State v. Ziegler

• Decision Date: 03 July 2012
• Docket Number: No. 2010AP2514–CR.,2010AP2514–CR.
• Citation: 816 N.W.2d 238,2012 WI 73,342 Wis.2d 256
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Scott E. ZIEGLER, Defendant–Appellant.
• Court: Wisconsin Supreme Court

342 Wis.2d 256

816 N.W.2d 238

2012 WI 73

STATE of Wisconsin, Plaintiff–Respondent,

v.Scott E. ZIEGLER, Defendant–Appellant.

No. 2010AP2514–CR.

Supreme Court of Wisconsin.

Argued April 17, 2012.

Decided July 3, 2012.

For the defendant-appellant there were briefs (in the court of appeals) by Christopher William Rose and Rose & Rose, Kenosha and oral argument by Christopher William Rose.

For the plaintiff-respondent the cause was argued by Aaron R. O'Neil, assistant attorney general, with whom on the brief (in the court of appeals) was J.B. Van Hollen, attorney general.

ON CERTIFICATION FROM THE COURT OF APPEALS

ANNETTE KINGSLAND ZIEGLER, J.

[342 Wis.2d 266]¶ 1 This appeal is before the court on certification by the court of appeals pursuant to Wis. Stat. § 809.61(2009–10).Wisconsin Stat. § 948.31(2)(2005–06)¹ prohibits a person from interfering with the custody of a child.In State v. Bowden,2007 WI App 234, ¶ 18, 306 Wis.2d 393, 742 N.W.2d 332, the court of appeals interpreted the phrase “withholds a child for more than 12 hours from the child's parents” in § 948.31(2) as “address[ing] a situationwhere the person who takes the child has some initial permission to do so.”In the instant certification, however, the court of appeals expressed its disagreement with its interpretation of § 948.31(2), explaining that following Bowden would compel it to overturn the defendant's conviction for interference with child custody despite the conviction appearing statutorily sound.The court of appeals therefore asked us to determine whether its interpretation of § 948.31(2), as set forth in Bowden, is contrary to the plain language of the statute.

¶ 2 Stemming from allegations involving four teenage girls, the State charged the defendant, Scott Ziegler(Ziegler), with one count of repeated first-degree sexual assault of a child; one count of interference with child custody; two counts of child enticement; one count of second-degree sexual assault by use of force; two counts of physical abuse of a child, intentionally causing bodily harm; and seven counts of second-degree sexual assault of a child.

¶ 3 A jury found Ziegler guilty of each of the 14 counts, and the circuit court entered judgment on the jury verdict.The circuit court sentenced Ziegler to a total of 310 years of imprisonment, but several of the 14 sentences were structured to run concurrently.As a result, Ziegler would serve a total of 35 years in initial confinement and 20 years on extended supervision.

¶ 4 Ziegler appealed, challenging his conviction on four grounds.First, relying on Bowden, Ziegler argued that there was insufficient evidence to convict him of interference with child custody.Second, he contended that five of the seven counts of second-degree sexual assault of a child are multiplicitous in violation of his constitutional protection against double jeopardy.Third, Ziegler asserted that the admission at trial of his mug shot ² deprived him of his right to a fair trial.Fourth and finally, Ziegler maintained that the circuit court erroneously exercised its discretion in ordering him to wear a stun belt at trial.

¶ 5The court of appeals certified Ziegler's appeal to this court, asking us to examine its interpretation of Wis. Stat. § 948.31(2) in Bowden.

¶ 6We granted the court of appeals' certification and now affirm the judgment of the circuit court.

¶ 7 First, in answer to the certified question, we conclude that the court of appeals' interpretation of the phrase “withholds a child for more than 12 hours from the child's parents” in Wis. Stat. § 948.31(2), as set forth in Bowden, is contrary to the plain language of the statute.We therefore withdraw from Bowden any language that suggests that § 948.31(2) requires the State to prove that the defendant had the parents' “initial permission” to take the child.The remainder of Bowden retains its precedential value.³

¶ 8 Applying the appropriate interpretation of Wis. Stat. § 948.31(2) to the instant case, we determine that the evidence was sufficient to convict Ziegler of interference with child custody.

¶ 9 Second, we conclude that Counts 10 through 14 of the information, each charging Ziegler with second-degree sexual assault of the same child, are not multiplicitous.The five offenses, while identical in law, are different in fact.We further conclude that Ziegler has failed to rebut the presumption that the legislature intended to permit cumulative punishments for the five offenses.

¶ 10 Third, we determine that the circuit court's admission at trial of Ziegler's mug shot did not deprive Ziegler of his right to a fair trial.

¶ 11 Fourth and finally, we conclude that the circuit court appropriately exercised its discretion in ordering Ziegler to wear a stun belt at trial.

I.FACTUAL BACKGROUND

¶ 12 Ziegler owned a store in downtown Waukesha, Wisconsin that sold various sexual novelties and smoking paraphernalia, as well as pornographic magazines and videos.Prior to its closing in November 2007, the store, named “Twisted,” was recognized as a hangout for juveniles.

¶ 13 On January 17, 2008, the City of Waukesha Police Department received a report from a county social worker that Ziegler was having sexual intercourse with 14–year–old Kaitlyn R. (Kaitlyn) and that Kaitlyn was planning to run away with him.The next day, on January 18, 2008, Kaitlyn's mother informed police that Kaitlyn did not return home from school.

¶ 14 Ten days later, on January 28, 2008, the police caught Ziegler leaving his residence with Kaitlyn.At the time, Kaitlyn was wearing a dog collar and leash.

[342 Wis.2d 270]¶ 15 Several friends of Kaitlyn's provided statements to the police, advising that Kaitlyn had disclosed to them that she frequently hung out with Ziegler and had sexual intercourse with him on numerous occasions.In exchange for sex, Ziegler allegedly provided Kaitlyn with alcohol and marijuana.

¶ 16 Samantha M. (Samantha), then 15 years old, informed the police that she too spent time at Ziegler's residence, smoking marijuana.Samantha recounted that on one occasion, in November 2007, Ziegler “grabbed her, put her over his knee and held her down by her arms and legs.”Despite Samantha's resistance, Ziegler pulled down her pants and underwear and spanked her bare buttocks for approximately five minutes.

¶ 17 The accounts were largely reiterated by two of Ziegler's adult roommates.One indicated that he personally observed Ziegler spank and inappropriately touch underage girls.He reported that one girl in particular, 16–year–old Kari K. (Kari), stayed at Ziegler's residence for over a week in December 2007, getting drunk on vodka and high on marijuana.Ziegler's roommate described how he could hear Ziegler and Kari having sex through the walls of Ziegler's bedroom.

¶ 18 When interviewed by the police, Kari acknowledged that she had visited Ziegler's residence “approximately 50 to 100 times” since July 2007, often with Kaitlyn.She recalled consuming alcohol and drugs on every occasion and sleeping over “approximately 40 times.”According to Kari, Ziegler had a rule that any female who spent the night had to sleep naked in his bedroom; when Kari objected, he spanked her bare buttocks with a wooden paddle.Kari advised that she often awoke to find Ziegler's fingers inside her vagina, and on one occasion, Ziegler forced her to perform oral sex on him.Kari described another night when, pursuant to Ziegler's rule, both she and Kaitlyn were required to sleep naked with Ziegler.When Kari awoke, she observed Kaitlyn performing oral sex on Ziegler.

¶ 19 That same rule was recounted by 15–year–old Nicole V. (Nicole), who reported spending the night at Ziegler's residence in December 2007:

[Ziegler] provided her with Adderall pills, and she was “high.”She said that she was in [Ziegler's] bedroom with him, and the door was shut and locked from the inside.She said they were lying on the bed and she was trying to fall asleep when [Ziegler] started touching her breasts.She said that they started making out and both ended up taking off all of their clothing.She said [Ziegler] then placed his hands on top of and inside of her vagina.She said that his penis was erect, and he had her rub it with her hands.He then had her put her mouth on his penis, and she performedoral sex on him until he ejaculated in her mouth.She said that after this, [Ziegler] had her lay across his lap and he hit her on the buttocks with a wooden paddle.

II.PROCEDURAL POSTURE

¶ 20 On July 1, 2008, the State filed an information charging Ziegler with the following 14 counts: (1) repeated first-degree sexual assault of Kaitlyn, in violation of Wis. Stat. §§ 948.02(1)⁴ and [342 Wis.2d 272]948.025(1)(b);⁵(2) interference with the custody of Kaitlyn, in violation of Wis. Stat. § 948.31(2);(3) enticement of Kaitlyn, in violation of Wis. Stat. § 948.07(3);⁶(4) enticement of Kari, in violation of § 948.07(3);(5) second-degree sexual assault of Kari, then 16 years old, in violation of Wis. Stat. § 940.225(2)(a);⁷(6) second-degree sexual assault of Kari, then 15 years old, in violation of Wis. Stat. § 948.02(2);(7) second-degree sexual assault of Samantha, in violation of § 948.02(2);(8) physical abuse of Samantha, in violation of Wis. Stat. § 948.03(2)(b);⁸(9) physical abuse of Kari, in violation of § 948.03(2)(b);(10) second-degree sexual assault of Nicole (“mouth to penis oral sex”), in violation of Wis. Stat. § 948.02(2);(11) second-degree sexual assault of Nicole (“digital penetration of vagina”), in violation of § 948.02(2);(12) second-degree sexual assault of Nicole (“touching breasts”), in violation of § 948.02(2);(13) second-degree sexual assault of Nicole (“hand to penis”), in violation of § 948.02(2); and (14) second-degree sexual assault of Nicole (“striking of buttocks”), in violation of § 948.02(2).⁹

¶ 21 On September 4, 2009, Ziegler filed a pre-trial motion to dismiss Counts 10 through 14 as...