State v. Ruesch

• Decision Date: 30 October 1997
• Docket Number: No. 96-2280-CR,96-2280-CR
• Citation: 214 Wis.2d 548,571 N.W.2d 898
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ralph E. RUESCH, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 898

571 N.W.2d 898

214 Wis.2d 548

STATE of Wisconsin, Plaintiff-Respondent, v. Ralph E. RUESCH, Defendant-Appellant.

No. 96-2280-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 7, 1997.

Opinion Released Oct. 30, 1997.

Opinion Filed Oct. 30, 1997.

[214 Wis.2d 550] On behalf of the defendant-appellant, the cause was submitted on the briefs of James L. Kroner, Jr. of Moen Sheehan Meyer, Ltd. of La Crosse.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Tim Gruenke, Assistant District Attorney.

Before EICH, C.J, and VERGERONT and ROGGENSACK, JJ.

ROGGENSACK, Judge.

Ralph E. Ruesch appeals his conviction of a violation of § 940.32, STATS., the stalking law. Because we conclude that the State proved all the elements necessary to support a conviction of the violation charged, that § 940.32 is not unconstitutionally overbroad as applied, that it is not unconstitutionally vague, and that Ruesch's right to equal protection under the law has not been violated, we affirm.

BACKGROUND

In 1985, Ruesch became infatuated with Paula Sheldon and began leaving notes and flowers in her car. His interest progressed to writing letters and making repeated telephone calls to her. His conduct continued even though Sheldon and her husband and the local police department all informed Ruesch that his attentions were unwelcome and were upsetting and harassing to Sheldon.

On November 16, 1990, Sheldon sought a harassment injunction to prevent Ruesch from contacting her. The injunction was granted, and for a period of two years, there was no contact noted by Sheldon. Then, on March 27, 1993, after the harassment injunction had expired, she again began to see Ruesch driving by her home and place of employment. The drive-bys continued on a random basis throughout 1993, 1994 and 1995 until August 10, 1995, when Sheldon pursued Ruesch in her own vehicle until he stopped. She told him to leave her alone, that she was married, and that she had no interest in him. Ruesch responded that sometimes people die and when they do, remarriage is possible. That frightened Sheldon, but nevertheless, she extracted a promise from Ruesch to stay away from her. However, notwithstanding their conversation, Ruesch continued to follow Sheldon, which eventually resulted in his being charged with a violation of Wisconsin's stalking law, § 940.32, STATS.

After a trial, Ruesch was convicted of violating § 940.32(2), STATS., ¹ which states in relevant part:

Whoever meets all of the following criteria is guilty of a Class A misdemeanor:

(a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to himself or herself or a member of his or her immediate family or to fear the death of himself or herself or a member of his or her immediate family.

(b) The actor has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to himself or herself or a member of his or her immediate family or will be placed in reasonable fear of the death of himself or herself or a member of his or her immediate family.

(c) The actor's acts induce fear in the specific person of bodily injury to himself or herself or a member of his or her immediate family or induce fear in the specific person of the death of himself or herself or a member of his or her immediate family.

DISCUSSION

Standard of Review.

Determining the statutory elements of a crime is a question of law; therefore, our review is de novo. See State v. Kummer, 100 Wis.2d 220, 224-25, 301 N.W.2d 240, 243 (1981). Additionally, we review challenges to the constitutionality of a statute without deference to the decision of the circuit court. State v. Bertrand, 162 Wis.2d 411, 415, 469 N.W.2d 873, 875 (Ct.App.1991).

Elements of the Crime.

In order to obtain a conviction under the stalking law, the State must prove that Ruesch engaged in intentional, repetitive conduct directed at a specific person. The conduct must have been of a type that would Ruesch does not even contend that his conduct was not intentionally directed at Sheldon, or that it wasn't sufficiently repetitive to meet the requirements of the statute, or that a reasonable person in Sheldon's position would not have been afraid for herself or for her husband. Instead, he argues that because he used the public streets in his stalking of Sheldon, a use he claims is constitutionally protected, and because § 940.32(4), STATS., exempts constitutionally protected conduct from the proscriptions of subsection (2), the State was required to prove that his conduct was not constitutionally protected. Because the State did not do so, as he contends is required by subsection (4), Ruesch argues that the evidence was insufficient to sustain his conviction. ² He cites Ervin v. State, 41 Wis.2d 194, 163 N.W.2d 207 (1968) and Crandall v. Nevada, 6 Wall. 35, 73 U.S. 35, 18 L.Ed. 745 (1867), to support his argument.

objectively induce fear of personal harm in the victim or for a member of the victim's immediate family. The State must also prove the defendant had knowledge, actual or imputed, that such fear would result from the defendant's conduct, and that the conduct did produce such fear. Section 940.32(2), STATS. Ruesch's conduct had been on-going for years. When Sheldon obtained a court order to stop his advances, he unequivocally knew she objected to his behavior. Additionally, when Ruesch raised the specter that Sheldon's husband might die and therefore, her marriage would be no further impediment to their relationship, Sheldon was more than harassed. She was afraid, as a reasonable person would have been in similar circumstances.

Neither case provides support for the contention that the State did not prove all the elements of the crime of stalking. Ervin, a curfew case, assumes that even if a First Amendment right is at issue, it can be limited under a "legitimate and proper exercise of the police power of public authority." Ervin, 41 Wis.2d at 201-02, 163 N.W.2d at 211. Crandall involved a federal constitutional challenge to a capitation tax levied on persons leaving the State of Nevada. It focused on interstate travel; and as is discussed below, that is not the issue presented here.

Although no Wisconsin case has addressed the exact argument Ruesch presents, it was addressed by the Supreme Court of Montana in State v. Martel, 273 Mont. 143, 902 P.2d 14 (1995), which reasoned that every subsection in a criminal statute does not necessarily encompass an element of the crime which the state must prove. Id. at 21. Our own reading of subsection (4) leads us to the same determination as that reached in Martel and to conclude that Ruesch's argument misconstrues § 940.32(4), STATS.

Subsection (4) was incorporated into the statute, as similar provisions have been in many states, ³ as an attempt to ward off facial constitutional challenges by making legislative intent clear through the listing of a few examples of conduct the legislature did not intend to limit. On its face, it focuses on rights of free speech and peaceful assembly, rights Ruesch does not even claim to have been exercising and it does not describe elements of the crime of stalking. Subsection (4) states in relevant part:

(a) This section does not apply to conduct that is or acts that are protected by the person's right to freedom of speech or to peaceably assemble with others under the state and U.S. constitutions, including, but not limited to, any of the following:

1. Giving publicity to and obtaining or communicating information regarding any subject, whether by advertising, speaking or patrolling any public street or any place where any person or persons may lawfully be.

2. Assembling peaceably.

3. Peaceful picketing or patrolling.

(b) Paragraph (a) does not limit the activities that may be considered to serve a legitimate purpose under this section.

By contrast, the elements of the crime of stalking are set forth in subsection (2) which states, "Whoever meets all of the following criteria is guilty of a Class A misdemeanor" and thereafter the legislature listed the elements of the crime, in paragraphs (a) through (c) of subsection (2). Because subsection (4) provides no elements of the crime of stalking, it plays no role in the State's burden of proof at trial. Therefore, we conclude that the State met its burden of proving all the elements of the crime required by the statute.

Constitutional Claims.

Ruesch makes various constitutional challenges to § 940.32, STATS. Our examination of them begins by noting that all statutes reach this court with a presumption that they are constitutional and we review those statutes to preserve their constitutionality. Bertrand, 162 Wis.2d at 415, 469 N.W.2d at 875. A party who brings a constitutional challenge to a statute must show that it is unconstitutional beyond a reasonable doubt. State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989). Additionally, in regard to the vagueness challenge, Ruesch attempts to present a facial challenge to the constitutionality of the stalking law, striking down all possible applications of § 940.32. Bowen v. Kendrick, 487 U.S. 589, 600, 108 S.Ct. 2562, 2569, 101 L.Ed.2d 520 (1988). Therefore, Ruesch must establish, beyond a reasonable doubt, that there are no possible applications or interpretations of the statute which would be constitutional. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987).

1. Overbreadth.

Ruesch maintains that the statute is "unconstitutionally overbroad," as applied to him, because it limits his right ⁴ of "freedom of movement." A statute is overbroad when its language, taken at its common meaning, is written in such broad terms that it proscribes conduct which is constitutionally protected, as well as that which may be regulated, and thereby deters...