State v. Dahlk

• Decision Date: 10 January 1983
• Docket Number: No. 81-1681-CR,81-1681-CR
• Citation: 330 N.W.2d 611,111 Wis.2d 287
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. James DAHLK, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 611

330 N.W.2d 611

111 Wis.2d 287

STATE of Wisconsin, Plaintiff-Respondent, v. James DAHLK, Defendant-Appellant.

No. 81-1681-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 17, 1982.

Opinion Released Jan. 10, 1983.

Opinion Filed Jan. 10, 1983.

Gerald C. Nichol and Lee, Johnson, Kilkelly & Nichol, Madison, for defendant-appellant.

James E. Doyle, Jr., Dist. Atty., and C. William Foust, Asst. Dist. Atty., for plaintiff-respondent.

Before GARTZKE, P.J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

Defendant was convicted in a jury trial of violating sec. 945.04(1), Stats., permitting real estate under his control to be used as a gambling place. He appeals from the judgment of conviction and the order denying his motion to dismiss the amended complaint. We affirm.

Defendant raises the following issues:

1. Should the state have been allowed to amend its complaint?

2. Were the allegations of the amended complaint sufficient?

3. Is sec. 945.04(1), Stats., unconstitutionally vague and overbroad?

4. Was the evidence sufficient for a guilty verdict?

5. Did the trial court err when instructing the jury and responding to its request for clarification?

The facts are largely undisputed. February 1, 1980 Linda Pigorsch, a special agent of the Dane County District Attorney's Office, accompanied by her husband, a police sergeant, went to a Verona warehouse owned by Dahlk and May, Inc. About thirty or forty people were present. Defendant conducted a "pyramid club" meeting.

Sergeant Pigorsch testified that defendant explained how the club operated. An "investor" purchases a membership in the club for $1,000 in cash. The investor is then given three manila envelopes. One envelope contained a "tracking sheet" to start a new pyramid. The investor then attempts to sell two memberships. If he sells a membership he keeps $500 and puts the other $500 into one of the other two envelopes and passes it to the person whose name appears on the inside of the envelope. Each of the two buyers also receives three envelopes and sells memberships to two more people. The process continues to the last thirty-two positions on the pyramid. When each of those thirty-two persons sells memberships to two persons, $500 from each of their sixty-four buyers comes back to the investor. Defendant explained that the possible profit to the investor depended on the people below the investor continuing to maintain the chain. The investor might not receive the whole $32,000 if "legs" of the pyramid reached a dead end before reaching the bottom level. Defendant encouraged investors to keep track of the sales below them and to help push new sales.

The Pigorschs testified that defendant said that all transactions were to take place at the warehouse, where he had secretaries to record the transactions. All transactions were to be made personally by passing money in envelopes. One person handed defendant an envelope from which he flashed five $100 bills. The Pigorschs said defendant said he had made $18,000, a statement defendant denied.

Sergeant Pigorsch testified that defendant answered questions pertaining to the club's legality. Defendant said he had checked with his attorneys, who had checked with the Attorney General's Office. He said that the Dodgeville police chief was on the chain and that a district attorney had said it was legal. Defendant gave the Pigorschs a tracking sheet and documents explaining the club rules and how it operated. He told them not to make copies and not to give them to law enforcement people. He introduced them to a person who was interested in selling them memberships.

The Pigorschs attended another club meeting at the warehouse February 4, 1980. Sergeant Pigorsch testified that fifty to sixty other people attended. Defendant said that Bob Kaehr was going to take a leg of the club and start his own operation because the warehouse was getting crowded. The secretaries were present. People were exchanging envelopes. The next day the district attorney's office issued a release published by a local newspaper which stated that an illegal pyramid club existed in Dane County. February 6 the Pigorschs attended another meeting at the warehouse. Kaehr made a presentation to twenty to twenty-five people. In response to a question about the newspaper article, defendant said his attorney told him that the club was an illegal lottery and if you joined "you'd be taking your chances." Defendant testified that Kaehr made that statement. Defendant said the club was getting large and would split up and meet at various locations.

Defendant testified that five pyramid club meetings had been held at the warehouse, including the meetings of February 4 and 6. He ended the February 6 meeting when someone told him officers were present to make an arrest. February 8 a meeting was held at another location. It was then decided to have no further meetings until the legality of the club was established.

1. Amended Complaint

The original complaint limited its factual allegations to the February 1 meeting. Defendant contends that the trial court erred in permitting the state to amend the complaint to include allegations of meetings held February 4 and 6. The original complaint was filed March 10, 1980. The amended complaint was submitted June 4, 1980 and accepted by the trial court August 13, 1980. Trial was held May 14, 1981. He contends that his extensive and costly research for three months on the original complaint was rendered substantially useless by the amendment.

The purpose of an information is to inform the defendant of the charges against him. Whitaker v. State, 83 Wis.2d 368, 373, 265 N.W.2d 575, 578 (1978). The same is true of a complaint. The complaint informed defendant that the charge was violating sec. 945.04(1), Stats., permitting real estate under his control to be used as a gambling place. Defendant had notice of the charge against him and the factual basis for it. The amendment expanded the factual basis to include club activities conducted on other dates but did not change the charge. The inconvenience defendant suffered from expansion of the factual basis for the charge could not seriously interfere with preparation for a trial held nine months later. The trial court did not err in permitting the amended complaint.

2. Sufficiency Of Amended Complaint

Defendant contends that the amended complaint should have been dismissed for failure to state facts constituting a probable violation of sec. 945.04(1), Stats. He contends that the amended complaint was deficient because it failed to allege he violated the commercial gambling statute, sec. 945.03. He contends that the statutory definition of lottery does not cover the club's activities as described in the amended complaint and that the meetings alleged in the amended complaint were too few to constitute a principal use of the warehouse.

Section 945.04(1), Stats., provides in relevant part: "Whoever intentionally does any of the following is guilty of a Class A misdemeanor: (1) Permits any real estate owned or occupied by him or under his control to be used as a gambling place ...."

So far as is material, sec. 945.01(4), Stats., defines a "gambling place" as: "[A]ny building or tent ... or any room within any of them, one of whose principal uses is any of the following: ... conducting lotteries ...."

A lottery is "an enterprise wherein for a consideration the participants are given an opportunity to win a prize, the award of which is determined by chance, even though accompanied by some skill." Sec. 945.01(2)(a), Stats.

A. Commercial Gambling

Defendant argues that sec. 945.04(1), Stats., the statute he is charged with violating, relates only to "[p]ermitting premises to be used for commercial gambling." The statute is so entitled. The title, however, is not a part of the statute. Sec. 990.001(6), Stats. A title may be used only to resolve existing doubts or ambiguities as to statutory meanings and not to create ambiguity where none exists. Wisconsin Valley Imp. Co. v. Public Serv. Comm., 9 Wis.2d 606, 618, 101 N.W.2d 798, 804 (1960).

The plain language of sec. 945.04(1), Stats., pertains to permitting real estate to be used as a "gambling place." "Gambling place" is defined by sec. 945.01(4) without reference to "commercial gambling." Because sec. 945.04(1) is unambiguous in this respect, we ignore its title. A violation of sec. 945.03, the commercial gambling statute is not a prerequisite to a violation of sec. 945.04, permitting real estate to be used as a gambling place. The amended complaint was not deficient for failing to allege a violation of sec. 945.03.

B. Lottery

Defendant contends that the club's operations do not fall within the statutory definition of a lottery and that the amended complaint, which described those operations, therefore failed to state sufficient facts constituting the offense charged, that he permitted a lottery to be conducted on his premises. ¹ He asserts that the definition of a lottery in sec. 945.01(2)(a), Stats., is ambiguous and must be strictly construed in his favor. State v. Wilson, 77 Wis.2d 15, 28, 252 N.W.2d 64, 70 (1977).

Defendant finds an ambiguity in sec. 945.01(2)(a), Stats., because sec. 945.12 provides that to set up or promote an endless sale chain of motor vehicles is to set up and promote a lottery. ² He cites State v. Kenyon, 85 Wis.2d 36, 49, 270 N.W.2d 160, 166 (1978), for the proposition that ambiguity can be created by the interaction of separate statutes as well as by the interaction of the words and structures of a single statute.

We find no ambiguity. The interaction referred to in Kenyon was a conflict between statutes. The Kenyon court was called on to apply a statute, which appeared unambiguous on its face, but which was irreconcilable with another. 85 Wis.2d at 50, 270 N.W.2d at 167. No conflict exists between the general definition of a lottery in sec. 945.01(2)(a)...