State v. Vonesh

• Court: Court of Appeals of Wisconsin
• Writing for the Court: SUNDBY; GARTZKE
• Citation: 401 N.W.2d 170,135 Wis.2d 477
• Decision Date: 18 December 1986
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Anthony L. VONESH, Defendant-Respondent. 86-0540-CR.

Page 170

401 N.W.2d 170 135 Wis.2d 477 STATE of Wisconsin, Plaintiff-Appellant,
v.
Anthony L. VONESH, Defendant-Respondent. 86-0540-CR. Court of Appeals of Wisconsin. Submitted on Briefs Sept. 4, 1986.
Opinion Released Dec. 18, 1986.
Opinion Filed Dec. 18, 1986.
Review Denied.

Page 171

[135 Wis.2d 478] Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., for plaintiff-appellant.

Tod O. Daniel and Nancy V. Welch, Janesville, for defendant-respondent.

Before GARTZKE, P.J., DYKMAN and SUNDBY, JJ.

Page 172

SUNDBY, Judge.

Anthony L. Vonesh is charged with first-degree sexual assault on his eleven-year-old daughter contrary to sec. 940.225(1)(d), Stats. The trial court denied the state's motion based on Wisconsin's rape shield law, sec. 972.11(2), Stats., to exclude from evidence two notes written by the complainant. We granted the state's petition for leave to appeal. Because the notes do not describe prior sexual conduct, and do not constitute prior sexual conduct, we conclude they are admissible. We affirm.

Wisconsin's rape shield law provides: "If the defendant is accused of a crime under s. 940.225, any evidence concerning the complaining witness's prior sexual conduct ... shall not be admitted into evidence during the course of the hearing or trial...." Sec. 972.11(2)(b), Stats.

[135 Wis.2d 479] The first note reads: "Dear Spiencer [sic], I love you. You would not fock [sic] me. The only reason I said I was twelve is because I want you and I want you to go with me. And I wanted you to fuck me." The second note is a "Kissing License" which reads:

The boy that reads this must follow these rules that very same day he reads it.

Rules

1. Walk up to the owner of this license

2. Put your arms around her

3. Then say I must kiss you now

4. Then go for it and it must be french

5. After you kiss say "I need it"

6. If you like do not quit.

Vonesh seeks to introduce the notes to show motive of his daughter to fabricate her charges and to show prior sexual knowledge from sources other than the alleged assault. He claims she retaliated by falsely accusing him when he told her he was going to send the notes to her mother. The trial court concluded that the notes were admissible because they were not evidence of "prior sexual conduct." ^1..

The admissibility of the notes presents two questions: (1) Do the notes describe prior sexual conduct? and (2) Were the acts of writing and copying the notes prior sexual conduct? To answer these questions we [135 Wis.2d 480] apply the rape shield law to the facts presented by the record. "The construction of a statute in relation to a given set of facts is a question of law. State v. Clausen, 105 Wis.2d 231, 243, 313 N.W.2d 819 (1982). Therefore, we need not give special deference to the determinations of the circuit court." Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985). Before construing sec. 972.11(2), Stats., we must determine whether the statute is ambiguous.

A statute is ambiguous if it is capable of being construed in two different ways by reasonably well-informed persons. Kollasch v. Adamany, 104 Wis.2d 552, 561, 313 N.W.2d 47 (1981). However, we have recognized that parties have obviously disagreed as to a statute's meaning whenever a case involving statutory construction reaches this court. State v. Wittrock, 119 Wis.2d 664, 670, 350 N.W.2d 647 (1984); Aero Auto Parts, Inc. v. Dept. of Transp., 78 Wis.2d 235, 238-39, 253 N.W.2d 896 (1977). Therefore, the court must examine the language of the statute itself to determine whether well-informed persons should have become confused. Wittrock at 670 [350 N.W.2d 647] Aero Auto Parts, Inc. at 238-39. When the language of the statute is clear and unambiguous, the statute must be interpreted on the basis of the plain meaning of its terms. Wittrock at 670 [350 N.W.2d 647] State v. Derenne, 102 Wis.2d 38, 45, 306 N.W.2d 12 (1981).

Tahtinen, 122 Wis.2d at 166-67, 361 N.W.2d at 678.

"Sexual conduct" is defined as "any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and lifestyle."

Page 173

Sec. [135 Wis.2d 481] 972.11(2)(a), Stats. Usually, where a word or phrase is defined in a statute, its meaning is as defined, and no construction is necessary. Britton v. Transportation Department, 123 Wis.2d 226, 229, 365 N.W.2d 919, 921 (Ct.App.1985). Here "sexual conduct" is defined by other words--"conduct" and "behavior"--which on their face are not ambiguous. However, words in common usage may have varying meanings according to the context in which used. Lukaszewicz v. Concrete Research, Inc., 43 Wis.2d 335, 342, 168 N.W.2d 581, 585 (1969). That is true here. Reasonably well-informed persons may differ as to whether a written or verbal communication or expression having a sexual basis or connotation may be, or describes, conduct or behavior relating to sexual activities. THE KISSING LICENSE

The conduct or behavior contemplated in the "license" is future conduct or behavior and is not shielded by the law. However, the law is ambiguous in that reasonably well-informed persons may differ as to whether the act of copying or writing the "license" is prior sexual conduct.

THE "DEAR SPENCER" NOTE ^2..

The "Dear Spencer" note contains expressions of sexual desires: "I want you," and "[I] wanted you to fuck [135 Wis.2d 482] me." The note also contains the sentence--"You would not fock [sic] me"--which, arguably, describes a prior sexual experience or, more precisely, a sexual nonexperience. The rape shield law is ambiguous as to whether the written expression of a desire to have sexual relations with another is sexual conduct and whether writing about sexual desires is sexual conduct. The law is also ambiguous as to whether describing in writing the rejection of a sexual overture is sexual conduct. Reasonably well-informed persons could reach different conclusions as to whether the "Dear Spencer" note describes, or is, sexual conduct.

CONSTRUCTION OF RAPE SHIELD LAW

The guiding principle of statutory construction is to determine the intent of the legislature. Hemerley v. American Fam. Mut. Ins. Co., 127 Wis.2d 304, 308, 379 N.W.2d 860, 863 [Ct.App.1985). When an ambiguity in statutory language is present, we must determine the [135 Wis.2d 483] legislative intent from the language of the statute in relation to its scope, history, context, subject matter and the object sought to be accomplished. Stoll v. Adriansen, 122 Wis.2d 503, 511, 362 N.W.2d 182, 187 (Ct.App.1984). When a statute is ambiguous, a reviewing court may resort to extrinsic aids to determine legislative intent. State v. Stepniewski, 105 Wis.2d 261, 268, 314 N.W.2d 98, 101 (1982).

(a) Legislative History

"One of the most valuable extrinsic aids of judicial construction is legislative history." Milwaukee Co. v. Labor & Ind. Rev. Comm., 113 Wis.2d 199, 204, 335 N.W.2d 412, 415 (Ct.App.1983). Section 972.11(2), Stats., was created as part of Wisconsin's sexual assault law, sec. 12, ch. 184, Laws of 1975, effective March 27, 1976. The history of the law reveals that it was enacted for the same reasons which

Page 174

led to the wave of reform nationwide. ^3.. The purpose of such reform is summarized in Rape Law Revision: A Brief Summary of State Action, Legislative Reference Bureau, Informational bulletin 75-1B-1, April 1975, p. 6, ^4.. as follows:

[135 Wis.2d 484] For the most part, this legislation is directed at making rape convictions easier to obtain by eliminating or modifying statutory requirements for corroborative testimony and testimony regarding the victim's prior sexual conduct. Proponents of rape law reform hope that the new laws will lead to an increase in the number of rape prosecutions by removing some of the potential for embarrassment or humiliation which inhibits victims from reporting crimes.

The objective of the reformers was to reverse the long-standing common law doctrine that permitted a defendant accused of rape to inquire into the complainant's "character for unchastity." Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn.L.Rev. 763, 765 (1986).

Section 972.11(2)(b), Stats., makes inadmissible in a sexual assault prosecution the complaining witness's prior sexual conduct except: (1) evidence of past sexual conduct with the defendant; (2) evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, to determine the degree of assault or extent of injury; (3) evidence of complainant's prior untruthful allegations of sexual assault. In State v. Gavigan, 111 Wis.2d 150, 330 N.W.2d 571 (1983), the court permitted evidence of prior sexual conduct not within these exceptions to be admitted in a sexual assault prosecution. ^5..

[135 Wis.2d 485] The Wisconsin legislature reacted to Gavigan promptly and pointedly by enacting 1983 Wis. Act 449 ^6. creating sec. 972.11(2)(c), Stats., to read:

Notwithstanding S. 901.06, the limitation on the admission of evidence of or reference to the prior sexual conduct of the complaining witness in par. (b) applies regardless of the purpose of the admission or reference unless the admission is expressly permitted under par. (b)1, 2 or 3.

The Legislative Reference Bureau's analysis of the Act ^7. contains the following:

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In State v. Gavigan, 111 Wis.2d 150 [330 N.W.2d 571] (1983), the Wisconsin supreme court authorized the admission of evidence of the victim's prior conduct if the evidence serves to prove a fact independent of the prior sexual conduct, if the probative value of the evidence [135 Wis.2d 486] outweighs its prejudicial effect and if the jury's consideration of the evidence is for limited purposes.

This bill provides that the 3 statutorily recognized exceptions are the only exceptions to...