State v. Stepniewski

• Decision Date: 05 January 1982
• Docket Number: No. 80-750-CR,80-750-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Richard STEPNIEWSKI and Edward Malec, Defendants and Co-Appellants-Petitioners.
• Court: Wisconsin Supreme Court

Page 98

314 N.W.2d 98

105 Wis.2d 261

STATE of Wisconsin, Plaintiff-Respondent, v. Richard STEPNIEWSKI and Edward Malec, Defendants and Co-Appellants-Petitioners.

No. 80-750-CR.

Supreme Court of Wisconsin.

Argued Nov. 4, 1981.

Decided Jan. 5, 1982.

Richard E. Reilly, Milwaukee (argued), for appellants-petitioners; Richard E. Reilly and Gimbel, Gimbel & Reilly, Milwaukee, on brief.

David J. Becker, Asst. Atty. Gen. (argued), for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

STEINMETZ, Justice.

The principal issue in this case is whether the state must prove intentional conduct by a defendant in all charged circumstances of a violation of sec. 100.26(3), Stats.1977, ¹ for a conviction. This issue involves a statutory construction and constitutional requirements of due process. The trial court, the Honorable Ted E. Wedemeyer, Jr., in a trial to the court held that intent is not a requisite to be shown for all charged circumstances and that due process was not violated. The court of appeals, 101 Wis.2d 731, 306 N.W.2d 306, agreed, and we affirm.

The defendant, Edward Malec, also challenges the sufficiency of the evidence for his conviction for violating secs. 289.02(5) and 943.20(1)(b), Stats.1977. ²

The test on appeal for sufficiency of evidence to support a conviction is whether the evidence adduced, believed and rationally considered by the trier of fact was sufficient to prove the defendants' guilt beyond a reasonable doubt. State v. Blaisdell, 85 Wis.2d 172, 180, 270 N.W.2d 69 (1978).

In 1978 and 1979, the defendants, Edward Malec and Richard Stepniewski, were engaged in home improvement sales solicitations in Milwaukee county through a firm named Energy Control Systems, Inc. Mr. Malec was the president and principal stockholder in the company, while Mr. Stepniewski was a salesman-employee of the firm. Mr. Malec kept the company's books, had the power of final approval for all the company's contracts, coordinated work on its projects and often worked personally on homes. Mr. Stepniewski solicited contracts for the company, which included drafting contracts on behalf of the firm, and handled complaints and questions pressed by its customers.

Evidence produced at the trial showed that Mrs. Stella Richlen and her daughter, Terri, contracted for home improvement work with Energy Control Systems, Inc., through Stepniewski. The Richlens paid a down payment of $4,000 for the work and this money was transferred to Malec for deposit in the Energy Control Systems, Inc., account. No work was ever done under this contract. Mr. Malec told the Richlens that he had given some of their money to the Boy Scouts as a contribution, but didn't know how much of it was theirs. He also admitted at trial that he gave some of the Richlens' money to the Boy Scouts. This usage of those funds was not a term of the contract, nor was it approved by the Richlens. In addition, the trial court held the defendants' cash receipts journal clearly reflected the use of Richlens' money in Malec's gift to the Boy Scouts. The above admission of Malec was sufficient for conviction.

As this court stated in State v. Blaisdell, supra, at 178, 270 N.W.2d 69:

"Under the statutes here in question, the state's position is the correct one. In the case of Bastian v. LeRoy, 20 Wis.2d 470, 483, 122 N.W.2d 386 (1963), we held that the trust fund created by sec. 289.02(4), Stats. (now renumbered 289.02(5), Stats.) arises 'when the money has been paid by the owner or mortgagee to the contractor for improving the owner's property.' We must look to the money paid by the owner to do the particular job and trace the use of those proceeds. Until all claims for labor and materials are paid, the contractor's interest in the money paid to him by the owner to the extent of the amount of all claims due and to become due for that project is merely as a trustee."

Once the contractor (Malec) used the money of another (Richlen), given him for a particular building project, for another purpose or project before all the claims due or to become due were paid for the project that generated the payment, he violated the trust and committed a theft. The evidence in this case demonstrated Malec violated the trust and the trial court's finding of his guilt of theft as a contractor is sustained.

The defendants, Malec and Stepniewski, were each convicted of trade practice violations, Malec of six violations and Stepniewski of 12 counts. The evidence showed that the two defendants violated ch. AG 110 Wis.Adm.Code, ³ promulgated under sec. 100.20(2), Stats. ⁴ In particular, the defendants on several occasions failed to state in writing projects' starting and completion dates. On other occasions, while the defendants did enter such dates in writing, they then failed to complete the projects. In two cases where work was left undone, severe damage occurred to the homes when winter arrived. Many of the homeowners victimized by the defendants were elderly and retired citizens.

The trial court sentenced Stepniewski to one and one-half years imprisonment and six consecutive years of probation. At the time of sentencing, he was on probation for an earlier conviction under the theft by contractor statute.

The court sentenced Malec to 13 months incarceration for theft by contractor, plus six consecutive years in prison. The latter sentences for home improvement violations were stayed, and Malec was placed on probation for six years.

In addition, as terms of probation, the defendants were held jointly and severally liable for full restitution.

The defendants did not raise the issue of statutory construction in the court of appeals; however, the issue is raised here.

The defendants interpret the focused language of sec. 100.26(3), Stats.1977, "or who intentionally refuses, neglects or fails to obey any regulation made under s. 100.19 or 100.20, shall, ..." as meaning that "intentionally" modifies all the words following it.

In State v. Balestrieri, 87 Wis.2d 1, 7, 274 N.W.2d 269 (Ct.App.1978), that court held: "We therefore hold that the term 'intentional' in sec. 100.26(3), Stats., only modifies the term 'refuses.' It does not modify the terms 'neglect' or 'fails.' " This court affirmed the decision of the court of appeals in Balestrieri by an evenly divided court. State v. Balestrieri, 96 Wis.2d 361, 362, 291 N.W.2d 579 (1980). The issue is again before this court.

The statute is "capable of being understood by reasonably well-informed persons in two or more different senses" and consequently is ambiguous. Wirth v. Ehly, 93 Wis.2d 433, 441, 287 N.W.2d 140 (1980); accord, State ex rel. Warrington v. Shawano Cty. Cir. Ct., 100 Wis.2d 726, 303 N.W.2d 590, n. 1 (1981). When ambiguity exists, "this court may resort to extrinsic aids in determining legislative intent." Wirth v. Ehly, supra, at 441-42, 287 N.W.2d 140; accord, Milwaukee County v. Proegler, 95 Wis.2d 614, 625, 291 N.W.2d 608 (Ct.App.1980).

The words following "intentionally" are "refuses," "neglects " or "fails." (Emphasis added.) The Random House Dictionary of the English Language, Unabridged Edition, relevant definitions of those words as verbs are:

"refuse-... to express a determination not to (do something) ... to decline to submit to ... to decline acceptance, consent, or compliance..."

"neglect-to pay no attention ... to omit, through indifference or carelessness ... to fail to carry out or perform (order, duties, etc.) ..."

"fail-to fall short of success or achievement in something expected, attempted, desired, or approved ... to be or become deficient or lacking ..."

Since "refuses" has usages ranging from an expression of determination to not do something to a more passive declination of compliance, it is apparent the legislature preceded the word "refuses" with "intentionally" to make it understood that the refusal intended was the determination to not do something. This was done so mere declination to comply would be understood to be the same as a failure to carry out or perform an order or duties, which is the meaning of neglect. Neglect was, therefore, not modified by "intentionally," since the conduct described was something less than determination to not act.

The word "fails" was intended to mean a failure to obey a regulation by a lack of success or achievement, where the performance in compliance was deficient or lacking.

The legislature intended to provide for as wide a range of conduct to be included as an offense of sec. 100.26(3), Stats.1977, as penalties provided: "shall for each offense, be fined not less than $25 nor more than $5,000, or imprisoned in the county jail for not more than one year or both."

The legislature has shown its awareness of the use of intentional in respect to neglect and other words in other statutes, i.e.:

"52.05 Abandonment; uniform act. (1) PENALTY. Any person who, without just cause, deserts or wilfully (intentionally) neglects or refuses to provide for the support and maintenance of his or her spouse or child under 18 years ...." (Emphasis added.)

"947.15 Contributing to the delinquency of children; neglect; neglect contributing to death. (1) The following persons ...

"(a) Any person ... who intentionally encourages or contributes to the delinquency ... or the neglect of any child...." (Emphasis added.)

When the legislature intended in those statutes that the modifying word "intentionally" apply to other words and also "neglect," it used the conjunctive word "or." It did not do so in sec. 100.26(3), Stats.1977, until after the word neglect and before the word "fails." Intentionally cannot modify "fails," since one who has intentionally failed to obey is one who has a mental purpose of refusal to obey and such use would be duplicitous.

The defendant argues that sec. 100.26(3), Stats.1977, was meant to include only intentional conduct or, alternatively, that it violates due process to convict a person of a crime with no mens...