State v. Kizer
| Decision Date | 02 June 2021 |
| Docket Number | Appeal No. 2020AP192-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Chrystul D. KIZER, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Katie R. York, assistant state public defender of Madison, and Colleen Marion, assistant state public defender of Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Timothy M. Barber, assistant attorney general and Joshua L. Kaul, attorney general.
Before Reilly, P.J., Gundrum and Davis, JJ.
¶1 Charged with numerous felonies, including first-degree intentional homicide, Chrystul D. Kizer sought interlocutory appeal1 from an order of the circuit court that effectively prevents her from introducing evidence of the affirmative defense of WIS. STAT. § 939.46(1m), related to victims of human trafficking and child sex trafficking. We granted leave to appeal the order, and because we conclude the circuit court erred in its interpretation of § 939.46(1m), we reverse.
¶2 According to the criminal complaint, in June 2018, significant evidence led Kenosha detectives to interview seventeen-year-old Kizer in relation to the death of a Kenosha man ("the deceased"). After lying to the detectives, Kizer admitted to taking an Uber from Milwaukee to the deceased's residence, shooting him because "she had gotten upset and she was tired of [him] touching her," and then starting a fire at the residence before departing in the deceased's BMW. Kizer was charged with first-degree intentional homicide, operating a motor vehicle without owner's consent, arson, possession of a firearm by a felon, and bail jumping, all felonies.
¶3 At a pretrial conference, Kizer discussed the applicability to her case of WIS. STAT. § 939.46(1m), which provides an affirmative defense for victims of human trafficking and child sex trafficking for "any offense committed as a direct result of the violation of [ WIS. STAT. §§] 940.302(2) or 948.051."2 The circuit court ordered briefing regarding the interpretation and applicability of this defense. Following the briefing and oral argument, the court ruled that the defense Kizer. None of the charges against Kizer is for "one of the acts in § 940.302(2)." Kizer appeals.
¶4 WISCONSIN STAT. § 939.46(1m) provides: "A victim of a violation of [ WIS. STAT. §§] 940.302(2) or 948.051 has an affirmative defense for any offense committed as a direct result of the violation of [§§] 940.302(2) or 948.051 without regard to whether anyone was prosecuted or convicted for the violation of [§§] 940.302(2) or 948.051." (Emphasis added.) Kizer and the State agree that the circuit court erroneously interpreted this statutory provision but disagree as to the correct interpretation. We too agree that the court's holding that the affirmative defense is only available to Kizer if she is incorrect.
¶5 With regard to the first-degree intentional homicide charge against Kizer, the parties also spar over whether the WIS. STAT. § 939.46(1m) affirmative defense would, if successful, operate as a complete defense to this charge or only mitigate the charge to second-degree intentional homicide. We conclude that it would operate as a complete defense.
¶6 This appeal requires us to engage in statutory interpretation, which is a matter of law we review de novo. See Noffke ex rel. Swenson v. Bakke , 2009 WI 10, ¶9, 315 Wis. 2d 350, 760 N.W.2d 156. "Statutory language is given its common, ordinary, and accepted meaning" and "is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." State ex rel. Kalal v. Circuit Court for Dane Cnty. , 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110.
Meaning of "Direct Result"
¶7 The parties dispute the breadth of WIS. STAT. § 939.46(1m), particularly what the legislature intended when it wrote that this provision provides a trafficking victim with an affirmative defense "for any offense committed as a direct result of the violation of [ WIS. STAT. §§] 940.302(2) or 948.051."3 (Emphasis added.) Because the record as it relates to this defense is so limited, we do not here decide whether Kizer is entitled to utilize this defense at her trial.4 Instead, we consider Kizer's challenge to the circuit court's reading of § 939.46(1m) and provide what we believe to be the appropriate interpretation for the continuation of the criminal proceedings before the circuit court.
¶8 The WIS. STAT. § 939.46(1m) term "any offense" seems straightforward enough, but it is qualified by "committed as a direct result of the violation of [ WIS. STAT. §§] 940.302(2) or 948.051." "Direct result" is not defined for § 939.46(1m). Webster's Third New International Dictionary defines "result" as "to proceed, spring, or arise as a consequence, effect, or conclusion: come out or have an issue ... ing from a fall>." Result , WEBSTER'S THIRD NEW INT'L DICTIONARY (unabr. 1993). But, the legislature did not just write "result" but tightened up that word by preceding it with "direct." The same dictionary defines "direct" as "stemming immediately from a source." Direct , WEBSTER'S THIRD NEW INT'L DICTIONARY (unabr. 1993). The State additionally references the Merriam-Webster Dictionary as defining "direct" as "marked by absence of an intervening agency, instrumentality, or influence" and, like Webster's Third, "stemming immediately from a source." Direct , MERRIAM-WEBSTER DICTIONARY , https://www.merriam-webster.com/dictionary/direct (last visited April 12, 2021). Kizer also cites to Merriam-Webster, but points to a definition of "direct" meaning "characterized by [a] close logical, causal, or consequential relationship." Id.
¶9 We also glean some modest guidance on the meaning of "direct result" from our decision in Tri City National Bank v. Federal Insurance Co. , 2004 WI App 12, 268 Wis. 2d 785, 674 N.W.2d 617. In that case, two Tri City bank employees engaged in a scheme to fraudulently obtain mortgage loans for unqualified borrowers. Id. , ¶1. The scheme was discovered after numerous borrowers defaulted on the loans. Id. The mortgage companies subsequently sued Tri City, and the suits resulted in settlements. Id. , ¶¶3-5. Tri City sought a declaratory judgment alleging that the financial institution bond issued to it by Federal obligated Federal to indemnify Tri City. Id. , ¶5. Through the course of that litigation, we interpreted bond language which stated that the bond covered: "Loss resulting directly from dishonest or fraudulent acts committed by an Employee ...." Id. , ¶15 (emphasis added). Despite Tri City's contention that this language was ambiguous, we determined otherwise:
First, the bond clearly restricts indemnification to those losses that occur as a direct result of an employee's dishonest acts. This language is not susceptible to more than one meaning. Here, the loss was not direct. It was only after the mortgage defaults occurred, some three years after the employees’ deceitful actions, that Tri City's liability to the mortgage companies came into being. The losses did not "result[ ] directly from dishonest or fraudulent acts committed by employe[es,]" as the losses did not exist until the unsuitable mortgage holders defaulted on their loans and the mortgage companies sued Tri City .
Id. , ¶18 (footnote omitted; emphasis added). We continued:
Tri City's losses—the settlements with the mortgage companies—are not the direct result of the employees’ dishonesty; the employees were dishonest by permitting financially inappropriate people to obtain mortgages from other entities, not the employer bank. Thus, the bank initially lost nothing as a result of their dishonesty. It was only after the unsuitable mortgagees defaulted on their loans and the mortgage companies sued Tri City that "losses" resulted.
Id. , ¶24 (emphasis added).
¶10 Our supreme court has provided additional guidance on the word "direct." In Gister v. American Family Mutual Insurance Co. , 2012 WI 86, ¶2, 342 Wis. 2d 496, 818 N.W.2d 880, the court reviewed whether liens by a hospital against proceeds of settlements between patients and a tortfeasor's insurer constituted "direct charges" upon the patients. In doing so, the court noted that "American Heritage Dictionary defines ‘direct,’ in the most relevant definition, as ‘proceeding without interruption in a straight course or line; not deviating or swerving.’ " Id. , ¶30 (citing Direct , THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (3d ed. 1992)). Applying this definition to the relevant statute, the court concluded that "the provision should be construed to prohibit charges that ‘proceed in a straight course or line, without deviating or swerving,’ to the patient." Id. (citation omitted).
¶11 The Gister court determined that the liens were not "direct charges" upon the patients, stating, Id. , ¶34 (citations omitted). The liens were not "direct charges" against the patients (the Gisters) "because they attach[ed] to the settlement, not the Gisters themselves." Id. , ¶31 n.15.
¶12 In Whirlpool Corp. v. Ziebert , 197 Wis. 2d 144, 153-154, 539 N.W.2d 883 (1995), the supreme court considered the...
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