School zone
enhancer constitutional
Dismissal
on equal protection grounds reversed
By
David Ziemer
david.ziemer@wislawjournal.com
Jan.
22, 2007
|
What
the court held
Case:
State of Wisconsin v. Leonard J. Quintana, No. 2006AP499-CR
Issue:
Does the crime of mayhem include injury to the forehead?
Is the school zone enhancer constitutional?
Holding:
Yes. Injury to the forehead could damage the brain, a critical
organ. Yes. Committing violent crimes in school areas increases
the risk of injury to children.
Attorneys:
For Appellant: Wren, Christopher G., Madison; Falstad, Jill
N., Wausau; Minder, Chad, Wausau; For Respondent: Connell,
James B., Wausau
|
The
crime of mayhem includes injuring the victim’s forehead,
the Wisconsin Court of Appeals held on Jan. 17.
The
court also held, addressing another issue of first impression,
that the school zone enhancer, sec. 939.632, is constitutional.
According
to the complaint, in 2004, Leonard J. Quintana entered the bedroom
of his ex-wife Shannon and struck her forehead with the claw end
of a hammer approximately three times. She suffered a skull fracture
and a laceration from above her eyebrow to behind her ear.
As
a result of the skull fracture, small pieces of bone tore the
brain lining, allowing spinal fluid to leak into the wound. Shannon
also sustained an intracranial injury with air and blood in the
brain, an injury that carries potential for death. Shannon suffers
from recurrent headaches and memory deficits.
The
initial criminal complaint changed Quin-tana with attempted first-degree
intentional homicide with domestic violence and dangerous weapon
enhancers.
After
amendments to the complaint, Quintana ultimately faced charges
of solicitation of first-degree intentional homicide, first-degree
reckless injury, aggravated battery, and mayhem. The mayhem and
aggravated battery charges were alleged to have been committed
in a school zone.
Quintana
moved to dismiss the mayhem charge, and the school zone penalty
enhancers.
Marathon
County Circuit Court Judge Vincent K. Howard granted the motions,
concluding that the mayhem statute is inapplicable to forehead
injuries, and that the school zone enhancers are unconstitutional
as applied.
The
state appealed, and the court of appeals reversed in a decision
by Judge Michael W. Hoover.
Mayhem
The
court first held that the mayhem statute encompasses Quintana’s
alleged conduct.
Section
940.21 provides, “Whoever, with intent to disable or disfigure
another, cuts or mutilates the tongue, eye, ear, nose, lip, limb
or other bodily member of another is guilty of a Class C felony.”
At
issue is whether the forehead is an “other bodily member”
under the statute. The court concluded it was, applying general
rules of statutory construction.
Under
the doctrine of ejusdem generis, “when a general word or
phrase follows a list of specifics, the general word or phrase
will be interpreted to include only items of the same type as
those listed.” Black’s Law Dictionary 556 (8th ed. 2004).
The
court rejected Quintana’s argument that the forehead is excluded,
because it is not similar to the other listed body parts; the
court concluded that construction would render the phrase, “other
bodily member” meaningless.
The
court reasoned, “If we limit ‘other bodily member’
to ‘bodily members similar to those specified,’ we are
not certain what would constitute an ‘other bodily member.’
The tongue, eyes, ears, nose, lips, and limbs really have no analogous
parts elsewhere on the body. Yet the legislature must have intended
the mayhem statute to apply to some other parts, or it would not
have included ‘other bodily member’ in the statute.”
The
court also rejected the state’s argument — that the
entire head is an “other bodily member,” because it
would render the enumeration of various parts of the head meaningless.
Nevertheless,
because the forehead protects the brain, a critical organ, the
court concluded that the injuries do constitute mayhem, even though
not every attack to the head would qualify.
The
court reasoned, “the forehead is skin and bone protecting
parts of the brain, a critical organ. An attack to the forehead
threatens to disable the internal organ beneath. Indeed, Shannon
suffered multiple brain injuries. By contrast … a laceration
to the jaw line — or a cut to the cheek are, as examples,
arguably not adequate bases for a mayhem charge in this state.”
Accordingly,
the court held that the mayhem charge should not have been dismissed.
School
Zone
The
court then held that the school zone enhancer did not violate
the Equal Protection Clause or Due Process Clause as applied to
Quintana, applying rational basis scrutiny.
Quintana
argued that the 1,000-foot classification is arbitrary and irrational,
because he was inside a residence, in the early morning hours,
on a holiday weekend, and it was therefore highly unlikely children
would be nearby.
Quintana
conceded that State v. Her-mann, 164 Wis. 2d 269, 284-85, 474
N.W.2d 906 (Ct. App. 1991), was valid law. In Hermann, the court
upheld an enhancer for drug offenses within 1,000 feet of a school,
because, “even if illegal drug transactions do not directly
involve children, such illegality does contribute directly to
a violent and dangerous atmosphere. Seeking to eliminate such
an atmosphere near our schools by more harshly penalizing those
who contribute to it is not patently arbitrary or irrational.”
The
court rejected Quintana’s argument that Hermann was distinguishable.
First,
the court noted that this was not a stand-alone domestic violence
charge, but instead included allegations of solicitation of homicide,
mayhem, aggravated battery, and reckless injury.
The
court wrote, “The question is therefore not … whether
domestic violence might influence children, even though we suspect
it often does. Rather, the question is whether the school zone
enhancer is meant to protect children from the adverse impacts
of the mayhem and aggravated battery charges and whether there
is a reasonable basis for such a statute.”
Answering
its question, the court concluded, “We think the protective
intent is self-evident.”
The
court added, “it is evident that through the school zone
enhancer, the legislature meant to create a zone where, regardless
of time of day or calendar date, the public can consider children
safe and protected. The enhancer serves to deter crimes with the
most serious adverse impacts on the atmosphere surrounding schools.”
Finally,
the court included a litany of additional reasons why the statute
is constitutional:
- Because
of age, size, life experience, and mental and emotional development,
school-age children run greater risks from violent crime than
do adults.
- Because
of physical amenities and program opportunities at schools,
school-age children also often congregate in and around schools
at other times, including holidays, weekends, and vacation periods.
- The
closer a location to a school, the greater the likelihood of
an increased concentration of children.
- One
thousand feet from a school’s premises establishes a boundary
at which the concentration of children will likely have declined
to a level where the enhanced risk of violence will have dissipated
to a point of ordinary risk.
- Violent
criminal conduct that originates within a residence between
related individuals can spill over into public areas traversed
by children.
To
this list, the court added the following observation, “when
children learn of violent crime — as they often do, through
television, the Internet, observation, or gossip — they begin
to wonder whether something similar could happen to them or their
family and friends. Unlike when the reference is to violence in
another part of the country or the world, children’s preoccupation
and worry is no doubt magnified when a violent event happens in
an area with which they familiar, such as their school, because
their ability to visualize the area makes the threat more concrete
to them.”
Accordingly,
the court held that there was a rational basis for the statute
and for applying it to Quintana, and reversed the dismissal of
the penalty enhancers.
Click here for
Case Analysis.
David
Ziemer can be reached by email.
