State v. FreerState v. Freer
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- Higginbotham
¶ 1. Stеphen Freer appeals a circuit court order denying his motion to dismiss and a judgment of conviction entered on a jury verdict for misdemeanor intimidation of a crime victim contrary to
BACKGROUND
¶ 2. The relevant facts are undisputed. Freer was involved in an altercation with the entertainer Truly Remarkable Loon outside Loon‘s home on Madison‘s near east side. Loon reported the incident and Freer received a citation for disorderly conduct.
¶ 3. The same day the criminal complaint was filed charging Freer with disorderly conduct, Freer left a voice message on the answering machine of a friend of Loon‘s who frequently hires Loon to perform at community events. In the message, Freer describes in a rambling manner the altercation with Loon, and accusеs Loon of misconduct. He further states that Loon‘s alleged conduct is widely known, and that “the community” is gathering evidence against Loon to be brought to the media‘s attention. Freer declares that the community is “outraged [at Loon‘s] unjustified denunciation” of Freer, and adds that if Loon wants to “get into a spitting contest. . . then we‘re gonna go ahead and take [Lоon‘s alleged misconduct] to the public arena.” If Loon wants “to denounc[e] people in an unjustified way,” says Freer, “he will find .. . justified denunciation of his . . . own [misconduct].” It is undisputed that this alleged act of intimidation did not occur in time to prevent or dissuade Loon from “causing a complaint to be sought.”
¶ 4. Based on this alleged threat, Freer was also charged with intimidаting a victim
DISCUSSION
¶ 5. This case requires us to interpret the misdemeanor victim intimidation statute,
¶ 6. When interpreting a statute, we begin with the statutory language. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is plain, we ordinarily stop the inquiry and apply that meaning. Id. We interpret statutory language “in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶ 46. “If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.” Id. (citation omitted). A statute is ambiguous only if reasonably well-informed persons could interpret its meaning in two or more senses. Id., ¶ 47. When the statutory language is ambiguous, we may consult extrinsic sources of interpretation, such as legislative history. Id., ¶ 48. The purpose of statutory interpretation is to give full effect to the policy choices of the legislature. See id., ¶ 44.
¶ 7. Wisconsin Stat.
¶ 8. Freer contends that the act of intimidation must prevent оr dissuade or attempt to prevent or dissuade a victim of all three of the following:
• Causing a complaint, indictment or information to be sought.
• Causing a complaint, indictment or information to be prosecuted.
• Assisting in the prosecution.
This is the correct reading of the statute, maintains Freer, because these three actions are connected with the conjunctive “and,” not the disjunctive “or.” Thus, according to Freer, the State failed to prove the crime of intimidation of a victim because the alleged act of intimidation occurred after Loon caused a complaint to be sought. 2
¶ 9. The State asserts that Freer‘s interpretation of the victim intimidation statute means that it would
punish some acts of intimidation while leaving others unpunished based solely on when the act is committed, a manifestly absurd result. The State also maintains that Freer‘s interpretation renders portions of the statute surplusage
¶ 10. The State also contends that the word “and” does not always cаrry a conjunctive meaning when used to string together multiple items in a statute. Citing
State ex rel. Wis. Dry Milk Co. v. Circuit Court for Dodge County,
176 Wis. 198, 204, 186 N.W.732 (1922),
State v. Wester,
691 N.W.2d 536, 540-41 (Neb. 2005), and other cases,
see, e.g. State v. Duychak,
133 Wis. 2d 307, 317, 395 N.W.2d 795 (Ct. App. 1986), the State urges that we read “and” in the disjunctive in
¶ 11. Freer responds that his reading of the statute wоuld not result in punishing some acts of intimidation while leaving others unpunished because acts occurring after the victim has caused a complaint to be sought could be prosecuted under the witness intimidation statute,
¶ 12. Freer further argues that we must рresume that the legislature did not intend “and” to be read disjunctively — i.e., to have the same meaning as “or“— because the legislature used the word “or” in other subsections of
(1) Making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.
(3) Arresting or causing or seeking the arrest of any person in connection with the victimization.
Had the legislature intended “and” to mean “or” in subseсtion (2), argues Freer, it would have used “or” as it did in subsections (1) and (3).
¶ 13. We conclude that
¶ 14. We acknowledge, as Freer argues, that modern sources of authority appear to be generally less inclined to interpret “and” in the disjunctive.
Compare
1A
¶ 15. Second, Freer is wrong when he argues that his interpretation of the victim intimidation statute does not leave gaps. Freer‘s interpretation of the statutory scheme created by the victim intimidation statute and the witness intimidation statute is less plausible on closer examination. It may be, as Freer suggests, that all victims are “putative witnesses” under Mendez, and therefore subject to the protection of the witness intimidation statute. However, regardless of Mendez, certain acts of victim intimidation fall outside the coverage of the witness statute and would be beyond the reach of either statute under Freer‘s interpretation. For example, suppose a defendant is charged with child sexual assault and, thereafter, threatens to harm the victim if she tells investigators about evidence showing that the defendant is a pedophile, such as the location of his child pornography. Under Freer‘s interpretation, this conduct would not be covered by either the victim statute or the witness statute. It would not be covered by the victim statute because the threat occurred after charging. It would not be covered by the witness statute because the threat was not intended to prevent or dissuade the child from testifying.
¶ 16. So far as we can discern, the above hypothetical could not be prosecuted as witness intimidation. In
Mendez,
for example, the defendant committed a robbery, and threatened to kill the victim if she reported the crime to police.
See Mendez,
157 Wis. 2d 291-92. While Mendez‘s threat was not specifically intended to prevent the victim from testifying at trial, we upheld Mendez‘s conviction under the witness intimidation statute,
¶ 17. Third, Freer‘s interpretation of the victim intimidation statute would render other language in the statute surplusage. Freer‘s view that
¶ 18. In the same vein, restricting the application of the victim intimidation statute to conduct occurring before the victim reports the crime results in prohibit
ing a victim from assisting in the prosecution of the crime. This construction renders the part of subsection (2) prohibiting a person from dissuading a victim from “assisting in
¶ 19. Tо sum up, the gap in coverage, combined with the fact that the legislature has sometimes used the term “and” when it meant the disjunctive “or,” and the fact that Freer‘s interpretation would render parts of the victim intimidation statute surplusage, leads us to conclude that the victim intimidation statute is ambiguous.
¶ 20. Having concluded that
¶ 21. The LRB analysis of the bill explains that a person who maliciously prevents or dissuades a crime victim from doing any one of three things — making a report, assisting the prosecution or seeking an arrest— would be guilty of misdemeanor intimidation of a victim. LRB Analysis, Drafting file of 1981 Wis. Laws, ch. 118. As the State correctly asserts, these three activities coincide with the three subsections of
¶ 22. The LRB‘s analysis of a bill is printed with and displayed on the bill when it is introduced in the legislature; as such, it is indicative of legislative intent.
See Dairyland Greyhound Park, Inc. v. Doyle,
2006 WI 107, ¶ 32, 295 Wis. 2d 1, 719 N.W.2d 408. The LRB
analysis of the crime victim and witness intimidation bill adopted by the legislature generally describes
¶ 23. The LRB analysis is contrary to Freer‘s theory that the legislature intended to limit the application of the statute to acts of intimidation occurring before a complaint is sought. As the State notes, the LRB analysis does not even mention language in
¶ 24. In light of the LRB analysis, we conclude that the legislature intended the victim intimidation statute to prohibit any act of intimidation that seeks to prevent or dissuade a crime victim from assisting in the prosecution. Accordingly, we read “and” in the phrase “causing a complaint... to be sought and prosecuted and assisting in the prosecution thereof’ in the disjunctive, and thereby conclude that
¶ 25. Freer arguеs that this interpretation is contrary to the rule of lenity, which holds that when the meaning of a criminal statute is in doubt, it should be interpreted in favor of the accused, see State v. Cole, 2003 WI 59, ¶ 13, 262 Wis. 2d 167, 663 N.W.2d 700, and contrary to the general rule that penal statutes are to be construed strictly to safeguard the defendant‘s rights, see State v. Kittilstad, 231 Wis. 2d 245, 266-67, 603 N.W.2d 732 (1999). We reject both arguments.
¶ 26. The rule of lenity comes into play only when a court is unable to clarify the intent оf the legislature,
see Cole, 262
Wis. 2d 167, ¶ 67, and we have clarified the legislative intent of
CONCLUSION
¶ 27. In summary, we affirm Freer‘s judgment of conviction for misdеmeanor intimidation of a crime victim,
By the Court. — Judgment and order affirmed.
Notes
Wisconsin Stat.
[Wlhoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade, another person who has been the victim of any crime or who is acting on behalf of the victim from doing any of the following is guilty of a Class A misdemeanor:
(1) Making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.
(2) Causing a complaint, indictment or information to be sought and prosecuted and assisting in the prosecution thereof.
(3) Arresting or causing or seeking the arrest of any person in connection with the victimization.
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
Freer asserts that Loon caused a complaint to be sought against him when Loon reported the incident to the police later that day and the police issued a misdemeanor citation for disorderly conduct. The State does not dispute this assertion.
Wisconsin Stat.
Consideration of legislative history appears to be particularly fitting when a statutory interpretation turns on whether to apply a conjunctive or disjunctive meaning to the words “and” or “or“; multiple sources of authority state that “and” is to be given its usual, conjunctive meaning and “or” is be read in the disjunctive unless such an interpretation would be contrary to the legislative intent. See State v. Duychak, 133 Wis. 2d 307, 317, 395 N.W.2d 795 (Ct. App. 1986) (“and” and “or” may be substituted for each other when such a reading is consistent with legislative intent); State v. Wester, 691 N.W.2d 536, 540-41 (Neb. 2005) (“and” may be read as “or” and vice versa “if to do so is necessary ... to effectuate the intention of the Legislature“); 1A Singer, Sutherland Statutory Construction § 21.14 p. 20 (5th ed. Cum. Supp. 2001) (“courts have generally said that [“and” and “or“] are interchangeable and that one may be substituted for the other, if consistent with the legislative intent.“). This formulation suggests at the very least that, when determining whether to read “and” or “or” conjunctively or disjunctively in a statute, the inquiry should not end with the plain meaning of these terms.
In his reply brief, Freer argues that, even under the State‘s construction of