State v. Kloss

386 Wis.2d 314

925 N.W.2d 563

2019 WI App 13

STATE of Wisconsin, Plaintiff-Respondent,

v.Kelly James KLOSS, Defendant-Appellant.^†

Appeal No. 2018AP651-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: January 18, 2019

Opinion Filed: February 21, 2019

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven Miller of Miller Appellate Practice, LLC, River Falls.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lisa E.F. Kumfer, assistant attorney general, and Brad D. Schimel, attorney general.

Before Lundsten, P.J., Sherman and Kloppenburg, JJ.

KLOPPENBURG, J.

¶1 Kelly Kloss appeals the circuit court’s denial of his motion for postconviction relief from his convictions of solicitation of first-degree reckless injury and solicitation of first-degree recklessly endangering safety. He argues that: (1) solicitation of first-degree reckless injury does not exist as a crime under Wisconsin law; (2) the evidence presented at trial was insufficient to support either conviction; and (3) because solicitation of first-degree recklessly endangering safety is a lesser included offense of solicitation of first-degree reckless injury, his convictions of both of those crimes are multiplicitous and, therefore, his conviction of one of those counts should be reversed. We reject Kloss’s first two arguments, but agree with his multiplicity argument. Accordingly, we affirm in part, reverse in part, and remand with directions.

BACKGROUND

¶2 The following undisputed facts provide context for the discussion that follows. In October 2014, police officers arrested Kelly Kloss pursuant to two felony warrants after they found him hiding in a house he shared with his wife Cheryl. Kloss was subsequently incarcerated in the St. Croix County and Marathon County jails. In the twelve days following his arrest, Kloss made a series of over fifty telephone calls from jail to Cheryl, during which he made numerous derogatory and threatening remarks directed at Cheryl and directed at law enforcement.

¶3 Pertinent here, during several calls, Kloss told Cheryl to shoot a gun through the front door if any police officers returned to their house. Kloss’s statements to Cheryl included the following: "I want you to get your handgun out and your shotgun out and if a River Falls cop comes to your door again, you open fire," "let them have it," "blow them away," "shoot right through the door right into the cop," "wipe them out," and "[i]n case you run out of cartridges in one, you could just use the other one. I mean, I’m hoping you’re going to get at least half a dozen of them if you’re going to get one .... You see them run, when they run, run out the door after them .... Chase them down and get a couple more." Each call was recorded and reviewed by law enforcement.

¶4 Based on the calls Kloss made to Cheryl, the State charged Kloss with multiple counts of solicitation under WIS. STAT. § 939.30 (2017-18).¹ Relevant to this appeal, the State charged Kloss with one count of solicitation of first-degree reckless injury, WIS. STAT . § 940.23(1)(a), and one count of solicitation of first-degree recklessly endangering safety, WIS. STAT . § 941.30(1). Following a bench trial, the circuit court convicted Kloss of both counts. Kloss appeals.

DISCUSSION

¶5 For ease of discussion, we refer to solicitation of first-degree reckless injury as soliciting/reckless-injury and solicitation of first-degree recklessly endangering safety as soliciting/endangering-safety. As stated, Kloss makes three arguments on appeal. First, he argues that his soliciting/reckless-injury conviction must be reversed because the crime does not exist. Second, Kloss argues that his soliciting/reckless-injury conviction must be reversed because of insufficient evidence.² Third, Kloss argues that soliciting/endangering-safety is a lesser included offense of soliciting/reckless-injury, and, therefore, his convictions of both crimes violate multiplicity principles. We address each topic in turn.

I. Whether Solicitation of First-Degree Reckless Injury Exists as a Crime Under Wisconsin Law

¶6 Kloss argues that soliciting/reckless-injury does not exist as a crime under Wisconsin law. This appears to present a question of first impression. Because its resolution requires us to interpret Wisconsin’s solicitation and first-degree reckless injury statutes, our review is de novo. See State v. Briggs , 218 Wis.2d 61, 65, 579 N.W.2d 783 (Ct. App. 1998) (matters of statutory interpretation are reviewed de novo).

¶7 The solicitation statute provides that "whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent is guilty of a Class H felony." WIS. STAT. § 939.30(1). Thus, the pattern jury instruction lists two elements: (1) "[t]he defendant intended that [a particular felony] be committed;" and (2) "[t]he defendant advised another person, by the use of words or other expressions, to commit [that felony] and did so under circumstances that indicate, unequivocally, that the defendant intended that [the felony] be committed." WIS JI— CRIMINAL 550.

¶8 The first-degree reckless injury statute provides that "[w]hoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony." WIS. STAT . § 940.23(1)(a). Thus, the crime of first-degree reckless injury contains three elements: (1) the defendant must cause great bodily harm to another; (2) by conduct that created an unreasonable and substantial risk of death or great bodily harm of which the defendant was aware; and (3) under circumstances that show utter disregard for human life. WIS JI— CRIMINAL 1250.

¶9 Kloss’s argument is directed solely at the interaction between the first element of solicitation (intent that a particular felony be committed) and the first element of reckless injury (causing great bodily harm). According to Kloss, it is not possible for a person to intend that another person succeed in causing great bodily harm by reckless conduct. Kloss reasons that this is not possible because whether harm will result from reckless conduct is "entirely unpredictable." The gist of Kloss’s argument is that the resulting injury is unknowable at the time a solicitation occurs and, therefore, it is not possible to intend such injury. This argument is meritless.

¶10 We see no reason why a solicitor cannot intend, at the time he or she solicits reckless conduct from another, that great bodily harm result from the solicitee’s reckless conduct. It may be true that a solicitor cannot know with certainty at the time of the solicitation whether an injury will in fact result from the solicitee’s conduct—such uncertainty is inescapable in an inchoate crime such as solicitation. But no level of certainty is required to form a purpose to cause a particular result—that is, an intent that a result take place. See WIS. STAT . § 939.23(4) (the phrase "with intent that" means that an actor "has a purpose to ... cause the result specified"). Indeed, the following example from LaFave’s discussion of solicitation presupposes the type of intent that Kloss asserts is not possible:

[i]f B were to engage in criminally negligent conduct which caused the death of C , then B would be guilty of manslaughter; but it would not be a criminal solicitation to commit murder or manslaughter for A to request B to engage in such conduct unless A did so for the purpose of causing C 's death.

W. LaFave, Substantive Criminal Law § 11.1(c) (3d ed. 2017). Stated more clearly, LaFave says that A can be guilty of solicitation to commit murder or manslaughter if A solicits B to engage in criminally negligent conduct and does so for the purpose of causing C’s death. This example assumes that it is possible to prove that A solicited B to engage in negligent conduct intending that B’s negligent conduct cause C’s death. Thus, it follows from LaFave’s example that soliciting/reckless-injury is a crime because it is likewise possible to prove that A solicited B to engage in reckless conduct intending that B’s reckless conduct result in great bodily harm.³

¶11 In sum, we reject Kloss’s contention that the crime of soliciting/reckless-injury does not exist under Wisconsin law.

II. Whether Sufficient Evidence Supported the Conviction of Solicitation of First-Degree Reckless Injury

¶12 The sufficiency of the evidence test is well stated elsewhere. For our purposes, it is enough to say that courts may not reverse a conviction for lack of sufficient evidence "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger , 153 Wis.2d 493, 501, 451 N.W.2d 752 (1990).

¶13 Kloss argues that the evidence was insufficient to support a finding that he intended that Cheryl engage in reckless conduct with resulting injury. As we understand the argument, Kloss argues that no reasonable fact finder, looking at the circumstances, could find that Kloss was serious when he urged Cheryl to shoot any officers who approached their home because no reasonable person in Kloss’s position would think that the police would ever approach the Kloss home. Kloss points to evidence showing that he was aware that his calls to Cheryl were monitored and argues that it follows that he knew that it was highly improbable that police would come to his house. Consequently, so his argument goes, the absence of evidence that the police might actually approach the Kloss home means that Kloss’s fact finder, here the circuit court, would have known that Kloss "knew there was no realistic chance" that Cheryl would ever be called upon to execute his instructions and, therefore, the evidence did not support the court...