State v. Hemmingway

• Decision Date: 07 November 2012
• Docket Number: No. 2011AP2372–CR.,2011AP2372–CR.
• Citation: 825 N.W.2d 303,2012 WI App 133,345 Wis.2d 297
• Parties: STATE of Wisconsin, Plaintiff–Appellant, v. Gary M. HEMMINGWAY, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

345 Wis.2d 297

825 N.W.2d 303

2012 WI App 133

STATE of Wisconsin, Plaintiff–Appellant,

v.Gary M. HEMMINGWAY, Defendant–Respondent.^†

No. 2011AP2372–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 31, 2012.

Opinion Filed Nov. 7, 2012.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Daniel J. O'Brien, assistant attorney general, and J.B. Van Hollen, attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of Gerard F. Kuchler and Bradley J. Bloch of Racine Avenue Law Offices, Waukesha.

Before BROWN, C.J., NEUBAUER, P.J., and REILLY, J.

NEUBAUER, P.J.

[345 Wis.2d 299]¶ 1 The State of Wisconsin appeals from an order dismissing its complaint against Gary M. Hemmingway for stalking with a previous conviction of a violent crime, Wis. Stat. § 940.32(2m)(a) (2009–10). ¹ Hemmingway challenged the statute as a facially overbroad regulation of protected speech, in violation of the First and Fourteenth Amendments to the United States Constitution. The circuit court agreed with Hemmingway, ruling that the statute was substantially overbroad in violation of the First Amendment. The circuit court granted Hemmingway's motion to dismiss. We reverse. The First Amendment does not protect intentional conduct designed to cause serious emotional distress or fear of bodily harm or death in a targeted victim.

BACKGROUND

¶ 2 Hemmingway was charged with stalking with a previous conviction of a violent crime based on his alleged ongoing and intimidating text messages, phones calls and e-mails to his ex-wife, Rebecca.² According to the complaint, Hemmingway's attempts to communicate with Rebecca threatened and upset her. The complaint detailed some of the communications, including Hemmingway allegedly telling Rebecca that he would “blow his brains out” and make a mess of her kitchen and that “God forgives you for everything, even murder.” Hemmingway told Rebecca, as alleged in the complaint, “that he would love to see someone holding a gun to her and for her to be begging for her life.” The complaint says that he told her the only way she could feel his pain would be if both her sons died at the same time. Rebecca stated that she believed Hemmingway had a firearm and that during a 2008 domestic abuse incident he had told her, “I have not killed anyone in a long time. I don't know who's going to be first, you or me.” Rebecca indicated that Hemmingway's actions had caused her to suffer serious emotional distress and that she “fears bodily injury and death either to herself or to a member of her family.” Rebecca's “significant fear of harm or death” was compounded by her knowledge of Hemmingway's past violent crimes, including aggravated battery and negligent use of a dangerous weapon.

¶ 3 Hemmingway moved to dismiss, asserting that all of the alleged communications from him to Rebecca were, among other things, protected under the First and Fourteenth Amendments. The circuit court agreed with Hemmingway that the statute was overly broad and dismissed the complaint.

DISCUSSION

The Stalking Statute

¶ 4 This court has upheld the stalking statute against an overbreadth and vagueness constitutional challenge based on the right to travel and equal protection. State v. Ruesch, 214 Wis.2d 548, 571 N.W.2d 898 (Ct.App.1997). The court discussed the purpose behind the stalking statute.

Wisconsin is one of many states that has enacted a stalking law. It serves significant and substantial state interests by providing law enforcement officials with a means of intervention in potentially dangerous situationsbefore actual violence occurs, and it enables citizens to protect themselves from recurring intimidation, fear-provoking conduct and physical violence.

Id. at 559, 571 N.W.2d 898 (footnote omitted). The court noted that, unlike forms of speech that have a history of constitutional protection, like picketing, “stalking provides no social benefit, but instead contributes to fear and violence.” Id. at 565, 571 N.W.2d 898. Finally, Ruesch's constitutional challenge “completely ignore[d] [the victim's] rights, which certainly must figure in the balance of an ordered society.” Id. at 562–63, 571 N.W.2d 898.

¶ 5 Here, we have another overbreadth challenge to the stalking statute, but this one is based on the First Amendment right to free speech. The statute itself, Wis. Stat. § 940.32, provides, in part:

(2) Whoever meets all of the following criteria is guilty of a Class I felony:

(a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.

(b) The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.

(c) The actor's acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

....

(2m) Whoever violates sub. (2) is guilty of a Class H felony if any of the following applies:

(a) The actor has a previous conviction for a violent crime, as defined in [§] 939.632(1)(e)1., or a previous conviction under this section or [§] 947.013(1r), (1t), (1v) or (1x).

¶ 6 In order to obtain a stalking conviction, the State must prove that a defendant intentionally engaged in a course of conduct directed at a specific person. A “course of conduct” is defined as “a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose.” Wis. Stat. § 940.32(1)(a). The statute lists eleven acts that can form the basis of a course of conduct.³ These acts, in and of themselves, are not crimes. These are legitimate acts which could become part of the stalking course of conduct if they show a continuity of purpose and satisfy the elements of the crime.

¶ 7 The course of conduct must be such as would cause a reasonable person to suffer serious emotional distress or to fear bodily injury or death. This objective “reasonable person” standard requires the jury to determine the effect the course of conduct would have on a person of ordinary intelligence and prudence in the positionof the intended victim under the circumstances that existed at the time of the course of conduct. “Suffer serious emotional distress” means “to feel terrified, intimidated, threatened, harassed, or tormented.” Wis. Stat. § 940.32(1)(d).

¶ 8 The State must prove that the defendant had knowledge, either actual or imputed, that such fear would result from at least one of the acts constituting the course of conduct. The State must also prove that the perpetrator's acts actually did cause the victim to suffer serious emotional distress or fear of bodily injury or death. These provisions make both the stalker's as well as the victim's mental state an element of the crime. This is crucial to narrow application of the statute from what would be otherwise legitimate behavior to only behavior that is intended to and does actually cause the victim to feel terrified, intimidated, threatened, harassed, or tormented, or to fear bodily injury or death. State v. Warbelton, 2009 WI 6, ¶ 36, 315 Wis.2d 253, 759 N.W.2d 557;see also Ruesch, 214 Wis.2d at 563, 571 N.W.2d 898 (“[T]he element of intent significantly vitiates a claim that Ruesch (or any other defendant) was (or would be) misled about what conduct was proscribed.”).

¶ 9 In sum, to obtain a stalking conviction, the State must prove that Hemmingway intentionally engaged in a course of conduct directed at his ex-wife that he knows (or should know) will instill fear in her, does instill fear in her, and would instill such fear in a reasonable person under similar circumstances.

First Amendment Overbreadth Challenge

¶ 10 The First Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides that “Congress shall make no law ... abridging the freedom of speech.” State v. Robert T., 2008 WI App 22, ¶ 6, 307 Wis.2d 488, 746 N.W.2d 564 (citation omitted). Article I, § 3 of the Wisconsin Constitution, though worded differently, provides a parallel guarantee of free speech. Robert T., 307 Wis.2d 488, ¶ 6, 746 N.W.2d 564. The constitutionality of a statute is a question of law we review de novo. Id., ¶ 5, 746 N.W.2d 564.

[345 Wis.2d 306]¶ 11 A statute may be challenged on its face as overbroad even by a party whose conduct is clearly unprotected if the statute infringes on a substantial amount of speech or expressive conduct protected by the First Amendment. New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Robert T., 307 Wis.2d 488, ¶ 7, 746 N.W.2d 564. Finding a statute overbroad is “strong medicine” and should not be done lightly. Robert T., 307 Wis.2d 488, ¶ 7, 746 N.W.2d 564 (citation omitted). In order for a statute to be invalidated, the overbreadth must be substantial, not only in an absolute sense, but as judged in relation to the statute's legitimate sweep. United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). The party challenging a statute as overbroad has the burden to show substantial overbreadth. Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003).

¶ 12 There are several steps in the overbreadth analysis. First, as a threshold matter, we must determine if the First Amendment applies to the case, so as to trigger constitutional scrutiny. State v. Baron, 2009 WI 58, ¶ 16, 318 Wis.2d 60, 769 N.W.2d 34;Clark v. Community for Creative Non–Violence, 468 U.S. 288, 294 n. 5, 104...