942.09(1). The statute does not define "depiction."
¶ 7 The constitutionality of a statute is a question of law reviewed de novo. State v. Robert T. , 2008 WI App 22, ¶ 5, 307 Wis.2d 488, 746 N.W.2d 564.
¶ 8 The First Amendment of the United States Constitution states that "Congress shall make no law ... abridging the freedom of speech." Article I, section 3 of the Wisconsin Constitution states that "[e]very person may freely speak, write and publish his [or her] sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press." Despite the varied wording, we have construed our state constitution to provide the same protections as those provided by the federal constitution. Robert T. , 307 Wis.2d 488, ¶ 6, 746 N.W.2d 564. The federal protections also directly apply to the states via the Due Process Clause of the Fourteenth Amendment. Id.
¶ 9 Culver does not contend the "post or publish" statute is unconstitutional as applied to him.7 Rather, he contends it is overbroad and therefore unconstitutional on its face. A facial challenge allows a person to argue a statute is unconstitutional even when his or her own First Amendment rights are not affected. See, e.g. , City Council of L.A. v. Taxpayers for Vincent , 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Whereas a typical facial challenge requires a showing "that no set of circumstances exists under which [the statute] would be valid," a less stringent standard is permitted when First Amendment rights are at stake. United States v. Stevens , 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (citation omitted). In this regard, a facial challenge for overbreadth must show "a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." Id. at 473, 130 S.Ct. 1577 (citation omitted). The challenger bears this burden. Virginia v. Hicks , 539 U.S. 113, 122, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003).
¶ 10 Although a lesser burden than the "under no circumstances" standard, the substantiality standard is nonetheless steep and reflects the concern that "the [overbreadth] doctrine itself might sweep so broadly that the exception to ordinary standing requirements would swallow the general rule." Vincent , 466 U.S. at 799, 104 S.Ct. 2118. Invalidating a statute on its face by the call of "one whose own conduct may be punished despite the First Amendment" is "strong medicine" and should be used "sparingly" and "with caution." Robert T. , 307 Wis.2d 488, ¶ 7, 746 N.W.2d 564 (citation omitted); see also State v. Stevenson , 2000 WI 71, ¶ 14, 236 Wis.2d 86, 613 N.W.2d 90. Providing only a few examples of the potential infringement of protected speech will not suffice; frequent intrusions into areas of protected expression must be shown. See United States v. Matusiewicz, 84 F.Supp.3d 363, 367 (D. Del. 2015).8
¶ 11 To analyze an overbreadth claim, a reviewing court must first construe the statute, as it is necessary to first know the statute’s reach before determining if it reaches too far. Stevens , 559 U.S. at 474, 130 S.Ct. 1577. Our review of the "post or publish" statute, WIS. STAT. § 942.09(3m)(a)2., reveals that it has a specific, limited, and reasonable reach, and it does not infringe on protected expression in a substantial number of its applications in relation to its legitimate sweep.
¶ 12 The statute has multiple parameters, each of which winnows down its breadth. First, the statute requires a posting or publishing of a "private representation," a term which has several elements.9 WIS. STAT. § 942.09(3m)(a)2. A "private representation" is limited to a representation depicting a person, and the person must be nude, partially nude, or engaged in sexually explicit conduct.10 Sec. 942.09(1)(bn). The scope of the statute is thus confined to images that can fairly be described as discreet and personal.
¶ 13 Second, if the image is of such a personal depiction noted above, "private representation" is further pared by the requirement of a specific intent. The depicted person must have intended the depiction to be captured, viewed, or possessed only by the specific person: either the person capturing the depiction or the person to whom the depicted person directly and intentionally gave the image. Id. In short, the depicted person intended the depiction to be held and viewed privately only by the specific person (or persons). If the depicted person did not intend the image to be private in this way, the image is beyond the reach of the statute.
¶ 14 Third, "private representation" also requires that the person who captures the representation do so "with the consent of the person depicted." Id. Thus, an image secretly captured is not a "private representation" and not...
To continue reading
Request your trial
-
State v. Katz
...61, 485 P.3d 192 (2021) ; Ex parte Jones , 2021 WL 2126172, at *1 (Texas) ; VanBuren , 214 A.3d at 794 (Vermont) ; State v. Culver , 384 Wis.2d 222, 918 N.W.2d 103 (App. 2018). "These statutes ‘vary widely throughout the United States, each with their own base elements, intent requirements,......
-
State v. Roundtree
...The Wisconsin Court of Appeals has taken the same approach. In both Pocian, 341 Wis. 2d 380, ¶¶11-12, 814 N.W.2d 894, and State v. Culver, 2018 WI App 55, ¶37, 384 Wis. 2d 222, 918 N.W.2d 103, the court of appeals applied intermediate scrutiny to as-applied challenges to the felon-in-posses......
-
Moran v. Wis. Dep't of Justice
...is constitutional and whether an individual has been denied a constitutional right are questions of law that we review de novo. State v. Culver , 2018 WI App 55, ¶37, 384 Wis. 2d 222, 918 N.W.2d 103, review denied , 2019 WI 8, 385 Wis. 2d 206, 923 N.W.2d 165.I. WISCONSIN STAT. § 941.29(5) p......
-
State v. Schwerdtfeger
...and not special damages, thereby prohibiting reimbursement of Farmers Insurance. We reject the argument as undeveloped. See State v. Culver , 2018 WI App 55, ¶27 n.15, 384 Wis. 2d 222, 918 N.W.2d 103 (we need not address undeveloped arguments). The Schwerdtfegers do not identify any objecti......
-
The First Amendment and the Right(s) of Publicity.
...v. Austin, No. 123910, 2019 WL 5287962, *522 (111. Oct. 18, 2019); State v. VanBuren, 214 A.3d 791, 798-814 (Vt. 2019); State v. Culver, 918 N.W.2d 103, 107-114 (Wis. Ct. App. (148.) Pavesich v. New Eng. Life Ins. Co., 50 S.E. 68, 80 (Ga. 1905). (149.) Roberson v. Rochester Folding Box Co.,......