State v. Smith

• Decision Date: 06 July 2005
• Docket Number: No. 2003AP1698-CR.,2003AP1698-CR.
• Citation: 699 N.W.2d 508,283 Wis.2d 57,2005 WI 104
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Timothy Scott Bailey SMITH, Sr., Defendant-Appellant.
• Court: Wisconsin Supreme Court

283 Wis.2d 57

2005 WI 104

699 N.W.2d 508

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Timothy Scott Bailey SMITH, Sr., Defendant-Appellant.¹

No. 2003AP1698-CR.

Supreme Court of Wisconsin.

Oral argument January 7, 2005.

Decided July 6, 2005.

For the plaintiff-respondent-petitioner the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

For the defendant-appellant there was a brief and oral argument by Patrick M. Donnelly, assistant state public defender.

¶ 1. PATIENCE DRAKE ROGGENSACK, J.

The State of Wisconsin requests review of a published decision of the court of appeals, State v. Smith, 2004 WI App 116, 275 Wis. 2d 204, 685 N.W.2d 821. The court of appeals reversed a judgment of the circuit court for Green County, the Honorable James R. Beer, presiding, convicting Timothy Smith, Sr. of two felony counts of failure to pay child support, contrary to Wis. Stat. § 948.22(2) (2001-02).² The State argues that the court of appeals erred in concluding that the circuit court violated the constitutional principles articulated in United States v. Gaudin, 515 U.S. 506 (1995), by declining to submit a question to the jury on whether child support was ordered by a "court of competent jurisdiction," as used in § 948.22(1)(a). The State also argues that the court of appeals erred in concluding that the circuit court erroneously exercised its discretion in admitting a copy of a certified copy of a Maine court's child support order.

¶ 2. We conclude that whether a court of competent jurisdiction issued the child support order underlying a prosecution for the crime of failure to pay child support is not an element of that crime. Therefore, the constitutional principles discussed in Gaudin were not implicated when the circuit court declined to submit a question to the jury in that regard. In addition, we conclude that the circuit court did not erroneously exercise its discretion in admitting Exhibit 3, a copy of a certified copy of the Maine court's child support order, as it was admissible pursuant to Wis. Stat. § 909.015(1) and (7). Accordingly, we reverse the decision of the court of appeals and affirm the judgment of the circuit court.

I. BACKGROUND

¶ 3. Timothy Smith ("Smith") and Denise Smith were married in Connecticut in 1977. They had three children. In 1989, they were divorced by a district court in Waldo County, Maine. The divorce judgment did not order Smith to pay child support.

¶ 4. Denise Smith and the children subsequently moved to Wisconsin. In February 1992, a Green County child support case manager filed a petition for child support against Smith on Denise Smith's behalf in the circuit court for Green County. The petition was later transmitted to the Maine Department of Human Services, pursuant to the Uniform Reciprocal Enforcement of Support Act ("URESA"). On October 1, 1992, Smith met with an employee of the Maine Department of Human Services at the Sagadahoc County courthouse, and on the same day, he stipulated to the superior court of Sagadahoc County, Maine's order requiring him to pay $68 per week in child support.

¶ 5. On October 12, 1999, Smith was charged in Green County with two felony counts of failure to pay child support, contrary to Wis. Stat. § 948.22(2), based on allegations that he had not paid child support between July 1, 1996 and August 18, 1997 and again between February 17, 1998 and July 2, 1999.

¶ 6. In pretrial motions and argument, Smith asked the circuit court to conclude that the 1992 Maine court order was invalid. He asserted various reasons for the order's alleged invalidity: (1) it was issued by a court in Sagadahoc County, rather than a court in Waldo County; therefore, it was not issued by a court of competent jurisdiction; (2) his agreement to pay $68 per week in child support was the result of his meeting with an employee of the Maine Department of Human Services, whom Smith contended had no authority to "prosecute" the URESA petition; therefore, the order was invalid; and (3) the Maine court order did not state under which provision of Maine or federal law it was proceeding upon; therefore, it was not a lawful order. Smith asserted these attacks on the Maine order were appropriate because the third element necessary to prove a Wis. Stat. § 948.22(2) violation is that he knew or reasonably should have known that he was legally obligated to pay child support. Smith contended that because he did not believe the order was valid, that affected his state of mind in regard to the third element. Therefore, the question of the order's validity was a proper subject for the jury.³ ¶ 7. The prosecutor characterized Smith's theories as a disguised collateral attack on the Maine order, an attack he argued should not be permitted because Smith pursued a remedy in the Maine courts. The prosecutor pointed out that Smith admitted that once the support order began to be enforced, he had challenged it in Maine courts, but after losing, he did not complete an appeal. The circuit court concluded that whether the Maine order was valid was a question for the court. The court concluded that it would give "full faith and credit" to the Maine order, which the court determined was a legal question, and it refused to permit Smith to "collaterally attack" the order.⁴

¶ 8. The case was tried before a jury. At trial, Smith shifted his method of attacking the Maine court order somewhat by asking the court to instruct the jury that it was required to find, as an element of the offense, that a court of competent jurisdiction issued the October 1, 1992 child support order. The circuit court declined, concluding that the question of whether the Maine child support order was issued by a court of competent jurisdiction was a legal question that the court had already determined. Additionally, Smith objected to the admission of Exhibit 3, a copy of a certified copy of the Maine child support order, arguing that the document had not been properly authenticated. The circuit court overruled that objection as well.

¶ 9. The jury found Smith guilty of both counts of failure to pay child support, and the circuit court sentenced Smith and filed a judgment of conviction. Smith appealed the judgment, and the court of appeals reversed. The State then petitioned this court for review, which we granted.

II. DISCUSSION

A. Constitutional Challenge

¶ 10. The court of appeals relied on the United States Supreme Court's decision in Gaudin in reaching its conclusion that the circuit court violated Smith's constitutional rights by declining to submit a jury question about whether a court of competent jurisdiction had ordered him to pay child support. In Gaudin, the Supreme Court explained that the Fifth and Sixth Amendments to the United States Constitution⁵ "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Id. at 510; see also In re Winship, 397 U.S. 358, 364 (1970) ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). We similarly have held that "where the finder of fact is a jury, rather than a judge, proof of all essential elements must be tendered to the jury." State v. McAllister, 107 Wis. 2d 532, 533, 319 N.W.2d 865 (1982) (citations omitted).

¶ 11. In Gaudin, the defendant had been charged with making false statements on federal loan documents.⁶Gaudin, 515 U.S. at 508. The parties did not dispute that the "materiality" of those statements was an element of that offense and that the government bore the burden of proving "materiality." Id. at 509. Rather, in Gaudin, the parties disputed whether the element of "materiality" must be submitted to the jury for determination. Id. The government argued, in part, that the question of "materiality" is a legal question and as such, a question for the court, not the jury, to determine. Id. at 511. However, the Supreme Court held that the determination of "materiality" was a mixed question of fact and law. Id. at 512. The Supreme Court then concluded that all elements of a crime must go to the jury, even those elements that involve a mixed question of fact and law. Accordingly, the Supreme Court held that the jury should have determined whether the defendant's statements were "material." Id. at 512-14.

¶ 12. In the present case, the posture of the question differs from that in Gaudin because Smith and the State dispute whether the question at issue, i.e., whether a "court of competent jurisdiction" issued the Maine child support order, is an element of the crime of failure to pay child support. Because we determine that the question of whether a court of competent jurisdiction ordered Smith to pay child support is not an element of the crime at issue, we also conclude that the constitutional principles articulated in Gaudin are not implicated.

1. Standard of review

¶ 13. Because determination of the statutory elements of a crime is a question of law, our review is de novo. State v. Ruesch, 214 Wis. 2d 548, 552-53, 571 N.W.2d 898 (Ct. App. 1997) (citation omitted).

2. Elements of the crime

¶ 14. In McAllister, as in the present case, we were asked to determine the "essential elements" of a crime, and we were asked to do so for the same purpose as in the present case, that is, to decide whether a circuit court had failed to submit an element to the jury for determination, thereby violating the defendant's right to have "proof of all essential elements . . . tendered to the jury." McAllister, 107 Wis. 2d at 533. We began our analysis in McAllister by noting the definition of "crime" provided for by the legislature in Wis. Stat. § 939.12. Id. at 535. Section 939.12 in relevant part provides, "A crime is...