State v. Anderson

Plaintiff-Respondent, Wisconsin, State

v. Defendant-Appellant. Derek Anderson, Supreme Court 12, argument Oral November No. 2003AP3478-CR. Decided May 2005 WI 731.) (Also reported in 695 N.W.2d defendant-appellant For the there were briefs Tyroler, Neil C. McGinn and J. assistant state William public argument by defenders, and Neil C. oral McGinn. plaintiff-respondent argued by

For the the cause was Marguerite attorney general, Moeller, M. assistant with Peggy Lautenschlager, on the A. whom brief was attor- ney general. WILCOX, P JON J. This case comes to us on appeals. defendant,

certification from the court of formerly Anderson, Krnak, Derek known as Andrew appealed an order of the Circuit Court for Jefferson County, Judge, binding Hue, F. him William over for trial father, for the murder of his Allen Krnak. Anderson presented preliminary claimed that the evidence at the hearing probable failed to establish cause for territorial jurisdiction County. in Wisconsin and venue in Jefferson

I. ISSUES appeals questions ¶ 2. The court of certified two 1) component rea of to this court: Whether the mens first-degree intentional homicide constitutes a "con- meaning stituent element" of that crime within the 939.03(l)(a) (1997-98),1 § Wis. Stat. such that the state jurisdiction charge first-degree has territorial over subsequent All references to the Wisconsin Statutes are to the 1997-98 unless indicated. The criminal version otherwise complaint alleged that Allen Krnak murdered in 1998.

Ill if an individual commits an act in intentional homicide 2) manifesting kill; an intent to and Whether Wisconsin county manifesting where an act intent to a Wisconsin may claim venue under kill occurred Wis. Stat. 971.19(2). appeals § addition, In the court of noted that challenging evidentiary ruling an made the State was hearsay certain evi- the circuit court that struck contending probable dence, there was cause jurisdiction territorial and venue with this establish evidence admitted. language conclude, based on the We 939.03(1)(a) legislative history,

§ that the mens its first-degree element of intentional homicide consti rea 939.03(1)(a). § a "constituent element" under Sec tutes 939.03(1)(a), requires which that one of the con tion place" in of an offense "takes stituent elements jurisdiction, state have territorial Wisconsin upon proof committed an is satisfied that the defendant manifesting Further, in act an intent to kill. Wisconsin striking conclude that the circuit court erred we hearsay preliminary hearing at the certain evidence properly under and that with this evidence admitted hearsay exception, presented residual the State sufficient evidence of venue under Wis. Stat. 971.19(1) the State established that there is because probable that Anderson killed his cause believe County. father Jefferson II. FACTUAL BACKGROUND AND PROCEDURAL POSTURE (his family ¶ 4. Derek Anderson's —Thomas father)— (his (his mother), brother), Donna and Allen July They disappeared on or around 1998. were last they preparing were their seen Anderson as leave County in for their in home Jefferson cabin Waushara July holiday. County In December over the Fourth of in remains of Allen Krnak were found 1999, the skeletal County, Caro- remote, a wooded area of Jackson North August 18, 2003, the State filed a criminal lina. On against charging complaint him Anderson, with first- degree on or about intentional homicide of his father County.2 July Sullivan, in 2,1998, the town of Jefferson preliminary hearing ¶ 5. The was set for October hearing, parties preliminary 6, 2003. Prior to agreed following stipulation: to the Allen Krnak was the father of the Defendant

1. captioned the above matter. Allen Krnak is

a. deceased. attended Uni- 2. The Defendant Western Carolina through August versity from December 1990 call July p.m. phone On 1998 at 3:10 the Krnak on Lundt Road placed from residence place employment, to Allen Krnak's Wisconsin Company. Electric Power summary presented following of the evidence is a preliminary hearing. at the Krnak's remains were found 6. The site where forest, is located Carolina is national which North

approximately ten miles from Western Caro- seven to University. previously attended lina Anderson had death was attributed school here. The cause Krnak's the head and face. to blunt-force trauma to Carolina, initially charged in where Anderson was North charges found. Those were father's skeletal remains were his dismissed. subsequently enforcement that 7. Anderson told law officials parents place left on

his and brother their residence July County in 2, 1998, for their cabin Waushara Sunday, July planned on 5. Krnak were due home coworker, Gradel, visit a friend and James who owned July just property lake near the Krnaks' cabin. On holiday weekend, he left before work for Gradel map property provided Krnak with a hand-drawn of his surrounding area, and the as Krnak had never been placed map in there. Gradel testified that Krnak a carrying briefcase or other device. Gradel testified that day generally good Krnak was looking mood that and was long July forward to a Fourth of weekend. p.m. left work around 3:00 or 3:30 and never Gradel again. police saw Krnak Anderson told that his father p.m. returned home from work around 4:30 July p.m., phone 2,1998, On at 3:10 call placed County from the Krnak residence Jefferson place employment. initially Allen Krnak's Anderson police phoning recall father told that he did not his at July in- However, work on Anderson later formed his aunt that he called his father at work that day parents' working because he was at his residence on addition, car and needed to find a tool. In his Anderson police told brother returned home from work his p.m. between 3:20 and 3:25 and his mother returned shortly p.m. home after 4:00 coworkers, 9. Another one of Krnak's Bill Con- nelly, testified that he had a Krnak conversation with shortly p.m. July 2,1998, before on and that Krnak 4:00 "extremely Connelly seemed kind of distressed." testi- fied that he had known Krnak since 1972 and could not seeing upset According ever him that remember before. Connelly, fly him "I out Krnak told have to may go "[w]e here" and that have to to a funeral." Connelly Krnak had an he recalled that testified that although buddy Army he was Minnesota, ill in who was why upset. reason Krnak was unclear if that was the p.m. work 4:00 scheduled to leave at Krnak was During investigation, Detective the criminal County Department Sheriffs Howe of the Jefferson activity log prepare for to an to account Anderson asked July over the Fourth weekend. his whereabouts Thursday, July activity log entry 2, indicated in the for spending UW-Whitewater, at time that after some parents' 4:00 residence at about Anderson arrived at his p.m. he Anderson stated that when arrived: home my computer. got Mom working

Tom was on shortly packing I did the weekend. after and started for my and then Mustang on few hours I worked up Dad before 5 loaded got TV home and watched door grabbed way Tom his stuff on the out the truck. by driveway. It was 5:15 probably and drove down the them. This I saw of now. was last Friday, July 3, 11. Anderson indicated on mainly car, television, and worked on his watched he computer. played on Anderson noted that Satur- on his July day, alcohol, car, 4, he worked on his drank Sunday, July 5, Anderson On watched fireworks. more, car watched that he on his some indicated worked campfire, made a and cooked some brats. television, family was "due hack before Anderson stated that his they just figured they I show, when didn't dark but stayed they something night like an extra fish by They time I do. hadn't come home sometimes around 11:30." went to bed Monday, July 6, that on 12. Anderson indicated starting early up and he classes were because he woke he noticed that a 10:45 a.m. He indicated that had class. his had family yet home, to return this "was thought odd," but went school anyway. Anderson indicated that when he returned home from classes at 4:00 p.m. he began get worried. He stated:

Tom yet wasn't home strange which was since he always gets home at Nothing 3:30. changed had at get home so I started to worried. Mom and dad didn't get home on time so about 5:001 up drove to the cabin. definitely I worried now always since dad if calls plans change. anyone There wasn't home at the cabin. neighbors And I talked to the They .... didn't remem- seeing anyone ber home all weekend. I called the Waushara Co. Sheriff to if see there had been an They report accident. had no and said to check the State Patrol and check with relatives in the area. I also stopped deputy's at a house a mile down the road and asked him to watch for Tom's truck. He hadn't remem- any activity bered at the cabin for got awhile. IWhen I home called one of mom's They relatives. hadn't seen anybody I so called the They State Patrol. had no reports of an accident and said to wait. A Jeff. Co. deputy by Tuesday came anyone to check if was home guess here. I Mary Aunt didn't realize I was here. July 10, 1998, On Anderson contacted War- den Scott Bowe Sauk County. He informed Bowe that his parents and brother were missing and needed help locating them. Anderson informed Bowe that his family have might been in the Mirror Lake area scouting hunting ground. Anderson told Bowe that his parents were driving truck pickup and described the pickup truck. Anderson told Bowe that his family left for their cabin in Waushara on County July and were due home July 5, but he believed that they never made it to their cabin. 14. Bowe asked Anderson he why was contact-

ing conservation warden and Anderson responded being helpful.3 department not was that the sheriffs possible provided locations Bowe with a list Anderson family may Relying gone. infor- have on the his where pickup provided by Anderson, mation Bowe located Dell minutes in the Creek Wildlife truck about 90 County. empty, pickup truck Area in Sauk was except front Bowe for a notebook on the seat. small County Department. then contacted the Sauk Sheriffs July drove 24, 1998, Anderson met with Bowe and On searching for his around Sauk and Juneau Counties family. during his Howe testified that Detective concerning

investigation, spoke he with Anderson mileage family Krnaks on of the vehicles. The one Chevy pickup green F-150, truck, a Ford owned a black They kept very detailed and a black Buick sedan. July mileage logs in all three vehicles. On Detective mile- Krnak to obtain the Howe went to the age residence logs mileage figures. on and current the vehicles mileage pickup on truck as The current the black July 127,452. 21 was Howe testified Detective approximately 2,600 difference in was miles "there given [Anderson] mileage and the had me he entry mileage that written in the book." The last log mileage pickup truck was date in the the black miles 124,834 time had June at that the vehicle mileage, logged. the excess Anderson When asked about large provide explanation for the amount failed to mileage an stating he had on the vehicle other than driving testified the vehicle. Another detective been Krnak residence and that the distance between the responsibility it of a testified that is not the warden Bowe duty area did not include investigate missing persons. Bowe's County. Waushara

area where Krnak's remains were discovered in North approximately round-trip. Carolina is 1560 miles ¶ 16. Detective Howe also testified that he re- map Department ceived a from the Whitewater Police that was recovered from the black Buick owned Schopen Donna Krnak. The vehicle was at the Wrecker map glove in Whitewater.4 The was found in the com- partment of the vehicle and was sent to the Wisconsin analysis. Crime Lab for The Wisconsin Crime Lab thumbprint map. identified Anderson's on the Shortly family missing, after his went phoned inquire they Anderson his aunt to as to whether stopped by place. Although very her his aunt was parents very prompt people concerned because his were always who were worry." on time, Anderson told her "[o]h, don't during Anderson's aunt testified that another telephone Anderson, conversation with he informed her party that there was a search at the Krnak residence "[G]ive they'll forget and stated: them a week and "They this." He also told find his aunt: will never during them." His aunt also stated that the conversa- very acquain- tion "he was nonchalant." In addition, an tance of Anderson, who attended summer school in family's Whitewater with him around the time of his disappearance, police informed that Anderson told her parents he was not too concerned about his but missed family dog. ¶ 18. Ellifson, Patricia one of coworkers, Krnak's testified that she garding had conversation with Krnak re- respective April

their children at work on college She informed Krnak that one of her sons at was explained As in the State's complaint, criminal Anderson apparently arrested for operating under the influence in Whitewater, school, where he attended after being involved an driving accident while his mother's Buick. being very moody. response, inquired In Krnak and was her. ever threatened Ellifson's son had as to whether threat- his son had Krnak then informed Ellifson that night and attacked him one after work. ened him had to him with that his son had tried club Krnak stated something waiting he came for him when and was home. her stated that it was understand- Ellifson although recently,

ing had that the incident occurred specifically it She did not state when occurred. Krnak fright- very upset Krnak and stated that was further relaying story. Ellifson this stated ened when story shaking visibly and he told this Krnak was when upset Ellifson became as face was red. herself his story. told asked if he of this When Ellifson result something, going anybody Krnak do was to you guess responded: know do. at I least "What's going going you you how are world, are out of how specifically inquired son as which Ellifson to die." referring referring. Krnak he was stated was Krnak (Derek Anderson). son Andrew his hearing, preliminary At end of the granted to strike court the defendant's motion circuit testimony hearsay purpose as for the of Ellifson hearing. preliminary court Nonetheless, the circuit probable cause that a homicide that there was found homicide. and that Anderson committed the occurred evidence circuit also found sufficient court jurisdiction that there was venue, as it concluded intent to kill his that Anderson formed the evidence County. that there The court found father Jefferson "implication formed to ... a scheme was an County. The in Jefferson cause Mr. Allen Krnak's death" place telephone call to Krnak's that the court stated employment was "part of a scheme to him get to the house for the purpose his causing demise." 21. The circuit court

¶ clarified that it although found an inference that Anderson formed the intent to kill his father in Wisconsin, it found no evidence that Anderson performed an act in furtherance of that intent in Wisconsin. On 12, 2003, December the circuit court entered a written order the binding defendant over for trial and denying defense motion to dismiss the criminal complaint. Anderson appealed and the court of appeals certified the aforementioned questions to this court.

III. STANDARD OF REVIEW 22. This case ¶ concerns whether the State pro- vided sufficient evidence at the preliminary hearing to establish probable cause jurisdiction for in Wisconsin and venue in Jefferson County for the charged offense.5 Thus, resolution of this case an requires analysis of the statutes governing jurisdiction territorial and venue 5 During a prosecution, criminal the State required is jurisdiction establish both trial, and venue at although they are not technically elements of a criminal offense. Wisconsin law is clear that the required State is prove beyond venue Swinson, reasonable doubt. State v. 45, 19, WI App ¶ 633, Wis. 2d 660 N.W.2d 12 ("[Ajlthough venue in Wisconsin proved beyond must be doubt, a reasonable it is not an element crime, of the but rather a matter of procedure, which refers to trial."). place the Similarly, "the State is obligated in all prosecutions to establish its jurisdiction territorial over a de charged fendant for Brown, crimes." State v. 34, WI App 25, 260 125, ¶ Wis. 2d 659 N.W.2d 110. jurisdiction Territorial an jury is for the issue if it involves unresolved disputes; factual however, whether jurisdiction Wisconsin has under the law for a crime based on an undisputed set of facts anis issue of law for Id., the circuit court. ¶¶ 25-27. evidence at an into whether State's inquiry cause hearing probable established preliminary met. statutes were those requirements forth the rules begin setting govern- We statutory interpretation: ing give statutes, goal our effect to interpreting is

When ex Kalal v. in the statute. State rel. Circuit language 43, 271 Wis. 2d County, Court Dane 2004 WI looking begin by to the 681 N.W.2d 110. We language we "assume that statute because statutory in the lan legislature's expressed intent Id., art legal terms terms of guage." Technical given accepted in the their tech appearing statute are and legal nontechnical words nical definitions while common, everyday meaning. given their phrases are 990.01(1). specifically de Terms are Wis. Stat. definition the fined in statute are accorded the a legislature provided. Concerned has Wrs. Citizens DNR, 40, 6, v. 2004 WI 270 Wis. 2d ¶ Cranes and Doves addition, 318, language the 612. In we read 677 N.W.2d specific statutory a the context of of section light Thus, interpret a statute in entire statute. Id. we context, textually purpose. scope, of its manifest Kalal, 633, Wis. 2d 48 & n.8. ¶ 271 LIRC, 2d 681 v. 77, 23, 586, Wis. Bosco 2004 WI 272 ¶ Therefore, interpreta extrinsic sources N.W.2d 157. unless are not consulted tion, history, such as legislative Kalal, 46. 633, 2d ambiguous. 271 Wis. ¶ the statute is reasonably if ambiguous susceptible A statute is Id., 47. or more fashions. being understood two law, de an issue of reviewed Statutory interpretation Bd. County court. State v. Waushara novo 547, 2d 14, Wis. Adjustment, 2004 WI N.W.2d governing Next, we review the standards

probable preliminary hearing. purpose "[T]he cause at a preliminary of a examination is to determine if there is probable felony cause to believe has been committed 970.03(7) by a defendant. then Section commands the probable bind court to the defendant over for trial if Dunn, cause is found to exist." State v. Wis. 2d (1984). preliminary hearing 394, 359 N.W.2d 151 "A as probable preliminary cause is not a or a trial full evidentiary guilt beyond trial on the issue of a reason- summary able doubt." Id. at 396. "It is intended to be a proceeding to determine essential or basic facts as to probability." Id. at 396-97. As such: judge

The focus of the at preliminary hearing is to ascertain whether facts and the infer- reasonable support ences drawn therefrom the conclusion probably felony.... defendant committed a prelimi- [A] nary hearing is a proper not forum to choose between conflicting inferences, weigh facts or or to the state's against evidence evidence favorable the defen- hearing ... If the judge hearing dant. determines after the evidence that a reasonable inference supports probable determination, judge cause bind should stated, the defendant over for trial. Simply probable at a preliminary hearing cause there is satisfied when exists a or plausible believable account defendant's felony. commission of a Id. at 397-98.

¶ Thus, a the circuit court must defen- "bind dant for trial a over when there exists set of facts that supports a reasonable inference that the defendant probably felony committed a ...." Id. at 398. "Allthat is plausible needed is a or believable of the account 122 felony." Cotton, v. a State commission defendant's App ¶ 308, 12, 266 2d 668 N.W.2d 154, Wis. 2003 WI 398). (citing Dunn, 121 Wis. 2d at 346 reviewing a circuit court's bindover 26. When initio record ab decision, "we examine the factual will decide, law, as matter of whether the evidence and probable Dunn, 121 2d at 399. cause." Wis. constitutes such, our of the circuit court's bindover As review App Phillips, v. 2000 is de novo. State WI decision review, "On 2d 37, 238 Wis. N.W.2d any ground record substantial will search the for court support competent circuit on evidence to based Koch, 2d State v. 175 Wis. bindover decision." court's (1993). 684, 704, 499 N.W.2d IV ANALYSIS challenges circuit deci- court's 27. Anderson contending regarding bindover, that there was sion hearing, preliminary to at insufficient evidence jurisdiction support in Wisconsin venue territorial County. in Jefferson locality prosecu- term "venue" refers

tion; judicial district in which particular venue sets the criminal in which be charge is to be filed and it will distinguished "jurisdiction," Venue from tried. is to be authority power the court which refers to the charge.... particular take action on a jurisdiction say judiciary such ... ... To that the has judicial say every district within not locality of the judiciary proper prosecution is a offense. 16.1(a), Wayne al., R. et Criminal Procedure LaFave (2d 1999). ed.

at 458 scope ¶ 28. Section 939.03 sets forth the of jurisdiction: Wisconsin's territorial (1) subject prosecution A is person punishment the under law of this state if: (a) crime, person any commits the con- of place state; stituent elements of which takes in this or (b) state, of person While out this the aids and with, abets, conspires advises, incites, commands, or or state; solicits another to commit a crime in this or (c) state, person While out of this the does an act with intent that it cause in a consequence this state set crime; defining forth in a section (d) state, person While out this steals and subsequently any of into brings property the stolen state. § parties agree

Wis. Stat. 939.03. Both 939.03(l)(a) § applicable statutory provision is the in this case. 971.19(1) § governs

¶ 29. Stat. Wisconsin venue and states: "Criminal actions shall in be tried county except where the crime committed, as (2) (10) provided." through otherwise Subsections § exceptions 971.19 then set forth several to the above 939.03(l)(a) § requires rule. Anderson contends that prove State an actus reus element of under- lying offense occurred Wisconsin order for Wiscon- jurisdiction Specifically, sin to have over an offense. regard charge first-degree with to the intentional argues homicide, Anderson that the State must demon- causing strate that the act death occurred in Wisconsin. argues also State Anderson has failed to requisite proof establish of venue in Jefferson 971.19(2)6 inappli- County. asserts that Anderson only applies plainly subsection where because this cable or more actus elements contains two reus an offense charge first-degree con- intentional homicide and a only one reus element. tains actus argues hand, that State, on the other 30. The jurisdiction charge of over has territorial Wisconsin 939.03(1)(a) § first-degree if intentional homicide under the formed the intent demonstrated that defendant it is act in and committed one in further- to kill Wisconsin in The contends ance of that intent Wisconsin. State dem- been met evidence this standard has because phone Anderson made to his that call onstrated July his 2 is an act in furtherance of father at work on Alternatively, argues, on to kill. the State based intent hearing, preliminary at the evidence admitted probable killed his cause that Anderson it established argument final with in State's father Wisconsin. jurisdiction respect circuit errone- to is that the court testimony ously Ellifson, and that with struck the properly the State admitted, established this evidence probable in Anderson killed his father Wis- cause that consin. argues regard venue, to the State 31. With kill of intent to is sufficient act in furtherance

an county occurred a case in the where such act venue 971.19(2). Alternatively, § the State maintains under hearing preliminary evidence submitted at the that the 971.19(1) § under sufficient to establish venue was support an the evidence sufficient because 6 971.19(2) more "Where 2 or provides: Stat. Wisconsin offense, any the trial requisite to the commission acts are any county any in which such acts occurred." may be actually inference that Anderson killed his father County, testimony. Jefferson with or without Ellifson's A. Territorial Jurisdiction " elementary may only

¶ 32. 'It is that a act court jurisdic upon crimes committed within territorial sovereignty seeking try tion of the offense.' jurisdiction, proceedings Without criminal 'are a nul " lity.' App Randle, ¶ 18, v. WI 116, State 252 Wis. (quoting Simmons, 2d 647 N.W.2d 324 v. Hotzel (1951)). 2d 240-41, Wis. N.W.2d 683 As pertinent governing provision noted, territorial jurisdiction provides ju that Wisconsin has territorial person "[t]he a risdiction over criminal offense if com any crime, mits a of the constituent of elements which 939.03(1)(a). place state[.]" § in takes this Wis. Stat. dispute meaning in this concerns the case of the phrase "any of the constituent elements of which takes place possible state," purposes whether and it is and 939.03(1)(a) § sufficient for of to establish first-degree that the mens rea of element intentional place" homicide "took in Wisconsin.7 begin by addressing meaning ¶ 33. We the of the phrase phrase legal "constituent elements." is a This accepted legal art, and, term of such, as we accord it its ultimately While conclude in analysis we our venue that the State presented sufficient evidence to that establish Ander probably County son killed his father Jefferson tech —thus nically rendering question the first certified point a moot —we address the of nonetheless issue whether intent is sufficient to confer jurisdiction, territorial as the primary this issue was reason the it presents question case certified and a novel of importance. statewide " "([o]f compo- [Constituent" is defined as a

definition. nent) up complete helps a a or make or unit (7th 1999). Dictionary Law ed. whole." Black's "[a]n "[Constituent element" is defined as essential component 306. crime or cause of action." Id. at of a Similarly, phrase of a crime" is defined as the "elements consisting parts "[t]he [a] of of crime—usu. constituent prosecution rea, mens and—that reus, the actus prove such, Id. at As must to sustain conviction." phrase refers clear "constituent elements" it is that the underlying up make criminal to those elements that of words, In the "constituent elements" offense. other the criminal offense an offense are those elements of beyond required prove reasonable that the State is prosecution in the of the offense. doubt § forth the crime Stat. 940.01 sets Wisconsin first-degree provides, in of intentional homicide part, pertinent an the death of that "whoever causes being person kill that human with intent to other felony." guilty Thus, a Class A "Wisconsin another first-degree homicide, has 940.01, intentional Stat. (2) (1) causing death, intent with two elements: Watkins, 2d WI 101, 255 Wis. to kill." State v. an 244. The of these elements is 265, 647 N.W.2d first "wrongful element, is, reus" deed that "actus comprises physical componentD" crime of first-degree Black's Dictio homicide. Law intentional (7th 1999). Conversely, nary the second element 37 ed. first-degree intentional rea" element of is the "mens prosecu "[t]he homicide, state of mind that the is, prove conviction, that a defen tion, to secure a must committing [the] See crime." Id. at 999. had when dant Hagenkord State, 452, 484-85, 2d v. 100 Wis. also (1981)("[T]he 'depraved is mind element... N.W.2d 421 type which heinous of mens rea constitutes a distinct crimes."). blameworthy statutory of three element first-degree Therefore, the crime of intentional homi- comprised single cide is of two constituent elements: causing actus element —the of reus death —and a cor- responding mens rea element —with intent to kill. phrase

¶ 35. While it is clear that the "constituent underlying refers to elements" the elements of the offense and that "intent to kill" is a constituent element first-degree apparent homicide, intentional it not is that an individual's formation of the intent to kill in itself, Wisconsin, and of is sufficient to confer Wis jurisdiction charge first-degree consin over a inten 939.03(1)(a). § Although tional homicide under the defi 939.03(1)(a) § nition of "constituent element" in clear, is requires also section that at one least of the place constituent elements of an offense "takes in this jurisdiction state" in order for Wisconsin to have over the criminal offense. dictionary "[t]o

¶ 36. The definition of "occur" is place, "[t]o take appear." come about" or be found to exist or Heritage Dictionary The American the En (3d 1992). glish Language Likewise, ed. the defi "[t]o "[t]o persist" nition be; of "exist"is continue to or be present specified under certain in a circumstances or place; Utilizing Id. at definitions, occur." these question then becomes when the mens rea element of a present," criminal offense can to "exist," be said "be agree "occur"in this state. We with the State that at 939.03(1)(a) § point ambiguous. becomes As noted su pra, ambiguous reasonably a statute is when it is susceptible being understood in or more two fash 939.03(1)(a) ambiguous Here, ions. as to when the first-degree mens rea element of intentional homicide place" can to "take be said Wisconsin. argues

¶ Anderson that the "intent to kill" 37. first-degree intentional homicide cannot element of place" of in the the "take Wisconsin without commission first-degree element of intentional homicide actus reus in that intent to kill Anderson notes the Wisconsin. causing apart cannot exist from act death element first-degree in for inten- order to sustain conviction occur tional homicide. Because both elements must at they pur- "telescoped" time, are into one same jurisdiction. poses of argues

¶ contrast, In the State intent 38. anytime place" to in an individual kill "takes Wisconsin act in of that intent in commits an furtherance addition, In circuit court offered a third state. 939.03(1)(a). § possible interpretation The of circuit essentially kill" can court concluded "intent to be place" anytime the said "take in Wisconsin State proves kill defendant formed the intent to in that the according is, That to the circuit court's Wisconsin. 939.03(1)(a), § interpretation of rea element mens first-degree to "take of intentional homicide can be said place" in if there is evidence that intent Wisconsin in of Wisconsin, even the absence an kill "existed" act intent. in furtherance of that upon definitions, we con Based the above interpretations all three are reason clude that of these 939.03(1)(a) § readings applied crime as to the of able first-degree intentional homicide. Because 939.03(1)(a) § ambiguous as to when the mens rea first-degree homicide "takes intentional element place" Wisconsin, to extrinsic sources to we turn statutory guide interpretation. our 939.03(1)(a) present version Chapter pursuant 696, Laws of enacted Section part of the revision of Wisconsin's 1955, as wholesale Criminal Randle, Code. See Wis. 2d (citing William A. Platz, Code, The Criminal 1956 Wis. 350-59). L. Rev. 350, The new criminal code was originally proposed as 1951 Senate Bill 784 and was Assembly resubmitted as 1953 Bill A, 100 which ulti mately was enacted into law. Platz, William A. The Code, Criminal 1956 Wis. L. 350, Rev. 351. The Wiscon Legislative Judiciary provided sin Council Committee language comments both bills. "The 939.03(1)(a)] [§ essentially is the same as 1953 Assem bly Bill 100 and 1951 Senate Randle, Bill 784." 252 Wis. (citing 2d Platz, William A. The Criminal 350-59). Code, 1956 Wis. L. Rev. Previously, jurisdic- Wisconsin's territorial separate statutory

tion was divided into two sections. (1953) § provided: "Any Wisconsin person Stat. 353.28 who commits an act or who omits to do an act which act part or omission constitutes of a crime the laws of punished this state shall be the same as if he had committed the whole of such crime within the state." (1953) Additionally, § provided: Wis. Stat. 353.29 person, Whenever a crime, with intent to commit a does any act any or omits to do act within this state in execution part intent, execution of such which cul- minates in the crime, commission of a either within or state, without person such punishable for such crime in this state in the same manner ifas the same had been committed entirely within this state. 939.03(1)(a) legislative history 42. As the provisions jurisdiction indicates, the new on territorial significantly expand were intended to Wisconsin's ter jurisdiction. Legislative ritorial Council comments discussing to 1951 Senate Bill 784, the revision of jurisdiction provisions, explain: Wisconsin's territorial jurisdic- territorial problems deals This section with committing crime. The persons tion of the state over prin- the territorial commission common law followed every which, strictly if meant that interpreted, ciple the crime had to occur within the bound- element of the state to obtain of the state order for aries the American states jurisdiction.... response], [In security principle, the territorial adopted have effect theory that a state has which is based on the principle jurisdiction in a crime to assume over sufficient interest place if either its commission or its effect takes within it extends the territo- the state boundaries. This section the territo- jurisdiction of the state to the limits of rial security principle... . rial (d) (a) merely old and (c) restate law.

Paragraphs (b) jurisdiction of the Paragraphs and extend state, mean that the state is bound to but this does not jurisdiction any particular in case. exercise that Committee Judiciary Council, Legislative 7 Wisconsin (1950). on the Criminal Code 41 Report Council Likewise, Legislative the Wisconsin Bill A provide: Assembly comments to 1953 (1)(a) part the situation where deals with Subsection in state. There is no is committed this all of the crime within the whole crime is committed problem where (1)(a) state, makes it clear that and subsection only though even one element applies same rule of (1)(a) may two states in this state. Under crime occurs the same crime. jurisdiction over have concurrent jurisdiction the state's This section extends security principle, with the territorial accordance theory that a state has is based on the principle which jurisdiction over in a crime to assume sufficient interest place or its effect takes within it if either its commission regard the state. ... Modern criminals have little boundary lines, legislatures and the of most states have necessary jurisdiction found it to extend to crimes wholly which were not committed within the state boundaries.... Sections covered. 353.28 Part Crime Punishable

Same as Whole Crime and 353.29 Part Crime Com mitted in This State Same As All Committed Here are If (1)(a) substantially restated subsection of the new (1)(b) (1)(c) section. Subsections of the new section (1)(d) are new law while subsection is a restatement of 356.01(5). part of old section Committee Judiciary Legislative Council, Wisconsin (1953) (first on the Criminal Code Report emphasis added). addition, In law review prominent article

written after the shortly revision of crimi- Wisconsin's nal code explained historical of the significance changes jurisdiction Wisconsin's territorial provi- sions: theory

At common law the territorial commission jurisdiction over uniformly accepted. By crimes was application theory only sovereign of this within whose territorial boundaries a crime was committed punish could for its commission. The locus of the crime easily fixed if all of place its material elements took single jurisdiction. in a Jurisdiction Over Crimes: Howard, Note,

Cletus D. Territorial Provisions Applicability Wisconsin's Crimi- of Code, nal Further, 1956 Wis. L. Rev. the article that in explains response several difficulties with the stringent common-law rule:

Early specific problems statutes were enacted as arose grew and out of them what is now known as the jurisdiction. security principle of criminal territorial recognition on a of the fact that is based principle This security of the often threatens criminal conduct . The regardless or its citizens of its locus... state provision [new of the Wiscon- applicability territorial security incorporates the territorial sin] criminal code far-reaching of that extensions principle also some juris- in criminal which establish landmarks principle diction. 939.03(l)(a) § The article concluded that

Id. at 498. only jurisdiction although "provides the crime is for partially state." Id. at 503. committed within the history upon legislative 45. Based reject interpretation § of the Anderson's 939.03, we jurisdiction. prerequisites While territorial facially interpre- argument appealing, his Anderson's essentially § the same as tation of 939.03 is jurisdiction, which for territorial common-law standard every completed required offense element of the that in for the state to have order occur Wisconsin legislative jurisdiction indicated over a crime. As pertaining § history 939.03, statute the revised jurisdiction clearly intended to broaden Wisconsin's jurisdiction beyond allowed under the territorial in existence. Anderson's common law and statutes then 939.03(l)(a) actually § interpretation render would predecessors, al- which narrower than its the statute jurisdiction an act if the defendant committed lowed for part if crime, of a the defendant that constituted part an execution of an act execution or committed §§ 353.28, 353.29 a crime. Wis. Stat. intent to commit (1953). analyzed re- Furthermore, who those jurisdiction agreed provisions

vised on territorial jurisdiction to the state over 939.03 conferred the new part an if of the offense were to occur offense 939.03(l)(a) clearly provides Section Wisconsin. jurisdiction though over an offense "even Wisconsin has one element of the crime occurs in this state." 5 Wis- Legislative Judiciary Report Council, consin Committee (1953). on the Criminal Code 3 939.03(1)(a) § ¶ 47. We conclude that is satisfied upon proof that the defendant committed an act in manifesting Specifically, the intent to kill. Wisconsin kill, intent to which is a constituent element of first- degree may place homicide, intentional be said to take present" is, "exist," "occur,"or —that "be Wisconsin —in if the defendant commits an act this state that manifests or exhibits an intent to kill. reach We this conclusion for several reasons. previous legisla- First, our of the discussion § history of

tive 939.03 reveals that the revised statute jurisdiction clearly pertaining to was intended to jurisdiction beyond broaden Wisconsin's territorial allowed under the common law and statutes then in jurisdictional previous statutes, existence. Under the possessed jurisdiction Wisconsin over an offense "[w]henever person, crime, with intent to commit a any any does act or omits to do act within this state in part execution intent, or execution of such which cul- crime, minates in the of a either commission within (1953). state[.]" A without Wis. Stat. 353.29 §939.03 commenting "[t]he writer on indicated that applicability provision territorial of the criminal code incorporates security principle the territorial and also far-reaching principle some extensions of that which jurisdiction." establish landmarks in criminal D. Cletus Howard, Note, Jurisdiction Over Crimes: Territorial Applicability Code, Provisions Wisconsin's Criminal of L. Rev. 498. 496, Wis. § Second, 940.01, 49. which forth crime sets the first-degree require homicide, of intentional does not premeditation proof prepara- of in acts committed single tion for the It crime. contains a mens rea component: Allowing the existence of intent to kill. jurisdiction upon proof for of an act committed in this manifesting state an intent to kill is consistent the with first-degree proof normal methods of in a for trial intentional homicide. Unless the State a con- obtains indicating fession from the defendant that he formed unlikely the intent to kill in Wisconsin, it is that there will of be direct evidence the defendant's When intent. intent, there is no direct evidence of a defendant's "the necessarily intent is his- the defendant's inferred from 2d (emphasis Dunn, torical 121 Wis. at 399 facts." added). an the Often act of defendant that his exhibits may kill intent to be the best circumstantial evidence of such intent. interpretation Third, is consistent with jurisdictions jurisdic

other have that similar territorial e.g., See, tion statutes and have addressed issue. the (Ariz. Willoughby, P.2d 1319, 1324, 1328-29 State v. (Fla. 1995); State, 1022, Lane v. 388 So.2d 1027-29 1980); Wedebrand, v. State 189-90 N.W.2d (Iowa App. 1999); Lane, Ct. State v. 771 P.2d (Wash. 1989). All of the 1153-56 these courts found that presence offense, a criminal of mens rea element of a as state, exhibited the defendant's the conduct jurisdiction sufficient to confer state over jurisdiction for if offense under statutes that allowed any element of the crime occurred in the state. that Therefore, phrase we conclude 939.03(1)(a) §in refers to the elements"

"constituent must offense that State underlying elements of a a in order to secure reasonable doubt prove beyond a criminal offense A constituent element of conviction. a rea an reus element or mens may be either actus of Intent to kill constituent element element. Thus, intentional homicide Wisconsin. first-degree intent kill is a constituent element purposes 939.03(1)(a). State Further, § we conclude rea mens element proof offers sufficient in Wis place" intentional homicide "takes first-degree 939.03(l)(a), if consin for there is purposes proof in this that that the defendant committed an act state an kill. manifests intent to it to this stan- unnecessary apply 52. While is in light dard to the facts of the case of our below holding that presented prob- that the State evidence Anderson of County, majority killed his father in Jefferson ably we articu- this court believes that the standard have in lated would be met this concerning jurisdiction above at the presented case. As discussed the evidence infra, establishes a reasonable inference preliminary hearing kill that Anderson formed the intent to his probably father in Wisconsin and made the call to his phone on 2. The father at work evidence further creates July made a reasonable inference that probably Anderson for home phone luring call the of his father purpose such, in order to him. the call early murder As phone act in manifesting constitutes an committed Wisconsin and intent to kill his We turn now Anderson's father. the of venue. question address B. Venue question The second certified the of court

appeals county is whether an in act committed manifesting an intent to kill is sufficient establish county prosecution first-degree venue in that in a for 971.19(2). § supra, intentional under homicide As noted 971.19(2) § exceptions one several enumerated 971.19(1) § general "[c]riminal the rule in that actions county shall tried in the be where the was crime committed[.]" However, we not need decide whether the presented preliminary hearing evidence at the would (2) satisfy exception in the subsection because we testimony properly that the conclude with from Ellifson proved probable admitted, the State there was cause to believe that Anderson his killed father County, general Jefferson requirement and thus satisfied the venue 971.19(1). testimony circuit court excluded only purposes preliminary hearing. Ellifson for put The circuit court believed that State had forth sufficient evidence to establish venue without the tes- timony necessary it therefore not comprehensively admissibility examine the of the Ellif- testimony. son Therefore, the circuit court excluded testimony preliminary purposes hearing of but open possibility left it that could used at trial. be appreciate sensitivity While the circuit we court's to judicial economy, issues of we conclude that nonetheless testimony the have Ellifson should been admitted into Specifically, testimony evidence. we conclude that the Ellifson, which recounted a she with conversation had hearsay Krnak, was the admissible under residual exception. argues While Anderson that the State

137 testimony qualify any claim this would waived that exception, "search this court must under the residual any ground compe- based on the record substantial support the circuit court's bindover tent evidence Koch, 2d at decision." Wis. analysis noting "[t]he begin by that 55. We our preliminary hearing." apply at a State

rules of evidence (1988). Sorenson, 226, 421 N.W.2d 143 Wis. 2d v. clearly qualifies hear- Krnak's Ellifson as statement to say the statement, other than one made as it "is hearing, testifying the offered declarant while at trial prove truth the matter asserted." in evidence to the 908.01(3) (2003-04).8 argues § The State Wis. Stat. hearsay testimony qualifies under the residual qualifying exception as an because it comes close to 908.03(2), § aor excited under Wis. Stat. utterance perception Stat. of recent under Wis. statement § 908.045(2), comparable guarantees trust- and bears argues inappropriate to it is exception worthiness. Anderson hearsay under residual if it comes admit qualifying one of other enumerated close to under hearsay ultimately exceptions fails meet the but statutory criteria. contain The Wisconsin Rules of Evidence identically hearsay exception-

two worded "residual" 908.03(24) 908.045(6). § § and Stat. si Wis. Stat. Wis. 908.03(24) applies if declarant available Section 908.045(6) testify applies if the declarant whereas However, case law treats the is unavailable. Wisconsin equivalents recognizes nois two residuals as there held in preliminary hearing Because the to the evidentiary rules in this section are references to current of Wisconsin statutes. version substantive difference between Sorenson, them. 143 242, Wis. 2d at n.9.; Jenkins, 250 State v. 2dWis. (Ct. 1992); App. 175, n.6, 483 N.W.2d 262 Daniel Blinka, 7 Wisconsin Practice: Wisconsin Evidence (2d 2001) [hereinafter 803.24, at 682 ed. Wisconsin Evidence]. compromise "The residuals are a between might concerns that unreasonably reliable evidence be excluded static rules and the law's obsessive fear of hearsay." Id.9 provide exception 57. Both statutes an to the

hearsay "[a] specifically rule for statement not covered by any foregoing exceptions having compa but guarantees rable circumstantial of trustworthiness." 908.03(24) 908.045(6). §§ Wis. Stat. & See also Soren son, 143 Wis. 2d at 242. However, as the declarant, testify, Krnak, is unavailable to we will refer to the 908.045(6). exception §in listed previously 58. This court has stated that "the drafters did not intend to restrict the use of the residual exceptions completely to situations which are different by specifically from hearsay those covered enumerated exceptions." State, Mitchell v. 84 Wis. 2d 331, 267 (1978). specifically N.W.2d 349 Thus, this court "has 9As explained Sorenson, we in State v. 143 Wis. 2d (1988): 242-43, 421 N.W.2d 77 hearsay exception initially residual part was created as adopted the Federal Rules of Evidence and part in Wisconsin as Chapter Advisory 908 in 1974. Notes, The Federal Committee R301, R302, (1974), 2d explain

Wis. designed R323 it was every hearsay contingency because not anticipated by specific exception provide rules. This flexibility was to permit needed to growth development in the law of evidence. While not con- templating judicial discretion, unfettered its use was intended to unanticipated allow admission of evidence under new and situa- tions which demonstrate a trustworthiness consistent with that required specifically exceptions. under other stated should not ... residuals argument rejected of is 'similar' to one the where the evidence be used fails to qualify but nonetheless exceptions enumerated Evidence § at As it[.]" Wisconsin 803.24, 683. we under in Mitchell: stated argument that evidence accept cannot the...

[W]e hearsay exception is similar to an enumerated which 908.03(24), exception be a under sec. cannot residual hearsay contrary, the since the enumerated Stats. On traditionally represent types of evidence exceptions strong guarantees to circumstantial considered have trustworthiness, hearsay admitted under the residual not to affinities likely is more than have close exception exceptions by enumerated the rules. specifically to the Mitchell, 84 Wis. 2d at 332. State agree 59. We with the that while Krnak's to does not technically qualify Ellifson

statement utterance,10 or excited statement of recent as an 908.03(2) excep forth the excited utterance Section sets relating startling to a event or condition "[a] tion for statement the under of excitement while declarant was the stress made Thus, by the event condition." the excited utterance caused or There was requires three foundational facts: "1. exception condition; The startling or statement related the event condition; startling declarant made the [and] event by caused while under the stress excitement the statement 803.2, startling Evidence at 598. While event." Wisconsin hearsay clearly the first proferred Krnak's statement satisfies satisfy fails the it third requirements, two foundational requirement. Casualty v. Fire & Economy

As stated Christensen we Co., (1977), assessing 57-58, 2d 252 N.W.2d81 when 77 Wis. third foundational fact: the triggering [T]iming, lapse the event and the utterance between 908.03(2) key time is measured

is a factor.... Under sec. due to perception11 timing it problems, does qualify duration of the condition of excitement rather than mere time lapse significant from the event or condition described. The factor acting is the stress or nervous shock on the declarant at the time of the statement. The statements of a declarant who demonstrates opportunity capacity [event] review the and to calculate qualify the effect of his statements do not as excited utterance. Thus, while the statement need contemporaneous not be with startling event to qualify utterance, as an excited statement must be made while the declarant was still under the event, startling is, stress before there has been an opportunity for the excitement and stress of the event to lose its effect. Id. testimony

While Ellifson's clearly indicates that Krnak's story startling related to a event and visibly that Krnak was upset making when statements, these simply we do not know alleged occurred, when his son's attack be it a days few or few words, months In earlier. other way there is no of determining whether Krnak's at making stress the time of the statement continuously existed alleged since the time of the attack. 908.045(2) Section sets forth the statement of recent perception exception for: statement, response instigation

A person engaged not in to the of a investigation, litigating, settling claim, in narrates, or which describes, explains recently perceived by or an event or condition declarant, good faith, contemplation in pending made not in anticipated litigation interested, in which the declarant was and while the declarant's recollection was clear. 908.045(2). Wis. Stat.

"The recent perception exception hearsay is similar to the exceptions for present impression sense utterances, and excited 'but was intended to allow more time between the observation Weed, of the event and 85, the statement.'" v. State 2003 WI 263 Wis. 2d (quoting N.W.2d 485 Kluever v. Evangelical Congregation, Immanuels 143 Wis. 2d Reformed (Ct. 1988)). 806, 813-14, App. N.W.2d 874 The purpose of " the exception probative 'admit evidence which in most it con- because hearsay exception residual under similar of trustworthiness guarantees several tains the excited under admitted found statements those Sorenson, discussed In this court exception. utterance ex- hearsay residual utilizing the prerequisites ception: requires establish- exception the residual apply

To guarantees of trustworthiness" ment of "circumstantial excep- existing for enumerated to those comparable 908.045(6), guarantees of trust- Stats. tions. Sec. hearsay in the enumerated which are found worthiness follows]: exceptions [are as are such that sincere the circumstances "a.Where uttered, naturally be accurate statement would formed; be plan and no of falsification falsify might Where, though a desire to b. even danger itself, such as the other considerations present would punishment or the fear of easy detection force; counteract its probably due to the exceptions other not be admitted under cases could Kluever, Id., at 143 Wis. 2d (quoting 15 of time.'" passage " 814). premise exception 'is based on Specifically, the noncontemporaneous, form of a evidence probative satisfy the sense present fails to statement which unexcited be exceptions would otherwise or excited utterance impression an unavailable recently perceived statement of if the lost Kluever, 143 Wis. 2d at Id. (quoting is excluded.'" declarant 814). Krnak's Here, testimony reveals that state- Ellifson's while limiting most of the an event and satisfies ment describes not indi- 908.045(2), testimony does §in her factors contained occurred, other than Krnak described cate the event when by his son alleged that the assault "understanding" her it was such, no to conclude long ago. As there is basis occurred not "recently" perceiving made after Krnak's statement was event.

142 c. the statement Where was made under such error, publicity occurred, conditions of that an if it had probably would have been detected and corrected." (quoting Wigmore, Sorenson, 143 Wis. 2d at 243-44 5 (Chadbourn 1974)).12 § 1423, Evidence at 254 rev. testimony ¶ 60. We conclude that Ellifson's bears sufficient indicia of trustworthiness because "the cir- cumstances are such that a sincere and accurate state- naturally plan ment uttered, would be and no of falsi- (quoting Wigmore, fication be formed." Id. 5 Evidence (Chadbourn 1974)). testimony 1423, at 254 rev. at engaged issue here arises from two coworkers who were problems they in an intimate conversation about were experiencing with their adult sons. Krnak revealed a shocking story family about close member —his son Andrew—who attacked and threatened to kill him.13 We can find no motive to fabricate based on the nature especially considering conversation, of this the fact that going contacting Krnak indicated that he was not to be the authorities about the assault. remark His about knowing going how one was to die demonstrates his sincerity making the statement. There is no indica- joking making tion that Krnak was when these com- Further, ments. the fact that Krnak's statement indi- family cated that it was a close member who attacked 12 Sorenson, In developed we a five-factor test for courts to analyzing hearsay utilize statements of minors who were the Soren victims of sexual under exception. assault residual son, Although 143 Wis. 2d at 245-46. test applied has been Sorenson, beyond the specific facts of it has not been extended beyond concerning the context of a minor child's statements Oliver, abuse. See State v. 140, 144, 161 Wis. 2d N.W.2d (Ct. 1991). App. infra, changed As noted the defendant his name from Andrew Krnak to Derek Anderson. stranger, significant

him, rather than an unidentified is allegation might open and his or in an oneself that such family her to criticism embarrassment. and/or visibly upset Moreover, Krnak became when relating story, so much so that his face was red began shaking. appeared Krnak so distressed that he hearing story. upset upon Ellifson herself became clearly great Krnak was under a deal stress Thus, recounting attempt away to do with him. when his son's significance is the fact that the conversation Also of appears Krnak and Ellifson to have been between they planned spontaneous, as there is no indication topic. discuss this exception...

¶ 62: "The excited utterance spontaneity on and stress which endow such based with sufficient trustworthiness to overcome statements hearsay." v. the reasons for exclusion of Christensen Economy Co., 50, 56, Fire & Cas. 77 Wis. 2d 252 N.W.2d (1977). technically Krnak's statement does not While qualify utterance of the lack of as an excited because regarding occurred, the state- evidence when attack spontaneously it ment does demonstrate that was made by startling great event. under a deal of stress caused fact the statement was made under circum- forming for the stances similar to those basis heavily exception weighs excited favor utterance admissibility. its testimony of- Therefore, we conclude the preliminary hearing

fered Ellifson at the was admis- hearsay exception. We further sible under residual this evidence is considered conclude that when conjunction presented with other evidence at hearing, presented evidence to the State sufficient probably inference that Anderson a reasonable create County. in Jefferson killed his father necessary ¶ all that following is reiterate that 64. We preliminary support a a decision bindover hearing plausible of the "a believable account is notwithstanding felony[,]" of a defendant's commission any explanations the defendant offers for alternative stage Koch, At 175 Wis. 2d at 706. the evidence. proper proceeding, it not to "choose be- a criminal is weigh conflicting inferences, or facts or tween against evidence favorable to the defen- state's evidence necessary All a "set of facts dant." Id. at 704. that is supports a reasonable inference that the defendant that felony." probably Dunn, 121 2d at 398. committed a Wis. presented preliminary The evidence at the along hearing Krnak, that with his wife and established July disappeared on 1998. Krnak's skeletal son, at a location in North Carolina that remains were found approximately Anderson had ten miles from where was previously college.

attended There is no evidence planned Carolina over the Fourth Krnak to visit North family July pickup One of the Krnak trucks weekend. approximately had 2600 miles unaccounted for between July despite the Krnaks 24 and the fact that June mileage logs kept on all of their vehicles. meticulous family the Krnak home and the The distance between approximately of Krnak's remains is location round-trip. miles large of unaccounted for mile- 66. This amount making trip

age from the someone is consistent with County place to the Krnak residence Jefferson ultimately asked were located. When Krnak's remains mileage by police vehicle, the excessive on about explanation provided he other than that no Anderson driving that the Krnaks the vehicle. Given had been logs kept mileage vehicles, meticulous on all their only individual with access to the Anderson was July weekend, vehicle over the Fourth of and Anderson driving vehicle, admitted to it is reasonable to infer responsible himself was for the unac- Anderson mileage. counted There was evidence that Krnak was in a

good day disappearance mood until at work his receiving phone call call, which was traced to the p.m. Krnak residence at 3:10 There was evidence that probably placed initially this call. Anderson Anderson making phone police. However, denied call to police Anderson also told that his brother returned p.m., home from work between 3:20 and 3:25 his shortly p.m., mother returned home after 4:00 and that they only Therefore, he person home when returned. was made who could have the call was Anderson. Anderson later admitted to his aunt that he called his inquire at to to the father work as location of tool that working he needed for on his car. visibly receiving

¶ Krnak distressed after Connelly, coworker, A this call. James testified that he years had known Krnak for over 20 and had never seen upset Connelly him "I that before. Krnak told that have fly may "[w]e go to out of here" and that have to to a shortly afternoon, left funeral." When Krnak work that he leave, before was scheduled to he was never seen again by any of his coworkers. family 69. Krnak never made it to the cabin County

Waushara and never visited his friend James planned. activity log Gradel as Anderson's indicated neighbors family that the near the cabin Waushara County anyone not at Krnak all had seen cabin activity log July 2 weekend. Anderson's for indicated packed parents up that he was home when his prepared Thus, pickup Anderson to leave. truck and apparent person As his father alive. to see was the last days, activity log for next two from Anderson's July Fourth of weekend. had no alibi for the Anderson mainly activity log he watched televi- stated parents' and drank at his car, on his sion, worked residence. testimony created a reasonable Ellifson's attempted previously Anderson had

inference that by lying kill he returned in wait for him when father his attempting him. While to club from work and home directly prove testimony Ellifson's not be used could prior conformity attack with the acted in that Anderson July used to establish Anderson's 2,1998, it could be on identity Anderson as father, or the to kill his intent 904.04(2); Sullivan, killer. State v. Stat. See Wis. (1998); Wisconsin 768, 783, 576 N.W.2d30 2dWis. § 404.7, at 166. Evidence July Sunday, log states 71. Anderson's they by family when back dark but his was "due night they stayed just figured extra an show, I

didn't something they However, do." like sometimes fish entry for the with the is inconsistent this statement following always day, calls "dad Anderson states where change." plans corroborated This latter statement if testimony aunt, testified that Anderson's who always people very prompt who were were the Rrnaks on time. family, Despite who were the fact that his planned

very prompt people, home as failed to return change plans, to indicate failed to call Monday, July log he 6, indicated Anderson's the start of summer to attend went UW-Whitewater Having classes, he then returned from classes. school apparently family had not his worried that became up County returned and drove to the cabin in Waushara log in search of them. Anderson's indicated that the neighbors anyone near the cabin had not seen at the family cabin all weekend. Anderson then contacted a including individuals, number of inquire law enforcement, to family's as to his whereabouts. One of the individuals he contacted was his aunt. His aunt testi- expressed family's disap- fied that she concern over the pearance responded, worry." and Anderson "[o]h, don't Following family's disappearance, his Anderson contacted a conservation warden rather than local law enforcement to assist the search for his family. The warden was able to locate Krnaks' large vehicle in a relatively wooded area around Mirror Lake in a period short of time based on the information provided by Curiously, despite Anderson. Anderson's willingness to drive from the Krnak residence in Jeffer- County County, son to their cabin in Waushara he apparently unwilling comparable to drive the dis- family tance to Mirror Lake to search for his himself. pickup truck, Krnaks' which was found near Mir- completely empty, despite ror Lake, was the fact that activity log family packed Anderson's indicated that his belongings neighbors their into the truck and that the never saw Krnaks at their cabin. precise 74. Krnak did not know the location of friend, cabin of Gradel, his James whom he was

supposed map to visit and needed Gradel to draw a property. fingerprint his map, Anderson's was found on this map glove

and the was found in Whitewater in compartment activity of his mother's sedan. Anderson's log family packed up pickup indicated that his truck for their vacation. Given fact that Krnak needed his map property friend to him draw of his and that packed pickup Krnak his truck, there is a reasonable map probably from took the Anderson inference that placed he later sedan, the vehicle it in the his father and drove UW-Whitewater. During aunt, his when a conversation with 75. family, searching Anderson told for his

authorities were "[t]hey further them." His aunt never find aunt will his "very Anderson was conversation testified that in this family's disappearance. In addi- about his nonchalant" also made aunt, Anderson to his tion to his statements indicating suspicious student, to a fellow statements parents really missed the his but he did not miss family dog. together, Considering we all this evidence presented to create evidence sufficient

believe the State probably killed Anderson inference that a reasonable admittedly County. in Jefferson While his father entirely exist and there circumstantial case is State's explanations of of the above items for each reasonable weigh competing inferences court is not to evidence, the required hearing stage. preliminary All that is at the probably killed that Anderson inference reasonable County. The evidence and did so in Jefferson his father probably that Anderson inference creates a reasonable likely his and was most kill his father had the intent to inference creates a reasonable The evidence murderer. July 2,1998, at on called his father work that Anderson early luring purpose to kill home in order him for the creates a reasonable addition, In the evidence him. murdering father, Anderson his that after inference probably disposed body Carolina to North drove attend school. he used to it close to where plausible presented account has State murder, father's which of his Anderson's commission required over for trial. a defendant to bind is all that is presented suffi- the State conclude that Therefore, we County- cient evidence to establish venue in Jefferson 971.19(1). § presented under Because the State evi- dence that creates a reasonable inference that Ander- County, son killed his father at his home in Jefferson in establishing probable addition to cause for venue under 971.19(1), § probable the State established cause for jurisdiction § 939.03(1)(a), killing under as the of a being first-degree human is a constituent element of intentional homicide.

V SUMMARY ¶ language conclude, 78. We based on the 939.03(1)(a) § legislative history, and its that the mens first-degree rea element of intentional homicide consti- 939.03(l)(a). § tutes a "constituent element" under We 939.03(l)(a), requires hold that section which that one place" of the constituent elements of an offense "takes upon proof Wisconsin, in is satisfied that the defendant manifesting committed an in act Wisconsin an intent to Further, kill. we conclude the that circuit court erred striking hearsay preliminary certain evidence at the hearing properly and that with this evidence admitted hearsay exception, pre- under the residual the State 971.19(1) sented sufficient evidence of venue under probable because the State established that there is cause to believe that Anderson killed his father in County. Jefferson

By the Court.—The order of the circuit court is affirmed. (concurring). 79. ANN BRADLEY, WALSH J. I

agree analysis majority concerning with the of the jurisdiction separately, territorial and venue. I write majority's unnecessary however, because of the reliance hearsay exceptions. Majority op., on one of the residual majority, at the evidence I believe that ¶ 3. Unlike the probable hearing preliminary cause established County, even was killed in Jefferson Allen Krnak testimony. Ellifson's Patricia without opinion, by majority circuit As noted only testimony Ellifson of Patricia court excluded leaving hearing, open preliminary purposes of the for Id., possibility used at trial. that it could be put forth had the State court determined the tes- venue without evidence to establish sufficient agreed timony. the decision with brief, In the State its submitting Patricia without that, "even bindover, hearing testimony, preliminary estab- Ellifson's probable killed Allen Krnak was cause that lished Wisconsin." are two case, there

¶ facts of this From the support decision. principal the circuit court's reasons explanation plausible evidence is from the First, a son) (as made it home his well as wife Allen Krnak July left for the never but on from work County, despite plans family's cabin in Waushara July inference spend This weekend there. the Fourth pickup empty discovery by supported of their personal effects no contained Wisconsin, which truck plau- belongings Thus, it is notebook. than a other day, after killed on Krnaks were that all three sible body dumped in North his father's Anderson which Carolina. explanation advanced

¶ Second, killed in North his father was Anderson —that upon plausible un- relies two it but also Carolina—is Krnak Allen likely One is that of circumstances. sets voluntarily accompanied Carolina to North Anderson going and son. his wife with on vacation instead of kidnapped father from his that Anderson other is

151 kept they Wisconsin, him alive until reached North Carolina, he where then decided to kill him. As the recognizes, conveniently State both scenarios fail to contemporaneous disappearance account for the Krnak's wife and son. preliminary juris hearing 83. Two standards of

prudence guide analysis. conflicting should First, if equally plausible undisputed inferences are from facts, probable purposes preliminary then cause for of the hearing Dunn, is satisfied. State v. 121 389,400, Wis. 2d (1984). majority N.W.2d Second, as the ac knowledges, any this court will "search the record for ground competent substantial based on evidence to support Majority the circuit court's bindover decision." op., (quoting Koch, State v. 684, 704, Wis. 2d (1993)). 499 N.W.2d 152 majority truly employed

¶ 84. If the these stan- dards here, it would not have reached the issue of striking whether the circuit court erred in Patricia testimony. Consequently, Ellifson's it would not have rely hearsay exception needed to on the residual testimony make that admissible. hearsay exception 85. The residual should be

sparingly necessary reliability, used. The indicia of hearsay exceptions, which is the hallmark of is often exception more attenuated with the residual than with exceptions. other well-established Indeed, unbridled hearsay exception may use of the residual swallow hearsay exceptions.1 need for other Accordingly, ¶ upon 86. I would not have relied hearsay exception. the residual I Rather, conclude that 1For further discussion of the perils of the hearsay residual exception, Beaver, see E. James The Hearsay Excep Residual Reconsidered, (1993). tion 20 Fla. St. U. L. Rev. 787

152 Ellifson, of Patricia testimony without even prob- established hearing at the preliminary evidence in Jefferson was killed Allen Krnak cause that able concur. I respectfully Accordingly, County. that Chief Justice to state I am authorized 87. concurring this joins S. ABRAHAMSON

SHIRLEY opinion. I JR., (concurring). BUTLER, J. LOUIS B. its conclusion to respect with majority opinion

join matter. this is satisfied jurisdiction territorial expressed the sentiments I with generally agree While hear- residual that the concurrence Bradley's Justice used, Justice sparingly should he say exception share 85, I nevertheless concurrence, Bradley's testimony Ellifson's that Patricia conclusion majority's Majority of trustworthiness.1 indicia sufficient bears Anderson also hearsay grounds, objecting on Besides "904.04(2) evidence." testimony as inadmissible objected to this of other objected this evidence words, Anderson In other his being prove inadmissible to crimes, acts wrongs or as conformity there that he acted in order to show character majority The statutorily recognized exception. with, absent used establish evidence could be suggests that Anderson father, identity kill or intent to his Anderson's may not be true. may That Majority op., ¶ killer. as the disregard Ellifson's hearing court chose preliminary acts hearsay and other testimony on both hearing preliminary any argu has not advanced grounds, and the State evidence other acts admissible for the evidence is as to how ments purposes. carefully consider remand, must the trial court trial on At admitting her met before exception has been the intent

whether 781-93, Sullivan, 216 Wis. 2d State v. testimony. See (1998) analytical framework (establishing three-step N.W.2d evidence); v. State admissibility other acts to determine op., 68.1 write separately, however, I because do not join the majority's with analysis to venue. respect 89. The of a purpose preliminary hearing is to determine whether there is probable cause that a felony has been committed Dunn, defendant. State v. (1984). 121 389, 394, Wis. 2d 359 151 N.W.2d It is a summary to determine proceeding essential or basic Id. at facts as to probability. 396-97. Probable cause is satisfied at a preliminary hearing when there exists a believable or plausible account of the defendant's com- Id. at 398. mission of a felony. Thus, the court must bind the defendant over for trial when a set of facts Watkins, 718, (1968) ("Timeli 727, 39 Wis. 2d 159 N.W.2d675 similarity ness and of situation important are the factors in finding involved prior evidence of occurrences to be relevant and thus admissible on the question intent."); of and Whitty v. (1967) State, 278, ("We 34 Wis. 2d 149 N.W.2d 557 think admissibility prior-crime evidence does depend upon not admission or prior conviction for criminal upon conduct but its probative value which depends part upon its nearness time, place alleged circumstances to the crime or element sought proved."). to be See also Cartagena, State v. 99 Wis. 2d (1981). 657, 669-70, 299 N.W.2d 872 The trial court must also establish testimony whether Ellifson's would admissible to be establish identity. Scheidell, See State 285, 305, v. 227 Wis. 2d (1999) ("In Wisconsin, N.W.2d 661 the threshold measure similarity in the admission of other acts evidence with regard identity time, is nearness of place, and circumstance of the other act to alleged."); the crime Kuntz, and State v. (1991) ("To 722, 746, Wis. 2d 467 N.W.2d531 be admissible for the purpose identity, the other-acts evidence should have such a concurrence of common many features and points so similarity with the charged crime reasonably it 'can be said that the other acts and the present act constitute the (citation omitted)). imprint of the defendant.'" See also State (Ct. Rushing, v. 647-48, 197 Wis. 2d App. N.W.2d 155 1995). supports inference that the defendant a reasonable felony. probably a Id. committed principles it clear that before These make (1) must a ordered, there be reasonable bindover can be being operative "reasonable," inference, with the word (2) felony, probably committed a defendant that the being "probably." operative While the with the word competing between court does not have to choose any plausible or believable account inferences, felony" necessarily of a must defendant's "commission probably to that the defendant lead the conclusion felony. Thus, a we must look at the evidence committed reasonably inferred whether it can be to determine probably killed father in Jefferson Anderson his County. possibilities, Probabilities, not are what count. preliminary from Here is we know what hearing. along Donna and Krnak, with his wife Allen July disappeared 1998. Krnak's Thomas, his son on His found in North Carolina.2 skeletal remains were missing. place are The last Krnak was wife and son still County, in Jefferson at the Krnak residence seen was allegedly person saw him alive was and the last who disappeared, Shortly at Krnak while Anderson. before County, told a in Krnak coworker that work Waukesha may go "[w]e fly have to "I have to out of here" he There is no indication where would to funeral." any fly to, that, he meant or where have what might scheduled to leave on funeral be. Krnak was County, family cabin in Waushara vacation to actually though saw him there. The Krnaks' no one 971.19(5) (2003-04), provides: which See Wis. Stat. (5) causing county death in one and the death If the act county. another, may tried If in the defendant be in either ensues may determined, defendant be tried in location can be neither county body is where the found. family large vehicle found in a was wooded area around County. Lake, Mirror which is in Sauk multiple ¶ 92. The infer- evidence establishes entirely as to ences where homicide occurred. It is possible that the offense was committed in Jefferson County, where Anderson last saw his father alive. It is entirely possible that the offense occurred Waukesha County, where Krnak's coworker last alive. saw him It is entirely possible that Krnak was killed where the family County. found, vehicle Sauk Krnak could County, have been killed en route to Waushara he may have been arrived and killed there. If Krnak did (that plan fly actually get indeed of the is, out area on go plane) may funeral, to a he have been killed at his arrival location. Krnak's remains were found in may Carolina, North another location where he have support been killed. can Inferences be drawn to the may possibly conclusions that the homicide have oc- any curred in of these locations. But what makes it "probable" that the homicide occurred in Jefferson County? supports There set of is no facts that a reason- probably able inference that the defendant committed County. Dunn, the homicide in Jefferson See 121 Wis. way simply 2d 398. at There is no to tell where Krnak presented. was killed the based on evidence legislature apparently ¶ 93. The has not contem- plated a situation where one cannot discern where an certainly is offense committed. This is an that area the problems legislature light should consider in of the by created the facts of this case.3 laws that cur- rently interpreted, considering must, however, exist be

3 See, e.g., al., Procedure, R. Wayne LaFave et Criminal (2d 1999) 16.1(e), at (discussing legislation ed. broader general an provides attorney that "where that an concludes state, offense was committed somewhere within the but 'it is consequences, legal practical avoid unrea and to Hogner, e.g., See, v. Strenke sonable and absurd results. It 52, 2d 279 Wis. N.W.2d 2005 WI interpret the venue statute would be unreasonable to escape a criminal a that would allow to crimi manner got liability rid of the evidence nal because he she keeping quiet. while preliminary at a When evidence adduced

hearing occurred, it where a homicide fails establish presume, in the absence of evidence is reasonable contrary, the location that the death occurred at presump- alive. Such a where the victim was last seen might multiple tion cover the situations would person kidnapped found. It is but never occur when certainly of information as to where covers dearth case. the homicide occurred in this of an element of a criminal 95. Venue not place v. Dom refers to of trial. State fense but (1969). It browski, 486, 501, 2d 171 N.W.2d349 44 Wis. designates procedure where is a matter on Nevertheless, be tried. Id. at 502. matter should beyond proved rea at trial remand, venue must he may established Id. While venue be sonable doubt. may proof from it be and circumstances which of facts forthcoming proof reasonably inferred,4 such must be at trial. occurred, county it the offense determine in which

impossible to committed and may alleged in the indictment to have been be general county attorney ... as the may in such prosecuted be § and Mass. Gen. (citing Comp. Laws 762.3 designates.'" Mich. 19-304(3); Ky. § Rev. 57A; § Code ch. Idaho Laws Ann. 910.03)). 452.620; § Fla. Stat. Ann. Stat. 360, 363-64, 142 N.W.2d State, 2d Smazal v. 31 Wis. See 45, 261 Swinson, Wis. (1966); App v. 2003 WI and State 12. 646, 660 N.W.2d proper I would conclude that venue is County

Jefferson because that is where Krnak was last seen alive. foregoing respectfully 97. For the reasons, I

concur. I am authorized to state that Chief Justice joins ¶

SHIRLEY S. ABRAHAMSON 94 of this concur- ring opinion.

Case Details

Case Name: State v. Anderson

Court Name: Wisconsin Supreme Court

Date Published: May 4, 2005

Citation: 695 N.W.2d 731

Docket Number: 2003AP3478-CR

Court Abbreviation: Wis.