State v. Quintana

• Citation: 2007 WI App 29,729 N.W.2d 776
• Decision Date: 17 January 2007
• Docket Number: No. 2006AP499-CR.,2006AP499-CR.
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Leonard J. QUINTANA, Defendant-Respondent.<SMALL><SUP>†</SUP></SMALL>
• Court: Court of Appeals of Wisconsin

729 N.W.2d 776

2007 WI App 29

STATE of Wisconsin, Plaintiff-Appellant, v. Leonard J. QUINTANA, Defendant-Respondent.^†

No. 2006AP499-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs November 20, 2006.

Opinion Filed January 17, 2007.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Peggy A. Lautenschlager, attorney general, and Christopher G. Wren, assistant attorney general.

On behalf of the defendant-respondent, the cause was submitted on the brief of James B. Connell of Crooks, Low & Connell, S.C., Wausau.

Before CANE, C.J., HOOVER, P.J., and PETERSON, J.

¶ 1 HOOVER, P.J

The State of Wisconsin appeals an order dismissing a mayhem charge and school zone penalty enhancers attached to two charges against Leonard Quintana. The court concluded that the mayhem statute does not apply to injuries to the forehead and it held the school zone enhancer was unconstitutional as applied to Quintana. We conclude that the mayhem statute applies here and, further, we conclude that the school zone enhancer is not unconstitutional. Accordingly, we reverse the court's order and remand the case for further proceedings.

Background

¶ 2 In the early morning hours of September 4, 2004, Quintana allegedly entered the bedroom of his ex-wife Shannon and struck her forehead with the claw end of a hammer approximately three times. A neurosurgeon who examined Shannon following the attack described her injuries. She suffered a skull fracture and a scalp laceration running from above her eyebrow to behind her ear. As a result of the skull fracture, small pieces of bone tore the brain lining, allowing spinal fluid to leak into the wound. Shannon also sustained an intracranial injury with air and blood in the brain, an injury that "carries a potential for dying from it." Shannon further suffers from recurrent headaches and memory deficits.

¶ 3 The initial criminal complaint changed Quintana with attempted first-degree intentional homicide with domestic violence and dangerous weapon enhancers. The complaint was amended twice and the State then filed an Information, later amending that document as well. The amended information, filed November 23, 2005, charged Quintana with solicitation of first-degree intentional homicide and added three new charges: first-degree reckless injury, aggravated battery, and mayhem. The three new charges were each alleged to be acts of domestic abuse and committed with a dangerous weapon. The mayhem and aggravated battery charges were alleged to have been committed in a school zone.

¶ 4 Quintana moved to dismiss the mayhem charge, claiming it was not supported by the evidence at the preliminary examination. He also asked to have the school zone penalty enhancers dropped, arguing the enhancer statute violates both equal protection and due process. The court agreed with Quintana, dismissing the mayhem charge because it concluded the statute is inapplicable to forehead injuries and dismissing the school zone enhancers because it concluded the statute was unconstitutional as applied.

Discussion

I. Mayhem

¶ 5 WISCONSIN STAT. § 940.21 states, "Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another is guilty of a Class C felony."¹ Quintana argued to the circuit court, and repeats on appeal, that the forehead is not an "other bodily member" under the statute. The court agreed, holding that because the term "other bodily member" "is preceded by a list of specific bodily members, many of which are on or in the head, its interpretation is limited to other bodily members similar to those specified." The court considered the bones and skin of the forehead to be present throughout the body and not at all unique like the other enumerated body parts in the statute.

¶ 6 Statutory construction is a question of law we review de novo. Citizens' Utility Bd. v. Public Serv. Comm'n, 2003 WI App 206, ¶ 8, 267 Wis.2d 414, 671 N.W.2d 11. Our goal in statutory interpretation is to ascertain legislative intent and give it effect. Id. Here, the question is whether the forehead constitutes an "other bodily member" for purposes of the mayhem statute.

¶ 7 Both Quintana and the State agree that the mayhem statute has its origins in English common law, designed to preserve the fitness of the sovereign's citizens for military service. They both also seem to agree that modern usage of the statute serves to preserve the normal function or appearance of the human body, with no emphasis on conscription, self-defense, or other form of combat. The parties diverge, however, on the application of the statute to these facts and both proffer problematic interpretations.

¶ 8 Quintana would have us apply the doctrine of ejusdem generis and convinced the circuit court to do so. Under this doctrine, "when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed." BLACK'S LAW DICTIONARY 556 (8th ed.2004). BLACK'S gives an example: "in the phrase horses, cattle, sheep, pigs, goats, or any other farm animal, the general language or any other farm animal— despite its seeming breadth—would probably be held to include only four-legged, hoofed mammals typically found on farms, and thus would exclude chickens." Id. (emphasis in original). Thus, in Quintana's interpretation and the circuit court's decision, the forehead is not like the other enumerated parts of the head and therefore is not an "other bodily member."

¶ 9 Here, however, application of the doctrine is imperfect, because the statute also includes "limb" in the list preceding "other bodily member." A limb—defined as an arm or a leg when talking about humans²—is distinct from any part of the head, and we thus reject the notion that the ejusdem generis doctrine requires an "other bodily member" to necessarily be like the tongue, eye, ear, nose, or lip. Indeed, if we followed Quintana's interpretation, it would be akin to putting the chickens back on Black's farm and still holding "any other farm animal" includes only four-legged hoofed mammals.

¶ 10 Quintana would also have us apply the doctrine of noscitur a sociis, meaning that a word or phrase is known from its associates. But as with the previous doctrine, it is difficult to interpret "other bodily member" based on its associates because a limb is unlike the other enumerated body parts.

¶ 11 The difficulty with Quintana and the circuit court's interpretation is its narrowness. If we limit "other bodily member" to "bodily members similar to those specified," we are not certain what would constitute an "other bodily member." The tongue, eyes, ears, nose, lips, and limbs really have no analogous parts elsewhere on the body. Yet the legislature must have intended the mayhem statute to apply to some other parts, or it would not have included "other bodily member" in the statute. When we construe statutes, we seek to avoid rendering parts meaningless surplusage. Mueller v. McMillian Warner Ins. Co., 2006 WI 54, ¶ 27, 290 Wis.2d 571, 714 N.W.2d 183.

¶ 12 To counter Quintana, the State contends the real question is whether the entire head, not just the forehead, is an "other bodily member." It points us to two cases to aid our statutory interpretation. The more recent of these is a California case, People v. Newble, 120 Cal. App.3d 444, 174 Cal.Rptr. 637 (1981). In Newble, the question was also whether the head was a "member" of the body for purposes of a mayhem statute. There, the victim sustained a laceration extending from the left ear to the chin.

¶ 13 The California mayhem statute provided that "[e]very person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." Id. at 639. The Newble court, after some discussion of statutory construction canons and review of the English common law, ultimately concluded the head was a "member" of the body, because

[i]n light of the stated rationale of the crime of mayhem we conclude there is no tenable reason for distinguishing prominent facial wounds to a nose, ear or lip, from comparable wounds which happen to miss one of those areas of the head specifically mentioned in [the statute]. The opposite conclusion would lead to a result which is undesirable, if not absurd.

Id. at 640.

¶ 14 The State's reliance on Newble, however, suffers a similar but opposite problem as Quintana's reliance on interpretation doctrines. Although Newble is temptingly persuasive, it is overbroad. An interpretation of "other bodily member" that includes the entire head renders the legislative enumeration of the head's parts meaningless.

¶ 15 But the State also points us to an older Wisconsin case, Moore v. State, 3 Pin. 373 (1851), to demonstrate that "other bodily member" has been broadly interpreted in the past and should be broadly interpreted now. The facts of Moore are extremely abbreviated, but the supreme court applied the mayhem statute to the body's organs and held "[o]ur legislature certainly gave the same protection to the internal organs of the female [specifically, the uterus,] that it did to the external organs of the male." Id. at 375.³ The State suggests Moore indicates we should not adopt a narrow interpretation of the modern mayhem statute.

¶ 16 In an attempt to distinguish Moore, Quintana concedes that an internal organ is an "other bodily member." Indeed, Quintana makes a point of defining the nose as containing "the organs of smell" and the ear as "the organ of hearing" while explaining that the forehead does not fulfill the dictates of Moore. However, it is precisely this organ analogy that allows us to conclude the forehead, but not the entire head, can be considered an "other bodily member" under the...