|
COURT OF APPEALS
DECISION
DATED AND RELEASED
APRIL 8, 1997
|
NOTICE
|
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
|
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
|
No.
96-2303
STATE
OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT
C. IRISH,†
Defendant-Appellant.
APPEAL from a judgment of the
circuit court for Oneida County: MARK
A. MANGERSON, Judge. Affirmed.
Before Cane, P.J., LaRocque and
Myse, JJ.
LaROCQUE, J. Robert Irish appeals his civil commitment
as a sexually violent person pursuant to ch. 980, Stats., commonly known as the "sexual predator
law." Irish challenges the trial
court's legal conclusion that his 1991 conviction for child enticement under a
repealed and recreated statute is an appropriate predicate sex offense
essential to a commitment. Chapter 980
applies to a person previously convicted of a "sexually violent
offense," as defined in § 980.01(6), Stats. Because a ch. 980 commitment requires a prior
conviction of certain sex crimes, the basis of Irish's challenge is whether his
1991 conviction for child enticement set forth in § 944.12, Stats., 1987-88, a crime that was
repealed and recreated as § 948.07, Stats.,
prior to the adoption of ch. 980 provides a basis for commitment. Section 980.01(6) defines a "sexually
violent offense," among others, as "Any crime specified" in
§ 948.07. We conclude that the
"crime specified" in § 948.07 is child enticement, the title to
both the former and the present statute, and that the legislative act of
repealing and recreating the former statute does not exempt Irish from ch. 980.
We therefore affirm the judgment of commitment.
The issue Irish raises requires us
to construe § 980.01(6), Stats. The construction of a statute is a question of
law that we review de novo. In re
J.W.T., 159 Wis.2d 754, 760-61, 465 N.W.2d 520, 523 (Ct. App.
1990). The guiding principle in
construction of statutes is to discern the legislative intent. Hemerley v. American Family Mut. Ins.
Co., 127 Wis.2d 304, 308, 379 N.W.2d 860, 863 (Ct. App. 1985). The interaction of two or more statutes can
operate to create an ambiguity. Trojan
v. Board of Regents, 100 Wis.2d 53, 57, 301 N.W.2d 269, 270 (Ct. App.
1980), reversed on other grounds, 104 Wis.2d 277, 311 N.W.2d 586
(1981). If the statute is ambiguous,
the court must look to legislative intent found in its scope, history, context,
subject matter and its intended object. Wisconsin's Environ. Decade v.
PSC, 81 Wis.2d 344, 350, 260 N.W.2d 712, 715 (1978).
We determine that the statutory
definition of "Sexually violent offense" found in ch. 980, Stats., is ambiguous. This term could mean, as Irish would have us
read it, only a conviction under the recreated statute, § 948.07, Stats.
On the other hand, § 948.07 retains the title "Child
enticement," and the definition of sexually violent offense refers not to
a conviction under § 948.07, but to "any crime specified" in
that section. Thus, a reasonable
alternative reading of the definition would include a child enticement
conviction that occurred prior to reenactment of the crime in its present form
and number.
In examining the scope and history
of the crime of child enticement, we observe that the legislature not only
retained the title "Child enticement" to describe the offense, but it
is also apparent that anyone convicted under the former statute of child
enticement could be convicted under the new one. This is so because the changes made in § 948.07, Stats., broaden rather than restrict
the scope of the offense.
The former provision, § 944.12,
Stats., 1987-88, punished anyone
"18 years of age or over, who, with intent to commit a crime against
sexual morality, persuades or entices any child under 18 years of age into any
vehicle, building, room or secluded place ...." The statute as recreated, § 948.07, Stats., punishes anyone who, with intent to commit a
specified list of crimes involving children, "causes or attempts to cause
any child who has not attained the age of 18 years of age to go into any
vehicle, building, room or secluded place ...."
The legislative comment to
§ 948.07, Stats., provides
as follows:
Comments—1987 Act 332
This section:
1.
Deletes the words "persuades or entices" contained in the
current child enticement statute [s.944.12] and, instead, characterizes the
crime of child enticement as "causing or attempting to cause" a child
to go into any vehicle, building, room or secluded place with the intent to
commit a criminal act or acts. The
substitution of "causes" for "persuades or entices",
eliminates as an element of the crime the state of mind of the child being
enticed. The language "attempts to
cause" is added to further clarify that the crime of child enticement
includes the attempted act of enticement, consistent with s. 939.32(1)(d), as
created by this bill.
2. Deletes the provision under current
law limiting the applicability of the child enticement statute to offenders 18
years of age or over. Under the bill,
any person can be charged with and convicted of enticing a child, even if the
offender is also a child. Consequently,
under the bill, an offender who is a child would be treated as a juvenile
offender, as is done with other crimes committed by minors.
3.
Enumerates specific intended purposes as those for which enticing a child would
be a criminal act (e.g., having sexual contact, including sexual intercourse,
with the child). These enumerated
purposes are substituted for the current language requiring an intent to commit
"a crime against sexual morality."
Thus,
in view of the expansive coverage provided, it would seem anomalous for the
legislature to exclude those convicted under the earlier statute,
§ 944.12, Stats. 1987-88.
Our conclusion is further supported
if we look to relevant historical background of the enactment of ch. 980, Stats.
This enactment is sometimes referred to as the "Gerald Turner"
law:
The
enactment of chapter 980 was preceded by a widely publicized, highly
politicized and extremely emotional public debate following the release of the
notorious sex offender Gerald Turner.
State
v. Post, 197 Wis.2d 279, 343, 541 N.W.2d 115, 138-39 (1995)
(Abrahamson, J., dissenting).
Contemporary news reports show that Turner's 1975 convictions included enticing
a child for immoral purposes.
As
further evidence that the legislature meant to incorporate the former child
enticing statute as part of the definition of a "Sexually violent
offense," is the broad temporal scope of ch. 980, Stats. Section
980.13, Stats., provides:
Applicability.
This
chapter applies to a sexually violent person regardless of whether the person
engaged in acts of sexual violence before, on or after June 2, 1994.
To summarize, while the definition
of "Sexually violent offense" is ambiguous, we believe the history,
purpose and scope of ch. 980, Stats.,
reveals that the legislature intended to include child enticement convictions
under the former statute within that definition. The judgment civilly committing Irish for further treatment as a
sexually dangerous person is therefore affirmed.
By the Court.—Judgment
affirmed.
