State v. Heather L. Steinhardt

Plaintiff-Respondent, State of Wisconsin,

v. Heather L. Steinhardt, Defendant-Appellant-Petitioner.

Supreme Court No. 2015AP993-CR. argument Oral February 2017.

Decided June 2017 WI 62 (Also 700.) reported in 896 N.W.2d :| Callaghan’s Digest, See Wisconsin same and section topic number. defendant-appellant-petitioner For the there were argument by briefs an Masnica, oral Nicole M. public assistant state defender. plaintiff-respondent

For the there was a brief and argument by LeRoy, deputy oral Kevin M. solicitor general, with whom on the Schimel, brief was Brad D. attorney general, Tseytlin, general. and Misha solicitor

¶ 1. MICHAEL J. GABLEMAN, J. This is a review unpublished per of an appeals curiam decision of the court of County

that affirmed the Ozaukee circuit court’s1 decision that denied Heather L. Steinhardt's ("Steinhardt") postconviction motion for relief. State v. unpublished slip op. Steinhardt, 2015AP993-CR, No. (Wis. 2016) curiam). App. (per Ct. Jan. argues

¶ 2. Steinhardt that her convictions for protect both failure to child from sexual assault (2011-12)2 948.02(3) contrary to Wis. Stat. and first- degree party sexual assault of a child under 13 as a 948.02(l)(e) contrary §§ a crime to Wis. Stat. Jeopardy 939.05 violated the Double Clauses United States Constitution and Wisconsin Constitu- Therefore, tion. she asks this court vacate her protect conviction for addition, failure to a child. In she argues that she received ineffective assistance of coun- poten- sel because her counsel never alerted her to the jeopardy tial double claim. She asks this court to hearing for remand her case to determine whether her counsel was ineffective. 1The Sandy presided. Honorable A. Williams subsequent All references to the Wisconsin Statutes are

to the 2011—12version unless otherwise indicated. for fail- hold Steinhardt's conviction 3. We protect does a from sexual assault not child

ure to protect jeopardy to because failure violate double first-degree and sexual as- from sexual assault child party crime are child 13 as to a not sault of a under Moreover, we that Stein- in fact. determine identical presumption that to failed overcome hardt legislature punishments for her cumulative intended sepa- given of two her conduct consisted conduct, that claim hold that Steinhardt's rate acts. We also her coun- assistance of counsel fails because ineffective failing her for to advise of a could not be deficient sel potential jeopardy claim that does not exist. double AND PROCEDURAL BACKGROUND

I. FACTUAL years leading up April roughly to three 4. For repeatedly husband, Walter, ex- 2013, Steinhardt's 1, having pressed interest sex with to Steinhardt an daughter, April 2013, On Stein- F.G.3 Steinhardt's requests, acquiesced and Steinhardt to Walter's hardt of the then- her sexual assault facilitated husband's twelve-year-old F.G. According complaint, April on to the criminal w[h]ere "[Steinhardt] one of the rooms went to other [Stein- brought into the and her bedroom

F.G. was hardt] her on the shared with Walter sat with prepared, lying the bed under . Walter was on bed... F.G. take offher clothes "Walter then told the covers." [Steinhardt] the bed .. .." time remained on at which engaged in three acts then sexual with Walter digital engaged penetration F.G., F.G.: "Walter engage him, in oral with had F.G. sex Walter ultimately intercourse with Walter had sexual stepfather. Walter is F.G.'s F.G." Steinhardt remained seated on the bed throughout the entire assault. After finished, Walter [Steinhardt] "F.G. left the room take a shower with following her into the bathroom."4 biological

¶ 6. F.G. alerted her father police. assault, and he contacted the The charged protect State Steinhardt with failure to contrary a child from sexual assault to Wis. 948.02(3)5 ("Count 1"), first-degree Stat. sexual party assault aof child under 13 as a to a 948.02(l)(e) contrary §§ crime to Wis. Stat. and 939.056 4The State asserted additional facts about the sexual sentencing hearing. assault at example, Steinhardt's For gave State asserted that request Steinhardt in to Walter's as birthday present actually for him and that Steinhardt was However, the told one who F.G. to take off her clothes. as will later, explained be we are limited to the facts as contained in complaint. Thus, the purposes, criminal for our the facts of above, the sexual assault are as stated we and do not consider by the provided additional facts 5 the State. 948.02(3) provides: Wisconsin Stat. § responsible person A for the a child not welfare of who has age years guilty felony the of attained 16 is of a Class F that if person knowledge have, person has that another intends to is having has or had sexual intercourse or sexual contact with the child, physically emotionally capable taking is and of action prevent taking place which will the intercourse or conduct from being repeated, or fails to take that and action the failure act to exposes the child to an unreasonable risk intercourse or may person contact occur between the the child and other or facilitates intercourse contact that does not occur between person. the child and the other 6 948.02(l)(e) Wisconsin Stat. provides, has § "Whoever person sexual contact with a age who has not of attained years guilty felony." is of a Class B Wisconsin Stat. 939.05 then applicable parties § makes this offense to to the 939.05(1) crime. Section states:

("Count contrary 2"), to Wis. enticement and child 3").8 ("Count 948.07U)7 Stat. pled counts, to all three no contest 7. Steinhardt years to 7.5 Steinhardt court sentenced the circuit

and supervi- years of extended and 5 initial confinement of years and of initial confinement 1; 15 Count sion on (consecutive supervision years on Count of extended years 1); and 10 of initial confinement and 15 to Count years (concurrent supervision to on Count of extended 2). to sentence amounts total, Steinhardt's In Count years years, and 15 initial confinement 22.5 with 37.5 supervision. years of extended subsequently for filed a motion 8. Steinhardt f circuit court postconviction relief. She asked a crime is a commission of in the is concerned Whoever charged of the commis- may and convicted principal be with directly it although person commit did not of the crime sion directly it has not been although person committed who degree crime of the of some other has been convicted convicted or the same act. crime based on or of some other 939.05(2)(b) person who is concerned defines a then Section "[i]ntentionally aids one who of the crime as the commission crime]." [the the commission and abets part: in relevant provides, Stat. 948.07 Wisconsin acts, following Whoever, any of the intent to commit with any attained the attempts child who has not to cause causes or vehicle, any building, years go room or secluded age into of 18 felony: guilty place a Class D is (1) with the Having sexual intercourse sexual contact or 948.02, 948.085, or 948.095. in violation of s. child 8 charged Steinhardt complaint originally criminal The (1) of in violation protect a child failure to two counts: with 948.02(3) (2) of a first-degree assault sexual Wis. Stat. § Wis. Stat. in violation of party to a crime under 13 as a child 948.02(l)(e) 3, in viola child enticement 939.05. Count §§ 948.07, in the information. was added of Wis. Stat. tion

720 argued vacate her conviction for Count 1. She that thereby multiplicitous, making 1 and 2 Counts are her jeop- convictions on both a counts violation double ardy. also Steinhardt asked circuit court to hold hearing to determine whether her counsel was ineffec- failing potential tive for to advise her of her double jeopardy alleged claim. Steinhardt that she not would pled possible have no if contest she knew of the claim. The circuit court found Counts 1 and 2 were not multi- plicitous appealed. and denied her motion. Steinhardt appeals

¶ 9. affirmed The court of the circuit unpublished slip op., Steinhardt, ¶ court. 1. It deter- relinquished right mined "Steinhardt to direct jeopardy review her double claim" because her claim not could be resolved on the basis of the factual record plea. before the circuit court at the time of Steinhardt's (citing Kelty, Id., 8 v. 2006 101, State WI 2dWis. ("[A] plea guilty relinquishes 62, 716 N.W.2d 886 right multiplicity to assert a claim when the claim record.")). ap- be cannot resolved on the The court of peals also claim determined that Steinhardt's for inef- fective assistance counsel failed because Steinhardt sufficiently allege prejudice postconvic- did not in her hearing. (citing Id., tion motion to warrant a State Bentley, v. 2d 313-18, Wis. N.W.2d ("A (1996) merely allege defendant must do more than pled differently; allegation that he would have such an assertions.")). by supported objective must be factual sought by ¶ 10. Steinhardt then review this granted court, which we on October II. OF STANDARD REVIEW person's right ¶ 11. "The issue of whether a to be jeopardy presents free from double has been violated question v. de novo." State that we review of law ¶ 523, Trawitzki, 77, 19, 244 Wis. 2d 2001 WI 801. N.W.2d is a mixed Ineffective assistance of counsel 12. upholds

question Id. of law and fact. This court clearly findings they factual unless are circuit court's counsel was ineffective is erroneous. Id. Whether question that this court reviews de novo. Id. of law

III. DISCUSSION 1 and 2 Convictions on Counts A. Steinhardt's to the United States The Fifth Amendment f I, Article Section 8 of the Wisconsin Constitution9 and right guarantee the to be free from Constitution10 jeopardy. right provides protec This three double "protection against prosecution tions: a second for protection against acquittal; the same offense after prosecution after convic for the same offense second protection against multiple punishments for tion; and Sauceda, 486, State v. 168 Wis. 2d same offense." (1992). category This third is known 492, 485 N.W.2d multiplicity. Davison, 37, v. 2003 WI as See State ("Use of the term 263 Wis. 2d 666 N.W.2d 'multiplicitous' limited to situations in which should be charges multiple legislature not authorized has punishments."). Here, ar cumulative Steinhardt multiple punish gues right that her to be free from subject offence to be person "No shall... be for the same . . . ." put jeopardy twice of life or limb may put be twice in person "[N]o for the same offense ." jeopardy punishment. . . by

ments for the same offense has been violated her convictions for Counts 1 and 2. apply two-pronged

¶ 14. We test to determine charges multiplicitous. whether are Anderson, State v. (1998). 739, 746, 219 Wis. 2d 580 N.W.2d 329 Under prong, charged the first we ask "whether the offenses are identical in law and fact." Id. Under the second prong, question is "if the are offenses not identical legislature in law and fact, whether the intended the multiple brought single offenses to be as a count." Id.

1. Whether Counts 1 Are Identical in Law or Fact typically apply Blockburger11 15. We test to E.g., determine whether offenses are identical in law. Sauceda, 168 Here, Wis. 2d at 493-94. however, the agree, State concedes, and we that Counts 1 and 2 are operation identical in law due to the of Wis. Stat. 939.66(2p),12 protect which makes failure to a child from sexual assault a lesser-included offense of first- degree e.g., sexual See, assault of a child under 13. State, Harrell v. 546, 571, Wis. 2d 277 N.W.2d 462 (Ct. 1979) App. ("[T]hus, greater and lesser included offense are the 'same offense' and trial for one bars a other."). Accordingly, inquiry second trial for the our (1932). States, Blockburger v. United 284 U.S. 299 12Wisconsin Stat. 939.66 states: Upon prosecution crime, may for a the actor be convicted of charged crime, either the crime or an included but not both. An may any following: included crime be of the (2p) equally type A crime which is a less serious or serious charged. violation under s. 948.02 than the one prong on whether Counts 1 and under the first focuses they are not. 2 are identical in fact. We conclude 16. Our of whether Counts 1 and are review to the identical in fact is limited to the facts available plea. e.g., See, circuit court at the time of Steinhardt's ("What Kelty, ¶62, 294 Wis. 2d this means is that a court the merits of a defendant's will consider double jeopardy challenge it can be resolved on the record as if pled."); it existed at the time the defendant State v. (1980) ("Be- Eisch, 25, 27, 96 Wis. 2d 291 N.W.2d 800 pleading stage, at cause we confront the case we alleged complaint, are confined to the facts in the transcript testimony of the wit- information, examination."). preliminary case, In nesses at the this probable that amounts to those facts contained in the complaint criminal cause section of the because those only of record at the were facts time Steinhardt's plea.13 hearing, preliminary her Steinhardt waived information, there are no facts contained in the sought supplement party neither to at facts Stein- plea hearing. hardt's probable

¶ 17. The cause section of the criminal complaint provides, part: in relevant point

[Steinhardt] stated that at one she went to one of brought w[h]ere the other rooms F.G. was and her into 13 101, Kelty, v. The State relies on State 2006 WI multiplicity which held that a Wis. 2d N.W.2d record, argue claim is waived if it cannot be resolved on the to ability bring jeopardy that Steinhardt her a double waived State, challenge. According to the whether Steinhardt's con duct in on the is identical fact cannot be resolved based facts plea. time known at the of Steinhardt's We conclude that jeopardy Steinhardt's double claim can be resolved based on the facts of record and therefore do not further address the argument jeopardy claim. that Steinhardt waived her double [Steinhardt] bedroom that shared with Walter and

sat with her on the [Steinhardt] bed. stated that Walter lying prepared, was on the bed under [Stein- the covers. hardt] stated that Walter then told F.G. to take off her at [Steinhardt] clothes which time remained on the bed engaged digital while Walter penetration F.G., engage him, Walter had F.G. oral sex with ultimately Walter had sexual intercourse with F.G. placing penis his vagina. inside her [Steinhardt] stated she remained on the bed whole time. Walter fin- ished and F.G. left the room to take a shower with following [Steinhardt] her into the bathroom. argues facts, 18. Based on these Steinhardt

Counts 1 and 2 are identical in fact because the conduct underlying both counts constitutes one continuous act place during single that took incident and the same supports conduct Counts 1 and 2. State, both The on the argues hand, other that Counts 1 and 2 are not identical supported by in fact because each count is conduct that sitting is different in nature—Steinhardt on bed (an during supports the sexual assault Count act of omission), taking and Steinhardt F.G. to the bedroom (an commission).14 supports Count 2 act of argues judicial Steinhardt that this court should invoke estoppel preclude making argument. the State from this Assuming judicial estoppel apply instance, could in this we decline to invoke it estoppel equitable here. Judicial is an doctrine preclude party invoked at the court's discretion to abusing system. from Fleming, the court See State v. (Ct. 1993) 546, 558, Wis. 2d App. (judicial 510 N.W.2d 837 estoppel applied preclude manipulation is "cold and not unthinking (quoting or confused blunder" Konstantinidis v. (D.C. 1980))). Chen, Here, 626 F.2d nothing 939 Cir. id., loose," playing indicates that the State is "fast and with the system by asserting positions court inconsistent such that we necessary judicial estoppel. conclude it is to invoke See State v. (1996) ("The Petty, 337, 347, 201 Wis. 2d 548 N.W.2d 817 precludes party asserting position legal doctrine from in a

725 "Charged multiplicitous are if offenses not separated [are] are either in time or of a the facts significantly Anderson, different nature." 219 Wis. 2d at 749. are to determine in We unable from facts complaint exactly elapsed the criminal how much time here; however, we are able to discern acts that are say significantly in different nature such that we can multiplicitous. Counts 1 and are not analyzing signifi- ¶ 20. When whether acts are cantly "[t]he question nature, different in is whether legally elements, identical, which are are suffi- ciently separate different fact to demonstrate that a Eisch, crime committed." 2d at 31. has been Wis. Accordingly, this court concluded in Eisch that convic- tion for four different counts of "forcible uncon- jeop- sented sexual intercourse" did not violate double ardy significantly each sexual act because was "of a different nature in fact." Id. at 31. The defendant in vaginal Eisch had victim, intercourse with the inserted penis anus, his into the victim's inserted a beer bottle vagina, penis into the victim's and inserted his into the concluding victim's mouth. Id. at 27-28. In that no " jeopardy [I]t existed, said, double violation this court is the different nature of the acts which we deem to be importance." Id. at 33. the different Given nature of acts, it mattered not that all the acts occurred proceeding subsequently asserting and then an inconsistent position."). consistently The State has maintained that Stein- hardt's convictions on Counts do not violate double jeopardy because the counts are not identical fact. See id. at (concluding judicial estoppel apply did not because "Petty consistently sought length has stay, to minimize the of his sentence, prison receiving whether it be a concurrent charge statutory grounds dismissal of the state on double jeopardy"). (noting within the same incident. See id. at 31 that the place relatively period"). assault "took within a short Relying Eisch, 21. on this court determined f second-degree that five counts of sexual assault were "sufficiently sepa different in fact to demonstrate that [had] rate crimes been committed" when the defendant Ziegler "perform in had the minor oral sex him," on digitally penetrated vagina, the minor's fondled the penis, breasts, minor's had the minor touch his "str[uck minor's] Ziegler, buttocks." State v. ¶¶ WI 73, 60, 64-65, 342 Wis. 2d 816 N.W.2d 238. sufficiently The court determined that these acts were separate different in fact such that five crimes were departure committed because each act constituted a Ziegler's previous ¶ Id., from conduct. Moreover, 73. each different act "resulted in a new and different danger, pain" humiliation, to the victim. Id. right 22. hand, On the other the defendant's jeopardy be free from double was violated when the charged State defendant Hirsch with three first-degree touching counts of sexual assault for five-year vagina, vagina old's then anus, and then again span within the of a minutes, few because the sufficiently nature of the conduct was not different say multiple crimes had been committed. State v. (Ct. Hirsch, 140 Wis. 2d 474-75, 410 N.W.2d 638 1987). App. alleged The court noted that "the actions extremely are similar in character," nature and id. at "significant change 474, and that there was no activity Eisch," as in at id. 475. Here, we an have act of omission— sitting observing sexually

Steinhardt on the bed Walter child—supporting assault her Count 1 and an act of bringing daughter commission—Steinhardt her to the bedroom—supporting Count 2. As in both Eisch and Ziegler, there is a in difference Steinhardt's conduct that significant change activity. Sitting amounts to a on departure bringing the bed is a from F.G.to the bedroom represents change activity and a in Steinhardt's such sitting that her conduct is different in nature. Indeed, departure on the bed is such a from Steinhardt's con- bringing say duct of F.G. to the bedroom that we can Steinhardt Harrell, came "to a fork in the road," (quoting Irby Wis. 2d at 558 States, v. United 390 F.2d (D.C. 1967) (Leventhal, concurring)), 432, 437 Cir. J., departed and from her earlier course of conduct such separate that we have two acts, Eisch, volitional see (emphasizing required Wis. 2d at 36 that each crime "a act"). separate volitional Unlike Hirsch where the acts change were similar in nature, here we have that had place acting to take between Steinhardt in the first bedroom) (bringing daughter instance her into the and failing (sitting Steinhardt to act on the bed and observ- ing sexually daughter) Walter assault her in the second. subjected Furthermore, F.G. was ato new and different danger, pain humiliation, with each act her mother Consequently, took. we conclude that Counts 1 and 2 are not identical in fact and therefore Steinhardt's convic- jeopardy. tions on both counts do not violate double 2. Whether Steinhardt Has Overcome the Presumption Legislature that the Intended Cumulative Punishments for Her Conduct Having ¶ 24. determined that Counts 1 while law, identical in are not identical in fact, we now prong turn to the second of the test and look to whether legislature punishments intended cumulative for (as must) begin Steinhardt's conduct. We we with the presumption "[I]f that it did. the offenses are different presumption legislature fact, is that the law permit punishments." Ziegler, intended to cumulative Consequently, junc- "[a]t 342 Wis. 2d this longer jeop- are no concerned with a ture, we double ardy potential process violation but instead due violation." Id. The defendant bears the burden of proving multiplici- that "the offenses are nevertheless grounds legislature that the did not intend to tous on punishments." pre- authorize cumulative sumption may only Id. "This by be rebutted a clear indication to contrary." Anderson, 219 Wis. 2d at 751. legislative ¶ 25. We use four factors to examine (1) prong: applicable "all intent under this second (2) history statutory language"; legislative "the and (3) pro- statutes"; "the nature of the context of the (4) appropriateness of mul- conduct"; scribed "the Ziegler, tiple punishments for the conduct." ¶ Wis. 2d though that, even it is Steinhardt's 26. We note legisla- presumption that the

burden to overcome the punishments intended to allow cumulative for ture protect child from sexual assault and first- failure to party degree under 13 as a to a sexual assault of a child any analysis failed undertake of the crime, she to simply points to Wis. Instead, four factors. she relevant "[t]he According 939.66(2p).15 § Steinhardt, to Stat. legislature directly [, mean- has addressed this situation punishments,] ing legislative intent to allow cumulative 939.66(2p) Stat. is the statute that makes Wisconsin § a lesser-included protect failure to a child from sexual assault first-degree of a child under 13 as a offense of sexual assault party to a crime.

by passage statutory [sic] the § Wis. Stat. 939.66." As argument her runs, Counts 1 and 2 are identical in law by operation of this statute and are identical in fact supported by because Counts 1 are the same legislature conduct; therefore, the did not intend cumu- punishments. argument, lative With that as her the correctly argues State that Steinhardt could be said to have conceded the last three of the four factors prong. second This is so it because is her burden to use legislature all four factors to show that did not punishments, intend cumulative and this she has failed analyze legislative to Nonetheless, do. we choose to intent in accordance with the four relevant factors in order to if, determine in fact, Steinhardt's convictions process. for Counts and 2 violate due ¶ 27. Under the first factor, we look to all the applicable statutory language leg- if determine imposition islature indicated whether it intended the punishments. Grayson, of cumulative See State v. (1992) Wis. 2d (looking 156, 160-64, 493 N.W.2d 23 reading the "common sense" of the statute to deter- statutory language leg- mine whether indicated a impose punishments). islative intent to cumulative statutory language 28. The of Wis. Stat. legislature 948.02 itself is silent as to whether the punishments. intended cumulative Section 948.02 sim- ply 948.02(l)(e) lists both of the crimes we have here: says, person "Whoever has sexual contact with a who age years guilty has not attained the of 13 is of a Class 948.02(3) felony," says: § B person A responsible for the welfare of a child who has not age years attained the guilty of 16 is of a Class felony F if person that knowledge has that another person have, intends having to is or has had sexual intercourse or child, sexual contact physi- with the is emotionally capable taking of action which cally and taking intercourse or contact from prevent will take action and the being repeated, fails to place or child to an unreasonable risk exposes act failure to child may occur between the intercourse or contact that or person or facilitates the intercourse and the other child and the other occur between the contact that does person. reading lead to the this statute could

A sense of common legislature intended cumulative that conclusion first-degree punishments assault of a child sexual for protect a child from sexual 13 and failure to under separate offenses are listed because both assault Church, 223 State v. of the statute. subsections Cf. 1998) (Ct. App. 653-55, 589 N.W.2d 2dWis. likely legislature (reasoning not intend did multiple punishments of the for different subsections standing statutory provision "neither, because same separate as was the case a offense" alone, constitutes 486). Sauceda, 2d 168 Wis. Wis. Stat. Moreover, when we look to legislature provided 939.66(2p), one

§ we see that each criminal punishment 948.02 for under Wis. Stat. "Upon prosecution a for states, 939.66 act. Section may crime of either the convicted crime, the actor be (Emphasis charged crime, but not both." an included added). may 939.66(2p) have resort Steinhardt's alleged example, had the State if, for had traction guilt entry judgment sought for and then crime first-degree under 13 as of a child sexual assault both party offense crime the lesser-included as well as to the protect However, not the case that is failure to a child. today upon decide. called we are ¶ 30. we Here have two criminal acts— bringing Steinhardt's act of commission in F.G. to the sitting bedroom and Steinhardt's act of omission in on place. this, the bed the assault while took Because of 939.66(2p) § Steinhardt's reliance on Wis. Stat. is mis- placed nothing language and we in the see of Wis. Stat. 948.02(l)(e) 948.02(3) § pre- §or that would rebut the sumption legislature pun- that the intended cumulative ishments statutes, for the violations of these and we move to the second factor. legislative history

¶ 31. The context of Wis. nothing § Stat. 948.02 likewise does to overcome the presumption legislature that intended cumulative punishments. recognize Indeed, we court, that this along appeals, with the court of has noted that legislative history general of ch. 948 in shows that the legislature against seriously. takes crimes children E.g., Ziegler, (allowing 342 Wis. 2d for mul tiple punishments legislature's "further!] ex press objective emphasizing the seriousness of children"); against Church, crimes 223 Wis. 2d at (discussing history legislative 661-63 of ch. 948 in statute). relation to the child enticement Such a his tory punishments indicates that cumulative for crimes against appropriate. children are recognize legislative 32. We also his-

f tory 939.66(2p) legis- § of Wis. Stat. indicates that the 948.02(3) lature § intended make Wis. Stat. a lesser- 948.02(l)(e). § included offense of Wis. Stat. However, charged only this that, means had Steinhardt been 948.02(l)(e) violating with one count of based on one act, she could have been convicted of either 948.02(l)(e) 948.02(3), §or case, but not both. In this separate these are two offenses because Steinhardt's sufficiently conduct is different in nature—one is an and the other an act of omission. act of commission Accordingly, 939.66(2p) apply § here, does not as the parties argue, nothing under this second factor legislature presumption that the in- overcomes the punishments tended cumulative under 948.02 for her conduct. requires

¶ The third factor us to look at the 33. nature of the conduct and ask whether the conduct is Grayson, separated in in time or different nature. See (evaluating 172 Wis. 2d at 165 whether "the facts are nature"); separated different in time and in see both (evaluating Anderson, the also 219 Wis. 2d at 755-56 by referring inquiry third factor back to its into iden- fact). tity already in We have determined that Stein- consisted of one act of commission in hardt's conduct knowingly leading sexually her child to be assaulted 948.02(l)(e)) (Wis. Stat. and one act of omission in passively observing daughter was, fact, in while her (§ 948.02(3)), sexually nothing assaulted and there is nature of Steinhardt's conduct that over- presumption about the legislature comes the that the intended punishments. e.g., See, Anderson, cumulative ("Because the nature of the different Wis. 2d at 756 perceive proscribed separate harms, conduct causes we analysis no clear indication under this factor of the presumption legislature the that the in- overcome punishments."). tended cumulative As the court rely recognized, different con- Church counts that on legislative punish- for cumulative duct indicate intent Church, at ments. See 223 Wis. 2d 663. appropriateness ¶ factor, 34. As to the fourth multiple punishments conduct, for Steinhardt's we nothing to over determine this factor likewise does legislature presumption intended come the that punishments. examining this fourth cumulative When typically multiple factor, the court has looked for acts. e.g., Ziegler, See, (noting Wis. 2d that multiple subjected there were victim acts that to "a danger"); new and different humiliation and Church, ("[MJultiple punishments 223 Wis. 2d at 664 criminal appropriate multiple multiple are acts, for but not for thoughts."). multiple We have acts here—one act of bringing commission F.G. to the bedroom and one sitting idly by act of omission in on the bed while the place. sexual assault took Thus, it cannot be said that overcoming presumption this factor assists in legislature punishments. intended cumulative reviewing In factors, the four we find noth- ing, individually aggregate, either inor the that over- presumption legislature comes the that the intended punishments. for cumulative Thus, Steinhardt's con- process, victions on Counts 1 and 2 do not violate due and we decline to vacate her conviction for Count 1. Jeopardy

3. Whether Count 3 Violates Double argues ¶ concluding 36. Steinhardt that that her convictions on Count 1 and Count 2 do not violate jeopardy jeopardy problem double creates a double supported with by Count 3 because Count 3 is the reject same conduct as Count 1. We her contention wholly because child enticement is a different statute making with different elements, Count 3 different in DeRango, law from Count 1. See State v. 1, 229 Wis. 2d (Ct. 1999) App. (concluding 13-17, 599 N.W.2d 27 that underlying the different concerns the child enticement (Wis. 948.07) exploitation § statute Stat. and the child (Wis. 948.05) § statute Stat. allowed the defendant to conduct). charged be ingly, under both for the same Accord- operate presumption we under the the legislature punishments. intended for cumulative pre- nothing see that overcomes this 37. We sumption. factor where we look to the Under the first statutory reading language, applicable a common sense 948.02(l)(e) 948.07(1) of and Wis. Stat. Wis. Stat. can be convicted under both indicates that Steinhardt applies "[w]hoever, with Section 948.07 statutes. following any acts, the causes or intent to commit of attempts any has the to cause child who not attained building, age years go any vehicle, into room of 18 948.02(l)(e) ap- place." hand, § On secluded the other person plies [w]hoever contact a who to" has sexual with years." age Each statute attained the has not criminalizes act criminalizes different conduct—one place, bringing child and the other to a secluded having criminalizes act with a sexual contact (or, anyone case, another in Steinhardt's who aids child child). contact with sexual legislative history apply- looking In to the 38. nothing ing in the factor, likewise see the second we history presumption. legislative In that overcomes legislative 1 and fact, as was the case with Counts legislature history crimes indicates that takes against seriously. e.g., Ziegler, See, 2d 342 Wis. children ¶ 76. Nothing factor, the third where we under

f proscribed conduct, overcomes look to the nature of the 948.02(l)(e) protects § presumption. Wisconsin Stat. 948.07(1) § from acts and Wis. Stat. children sexual place protects being children from enticed to a secluded a sexual act occur. The nature of the conduct where can by fact, no is different. In criminalized each statute 948.07(1); charged § under sexual act need occur to be only All occur. to a sexual act need the intent commit 948.07(1) be § is that the child occur under that must brought place. Church, 2d at 664 223 Wis. to a secluded

("The completed, crime of enticement is however, when person attempts go causes, a or to cause, child to to a place, regardless any secluded of whether of the in- illegal completed attempted."). tended acts is ever sufficiently conduct, therefore, The nature of the is different in nature because conduct criminalized 948.02(l)(e) pertains § to under sexual acts committed a child and with the conduct criminalized under 948.07(1) pertains taking place § child to a secluded performed. Church, where such acts can be See 2d at Wis. 663. appropriate- fourth The and last factor—the multiple punishments—also

ness fails to overcome presumption appropriate impose the tiple that it is mul-

punishments because different interests of the protected by DeRango, child are each statute. See "[T]he [Wis. 2dWis. at 14-17. central concern of Stat. 948.07] general is the removal of a child from the public place to a secluded in order to facilitate various illegal underlying acts, conduct." Id. at 14. "The such as primary sexual contact,... are not the concern of specifically 948.07 because other statutes address these crimes." Id. Consequently,

¶ 41. we conclude that no double process jeopardy or due violation with Count 3 is cre- by regarding ated our conclusion Counts 1 and 2.

B. Steinhardt's Ineffective Assistance of Counsel Claim ¶ 42. The Sixth Amendment to the United States I, Constitution16 and Article Section 7 of the Wisconsin prosecutions, "In all enjoy criminal accused shall right... to have the Assistance Counsel for his defence." guarantee Constitution17 a criminal defendant right right to counsel. "This to counsel includes the right Trawitzki, to the effective assistance of counsel." apply two-pronged ¶ 523, 244 2d test, Wis. 39. We commonly referred to as the Strickland18 test, to de- Id., termine whether counsel was ineffective. part requires ¶¶ 39-40. "The first of the test a defen- performance dant to show that counsel's was defi- Id., cient." "If the defendant establishes f performance deficient, counsel's was then the defen- satisfy part dant must the second theof Strickland test prove performance prejudiced that this deficient the defense." Id. argues per 43. Steinhardt that her counsel's failing

formance was deficient for potential to alert her to the jeopardy However, double claim. as we have jeopardy determined, there is no double violation occa by sioned her 1 2 convictions for Counts because Consequently, Counts 1 and 2 are different in fact. performance deficient, counsel's was not State v. John son, 94, 24, 626, 2004 WI 273 Wis. 2d 681 N.W.2d (concluding performance counsel's not defi was nothing objectionable cient "there because was about testimony" improper). the line of claimed to be We need prong, Maloney, not address the second State v. ("We ¶ 74, WI Wis. 2d 698 N.W.2d 583 components inquiry need not address both of the if the one."), showing defendant makes an insufficient on purpose accomplished by doing and no useful would be Accordingly, so. we determine that there is no need to hearing remand for a on whether her Steinhardt's case counsel was deficient. enjoy "In prosecutions all criminal the accused shall

right by to heard himself and counsel. . .." (1984). Washington, Strickland v. 466 U.S. 668

IV. CONCLUSION ¶ 44. We conclude that 1 2 Counts and are not multiplicitous and thus Steinhardt's convictions for jeopardy. both counts does not violate double Counts supported by and 2 are different conduct and thus are not identical in fact. We also conclude that Steinhardt's convictions for Counts and do not violate due process. Accordingly we decline to vacate Steinhardt's conviction for Count 1.

¶ Last, 45. we conclude that Steinhardt's claim for ineffective assistance of counsel fails, and there- hearing. fore, we decline to remand her case for a By appeals the Court.—The decision of the court of is affirmed.

¶ {dissent- ABRAHAMSON, 46. SHIRLEY S. J. ing). According complaint, to the Heather Steinhardt knowingly intentionally 12-year-old and took her daughter to Walter's bedroom and remained there sitting facilitating on bed, Walter's Walter's sexual According majority opinion, assault of the child. to the Walter is Heather Steinhardt's husband. Heather revolting Steinhardt's conduct was and detestable! guar- 47. The federal and state constitutional against jeopardy protect antees all, double us even Heather Steinhardt. jeopardy challenge, In the instant double argues

Heather Steinhardt that she was convicted of offenses, two Counts and that are the same in law multiplicitous. majority opinion fact, is, The agrees with Heather Steinhardt that the two convic- majority opinion tions at issue are identical law. The concludes, however, that the convictions for Count 1 (failure protect to act to a child from sexual assault 948.02(3)) (first- contrary to Wis. Stat. and Count 2 degree party sexual assault of a child under 13 as 948.02(l)(e) contrary §§ a crime to Wis. Stat. 939.05) are not identical in fact and that Heather multiplicity challenge Steinhardt's fails. argues

¶ 49. Heather Steinhardt also that if this upholds upon court her convictions on Counts and 2 arguments court, State's new factual this multiplicity regard different issue is created with majority opinion Count 3. The concludes that count 3 (causing go a child to into a room with intent to have contrary sexual contact or sexual intercourse to Wis. 948.07(1)) § Stat. fact, is not identical in law or that the legislative multiple intended under Count convictions multiplicity 3, and that Heather Steinhardt's chal- lenge fails. contrary majority opin- I conclude, to the

ion, fact; that Counts 1 and 2 are identical in law and legislature did not intend that these two counts for two offenses identical in and fact under law single two subsections of statute would result in two 939.66(1) (2p);1 convictions, see Wis. Stat. and multiplicitous. that convictions for both are I counts further conclude that Count 3 is not identical in law legislature with the other counts but that the did not 939.66(1) Wisconsin Stat. (2p) provide as follows: permitted. Upon Sec. 939.66. Conviction of included crime crime, prosecution may for a the actor be convicted of either the charged crime, crime or an included but not both. An included may any following: crime be of the (1) any require proof A crime which does not fact addition proved charged. those which must be for the crime equally type (2p) A crime which is a less serious or serious charged. violation under s. 948.02 than the one single, intend that Heather Steinhardt's brief course of subject multiple conduct her to convictions and that multiplicitous. her conviction of Count 3 is Accordingly, ¶ 51. I would reverse decision of appeals the court of and the order of the circuit court. I would remand the matter to the circuit court to vacate convictions on Counts and 3 and for proceedings further consistent with this dissent. Notwithstanding ¶ 52. the heinous nature of question conduct, Heather Steinhardt's the ultimate jeopardy purposes for double is whether it is funda- mentally fair to convict her of the three offenses. "Basically, problems jeopardy where of double or mul- tiplicity question arise, is one of fundamental prejudice fairness or to the defendant. A defendant ought charged, tried, not be or convicted for offenses substantially they part that are alike when are a of the general episode." Eisch, same transaction or State v. (1980). 25, 34, 2d Wis. N.W.2d 800 problem by ¶ 53. The of unfairness caused overcharging multiple criminal offenses based on single course of criminal conduct is not a new concern. forty years ago, Supreme Over United States Court concurring Justice William Brennan, in Ashe v. Swen (1970), warning. son, 397 U.S. sounded a Although jeopardy directed at another area of double jurisprudence, pertain Justice Brennan's concerns the instant case: tendency legislation

Given the of modern criminal phases divide the aof criminal transaction into numer- separate crimes, ous opportunities multiple the for prosecutions essentially unitary an epi- for criminal frightening. given sode are ally And our of virtu- tradition prosecutorial concerning unreviewable discretion scope prosecution, the initiation and of a criminal the potentialities for simply abuse . .. are intolerable. (Footnotes omitted.) ¶ 54. I conclude that two counts in the instant case are in fact, identical law and that the third count multiplici- fact, is identical in and that the three are following tous for the reasons: I. The text of the alleged statutes and the in the facts complaint demonstrate that Counts and are the supported by

same in law and the same facts. count, Because the same conduct satisfies each clearly text of the two expresses legisla- statutes tive intent that there not be two convictions. See 939.66(1), (2p). Wis. Stat. Count 3 is different in supports law but the same conduct all three legislature counts. The multiple did not intend convictions for the three counts under the facts of the instant case. 1, 2,

II. An indication that Counts and 3 are identical elapsed fact is the short time that between the alleged. "acts" performed Heather Steinhardt isolating by bringing role of the child the child into facilitating the bedroom and Walter's sexual as- Her unvarying. relatively saults. mens rea was Her single brief course of conduct demonstrated a in- purpose getting tent and the child into bedroom to facilitate Walter's sexual assaults. majority opinion's III. The commission/omission "test" majority opinion adopts is not viable. The court, position state's novel about the facts in this position which differs from the State's appeals. majority circuit court and court of The opinion "slices and dices" Heather Steinhardt's single constituting single volitional act course of offenses, conduct into two one an act of omission and the other an act of commission. majority opinion's reasoning easily

IV. The can lead overcharging imposition to the of offenses and the multiple single sentences for a act or course of conduct. develop I 55. these four reasons further below.

I—I ¶ 56. The text of the statutes the facts al- leged complaint in the demonstrate that the three supported by very by counts are facts, is, same very same "acts" of Heather Steinhardt described complaint.2 in the complaint alleges The facts identical as

probable cause to believe that Heather Steinhardt charged. probable committed the three offenses The complaint cause section of the states: information, complaint, The criminal unlike the does not upon charges state the facts which the are based. The criminal (unmentioned charges information a third offense in the com plaint) as follows: Monday, 01, 2013, April The above-named defendant on or about Fredonia, County, Wisconsin,

in the Town of Ozaukee with intent to have sexual intercourse with the child in violation of Section 948.02, Stats., child, FG, 11/26/2000, Wis. did cause a DOB who room, age years go contrary had not attained the of 18 to into 939.50(3)(d) 948.07(1), Stats., Felony, sec. Wis. a Class D upon may conviction be fined not more than One Hundred ($100,000), imprisoned Thousand Dollars not more than (25) twenty years, five or both. 948.07(1), Child enticement is set forth in Wis. Stat. § provides: which Whoever, any with intent to commit 948.07 Child enticement. acts, following attempts any of the causes or to cause child who age vehicle, years go any

has not attained the of 18 into building, place guilty felony: room or secluded is of a Class D (1) Having sexual contact or sexual with the intercourse child 948.02, 948.085, violation of s. or 948.095.

PROBABLE CAUSE: Complainant alleges 19, 2013, that on June Detective Lambrecht and Lieutenant Knowles interviewed Heather allegations Steinhardt about the that Walter Steinhardt had F.G., sexual intercourse with date of time, birth 11/26/2000.At that Heather told Detective Lambrecht that Walter had having been interested in intercourse with daughters both of her for the last years. three Heather stated throughout day that 1, 2013, April on prodding Walter had been Heather to him allow to have sexual intercourse with F.G. Heather point stated that at one she went to one of the other rooms were brought [sic] F.G. was and her into the bedroom that Heather shared with Walter and sat with her on the bed. Heather stated that Walter was prepared, lying on the under bed the covers. Heather stated that Walter then told F.G. to take offher clothes at which time Heather remained on the bed while engaged digital F.G., Walter penetration of Walter had engage him, F.G. in oral ultimately sex with Walter had sexual intercourse with placing F.G. his penis vagina. inside her Heather stated she remained on the bed the whole time. Walter finished and left F.G. the room to take a following shower with Heather her into the bathroom.

Complainant alleges further that all the above stated Ozaukee, events County occurred State of Wisconsin.

Based foregoing, complainant on the believes this complaint to be true and correct. charges

¶ 58. I examine Count first. It Heather protect act, Steinhart with failure to is, failure to a child from sexual assault in violation of Wis. Stat. 948.02(3), provides which as follows: (3) person to act. A responsible for the welfare Failure

of a child age years who has not attained the of 16 is knowledge

guilty felony person F if that of a Class has have, person that another intends having is or has or sexual contact with the child, sexual intercourse had emotionally capable taking action physically is prevent which will the intercourse or contact from to take that action taking place being repeated, or fails exposes to act the child to an unreason- and the failure may able risk that intercourse or contact occur between the inter- person the child and the other facilitates course or contact that does occur between the child and the other person. ^[3] (Emphasis added.) charges regard 59. With to Count which f 948.02(3), alleged § violation of Wis. Stat. the facts fall language charged squarely in the of the offense. The probable part complaint clearly cause of the states that Heather is the mother the Steinhardt of assaulted child. disputes responsible one that a mother No as she is for "knowledge" the welfare of the child. She had Walter wanted to have sexual intercourse4 or sexual April 1, 2013, contact5 with her child. On Heather Steinhardt succumbed to Walter's wishes. She failed to complaint statutory The stated the offense in count 1 as follows:

Count 1: FAILURE TO PROTECT A CHILD Monday, 01,2013, April The above-named defendant on or about in Fredonia, County, Wisconsin, person the Town of Ozaukee as a responsible age sixteen, FG, for the welfare of a child under the of 11/26/2000, knowledge person DOB with that a intended to have child, [sic] sexual sexual contact with said did fail to taire action to prevent the contact and an sexual created unreasonable risk of the 939.50(3X0 948.02(3), occurring, contrary sexual contact to sec. Stats., Felony, may upon F Wis. a Class conviction be fined not ($25,000), Twenty imprisoned more than Five Thousand Dollars (12) (6) years months, not more than twelve and six or both. 939.22(36). "Sexual in intercourse" is defined Wis. Stat. § 939.22(34). "Sexual contact" is defined Wis. Stat. § prevent taking take action to place April by failing the sexual assaults from daughter on to remove her ato away place grasp (instead, safe from Walter's she bedroom). brought the child into Walter's This failure exposed to take action to an child unreasonable may By risk that intercourse or contact occur. act sitting ongoing on bed she facilitated sexual nothing stop assaults, and she did them.

¶ 60. Heather conduct, Steinhardt's whether de- noted "acts of omission" or plicitly of commission," "acts ex- 948.02(3)'s

falls within the text of Wis. Stat. prohibition failing act, on violation which constitutes Count 1. opinion majority

¶ 61. The declares that the act sitting during on Walter's bed the assaults is an act constituting of omission Count 1. charges

¶ 62. I now consider Count Count first-degree party sexual assault of a child under 13 as 948.02(l)(e) §§ to a crime violation of Wis. Stat. provide: 939.05, which

Wis. Stat. 948.02 Sexual assault of a child. degree

(1) First sexual assault. (e) Whoever has sexual contact or sexual intercourse a person age years with who not the has attained of guilty felony. is of a Class B

Wis. Stat. 939.05 Parties to crime. (1) Whoever is a concerned the commission of crime principal may a and charged is be with and convicted although of the person commission of the crime the did directly although person not commit it and the who directly committed it has not been convicted or has degree the of of some other of crime or

been convicted the act. some other crime based on same (2) A in the of the person is concerned commission person: crime if the

(a) crime; Directly commits or (b) it; Intentionally aids and abets commission (c) conspiracy Is a with another to commit party a to .6 it... regard of a to Count sexual assault With complaint party crime, the relies

child under 13 as to a namely facts as those on the same facts does Count probable fall forth cause section. These facts set squarely 948.02(l)(e) §§ the text of Wis. Stat. within 948.02(3). as within the text of 939.05, and as well probable part complaint 64. The cause f clearly intentionally states that Heather Steinhardt by failing aided to and abetted Walter's sexual assaults grasp take to remove the child from Walter's action by bringing In the child into Walter's bedroom. failing by sitting to do addition, anything on Walter's bed and stop Walter's assaults, she facilitated statutory in Count as complaint The states the offense follows: - Count DEGREE CHILD SEXUAL ASSAULT CON- 2: 1ST - A A

TACT A CHILD UNDER AGE 13 AS PARTY TO WITH CRIME 01, 2013, Monday, April The defendant above-named on or about Fredonia, Wisconsin, County, party in the Town of Ozaukee as crime, person to a did have sexual with a who has not contact thirteen, 11/26/2000, age FG, contrary to sec. attained the DOB Stats., 948.02(l)(e), 939.50(3)0»), Felony, 939.05 Wis. Class B may upon imprisonment be to a term of conviction sentenced (60) years. sixty not exceed ongoing sexual assaults. Heather Steinhardt had the duty opportunity protect and child. Heather conduct, Steinhardt's whether denoted "acts of omis- explicitly sion" or "acts of commission," falls within the 948.02(l)(e) §§ text of Wis. Stat. 939.05, and the viola- tion of which constitutes 2.7 Count majority opinion The 65. declares that the act bringing the child into Walter's bedroom is an act of constituting commission 2. Count majority opinion 66. The concludes, without f analysis explanation, or that had Heather Steinhardt charged "only violating been with one count of 948.02(l)(e) § act, based on one she could been have 948.02(l)(e) 948.02(3), convicted either not but Majority op., opinion majority both." 32. The neither f explains hypothetical authority this scenario nor cites interpretation for this of the statutes. In sum, text of statutes and the text

f complaint of the demonstrate that 1 2 Counts and are supported by I the same facts. therefore conclude that (as law) the two counts are identical in fact well as in multiplicitous. legislature clearly and are The it stated 7 aiding Heather Steinhardt's conduct constituted and abetting. aiding The court abetting described and as follows Tourville, WI 17, 49-50, State v. 367 Wis. 2d ¶¶ N.W.2d 735: crime, In to aid only order and abet a need defendant be

willing participant. Marshall, 101, 122, State v. 2dWis. (1979)). participation N.W.2d "Such as would constitute aiding abetting require does not even that the defendant be present during perform [crime]." "One Id. need not an act which would constitute an essential element of the crime in order only necessary to aid and abet that It crime. is that he undertake (either overt), some conduct objective verbal or which as a matter of person crime, fact aids another in the of a execution consciously that he desire or intend his conduct will in fact yield such assistance." Id. offenses based two counts for not intend that these did charged two subsections under the same facts on single lead to convictions. See statute would two of a 939.66(1), (2p). Stat. Wis. multiplicity

¶ Count issue involves 68. Another majority opinion, ¶¶ 36-41, concludes that 3. The setting forth the crime of in the information 3 Count supra, multiplici- n.2, enticement, 56 is not see child f tous. argues reply

¶ brief 69. Heather Steinhardt's approach light to the facts novel in the State's that in law but is court, 3 is not identical in this Count by supported multiplicitous 3 the Count is because Reply Brief as 2. See Steinhardt's conduct Count same may support single or course of conduct at 8. A act legislature multiple intended there if the convictions protect multiple interests of "to different be convictions DeRango, public." 229 or the See State v. the victim (Ct. 1999); App. 16, State v. 1, 2d 599 N.W.2d Wis. Patterson, 599, 790 130, 329 Wis. 2d N.W.2d WI 909. disputes

¶ that Count 3 is based on 70. No one probable forth in the cause course of conduct set the complaint. in This course of conduct the statement supports all three counts. 948.07(1), the State 71. Under Wis. Stat. prove that accused a child who has

must the caused years go age the into a room with attained not contact or sexual intercourse intent to have sexual supra; Church, v. n.2, State the child. See with (Ct. 1998) App. N.W.2d 638 223 Wis. 2d ("The completed, however, when crime of enticement is go attempts person child to any to a causes, cause, a or place, regardless of the in- of whether secluded completed attempted."). illegal is ever tended acts alleged probable part ¶ 72. The in facts cause complaint squarely language of the fall within the charged complaint clearly offense Count 3. The go states that Heather Steinhardt caused the child to into a room with the intent that Heather Steinhardt party sexually aid and abet Walter as a to the crime of assaulting the child. I conclude that the instant case three

f convictions based on Heather Steinhardt's same course period of conduct over brief of time contravene the community same interests of the victim legislature protecting the was in all three All offenses. protect community three statutes the child the against the of seriousness sexual assault of a child. building, "Enticement of a child a vehicle, room, to or place protec- other secluded isolates a child from the public. provides opportunity, tions the of It the also substantially person detection, with less risk for the purposes to exercise force and control over the child for gratification." Hanson, of sexual State v. 182 Wis. 2d (Ct. (internal 1994) App. 481, 487, 513 N.W.2d 700 omitted). quoted citations and source My ¶ 74. review of the text of the statutes, statutory legislative history, the nature of the statutorily proscribed conduct, Heather Steinhardt's appropriateness conduct, brief course of and the multiple punishments supports that the conclusion legislature did not intend three convictions in the in protect stant case. The three statutes the same interests community. multiplici- victim and the Count 3 is Church, tous. The instant case more is like State v. 223 (Ct. 1998), App. 641, 648, 2d Wis. 589 N.W.2d638 review improvidently granted, Church, dismissed as v. State (the WI Wis. 2d 613 N.W.2d 848 facts separated on which the convictions were based were not nature), significantly v. in than State in different time (1999) DeRango, 1, 14-17, 2d 599 N.W.2d 27 Wis. (the legislature two statutes and offenses created two protect intending the victim or different interests of public).

II the three counts One indicator of whether 75. elapsed how much between fact is time are identical "acts." complaint to how much The is silent as 76. f during passed Steinhardt's and between Heather

time like this.8 "acts." Time is a factor cases majority opinion disregards time The 77. f stating it from the that is "unable determine factor, complaint exactly criminal how much time facts in the Majority op., elapsed ¶ 19. no True, here." but there is any complaint that in the considerable indication bringing passed Heather's amount of time between and the assaults. child into Walter's bedroom Eisch, 25, 31, 2d In v. 96 Wis. State (1980), from the record the court surmised N.W.2d period place over a that the sexual assaults took court did exceed two and one-half hours. The not period relatively time as "a short characterized this period." court stated that this "rela- The Eisch also tively significant enough period" "not short time was 8 M.D., 162, 170, v. Wis. 2d 542 N.W.2d State Carol 198 See (Ct. 468, 475, 1995); Hirsch, App. v. 140 Wis. 2d State (Ct. 1987); M. & Michael App. N.W.2d 638 Tobin, Christine Wiseman and Procedure 9 WisconsinPractice: Criminal Practice (2d 2008) ("Whether there is difference in fact 15:6 ed. time, separated the in depends upon whether offenses are nature, significantly separate in or involve volitional different acts."). controlling." make the time Eisch, interval alone 2d 31, Wis. at 33. Heather Steinhardt's acts were not separated by significant enough period of time to controlling make the time interval in the instant case. complaint I surmise from the that leading charged "acts" to the three in offenses significantly instant case occurred over a shorter time they patently than two and one-half part Indeed, hours. are episode. of the same Heather Steinhardt's conduct constituting charged the three offenses arose out of one period continuous course of conduct within a brief time.9 complaint 80. The makes clear that Heather

f planned participation Steinhardt and Walter her in April plan sexual assaults on 2013. The was that perform during she the same role before and the sexual assaults, that of facilitator. Heather Steinhardt's con- single duct consisted of a volitional act. She did not reconsider her course of conduct. Heather Steinhardt's contrary argument, conduct, course of to the State's continuously inflicted the same humiliation and emo- (Ct. Hirsch, 468, 475, State v. 140 Wis. 2d 410 N.W.2d 638 1987) ("Given frame, App. say time the short we cannot that the defendant had sufficient time for reflection between the assault (internal herself.") again quotation ive acts to commit marks (D.C. omitted); States, Irby v. United 390 F.2d 437-38 Cir. 1967) ("If (Leventhal, J., concurring) at the scene the crime can said the defendant be to have realized that he has come to road, a fork in nevertheless decides to invade a different interest, subject then his successive intentions make him punishment, accepting cumulative and he must be treated as not."). risk, whether he fact knows of it or Tobin, See M. Christine Wiseman & Michael 9 Wisconsin (2d Practice: Criminal Practice and Procedure 15:6 ed. 2008) ("Whether depends upon there is a difference in fact separated time, significantly whether are offenses dif- acts."). nature, separate ferent in or involve volitional pain daughter.10 danger physical and her tional and throughout un- the time at issue was Her rea mens single purpose varying; and a intent she demonstrated exposing taking the child into Walter's bedroom to Walter's sexual assaults. the child underlying three sum, the facts 81. In f relatively during period place a short counts took during single conduct a course of time and constituted (and not) could not did Heather Steinhardt which engage change separate mens volitional her rea Compare M.D., 162, 2d v. Carol 196 Wis. acts. State (Ct. 1995), App. in which the defen- 542 N.W.2d 476 as a result of of several offenses dant was convicted making numerous occasions conscious decision on 1, with Counts to leave the child alone the assaulter. fact in instant case. The 2, and are identical in legislative conviction, not intent is that there be one 939.66(1), §§ three, case. See Wis. Stat. in the instant (2p).

III regard majority 2, the With to Counts 1 and by approach opinion adopts the taken the State novel (to objects vigorously in this which the defendant court position significantly from the State's because it differs appeals). The and court of taken in the circuit court majority opinion Stein- "slices and dices" Heather constituting single single hardt1 act course s volitional WI 73, 77, 342 Ziegler, Wis. 2d In State v. punishments were the court held that cumulative N.W.2d conduct "re appropriate aspect when each defendant's danger humiliation and on sulted in a new different part of child." multiplic acts, crimes,

of conduct into two three and a ity problem.11 majority opinion

¶ 83. The describes Heather consisting Steinhardt's conduct as of two "acts" for purposes sitting of Counts 1 and 2: The of act on the according majority opinion, becomes, bed to the "an act protect of omission" that constitutes Count failure to bringing a child from assault; sexual the act of the according child becomes, into Walter's bedroom to the majority opinion, "an act of commission" that consti- first-degree tutes Count sexual assault of a child party Majority op., ¶ under 13 as to a crime. majority opinion identify 84. The does not f "act" that is the basis of Count I3. assume from the taking criminal information that the act relates to child into Walter's bedroom. (in parlance

¶ 85. The word "act" common and as by majority opinion) "process used means the doing something" "performing something." Thus, or according majority opinion, to the Heather Stein- doing perform- hardt's criminal conduct consisted of ing something or (which omission") it labels an "act of (which doing performing something else it an labels commission"). "act of majority opinion's

¶ 86. The commission/ omis- approach quicksand. difficulty, sion rests on With little usually the same conduct in can be classified terms of (act commission) both malfeasance and nonfeasance (act omission). majority opinion's cursory response For the to Heather arguments judicially

Steinhardt's that the State should be estopped taking position contrary from in this court to the position appeals, it took the circuit court court of majority op., see 18 n.4. sitting during instance, 87. For on Walter's bed (which majority opinion

the sexual assaults char- omission) acterizes as an act of can be restated an as staying act of commission—Heather Steinhart's sitting during Walter's room and on the bed the as- saults facilitated the assaults. Bringing

¶ 88. the child into Walter's bedroom (which majority opin- for Walter's sexual assaults commission) ion characterizes as an act of can be restated as an act of omission—Heather Steinhardt way. failed to remove the child from harm's difficulty ¶ 89. For a discussion of the of distin- guishing of acts commission and omission, see 2 Dan B. Hayden, Dobbs, Paul T. & Ellen Bublick, M. The Law (2d 2011) ("[N]o Torts ed. rule has been of formulated to prescribe whether courts are to charac- terize conduct as affirmative action with an embedded non-action."); simple Page omission asor W. Keeton et (5th al., Prosser and 56, Keeton on Torts at 373-75 ed. 1984) ("[I]n theory the difference between two is fairly practice always easy clear; but in it is not to draw say passive."); the line and whether conduct is active or Fleming Scope Duty Negligence James, Jr., Cases, (1953) ("Often 47 Nw. U. L. 778, Rev. the same conduct could be described as either one or the other [that omission]"); is, as either an act or Behrendt v. Co., ¶ Underwriters 71, Ins. 2009 WI 54, Gulf (2009) (Abrahamson, 622, Wis. 2d 768 N.W.2d 568 (the concurring) C.J., distinction between misfeasance misleading"); and nonfeasance id., is "tenuous and ("the (Roggensack, ¶ concurring) J., claim made could be characterized as either a failure to act or as an negligently performed, depending act on the lens that opinion applies"); the author of the Pehle v. Farm (10th Co., Inc., Bureau Ins. 397 F.3d Cir. Life 2005) (the misfeasance and non- distinction between can is not useful because the conduct be feasance one).12 either characterized as penalties Resting multiplicitous criminal 90. shaky upon the foundation of "commission" and "omis- case is a cause for concern because sion" the instant largely concepts these are malleable.

IV major- Unfortunately, reasoning of the 91. ity opinion deleterious effects on the admin- will have easily justice. reasoning lead to The can too istration prosecutorial overcharging imposi- offenses and the multiple penalties for a of consecutive criminal tion constituting single course of conduct volitional act majority opinion, single purpose. Under the with charged apparently Steinhardt could be with Heather namely, offenses, an offense for each distinct additional inflicted on the child. intrusion that Walter sexual | 2d at case, In the Eisch 96 Wis. prosecutor's charging upheld defendant court assault; the court viewed each with four acts of sexual body a different intrusion on the sexual assault as committed three different the victim. Here Walter apparently child and Heather sexual intrusions on the charged party might to a crime for be with Steinhardt each assault. 12 may special sig and "nonfeasance" have "Malfeasance" See, 2 "no-duty," "special relationship" e.g., cases. nificance in Bublick, Dobbs, Hayden, M. The Law Paul T. & Ellen Dan B. (2d 2011); al., Page Keeton et Prosser and 406 ed. W. Torts § (5th James, 1984); Fleming 56, ed.

Keeton on Torts at 373-78 Cases, 778, L. Rev. Jr., Scope Duty Negligence 47 Nw. U. (1953). charge

¶ supports 93. Each of a sexual assault its penalty multiple own and the sentences for assaults question can be consecutive. Areal exists whether it is fundamentally charging fair to allow such and sen- tencing in the instant case when Heather Steinhardt's place relatively course of conduct took over a brief period part episode.13 of time and was all of the same

* * * * contrary majority opin- I conclude, to the ion, that the three counts are identical in fact and that legislature multiple did not intend convictions in legislature Moreover, instant case. did not 2, intend that Counts 1 and which law, are identical in would result in two convictions for two iden- offenses single tical fact under two subsections of a statute. 939.66(1), (2p). Accordingly, See Wis. Stat. I would appeals reverse the decision of the court of and the order of the circuit court. I would remand the matter to the circuit court to vacate the convictions on Counts proceedings and 3 and for further this consistent with dissent. Accordingly,

¶ 95. I dissent. ¶ 96. I am authorized to state that Justice ANN joins dissenting opinion. WALSH BRADLEY this objection For an charging multiple for violations of a single statute, Pal, 54, see State v. 2017 WI 374 Wis. 2d (Kelly, J., 893 N.W.2d concurring).

Case Details

Case Name: State v. Heather L. Steinhardt

Court Name: Wisconsin Supreme Court

Date Published: Jun 21, 2017

Citation: 896 N.W.2d 700

Docket Number: 2015AP000993-CR

Court Abbreviation: Wis.