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COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 12, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 96-0831-CR
96-0832-CR
96-0833-CR
96-0834-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
No. 96-0831-CR
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
RUTH WOODRING,
Defendant-Respondent.
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No. 96-0832-CR
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
MICHAEL BREMER,
Defendant-Respondent.
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No. 96-0833-CR
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
KARL MEYER,
Defendant-Respondent.
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No. 96-0834-CR
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
RONALD C. RENKOSKI,
Defendant-Respondent.
APPEALS from orders of
the circuit court for Ashland County:
ROBERT E. EATON, Judge. Affirmed.
LaROCQUE, J. The State appeals orders dismissing one
count of obstructing a law enforcement officer in violation of
§ 946.41(1), Stats., against
Ruth Woodring, Michael Bremer, Karl Meyer, and Ronald Renkoski.[1] The defendants were charged with obstruction
when they refused to identify themselves upon being cited for trespass. The State argues that the circuit court
erred when it ruled that the Wisconsin Supreme Court’s decision in Henes
v. Morrissey, 194 Wis.2d 338, 533 N.W.2d 802 (1995), is controlling and
dismissed the charges. This court
affirms.
The relevant facts are
not in dispute. The defendants were
engaged in protests on the ELF site near Clam Lake when they were approached by
members of the Ashland County Sheriff's Department.[2] As the deputy sheriffs attempted to issue
citations to the defendants for trespass, the defendants refused to give their
names or any other identifying information to the officers.[3] The defendants did not resist or oppose the
officers’ actions in any other way.
Subsequently, the defendants were arrested, taken into custody, and
charged with obstruction. See
note 1.
At her preliminary
hearing, Woodring pled not guilty.
Bremer, Renkoski and Meyer moved to dismiss the complaint. After their motions were denied, Bremer pled
not guilty, while Renkoski and Meyer pled no contest. Both Renkoski and Meyer were found guilty based upon their plea
and the facts alleged in the complaint.
Woodring and Bremer filed another motion to dismiss, which was
denied. However, the State subsequently
alerted the court and the two remaining defendants to the existence of Henes. Based upon Henes, the
court granted Woodring's and Bremer's motions to reconsider the denial of their
motions to dismiss. The court then
dismissed the obstruction charge against both defendants, stating that Henes
was controlling. Renkoski and Meyer
each filed motions to vacate their judgments of conviction and to dismiss the
charge, which the court granted. The
State now appeals these orders.
The obstruction statute
furthers the legitimate State interests of protecting peace officers,
preventing the frustration of the valid enforcement of the law, promoting the
orderly and peaceful resolution of disputes, and detecting and preventing
crime. State v. Hamilton,
120 Wis.2d 532, 535, 356 N.W.2d 169, 171 (1984). Yet, not every barrier placed in the path of an officer gives
rise to a violation of that statute. Id.
Obstructing requires
proof of three elements: (1) that the
defendant obstructed an officer, (2) that the officer was doing an act in his
or her official capacity and with lawful authority, and (3) that the defendant
knew or believed that he or she was obstructing the officer while the officer was
acting in his or her official capacity and with lawful authority. Henes, 194 Wis.2d at 353, 533
N.W.2d at 808. It is the first element
at issue in this appeal. The term
“obstructs” “includes without limitation knowingly giving false information to
the officer or knowingly placing physical evidence with intent to mislead the
officer in the performance of his or her duty .... Section 946.41(2)(a), Stats. "To obstruct an officer means that the
conduct of the defendant prevents or makes more difficult the performance of
the officer’s duties.” See Wis J I—Criminal 1766.[4]
Because this case
involves the application of the statute to undisputed facts, this court reviews
the trial court’s order de novo. State
v. Cornelius, 152 Wis.2d 272, 276, 448 N.W.2d 434, 435 (Ct. App.
1989). Penal statutes are to be
strictly construed in favor of the accused.
State v. Schaller, 70 Wis.2d 107, 110, 233 N.W.2d 416, 418
(1975). Nevertheless, a strict
construction shall not be used to defeat the legislature’s intent with regard
to the statute. State v. Tronca,
84 Wis.2d 68, 80, 267 N.W.2d 216, 221 (1978).
In dismissing the
obstruction charge against the defendants, the trial court relied upon Henes. This court reads Henes to hold
that the obstructing statute does not permit a prosecution for obstructing an
officer under § 946.41, Stats.,
for refusing to identify himself or herself to a police officer. Henes examined this issue in
context of an appeal by two law enforcement officers who invoked a defense of
qualified immunity in a 42 U.S.C.
§ 1983 action brought against them by the plaintiff, whom they had
arrested for refusing to identify himself following a Terry v. Ohio,
392 U.S. 1 (1968), stop. Id.
at 343, 533 N.W.2d at 804. We read Henes
to provide that mere silence, standing alone, is insufficient to
constitute obstruction under § 946.41.
Id. at 354, 533 N.W.2d at 808.
The State would have us
distinguish Henes on grounds that the subject in that case was
merely a suspect under preliminary criminal investigation, while the subjects
in this case were actually validly arrested for a violation of the law.[5] This court concludes that it would require a
strained reading of Henes to suggest that the obstruction statute
distinguishes between a person detained on reasonable suspicion, who need not
comply with a demand to provide identity, and a person detained on probable
cause, who must identify himself or herself.
This is not this court’s reading of Henes.
Having concluded that Henes
is controlling, it is unnecessary to address the constitutional questions
raised.
By the Court.—Orders
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1] Section 946.41(1), Stats., states as follows:
Whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority, is guilty of a Class A misdemeanor.
[2] All defendants except Meyer were arrested after a protest on August 6, 1995, while Meyer was arrested after a similar protest on August 7, 1996.
[3] Section 943.13, Stats., prohibits trespass to land and states that a violation is a Class B forfeiture. Section 778.26, Stats., describes the citation procedure for violation of that section.
[4] The Wisconsin Jury Instructions Committee's
comments to Wis J I—Criminal
1766 states:
In the Committee's judgment, a
refusal to answer questions, by itself, should not be considered
"obstructing an officer" in violation of § 946.41. The history of Wisconsin's statute shows
that the type of conduct covered has been broadened substantially over the
years to extend well beyond the "direct, forcible resistance"
required by previous versions of the statute.
Further expansion to cover simple refusal to answer questions should be
done, if done at all, only by direct and carefully focused legislative
action. (Citation omitted.)
While this court is not bound by the comments contained in the Wisconsin Jury Instructions, the committee's work is respected as "the product of painstaking effort of an eminently qualified committee of trial judges, lawyers, and legal scholars" and is therefore persuasive. State v. Gilbert, 115 Wis.2d 371, 379, 340 N.W.2d 511, 515 (1983).