State v. Bonds
State v. Bonds
Opinion of the Court
Anthony D. Bonds appeals from a judgment convicting him of second degree sexual assault, in violation of section 940.225(2)(a), Stats. The judgment was entered on Bonds' guilty plea. Bonds also appeals from the trial court's denial of his motion for post-conviction relief. The various issues he raises on this appeal focus on his contention that the allegations in the criminal complaint, and the testimony adduced at the preliminary examination conducted pursuant to section 970.03, Stats., do not legally support the bindover either on that charge or any felony, or his guilty plea.
The facts of this case are undisputed. The criminal complaint charging Bonds with second degree sexual assault under section 940.225(2)(a), Stats., alleged that the victim confronted Bonds in the boarding home where she lived. After she told Bonds that he was not supposed to be in the building, Bonds cursed and threatened her. When the victim turned to face Bonds, he, according to the complaint, "reached out with his hand and grabbed the nipple of her left breast and squeezed it very hard and pulled it, causing pain." The complaint further alleged that the victim then "knocked" Bonds' hand away from her, and that Bonds "started bringing his fist towards her face to punch her, but she grabbed his hand and bit his hand." The victim's testimony at the preliminary examination was substantially identical to these allegations, except that in response to a question posed by defense counsel she told the trial court that Bonds threw her to the floor after she bit him. The trial court found probable cause to believe that Bonds had committed a felony and bound him over for trial pursuant to section 970.03(7), Stats. The state filed an information charging Bonds with second degree sexual assault in violation of section 940.225(2)(a), to which Bonds pled guilty.
Section 940.225(2)(a), Stats., provides:
Second Degree Sexual Assault. Whoever does any of the following is guilty of a Class C felony:
(Emphasis added.) Bonds argues that because of section 940.225(2)(a)'s use of the word "by," a causal relationship must exist between the "use or threat of force or violence" and the sexual contact or sexual intercourse. He contends that there was no evidence, either as alleged in the criminal complaint or produced at the preliminary examination, that his sexual contact with the victim was accomplished either by "use ... of force or violence" or by "threat of force or violence." Accordingly, he argues that he should have been charged with either fourth degree sexual assault under section 940.225(3m), Stats., a misdemeanor, or battery under section 940.19(1), Stats., also a misdemeanor, and that his felony-bindover and subsequent conviction for violating section 940.225(2)(a) were therefore improper.
H-I l-H
Although the State does not argue that Bonds' guilty plea precludes us from hearing his appeal, our jurisdiction is a matter that we must consider sua sponte. Mack v. Joint School Dist. No. 3, 92 Wis. 2d 476, 484, 285 N.W.2d 604, 608 (1979). There are two jurisdic
*609 Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.
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There are no reported appellate cases in Wisconsin deciding the precise issue presented here — namely, whether the "by use or threat of force or violence" language in section 940.225(2)(a), Stats., requires that the use or threat be the mechanism by which the sexual contact or sexual intercourse is accomplished rather than merely a concurrent circumstance. Resolution of this issue turns on the statute's meaning, which we must ascertain independently of the trial court's determination. See Wellnitz v. Board of Fire & Police Comm'rs, 151 Wis. 2d 306, 309, 444 N.W.2d 412, 414 (Ct. App. 1989).
Every word in a statute should be given effect, Wisconsin Elec. Power Co. v. Public Serv. Comm'n, 110 Wis. 2d 530, 534-535, 329 N.W.2d 178, 181 (1983), unless that would create an absurd result, In re C.G., 154 Wis. 2d 298, 302-303, 453 N.W.2d 494, 496 (Ct. App. 1990). Section 940.225(2)(a), Stats., prohibits "sexual contact or
We remand this case to the trial court with the following directions. First, Bonds is to be permitted to withdraw his guilty plea. Second, the felony-bindover is to be vacated. Following remand, the case may proceed pursuant to section 970.03(8), Stats.
By the Court. — Judgment and order reversed, and cause remanded with directions.
Section 970.03(7), Stats., provides:
*608 If the court finds probable cause to believe that a felony has been committed by the defendant, it shall bind the defendant over for trial.
Section 940.225(3m), Stats., provides:
Fourth Degree Sexual Assault. Whoever has sexual contact with a person without consent of that person is guilty of a Class A misdemeanor.
Section 940.19(1), Stats., provides:
As the dissent notes, the word "by" is a preposition. But this fact, by itself, proves nothing. There are approximately sixty prepositions in the English language. F.X. Braun, English Grammar for Language Students 15 (1947). "A preposition is a word that shows the relationship of a noun or a pronoun to some other word in a sentence." J.E. Warriner, W. Renison, F. Griffith, English Grammar and Composition 21 (1965) (emphasis in original). The specific relationship that is shown by a preposition
If the legislature had intended the meaning given to section 940.225(2)(a) by the dissent (namely, that the "use or threat of force of violence" need only be concurrent with the sexual contact or intercourse) the legislature would have chosen the preposition "with." The provision would then have read: "Whoever . . . [h]as sexual contact or sexual intercourse with another person without consent by that person with use or threat of force or violence" is guilty of a Class C felony. The legislature's use of the preposition "by" rather than the preposition "with" clearly indicates that the "use or threat" must be the mechanism by which the sexual contact or intercourse is accomplished.
As noted, unconsented sexual contact with another that is not compelled by threat or actual force or violence is prohibited by section 940.225(3m), Stats. Additionally, unconsented sexual intercourse with another that is not compelled by threat or actual force or violence is prohibited by section 940.225(3), Stats. Furthermore, it is a Class C felony for someone to have unconsented sexual contact or unconsented sexual intercourse with another "and cause[ ] injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim." Section 940.225(2)(b), Stats.
Section 970.03(8), Stats., provides:
If the court finds that it is probable that only a misdemeanor has been committed by the defendant, it shall amend the complaint to conform to the evidence. The action shall then proceed as though it had originated as a misdemeanor action.
Dissenting Opinion
(dissenting). The criminal complaint, in my opinion, alleges that Anthony D. Bonds committed an offense cognizable by sec. 940.225(2)(a), Stats. The preliminary hearing contains facts sufficient to establish probable cause to believe that Bonds committed the offense, thereby justifying a trial.
When Bonds, under the circumstances presented, grabbed the victim's breast, he clearly ran afoul of the statute's unambiguous proscription against nonconsen-sual sexual contact "by use ... of force or violence."
I would affirm.
A preposition is an expression governing a substantive in the objective case and joining this substantive to some other element in the sentence. Pence & Emery, A Grammar of Present Day English 111 (2d ed. 1963).
Reference
- Full Case Name
- STATE of Wisconsin, Plaintiff-Respondent, v. Anthony D. BONDS, Defendant-Appellant
- Cited By
- 5 cases
- Status
- Published