State v. Richard L. Kittilstad
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SUPREME COURT OF WISCONSIN Case No.: 98-1456-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. Richard L. Kittilstad, Defendant-Appellant-Petitioner. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 222 Wis. 2d 204, 585 N.W.2d 925 (Ct. App. 1998-Published) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: December 17, 1999 October 5, 1999 Circuit Eau Claire Benjamin D. Proctor JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Richard L. Wachowski and Wachowski & Johnson, S.C., Eau Claire and oral argument by Richard L. Wachowski. For the plaintiff-respondent the cause was argued by Daniel J. O Brien, assistant attorney general with whom on the brief was James E. Doyle, attorney general. No. 98-1456-CR NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 98-1456-CR STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, DEC 17, 1999 v. Marilyn L. Graves Clerk of Supreme Court Madison, WI Richard L. Kittilstad, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. The defendant, Affirmed. Richard L. Kittilstad, seeks review of a published decision of the court of appeals, State v. Kittilstad, 222 Wis. 2d 204, 585 N.W.2d 925 (Ct. App. 1998), which affirmed, on interlocutory appeal, the circuit court s denial of his motion challenging the bindover and the charges in the information. ¶2 The State has charged the defendant with four counts of soliciting prostitution under Wis. Stat. § 944.32 (1995-96)1 and one count of extortion under Wis. Stat. § 943.30(1). The charges are based on the testimony of five Panamanian students whom the defendant sponsored to come to the United States. 1 At All references to the Wisconsin Statutes are to the 199596 version unless otherwise noted. 1 No. the preliminary examination, the students testified 98-1456-CR that the defendant repeatedly offered to pay them if they would bring women back to his house where they were staying, have sex with them, and allow him to watch. One student testified that the defendant threatened to throw him out of his home and interfere with his study program if the student refused his requests. defendant argues that establish solicitation this of evidence, even prostitution or if true, extortion The cannot as those offenses are defined in the Wisconsin Statutes. ¶3 Like the circuit court and the court of appeals, we conclude violating that the encompass examination. statutes the the conduct defendant alleged is at charged the with preliminary We affirm the decision of the court of appeals. I. ¶4 In against November the 1997 defendant, police Richard investigated L. Kittilstad, allegations a Lutheran minister who had sponsored several young Panamanian men in their studies at Chippewa Valley Technical College. A criminal complaint was filed charging him with six counts of soliciting prostitution preliminary contrary to examination, Wis. the Stat. defendant § 944.32. moved to Before the dismiss the complaint on the grounds that it was defective because the facts stated in it failed to support the charges. Judge Eric J. Wahl reserved his decision on the motion until after the preliminary hearing. ¶5 1998. The preliminary hearing took place on January The State presented the testimony of five students. 2 20, No. ¶6 98-1456-CR The first witness testified that he arranged to come to the United States as a student and live with the defendant in Augusta, Wisconsin, arriving on May 9, 1996. The day after he arrived, the defendant began talking to him about sex. After a couple of months, the defendant began offering the witness money if he would bring a woman to the home, have sex with her, and let him watch. The defendant offered to pay him different amounts of money, between thirty and eighty dollars, depending on the particular sex acts involved. Once, after the witness ran up a large phone bill, the defendant said that the only way to pay it off would be to bring fourteen different women to the house during the next month, have sex with each of them, and let the defendant watch. made these requests According to the witness, the defendant repeatedly, eighteen-month period. once a week or so, over an The witness moved out of the defendant s home in November 1997. ¶7 The second witness gave similar testimony. He testified about one particular incident in which he wanted to take a martial arts course. He said that the defendant offered to pay for the course if the witness would bring a woman home and have sex with her in the room above the defendant s room. At other times, the defendant offered to reduce the witness s phone bill in exchange for allowing the defendant to watch him have sex with women. The witness reported that the defendant made more than ten similar requests. The witness complained to a counselor at his school about the requests sometime in 1997. 3 No. 98-1456-CR Since moving out of the defendant s home in November 1997 he has been supported by the defendant s church. ¶8 The next witness also gave similar testimony. A few months after his arrival at the defendant s home in May 1995, the defendant began offering him money, clothes, or favors, such as the use of the defendant s car, if the witness would bring women to the house and have sex with them. He testified that anytime I go out with a different woman he wanted me to bring that woman home. He estimated that the defendant made more than five such requests, until the time he moved out of the home in the spring of 1997. ¶9 The fourth witness, who arrived at the defendant s home in May 1996, gave substantially the same testimony. reported that a few weeks after his arrival the He defendant offered to pay him twenty to forty dollars if he would bring a woman home and have defendant s room. sex with her in the room above the The defendant made many similar requests over the course of the next year, about twice a month on average. The witness moved out of the defendant s home in May 1997. ¶10 The last States in May 1996. student to testify arrived in the United He stated that about a week and a half after his arrival, the defendant told him that if he did not have sex with a woman at the house, the defendant would throw him out of the house and try to force him to leave school and return to Panama. The witness stated that over the course of the year, the defendant repeated this threat more than twentyfive times. The witness moved out in the spring of 1997. 4 No. ¶11 The preliminary examination testimony 98-1456-CR is somewhat unclear as to whether this witness ultimately moved out of the defendant s home by his own choice or was kicked out. In response to the question Why did you move out? he answered, Because I wasn t living comfortable hearing everytime about sex and accusing me and treating me like a deer in the woods in the hunting season. However, he later testified as follows: Q. (Continuing) Mr. Kittilstad didn t kick you out? A. He did. Q. He did or didn t? A. He did. Q. He did? A. Yeah. Finally, in response to the question, And do you know if he ever did anything to get you to go back to Panama? he gave this response: A: . . . I don t remember and I can t tell you anything because when I move out of the house I did it because he always keep pressuring me like this . . . he d say, you got to move out and your last days, I don t remember whatever day that, in the past. Taken as a whole, the witness s testimony could support findings that the defendant repeatedly threatened to expel him from his home, to interfere with his study program, and to try to have him removed from the United States if he refused to have sex with women in the defendant s house. The witness testified that he finally left the house as a result of these pressures. 5 No. ¶12 After hearing this evidence and 98-1456-CR considering the attorneys arguments, Judge Wahl denied the defendant s motion to dismiss the complaint. The defendant identical challenge to the bindover. promptly raised an The judge indicated that he would come to the same conclusion, but because the district attorney had informed the court that he intended to amend the charges to decision on include the a count bindover of extortion, until after the the court filing delayed of the information. ¶13 On January 27, 1998, the district attorney filed an information charging the defendant with four counts of soliciting prostitution contrary to Wis. Stat. § 944.32 and one count of extortion contrary to Wis. Stat. § 943.30(1). ¶14 The defendant filed a motion challenging the bindover and the information. alleged do not He argued that even if true, the facts constitute solicitation of prostitution or extortion, and that therefore (1) the evidence offered at the preliminary examination was insufficient to bind him over for trial because it did not support a finding that he had probably committed a felony, and (2) the charges in the information were not supported by the evidence. ¶15 Judge Benjamin D. Proctor2 denied the motion, holding that under a reasonable interpretation of the statutes, the case law, and application of standard 2 rules of statutory The defendant requested substitution of a judge under Wis. Stat. § 971.20. Judge Benjamin D. Proctor was substituted for Judge Eric J. Wahl on January 30, 1998. 6 No. 98-1456-CR construction, the solicitation of prostitution statute and the extortion statute Specifically, Judge encompassed Proctor the alleged concluded that conduct. the state s allegations, if proven, would constitute a violation of Wis. Stat. § 944.32 because the defendant intentionally solicited the students to engage in sex for money or other things of value. The court concluded that the contrary result urged by the defendant is absurd and should be avoided. ¶16 statute, Similarly, Wis. Stat. the court concluded § 943.30(1), that applied to the alleged threats against one of the students. § 943.30(1) person, prohibits property, anyone or business from of extortion defendant s Wisconsin Stat. threatening another the to with the injure intent the to compel the person to do some act against the person s will. Property or person of another has been interpreted broadly to include, among other things, an interest in a lawsuit. The court therefore decided that the statute extends to threats to withhold room and board or the opportunity for education. ¶17 The defendant requested permission to appeal Judge Proctor s nonfinal order rejecting his challenge to the bindover and the information. The court of appeals granted permission and, on appeal, affirmed the circuit court. With regard to the solicitation court of prostitution charges, the of appeals concluded that the defendant s alleged actions fell within the plain and broad meaning of the statute, and that the evidence was sufficient to establish that the defendant solicited the students to the ongoing practice of prostitution. 7 Kittilstad, No. 98-1456-CR 222 Wis. 2d at 213. Likewise, the court concluded that the alleged under threats fell the extortion statute. Since education is a prerequisite for a profession, the court decided that a threat to a person s education is a threat to his or her profession under the statute. The defendant petitions this court for review of these decisions. II. ¶18 him The defendant s motion to dismiss the charges against arises information. as a challenge to the bindover decision and the In general, our review of a bindover determination is limited; we will affirm a decision to bind a defendant over for trial if the record contains any substantial ground based on competent evidence to support it. 684, 704, 499 N.W.2d 152 (1993). State v. Koch, 175 Wis. 2d Similarly, our review of the charges in an information is limited to the narrow question of whether the district attorney abused his discretion in issuing a charge not within the confines of and wholly unrelated to the testimony received at the preliminary examination. State v. Hooper, 101 Wis. 2d 517, 537, 305 N.W.2d 100 (1981). ¶19 both the However, in this case, the defendant s challenges to bindover and the information turn on questions of statutory construction. The defendant argues that, under proper interpretations solicitation Wis. Stat. of the § 944.32, and the of extortion prostitution statute, statute, Wis. Stat. § 943.30, the evidence produced at the preliminary examination simply cannot support the charges. 8 No. ¶20 Statutory interpretation is a question of law that we review independently. 516, 538, 579 legislature s we statute. State v. Cardenas-Hernandez, 219 Wis. 2d N.W.2d 678 is interpretation intent, 98-1456-CR determine to intent. begin Id. (1998). Our and give Id. To determine looking by goal at the plain in statutory effect the to the legislature s language of the If the plain language is unambiguous, we apply the ordinary and accepted meaning of the language to the facts before us. Id. III. ¶21 The first issue is whether the facts alleged at the preliminary examination constituted solicitation of prostitution under Wis. Stat. § 944.32. The statute states in relevant part: whoever intentionally solicits or causes any person to practice prostitution prostitution allegation or is that establishes guilty the of a defendant any person Class D actually in felony. caused a place There any of is no person to practice prostitution, or that he attempted to establish any person in a place of prostitution. be interpreted is whoever Thus, the language that must intentionally solicits . . . any person to practice prostitution . . . is guilty of a Class D felony. ¶22 Wis. Stat. § 944.32. The court of appeals has interpreted this language in State v. Johnson, 108 Wis. 2d 703, 324 N.W.2d 447 (Ct. App. 1982), and State v. Huff, 123 Wis. 2d 397, 367 N.W.2d 226 (Ct. App. 1985). The defendants in those cases, like the defendant 9 No. 98-1456-CR in the case at hand, argued that their alleged conduct did not constitute solicitation of prostitution under the statute. ¶23 In State v. Johnson, the defendant challenged his conviction on constitutional grounds as well as on the ground that the evidence was insufficient to support his conviction. Johnson, 108 Wis. 2d at 706. The defendant had informed a female acquaintance that he could help train her for a modeling career and asked her to accompany him to an interview. 706-07. The interview turned into a photography Id. at session which he requested that she pose for nude photographs. Id. in He then told her that although she could make $100 an hour as a model, she could make $200 an hour by performing sex acts with photographers. Id. such he activity, When the woman expressed disinterest in attempted to overcome her objections by explaining that he was not asking her to stand on the corner, and that the clients did not need to know her real name. Id. The court of appeals rejected the defendant s constitutional arguments and also determined that the evidence supported the defendant s conviction. Id. at 710-12. The court specifically determined that the testimony that [the defendant] urged [his acquaintance] to use her body for profit by engaging in sexual acts with § 944.32. ¶24 men at $200 a session covered every element of Id. at 712. In Huff, the defendant was charged with several counts of solicitation of prostitution under Wis. Stat. § 944.32, based on allegations that he had asked women to have sex with him for money. Huff, 123 Wis. 2d at 400. 10 The state conceded that most No. of these counts should have been charged as 98-1456-CR misdemeanor prostitution, but argued that with regard to one of the counts there was sufficient evidence to establish that the defendant solicited a woman to engage in prostitution on an ongoing basis. Id. at 407. The court agreed and sustained that count. Id. In doing so, the court rejected the defendant s argument that Wis. Stat. § 944.32 does not apply when the solicitor is also the person benefiting from the prostitute s services because the court concluded that the statute focuses on whether solicitation occurred and not on whether the solicitation was for an act to be performed with a third party. Id. at 404. The court also rejected the argument that the statute does not apply if the solicitor does not receive any commercial gain, because monetary gain is not an element of the crime. ¶25 Id. at 405. We now must apply the language of Wis. Stat. § 944.32 to the case at hand. presented at the The defendant concedes that the evidence preliminary examination was establish that he solicited the students. Wis. 2d at 209. true, does prostitution. encompass the sufficient to Kittilstad, 222 His argument is that this solicitation, even if not constitute solicitation to practice He contends that interpreting § 944.32 so as to alleged conduct does not serve the statute s purpose to curtail the recruitment of males and females into the practice of providing sex for a fee, Huff, 123 Wis. 2d at 405, because the evidence establishes only that the defendant was attempting to facilitate voyeurism, not the providing of sex for a fee. He also argues that the statutory definition of 11 No. prostitution is not broad enough to extend to 98-1456-CR the alleged facts because one of the people engaged in the sex act would not be aware of the commercial nature of the transaction and would not be exchanging sex for payment. ¶26 allegedly § 944.30 We start by examining whether the acts the defendant solicited is entitled were prostitution. Prostitution but Wisconsin does not Stat. explicitly define the term, rather the statute sets forth a list of conduct as constituting prostitution. The statute provides: Any person who intentionally does any of the following is guilty of a Class A misdemeanor: (1) Has or offers to have or requests to have nonmarital sexual intercourse for anything of value. (2) Commits or offers to commit or requests to commit an act of sexual gratification, in public or in private, involving the sex organ of one person and the mouth or anus of another for anything of value. (3) Is an inmate in a place of prostitution. (4) Masturbates a person or offers to masturbate a person or requests to be masturbated by a person for anything of value. (5) Commits or offers to commit or requests to commit an act of sexual contact for anything of value. If the activity that the defendant allegedly solicited from the students meets any of these definitions, then he was soliciting prostitution in violation of Wis. Stat. § 944.32. ¶27 The first four witnesses all testified that the defendant asked them to have sex with women in his house in exchange for money, reduction in their phone bills, or other 12 No. things of value. 98-1456-CR It is reasonable to infer that to have sex would involve having nonmarital sexual intercourse as prohibited in Wis. Stat. § 944.30(1), or committing an act of sexual contact as prohibited in § 944.30(5). Thus, had any of the students requests, complied with the defendant s the student would have intentionally committed acts prohibited by § 944.30 in exchange for payment from the defendant and therefore would have engaged in prostitution under the plain language of § 944.30. ¶28 The defendant s contrary interpretation of the statute would exclude not only the admittedly unusual situation alleged in this case but also other, more typical situations. For example, a pimp who solicits someone to engage in sex acts with individuals who then pay the pimp could not be prosecuted for solicitation of prostitution. Similarly, as the court of appeals pointed out, under the defendant s interpretation Wis. Stat. § 944.32 would not apply to a situation in which a father pays someone to have sex with his son or a businessman pays someone to have sex with his client. Kittilstad, 222 Wis. 2d at 211 n.1. ¶29 The exclusion of these situations from the reach of the broad language of Wis. Stat. § 944.32 would be unreasonable. This court seeks unreasonable results. 366 N.W.2d 891 to avoid interpretations that produce DeMars v. LaPour, 123 Wis. 2d 366, 372, (1985). The defendant contends that these examples are distinguishable because the father or businessman would be engaging in a commercial 13 transaction with a No. prostitute, aware that someone the knowingly contemplated engaged sexual in 98-1456-CR prostitution activity is part and of a commercial transaction. ¶30 The defendant s argument disregards the fact that Wis. Stat. § 944.30 does not define prostitution in terms of whether or not someone is a prostitute. The statute prohibits, among other things, having, offering to have, or requesting to have sex in exchange for anything of value. It looks to the individual mental state of the particular person who is alleged to have engaged in acts constituting prostitution and not to whether the acts were a commercial transaction. Thus, any student who acquiesced to the defendant s alleged requests would have been engaged in prostitution statute. within the meaning of the Whether the woman involved in the contemplated sexual activity would be aware of the underlying commercial transaction is irrelevant to whether whether the the student was engaged in solicitor was engaged in prostitution, or solicitation. Likewise, in the father-son or businessman-client examples, whether or not the son or client is aware that the person with whom he is engaging in sexual contact is doing so for payment, the person who receives payment in exchange for sex is engaged in prostitution, and the father or businessman has 14 No. prostitution.3 solicited These situations 98-1456-CR therefore are not distinguishable. ¶31 The defendant in Huff argued essentially the reverse of the defendant s argument in this case. Wis. Stat. recruiter § 944.32 only solicits applies someone to to have He contended that situations sex with a in which the third party. Huff, 123 Wis.2d at 403-04. Huff s reasoning in rejecting that argument also applies here. Because the statute s goal is to stop the recruitment of people into the practice of providing sex in exchange for something of value, the focus is on the recruiter or solicitor and does not hinge on whether the solicitor wants the recruit to have sex with some third party. Id. at 405. ¶32 not The defendant s argument that our interpretation does serve the purpose of the solicitation of prostitution statute also fails to follow the language of the statute itself. The solicitation statute explicitly prohibits the recruitment of people into the practice of prostitution. Although it may be true that the crime of prostitution more typically involves the direct and knowing exchange of money by one person in return for sex from the other person, the plain language of Wis. Stat. § 944.30 extends to other situations. is intended to prohibit the The solicitation statute recruitment 3 of people into the Of course, the son, the businessman, or a woman with whom a student had sex would have also engaged in prostitution under Wis. Stat. § 944.30 if he or she had intentionally had sex, offered to have sex, or requested to have sex in exchange for anything of value. 15 No. 98-1456-CR practice of any of the activities prohibited by the prostitution statute. ¶33 Citing State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980), the defendant also contends that we should construe the definition of prostitution strictly because Wis. Stat. § 944.30 is a penal statute. statutes does unambiguous, The rule of strict construction of penal not or apply when when strict the legislature s construction goes Rabe, 96 Wis. 2d at 70. legislature s purpose. intent against is the We agree that the unusual facts of this case approach the outer reaches of the conduct contemplated recognized statutes that is the is the rule not application; . . . . construction by a statute. of However, strict rule of we have of construction general or long penal universal Sometimes a strict and sometimes a liberal required, even in respect to a penal law, because the dominating purpose of all construction is to carry out the legislative purpose. 81, 145 N.W. 368 (1914). State v. Boliski, 156 Wis. 78, In interpreting a statute, our ultimate aim is to give effect to the legislature s intent, and rules of statutory interpretation defeat the purpose of the statute. cannot be used when they State v. Hopkins, 168 Wis. 2d 802, 814-15, 484 N.W.2d 549 (1992). ¶34 to the Wisconsin Stat. § 944.30 is not ambiguous as applied facts alleged in this case. We conclude that the definition of prostitution in § 944.30 plainly encompasses the conduct the defendant is accused students. 16 of soliciting from the No. ¶35 Having allegedly concluded solicited from that the the students conduct would the have 98-1456-CR defendant constituted prostitution, we next must determine whether the evidence is sufficient to establish that he solicited the students practice prostitution, as Wis. Stat. § 944.32 requires. practice prostitution acts of prostitution. means to engage in repeated, to To ongoing Johnson, 108 Wis. 2d at 712; Huff, 123 Wis. 2d at 407. ¶36 None of the testimony at the preliminary examination suggested that the defendant asked each student to engage in only a single testified act of sex. that over the repeatedly requested To course of that he the contrary, many commit months acts of each the witness defendant prostitution. Furthermore, each witness clearly claimed that the requests were not for a single act of prostitution, but for multiple acts of prostitution. ¶37 The first witness testified in part that the defendant asked him to have sex with fourteen different women in the house over the course of a month. The second witness testified: A. I had the telephone bill. And he told me that each time I bring a girl at the house and have sex with her he was going to discount from the telephone bill. Q. He would reduce it somewhat? A. Yeah, reduce the amount each time. Q. Okay. So would it take bringing one girl over to get rid of the phone bill or more than one? A. No, sir, more than one. 17 No. 98-1456-CR Similarly, the third witness gave this testimony: Q. All right. When he was doing it, did he give you, did he ever say how many women he wanted you to do this with? A. Different womens . . . . Q. What did he say about that? A. Well, he wants, he want me to go out with different womens so anytime I go out with a different woman he wanted me to bring that woman home. Finally, the fourth witness testified he ask, you know, about girls. You know, house . . . . ¶38 in an . . . if I can bring girls over to the (Emphasis added). For purposes of a bindover or the filing of a charge information, this testimony is a sufficient basis to support the conclusion that the defendant was requesting that the students engage in an ongoing practice of prostitution. ¶39 falls In sum, we hold that the defendant s alleged conduct within the definition of solicitation of prostitution under Wis. Stat. § 944.32. IV. ¶40 final The second issue is whether the facts alleged by the witness at the preliminary extortion under Wis. Stat. § 943.30(1). examination constitute The statute provides: Whoever, either verbally or by any written or printed communication, maliciously threatens to accuse or accuses another of any crime or offense, or threatens or commits any injury to the person, property, business, profession, calling or trade, or the profits and income of any business, profession, calling or trade of another, with intent thereby to extort money or any pecuniary advantage whatever, or with intent to 18 No. 98-1456-CR compel the person so threatened to do any act against the person s will or omit to do any lawful act, is guilty of a Class D felony. The information basis that he charges verbally the defendant threatened to with extortion commit injury on the to the person, property, or calling of another person with intent to compel that person to act against his will, in violation of this statute. ¶41 The charge is based on testimony given by the last witness at the preliminary examination. He gave the following testimony about the defendant s alleged threats against him: Q. And what was it that happened conversation or what did he say to you? A. He said something like anyone in this house that I having a sexual life, you Panama. You got to go back Q. during that if you don t have sex with can see, prove that you re got to, you got to go to to Panama. Is this something you wanted to do? A. Which one, go to Panama or have sex with somebody else and somebody can see me? Q. Let s start with going back to Panama. want that? Did you A. I came for one, one reason, to study. And I didn t know that that was the surprise that I would have. Q. Okay. Did you want to bring people to the house to have sex? A. No, sir. . . . Q. How many times [did he make such a request]? A. Well, I remember . . . as far as in my house more than twenty-five times. 19 No. 98-1456-CR Q. And what would he say or ask or tell you during the more than twenty-five times? A. You got to bring girls over to my house. way you got to come back to Panama. . . . Another Q. And what did he tell you would happen if you did not do that? A. Kick me out the house. And he do, he will do whatever he can do by himself to send me back to Panama and break my futures. Q. If you didn t do what? A. Have sex in his house and let him see. . . . ¶42 This testimony, if proven, provides probable cause to believe that the defendant made threats with intent to compel the witness to do acts against his will, and the defendant does not challenge the charge on these grounds. He argues only that the threats, even if proven, do not constitute any of the types of threats enumerated in Wis. Stat. § 943.30(1). ¶43 In an argument similar to the one addressed above with regard to the solicitation charges, the defendant cites Rabe for the contention that under the rule of lenity, penal statutes are generally strictly construed. Under this rule of strict construction, he argues, the allegations do not show that he threatened any injury to the person, property, business, profession, calling or trade, or the profits or income of any business, profession, calling or trade of another under Wis. Stat. § 943.30(1). ¶44 Case law clarifies that the defendant is actually referring to two separate rules, the rule of lenity and the 20 No. 98-1456-CR general rule subjecting penal statutes to strict construction so as to safeguard a defendant s rights. The rule of lenity was developed in the federal courts and holds that where a criminal statute is ambiguous, it should be interpreted in a defendant s favor. in Rabe, 96 Wis. 2d at 69. the familiar Wisconsin The rule of lenity is echoed rule strictly that to penal safeguard statutes a are generally construed defendant s rights. Id. at 70 (citing Austin v. State, 86 Wis. 2d 213, 223, 271 N.W.2d 668 (1978)). ¶45 As explained above, the rule of strict construction of penal statutes does not apply unless a statute is ambiguous, and it cannot be used to circumvent the purpose of the statute. Moreover, the rule is not violated by taking the commonsense view of the statute as a whole and giving effect to the object of the legislature, if a reasonable construction of the words permits it. Austin, 86 Wis. 2d at 223 (quoting Zarnott v. Timken-Detroit Axle Co., 244 Wis. 596, 600, 13 N.W.2d 53 (1944)). ¶46 By enacting the language in question, any injury to the person, property, business, profession, calling or trade, or the profits and income of any business, profession, calling or trade of another, the legislature enumerated the specific types of interests threats. began the that it intended to protect against extortive While the legislature set forth specific interests, it list with the expansive phrase any injury to, indicating that the protection of these interests should extend broadly to all injuries. 21 No. ¶47 Courts have interpreted these with the legislature s broad intent. interests 98-1456-CR in keeping Thus, under a previous version of the extortion statute, this court determined that a threat to do injury to the business of another included a threat to call a strike. N.W. 290 (1936). Mayer v. State, 222 Wis. 34, 37, 267 More recently, the court of appeals determined that the term property as it is used in sec. 943.30(1), is broad enough to encompass an interest in a lawsuit. State v. Manthey, 169 Wis. 2d 673, 689, 487 N.W.2d 44 (Ct. App. 1992). ¶48 Like the court of appeals and the circuit court, we conclude that the language of Wis. Stat. § 943.30(1) is broad enough to encompass the threats alleged in this case. ¶49 According to the testimony, the defendant threatened to do everything he could to ensure that the student would have to end his studies in the United States and return to Panama if the student refused to have sex with women in his home. The court the of appeals concluded that these were threats witness s profession under Wis. Stat. § 943.30(1). to Looking to the dictionary definition of profession, the court noted that an education is a prerequisite for a profession. 222 Wis. 2d at 214-15. Because an education Kittilstad, is therefore inextricably connected to obtaining a profession, a threat to a person s education is a threat to his or her profession. Id. at 215. ¶50 conclude Although we agree with this reasoning in principle, we that constitute it threats is to even the clearer witness s 22 that the calling alleged or threats trade. A No. 98-1456-CR calling is defined as [a]n occupation, a profession, or a career. The American Heritage Language 273 (3d ed. 1992). Dictionary of the English A trade is [a]n occupation, especially one requiring skilled labor. Id. at 1897. Whatever his course of study, it is reasonable to infer that this witness was attending school to prepare for some sort of occupation or career. Proper occupation. terminate education or training is necessary to any We therefore conclude that the alleged threats to the student s studies were threats to injure his profession, calling or trade within the scope of Wis. Stat. § 943.30(1). ¶51 In addition to these threats to terminate the student s studies, we conclude that the threats to end financial support may also have been threats to injure the student s person, property, business, profession, calling or trade under the unique circumstances of this case. ¶52 We base this conclusion in part on the testimony of the other students regarding the terms of their agreements to stay with the defendant. The second witness testified in some detail about his agreement with the defendant. He stated that the defendant agreed to bring him to the United States, pay for his schooling, and provide him with financial support. In return, he agreed to work for the defendant. ¶53 In light of this information from the second witness, it is reasonable to infer from the final witness s testimony that he was also working in exchange for at least part of his financial support. He stated, I don t even know if he did 23 No. 98-1456-CR something good for me because everything that I did in his house . . . was my hard work in his farm. (Emphasis added). He also testified [w]ell, he, if he buy me clothes I remember that was just one time. And he say that is your money . . . ., and the clothes that he buy me he buy that clothes for the money that I work for him. ¶54 (Emphasis added). This testimony suggests that the witness may not have been completely dependent upon the defendant s charity, but may actually have been paying for at least part of his expenses by working for the defendant. The court could reasonably conclude that the witness had a property interest in the continuation of that support that may have been recognizable in a lawsuit. At the least, the alleged threats were threats to interrupt his current occupation and means of supporting himself. ¶55 Moreover, since he was a foreign student without other connections in the United nowhere else to go. States, this student may have had Had these alleged threats actually been carried out, he might have been abandoned in the United States without any means of financial support. While this might not have resulted in a physical injury to his person, we conclude that it would constitute any injury to the person within the meaning of the statute. See People v. Igaz, 326 N.W.2d 420, 428 (Mich. Ct. App. 1982), vacated on other grounds, 341 N.W.2d 467 (Mich. 1982) (determining that any injury to the person in Michigan s similar extortion statute injury). 24 encompassed emotional No. ¶56 We therefore conclude that the alleged 98-1456-CR threats to terminate financial support, if proven, could constitute threats to injure the person, property, business, profession, calling or trade of another person, in violation of Wis. Stat. § 943.30(1). ¶57 In sum, we hold that Wis. Stat. § 943.30(1) encompasses both the threats to interfere with the student s education and the threats to end his financial support in the United States. V. ¶58 We preliminary determine examination, that if the evidence true, could presented establish at the that the defendant committed the crime of solicitation of prostitution as defined in Wis. Stat. § 944.32. We also determine that the evidence, if true, could establish that the defendant committed the crime of extortion as defined in Wis. Stat. § 943.30(1). Accordingly, we affirm the decision of the court of appeals. By the Court. The decision affirmed. 25 of the court of appeals is
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