¶ 38. (concurring). Construction projects are not usually started and finished in a day. Excavators, concrete contractors, installers of rough plumbing, framers and roofers arrive on a job in a rough sequence, finish their work, and expect to get paid, usually in thirty days or so. The majority's inter*396pretation of Wis. Stat. § 779.02(5) (2001-02)1 makes for chaos and consternation in the construction industry because a contractor who happens to do some work as a subcontractor on a project cannot pay either himself or herself or the other subcontractors until the end of the project. That is not how things work in the real world. Subcontractors are not all treated alike. The excavator expects to be paid before the interior painter, and usually is. There is no difference, in terms of damage, between the concrete subcontractor who is paid his or her total contract price upon completion of his or her work and the contractor who subcontracts the concrete work to himself or herself and is paid for the work. In either instance the owner has gotten his or her money's worth, despite having paid a profit to whichever subcontractor did the work. In both cases, the owner is protected from paying a subcontractor twice. In both cases, the profit necessary to a successful business is paid, along with material costs. Businesses do not work for long without a profit. Yet, the majority distinguishes between a contractor/subcontractor's labor and his or her profit. Section 779.02(5) makes no such distinction. Apparently, a contractor can dig holes, saw wood, pound nails and be paid for doing so without fear of criminal prosecution, but if somehow this appears to be a profit, criminal liability results. And apparently, a contractor can pay for subcontractors' labor and materials but fail to pay for their profit without incurring criminal liability.
¶ 39. The majority requires a new way of doing business for small contractors who subcontract to themselves some of the actual work on a project. Until a contractor is certain of a project's financial success, and *397the amount or percentage of the amount to pay all contractors, he or she must withhold paying at least a substantial part of each subcontractor's invoice for fear of paying one subcontractor more than another and risking a criminal penalty. Expeditors rather than small contractors will become the business model. A bidding mistake by a small contractor/subcontractor will always result in potential criminal liability if the contractor/ subcontractor makes the profit any other subcontractor would have made. Even if all project money remains in the project. And owners will remain no more or less protected than before.
¶ 40. There is an easier and better way. I believe that owners are at least as well protected under the "trust funds must be used on the job" interpretation as under the State's "no profit until the end" interpretation. Because it is unfair to apply criminal penalties under statutes that are unclear, we interpret penal statutes in favor of the defendant. See State v. Jackson, 2004 WI 29, ¶ 41, 270 Wis. 2d 113, 676 N.W.2d 872. "This rule of lenity generally establishes that ambiguous penal statutes should be interpreted in favor of the defendant." Id. That is what I would do. Since Wis. Stat. § 779.02(5) is silent as to the criminal liabilities of contractors who also act as subcontractors for a small part of a project, I conclude that contractors are not prohibited from also acting as subcontractors on a project. I also conclude that all subcontractors should be treated alike, at least as far as § 779.02(5) is concerned. Therefore, Matthew Keyes cannot be criminally prosecuted under this statute for subcontracting a part of the Wettstein's project to Angela Keyes, and paying her the subcontract amount after she performed the subcontract.2
*398¶ 41. The majority rejects this analysis because it believes that the second condition necessary for the rule of lenity has not been met. The first condition is that the statute is ambiguous. State v. Setagord, 211 Wis. 2d 397, 414-15, 565 N.W.2d 506 (1997). The majority and I agree that it is. The second condition is that we are unable to clarify the intent of the legislature by resort to legislative history before we employ the rule of lenity. Id.
¶ 42. What history? What intent?
¶ 43. The majority relies on a statement of legislative purpose in Kraemer Bros., Inc. v. Pulaski State Bank, 138 Wis. 2d 395, 402-03, 406 N.W.2d 379 (1987). The problem with the majority's reasoning is the purpose the court found in Kraemer Bros, is not remotely related to the issue we address today. Kraemer Bros. was a dispute between Kraemer Bros., a contractor, and a bank over money Weslow, a subcontractor to Kraemer Bros., had deposited in the bank. Id. at 397-99. The money was traceable to money Kraemer Bros, paid to Weslow. Id. When Weslow went into receivership, the bank applied the money to Weslow's debt to it, leaving Weslow's suppliers unpaid, but with potential liens against the project which Kraemer Bros, would have to pay. Id. Kraemer Bros, argued that it was unfair to make it pay for the supplies twice. See id. The bank argued that because Kraemer Bros., and not the owner of the project, had paid the disputed funds to Weslow, the funds were not trust funds. Id. at 400. The supreme court disagreed. It concluded that "reading sec. 779.02(5) to require payment directly from the owner to the subcontractor is not reasonable and is contrary to the purpose of the statute." Id. at 403.
¶ 44. I have no dispute with the Kraemer Bros. analysis. But all that tells me is that a trust fund exists *399no matter who furnishes the funds for a construction project, and that this is the legislative purpose of the statute. I find nothing in Kraemer Bros, suggesting that prime contractors may not act as subcontractors on their projects. The majority, disclaiming an answer to this issue, does not tell us that they may not. So, we are back to where we came in on this issue: What is the legislative intent as to whether prime contractors may also act as subcontractors?
¶ 45. If, as I believe, contractors may also be subcontractors, what legislative history tells us that prime contractors are allowed to pay other subcontractors their entire bills, including profit, but only their own labor and material bills? Where do we see some evidence of legislative intent to make dual purpose contractors/subcontractors criminals if they pay themselves a penny of profit on their subcontract until all others are paid? Owners who agree to pay a contractor/subcontractor a sum that includes a profit ought not to be able to threaten a criminal prosecution when the contractor/subcontractor does exactly what the subcontract requires and gets paid the agreed-upon price. It may be that if money runs out later in the project, a subcontractor will not get paid because previous subcontractors were paid, but that can happen regardless of whether the contractor is also a subcontractor.
¶ 46. If the majority were really serious about applying Wis. Stat. § 779.02(5) to contractors who also subcontract to themselves, it would not permit a contractor to pay himself, herself or itself a dime until everyone else is paid in full. That is also a possible meaning of the statute, though a draconian one. The meaning the majority discerns is a hybrid which will *400focus future litigation on a useless issue — how much profit was built into contractors' and subcontractors' contracts.
¶ 47. The lenity approach is by far the better one. The majority tells us that this approach is precluded by legislative intent, but saying that does not make it so. There is no evidence of that intent in the majority opinion, and Kraemer Bros., though it speaks to a purpose of Wis. Stat. § 779.02(5), only tells us that the legislature intended any funds received for a project to be trust funds regardless of their source. Neither the legislature nor Kraemer Bros, tells us the answer to the question we face here — who can be paid those funds? The majority's conclusion that legislative intent precludes us from employing the lenity doctrine is wishful thinking.
¶ 48. A caveat is necessary here. A contractor/ subcontractor's profits must be reasonable. A contractor cannot circumvent Wis. Stat. § 779.02(5) liability by building an unreasonably high profit into his or her subcontract. And that is why I concur. An accountant testified that Angela Keyes made a profit of seventy-five percent on the items she furnished under her subcontract. While that, without more, would not sustain the State's burden of proof at trial, it is enough to show probable cause to support a bindover. See State v. Dunn, 121 Wis. 2d 389, 397-98, 359 N.W.2d 151 (1984). What constitutes a reasonable profit depends on the industry or business in which the profit is made or, perhaps, the circumstances of the particular contract. If Angela Keyes marked up the items she furnished the Wet-tsteins a reasonable amount, she is not guilty of violating Wis. Stat. § 779.02(5). If the mark-up was significantly unreasonable in amount, and was therefore a theft, she can be found guilty.
*401¶ 49. I agree with the majority's conclusion that probable cause existed to support the trial court's bindover decision. But I differ in how I reach this conclusion. I therefore respectfully concur.
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
I have separated Angela and Matthew Keyes for clarity. They may both be contractors and subcontractors.