State v. Grunke
| Decision Date | 09 July 2008 |
| Docket Number | No. 2006AP2746-CR.,No. 2006AP2745-CR,,No. 2006AP2744-CR.,2006AP2744-CR.,2006AP2745-CR,,2006AP2746-CR. |
| Citation | 752 N.W.2d 769,2008 WI 82 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Alexander Caleb GRUNKE, Defendant-Respondent. State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Nicholas Owen Grunke, Defendant-Respondent. State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Dustin Blake Radke, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
For the plaintiff-appellant-petitioner the cause was argued by William L. Gansner, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-respondent, Nicholas Owen Grunke, there was a brief by Suzanne Edwards and Law Office of Suzanne Edwards, Dodgeville, and oral argument by Suzanne Edwards.
For the defendant-respondent, Dustin Blake Radke, there was a brief and oral argument by Jefren E. Olsen, assistant state public defender.
We review a decision by the court of appeals1 affirming an order of the circuit court2 that dismissed one count of attempted third-degree sexual assault, contrary to Wis. Stat. § 940.225(3) (2005-06)3 and Wis. Stat. § 939.32, against Nicholas Grunke, Alexander Grunke and Dustin Radke. The issue presented is whether § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim. We conclude that it does. Accordingly, we reverse the court of appeals and remand to the circuit court for further proceedings consistent with this opinion.
¶ 2 For purposes of this appeal, the facts presented are undisputed. Nicholas Grunke sought and received the consent of his twin brother, Alexander Grunke, and his friend, Dustin Radke, to help him disinter a female corpse located in a Cassville, Wisconsin cemetery so that the three of them could transfer the corpse to another location where Nicholas planned to have sexual intercourse with it. Apparently, Nicholas conceived this plan after seeing the obituary of the victim4 in a newspaper.
¶ 3 The Grunkes and Radke began to execute Nicholas's plan days after Nicholas read the obituary. Nicholas and Radke drove together to the Cassville cemetery and located the victim's gravesite. Later, on September 2, 2002, the three defendants returned to the cemetery with shovels, a crowbar, a tarpaulin, and a box of condoms, which the men had purchased that evening on their way to the cemetery. Nicholas and Radke dug into the victim's gravesite while Alexander stood watch. The men dug a hole three and a half feet wide, by three feet long, by one foot eight inches deep. The crater uncovered the top of the victim's concrete vault, which they were unable to pry open. Soon after the Grunkes and Radke discovered that the concrete vault was impenetrable, a car drove into the cemetery, and the men fled.
¶ 4 At 11 p.m. that evening, Village of Cassville Police Officer Brent McDonald arrived at the cemetery in response to receiving a call of a suspicious vehicle located there. Upon finding the vehicle, Officer McDonald also encountered Alexander Grunke. Alexander was dressed in black from "head to toe," and when he opened the door to the van the defendants had driven, Officer McDonald could see a crowbar, a tarpaulin and the box of condoms inside. When Alexander could not explain to Officer McDonald why he was in the cemetery, Officer McDonald placed him in custody. Alexander and Radke later gave interviews to law enforcement officers after waiving their Miranda rights.
¶ 5 In a multi-count criminal complaint, the State charged the Grunkes and Radke with (1) attempted theft, contrary to Wis. Stat. §§ 943.20(1)(a) and (3)(a), 939.05, and 939.32; and (2) attempted third-degree sexual assault, contrary to Wis. Stat. §§ 940.225(3), 939.05, and 939.32.5
¶ 6 Following the preliminary hearing, the circuit court denied bindover on the charge of attempted third-degree sexual assault. The court concluded that the sexual assault statute did not apply to circumstances in which the victim is deceased due to no act of the accused.
¶ 7 The court of appeals affirmed. It concluded that a combination of provisions within Wis. Stat. § 940.225 rendered the statute ambiguous. On the one hand, the court noted, under § 940.225(3), the State must prove that the sexual intercourse occurred "without the consent" of the person victimized. State v. Grunke, 2007 WI App 198, ¶ 9, 305 Wis.2d 312, 738 N.W.2d 137. However, the court pointed out that subsection (4) provides a list of occasions where "consent is not an issue," but the victim being dead is not included in that list. Id., ¶¶ 9-10. The court of appeals also observed that subsection (7) of § 940.225 provides that the entire statute applies regardless of whether the victim is dead or alive at the time of the sexual contact or sexual intercourse. Id., ¶ 10. Consequently, the court of appeals concluded that "[b]ecause a corpse can never give consent through words or actions and death is not one of the instances listed in which consent is not an issue, but at the same time subsection (7) states that the entire section applies whether the victim is dead or alive at the time of the sexual contact," the statute is ambiguous. Id., ¶¶ 10-11.
¶ 8 Because the statute was ambiguous, the court of appeals consulted its legislative history. Id., ¶ 12. It concluded that the legislative history showed that subsection (7) of Wis. Stat. § 940.225 was enacted in response to State v. Holt, 128 Wis.2d 110, 382 N.W.2d 679 (Ct.App.1985).6 Grunke, 305 Wis.2d 312, ¶ 12, 738 N.W.2d 137. Based on the reference to Holt in the legislative history, the court of appeals in Grunke concluded that § 940.225 applied to corpses only when the sexual assault victim was killed and sexually assaulted by the same perpetrator during a sequence of events and, accordingly, it did not apply to a sexual assault of a corpse when the defendant did not cause the death. Id., ¶¶ 14-15. Therefore, the court concluded that the defendants could not be charged under § 940.225. Id., ¶ 15.
¶ 9 We granted review and now reverse and remand.
¶ 10 This case requires us to interpret and apply Wis. Stat. § 940.225 to undisputed facts. We review questions of statutory interpretation and application independently, but benefiting from the discussions of the circuit court and the court of appeals. Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110.
¶ 11 The parties offer competing interpretations of Wis. Stat. § 940.225. The defendants argue that the statute is ambiguous and therefore we must rely on extrinsic sources, such as legislative history, to guide our interpretation. In contrast, the State argues that the language of the statute bears a plain meaning, rendering it unnecessary for us to consult legislative history to discern its meaning. Before examining the language of the statute, it is instructive to examine the parties' respective arguments in greater detail.
¶ 12 The defendants offer a multi-part interpretation that we summarize briefly. They posit that the plain meaning of subsection (7) of Wis. Stat. § 940.225 does not criminalize sexual contact or sexual intercourse with a corpse, because, when that subsection is read in conjunction with other portions of the statute, an element of third-degree sexual assault becomes superfluous, and also, such an application of subsection (7) creates absurd results.
¶ 13 First, the defendants argue that to interpret subsection (7) of Wis. Stat. § 940.225 as a "general prohibition against necrophilia" renders the element of consent in subsection (3) superfluous. Consent as used in § 940.225 means, "words or overt actions" and obviously a corpse cannot speak or act as required by § 940.225(4). They contend that subsection (4) contains an exclusive list of circumstances in which consent is "not an issue" and death is not among those circumstances listed. They conclude that the State can prove that the victim did not consent only by ignoring the element of consent or by reading its definition out of the statute.
¶ 14 Second, the defendants argue that interpreting Wis. Stat. § 940.225(7) as a "general prohibition against necrophilia" creates absurd results. They contend that such an interpretation clashes with the graduated penalty structure of § 940.225. They point out that § 940.225 contains four degrees of sexual assault and punishes certain perpetrators to a greater extent than others. For example, a perpetrator of sexual assault who threatens the victim with a dangerous weapon is guilty of a Class B felony,7 § 940.225(1)(b), while other occasions of sexual assaults result in lesser punishments. The defendants argue that if subsection (7) is interpreted as a "general prohibition against necrophilia," § 940.225 will provide for four degrees of sexual assault of a corpse. Such an interpretation is absurd, they contend, because, to use the example above, a corpse is unable to apprehend the threat that accompanies a sexual assault with a dangerous weapon.
¶ 15 The defendants argue that the surplusage of the element of consent and the absurd result of graduated penalties for having sexual contact or sexual intercourse with a corpse renders Wis. Stat. § 940.225 ambiguous. As a result, they argue we should consult legislative history to interpret the statute. They argue that the legislative history of subsection (7) indicates that it was enacted to relieve the State from being required to prove that the victim was alive when the sexual assault occurred in those circumstances in which the perpetrator sexually assaults and kills the victim in a series of acts. Accordingly, the defendants contend we should construe subsection (7) as criminalizing the act of...
To continue reading
Request your trial
- State v. Arias
-
MARX v. Morris
...271 Wis. 2d 633, 681 N.W.2d 110. If they evidence a plain, clear statutory meaning without ambiguity, we generally go no further. State v. Grunke, 2008 WI 82, ¶ 22, 311 Wis. 2d 439, 752 N.W.2d 769. However, if the statute is subject to more than one reasonable interpretation by well-informe......
-
Lang v. Lions Club of Cudahy Wis., Inc.
...statute is applied according to the plain meaning of the statutory terms." Westmas, 379 Wis. 2d 471, ¶18, 907 N.W.2d 68 (quoting State v. Grunke, 2008 WI 82, ¶22, 311 Wis. 2d 439, 752 N.W.2d 769 ). In determining the plain meaning of a statute, a court should consider the context of the lan......
-
Sorenson v. Batchelder, 2014AP1213.
...clear statutory meaning,’ without ambiguity, the statute is applied according to the plain meaning of the statutory terms.” State v. Grunke, 2008 WI 82, ¶ 22, 311 Wis.2d 439, 752 N.W.2d 769 (quoting Kalal, 271 Wis.2d 633, ¶ 46, 681 N.W.2d 110 ). However, where the statute is “capable of bei......