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State v. Steinhardt

Supreme Court of Wisconsin

June 21, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Heather L. Steinhardt, Defendant-Appellant-Petitioner.

          ORAL ARGUMENT: February 28, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 367 Wis.2d 350, 876 N.W.2d 179 (2016 - Unpublished

         Circuit Court Ozaukee County L.C. No. 2013CF136 Sandy A. Williams Judge.

          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.

          MICHAEL J. GABLEMAN, J.

         ¶1 This is a review of an unpublished per curiam decision of the court of appeals that affirmed the Ozaukee County circuit court's[1] decision that denied Heather L. Steinhardt's ("Steinhardt")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 State v. Steinhardt, No. 2015AP993-CR, unpublished slip op.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.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

         ¶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]

         ¶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. §§ 948.02(1) (e) and 939.05[6] ("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 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 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 Constitution[9]and Article I, Section 8 of the Wisconsin Constitution[10] 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 Blockburger[11] test to determine whether offenses are identical in law. E.g., Sauceda, 168 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 i_f 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 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 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]

         ¶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 1 9 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');">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');">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 that amounts to a significant change in activity. Sitting on the bed is a departure from bringing FG 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 FG 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 (DC Cir 1967) (Leventhal, J, concur ring)), 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 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 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 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).

         ¶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. 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 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 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 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 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 ...


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