State v. Sostre, 94-0778-CR

• Decision Date: 24 January 1996
• Docket Number: No. 94-0778-CR,94-0778-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jorge B. SOSTRE, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 774

542 N.W.2d 774

198 Wis.2d 409

STATE of Wisconsin, Plaintiff-Respondent, v. Jorge B. SOSTRE, Defendant-Appellant.

No. 94-0778-CR.

Supreme Court of Wisconsin.

Argued Nov. 28, 1995.

Decided Jan. 24, 1996.

For the defendant-appellant there were briefs and oral argument by Ruth S. Downs, Assistant State Public Defender.

For the plaintiff-respondent the cause was argued by Diane M. Nicks, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

STEINMETZ, Justice.

The issue in this case is whether a live-in boyfriend, who is a volunteer caretaker of a child, is a "person ... responsible for the welfare of [a] child," and thereby subject to the penalty enhancer found in Wis.Stat. § 948.03(5) (1993-94). ¹ We hold that a live-in boyfriend can be a "person ... responsible for the welfare of [a] child," if he was used by the legal guardian of the child as a caretaker for the child. In such situations, it is appropriate for the penalty enhancer found in Wis.Stat. § 948.03(5) to be applied.

The facts in this case are not in dispute. On November 10, 1991, defendant Jorge B. Sostre was charged with one count of child abuse for intentionally injuring three-year-old Joseph F. On November 12, Irene Lundin, a juvenile crisis worker, interviewed Joseph. The child told her that the defendant hit him and pointed to his head, his stomach and his buttocks. Asked where he was when this took place, the child brought the crisis worker into his bedroom and pointed to his bed and said "Poppy hit me."

The defendant's trial began on February 22, 1993. At trial, Sandra F., Joseph's mother, testified that she and Sostre had known each other about four or five years and lived together for about three years. Sandra F. said that during this time the defendant did everything that she did with regard to taking care of the children, including feeding and bathing them. She claimed that Joseph considered the defendant his father or stepfather, called him "Poppy," and that until the child abuse incident, Joseph had had a normal father-son relationship with the defendant.

Sandra then testified that on November 8, 1991, she left Joseph in the defendant's exclusive care. She rejoined her son a few hours later and discovered bruises on Joseph's face, stomach and buttocks. The defendant told her that he did not know how the child had gotten hurt. Sandra took Joseph to the hospital to treat his injuries.

Two physicians also testified for the State: Dr. Harlow LaBarge and Dr. James Concannon. Dr. LaBarge testified that during his October 24, 1991, examination of Joseph, he observed numerous older bruises on the child. He also found numerous acute injuries, including injuries to the back and abdomen, the left side of the head, the right side of the head and the top of the head. Dr. LaBarge opined that the injuries he observed on the body of Joseph were indicative of child abuse.

Dr. Concannon testified that the child told him that "Poppy" hit him and indicated that the blows were both with fists and with an open hand during the November 8, 1991, incident. The child also indicated that he had been struck about the face, the back, the butt, the penis and the belly. The doctor found the following acute injuries: bruising where the rib cage ends, along the right cheek and upper eyelid, petechiae on both cheeks of the face, and reddened areas on the buttocks. Dr. Concannon found a pattern to the injuries on the rib cage and cheek that was consistent with a slap with an open hand and which indicated more than one blow. It was his opinion, to a reasonable degree of medical certainty, that the injuries were consistent with intentional trauma and rose to the level of abuse.

At the trial, the defendant denied abusing Joseph. However, he admitted that he cared for Joseph and that he had what could be characterized as a parental relationship with Joseph while he was living with Sandra. He also admitted that all of Joseph's injuries occurred while he had the child in his exclusive custody.

A jury found the defendant guilty of physical abuse of Joseph F. pursuant to Wis.Stat. § 948.03(2)(b) (1993-94). ² He was sentenced to eight years in prison, which were stayed, and was placed on five years probation with certain conditions, including the service of one year in jail. The eight-year stayed sentence included a penalty enhancement of three years as required by Wis.Stat. § 948.03(5).

After the trial, the defendant moved for either a reduction of the sentence imposed or, alternatively, a new trial on the issue of the defendant's responsibility for the welfare of the child. The circuit court for Kenosha County, Michael S. Fisher, Judge, denied this motion, holding that the defendant's relationship with Joseph created a situation where the defendant became a "person ... responsible for the welfare of [a] child" under Wis.Stat. § 948.03(5). The defendant appealed this holding to the court of appeals. The court of appeals, citing due process concerns raised by a possible conflict between our decision in State v. Evans, 171 Wis.2d 471, 492 N.W.2d 141 (1992), and its decision in State v. Dodd, 185 Wis.2d 560, 564, 518 N.W.2d 300, 301 (Ct.App.1994), certified the case to this court pursuant to Wis.Stat. § 809.61 (1993-94). Review was accepted.

The interpretation of a statute and the application of a statute to an undisputed set of facts are both questions of law. See Ynocencio v. Fesko, 114 Wis.2d 391, 396, 338 N.W.2d 461 (1983). This court reviews such question de novo without deference to the trial court or the court of appeals. See id.

The ultimate goal of this court in interpreting a statute is to give effect to the legislature's intent. See State ex rel. Parker v. Sullivan, 184 Wis.2d 668, 679, 517 N.W.2d 449 (1994). The first step in this process is to look to the plain language of the statute itself. See id.

The phrase "person ... responsible for the welfare of [a] child" found in Wis.Stat. § 948.03(5) is defined by Wis.Stat. § 948.01(3). ³ One category of persons included in this definition is those people who are "employed by one legally responsible for the child's welfare to exercise temporary control or care for the child." Wis.Stat. § 948.01(3). One of the common meanings of the word "employed" is to "engage the service of" or "to make use of." Random House Unabridged Dictionary (2nd ed. 1993). Under these facts, it seems clear that the mother made use of the services of the defendant, or engaged the services of the defendant, in order to take care of her child when it was necessary for her to be away. In other words, the defendant was clearly "employed" by a person "legally responsible" for a child to "care for that child."

It is true that the term "employed" is usually equated with economic payment for services. The existence of more than one common meaning for the word "employed" creates an ambiguity in the statute which should be construed so as to uphold the intent of the legislature. This court recognized in Evans, 171 Wis.2d at 480, 492 N.W.2d 141, that the legislature's implicit intent in drafting Wis.Stat. § 948.01(3) was to "broadly define the category of persons responsible for a child's welfare." This finding was based upon the statute's remedial purpose of combatting the evils of child abuse, especially abuse by people who are entrusted with the child's care. By broadly construing the word "employed," our opinion gives effect to this intent.

Although postulated by the court of appeals as a possible problem, we find no conflict between our decisions in this case and Evans and the court of appeals' decision in Dodd. It is true that all three decisions interpret the same language. It is also true that Dodd interprets the phrase "person responsible for [a] child's welfare" in a limited manner while this decision and Evans interpret the same language much more broadly. There are, however, a number of reasons why this difference in interpretation is not only appropriate, but necessary.

First, and most obviously, the language interpreted in Dodd is found in a completely different chapter of the Wisconsin Statutes than the language interpreted by this decision and Evans. The court of appeals in Dodd explicitly distinguished Evans on this basis. See Dodd, 185 Wis.2d at 565-66, 518 N.W.2d 300. This case and Evans deal with the interpretation of Wis.Stat. § 948.01(3). This subsection is found in ch. 948 which is titled "Crimes Against Children." The entire chapter is specifically aimed at remedying the problems of child abuse. Dodd, however interprets Wis.Stat. § 939.45(5) (1993-94). ⁴ This section is found in ch. 939 which is titled "Crimes--Generally." Wisconsin Statute § 939.45's purpose is to discuss the basic statutory privileges which a defendant may invoke when he has been charged with the commission of a crime. The parent-child discipline privilege is one of these. There is no reason why these two distinct chapters need to be read together.

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