2017 WI 62
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP993-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Heather L. Steinhardt,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 367 Wis. 2d 350, 876 N.W.2d 179
(2016 – Unpublished)
OPINION FILED: June 21, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 28, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ozaukee
JUDGE: Sandy A. Williams
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,
J.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner there were briefs
and an oral argument by Nicole M. Masnica, assistant state
public defender.
For the plaintiff-respondent there was a brief and oral
argument by Kevin M. LeRoy, deputy solicitor general, with whom
on the brief was Brad D. Schimel, attorney general, and Misha
Tseytlin, solicitor general.
2017 WI 62
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP993-CR
(L.C. No. 2013CF136)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUN 21, 2017
Heather L. Steinhardt,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of an
unpublished per curiam decision of the court of appeals that
affirmed the Ozaukee County circuit court's1 decision that denied
Heather L. Steinhardt's ("Steinhardt") motion for postconviction
relief. State v. Steinhardt, No. 2015AP993-CR, unpublished slip
op. (Wis. Ct. App. Jan. 21, 2016) (per curiam).
¶2 Steinhardt argues that her convictions for both
failure to protect a child from sexual assault contrary to Wis.
1
The Honorable Sandy A. Williams presided.
No. 2015AP993-CR
Stat. § 948.02(3) (2011-12)2 and first-degree sexual assault of a
child under 13 as a party to a crime contrary to Wis. Stat.
§§ 948.02(1)(e) and 939.05 violated the Double Jeopardy Clauses
of the United States Constitution and Wisconsin Constitution.
Therefore, she asks this court to vacate her conviction for
failure to protect a child. In addition, she argues that she
received ineffective assistance of counsel because her counsel
never alerted her to the potential double jeopardy claim. She
asks this court to remand her case for a hearing to determine
whether her counsel was ineffective.
¶3 We hold that Steinhardt's conviction for failure to
protect a child from sexual assault does not violate double
jeopardy because failure to protect a child from sexual assault
and first-degree sexual assault of a child under 13 as a party
to a crime are not identical in fact. Moreover, we determine
that Steinhardt failed to overcome the presumption that the
legislature intended cumulative punishments for her conduct,
given that her conduct consisted of two separate acts. We also
hold that Steinhardt's claim of ineffective assistance of
counsel fails because her counsel could not be deficient for
failing to advise her of a potential double jeopardy claim that
does not exist.
I. FACTUAL AND PROCEDURAL BACKGROUND
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
No. 2015AP993-CR
¶4 For roughly three years leading up to April 1, 2013,
Steinhardt's husband, Walter, repeatedly expressed to Steinhardt
an interest in having sex with Steinhardt's daughter, F.G.3 On
April 1, 2013, Steinhardt acquiesced to Walter's requests, and
Steinhardt facilitated her husband's sexual assault of the then-
twelve-year-old F.G.
¶5 According to the criminal complaint, on April 1,
"[Steinhardt] went to one of the other rooms w[h]ere F.G. was
and brought her into the bedroom that [Steinhardt] shared with
Walter and sat with her on the bed. . . . Walter was prepared,
lying on the bed under the covers." "Walter then told F.G. to
take off her clothes at which time [Steinhardt] remained on the
bed . . . ." Walter then engaged in three sexual acts with
F.G.: "Walter engaged in digital penetration of F.G., Walter
had F.G. engage in oral sex with him, and ultimately Walter had
sexual intercourse with F.G. . . . ." Steinhardt remained
seated on the bed throughout the entire assault. After Walter
finished, "F.G. left the room to take a shower with [Steinhardt]
following her into the bathroom."4
3
Walter is F.G.'s stepfather.
4
The State asserted additional facts about the sexual
assault at Steinhardt's sentencing hearing. For example, the
State asserted that Steinhardt gave in to Walter's request as a
birthday present for him and that Steinhardt was actually the
one who told F.G. to take off her clothes. However, as will be
explained later, we are limited to the facts as contained in the
criminal complaint. Thus, for our purposes, the facts of the
sexual assault are as stated above, and we do not consider the
additional facts provided by the State.
3
No. 2015AP993-CR
¶6 F.G. alerted her biological father of the assault, and
he contacted the police. The State charged Steinhardt with
failure to protect a child from sexual assault contrary to Wis.
Stat. § 948.02(3)5 ("Count 1"), first-degree sexual assault of a
child under 13 as a party to a crime contrary to Wis. Stat.
5
Wisconsin Stat. § 948.02(3) provides:
A person responsible for the welfare of a child
who has not attained the age of 16 years is guilty of
a Class F felony if that person has knowledge that
another person intends to have, is having or has had
sexual intercourse or sexual contact with the child,
is physically and emotionally capable of taking action
which will prevent the intercourse or conduct from
taking place or being repeated, fails to take that
action and the failure to act exposes the child to an
unreasonable risk that intercourse or contact may
occur between the child and the other person or
facilitates the intercourse or contact that does not
occur between the child and the other person.
4
No. 2015AP993-CR
§§ 948.02(1)(e) and 939.056 ("Count 2"), and child enticement
contrary to Wis. Stat. § 948.07(1)7 ("Count 3").8
¶7 Steinhardt pled no contest to all three counts, and
the circuit court sentenced Steinhardt to 7.5 years of initial
confinement and 5 years of extended supervision on Count 1; 15
6
Wisconsin Stat. § 948.02(1)(e) provides, "Whoever has
sexual contact with a person who has not attained the age of 13
years is guilty of a Class B felony." Wisconsin Stat. § 939.05
then makes this offense applicable to parties to the crime.
Section 939.05(1) states:
Whoever is concerned in the commission of a crime
is a principal and may be charged with and convicted
of the commission of the crime although the person did
not directly commit it and although the person who
directly committed it has not been convicted or has
been convicted of some other degree of the crime or of
some other crime based on the same act.
Section 939.05(2)(b) then defines a person who is concerned in
the commission of the crime as one who "[i]ntentionally aids and
abets the commission of [the crime]."
7
Wisconsin Stat. § 948.07 provides, in relevant part:
Whoever, with intent to commit any of the
following acts, causes or attempts to cause any child
who has not attained the age of 18 years to go into
any vehicle, building, room or secluded place is
guilty of a Class D felony:
(1) Having sexual contact or sexual intercourse
with the child in violation of s. 948.02, 948.085, or
948.095.
8
The criminal complaint originally charged Steinhardt with
two counts: (1) failure to protect a child in violation of Wis.
Stat. § 948.02(3) and (2) first-degree sexual assault of a child
under 13 as a party to a crime in violation of Wis. Stat.
§§ 948.02(1)(e) and 939.05. Count 3, child enticement in
violation of Wis. Stat. § 948.07, was added in the information.
5
No. 2015AP993-CR
years of initial confinement and 10 years of extended
supervision on Count 2 (consecutive to Count 1); and 15 years of
initial confinement and 10 years of extended supervision on
Count 3 (concurrent to Count 2). In total, Steinhardt's
sentence amounts to 37.5 years, with 22.5 years of initial
confinement and 15 years of extended supervision.
¶8 Steinhardt subsequently filed a motion for
postconviction relief. She asked the circuit court to vacate
her conviction for Count 1. She argued that Counts 1 and 2 are
multiplicitous, thereby making her convictions on both counts a
violation of double jeopardy. Steinhardt also asked the circuit
court to hold a hearing to determine whether her counsel was
ineffective for failing to advise her of her potential double
jeopardy claim. Steinhardt alleged that she would not have pled
no contest if she knew of the possible claim. The circuit court
found Counts 1 and 2 were not multiplicitous and denied her
motion. Steinhardt appealed.
¶9 The court of appeals affirmed the circuit court.
Steinhardt, unpublished slip op., ¶1. It determined that
"Steinhardt relinquished the right to direct review of her
double jeopardy claim" because her claim could not be resolved
on the basis of the factual record before the circuit court at
the time of Steinhardt's plea. Id., ¶8 (citing State v. Kelty,
2006 WI 101, 294 Wis. 2d 62, 716 N.W.2d 886 ("[A] guilty plea
relinquishes the right to assert a multiplicity claim when the
claim cannot be resolved on the record.")). The court of
appeals also determined that Steinhardt's claim for ineffective
6
No. 2015AP993-CR
assistance of counsel failed because Steinhardt did not
sufficiently allege prejudice in her postconviction motion to
warrant a hearing. Id., ¶11 (citing State v. Bentley, 201
Wis. 2d 303, 313-18, 548 N.W.2d 50 (1996) ("A defendant must do
more than merely allege that he would have pled differently;
such an allegation must be supported by objective factual
assertions.")).
¶10 Steinhardt then sought review by this court, which we
granted on October 11, 2016.
II. STANDARD OF REVIEW
¶11 "The issue of whether a person's right to be free from
double jeopardy has been violated presents a question of law
that we review de novo." State v. Trawitzki, 2001 WI 77, ¶19,
244 Wis. 2d 523, 628 N.W.2d 801.
¶12 Ineffective assistance of counsel is a mixed question
of law and fact. Id. This court upholds the circuit court's
factual findings unless they are clearly erroneous. Id.
Whether counsel was ineffective is a question of law that this
court reviews de novo. Id.
III. DISCUSSION
A. Steinhardt's Convictions on Counts 1 and 2
¶13 The Fifth Amendment to the United States Constitution9
and Article I, Section 8 of the Wisconsin Constitution10
9
"No person shall . . . be subject for the same offence to
be twice put in jeopardy of life or limb . . . ."
10
"[N]o person for the same offense may be put twice in
jeopardy of punishment . . . ."
7
No. 2015AP993-CR
guarantee the right to be free from double jeopardy. This right
provides three protections: "protection against a second
prosecution for the same offense after acquittal; protection
against a second prosecution for the same offense after
conviction; and protection against multiple punishments for the
same offense." State v. Sauceda, 168 Wis. 2d 486, 492, 485
N.W.2d 1 (1992). This third category is known as multiplicity.
See State v. Davison, 2003 WI 89, ¶37, 263 Wis. 2d 145, 666
N.W.2d 1 ("Use of the term 'multiplicitous' should be limited to
situations in which the legislature has not authorized multiple
charges and cumulative punishments."). Here, Steinhardt argues
that her right to be free from multiple punishments for the same
offense has been violated by her convictions for Counts 1 and 2.
¶14 We apply a two-pronged test to determine whether
charges are multiplicitous. State v. Anderson, 219 Wis. 2d 739,
746, 580 N.W.2d 329 (1998). Under the first prong, we ask
"whether the charged offenses are identical in law and fact."
Id. Under the second prong, the question is "if the offenses
are not identical in law and fact, whether the legislature
intended the multiple offenses to be brought as a single count."
Id.
1. Whether Counts 1 and 2 Are Identical in Law or Fact
¶15 We typically apply the Blockburger11 test to determine
whether offenses are identical in law. E.g., Sauceda, 168
11
Blockburger v. United States, 284 U.S. 299 (1932).
8
No. 2015AP993-CR
Wis. 2d at 493-94. Here, however, the State concedes, and we
agree, that Counts 1 and 2 are identical in law due to the
operation of Wis. Stat. § 939.66(2p),12 which makes failure to
protect a child from sexual assault a lesser-included offense of
first-degree sexual assault of a child under 13. See, e.g.,
Harrell v. State, 88 Wis. 2d 546, 571, 277 N.W.2d 462 (Ct. App.
1979) ("[T]hus, a greater and lesser included offense are the
'same offense' and trial for one bars a second trial for the
other."). Accordingly, our inquiry under the first prong
focuses on whether Counts 1 and 2 are identical in fact. We
conclude they are not.
¶16 Our review of whether Counts 1 and 2 are identical in
fact is limited to the facts available to the circuit court at
the time of Steinhardt's plea. See, e.g., Kelty, 294
Wis. 2d 62, ¶38 ("What this means is that a court will consider
the merits of a defendant's double jeopardy challenge if it can
be resolved on the record as it existed at the time the
defendant pled."); State v. Eisch, 96 Wis. 2d 25, 27, 291
12
Wisconsin Stat. § 939.66 states:
Upon prosecution for a crime, the actor may be
convicted of either the crime charged or an included
crime, but not both. An included crime may be any of
the following:
. . . .
(2p) A crime which is a less serious or equally
serious type of violation under s. 948.02 than the one
charged.
9
No. 2015AP993-CR
N.W.2d 800 (1980) ("Because we confront the case at the pleading
stage, we are confined to the facts alleged in the complaint,
information, and transcript of testimony of the witnesses at the
preliminary examination."). In this case, that amounts to those
facts contained in the probable cause section of the criminal
complaint because those were the only facts of record at the
time of Steinhardt's plea.13 Steinhardt waived her preliminary
hearing, there are no facts contained in the information, and
neither party sought to supplement the facts at Steinhardt's
plea hearing.
¶17 The probable cause section of the criminal complaint
provides, in relevant part:
[Steinhardt] stated that at one point she went to one
of the other rooms w[h]ere F.G. was and brought her
into the bedroom that [Steinhardt] shared with Walter
and sat with her on the bed. [Steinhardt] stated that
Walter was prepared, lying on the bed under the
covers. [Steinhardt] stated that Walter then told
F.G. to take off her clothes at which time
[Steinhardt] remained on the bed while Walter engaged
in digital penetration of F.G., Walter had F.G. engage
in oral sex with him, and ultimately Walter had sexual
intercourse with F.G. placing his penis inside her
vagina. [Steinhardt] stated she remained on the bed
13
The State relies on State v. Kelty, 2006 WI 101, 294
Wis. 2d 62, 716 N.W.2d 886, which held that a multiplicity claim
is waived if it cannot be resolved on the record, to argue that
Steinhardt waived her ability to bring a double jeopardy
challenge. According to the State, whether Steinhardt's conduct
is identical in fact cannot be resolved based on the facts known
at the time of Steinhardt's plea. We conclude that Steinhardt's
double jeopardy claim can be resolved based on the facts of
record and therefore do not further address the argument that
Steinhardt waived her double jeopardy claim.
10
No. 2015AP993-CR
the whole time. Walter finished and F.G. left the
room to take a shower with [Steinhardt] following her
into the bathroom.
¶18 Based on these facts, Steinhardt argues that Counts 1
and 2 are identical in fact because the conduct underlying both
counts constitutes one continuous act that took place during a
single incident and the same conduct supports both Counts 1 and
2. The State, on the other hand, argues that Counts 1 and 2 are
not identical in fact because each count is supported by conduct
that is different in nature——Steinhardt sitting on the bed
during the sexual assault supports Count 1 (an act of omission),
and Steinhardt taking F.G. to the bedroom supports Count 2 (an
act of commission).14
14
Steinhardt argues that this court should invoke judicial
estoppel to preclude the State from making this argument.
Assuming judicial estoppel could apply in this instance, we
decline to invoke it here. Judicial estoppel is an equitable
doctrine invoked at the court's discretion to preclude a party
from abusing the court system. See State v. Fleming, 181
Wis. 2d 546, 558, 510 N.W.2d 837 (Ct. App. 1993) (judicial
estoppel is applied to preclude "cold manipulation and not
unthinking or confused blunder" (quoting Konstantinidis v. Chen,
626 F.2d 933, 939 (D.C. Cir. 1980))). Here, nothing indicates
that the State is playing "fast and loose," id., with the court
system by asserting inconsistent positions such that we conclude
it is necessary to invoke judicial estoppel. See State v.
Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996) ("The
doctrine precludes a party from asserting a position in a legal
proceeding and then subsequently asserting an inconsistent
position."). The State has consistently maintained that
Steinhardt's convictions on Counts 1 and 2 do not violate double
jeopardy because the counts are not identical in fact. See id.
at 353 (concluding that judicial estoppel did not apply because
"Petty has consistently sought to minimize the length of his
prison stay, whether it be receiving a concurrent sentence, or
dismissal of the state charge on grounds of statutory double
jeopardy").
11
No. 2015AP993-CR
¶19 "Charged offenses are not multiplicitous if the facts
are either separated in time or [are] of a significantly
different nature." Anderson, 219 Wis. 2d at 749. We are unable
to determine from the facts in the criminal complaint exactly
how much time elapsed here; however, we are able to discern acts
that are significantly different in nature such that we can say
Counts 1 and 2 are not multiplicitous.
¶20 When analyzing whether acts are significantly
different in nature, "[t]he question is whether the elements,
which are legally identical, are sufficiently different in fact
to demonstrate that a separate crime has been committed."
Eisch, 96 Wis. 2d at 31. Accordingly, this court concluded in
Eisch that conviction for four different counts of "forcible and
unconsented sexual intercourse" did not violate double jeopardy
because each sexual act was "of a significantly different nature
in fact." Id. at 28, 31. The defendant in Eisch had vaginal
intercourse with the victim, inserted his penis into the
victim's anus, inserted a beer bottle into the victim's vagina,
and inserted his penis into the victim's mouth. Id. at 27-28.
In concluding that no double jeopardy violation existed, this
court said, "[I]t is the different nature of the acts which we
deem to be of importance." Id. at 33. Given the different
nature of the acts, it mattered not that all of the acts
occurred within the same incident. See id. at 31 (noting that
the assault "took place within a relatively short period").
¶21 Relying on Eisch, this court determined that five
counts of second-degree sexual assault were "sufficiently
12
No. 2015AP993-CR
different in fact to demonstrate that separate crimes [had] been
committed" when the defendant in Ziegler had the minor "perform
oral sex on him," digitally penetrated the minor's vagina,
fondled the minor's breasts, had the minor touch his penis, and
"str[uck the minor's] buttocks." State v. Ziegler, 2012 WI 73,
¶¶60, 64-65, 342 Wis. 2d 256, 816 N.W.2d 238. The court
determined that these acts were sufficiently different in fact
such that five separate crimes were committed because each act
constituted a departure from Ziegler's previous conduct. Id.,
¶73. Moreover, each different act "resulted in a new and
different humiliation, danger, and pain" to the victim. Id.
¶22 On the other hand, the defendant's right to be free
from double jeopardy was violated when the State charged the
defendant in Hirsch with three counts of first-degree sexual
assault for touching a five-year old's vagina, then anus, and
then vagina again within the span of a few minutes, because the
nature of the conduct was not sufficiently different to say that
multiple crimes had been committed. State v. Hirsch, 140
Wis. 2d 468, 474-75, 410 N.W.2d 638 (Ct. App. 1987). The court
noted that "the alleged actions are extremely similar in nature
and character," id. at 474, and that there was no "significant
change in activity as in Eisch," id. at 475.
¶23 Here, we have an act of omission——Steinhardt sitting
on the bed observing Walter sexually assault her child——
supporting Count 1 and an act of commission——Steinhardt bringing
her daughter to the bedroom——supporting Count 2. As in both
Eisch and Ziegler, there is a difference in Steinhardt's conduct
13
No. 2015AP993-CR
that amounts to a significant change in activity. Sitting on
the bed is a departure from bringing F.G. to the bedroom and
represents a change in Steinhardt's activity such that her
conduct is different in nature. Indeed, sitting on the bed is
such a departure from Steinhardt's conduct of bringing F.G. to
the bedroom that we can say Steinhardt came "to a fork in the
road," Harrell, 88 Wis. 2d at 558 (quoting Irby v. United
States, 390 F.2d 432, 437 (D.C. Cir. 1967) (Leventhal, J.,
concurring)), and departed from her earlier course of conduct
such that we have two separate volitional acts, see Eisch, 96
Wis. 2d at 36 (emphasizing that each crime required "a separate
volitional act"). Unlike Hirsch where the acts were similar in
nature, here we have a change that had to take place between
Steinhardt acting in the first instance (bringing her daughter
into the bedroom) and Steinhardt failing to act (sitting on the
bed and observing Walter sexually assault her daughter) in the
second. Furthermore, F.G. was subjected to a new and different
humiliation, danger, and pain with each act her mother took.
Consequently, we conclude that Counts 1 and 2 are not identical
in fact and therefore Steinhardt's convictions on both counts do
not violate double jeopardy.
2. Whether Steinhardt Has Overcome the Presumption that the
Legislature Intended Cumulative Punishments for Her Conduct
¶24 Having determined that Counts 1 and 2, while identical
in law, are not identical in fact, we now turn to the second
prong of the test and look to whether the legislature intended
cumulative punishments for Steinhardt's conduct. We begin (as
14
No. 2015AP993-CR
we must) with the presumption that it did. "[I]f the offenses
are different in law or fact, the presumption is that the
legislature intended to permit cumulative punishments."
Ziegler, 342 Wis. 2d 256, ¶62. Consequently, "[a]t this
juncture, we are no longer concerned with a double jeopardy
violation but instead a potential due process violation." Id.
The defendant bears the burden of proving that "the offenses are
nevertheless multiplicitous on grounds that the legislature did
not intend to authorize cumulative punishments." Id. "This
presumption may only be rebutted by a clear indication to the
contrary." Anderson, 219 Wis. 2d at 751.
¶25 We use four factors to examine legislative intent
under this second prong: (1) "all applicable statutory
language"; (2) "the legislative history and context of the
statutes"; (3) "the nature of the proscribed conduct"; and (4)
"the appropriateness of multiple punishments for the conduct."
Ziegler, 342 Wis. 2d 256, ¶63.
¶26 We note that, even though it is Steinhardt's burden to
overcome the presumption that the legislature intended to allow
cumulative punishments for failure to protect a child from
sexual assault and first-degree sexual assault of a child under
13 as a party to a crime, she failed to undertake any analysis
of the relevant four factors. Instead, she simply points to
15
No. 2015AP993-CR
Wis. Stat. § 939.66(2p).15 According to Steinhardt, "[t]he
legislature has directly addressed this situation[, meaning
legislative intent to allow cumulative punishments,] by the
passage of statutory [sic] Wis. Stat. § 939.66." As her
argument runs, Counts 1 and 2 are identical in law by operation
of this statute and are identical in fact because Counts 1 and 2
are supported by the same conduct; therefore, the legislature
did not intend cumulative punishments. With that as her
argument, the State correctly argues that Steinhardt could be
said to have conceded the last three of the four factors in the
second prong. This is so because it is her burden to use all
four factors to show that the legislature did not intend
cumulative punishments, and this she has failed to do.
Nonetheless, we choose to analyze the legislative intent in
accordance with the four relevant factors in order to determine
if, in fact, Steinhardt's convictions for Counts 1 and 2 violate
due process.
¶27 Under the first factor, we look to all the applicable
statutory language to determine if the legislature indicated
whether it intended the imposition of cumulative punishments.
See State v. Grayson, 172 Wis. 2d 156, 160-64, 493 N.W.2d 23
(1992) (looking to the "common sense" reading of the statute to
15
Wisconsin Stat. § 939.66(2p) is the statute that makes
failure to protect a child from sexual assault a lesser-included
offense of first-degree sexual assault of a child under 13 as a
party to a crime.
16
No. 2015AP993-CR
determine whether the statutory language indicated a legislative
intent to impose cumulative punishments).
¶28 The statutory language of Wis. Stat. § 948.02 itself
is silent as to whether the legislature intended cumulative
punishments. Section 948.02 simply lists both of the crimes we
have here: § 948.02(1)(e) says, "Whoever has sexual contact
with a person who has not attained the age of 13 years is guilty
of a Class B felony," and § 948.02(3) says:
A person responsible for the welfare of a child
who has not attained the age of 16 years is guilty of
a Class F felony if that person has knowledge that
another person intends to have, is having or has had
sexual intercourse or sexual contact with the child,
is physically and emotionally capable of taking action
which will prevent the intercourse or contact from
taking place or being repeated, fails to take action
and the failure to act exposes the child to an
unreasonable risk that intercourse or contact may
occur between the child and the other person or
facilitates the intercourse or contact that does occur
between the child and the other person.
A common sense reading of this statute could lead to the
conclusion that the legislature intended cumulative punishments
for first-degree sexual assault of a child under 13 and failure
to protect a child from sexual assault because both offenses are
listed in separate subsections of the statute. Cf. State v.
Church, 223 Wis. 2d 641, 653-55, 589 N.W.2d 638 (Ct. App. 1998)
(reasoning that the legislature likely did not intend multiple
punishments for different subsections of the same statutory
provision because "neither, standing alone, constitutes a
separate offense" as was the case in Sauceda, 168 Wis. 2d 486).
17
No. 2015AP993-CR
¶29 Moreover, when we look to Wis. Stat. § 939.66(2p), we
see that the legislature provided one punishment under Wis.
Stat. § 948.02 for each criminal act. Section 939.66 states,
"Upon prosecution for a crime, the actor may be convicted of
either the crime charged or an included crime, but not both."
(Emphasis added). Steinhardt's resort to § 939.66(2p) may have
had traction if, for example, the State had alleged a crime and
then sought entry of judgment of guilt for both first-degree
sexual assault of a child under 13 as a party to the crime as
well as the lesser-included offense of failure to protect a
child. However, that is not the case we are called upon today
to decide.
¶30 Here we have two criminal acts——Steinhardt's act of
commission in bringing F.G. to the bedroom and Steinhardt's act
of omission in sitting on the bed while the assault took place.
Because of this, Steinhardt's reliance on Wis. Stat.
§ 939.66(2p) is misplaced and we see nothing in the language of
Wis. Stat. § 948.02(1)(e) or § 948.02(3) that would rebut the
presumption that the legislature intended cumulative punishments
for the violations of these statutes, and we move to the second
factor.
¶31 The legislative history and context of Wis. Stat.
§ 948.02 likewise does nothing to overcome the presumption that
the legislature intended cumulative punishments. Indeed, we
recognize that this court, along with the court of appeals, has
noted that the legislative history of ch. 948 in general shows
that the legislature takes crimes against children seriously.
18
No. 2015AP993-CR
E.g., Ziegler, 342 Wis. 2d 256, ¶76 (allowing for multiple
punishments to "further[] the legislature's express objective of
emphasizing the seriousness of crimes against children");
Church, 223 Wis. 2d at 661-63 (discussing the legislative
history of ch. 948 in relation to the child enticement statute).
Such a history indicates that cumulative punishments for crimes
against children are appropriate.
¶32 We also recognize that the legislative history of Wis.
Stat. § 939.66(2p) indicates that the legislature intended to
make Wis. Stat. § 948.02(3) a lesser-included offense of Wis.
Stat. § 948.02(1)(e). However, this means that, had Steinhardt
been charged only with one count of violating § 948.02(1)(e)
based on one act, she could have been convicted of either
§ 948.02(1)(e) or § 948.02(3), but not both. In this case,
these are two separate offenses because Steinhardt's conduct is
sufficiently different in nature——one is an act of commission
and the other an act of omission. Accordingly, § 939.66(2p)
does not apply here, as the parties argue, and nothing under
this second factor overcomes the presumption that the
legislature intended cumulative punishments under § 948.02 for
her conduct.
¶33 The third factor requires us to look at the nature of
the conduct and ask whether the conduct is separated in time or
different in nature. See Grayson, 172 Wis. 2d at 165
(evaluating whether "the facts are both separated in time and
different in nature"); see also Anderson, 219 Wis. 2d at 755-56
(evaluating the third factor by referring back to its inquiry
19
No. 2015AP993-CR
into identity in fact). We have already determined that
Steinhardt's conduct consisted of one act of commission in
knowingly leading her child to be sexually assaulted (Wis. Stat.
§ 948.02(1)(e)) and one act of omission in passively observing
while her daughter was, in fact, sexually assaulted
(§ 948.02(3)), and there is nothing about the nature of
Steinhardt's conduct that overcomes the presumption that the
legislature intended cumulative punishments. See, e.g.,
Anderson, 219 Wis. 2d at 756 ("Because the nature of the
different proscribed conduct causes separate harms, we perceive
no clear indication under this factor of the analysis to
overcome the presumption that the legislature intended
cumulative punishments."). As the court in Church recognized,
counts that rely on different conduct indicate legislative
intent for cumulative punishments. See Church, 223 Wis. 2d at
663.
¶34 As to the fourth factor, the appropriateness of
multiple punishments for Steinhardt's conduct, we determine this
factor likewise does nothing to overcome the presumption that
the legislature intended cumulative punishments. When examining
this fourth factor, the court has typically looked for multiple
acts. See, e.g., Ziegler, 342 Wis. 2d 256, ¶77 (noting that
there were multiple acts that subjected the victim to "a new and
different humiliation and danger"); Church, 223 Wis. 2d at 664
("[M]ultiple criminal punishments are appropriate for multiple
acts, but not for multiple thoughts."). We have multiple acts
here——one act of commission in bringing F.G. to the bedroom and
20
No. 2015AP993-CR
one act of omission in sitting idly by on the bed while the
sexual assault took place. Thus, it cannot be said that this
factor assists in overcoming the presumption that the
legislature intended cumulative punishments.
¶35 In reviewing the four factors, we find nothing, either
individually or in the aggregate, that overcomes the presumption
that the legislature intended for cumulative punishments. Thus,
Steinhardt's convictions on Counts 1 and 2 do not violate due
process, and we decline to vacate her conviction for Count 1.
3. Whether Count 3 Violates Double Jeopardy
¶36 Steinhardt argues that concluding that her convictions
on Count 1 and Count 2 do not violate double jeopardy creates a
double jeopardy problem with Count 3 because Count 3 is
supported by the same conduct as Count 1. We reject her
contention because child enticement is a wholly different
statute with different elements, making Count 3 different in law
from Count 1. See State v. DeRango, 229 Wis. 2d 1, 13-17, 599
N.W.2d 27 (Ct. App. 1999) (concluding that the different
concerns underlying the child enticement statute (Wis. Stat.
§ 948.07) and the child exploitation statute (Wis. Stat.
§ 948.05) allowed the defendant to be charged under both for the
same conduct). Accordingly, we operate under the presumption
that the legislature intended for cumulative punishments.
¶37 We see nothing that overcomes this presumption. Under
the first factor where we look to the applicable statutory
language, a common sense reading of Wis. Stat. § 948.07(1) and
Wis. Stat. § 948.02(1)(e) indicates that Steinhardt can be
21
No. 2015AP993-CR
convicted under both statutes. Section 948.07 applies to
"[w]hoever, with intent to commit any of the following acts,
causes or attempts to cause any child who has not attained the
age of 18 years to go into any vehicle, building, room or
secluded place." On the other hand, § 948.02(1)(e) applies to
"[w]hoever has sexual contact with a person who has not attained
the age of 13 years." Each statute criminalizes different
conduct——one criminalizes the act of bringing a child to a
secluded place, and the other criminalizes the act of having
sexual contact with a child (or, in Steinhardt's case, anyone
who aids another in sexual contact with a child).
¶38 In looking to the legislative history in applying the
second factor, we likewise see nothing in the legislative
history that overcomes the presumption. In fact, as was the
case with Counts 1 and 2, the legislative history indicates that
the legislature takes crimes against children seriously. See,
e.g., Ziegler, 342 Wis. 2d 256, ¶76.
¶39 Nothing under the third factor, where we look to the
nature of the proscribed conduct, overcomes the presumption.
Wisconsin Stat. § 948.02(1)(e) protects children from sexual
acts and Wis. Stat. § 948.07(1) protects children from being
enticed to a secluded place where a sexual act can occur. The
nature of the conduct criminalized by each statute is different.
In fact, no sexual act need occur to be charged under
§ 948.07(1); only the intent to commit a sexual act need occur.
All that must occur under § 948.07(1) is that the child be
brought to a secluded place. Church, 223 Wis. 2d at 664 ("The
22
No. 2015AP993-CR
crime of enticement is completed, however, when a person causes,
or attempts to cause, a child to go to a secluded place,
regardless of whether any of the intended illegal acts is ever
completed or attempted."). The nature of the conduct,
therefore, is sufficiently different in nature because the
conduct criminalized under § 948.02(1)(e) pertains to sexual
acts committed with a child and the conduct criminalized under
§ 948.07(1) pertains to taking a child to a secluded place where
such acts can be performed. See Church, 223 Wis. 2d at 663.
¶40 The fourth and last factor——the appropriateness of
multiple punishments——also fails to overcome the presumption
that it is appropriate to impose multiple punishments because
different interests of the child are protected by each statute.
See DeRango, 229 Wis. 2d at 14-17. "[T]he central concern of
[Wis. Stat. § 948.07] is the removal of a child from the general
public to a secluded place in order to facilitate various
illegal conduct." Id. at 14. "The underlying acts, such as
sexual contact, . . . are not the primary concern of § 948.07
because other statutes specifically address these crimes." Id.
¶41 Consequently, we conclude that no double jeopardy or
due process violation with Count 3 is created by our conclusion
regarding Counts 1 and 2.
B. Steinhardt's Ineffective Assistance of Counsel Claim
23
No. 2015AP993-CR
¶42 The Sixth Amendment to the United States Constitution16
and Article I, Section 7 of the Wisconsin Constitution17
guarantee a criminal defendant the right to counsel. "This
right to counsel includes the right to the effective assistance
of counsel." Trawitzki, 244 Wis. 2d 523, ¶39. We apply a two-
pronged test, commonly referred to as the Strickland18 test, to
determine whether counsel was ineffective. Id., ¶¶39-40. "The
first part of the test requires a defendant to show that
counsel's performance was deficient." Id., ¶40. "If the
defendant establishes that counsel's performance was deficient,
then the defendant must satisfy the second part of the
Strickland test and prove that this deficient performance
prejudiced the defense." Id.
¶43 Steinhardt argues that her counsel's performance was
deficient for failing to alert her to the potential double
jeopardy claim. However, as we have determined, there is no
double jeopardy violation occasioned by her convictions for
Counts 1 and 2 because Counts 1 and 2 are different in fact.
Consequently, counsel's performance was not deficient, State v.
Johnson, 2004 WI 94, ¶24, 273 Wis. 2d 626, 681 N.W.2d 901
16
"In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his
defence."
17
"In all criminal prosecutions the accused shall enjoy the
right to heard by himself and counsel . . . ."
18
Strickland v. Washington, 466 U.S. 668 (1984).
24
No. 2015AP993-CR
(concluding counsel's performance was not deficient because
"there was nothing objectionable about the line of testimony"
claimed to be improper). We need not address the second prong,
State v. Maloney, 2005 WI 74, ¶14, 281 Wis. 2d 595, 698
N.W.2d 583 ("We need not address both components of the inquiry
if the defendant makes an insufficient showing on one."), and no
useful purpose would be accomplished by doing so. Accordingly,
we determine that there is no need to remand Steinhardt's case
for a hearing on whether her counsel was deficient.
IV. CONCLUSION
¶44 We conclude that Counts 1 and 2 are not multiplicitous
and thus Steinhardt's convictions for both counts does not
violate double jeopardy. Counts 1 and 2 are supported by
different conduct and thus are not identical in fact. We also
conclude that Steinhardt's convictions for Counts 1 and 2 do not
violate due process. Accordingly, we decline to vacate
Steinhardt's conviction for Count 1.
¶45 Last, we conclude that Steinhardt's claim for
ineffective assistance of counsel fails, and therefore, we
decline to remand her case for a hearing.
By the Court.—The decision of the court of appeals is
affirmed.
25
No. 2015AP993-CR.ssa
¶46 SHIRLEY S. ABRAHAMSON, J. (dissenting). According
to the complaint, Heather Steinhardt knowingly and intentionally
took her 12-year-old daughter to Walter's bedroom and remained
there sitting on Walter's bed, facilitating Walter's sexual
assault of the child. According to the majority opinion, Walter
is Heather Steinhardt's husband. Heather Steinhardt's conduct
was revolting and detestable!
¶47 The federal and state constitutional guarantees
against double jeopardy protect us all, even Heather Steinhardt.
¶48 In the instant double jeopardy challenge, Heather
Steinhardt argues that she was convicted of two offenses, counts
1 and 2, that are the same in law and fact, that is,
multiplicitous. The majority opinion agrees with Heather
Steinhardt that the two convictions at issue are identical in
law. The majority opinion concludes, however, that the
convictions for Count 1 (failure to act to protect a child from
sexual assault contrary to Wis. Stat. § 948.02(3)) and Count 2
(first-degree sexual assault of a child under 13 as a party to a
crime contrary to Wis. Stat. §§ 948.02(1)(e) and 939.05) are not
identical in fact and that Heather Steinhardt's multiplicity
challenge fails.
¶49 Heather Steinhardt also argues that if this court
upholds her convictions on Counts 1 and 2 upon the State's new
factual arguments in this court, a different multiplicity issue
is created with regard to Count 3. The majority opinion
concludes that count 3 (causing a child to go into a room with
intent to have sexual contact or sexual intercourse contrary to
1
No. 2015AP993-CR.ssa
Wis. Stat. § 948.07(1)) is not identical in law or fact, that
the legislative intended multiple convictions under Count 3, and
that Heather Steinhardt's multiplicity challenge fails.
¶50 I conclude, contrary to the majority opinion, that
Counts 1 and 2 are identical in law and fact; that the
legislature did not intend that these two counts for two
offenses identical in law and fact under two subsections of a
single statute would result in two convictions, see Wis. Stat.
§ 939.66(1) and (2p);1 and that convictions for both counts are
multiplicitous. I further conclude that Count 3 is not
identical in law with the other counts but that the legislature
did not intend that Heather Steinhardt's single, brief course of
conduct subject her to multiple convictions and that her
conviction of Count 3 is multiplicitous.
¶51 Accordingly, I would reverse the decision of the court
of appeals and the order of the circuit court. I would remand
1
Wisconsin Stat. § 939.66(1) and (2p) provide as follows:
Sec. 939.66. Conviction of included crime
permitted. Upon prosecution for a crime, the actor may
be convicted of either the crime charged or an
included crime, but not both. An included crime may
be any of the following:
(1) A crime which does not require proof of any fact
in addition to those which must be proved for the
crime charged.
. . . .
(2p) A crime which is a less serious or equally
serious type of violation under s. 948.02 than the one
charged.
2
No. 2015AP993-CR.ssa
the matter to the circuit court to vacate the convictions on
Counts 1 and 3 and for further proceedings consistent with this
dissent.
¶52 Notwithstanding the heinous nature of Heather
Steinhardt's conduct, the ultimate question for double jeopardy
purposes is whether it is fundamentally fair to convict her of
the three offenses. "Basically, where problems of double
jeopardy or multiplicity arise, the question is one of
fundamental fairness or prejudice to the defendant. A defendant
ought not be charged, tried, or convicted for offenses that are
substantially alike when they are a part of the same general
transaction or episode." State v. Eisch, 96 Wis. 2d 25, 34, 291
N.W.2d 800 (1980).
¶53 The problem of unfairness caused by the overcharging
of multiple criminal offenses based on a single course of
criminal conduct is not a new concern. Over forty years ago,
United States Supreme Court Justice William Brennan, concurring
in Ashe v. Swenson, 397 U.S. 436, 452 (1970), sounded a warning.
Although directed at another area of double jeopardy
jurisprudence, Justice Brennan's concerns pertain to the instant
case:
Given the tendency of modern criminal legislation to
divide the phases of a criminal transaction into
numerous separate crimes, the opportunities for
multiple prosecutions for an essentially unitary
criminal episode are frightening. And given our
tradition of virtually unreviewable prosecutorial
discretion concerning the initiation and scope of a
criminal prosecution, the potentialities for
abuse . . . are simply intolerable. (Footnotes
omitted.)
3
No. 2015AP993-CR.ssa
¶54 I conclude that two counts in the instant case are
identical in law and fact, that the third count is identical in
fact, and that the three are multiplicitous for the following
reasons:
I. The text of the statutes and the facts alleged in the
complaint demonstrate that Counts 1 and 2 are the same
in law and supported by the same facts. Because the
same conduct satisfies each count, the text of the two
statutes clearly expresses a legislative intent that
there not be two convictions. See Wis. Stat.
§ 939.66(1), (2p). Count 3 is different in law but
the same conduct supports all three counts. The
legislature did not intend multiple convictions for
the three counts under the facts of the instant case.
II. An indication that Counts 1, 2, and 3 are identical in
fact is the short time that elapsed between the "acts"
alleged. Heather Steinhardt performed the role of
isolating the child by bringing the child into the
bedroom and facilitating Walter's sexual assaults.
Her mens rea was unvarying. Her relatively brief
course of conduct demonstrated a single intent and
purpose of getting the child into the bedroom to
facilitate Walter's sexual assaults.
III. The majority opinion's commission/omission "test" is
not viable. The majority opinion adopts the state's
novel position about the facts in this court, which
differs from the State's position in the circuit court
4
No. 2015AP993-CR.ssa
and court of appeals. The majority opinion "slices
and dices" Heather Steinhardt's single volitional act
constituting a single course of conduct into two
offenses, one an act of omission and the other an act
of commission.
IV. The majority opinion's reasoning can easily lead to
the overcharging of offenses and the imposition of
multiple sentences for a single act or course of
conduct.
¶55 I develop these four reasons further below.
I
¶56 The text of the statutes and the facts alleged in the
complaint demonstrate that the three counts are supported by the
very same facts, that is, by the very same "acts" of Heather
Steinhardt described in the complaint.2
2
The criminal information, unlike the complaint, does not
state the facts upon which the charges are based. The criminal
information charges a third offense (unmentioned in the
complaint) as follows:
The above-named defendant on or about Monday, April
01, 2013, in the Town of Fredonia, Ozaukee County,
Wisconsin, with intent to have sexual intercourse with
the child in violation of Section 948.02, Wis. Stats.,
did cause a child, FG, DOB 11/26/2000, who had not
attained the age of 18 years to go into a room,
contrary to sec. 948.07(1), 939.50(3)(d) Wis. Stats.,
a Class D Felony, and upon conviction may be fined not
more than One Hundred Thousand Dollars ($100,000), or
imprisoned not more than twenty five (25) years, or
both.
Child enticement is set forth in Wis. Stat. § 948.07(1),
which provides:
(continued)
5
No. 2015AP993-CR.ssa
¶57 The complaint alleges identical facts as probable
cause to believe that Heather Steinhardt committed the three
offenses charged. The probable cause section of the complaint
states:
PROBABLE CAUSE:
Complainant alleges that on June 19, 2013, Detective
Lambrecht and Lieutenant Knowles interviewed Heather
Steinhardt about the allegations that Walter
Steinhardt had sexual intercourse with F.G., date of
birth 11/26/2000. At that time, Heather told
Detective Lambrecht that Walter had been interested in
having intercourse with both of her daughters for the
last three years. Heather stated that throughout the
day on April 1, 2013, Walter had been prodding Heather
to allow him to have sexual intercourse with F.G.
Heather stated that at one point she went to one of
the other rooms were [sic] F.G. was and brought 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 bed under the covers.
Heather stated that Walter then told F.G. to take off
her clothes at which time Heather remained on the bed
while Walter engaged in digital penetration of F.G.,
Walter had F.G. engage in oral sex with him, and
ultimately Walter had sexual intercourse with F.G.
placing his penis inside her vagina. Heather stated
she remained on the bed the whole time. Walter
finished and F.G. left the room to take a shower with
Heather following her into the bathroom.
948.07 Child enticement. Whoever, with intent to
commit any of the following acts, causes or attempts
to cause any child who has not attained the age of 18
years to go into any vehicle, building, room or
secluded place is guilty of a Class D felony:
(1) Having sexual contact or sexual intercourse with
the child in violation of s. 948.02, 948.085, or
948.095.
6
No. 2015AP993-CR.ssa
Complainant further alleges that all the above stated
events occurred in the County of Ozaukee, State of
Wisconsin.
Based on the foregoing, the complainant believes this
complaint to be true and correct.
¶58 I examine Count 1 first. It charges Heather Steinhart
with failure to act, that is, failure to protect a child from
sexual assault in violation of Wis. Stat. § 948.02(3), which
provides as follows:
(3) FAILURE TO ACT. A person responsible for the welfare
of a child who has not attained the age of 16 years is
guilty of a Class F felony if that person has
knowledge that another person intends to have, is
having or has had sexual intercourse or sexual contact
with the child, is physically and emotionally capable
of taking action which will prevent the intercourse or
contact from taking place or being repeated, fails to
take that action and the failure to act exposes the
child to an unreasonable risk that intercourse or
contact may occur between the child and the other
person or facilitates the intercourse or contact that
does occur between the child and the other person.[3]
(Emphasis added.)
3
The complaint stated the statutory offense in count 1 as
follows:
Count 1: FAILURE TO PROTECT A CHILD
The above-named defendant on or about Monday, April
01, 2013, in the Town of Fredonia, Ozaukee County,
Wisconsin, as a person responsible for the welfare of
a child under the age of sixteen, FG, DOB 11/26/2000,
with knowledge that a person intended to have sexual
sexual [sic] contact with said child, did fail to take
action to prevent the sexual contact and created an
unreasonable risk of the sexual contact occurring,
contrary to sec. 948.02(3), 939.50(3)(f) Wis. Stats.,
a Class F Felony, and upon conviction may be fined not
more than Twenty Five Thousand Dollars ($25,000), or
imprisoned not more than twelve (12) years and six (6)
months, or both.
7
No. 2015AP993-CR.ssa
¶59 With regard to Count 1, which charges a violation of
Wis. Stat. § 948.02(3), the facts alleged fall squarely in the
language of the charged offense. The probable cause part of the
complaint clearly states that Heather Steinhardt is the mother
of the assaulted child. No one disputes that as a mother she is
responsible for the welfare of the child. She had "knowledge"
that Walter wanted to have sexual intercourse4 or sexual contact5
with her child. On April 1, 2013, Heather Steinhardt succumbed
to Walter's wishes. She failed to take action to prevent the
sexual assaults from taking place on April 1 by failing to
remove her daughter to a safe place away from Walter's grasp
(instead, she brought the child into Walter's bedroom). This
failure to take action exposed the child to an unreasonable risk
that intercourse or contact may occur. By the act of sitting on
the bed she facilitated the ongoing sexual assaults, and she did
nothing to stop them.
¶60 Heather Steinhardt's conduct, whether denoted "acts of
omission" or "acts of commission," explicitly falls within the
text of Wis. Stat. § 948.02(3)'s prohibition on failing to act,
the violation of which constitutes Count 1.
¶61 The majority opinion declares that the act of sitting
on Walter's bed during the assaults is an act of omission
constituting Count 1.
4
"Sexual intercourse" is defined in Wis. Stat.
§ 939.22(36).
5
"Sexual contact" is defined in Wis. Stat. § 939.22(34).
8
No. 2015AP993-CR.ssa
¶62 I now consider Count 2. Count 2 charges first-degree
sexual assault of a child under 13 as party to a crime in
violation of Wis. Stat. §§ 948.02(1)(e) and 939.05, which
provide:
Wis. Stat. § 948.02 Sexual assault of a child.
(1) FIRST DEGREE SEXUAL ASSAULT.
. . . .
(e) Whoever has sexual contact or sexual intercourse
with a person who has not attained the age of 13 years
is guilty of a Class B felony.
Wis. Stat. § 939.05 Parties to crime.
(1) Whoever is concerned in the commission of a crime
is a principal and may be charged with and convicted
of the commission of the crime although the person did
not directly commit it and although the person who
directly committed it has not been convicted or has
been convicted of some other degree of the crime or of
some other crime based on the same act.
(2) A person is concerned in the commission of the
crime if the person:
(a) Directly commits the crime; or
(b) Intentionally aids and abets the commission of it;
or
(c) Is a party to a conspiracy with another to commit
it . . . .6
6
The complaint states the statutory offense in Count 2 as
follows:
Count 2: 1ST DEGREE CHILD SEXUAL ASSAULT – CONTACT
WITH A CHILD UNDER AGE 13 – AS A PARTY TO A CRIME
The above-named defendant on or about Monday, April
01, 2013, in the Town of Fredonia, Ozaukee County,
Wisconsin, as a party to a crime, did have sexual
contact with a person who has not attained the age of
(continued)
9
No. 2015AP993-CR.ssa
¶63 With regard to Count 2, sexual assault of a child
under 13 as party to a crime, the complaint relies on the same
facts as does Count 1, namely those facts set forth in the
probable cause section. These facts fall squarely within the
text of Wis. Stat. §§ 948.02(1)(e) and 939.05, as well as within
the text of § 948.02(3).
¶64 The probable cause part of the complaint clearly
states that Heather Steinhardt intentionally aided and abetted
Walter's sexual assaults by failing to take action to remove the
child from Walter's grasp and by bringing the child into
Walter's bedroom. In addition, by sitting on Walter's bed and
failing to do anything to stop the assaults, she facilitated
Walter's ongoing sexual assaults. Heather Steinhardt had the
duty and opportunity to protect the child. Heather Steinhardt's
conduct, whether denoted "acts of omission" or "acts of
commission," explicitly falls within the text of Wis. Stat.
§§ 948.02(1)(e) and 939.05, the violation of which constitutes
Count 2.7
thirteen, FG, DOB 11/26/2000, contrary to sec.
948.02(1)(e), 939.50(3)(b), 939.05 Wis. Stats., a
Class B Felony, and upon conviction may be sentenced
to a term of imprisonment not to exceed sixty (60)
years.
7
Heather Steinhardt's conduct constituted aiding and
abetting. The court described aiding and abetting as follows in
State v. Tourville, 2016 WI 17, ¶¶49-50, 367 Wis. 2d 285, 876
N.W.2d 735:
In order to aid and abet a crime, the defendant need
be only a willing participant. State v. Marshall, 92
Wis. 2d 101, 122, 284 N.W.2d 592 (1979)). "Such
participation as would constitute aiding and abetting
(continued)
10
No. 2015AP993-CR.ssa
¶65 The majority opinion declares that the act of bringing
the child into Walter's bedroom is an act of commission
constituting Count 2.
¶66 The majority opinion concludes, without analysis or
explanation, that had Heather Steinhardt been charged "only with
one count of violating § 948.02(1)(e) based on one act, she
could have been convicted of either § 948.02(1)(e) or
§ 948.02(3), but not both." Majority op., ¶32. The majority
opinion neither explains this hypothetical scenario nor cites
authority for this interpretation of the statutes.
¶67 In sum, the text of the statutes and the text of the
complaint demonstrate that Counts 1 and 2 are supported by the
same facts. I therefore conclude that the two counts are
identical in fact (as well as in law) and are multiplicitous.
The legislature clearly stated it did not intend that these two
counts for offenses based on the same facts and charged under
two subsections of a single statute would lead to two
convictions. See Wis. Stat. § 939.66 (1), (2p).
¶68 Another multiplicity issue involves Count 3. The
majority opinion, ¶¶36-41, concludes that Count 3 in the
does not even require that the defendant be present
during the [crime]." Id. "One need not perform an
act which would constitute an essential element of the
crime in order to aid and abet that crime. It is only
necessary that he undertake some conduct (either
verbal or overt), which as a matter of objective fact
aids another person in the execution of a crime, and
that he consciously desire or intend that his conduct
will in fact yield such assistance." Id.
11
No. 2015AP993-CR.ssa
information setting forth the crime of child enticement, see ¶56
n.2, supra, is not multiplicitous.
¶69 Heather Steinhardt's reply brief argues that in light
of the State's novel approach to the facts in this court, Count
3 is not identical in law but is multiplicitous because Count 3
is supported by the same conduct as Count 2. See Steinhardt's
Reply Brief at 8. A single act or course of conduct may support
multiple convictions if the legislature intended there be
multiple convictions "to protect different interests of the
victim or the public." See State v. DeRango, 229 Wis. 2d 1, 16,
599 N.W.2d 27 (Ct. App. 1999); State v. Patterson, 2010 WI 130,
329 Wis. 2d 599, 790 N.W.2d 909.
¶70 No one disputes that Count 3 is based on the course of
conduct set forth in the probable cause statement in the
complaint. This course of conduct supports all three counts.
¶71 Under Wis. Stat. § 948.07(1), the State must prove
that the accused causes a child who has not attained the age of
18 years to go into a room with the intent to have sexual
contact or sexual intercourse with the child. See ¶56 n.2,
supra; State v. Church, 223 Wis. 2d 641, 664, 589 N.W.2d 638
(Ct. App. 1998) ("The crime of enticement is completed, however,
when a person causes, or attempts to cause, a child to go to a
secluded place, regardless of whether any of the intended
illegal acts is ever completed or attempted.").
¶72 The facts alleged in the probable cause part of the
complaint fall squarely within the language of the charged
offense in Count 3. The complaint clearly states that Heather
12
No. 2015AP993-CR.ssa
Steinhardt caused the child to go into a room with the intent
that Heather Steinhardt aid and abet Walter as a party to the
crime of sexually assaulting the child.
¶73 I conclude that in the instant case the three
convictions based on Heather Steinhardt's same course of conduct
over a brief period of time contravene the same interests of the
victim and the community that the legislature was protecting in
all three offenses. All three statutes protect the child and the
community against the seriousness of sexual assault of a child.
"Enticement of a child to a vehicle, building, room, or other
secluded place isolates a child from the protections of the
public. It also provides the opportunity, with substantially
less risk of detection, for the person to exercise force and
control over the child for purposes of sexual gratification."
State v. Hanson, 182 Wis. 2d 481, 487, 513 N.W.2d 700 (Ct. App.
1994) (internal citations and quoted source omitted).
¶74 My review of the text of the statutes, the statutory
and legislative history, the nature of the statutorily
proscribed conduct, Heather Steinhardt's brief course of
conduct, and the appropriateness of multiple punishments
supports the conclusion that the legislature did not intend
three convictions in the instant case. The three statutes
protect the same interests of the victim and the community.
Count 3 is multiplicitous. The instant case is more like State
v. Church, 223 Wis. 2d 641, 648, 589 N.W.2d 638 (Ct. App. 1998),
review dismissed as improvidently granted, State v. Church, 2000
WI 90, 236 Wis. 2d 755, 613 N.W.2d 848 (the facts on which the
13
No. 2015AP993-CR.ssa
convictions were based were not separated in time or
significantly different in nature), than State v. DeRango, 229
Wis. 2d 1, 14-17, 599 N.W.2d 27 (1999) (the legislature created
two statutes and two offenses intending to protect different
interests of the victim or public).
II
¶75 One indicator of whether the three counts are
identical in fact is how much time elapsed between "acts."
¶76 The complaint is silent as to how much time passed
during and between Heather Steinhardt's "acts." Time is a
factor in cases like this.8
¶77 The majority opinion disregards the time factor,
stating that it is "unable to determine from the facts in the
criminal complaint exactly how much time elapsed here."
Majority op., ¶19. True, but there is no indication in the
complaint that any considerable amount of time passed between
Heather's bringing the child into Walter's bedroom and the
assaults.
¶78 In State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800
(1980), the court surmised from the record that the sexual
assaults took place over a period that did not exceed two and
8
See State v. Carol M.D., 198 Wis. 2d 162, 170, 542
N.W.2d 476 (Ct. App. 1995); State v. Hirsch, 140 Wis. 2d 468,
475, 410 N.W.2d 638 (Ct. App. 1987); Christine M. Wiseman &
Michael Tobin, 9 Wisconsin Practice: Criminal Practice and
Procedure § 15:6 (2d ed. 2008) ("Whether there is a difference
in fact depends upon whether the offenses are separated in time,
significantly different in nature, or involve separate
volitional acts.").
14
No. 2015AP993-CR.ssa
one-half hours. The court characterized this period of time as
"a relatively short period." The Eisch court also stated that
this "relatively short time period" was "not significant enough
to make the time interval alone controlling." Eisch, 96 Wis. 2d
at 31, 33. Heather Steinhardt's acts were not separated by a
significant enough period of time to make the time interval
controlling in the instant case.
¶79 I surmise from the complaint that the "acts" leading
to the three charged offenses in the instant case occurred over
a significantly shorter time than two and one-half hours.
Indeed, they are patently part of the same episode. Heather
Steinhardt's conduct constituting the three charged offenses
arose out of one continuous course of conduct within a brief
period of time.9
¶80 The complaint makes clear that Heather Steinhardt and
Walter planned her participation in the sexual assaults on April
9
State v. Hirsch, 140 Wis. 2d 468, 475, 410 N.W.2d 638 (Ct.
App. 1987) ("Given the short time frame, we cannot say that the
defendant had sufficient time for reflection between the
assaultive acts to again commit herself.") (internal quotation
marks omitted); Irby v. United States, 390 F.2d 432, 437-38
(D.C. Cir. 1967) (Leventhal, J., concurring) ("If at the scene
of the crime the defendant can be said to have realized that he
has come to a fork in the road, and nevertheless decides to
invade a different interest, then his successive intentions make
him subject to cumulative punishment, and he must be treated as
accepting that risk, whether he in fact knows of it or not.").
See Christine M. Wiseman & Michael Tobin, 9 Wisconsin
Practice: Criminal Practice and Procedure § 15:6 (2d ed. 2008)
("Whether there is a difference in fact depends upon whether the
offenses are separated in time, significantly different in
nature, or involve separate volitional acts.").
15
No. 2015AP993-CR.ssa
1, 2013. The plan was that she perform the same role before and
during the sexual assaults, that of facilitator. Heather
Steinhardt's conduct consisted of a single volitional act. She
did not reconsider her course of conduct. Heather Steinhardt's
course of conduct, contrary to the State's argument,
continuously inflicted the same humiliation and emotional and
physical danger and pain to her daughter.10 Her mens rea
throughout the time at issue was unvarying; she demonstrated a
single intent and purpose of taking the child into Walter's
bedroom and exposing the child to Walter's sexual assaults.
¶81 In sum, the facts underlying the three counts took
place during a relatively short period of time and constituted a
single course of conduct during which Heather Steinhardt could
not (and did not) change her mens rea or engage in separate
volitional acts. Compare State v. Carol M.D., 196 Wis. 2d 162,
542 N.W.2d 476 (Ct. App. 1995), in which the defendant was
convicted of several offenses as a result of making the
conscious decision on numerous occasions to leave the child
alone with the assaulter. Counts 1, 2, and 3 are identical in
fact in the instant case. The legislative intent is that there
be one conviction, not three, in the instant case. See Wis.
Stat. §§ 939.66(1), (2p).
III
10
In State v. Ziegler, 2012 WI 73, ¶77, 342 Wis. 2d 256,
816 N.W.2d 238, the court held that cumulative punishments were
appropriate when each aspect of the defendant's conduct
"resulted in a new and different humiliation and danger on the
part of a child."
16
No. 2015AP993-CR.ssa
¶82 With regard to Counts 1 and 2, the majority opinion
adopts the novel approach taken by the State in this court (to
which the defendant vigorously objects because it differs
significantly from the State's position taken in the circuit
court and court of appeals). The majority opinion "slices and
dices" Heather Steinhardt's single volitional act constituting a
single course of conduct into two acts, three crimes, and a
multiplicity problem.11
¶83 The majority opinion describes Heather Steinhardt's
conduct as consisting of two "acts" for purposes of Counts 1 and
2: The act of sitting on the bed becomes, according to the
majority opinion, "an act of omission" that constitutes Count 1,
failure to protect a child from sexual assault; the act of
bringing the child into Walter's bedroom becomes, according to
the majority opinion, "an act of commission" that constitutes
Count 2, first-degree sexual assault of a child under 13 as
party to a crime. Majority op., ¶23.
¶84 The majority opinion does not identify the "act" that
is the basis of Count 3. I assume from the criminal information
that the act relates to taking the child into Walter's bedroom.
¶85 The word "act" (in common parlance and as used by the
majority opinion) means the "process of doing something" or
"performing something." Thus, according to the majority
11
For the majority opinion's cursory response to Heather
Steinhardt's arguments that the State should be judicially
estopped from taking a position in this court contrary to the
position that it took in the circuit court and court of appeals,
see majority op., ¶18 n.4.
17
No. 2015AP993-CR.ssa
opinion, Heather Steinhardt's criminal conduct consisted of
doing or performing something (which it labels an "act of
omission") and doing or performing something else (which it
labels an "act of commission").
¶86 The majority opinion's commission/omission approach
rests on quicksand. With little difficulty, the same conduct
can usually be classified in terms of both malfeasance (act of
commission) and nonfeasance (act of omission).
¶87 For instance, sitting on Walter's bed during the
sexual assaults (which the majority opinion characterizes as an
act of omission) can be restated as an act of commission——
Heather Steinhart's staying in Walter's room and sitting on the
bed during the assaults facilitated the assaults.
¶88 Bringing the child into Walter's bedroom for Walter's
sexual assaults (which the majority opinion characterizes as an
act of commission) can be restated as an act of omission——
Heather Steinhardt failed to remove the child from harm's way.
¶89 For a discussion of the difficulty of distinguishing
acts of commission and omission, see 2 Dan B. Dobbs, Paul T.
Hayden, & Ellen M. Bublick, The Law of Torts § 406 (2d ed. 2011)
("[N]o rule has been formulated to prescribe whether courts are
to characterize conduct as affirmative action with an embedded
omission or as simple non-action."); W. Page Keeton et al.,
Prosser and Keeton on Torts § 56, at 373-75 (5th ed. 1984)
("[I]n theory the difference between the two is fairly clear;
but in practice it is not always easy to draw the line and say
whether conduct is active or passive."); Fleming James, Jr.,
18
No. 2015AP993-CR.ssa
Scope of Duty in Negligence Cases, 47 Nw. U. L. Rev. 778, 801
(1953) ("Often the same conduct could be described as either one
or the other [that is, as either an act or omission]"); Behrendt
v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶54, 318 Wis. 2d 622,
768 N.W.2d 568 (2009) (Abrahamson, C.J., concurring) (the
distinction between misfeasance and nonfeasance is "tenuous and
misleading"); id., ¶88 (Roggensack, J., concurring) ("the claim
made could be characterized as either a failure to act or as an
act negligently performed, depending on the lens that the author
of the opinion applies"); Pehle v. Farm Bureau Life Ins. Co.,
Inc., 397 F.3d 897, 902 (10th Cir. 2005) (the distinction
between misfeasance and nonfeasance is not useful because the
conduct can be characterized as either one).12
¶90 Resting multiplicitous criminal penalties upon the
shaky foundation of "commission" and "omission" in the instant
case is a cause for concern because these concepts are largely
malleable.
IV
¶91 Unfortunately, the reasoning of the majority opinion
will have deleterious effects on the administration of justice.
The reasoning can too easily lead to prosecutorial overcharging
of offenses and the imposition of consecutive multiple criminal
12
"Malfeasance" and "nonfeasance" may have special
significance in "no-duty," "special relationship" cases. See,
e.g., 2 Dan B. Dobbs, Paul T. Hayden, & Ellen M. Bublick, The
Law of Torts § 406 (2d ed. 2011); W. Page Keeton et al., Prosser
and Keeton on Torts § 56, at 373-78 (5th ed. 1984); Fleming
James, Jr., Scope of Duty in Negligence Cases, 47 Nw. U. L. Rev.
778, 802 (1953).
19
No. 2015AP993-CR.ssa
penalties for a volitional act constituting a single course of
conduct with a single purpose. Under the majority opinion,
Heather Steinhardt apparently could be charged with additional
offenses, namely, an offense for each distinct sexual intrusion
that Walter inflicted on the child.
¶92 In the Eisch case, 96 Wis. 2d at 27, the court upheld
the prosecutor's charging the defendant with four acts of sexual
assault; the court viewed each sexual assault as a different
intrusion on the body of the victim. Here Walter committed
three different sexual intrusions on the child and apparently
Heather Steinhardt might be charged with party to a crime for
each assault.
¶93 Each charge of a sexual assault supports its own
penalty and the sentences for multiple assaults can be
consecutive. A real question exists whether it is fundamentally
fair to allow such charging and sentencing in the instant case
when Heather Steinhardt's course of conduct took place over a
relatively brief period of time and was all part of the same
episode.13
* * * *
¶94 I conclude, contrary to the majority opinion, that the
three counts are identical in fact and that the legislature did
not intend multiple convictions in the instant case. Moreover,
the legislature did not intend that Counts 1 and 2, which are
13
For an objection to charging for multiple violations of a
single statute, see State v. Pal, 2017 WI 44, ¶54, 374
Wis. 2d 759, 893 N.W.2d 848 (Kelly, J., concurring).
20
No. 2015AP993-CR.ssa
identical in law, would result in two convictions for two
offenses identical in fact under two subsections of a single
statute. See Wis. Stat. § 939.66(1), (2p). Accordingly, I
would reverse the decision of the court of appeals and the order
of the circuit court. I would remand the matter to the circuit
court to vacate the convictions on Counts 1 and 3 and for
further proceedings consistent with this dissent.
¶95 Accordingly, I dissent.
¶96 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissenting opinion.
21
No. 2015AP993-CR.ssa
1
State v. Heather L. Steinhardt
Court: Wisconsin Supreme Court
Date filed: 2017-06-21
Citations: 375 Wis. 2d 712, 2017 WI 62
Copy CitationsCombined Opinion