School zone enhancer constitutional

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The crime of mayhem includes injuring the victim’s forehead, the Wisconsin Court of Appeals held on Jan. 17.

The court also held, addressing another issue of first impression, that the school zone enhancer, sec. 939.632, is constitutional.

According to the complaint, in 2004, Leonard J. Quintana entered the bedroom of his ex-wife Shannon and struck her forehead with the claw end of a hammer approximately three times. She suffered a skull fracture and a laceration from above her eyebrow to behind her ear.

As a result of the skull fracture, small pieces of bone tore the brain lining, allowing spinal fluid to leak into the wound. Shannon also sustained an intracranial injury with air and blood in the brain, an injury that carries potential for death. Shannon suffers from recurrent headaches and memory deficits.

The initial criminal complaint changed Quin-tana with attempted first-degree intentional homicide with domestic violence and dangerous weapon enhancers.

After amendments to the complaint, Quintana ultimately faced charges of solicitation of first-degree intentional homicide, first-degree reckless injury, aggravated battery, and mayhem. The mayhem and aggravated battery charges were alleged to have been committed in a school zone.

Quintana moved to dismiss the mayhem charge, and the school zone penalty enhancers.

Marathon County Circuit Court Judge Vincent K. Howard granted the motions, concluding that the mayhem statute is inapplicable to forehead injuries, and that the school zone enhancers are unconstitutional as applied.

The state appealed, and the court of appeals reversed in a decision by Judge Michael W. Hoover.

Mayhem

The court first held that the mayhem statute encompasses Quintana’s alleged conduct.

Section 940.21 provides, “Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another is guilty of a Class C felony.”

At issue is whether the forehead is an “other bodily member” under the statute. The court concluded it was, applying general rules of statutory construction.

Under the doctrine of ejusdem generis, “when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed.” Black’s Law Dictionary 556 (8th ed. 2004).

The court rejected Quintana’s argument that the forehead is excluded, because it is not similar to the other listed body parts; the court concluded that construction would render the phrase, “other bodily member” meaningless.

The court reasoned, “If we limit ‘other bodily member’ to ‘bodily members similar to those specified,’ we are not certain what would constitute an ‘other bodily member.’ The tongue, eyes, ears, nose, lips, and limbs really have no analogous parts elsewhere on the body. Yet the legislature must have intended the mayhem statute to apply to some other parts, or it would not have included ‘other bodily member’ in the statute.”

The court also rejected the state’s argument — that the entire head is an “other bodily member,” because it would render the enumeration of various parts of the head meaningless.

Nevertheless, because the forehead protects the brain, a critical organ, the court concluded that the injuries do constitute mayhem, even though not every attack to the head would qualify.

The court reasoned, “the forehead is skin and bone protecting parts of the brain, a critical organ. An attack to the forehead threatens to disable the internal organ beneath. Indeed, Shannon suffered multiple brain injuries. By contrast … a laceration to the jaw line — or a cut to the cheek are, as examples, arguably not adequate bases for a mayhem charge in this state.”

Accordingly, the court held that the mayhem charge should not have been dismissed.

School Zone

The court then held that the school zone enhancer did not violate the Equal Protection Clause or Due Process Clause as applied to Quintana, applying rational basis scrutiny.

Quintana argued that the 1,000-foot classification is arbitrary and irrational, because he was inside a residence, in the early morning hours, on a holiday weekend, and it was therefore highly unlikely children would be nearby.

Quintana conceded that State v. Her-mann, 164 Wis. 2d 269, 284-85, 474 N.W.2d 906 (Ct. App. 1991), was valid law. In Hermann, the court upheld an enhancer for drug offenses within 1,000 feet of a school, because, “even if illegal drug transactions do not directly involve children, such illegality does contribute directly to a violent and dangerous atmosphere. Seeking to eliminate such an atmosphere near our schools by more harshly penalizing those who contribute to it is not patently arbitrary or irrational.”

The court rejected Quintana’s argument that Hermann was distinguishable.

First, the court noted that this was not a stand-alone domestic violence charge, but instead included allegations of solicitation of homicide, mayhem, aggravated battery, and reckless injury.

The court wrote, “The question is therefore not … whether domestic violence might influence children, even though we suspect it often does. Rather, the question is whether the school zone enhancer is meant to protect children from the adverse impacts of the mayhem and aggravated battery charges and whether there is a reasonable basis for such a statute.”

Answering its question, the court concluded, “We think the protective intent is self-evident.”

The court added, “it is evident that through the school zone enhancer, the legislature meant to create a zone where, regardless of time of day or calendar date, the public can consider children safe and protected. The enhancer serves to deter crimes with the most serious adverse impacts on the atmosphere surrounding schools.”

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Finally, the court included a litany of additional reasons why the statute is constitutional:

• Because of age, size, life experience, and mental and emotional development, school-age children run greater risks from violent crime than do adults.

• Because of physical amenities and program opportunities at schools, school-age children also often congregate in and around schools at other times, including holidays, weekends, and vacation periods.

• The closer a location to a school, the greater the likelihood of an increased concentration of children.

• One thousand feet from a school’s premises establishes a boundary at which the concentration of children will likely have declined to a level where the enhanced risk of violence will have dissipated to a point of ordinary risk.

• Violent criminal conduct that originates within a residence between related individuals can spill over into public areas traversed by children.

To this list, the court added the following observation, “when children learn of violent crime — as they often do, through television, the Internet, observation, or gossip — they begin to wonder whether something similar could happen to them or their family and friends. Unlike when the reference is to violence in another part of the country or the world, children’s preo
ccupation and worry is no doubt magnified when a violent event happens in an area with which they familiar, such as their school, because their ability to visualize the area makes the threat more concrete to them.”

Accordingly, the court held that there was a rational basis for the statute and for applying it to Quintana, and reversed the dismissal of the penalty enhancers.

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David Ziemer can be reached by email.