01-0738 State v. Burroughs

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“Physical force is not essential to a finding of confinement. Wis JI-Criminal 1275. Nor are we persuaded that the presence of an opportunity to escape requires the victim to take that risk, and we know of no law that so holds.

“Sharon testified that Burroughs took her to a strange apartment under the guise of locating her missing cousin. Once there, he raised his fists at her and threatened to shoot her if she did not take off her clothes. When Sharon headed for the door of the apartment, Burroughs guided her to a bedroom. He made her lie down on a cot and told her what she would have to do for him before leaving. Finally, Burroughs accompanied her and stood over her while she used the bathroom. Despite efforts to head toward the door and cry for help, Sharon was not able to leave the apartment until Burroughs’ ability to stop her was hampered in taking off his pants.”

Accordingly, we conclude that a reasonable jury could find that defendant confined the victim by depriving her of her freedom of movement and compelling her to remain where she did not wish to remain.

Further, where defendant’s prior Alabama conviction for “assault with intent to murder” is comparable to Wisconsin’s attempted first-degree intentional homicide statute, we conclude that defendant qualified as a “persistent repeater” under Wisconsin’s so-called “three strikes” law, Wis. Stat. sec. 939.62(2m)(c).

“While we acknowledge that the language of the statutes is not identical and that certain nuances may differ, this does not per se translate into a lack of comparability. Moreover, in Clark v. State, 333 So. 2d 885 (Ala. Crim. App. 1976), the Alabama Court of Criminal Appeals expressly debunks Burroughs’ argument. There, the court held that the offense of ‘an attempt to commit an assault with intent to murder’ would be the equivalent of ‘an attempt to commit murder.'”

Judgment and order affirmed.

Recommended for publication in the official reports.

Dist II, Kenosha County, Fisher, J., Nettesheim, J.

Attorneys:

For Appellant: William F. Mross, Racine

For Respondent: Robert J. Jambois, Kenosha; Susan M. Crawford, Madison