State v. Macarthur

• Decision Date: 26 June 2008
• Docket Number: No. 2006AP1379-CR.,2006AP1379-CR.
• Citation: 2008 WI 72,750 N.W.2d 910
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Cross-Appellant, v. Bruce Duncan MacARTHUR, Defendant-Appellant-Cross-Respondent.
• Court: Wisconsin Supreme Court

750 N.W.2d 910

2008 WI 72

STATE of Wisconsin, Plaintiff-Respondent-Cross-Appellant, v. Bruce Duncan MacARTHUR, Defendant-Appellant-Cross-Respondent.

No. 2006AP1379-CR.

Supreme Court of Wisconsin.

Argued March 4, 2008.

Decided June 26, 2008.

For the defendant-appellant-cross-respondent there were briefs by Alex Flynn and Alex Flynn & Associates, S.C., Milwaukee, and oral argument by Alex Flynn.

For the plaintiff-respondent-cross-appellant the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by Robert R. Henak and Henak Law Office, S.C., Milwaukee, on behalf of Father Donald J. McGuire.

ON CERTIFICATION FROM THE COURT OF APPEALS

¶ 1 ANNETTE KINGSLAND ZIEGLER, J

This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2005-06). The State alleges that Bruce MacArthur sexually abused three children between 1965 and 1972. Accordingly, he was charged with multiple counts of having sexual intercourse with a child and indecent behavior with a child pursuant to Wis. Stat. §§ 944.10(1), 944.10(3), 944.11(1), and 944.11(2) (1966-67).¹ He moved to dismiss those charges based upon the statute of limitations. The circuit court denied MacArthur's motion to dismiss.

¶ 2 This case presents the following issues: First, should the statute of limitations that governs the charges against MacArthur be the version of Wis. Stat. § 939.74 that was in effect between 1965 and 1972 or the version of that statute that was in effect in 2006?² MacArthur is alleged to have committed several sexual assault offenses between 1965 and 1972, but he was not charged until January of 2006. Depending on which statute applies, the charges may be barred. We conclude that the applicable version of Wis. Stat. § 939.74 is the version that existed between 1965 and 1972. Second, what is the proper procedure for determining public resident tolling under Wis. Stat. § 939.74(3)? Whether the statute of limitations is tolled because MacArthur was not a public resident of the state affects the viability of the charges against MacArthur. We adopt an approach consistent with the federal court's approach to the tolling provision in 18 U.S.C. § 3290. Therefore, we conclude that the circuit court judge decides the tolling issue in a pretrial proceeding wherein the State must prove by a preponderance of the evidence that a defendant was not a public resident.

I. BACKGROUND

¶ 3 MacArthur allegedly sexually abused three children at the former St. Joseph's Hospital in Beaver Dam, Wisconsin. The State asserts that the incidents occurred between March 1965 and June 1972 when MacArthur was a chaplain at the hospital. On January 18, 2006, MacArthur was charged with a number of crimes for those alleged incidents. Count one: Sexual intercourse with a child contrary to Wis. Stat. § 944.10(3) (1966-67).³ Count two: Indecent behavior with a child contrary to Wis. Stat. § 944.11(2) (1966-67). Count three: Sexual intercourse with a child contrary to Wis. Stat. § 944.10(1) (1966-67). Count four: Indecent behavior with a child contrary to Wis. Stat. § 944.11(1) (1966-67). Count five: Indecent behavior with a child contrary to Wis. Stat. § 944.11(2) (1966-67). Count six: Attempted indecent behavior with a child contrary to Wis. Stat. §§ 944.11(2) and 939.32 (1966-67). Count seven: Indecent behavior with a child contrary to Wis. Stat. § 944.11(1) (1966-67).⁴

¶ 4 On February 24, 2006, MacArthur moved the circuit court to dismiss all counts. In short, MacArthur argued that the six-year statute of limitations, Wis. Stat. § 939.74 (1965-72), had expired, thus depriving the court of jurisdiction. Moreover, MacArthur argued that the complaint failed to offer any proof that MacArthur left the state, which would be required to give rise to the tolling provision in Wis. Stat. § 939.74(3) (1965-72).⁵ In the alternative, MacArthur argued that even if the State could prove MacArthur was not a resident of Wisconsin after 1970, the prosecution was barred because Wis. Stat. § 939.74(2)(c) (2005-06) prohibits prosecution after a victim reaches the age of 45 years old, and in this case, the victims were older than 45 years old when the complaint was filed.

¶ 5 On May 25, 2006, the circuit court denied MacArthur's motion to dismiss. It concluded that the age limitations of subsection (2)(c) of Wis. Stat. § 939.74, which became effective on July 1, 1989, did not apply to chapter 944 offenses from 1965-72. Subsection (2)(c) refers to crimes pursuant to chapter 948, which was created by the same Act and does not refer to chapter 944. As a result, the circuit court stated, "[t]he plain text of the statute, of course, does not refer to any predecessor statute of sec. 948.02." Accordingly, the circuit court determined that the age limitations in subsection (2)(c) did not apply and that Wis. Stat. § 939.74 (1965-72) governed the statute of limitations issues in this case.

¶ 6 The circuit court scheduled a pretrial hearing on the statute of limitations defense. The court reasoned that the State would need to satisfy the court, by a preponderance of the evidence, that MacArthur was not a resident of the state of Wisconsin during the relevant time. However, the circuit court stated that if the defense were to raise the issue at trial, it "believes" the State's burden would elevate to beyond a reasonable doubt.

¶ 7 On June 8, 2006, MacArthur petitioned the court of appeals for leave to appeal the circuit court's non-final order.⁶ The State cross-appealed the circuit court's order that required the State to prove beyond a reasonable doubt at trial that the public resident tolling provision was satisfied.⁷ The court of appeals granted that petition on July 12, 2006, and subsequently certified the case to this court. Specifically, three issues were certified: First, "whether the statute of limitations for child sexual assault in effect when this crime was charged, Wis. Stat. § 939.74 (2005-06), applies to crimes committed before the enactment of Wis. Stat. ch. 948." Second, "whether the judge or the jury decides if the statute of limitations bars prosecution where the State argues that the statute of limitations has been tolled because the defendant left the State of Wisconsin." Third, "what burden of proof applies to resolving whether the statute of limitations has been tolled."

II. STANDARD OF REVIEW

¶ 8 This case involves a determination of the appropriate statute of limitations as well as the interpretation and application of Wisconsin Statutes. Hamilton v. Hamilton, 2003 WI 50, ¶ 14, 261 Wis.2d 458, 661 N.W.2d 832. While these matters present questions of law that we review de novo, we benefit from the analyses of the lower courts. Id.

III. ANALYSIS

¶ 9 "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. This court begins statutory interpretation with the language of a statute. Id., ¶ 45. If the meaning of the statute is plain, we ordinarily stop the inquiry and give the language its "common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." Id. Context and structure of a statute are important to the meaning of the statute. Id., ¶ 46. "Therefore, statutory language 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." Id.

¶ 10 Between 1965 and 1972, Wis. Stat. § 939.74, "Time limitations on prosecutions," read:

(1) Except as provided ..., prosecution for a felony must be commenced within 6 years ... after the commission thereof....

(2) Notwithstanding that the time limitation under sub. (1) has expired:

(a) A prosecution for murder may be commenced at any time;

(b) A prosecution for theft against one who obtained possession of the property lawfully and subsequently misappropriated it may be commenced within one year after discovery of the loss by the aggrieved party, but in no case shall this provision extend the time limitation in sub. (1) by more than 5 years.

(3) In computing the time limited by this section, the time during which the actor was not publicly a resident within this state ... shall not be included....

Simply stated, under the 1965 through 1972 statutes, charges need to be filed within six years of the alleged felony unless the actor was not a public resident within this state. If the actor was not a public resident within the state, the limitations period is tolled for that time period.

¶ 11 In 1987, subsection (2)(c) was added to Wis. Stat. § 939.74. 1987 Wis. Act 332, § 27. Subsection (2)(c) provided the following:

A prosecution for violation of s. 948.02, 948.03, 948.04, 948.05, 948.06 or 948.08 may be commenced within the time period specified in sub. (1) or by the time the victim reaches the age of 21 years, whichever is later.

1987 Wis. Act 332, § 65 states: "Initial applicability. This act applies to offenses occurring on or after the effective date of this SECTION, but does not preclude the counting of other violations as prior violations for sentencing a person." The effective date was July 1, 1989. 1987 Wis. Act 332, § 66a.

¶ 12 In 1993, subsection (2)(c) was amended in order to increase the age a victim might attain before a prosecution would be barred. 1993 Wis. Act 219, § 6. Subsection (2)(c) then provided:

A prosecution for violation of s. 948.02, 948.03, 948.04, 948.05, 948.06, 948.07 or 948.08 shall be commenced before the victim reaches age 26 years, or be barred.

1993 Wis. Act 219, § 7 states: "Initial applicability. (1...