State v. Panno

• Decision Date: 16 August 1989
• Docket Number: No. 88-1419,88-1419
• Citation: 447 N.W.2d 74,151 Wis.2d 819
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Frank PANNO, individually, Anita Panno, individually, Robert M. Burns, individually, and Others Whose Identities are Currently Unknown, d/b/a Odyssey Adult Book Store, 9720 120th Avenue, Kenosha, Wisconsin, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 74

447 N.W.2d 74

151 Wis.2d 819

STATE of Wisconsin, Plaintiff-Respondent, v. Frank PANNO, individually, Anita Panno, individually, Robert M. Burns, individually, and Others Whose Identities are Currently Unknown, d/b/a Odyssey Adult Book Store, 9720 120th Avenue, Kenosha, Wisconsin, Defendants-Appellants.

No. 88-1419.

Court of Appeals of Wisconsin.

Submitted on Briefs May 22, 1989.

Opinion Released Aug. 16, 1989.

Opinion Filed Aug. 16, 1989.

Michael Null, Chicago, Ill., for defendants-appellants.

Richard Alan Ginkowski, Asst. Dist. Atty., Kenosha, for plaintiff-respondent.

Before BROWN, P.J., and SCOTT and NETTESHEIM, JJ.

NETTESHEIM, Judge.

Robert Burns, proprietor of the Odyssey Adult Book Store, and Frank Panno and Anita Panno, owners of the property upon which the store is located (collectively Odyssey), appeal from a judgment enjoining operation of the bookstore for one year. The injunction is premised upon the finding that Odyssey is a public nuisance, contrary to secs. 823.09 and 823.10, Stats. Odyssey raises two arguments: (1) fourth-degree sexual assaults which occurred on the bookstore premises do not constitute offenses of "lewdness" within the meaning of sec. 823.10; and (2) the closure judgment violates federal and state free speech rights because no evidence established knowledge of Odyssey's representatives or employees of the lewd acts occurring on the premises. Odyssey also argues that the one-year closure judgment was too broad. We reject Odyssey's arguments and affirm the judgment.

The Odyssey Adult Book Store displays, rents and sells sexually explicit magazines, books, films, videos and related paraphernalia. Thirty-four private booths are also available on the premises for the viewing of sexually explicit movies. Customers had drilled holes between the walls of several of the booths, through which the interior of the neighboring booth could be seen and accessed.

During 1987, undercover police officers made several arrests at Odyssey for lewd and lascivious conduct pursuant to sec. 944.20(2), Stats., and fourth-degree sexual assault, pursuant to sec. 940.225(3m), Stats. In March of 1988, seven of these arrests resulted in convictions under these two statutes. In six instances of fourth-degree sexual assault, each defendant had entered a movie booth occupied by an undercover officer and without that officer's consent had grabbed, touched or rubbed the officer's genitals through his clothing. The one conviction for lewd and lascivious conduct was based on the defendant's action of inserting his exposed penis through the hole in the wall between his movie booth and the police officer's adjacent booth.

Within sixty days of these convictions, the state issued a summons and complaint alleging that the bookstore was a nuisance and requesting the court to enjoin its operation under secs. 823.09 and 823.10, Stats. The case was tried to the court without a jury. The undercover officers testified to the acts of sexual assault and lewdness they observed. On cross-examination of the officers Odyssey attempted to show entrapment. Odyssey also presented testimony by the proprietor, Burns, that neither he, nor Odyssey's employees, knew about the conduct which led to the arrests and convictions. Furthermore, Burns testified that he had posted signs warning against illicit sexual activity and had alerted Odyssey's employees to be on the lookout for this type of activity.

On July 25, 1988, the trial court issued its findings of fact, conclusions of law and judgment. The court concluded that fourth-degree sexual assault and lewd and lascivious conduct, contrary to secs. 940.225(3m) and 944.20(2), Stats., respectively, constituted offenses of "lewdness" within the meaning of the nuisance statute, sec. 823.10, Stats. The court then found the seven convictions for this conduct to be sufficient proof of a nuisance per se under sec. 823.10, and enjoined Odyssey, pursuant to sec. 823.09, Stats., from operating the bookstore for a period of one year. The court further ordered that the furniture, fixtures and other movable property used in connection with the video exhibitions be sold pursuant to sec. 823.13, Stats. The court, however, permitted Odyssey to remove the literature and other items from the sales area of the store and stayed the property sale provisions of the judgment pending appeal.

On appeal, Odyssey first argues that the trial court erred when it found that the convictions for fourth-degree sexual assault constituted offenses of "lewdness" under the nuisance statute, sec. 823.10, Stats. The statute reads in relevant part:

The conviction of any person, of the offense of lewdness, assignation or prostitution committed in the building or part of a building, erection or place shall be sufficient proof of the existence of a nuisance in the building or part of a building, erection or place, in an action for abatement commenced within 60 days after the conviction.

Id. Odyssey argues that because "lewdness, assignation or prostitution" are specific crimes under the Wisconsin criminal code, secs. 944.20 and 944.30, Stats., the legislature intended to limit proof under the nuisance statute to instances in which convictions had been obtained under those statutes. We reject this narrow reading of sec. 823.10.

Interpretation of a statute presents a question of law. L & W Constr. Co. v. Wisconsin Dep't of Revenue, 149 Wis.2d 684, 688, 439 N.W.2d 619, 620 (Ct.App.1989). In construing sec. 823.10, Stats., we are to give effect to the intent of the legislature. See L & W Constr., 149 Wis.2d at 689, 439 N.W.2d at 620. We must ascertain that intent by first looking to the language of the statute itself and giving the language its ordinary and accepted meaning. Id. That meaning may be ascertained from a recognized dictionary. State v. Lubotsky, 148 Wis.2d 435, 438, 434 N.W.2d 859, 861 (Ct.App.1988).

Section 823.10, Stats., clearly states that a conviction for "the offense of lewdness" is sufficient proof of the existence of a nuisance. If the legislature, as Odyssey suggests, had intended to limit proof under this statute to convictions pursuant to the lewd and lascivious statute, sec. 944.20, Stats., it would have so stated in the nuisance statute. The legislature, however, chose to use the broader phrase, "offense of lewdness."

This court has recently held that the ordinary and accepted meaning of the word "lewd" is as follows: (1) "inclined to, characterized by, or inciting to lust or lechery," Lubotsky, 148 Wis.2d at 438, 434 N.W.2d at 861; (2) "obscene or indecent as language, songs, etc.," id.; (3) "inciting to sensual desire or imagination," id. at 438-39, 434 N.W.2d at 861 (citing Webster's Third New International Dictionary 1301 (1976)).

Conviction for fourth-degree sexual assault pursuant to sec. 940.225(3m), Stats., requires proof that the defendant had sexual contact with a person without the consent of that person. "Sexual contact" is defined as follows:

[A]ny intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under s. 940.19(1).

Sec. 940.225(5)(b) (emphasis added).

By definition, fourth-degree sexual assault can be characterized by the Lubotsky factors of lust or lechery. Lubotsky, 148 Wis.2d at 438-39, 434 N.W.2d at 861. We conclude that the trial court properly found that fourth-degree sexual assault contrary to sec. 940.225(3m), Stats., constitutes an "offense of lewdness" within the meaning of sec. 823.10, Stats.

Odyssey next argues that its first amendment rights were violated by the closure judgment. It contends that a bookstore which sells and displays materials presumptively protected by the First Amendment to the United States Constitution and similar provisions of the Wisconsin Constitution cannot be enjoined as a nuisance on the basis of convictions for lewd conduct, without a showing that its representatives or agents had knowledge of the conduct. Odyssey also argues that its first amendment rights were violated because the closure judgment, which enjoined the entire bookstore operation for a period of one year, was too broad. We will address each of these constitutional challenges in turn.

Odyssey argues that because its agents had no knowledge or notice of the nuisance, the closing impinged on the free speech guarantees of the state and federal constitutions and was an impermissible prior restraint of protected expression. We disagree. None of the authorities cited by Odyssey holds that proof of knowledge or notice is constitutionally required when closure of an adult bookstore is sought on the grounds that activity within the bookstore constitutes a nuisance. Rather, the courts which have addressed the knowledge issue did so on statutory grounds. See People v. Schoonmaker, 241 Mich. 177, 216 N.W. 456, 457 (1927); State ex rel. Haas v. Club Recreation & Pleasure, 41 Or.App. 557, 599 P.2d 1194, 1199, 1200 (1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2962, 64 L.Ed.2d 838 (1980).

We view the issue of whether knowledge or notice must be shown in order to establish a nuisance as a question of statutory interpretation. This is a question of law which we decide without deference to the trial court's decision. L & W Constr., 149 Wis.2d at 688-89, 439 N.W.2d at 620.

Odyssey was closed under the Wisconsin nuisance statutes, secs. 823.09 and 823.10, Stats. These statutes read in pertinent part:

823.09 Bawdyhouses declared nuisances. Whoever shall erect, establish, continue, maintain, use, occupy or lease any building or part of building ... to be used for the purpose of lewdness...