PUBLISHED OPINION
Case No.: 95-1484-CR
†Petition for
Review filed.
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
KEVIN G. VINJE,
Defendant-Appellant.†
Submitted
on Briefs: January 17, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: March 21, 1996
Opinion
Filed: March
21, 1996
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Robert
A. DeChambeau
so
indicate)
JUDGES: Dykman, Sundby and Vergeront, JJ.
Concurred:
Dissented: Sundby,
J.
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the briefs of Margaret A. Maroney, assistant
state public defender.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of James E. Doyle, attorney general and
David J. Becker, assistant attorney general.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED March
21, 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. 95-1484-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KEVIN
G. VINJE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: ROBERT A.
DE CHAMBEAU, Judge. Affirmed.
Before
Dykman, Sundby, and Vergeront, JJ.
DYKMAN,
J. Kevin G. Vinje appeals from a
judgment convicting him of one count of disorderly conduct, contrary to
§ 947.01, Stats., and one
count of intimidation of a victim, contrary to § 940.44(1), Stats.
The convictions grew out of a domestic dispute with his wife, Mary. Kevin argues that his conviction for
intimidation of a victim should be reversed.
He claims that because the crime of disorderly conduct does not require
a victim, he cannot be convicted of intimidating a person who witnesses, but is
not a victim of, the disorderly conduct.
We conclude that while the crime of disorderly conduct does not require
a victim, when the defendant's actions are directed against a person, that
person is a victim of the crime of disorderly conduct. Accordingly, we affirm.
BACKGROUND
On
August 16, 1994, Kevin and Mary Vinje spent the evening moving Mary's brother
into a new apartment. Upon returning
home, the couple began to argue and pushed and shoved one another. Eventually, Mary called the police on a
cordless telephone while Kevin was speaking with Mary's mother in the
kitchen. Mary did not tell Kevin that
she was calling the police. Kevin
grabbed the telephone, threw it and left the home.
Two
police officers arrived at the home in response to Mary's call. Mary described the incident to one of the
officers and signed a no-contact provision which would give Mary twenty-four
hours of separation between herself and Kevin.[1] The officer told Mary that the provision
would not go into effect until after Kevin was arrested and to call the police
if he returned.
Later
that evening, Kevin returned home. He
knocked on the back door and then pushed it in, damaging it. Mary, who was in her bedroom, closed the
bedroom door but Kevin pushed it open, again causing damage. Mary grabbed the telephone, called the
police and told them, "He's back."
Kevin allegedly commented, "I suppose you are on the phone to 911,
where are your friends, where are your friends now?" Kevin disconnected the telephone but he
claims that he did not know to whom Mary was talking.
Several
police officers arrived at the home and one came in to talk to Mary. One officer looked in a window and observed
Kevin shoving Mary. The officers
arrested Kevin and took him to the county jail. He was later charged with one count of disorderly conduct and one
count of intimidation of a victim.
After a jury trial, he was convicted of both charges. Kevin appeals.
STANDARD OF REVIEW
To determine whether a
person who is convicted of disorderly conduct may also be convicted of
intimidation of a victim requires us to construe §§ 940.41(2), 940.44 and
947.01, Stats. Statutory construction is a question of law
which we review de novo. State
ex rel. Frederick v. McCaughtry, 173 Wis.2d 222, 225, 496 N.W.2d 177,
179 (Ct. App. 1992). The purpose of
statutory construction is to ascertain the legislature's intent and give it
effect. Id. In discerning that intent, we first resort
to the language of the statute itself. Kelley
Co., Inc. v. Marquardt, 172 Wis.2d 234, 247, 493 N.W.2d 68, 74
(1992). "If the language of the
statute clearly and unambiguously sets forth the legislative intent, it is the
duty of the court to apply that intent to the case at hand and not look beyond
the statutory language to ascertain its meaning." Id. In addition, we avoid an interpretation which yields an
unreasonable result or renders any of the statutory language superfluous. Frederick, 173 Wis.2d at 226,
496 N.W.2d at 179.
DISCUSSION
Section
947.01, Stats., prohibits
disorderly conduct and provides:
"Whoever, in a public or private place, engages in violent,
abusive, indecent, profane, boisterous, unreasonably loud or otherwise
disorderly conduct under circumstances in which the conduct tends to cause or
provoke a disturbance is guilty of a Class B misdemeanor." The statute does not proscribe all conduct
which tends to annoy other persons, but that which reasonably offends the sense
of decency or propriety of the community.
State v. Zwicker, 41 Wis.2d 497, 508, 164 N.W.2d 512,
517-18 (1969). Thus, the conduct at
issue may, but need not, be directed at a person or persons.
Section
940.44, Stats., proscribes
intimidation of a victim and provides:
[W]hoever
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.
For the purpose of this statute, victim means "any
natural person against whom any crime as defined in s. 939.12[, Stats.,] or under the laws of the
United States is being or has been perpetrated ... in this state." Section 940.41(2), Stats.
In
this appeal, Kevin admits that he committed disorderly conduct at his home on
the evening in question. But Kevin
argues that Mary was not the victim of this crime because disorderly conduct does
not require the criminal actions to be directed at any person. He concludes that he cannot be convicted of
intimidation of a victim when the underlying crime has no victim. Stated differently, because Mary is not a
person against whom any crime was perpetrated, see § 940.41(2), Stats., she is not a victim. We disagree.
For
a jury to convict Kevin of intimidation of a victim, it must be satisfied that
Mary was the victim of a specific crime.
State v. Thomas, 161 Wis.2d 616, 623-24, 468 N.W.2d 729,
731-32 (Ct. App. 1991). In Thomas,
we affirmed a conviction for intimidation of a victim even though the defendant
was acquitted of the underlying crime of burglary because there was sufficient
evidence to support the jury verdict. Id.
at 628-31, 468 N.W.2d at 734-35. We
explained that an inconsistent verdict does not require a reversal since there
is no way of knowing whether the inconsistency is the result of leniency,
mistake or compromise. Id.
at 631, 468 N.W.2d at 735.
Similarly,
in State v. Connelly, 143 Wis.2d 500, 421 N.W.2d 859 (Ct. App.
1988), a case involving a trial court's power to impose restitution under
§ 973.09(1), Stats.,
1988-89, we concluded that a court may order a defendant who is convicted of
delivering a controlled substance to pay restitution to the police even though
the crime does not require a victim. In
so doing, we explained that the sale of narcotics is not a victimless crime and
that society may be no less a victim of this type of criminal conduct than an
individual who may be more directly harmed.
Id. at 504, 421 N.W.2d at 861.
While
we recognize that there may be cases in which there is no victim of disorderly
conduct, this case is not one of them.
The plain language of the disorderly conduct statute does not require a
victim. That does not mean, however,
that a person may not be a victim of such conduct. We believe that if the disorderly conduct is directed at a
person, then that person is the victim of disorderly conduct as a matter of
fact for the purpose of prosecuting a defendant with intimidation of a victim. Thus, whether a person is a victim of
disorderly conduct will proceed on a case-by-case basis for a determination of
whether the disorderly conduct was directed at another person.
To
the extent that Kevin admits and a jury found that he committed disorderly
conduct on the night of August 16, 1994, we may accept the facts that show
that Kevin verbally and physically fought with Mary, and that as he attempted
to find her in the house, he shoved in two doors, causing damage to them. There is no doubt that Mary was the victim
of this disorderly behavior since it was directed at her. Therefore, his actions taken to prevent her
from contacting the police constituted intimidation.
But
Kevin also asserts that this very conclusion leads to absurd results which we
should avoid. Frederick,
173 Wis.2d at 226, 496 N.W.2d at 179.
He claims that if we determine that Mary was the victim of disorderly
conduct, then every person who observes a public disturbance will be afforded
the rights of victims set forth in ch. 950, Stats. He argues that
this would have a detrimental financial impact upon counties which are
responsible for the enforcement of victims' rights.
The
legislature intends that all victims of crimes are to be treated with
respect. Section 950.01, Stats.
Under § 950.045, Stats.,
victims of crimes may oppose a criminal's parole or pardon application and may
be notified of a criminal's release on parole.
Under § 950.05, Stats.,
counties are encouraged, but are not required, to provide various victim
services. Victim is defined as "a
person against whom a crime has been committed." Section 950.02(4), Stats. According to the attorney general, ch. 950
applies even when a defendant has been convicted of a crime which ordinarily
presents no victims. 79 Op. Att'y Gen.
1, 5 (1990). The attorney general
opined that if there is "an identifiable person against whom a crime has
been committed, the notice requirements of section 950.04(1)[, Stats.,] apply."
There
may be some circumstances where disorderly conduct is directed against a large
group of individuals. But we are not
persuaded that if all of these people are considered victims, protecting their
rights under ch. 950, Stats.,
will be costly. Thus, without more,
Kevin's concern that there will be large awards for victims of disorderly conduct
is speculative at best. Accordingly, we
affirm.
By
the Court.—Judgment affirmed.
No. 95-1484(D)
SUNDBY,
J. (dissenting). Disorderly conduct under
§ 947.01, Stats., is a
victimless crime against society. 1953
Wis. Bill No. 100, A., Comment to proposed § 347.01, Stats. (now § 947.01, Stats.). Therefore, defendant's conviction for violating the intimidation
of a victim statute, § 940.44, Stats.,
must be reversed.
The
introductory paragraph of the latter statute provides: "[W]hoever knowingly and maliciously
prevents or dissuades, or who attempts to so prevent or dissuade, another
person who has been the victim of any crime ... from ...." (Emphasis added.)
Section
947.01, Stats., provides:
Whoever, in a
public or private place, engages in violent, abusive, indecent, profane,
boisterous, unreasonably loud or otherwise disorderly conduct under
circumstances in which the conduct tends to cause or provoke a disturbance is
guilty of a Class B misdemeanor.
A
person may be found guilty of disorderly conduct even if the conduct is not
directed at any specific individual or individuals. All that is required is that the conduct "tends to cause or
provoke a disturbance." The
"victim" is the public peace and good order. See Teske v. State, 256 Wis.
440, 444, 41 N.W.2d 642, 644 (1950).
The
Criminal Code was substantially revised in 1953-55. The Comment to the disorderly conduct statute states in part:
Only such conduct as unreasonably offends the sense of
decency or propriety of the community is included. This is implicit in the phrase "tends to disturb or annoy
others." The question is not
whether a particular person was disturbed or annoyed but whether the
conduct was of a kind which tends to disturb or annoy others. The section does not protect the
hypersensitive from conduct which generally is tolerated by the community at
large.
1953 Wis. Bill No. 100, A, Comment (emphasis added).
Vinje
calls our attention to a provision of the California penal code, § 415,
which penalizes a person who "maliciously and willfully disturbs
another person by loud and unreasonable noise." 4
Charles E. Torcia, Wharton's Criminal Law § 524, at 180-81 (14th
ed. 1981) (emphasis added). Disorderly
conduct is recognized as a "victimless crime." See Richard S. Frase and Thomas
Weigend, German Criminal Justice as a Guide to American Law Reform; Similar Problems, Better Solutions?, 18 B.C. Int'l & Comp. L. Rev. 317,
320-21 (1995); Richard S. Frase, Comparative Criminal Justice as a Guide to
American Law Reform: How Do the French
Do It, How Can We Find Out, and Why Should We Care?, 78 Cal. L. Rev. 539, 567-68 (1990).
Vinje
also argues, correctly I believe, that an interpretation which would find every
person disturbed by disorderly conduct to be a victim of that conduct would
lead to unreasonable results. Each
person of the general population theoretically affected by defendant's conduct
could claim "victim's" rights under § 950.045, Stats.
In State v. Elson, 60 Wis.2d 54, 61-63, 208 N.W.2d 363,
367-68 (1973), the court relied on the fact that there were ten to fifteen
visitors and five to six patients who observed the conduct of an attorney who
refused to leave a ward at Mendota State Hospital and commented adversely about
the hospital's visiting policy.
According to the State's construction of the disorderly conduct statute,
each of these persons would have been a victim of the conduct and entitled to
notice of the release of a person imprisoned for violating § 947.01, Stats.
The
State could have charged Vinje with an offense insofar as his conduct was
directed at his wife. Section
947.013(1m)(a), Stats., provides:
Whoever, with intent to harass or intimidate
another person, does any of the following is subject to a Class B forfeiture:
(a) Strikes,
shoves, kicks or otherwise subjects the person to physical contact or attempts
or threatens to do the same.
When
the legislature has made conduct against a specific person or persons an
offense, it has said so. For example,
ch. 940, Stats., enumerates
crimes against the life and security of other persons and ch. 948, Stats., lists crimes against
children. I do not believe that the
legislature intended that crimes against public peace and good order should
have as victims all members of the public affected by the offense. The State's suggested construction of the
disorderly conduct statute could plunge the State into the morass of
determining awards for all persons affected by a defendant's conduct. See ch. 949, Stats., AWARDS FOR THE VICTIMS OF CRIMES.
I
would therefore reverse Vinje's conviction for violating § 940.44(1), Stats.