PUBLISHED OPINION
Case No.: 94-2570-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ALVIN DAWSON,
Defendant-Appellant.
Submitted on Briefs: May 03, 1995
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June 06, 1995
Opinion Filed: June 06, 1995
Source of APPEAL Appeal
from a judgment and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: JEFFREY A. KREMERS
so indicate)
JUDGES: Sullivan,
Fine and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the defendant-appellant the cause was submitted on the briefs of Brian
Findley, assistant state public defender.
Respondent
ATTORNEYSFor
the plaintiff-respondent the cause was submitted on the briefs of E. Michael
McCann, district attorney, and William E. Hanrahan, assistant
district attorney.
COURT OF APPEALS DECISION DATED AND RELEASED June 06, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2570-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ALVIN DAWSON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JEFFREY A. KREMERS,
Judge. Affirmed in part, reversed in
part, and cause remanded with directions.
Before Sullivan, Fine
and Schudson, JJ.
SULLIVAN,
J. Alvin Dawson appeals from a judgment of conviction, after a jury
trial, for one count of committing a bomb scare, as a habitual criminal,
contrary to §§ 947.015 and 939.62, Stats.;
one count of unlawful use of a telephone, contrary to § 947.012, Stats.; and one count of bail jumping,
contrary to § 946.49(1)(a), Stats.
He also appeals from an order denying his motion for postconviction
relief. Dawson’s sole claim of error
arises out of his conviction for bail jumping.
He alleges that there was insufficient evidence to support the jury’s
verdict finding him guilty of bail jumping because: (1) he was released from
custody without bail; and (2) there was no evidence presented to the jury
proving that he was either released on a bond, or that he intentionally
violated the terms of a bail bond.
We agree that there was
insufficient evidence to support the bail jumping conviction.[1] Before a defendant may be convicted of bail
jumping under § 946.49(1), Stats.,
the State must prove by evidence beyond a reasonable doubt the following three
elements: first, that the defendant was
either arrested for, or charged with, a felony or misdemeanor; second, that the
defendant was released from custody on a bond, under conditions established by
the trial court; and third, that the defendant intentionally failed to comply
with the terms of his or her bond, that is, that the defendant knew of the
terms of the bond and knew that his or her actions did not comply with those
terms. See infra note 7 and
accompanying text. It is undisputed
that Dawson was released from custody without bail, and the record is devoid of
any evidence that Dawson executed either a secured or unsecured bond before his
release. Thus, there was insufficient
evidence to support two elements of the charged offense of bail jumping. Accordingly, while we affirm Dawson’s
convictions for committing a bomb scare and unlawful use of a telephone, we
must reverse his conviction for bail jumping and remand the matter to the trial
court. Upon remand the trial court
shall vacate the jury’s finding of guilt on the bail jumping charge, dismiss
that charge with prejudice, and correct the sentences on the remaining two counts
to reflect our resolution of the bail jumping charge.
I. BACKGROUND
On June 14, 1993, Dawson
telephoned the City of Milwaukee Keenan Health Center and stated that he had
placed a bomb in the building and that the Center was going to “burn up.” On June 16, 1993, Dawson telephoned the City
of Milwaukee Health Department and made threatening statements, intimating that
his estranged wife was going to be injured.
At the time he placed the calls, Dawson had been released from police
custody, without bail, in a pending misdemeanor case of attempted theft by
fraud.
The State charged Dawson
with committing the bomb scare and unlawful use of a telephone. The State further charged Dawson with bail
jumping, stating in the amended complaint that Dawson, “having been released
from custody under Chapter 969 of the Wisconsin Statutes, did intentionally
fail to comply with the terms of his bond, contrary to Wisconsin Statutes
section 946.49(1)(a).” The State
alleged “that it is a condition of bail in all cases in the State of Wisconsin
pursuant to Chapter 969 that the defendant commit no further crimes while out
on bail.” Thus, the State argued that
when Dawson made the bomb scare, he violated a condition of his release from
custody. A jury convicted Dawson of all
three counts. The trial court entered
judgment and sentenced him to seven years of incarceration for committing the
bomb scare; nine months for bail jumping, consecutive to the bomb scare
sentence; and ninety days for unlawful use of a telephone, consecutive to the
bail jumping sentence. Dawson’s
postconviction challenge to the bail jumping charge was denied.
II. ANALYSIS
Dawson contends that the
jury’s finding of guilt on the bail jumping charge must be set aside because
the State failed to prove two elements of the offense—the existence of a bond,
and the intentional violation of the conditions of that bond. Because no bond existed, Dawson argues that
no violation of the conditions of a bond could occur and, thus, the jury’s
finding of guilt had no factual substrate.
The State counters that as a condition of Dawson’s release under
§ 969.02, Stats., he agreed
not to commit any crimes. Accordingly,
the State argues that when Dawson made the bomb scare, he violated a condition
of his release and therefore violated the bail jumping statute, irrespective of
whether he was released without bail or on a formal bond. The State is incorrect.
Our resolution of this
appeal requires us to construe § 946.49(1), Stats., which reads:
Bail jumping. (1)
Whoever, having been released from custody under ch. 969, intentionally fails
to comply with the terms of his or her bond is:
(a) If the offense with which the person is
charged is a misdemeanor, guilty of a Class A misdemeanor.
(b) If the offense with which the person is
charged is a felony, guilty of a Class D felony.
Our
review is de novo. State
v. Dwyer, 181 Wis.2d 826, 836, 512 N.W.2d 233, 236 (Ct. App. 1994)
(construction of a statute presents a question of law, subject to de novo
review on appeal). “Statutory analysis
begins with an examination of the language of the statute itself to determine
whether the language is clear or ambiguous.”
Id. It is a
long-standing rule of statutory construction that “[w]here the meaning of a
statute is plain, it is the duty of the courts to enforce it according to its
obvious terms.” Thornley v.
United States, 113 U.S. 310, 313 (1885); see, e.g., State
v. Smith, 184 Wis. 664, 668, 200 N.W. 638, 640 (1924). “In such a case there is no necessity for
construction.” Thornley,
113 U.S. at 313.
The language of
§ 946.49(1), Stats., is
unambiguous: defendants can only be
convicted of bail jumping under this subsection if they “intentionally
fail[ ] to comply with the terms of [their] bond.” Therefore, the express language of the
statute requires that defendants must be under a bond before they can
“fail[ ] to comply” with the terms of that bond.
Section 967.02(4), Stats., defines “`bond'” as “an
undertaking either secured or unsecured entered into by a person in custody by
which the person binds himself or herself to comply with such conditions as are
set forth therein.”[2] The State argues that a defendant released
without bail under § 969.02(1), Stats.,[3]
is subject to the condition under § 969.02(4), Stats., which provides that “a person released under
[§ 969.02] shall not commit any crime.”
The State further argues that when a defendant is released under this
“condition,” the defendant has “entered into an ‘unsecured’ ‘undertaking’ by
which [the defendant] has bound himself [or herself] to comply with the terms
of his release.” We are not persuaded
by the State's argument.
While the term
“undertaking” is not defined in § 967.02(4), Stats., “the common and approved meaning of a nontechnical
word may be determined by reference to a recognized dictionary.” State v. White, 180 Wis.2d
203, 214, 509 N.W.2d 434, 437 (Ct. App. 1993).
Black’s Law Dictionary
1526 (6th ed. 1990), defines “undertaking” as “[a] promise, engagement, or
stipulation.” Accordingly, under the
State’s proposed application, a defendant who is released without bail under
§ 969.02(1), Stats., solely
by the operation of the condition set forth in § 969.02(4), Stats., would have entered into a
promise or engagement equal to that of a secured bail bond or unsecured appearance
bond.
The State’s
interpretation untenably blurs the distinction between cases where a defendant
is released without any bail and cases where a defendant is released after
execution of a secured or unsecured bond.
Under § 969.02(1), Stats.,
the legislature unambiguously provided the trial court with two[4]
methods to release a misdemeanant: (1) the trial court may either release the
misdemeanant without bail,[5]
or (2) the trial court may permit the misdemeanant to execute an unsecured
appearance (personal recognizance) bond.
The State is correct that under both methods of release there is a
“condition of release,” that the misdemeanant “shall not commit any crime,” see
§ 969.02(4), Stats.;
however, Chapter 969, Stats.,
does not provide any criminal penalties for failing to comply with the
conditions of release.[6] Only § 946.49, Stats., defines such a crime, and this statute specifically
calls for the existence of a “bond.” If
the legislature intended to criminalize the actions of a defendant released
without bail, it would have explicitly drafted § 946.49(1), Stats., to include such situations. Instead, the legislature has clearly
criminalized only the actions of a defendant who is released under a secured
bail bond or unsecured appearance bond, and then “fails to comply with the
terms of [that] bond.” Section
946.49(1), Stats. Such terms would include, inter alia,
the condition that the defendant “shall not commit any crime.” Section 969.02(4), Stats.
Thus, before a defendant
may be found guilty of the offense of bail jumping under § 946.49(1), Stats., the State must prove by
evidence beyond a reasonable doubt the following three elements: first, that the defendant was either
arrested for, or charged with, a felony or misdemeanor; second, that the
defendant was released from custody on a bond, under conditions established by
the trial court; and third, that the defendant intentionally failed to comply
with the terms of his or her bond, that is, that the defendant knew of the
terms of the bond and knew that his or her actions did not comply with those
terms. See Wis J I—Criminal 1795.[7]
With this analysis of
§ 946.49(1), Stats., in
mind, we now address Dawson’s specific contention that the evidence presented
to the jury was insufficient to support his conviction for bail jumping. As recently stated by our supreme court:
“The Due Process Clause of the Fourteenth Amendment places upon the prosecution
in state criminal trials, the burden of proving all elements of the offense
charged, and the burden of proving ‘beyond a reasonable doubt’ every fact
necessary to establish those elements.”
State v. Avila, ___ Wis.2d ___, ___, 532 N.W.2d 423, 429
(1995) (citations omitted). Our review
in sufficiency-of-the-evidence challenges “is limited to determining whether
the evidence, considered most favorably to the conviction, is so insufficient
in probative value and force that no trier of fact acting reasonably could be
convinced beyond a reasonable doubt that the elements of the charged crime have
been proven.” State v. Speese,
191 Wis.2d 205, 211‑12, 528 N.W.2d 63, 66 (Ct. App.), petition for
review granted, 531 Wis.2d 325 (Mar. 21, 1995).
During its oral decision
on Dawson’s postconviction motion, the trial court concluded that Dawson had
been released without bail in the pending misdemeanor attempted-theft-by-fraud
case. The State does not dispute this
conclusion on appeal. Our review of the
record uncovers not one scintilla of evidence showing that Dawson executed a
bond prior to his release in that pending misdemeanor case. Accordingly, there was no evidence presented
to the jury from which it could reasonably conclude that Dawson was both
released from custody on a bond, under conditions established by the trial
court, and that he intentionally failed to comply with the terms of his
bond. See id. As a result, the State did not prove beyond
a reasonable doubt two of the elements of the bail jumping charge, and we must
reverse and remand that portion of Dawson’s judgment of conviction. Upon remand, we order the trial court to
both vacate the jury’s finding of guilt on the bail jumping charge and then
dismiss the charge with prejudice. We
affirm the judgment of conviction with respect to the bomb scare and unlawful
use of a telephone charges. We also
order the trial court to correct Dawson’s sentence as to the two remaining
counts in light of our resolution of his bail jumping conviction.
By the Court.—Judgment
and order affirmed in part, reversed in part, and cause remanded with
directions.
[1] This case was originally scheduled as a one-judge appeal. See § 752.31, Stats. Pursuant to our order of March 9, 1995, the case was assigned to a three-judge panel for resolution. See § 809.41(3), Stats.
[2] Section 967.02, Stats., specifically defines the term “bond” only with respect to its use in Chapters 967 to 979, Stats. See § 967.02, Stats. Because § 946.49(1), Stats., cross-references Chapter 969, however, we conclude that the term “bond” has the same meaning as that defined by § 967.02(4), Stats. See State v. Robertson, 174 Wis.2d 36, 43, 496 N.W.2d 221, 224 (Ct. App. 1993) (stating that whenever possible, court of appeals will construe “interrelated statutes to `produce a harmonious whole'” (citation omitted)).
[3] Section 969.02(1)
& (4), Stats., provides:
Release of defendants charged
with misdemeanors. (1) A judge may release a defendant
charged with a misdemeanor without bail or may permit the defendant to execute
an unsecured appearance bond in an amount specified by the judge.
....
(4) As a condition of release in all cases, a person released under this section shall not commit any crime.
[4] These two methods, of course, are in addition to the possibility of a trial court releasing a misdemeanant after imposing bail pursuant to § 969.01, Stats.
[5] Under Chapter 969, Stats., “`bail'” “means monetary conditions of release.” Section 969.001, Stats.
[6] Section 969.08(2), Stats., does provide that “[v]iolation of the conditions of release or the bail bond constitutes grounds for the court to increase the amount of bail or otherwise alter the conditions of release or, if the alleged violation is the commission of a serious crime, revoke release under this section.”
[7]
The 1994 revision of Wis J
I—Criminal 1795 supports our interpretation of § 946.49(1), Stats.
The previous version of the uniform jury instruction required only that
the defendant be “released from custody under conditions” instead of “released
from custody on bond.” Wis J I—Criminal 1795, cmt.,
n.1. As noted by the Committee comments
following the new jury instruction:
The statute [§ 946.49(1), Stats.] refers to “released from
custody under Chapter 969.” The
Committee concluded that the offense is committed only by someone who violates
a “term of his bond.” Persons may be
released under Chapter 969 without a bond being required. Thus, it is logical to limit the instruction
to situations where release is “on bond.”
Id. The jury in the
case at bar was instructed under the previous jury instructions. Accordingly, as our analysis in the body of
our opinion shows, these instructions did not properly state the law.
Further, we must clarify and harmonize our conclusion in this case with two prior decisions of this court. In both State v. Harris, 190 Wis.2d 719, 528 N.W.2d 7 (Ct. App. 1994), and State v. Nelson, 146 Wis.2d 442, 432 N.W.2d 115 (Ct. App. 1988), we provided variant statements of the elements of bail jumping under § 946.49(1), Stats. In Harris, we stated that the elements of bail jumping were “(1) that the defendant has been arrested for or charged with a misdemeanor; (2) that the defendant has been released on bail, subject to conditions; and (3) that the defendant has intentionally failed to comply with the conditions of release.” Harris, 190 Wis.2d at 724, 528 N.W.2d at 8. In Nelson, we stated that the elements were “that the defendant, (1) has been released from custody on bail, and (2) has intentionally failed to comply with the terms of the bail bond.” Nelson, 146 Wis.2d at 449, 432 N.W.2d at 118. In both cases, however, the defendants were released on bail, and thus in neither case did we face the situation present in the case at bar. Accordingly, while our declaration of the elements of § 946.49(1), Stats., in Harris and Nelson may have adequately stated the law for purposes of cases involving a bail bond, our statement of the elements in the present case is a more accurate reflection of the law in all cases, including those involving an unsecured appearance bond. Thus, our general statement of the elements should be used in all future cases, instead of our previous bail-specific statements of the elements set forth in Harris and Nelson.