State v. Heather L. Steinhardt

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(2016 – Unpublished)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unpublished per curiam decision of the court of appeals that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 State v. Steinhardt, No. 2015AP993-CR, unpublished slip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.,

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 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.

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