State v. McCoy

• Decision Date: 22 March 1988
• Docket Number: No. 86-1992-CR,86-1992-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John Wayne McCOY, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 107

421 N.W.2d 107

143 Wis.2d 274

STATE of Wisconsin, Plaintiff-Respondent, v. John Wayne McCOY, Defendant-Appellant-Petitioner.

No. 86-1992-CR.

Supreme Court of Wisconsin.

Argued Feb. 3, 1988.

Decided March 22, 1988.

Kathryn S. Grosdidier, New Richmond, argued and on brief for defendant-appellant-petitioner; Doar, Drill & Skow, S.C., New Richmond, on brief.

Sally L. Wellman, Asst. Atty. Gen., argued for plaintiff-respondent; Donald J. Hanaway, Atty. Gen., on brief.

DAY, Justice.

This is a review of a published decision of the court of appeals ¹ which affirmed a judgment of conviction of the circuit court for Barron county, Hon. James C. Eaton, circuit judge and an order denying post-conviction relief in the same court, Hon. Frederick A. Henderson, circuit judge, presiding.

After a jury trial the defendant was convicted of intentionally concealing two of his minor children from their other parent contrary to sec. 946.715(1)(a), Stats. ² Mr. McCoy contends that the language in sec. 946.715(2)(a), permitting concealment taken to protect a child from "imminent physical harm," is unconstitutionally vague. He further alleges that the circuit court's instruction regarding this privilege, which stated that the defendant had to reasonably believe that "immediate" intervention was "necessary" to protect the children from imminent physical harm, was erroneous. We disagree and affirm the decision of the court of appeals.

There is substantial dispute between the parties regarding many facts pertinent to this case. In 1983, John and Luella McCoy were living as husband and wife with their three minor children. At trial, evidence was presented by Mr. McCoy that he and his wife were not "getting along" and had not for some time. He testified that his wife had physically abused the children, getting so angry that "she would back-hand them and sometimes she would burst their nose open or parts of their face," and would tell the children she was going to kill them. Mr. McCoy stated that he felt she would kill the children and that they were afraid of her and would run from her. He then would grab his wife and hold her while she was "ranting and screaming" until she would calm down. This conduct happened three or four times a month according to Mr. McCoy. He testified that he felt the problems between his wife and children were becoming worse and that their oldest child was very nervous and "rock[ed] all of the time." Mrs. McCoy testified that she had never physically abused the children.

On August 5, 1983, Mr. and Mrs. McCoy verbally argued concerning the cleanliness of the children. Mr. McCoy testified that his wife told him she could use the youngest child for drawing welfare support, that she didn't want to see him and the other children any more, and that he could take them and get out. Mrs. McCoy testified that Mr. McCoy had called her "terrible names" that day, but she had never told the defendant he could take the children.

Later that morning, a neighbor drove the two older children to Bible school. Mr. McCoy met his sons as school ended and left with them in his automobile. The parties' three month old child remained with Mrs. McCoy. Mr. McCoy testified at trial that he thought the children were in danger in the period shortly before and leading up to August, 1983. He also testified that he left his youngest son with his wife because she could not draw any welfare without him, and because she said she wasn't about to give him up. On cross examination he stated that his wife did not strike or abuse the children on August 5th and that he took the two older children because his wife told him to take them, not because he felt they were in danger on that particular day.

The record shows that the defendant traveled with his children for over a year, stopping in Tennessee, Florida, Nevada and California. Mr. McCoy testified that he called his wife from Florida approximately eight to ten days after he left with the children and that she didn't ask to speak with them. Mrs. McCoy testified at trial that she first heard from Mr. McCoy about two months after he left and that he said he was in Tennessee. She further testified that he would not let her talk to their sons then or at any other time. At the preliminary hearing, Mrs. McCoy had testified that her husband had called her from Minnesota approximately a month and a half after he left.

In May, 1984, Mrs. McCoy obtained a divorce and was awarded custody of all three children. Several months later, Mr. McCoy was charged with intentionally concealing the two older children from their mother. He was served with a warrant in California and subsequently returned to Wisconsin to stand trial.

At trial, defense counsel argued, among other things, that Mr. McCoy's actions were privileged because the children were in danger of imminent physical harm when he took them. At the close of the trial the judge instructed the jury on this matter, creating its own jury instruction since there was no pattern instruction for sec. 946.715, Stats., at the time. ³ The following instruction was read to the jury:

Under Section 946 of the Criminal Code a parent is privileged to intentionally conceal a minor child from the child's other parent if he reasonably believes such concealment is necessary to protect the child from imminent physical harm ...

The child is in imminent physical harm when he or she is faced with the danger likely to occur at any moment or which is threateningly or menacingly near at hand.

Physical harm means bodily harm, that is, physical pain or injury, illness or any other impairment of physical condition. If the defendant reasonably believes that his immediate intervention was necessary to protect the children from imminent physical harm, then he was privileged to conceal the children from Luella McCoy.

In order for the defendant's conduct to be privileged under the law the defendant must have reasonably believed: 1) that the children were in imminent physical danger and, 2) that his intervention was necessary for their protection.

The reasonableness of the Defendant's belief with regard to the matters mentioned must be determined from the standpoint of the Defendant at the time of his acts and not from the viewpoint of the Jury now. In other words, the standard is what a person of ordinary intelligence and prudence would have done in the position of the Defendant under the circumstances existing at the time of the alleged offense....

Therefore, before you can find the Defendant guilty of the offense charged in the Information you must be satisfied beyond a reasonable doubt from the evidence in this case that the concealment of each child from Luella McCoy was not privileged under the law that one (1) may take a child to protect him or her from imminent physical harm.

The jury found the defendant guilty of concealing a child contrary to sec. 946.715(1)(a), Stats. Motions for acquittal notwithstanding the verdict, new trial, and reduction of sentence were denied, and a judgment of conviction was entered.

The defendant appealed and the court of appeals affirmed the conviction. The court of appeals concluded that the statute was not unconstitutionally vague. It further held that the "necessary" and "immediate" language used by the circuit court in its instruction constituted harmless error because whether "immediate" intervention was required and whether concealment was "necessary" were not disputed issues. The defendant then petitioned this court for review.

The first issue raised by the defendant is that the phrase "imminent physical harm" in sec. 946.715, Stats., is unconstitutionally vague because it fails to give fair notice to a person bent on compliance with the statute, and fails to provide sufficient standards by which courts may apply this statute. The state contends that because the defendant failed to raise the issue of whether the statute is unconstitutionally vague at trial he has no right to review of this issue on appeal.

"Consideration of a constitutional issue raised for the first time on appeal is discretionary with this court. 'This court has consistently held that it will not entertain a constitutional issue raised for the first time on appeal unless there [are] some compelling reasons for doing so.' " State v. Wilks, 121 Wis.2d 93, 107, 358 N.W.2d 273, 280 (1984) (citations omitted). We conclude the facts of this case present a compelling basis for review of issues of first impression regarding the interpretation of sec. 946.715, Stats.

Addressing the test for constitutionality of a statute challenged on vagueness grounds this court has stated, "[s]tatutes are presumed constitutional and must be proved unconstitutional beyond a reasonable doubt.... A statute is not void for vagueness '[u]nless [it] is so vague and uncertain that it is impossible to execute it or to ascertain the legislative intent with reasonable certainty.' " State ex rel. Smith v. Oak Creek, 139 Wis.2d 788, 802, 407 N.W.2d 901, 907 (1987) (citations omitted). To meet the requirements mandated by due process a "criminal statute must be sufficiently definite to give a person of ordinary intelligence who seeks to avoid its penalties fair notice of the conduct required or prohibited," and to allow law enforcement officers, judges, and juries to objectively apply the law to defendant's conduct without creating or applying their own standards to determine guilt. State v. Popanz, 112 Wis.2d 166, 173, 332 N.W.2d 750, 754 (1983).

The test does not demand that the line between lawful and unlawful conduct be drawn with absolute clarity and precision.... "[T]he practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded." State v. Courtney, 74 Wis.2d 705, 710-11, 247 N.W.2d 714, 718 (1976) (Citations...