bowlinger qua bowlinger

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Of interest is a recent appeals court decision in Wisconsin v. Hathaway. Here’s the opinion.

The appeals court ruled that by pleading out at the trial court level, he failed to preserve his appeal on the live/dead animal issue. I was worried about this kind of thing at the time, but a guilty plea was probably in the best interests of the defendant.

There’s some hair-splitting by the bench on whether by pleading no contest he pled to a non-existent crime (having sex with a dead animal) or if he is now claiming that the state can’t prove the animal was alive at the time of the act, which would be a disputed factual issue.

This distinction seems like a red herring to me. The trial court ruled on a motion to dismiss, saying:

Defendant moves for dismissal of the complaint on the grounds that it fails to state sufficient facts such as would enable a magistrate to infer that there is probable cause to believe that the defendant committed a sexual act with “an animal” as prescribed in § 944.17(2)(c) Wis. Stats. If a complaint is insufficient in alleging facts supporting such probable cause, the court will lack personal jurisdiction over the person and the complaint will have to be dismissed. [emphasis added]

However, the appeals ruling states:

¶10 The probable cause portion of the complaint alleges facts
constituting the crime. One of the facts is that the deer was dead. What Hathaway is really arguing is that the facts do not support the offense. Or put another way, Hathaway is saying he is not guilty because the State cannot prove he committed the offense against a live animal, as he claims is required.

This seems wrong. He’s not claiming that the State can’t prove the animal was alive. They haven’t even alleged that it was alive. In fact, they alleged that it was dead. He’s claiming that sexual gratification with a dead animal is not a crime (at least under § 944.17(2)(c)), and therefore he was convicted for something that the district court had no jurisdiction over. I think this appeals decision is totally bogus, and ought to be appealed to the state supreme court. In support of this, I would cite State v. Bonds, 161 Wis.2d 605 (Wis.App.,1991) which states:

First, a criminal complaint whose averments allege no crime is void and does not give the court jurisdiction. Champlain v. State, 53 Wis.2d 751, 754, 193 N.W.2d 868, 871 (1972). This jurisdictional defect cannot be waived by a guilty plea. Ibid. Here, however, as Bonds concedes, the averments in the criminal complaint did state the requisite elements of at least two crimes: fourth degree sexual assault and battery. Thus, the fact that the averments in the criminal complaint may not have supported the specific charge did not deprive the trial court of jurisdiction.

By implication, if the complaint didn’t state the elements of any other crime (which this one probably didn’t, though I haven’t seen it), the trial court would not have had jurisdiction. Additionally, because the complaint alleged a fact negativing a (disputed) element of the crime, the defective complaint should have resulted in a lack of subject matter jurisdiction.

As an aside, there’s an unpublished opinion that seems to support the not-a-crime interpretation for the same statute: State v. Sterling Rachwal (Wis.App. 1995.). The court there took an appropriately narrow reading of § 944.17(2)(c), finding that “an act of sexual gratification involving his or her sex organ and the sex organ, mouth or anus of an animal,” didn’t include Rachwal’s particular activity. I won’t go into detail here, but I will draw an analogy to the recent Supreme Court opinion in Watson v. U.S. (Decided Dec 10, 2007). Watson held that exchanging a gun for drugs did not constitute the “use” of a gun in the commission of a crime. You may remember the Posner opinion on the same issue, U.S. v. Westmoreland, 122 F.3d 431, (CA7 1997).

Anyway, Rachwal’s proclivity, while “involving” his sex organ, and an indicated part of an animal, wasn’t the right kind of “sexual gratification”, according to the Wisconsin Court of Appeals. Perhaps I’ve said too much, but I did get to drag Posner into this.

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