PUBLISHED OPINION
Case No.: 95-0791-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
SCOTT T. BIDWELL,
Defendant-Appellant.†
Submitted on Briefs: December 29, 1995
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: February 14, 1996
Opinion Filed: February
14, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If
"Special", JUDGE: MICHAEL FISHER
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the brief of Martin I. Hanson of Hanson, Gasiorkiewicz
& Weber, S.C. of Racine.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Daniel
J. O'Brien, assistant attorney general.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED FEBRUARY
14, 1996 |
NOTICE |
|
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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0791-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
SCOTT
T. BIDWELL,
Defendant-Appellant.
_______________________________________________________________________________
APPEAL
from a judgment of the circuit court for Kenosha County: MICHAEL FISHER, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
ANDERSON,
P.J. Scott T. Bidwell appeals from a judgment of
conviction for second-degree reckless homicide while armed with a dangerous
weapon, and second-degree reckless injury while armed with a dangerous weapon,
contrary to §§ 940.06, 940.23 and 939.63(1)(a)2 and 3, Stats. Bidwell
contends that his automobile is not a dangerous weapon; therefore, the trial
court should not have found him guilty of the dangerous weapon penalty
enhancers. We conclude that Bidwell's
automobile constituted a dangerous weapon under § 939.22(10), Stats.
Accordingly, we affirm the judgment of conviction.
The
criminal complaint alleged that around 1:00 p.m., Bidwell was driving his Ford
Bronco erratically, “weav[ing] back and forth between other vehicles in
traffic.” A witness said that the
driver of the Bronco, after driving left into oncoming traffic, made no attempt
to get back into the right lane. The
complaint continued to allege the following:
[T]he
Bronco crossed over the center line into the southbound lane. A blue Oldsmobile automobile traveling
southbound on 22nd Avenue swerved toward the west ditch but the Bronco didn't
make any attempt to avoid hitting the Oldsmobile which the Bronco struck in the
left rear quarter panel. The Bronco
then went into a ditch and began “to flip side over side.” Mr. Coogan stopped and saw that a white
Dodge was also in the ditch.
Rescue personnel removed seven-year-old Katie Rasch and
her mother, Valeria Rasch, from the white Dodge. Valeria and Katie were taken to the hospital. Valeria was pronounced dead and Katie was
transferred to Children's Hospital in Wauwatosa, Wisconsin. An emergency room physician testified at the
preliminary hearing that Katie suffered from “Bilateral femur fractures to both
of her legs which were broken.”
Bidwell's
alcohol report showed a blood/alcohol level of .202% within forty-five minutes
of the accident. Bidwell entered pleas
of not guilty to one count of second-degree reckless homicide while armed with
a dangerous weapon and one count of second-degree reckless injury while armed
with a dangerous weapon. Bidwell agreed
to waive his right to a jury trial and have the court decide the issue of
whether he should be charged with the dangerous weapon penalty enhancers. Both parties agreed to allow the trial court
to use the preliminary hearing transcript as a factual basis for its
determinations. Bidwell stipulated that
the transcript met the necessary requirements for proving the predicate
offenses in both counts and left for litigation and argument the sole issue of
whether the facts and/or law supported the charge of use of a dangerous weapon
as to both counts. The trial court
subsequently found Bidwell guilty of second-degree reckless homicide while
armed with a dangerous weapon and second-degree reckless injury while armed
with a dangerous weapon. Bidwell
appeals.
Bidwell
argues that his automobile does not constitute a dangerous weapon under
§§ 939.63(1)(a) and 939.22(10), Stats. Whether Bidwell's automobile falls within
the definition of a “dangerous weapon” requires the interpretation of §
939.22(10). The interpretation of a
statute is a question of law which we review de novo. State v. Sinks, 168 Wis.2d 245, 253, 483 N.W.2d
286, 289 (Ct. App. 1992). Because we
conclude that § 939.22(10) is clear and unambiguous for purposes of this
appeal, we need not look beyond the plain language of the statute in reaching
our decision. See Sinks,
168 Wis.2d at 253, 483 N.W.2d at 289.
Section
939.63, Stats., provides in
relevant part:
Penalties;
use of a dangerous weapon. (1)(a) If a person commits a crime
while possessing, using or threatening to use a dangerous weapon, the maximum
term of imprisonment prescribed by law for that crime may be increased as
follows ¼.
Section 939.22(10), Stats.,
defines “dangerous weapon” as:
[A]ny
firearm, whether loaded or unloaded; any device designed as a weapon and
capable of producing death or great bodily harm; any electric weapon, as
defined in s. 941.295(4); or any other device or instrumentality which, in the
manner it is used or intended to be used, is calculated or likely to produce
death or great bodily harm.
Bidwell is correct in asserting that the focus of the
dispute is whether the automobile he used constitutes “any other device or
instrumentality which, in the manner it is used or intended to be used, is
calculated or likely to produce death or great bodily harm.” See id.
Bidwell
argues: “Absent a showing that the
defendant intended to strike Valeria and Katie Rasch with his vehicle, the
deadly weapons statute is inapplicable to this case.” He further contends that “no one even alleges that [he] used or
intended to use his vehicle as a weapon.
He certainly had no intent to harm anyone.”
We
begin by analyzing the relevant phrase “any other device or instrumentality
which, in the manner it is used or intended to be used, is calculated or likely
to produce death or great bodily harm.”
Section 939.22(10), Stats. There are two components in this
phrase: (1) the use component consisting of “in the manner it is used” or
“intended to be used” and (2) the result component consisting of “is
calculated” or “likely to produce death or great bodily harm.” Having a use and a result component requires
that there be a convergence of use and result before any device can become a
dangerous weapon.
Within
each of these two components, there is optional language. As to the result component, the
instrumentality must be either: (1) calculated
to produce death or great bodily harm or (2) must be likely to do the
same. Here, there is little doubt that
Bidwell's behavior in driving drunk and erratically during mid-day traffic was
likely to produce death or great bodily harm.
And, indeed it did. Valeria died
as a result of the accident and Katie's legs were seriously injured.[1] With the result component being satisfied,
we move on to the use component.
Similar
to the result component, the use component can be satisfied by either of two
options. The instrumentality must be
likely to produce death or great bodily harm either: (1) in the manner it is used or
(2) intended to be used. Under
the facts of this case, we conclude that the language “in the manner it is
used” is the applicable phrase. We are
satisfied that the word “manner” is the operative word. The automobile was used in a manner that was
likely to produce death or great bodily harm.
Taking this position, we reject Bidwell's argument that he must have intended
to use his vehicle to produce death or great bodily harm. This portion of the statute does not require
intent and we will not read such a requirement into its plain language.
We
conclude that under the facts of this case Bidwell committed a crime while
using a dangerous weapon. That is, he
used an instrumentality which, in the manner it was used, was likely to produce
death or great bodily harm. We caution,
however, that this determination is saved for the most egregious circumstances.[2] The facts of this case reflect such
circumstances. At the sentencing
hearing, the trial court stated: “Not
only was this a tragedy but it was exacerbated by the prior offenses for which
the defendant stood convicted, all involving driving and drinking.”[3]
The
egregiousness of this case is exemplified in witness testimony. Craig Coogan testified that Bidwell had
pulled up behind him “real close to my rear bumper and stopped kind of crooked”
when he was stopped at a red light.
Coogan stated that Bidwell was “[w]orking his way through traffic, and
he just couldn't keep it in a straight line.
Always moving. Slaloming.” Coogan also testified as follows:
Q And what observations did you make of the
Ford Bronco?
A He was swerving into the shoulder and then
to the center line and onto the shoulder.
....
A This continued north of Highway E, and then
from there he swung onto the shoulder and went across the center line and all
the way across back onto the shoulder, and then back across. The vehicle had to be 3/4ths of a way across
the center line, and I don't think he came back. That's when he struck the first guy.
....
Q What did he do next at that point of
collision?
A He hit the blue car and the blue car
violently spun onto the shoulder and back up onto the road. From there he began to violently flip in a
sideways direction ¼.
....
Q Then what happened?
A He struck something else, and he was pushed,
it would have been another on-coming car, and he was pushed onto the front lawn
or the ditch of the farmhouse.
Additionally, Deputy David Heiring testified as follows:
A I got there, got out of my car, and heard
what sounded like a small child crying somewhere.
Q What did you do?
A It was coming from the white vehicle. I went to the car and got the back door open
and found a girl on the floor.
Q And what was the little girl doing?
A Hysterically crying. Asking for her mother. I just stayed with her until the Rescue
Squad got there.
....
Q And what did you and the little girl talk
about?
A I just tried to comfort her. She kept asking for her mother, and her
mother was in the car. I thought she
was deceased at the time.
Q What caused you to think she was deceased?
A The noises coming from the mother, and no
motion, and the way she was pinned in the vehicle.
We conclude that an automobile may constitute a
dangerous weapon under § 939.22(10), Stats.,
where the evidence exists to charge a defendant with a dangerous weapon penalty
enhancer and the circumstances are egregious.
By
the Court.—Judgment affirmed.
[1] The emergency
room physician testified as to Katie's injuries:
Q Could you just
expand for a minute on the nature of the fractures to Katie Rasch's legs?
A She had
fractures of both of her femurs, her thigh bone, the large bone in her legs,
just above the kneecap, involving her growth plate for both of those legs.
Q Did you say
growth plate?
A Yes.
Q What does that
mean?
A At the end of
the long bones of a child, they have growth panels or physeal plates, and that
is where the bone continues to grow, and the fractures were at those sites.
[2] We agree with
the State's characterization of this case:
This is the case of a drunk driver who operated his car
recklessly for miles in heavy traffic near the City of Kenosha in mid-day with
a blood/alcohol level twice the legal limit.
The appellant was fully aware of the risk as he had been arrested for
drunken and reckless driving several times in the past.
[3] The presentence
investigation report lists Bidwell's prior offenses relating to drunk driving:
On 5/19/84 the defendant was arrested for Operating a
Motor Vehicle While Intoxicated ¼. He was cited
for having a blood alcohol content over .13%.
The defendant was arrested on 10/13/87 when a City of Kenosha Police Officer observed the defendant traveling
in the 7400 block of 28th Avenue at a high rate of speed. He turned west onto 73rd Street in front of
the officer's vehicle and was traveling at a high rate of speed when he slammed
on his brakes at the stop sign at 30th Avenue.
He then pulled out in front of a Chevy Blazer, forcing the Blazer off
the road and onto the sidewalk. The
officer activated his siren and lights but the defendant continued
driving. He eventually stopped in the
3400 block of 75th Street. When the
officer approached the defendant's vehicle, the defendant stated, without being
asked by the officer, that he [had] no driver's license and stated that he was
really drunk. The defendant's blood
alcohol content was measured on that date at .17% and he received the following
citations: Operating a Motor Vehicle
While Intoxicated, 2nd Offense; Operating a Motor Vehicle After Revocation, 2nd
Offense; Operating a Motor Vehicle with Blood Alcohol Content of .10% or Above
and Endangering Safety by Reckless Driving.
According to the Department of Transportation record which was received
by this office, the defendant's driver's license was revoked for five years on
12/9/87 under the classification of a Habitual Traffic Offender. The defendant was again convicted of Operating
While Intoxicated on 2/25/93 as a result of a blood alcohol content violation
on 1/7/93. His driver's license was
suspended for six months. Also
according to the DOT record, the defendant was convicted on 12/15/93 as a
result of a violation on 11/25/93 for Operating Without a License.