State v. Freer

• Decision Date: 03 December 2009
• Docket Number: No. 2008AP2233-CR.,2008AP2233-CR.
• Citation: 2010 WI App 9,779 N.W.2d 12
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Stephen A. FREER, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

779 N.W.2d 12

2010 WI App 9

STATE of Wisconsin, Plaintiff-Respondent, v. Stephen A. FREER, Defendant-Appellant.^†

No. 2008AP2233-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 10, 2009.

Opinion Filed December 3, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanne L. Hagopian, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Jeffrey Kassel, assistant attorney general, and J.B. Van Hollen, attorney general.

Before LUNDSTEN, HIGGINBOTHAM and BRIDGE, JJ.

¶ 1 HIGGINBOTHAM, J

Stephen Freer appeals a circuit court order denying his motion to dismiss and a judgment of conviction entered on a jury verdict for misdemeanor intimidation of a crime victim contrary to WIS. STAT. § 940.44(2) (2007-08),¹ and felony bail jumping. Freer contends that the State failed to prove the crime because the victim intimidation statute plainly excludes from its reach the scenario here, an act of intimidation that occurs after a complaint has been sought. We reject Freer's interpretation of § 940.44(2), and affirm.

BACKGROUND

¶ 2 The relevant facts are undisputed. Freer was involved in an altercation with the entertainer Truly Remarkable Loon outside Loon's home on Madison's near east side. Loon reported the incident and Freer received a citation for disorderly conduct.

¶ 3 The same day the criminal complaint was filed charging Freer with disorderly conduct, Freer left a voice message on the answering machine of a friend of Loon's who frequently hires Loon to perform at community events. In the message, Freer describes in a rambling manner the altercation with Loon, and accuses Loon of misconduct. He further states that Loon's alleged conduct is widely known, and that "the community" is gathering evidence against Loon to be brought to the media's attention. Freer declares that the community is "outraged [at Loon's] unjustified denunciation" of Freer, and adds that if Loon wants to "get into a spitting contest ... then we're gonna go ahead and take [Loon's alleged misconduct] to the public arena." If Loon wants "to denounc[e] people in an unjustified way," says Freer, "he will find ... justified denunciation of his ... own [misconduct]." It is undisputed that this alleged act of intimidation did not occur in time to prevent or dissuade Loon from "causing a complaint to be sought."

¶ 4 Based on this alleged threat, Freer was also charged with intimidating a victim pursuant to WIS. STAT. § 940.44(2), and felony bail jumping pursuant to WIS. STAT. § 946.49(1)(b). Freer moved to dismiss these additional charges, making the same arguments he makes on appeal. The court denied the motion to dismiss, and the case went to trial. A jury found Freer guilty on both counts. Freer appeals the order denying his motion to dismiss, and the judgment of conviction.

DISCUSSION

¶ 5 This case requires us to interpret the misdemeanor victim intimidation statute, WIS. STAT. § 940.44, to determine whether it proscribes the intimidating act for which Freer was convicted, a question of statutory interpretation subject to de novo review. See State v. Long, 2009 WI 36, ¶ 20, 317 Wis.2d 92, 765 N.W.2d 557.

¶ 6 When interpreting a statute, we begin with the statutory language. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. If the meaning of the statute is plain, we ordinarily stop the inquiry and apply that meaning. Id. We interpret statutory language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Id. (citation omitted). A statute is ambiguous only if reasonably well-informed persons could interpret its meaning in two or more senses. Id. ¶ 47. When the statutory language is ambiguous, we may consult extrinsic sources of interpretation, such as legislative history. Id., ¶ 48. The purpose of statutory interpretation is to give full effect to the policy choices of the legislature. See id., ¶ 44.

¶ 7 WISCONSIN STAT. § 940.44(2) prohibits a person from "knowingly and maliciously prevent[ing] or dissuad[ing], or ... attempt[ing] to so prevent or dissuade" a victim of a crime or a person acting on their behalf from "[c]ausing a complaint, indictment or information to be sought and prosecuted and assisting in the prosecution thereof." (Emphasis added.) It is the legislature's use of "and" in this statute that is at the heart of Freer's argument.

¶ 8 Freer contends that the act of intimidation must prevent or dissuade or attempt to prevent or dissuade a victim of all three of the following:

• Causing a complaint, indictment or information to be sought.

• Causing a complaint, indictment or information to be prosecuted.

• Assisting in the prosecution.

This is the correct reading of the statute, maintains Freer, because these three actions are connected with the conjunctive "and," not the disjunctive "or." Thus, according to Freer, the State failed to prove the crime of intimidation of a victim because the alleged act of intimidation occurred after Loon caused a complaint to be sought.²

¶ 9 The State asserts that Freer's interpretation of the victim intimidation statute means that it would punish some acts of intimidation while leaving others unpunished based solely on when the act is committed, a manifestly absurd result. The State also maintains that Freer's interpretation renders portions of the statute surplusage because any attempt to dissuade a victim from causing a complaint to be filed would, by definition, be an attempt to prevent the victim from "assisting in the prosecution."

¶ 10 The State also contends that the word "and" does not always carry a conjunctive meaning when used to string together multiple items in a statute. Citing State ex rel. Wis. Dry Milk Co. v. Circuit Court for Dodge County, 176 Wis. 198, 204, 186 N.W. 732 (1922), State v. Wester, 269 Neb. 295, 691 N.W.2d 536, 540-41 (2005), and other cases, see, e.g. State v. Duychak, 133 Wis.2d 307, 317, 395 N.W.2d 795 (Ct. App.1986), the State urges that we read "and" in the disjunctive in WIS. STAT. § 940.44(2). The State argues that such a reading is consistent with the legislative intent of § 940.44(2) expressed in the context, purpose and legislative history of the statute.

¶ 11 Freer responds that his reading of the statute would not result in punishing some acts of intimidation while leaving others unpunished because acts occurring after the victim has caused a complaint to be sought could be prosecuted under the witness intimidation statute, Wis. STAT. § 940.42.³ Freer notes that the witness statute extends to "putative witnesses" pursuant to State v. Mendez, 157 Wis.2d 289, 295-96, 459 N.W.2d 578 (Ct.App.1990), which would include most, if not all, crime victims.

¶ 12 Freer further argues that we must presume that the legislature did not intend "and" to be read disjunctively—i.e., to have the same meaning as "or"—because the legislature used the word "or" in other subsections of WIS. STAT. § 940.44. See Graziano v. Town of Long Lake, 191 Wis.2d 812, 822, 530 N.W.2d 55 (Ct.App. 1995) ("[W]here the legislature uses similar but different terms in a statute, particularly within the same section, we may presume it intended the terms to have different meanings."). Freer notes that subsections (1) and (3) of § 940.44, unlike § 940.44(2), use "or" when listing multiple items constituting victim intimidation:

(1) Making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.

. . . .

(3) Arresting or causing or seeking the arrest of any person in connection with the victimization.

Had the legislature intended "and" to mean "or" in subsection (2), argues Freer, it would have used "or" as it did in subsections (1) and (3).

¶ 13 We conclude that WIS. STAT. § 940.44(2), the victim intimidation statute, is ambiguous. First, as the State points out, "and" in statutes is not always interpreted as a conjunctive term. See Duychak, 133 Wis.2d at 317, 395 N.W.2d 795, and Wester, 691 N.W.2d at 541. Indeed, this is not a new idea in Wisconsin. See State ex rel. Wis. Dry Milk Co., 176 Wis. at 204, 186 N.W. 732 ("It is a familiar rule of construction that the words `or' and `and' are often used incorrectly, and that where a strict reading would render the sense dubious one may be read in place of the other, in deference to the meaning of the context.") (citations omitted).

¶ 14 We acknowledge, as Freer argues, that modern sources of authority appear to be generally less inclined to interpret "and" in the disjunctive. Compare 1A Singer, SUTHERLAND STATUTORY CONSTRUCTION § 21.14 p. 20 (5th ed. Cum. Supp. 2001) (the "strict meaning" of "and" and "or" "should be followed when their accurate reading does not render the sense of the statute confusing and there is no clear legislative intent to have the words not mean what they strictly should") and State ex rel. Rich v. Steiner, 160 Wis. 175, 177-78, 151 N.W. 256 (1915) ("strict meaning" of "and" and "or" should be "more readily departed from other words" because the statutes have become "infected" by popular misuse of "and" and "or"). Nonetheless, it remains true that the legislature has a history of using "and" when the context shows it means "or."

¶ 15 Second, Freer is wrong when he argues that his interpretation of the victim intimidation statute does not leave gaps. Freer's interpretation of the statutory scheme created by the victim intimidation statute and the witness intimidation statute is less plausible on closer examination. It may be, as Freer...