                                                                2017 WI 62

                  SUPREME COURT                 OF   WISCONSIN
CASE NO.:                2015AP993-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Heather L. Steinhardt,
                                   Defendant-Appellant-Petitioner.
                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 367 Wis. 2d 350, 876 N.W.2d 179
                                        (2016 – Unpublished)

OPINION FILED:           June 21, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           February 28, 2017

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Ozaukee
   JUDGE:                Sandy A. Williams

JUSTICES:
   CONCURRED:
   DISSENTED:            ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,
                         J.
  NOT PARTICIPATING:

ATTORNEYS:
       For      the    defendant-appellant-petitioner      there   were     briefs
and   an     oral      argument   by   Nicole   M.   Masnica,   assistant    state
public defender.


       For the plaintiff-respondent there was a brief and oral
argument by Kevin M. LeRoy, deputy solicitor general, with whom
on the brief was Brad D. Schimel, attorney general, and Misha
Tseytlin, solicitor general.
                                                                              2017 WI 62
                                                                      NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2015AP993-CR
(L.C. No.    2013CF136)

STATE OF WISCONSIN                               :               IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                           FILED
      v.
                                                                      JUN 21, 2017
Heather L. Steinhardt,
                                                                         Diane M. Fremgen
              Defendant-Appellant-Petitioner.                         Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                      Affirmed.



      ¶1      MICHAEL     J.   GABLEMAN,   J.    This       is    a     review       of   an
unpublished per curiam decision of the court of appeals that

affirmed the Ozaukee County circuit court's1 decision that denied

Heather L. Steinhardt's ("Steinhardt") motion for postconviction

relief.      State v. Steinhardt, No. 2015AP993-CR, unpublished slip

op. (Wis. Ct. App. Jan. 21, 2016) (per curiam).

      ¶2      Steinhardt       argues   that    her      convictions           for     both

failure to protect a child from sexual assault contrary to Wis.

      1
          The Honorable Sandy A. Williams presided.
                                                                    No.   2015AP993-CR



Stat. § 948.02(3) (2011-12)2 and first-degree sexual assault of a

child under 13 as a party to a crime contrary to Wis. Stat.

§§ 948.02(1)(e) and 939.05 violated the Double Jeopardy Clauses

of the United States Constitution and Wisconsin Constitution.

Therefore, she asks this court to vacate her conviction for

failure to protect a child.             In addition, she argues that she

received ineffective assistance of counsel because her counsel

never alerted her to the potential double jeopardy claim.                         She

asks this court to remand her case for a hearing to determine

whether her counsel was ineffective.

       ¶3      We hold that Steinhardt's conviction for failure to

protect a child from sexual assault does not violate double

jeopardy because failure to protect a child from sexual assault

and first-degree sexual assault of a child under 13 as a party

to a crime are not identical in fact.                     Moreover, we determine

that       Steinhardt   failed   to   overcome      the    presumption     that   the

legislature       intended   cumulative       punishments     for    her    conduct,

given that her conduct consisted of two separate acts.                       We also
hold       that   Steinhardt's    claim       of   ineffective      assistance     of

counsel fails because her counsel could not be deficient for

failing to advise her of a potential double jeopardy claim that

does not exist.

                   I.   FACTUAL AND PROCEDURAL BACKGROUND



       2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                          2
                                                           No.   2015AP993-CR



     ¶4     For roughly three years leading up to April 1, 2013,

Steinhardt's husband, Walter, repeatedly expressed to Steinhardt

an interest in having sex with Steinhardt's daughter, F.G.3               On

April 1, 2013, Steinhardt acquiesced to Walter's requests, and

Steinhardt facilitated her husband's sexual assault of the then-

twelve-year-old F.G.

     ¶5     According   to   the   criminal   complaint,    on    April   1,

"[Steinhardt] went to one of the other rooms w[h]ere F.G. was

and brought her into the bedroom that [Steinhardt] shared with

Walter and sat with her on the bed. . . . Walter was prepared,

lying on the bed under the covers."           "Walter then told F.G. to

take off her clothes at which time [Steinhardt] remained on the

bed . . . ."     Walter then engaged in three sexual acts with

F.G.:     "Walter engaged in digital penetration of F.G., Walter

had F.G. engage in oral sex with him, and ultimately Walter had

sexual    intercourse   with   F.G. . . . ."       Steinhardt      remained

seated on the bed throughout the entire assault.             After Walter

finished, "F.G. left the room to take a shower with [Steinhardt]
following her into the bathroom."4

     3
         Walter is F.G.'s stepfather.
     4
       The State asserted additional facts about the sexual
assault at Steinhardt's sentencing hearing.    For example, the
State asserted that Steinhardt gave in to Walter's request as a
birthday present for him and that Steinhardt was actually the
one who told F.G. to take off her clothes. However, as will be
explained later, we are limited to the facts as contained in the
criminal complaint.   Thus, for our purposes, the facts of the
sexual assault are as stated above, and we do not consider the
additional facts provided by the State.


                                     3
                                                   No.   2015AP993-CR



    ¶6     F.G. alerted her biological father of the assault, and

he contacted the police.      The State charged Steinhardt with

failure to protect a child from sexual assault contrary to Wis.

Stat. § 948.02(3)5 ("Count 1"), first-degree sexual assault of a

child under 13 as a party to a crime contrary to Wis. Stat.




    5
        Wisconsin Stat. § 948.02(3) provides:

         A person responsible for the welfare of a child
    who has not attained the age of 16 years is guilty of
    a Class F felony if that person has knowledge that
    another person intends to have, is having or has had
    sexual intercourse or sexual contact with the child,
    is physically and emotionally capable of taking action
    which will prevent the intercourse or conduct from
    taking place or being repeated, fails to take that
    action and the failure to act exposes the child to an
    unreasonable risk that intercourse or contact may
    occur between the child and the other person or
    facilitates the intercourse or contact that does not
    occur between the child and the other person.


                                 4
                                                     No.   2015AP993-CR



§§ 948.02(1)(e) and 939.056 ("Count 2"), and child enticement

contrary to Wis. Stat. § 948.07(1)7 ("Count 3").8

     ¶7     Steinhardt pled no contest to all three counts, and

the circuit court sentenced Steinhardt to 7.5 years of initial

confinement and 5 years of extended supervision on Count 1; 15

     6
       Wisconsin Stat. § 948.02(1)(e) provides, "Whoever has
sexual contact with a person who has not attained the age of 13
years is guilty of a Class B felony." Wisconsin Stat. § 939.05
then makes this offense applicable to parties to the crime.
Section 939.05(1) states:

          Whoever is concerned in the commission of a crime
     is a principal and may be charged with and convicted
     of the commission of the crime although the person did
     not directly commit it and although the person who
     directly committed it has not been convicted or has
     been convicted of some other degree of the crime or of
     some other crime based on the same act.

Section 939.05(2)(b) then defines a person who is concerned in
the commission of the crime as one who "[i]ntentionally aids and
abets the commission of [the crime]."
     7
         Wisconsin Stat. § 948.07 provides, in relevant part:

          Whoever, with intent to commit any of the
     following acts, causes or attempts to cause any child
     who has not attained the age of 18 years to go into
     any vehicle, building, room or secluded place is
     guilty of a Class D felony:

          (1) Having sexual contact or sexual intercourse
     with the child in violation of s. 948.02, 948.085, or
     948.095.
     8
       The criminal complaint originally charged Steinhardt with
two counts: (1) failure to protect a child in violation of Wis.
Stat. § 948.02(3) and (2) first-degree sexual assault of a child
under 13 as a party to a crime in violation of Wis. Stat.
§§ 948.02(1)(e) and 939.05.      Count 3, child enticement in
violation of Wis. Stat. § 948.07, was added in the information.


                                  5
                                                                               No.     2015AP993-CR



years     of     initial        confinement          and        10   years        of      extended

supervision on Count 2 (consecutive to Count 1); and 15 years of

initial     confinement         and   10     years    of     extended          supervision       on

Count   3      (concurrent       to    Count       2).          In   total,       Steinhardt's

sentence       amounts     to   37.5    years,       with        22.5     years      of    initial

confinement and 15 years of extended supervision.

    ¶8         Steinhardt         subsequently              filed         a      motion         for

postconviction relief.                She asked the circuit court to vacate

her conviction for Count 1.                  She argued that Counts 1 and 2 are

multiplicitous, thereby making her convictions on both counts a

violation of double jeopardy.                 Steinhardt also asked the circuit

court to hold a hearing to determine whether her counsel was

ineffective for failing to advise her of her potential double

jeopardy claim.           Steinhardt alleged that she would not have pled

no contest if she knew of the possible claim.                             The circuit court

found Counts 1 and 2 were not multiplicitous and denied her

motion.     Steinhardt appealed.

    ¶9         The   court      of    appeals        affirmed        the      circuit       court.
Steinhardt,       unpublished         slip     op.,        ¶1.       It       determined        that

"Steinhardt       relinquished         the    right        to    direct        review      of   her

double jeopardy claim" because her claim could not be resolved

on the basis of the factual record before the circuit court at

the time of Steinhardt's plea.                     Id., ¶8 (citing State v. Kelty,

2006 WI 101, 294 Wis. 2d 62, 716 N.W.2d 886 ("[A] guilty plea

relinquishes the right to assert a multiplicity claim when the

claim   cannot       be    resolved     on     the    record.")).               The     court    of
appeals also determined that Steinhardt's claim for ineffective
                                               6
                                                                                 No.   2015AP993-CR



assistance            of     counsel     failed          because     Steinhardt         did    not

sufficiently allege prejudice in her postconviction motion to

warrant         a    hearing.         Id.,    ¶11       (citing    State    v.    Bentley,     201

Wis. 2d 303, 313-18, 548 N.W.2d 50 (1996) ("A defendant must do

more than merely allege that he would have pled differently;

such       an       allegation    must       be     supported       by     objective      factual

assertions.")).

       ¶10          Steinhardt then sought review by this court, which we

granted on October 11, 2016.

                                 II.     STANDARD OF REVIEW

       ¶11          "The issue of whether a person's right to be free from

double jeopardy has been violated presents a question of law

that we review de novo."                     State v. Trawitzki, 2001 WI 77, ¶19,

244 Wis. 2d 523, 628 N.W.2d 801.

       ¶12          Ineffective assistance of counsel is a mixed question

of law and fact.                Id.     This court upholds the circuit court's

factual         findings       unless        they       are     clearly    erroneous.          Id.

Whether counsel was ineffective is a question of law that this
court reviews de novo.                 Id.

                                       III.       DISCUSSION

                A.     Steinhardt's Convictions on Counts 1 and 2

       ¶13          The Fifth Amendment to the United States Constitution9

and    Article          I,    Section        8    of      the     Wisconsin      Constitution10
       9
       "No person shall . . . be subject for the same offence to
be twice put in jeopardy of life or limb . . . ."
       10
       "[N]o person for the same offense may be put twice in
jeopardy of punishment . . . ."


                                                    7
                                                                                  No.    2015AP993-CR



guarantee the right to be free from double jeopardy.                                    This right

provides       three      protections:                 "protection         against        a    second

prosecution         for   the       same    offense         after    acquittal;          protection

against       a     second      prosecution            for     the     same       offense      after

conviction; and protection against multiple punishments for the

same offense."            State v. Sauceda, 168 Wis. 2d 486, 492, 485

N.W.2d 1 (1992).             This third category is known as multiplicity.

See State v. Davison, 2003 WI 89, ¶37, 263 Wis. 2d 145, 666

N.W.2d 1 ("Use of the term 'multiplicitous' should be limited to

situations in which the legislature has not authorized multiple

charges and cumulative punishments.").                              Here, Steinhardt argues

that her right to be free from multiple punishments for the same

offense has been violated by her convictions for Counts 1 and 2.

       ¶14     We    apply      a    two-pronged             test    to    determine          whether

charges are multiplicitous.                   State v. Anderson, 219 Wis. 2d 739,

746,    580       N.W.2d 329        (1998).        Under       the    first       prong,      we   ask

"whether the charged offenses are identical in law and fact."

Id.     Under the second prong, the question is "if the offenses
are    not    identical       in      law    and       fact,    whether       the       legislature

intended the multiple offenses to be brought as a single count."

Id.

       1.     Whether Counts 1 and 2 Are Identical in Law or Fact

       ¶15     We typically apply the Blockburger11 test to determine

whether       offenses       are     identical         in    law.         E.g.,     Sauceda,       168


       11
            Blockburger v. United States, 284 U.S. 299 (1932).


                                                   8
                                                                        No.     2015AP993-CR



Wis. 2d at 493-94.               Here, however, the State concedes, and we

agree, that Counts 1 and 2 are identical in law due to the

operation of Wis. Stat. § 939.66(2p),12 which makes failure to

protect a child from sexual assault a lesser-included offense of

first-degree sexual assault of a child under 13.                                See, e.g.,

Harrell v. State, 88 Wis. 2d 546, 571, 277 N.W.2d 462 (Ct. App.

1979) ("[T]hus, a greater and lesser included offense are the

'same offense' and trial for one bars a second trial for the

other.").        Accordingly,            our    inquiry    under    the    first       prong

focuses on whether Counts 1 and 2 are identical in fact.                                 We

conclude they are not.

       ¶16    Our review of whether Counts 1 and 2 are identical in

fact is limited to the facts available to the circuit court at

the    time     of        Steinhardt's         plea.      See,     e.g.,      Kelty,     294

Wis. 2d 62, ¶38 ("What this means is that a court will consider

the merits of a defendant's double jeopardy challenge if it can

be    resolved       on    the    record       as   it   existed   at     the    time    the

defendant      pled.");          State    v.    Eisch,    96   Wis. 2d 25,        27,    291


       12
            Wisconsin Stat. § 939.66 states:

            Upon prosecution for a crime, the actor may be
       convicted of either the crime charged or an included
       crime, but not both. An included crime may be any of
       the following:

               . . . .

            (2p) A crime which is a less serious or equally
       serious type of violation under s. 948.02 than the one
       charged.


                                                9
                                                    No.   2015AP993-CR



N.W.2d 800 (1980) ("Because we confront the case at the pleading

stage, we are confined to the facts alleged in the complaint,

information, and transcript of testimony of the witnesses at the

preliminary examination.").    In this case, that amounts to those

facts contained in the probable cause section of the criminal

complaint because those were the only facts of record at the

time of Steinhardt's plea.13    Steinhardt waived her preliminary

hearing, there are no facts contained in the information, and

neither party sought to supplement the facts at Steinhardt's

plea hearing.

    ¶17   The probable cause section of the criminal complaint

provides, in relevant part:

    [Steinhardt] stated that at one point she went to one
    of the other rooms w[h]ere F.G. was and brought her
    into the bedroom that [Steinhardt] shared with Walter
    and sat with her on the bed. [Steinhardt] stated that
    Walter was prepared, lying on the bed under the
    covers.    [Steinhardt] stated that Walter then told
    F.G.   to   take  off   her  clothes  at   which  time
    [Steinhardt] remained on the bed while Walter engaged
    in digital penetration of F.G., Walter had F.G. engage
    in oral sex with him, and ultimately Walter had sexual
    intercourse with F.G. placing his penis inside her
    vagina.   [Steinhardt] stated she remained on the bed

    13
       The State relies on State v. Kelty, 2006 WI 101, 294
Wis. 2d 62, 716 N.W.2d 886, which held that a multiplicity claim
is waived if it cannot be resolved on the record, to argue that
Steinhardt waived her ability to bring a double jeopardy
challenge. According to the State, whether Steinhardt's conduct
is identical in fact cannot be resolved based on the facts known
at the time of Steinhardt's plea. We conclude that Steinhardt's
double jeopardy claim can be resolved based on the facts of
record and therefore do not further address the argument that
Steinhardt waived her double jeopardy claim.


                                 10
                                                         No.   2015AP993-CR


       the whole time.    Walter finished and F.G. left the
       room to take a shower with [Steinhardt] following her
       into the bathroom.
       ¶18   Based on these facts, Steinhardt argues that Counts 1

and 2 are identical in fact because the conduct underlying both

counts constitutes one continuous act that took place during a

single incident and the same conduct supports both Counts 1 and

2.     The State, on the other hand, argues that Counts 1 and 2 are

not identical in fact because each count is supported by conduct

that    is   different   in   nature——Steinhardt   sitting   on   the   bed
during the sexual assault supports Count 1 (an act of omission),

and Steinhardt taking F.G. to the bedroom supports Count 2 (an

act of commission).14

       14
       Steinhardt argues that this court should invoke judicial
estoppel to preclude the State from making this argument.
Assuming judicial estoppel could apply in this instance, we
decline to invoke it here.    Judicial estoppel is an equitable
doctrine invoked at the court's discretion to preclude a party
from abusing the court system.      See State v. Fleming, 181
Wis. 2d 546, 558, 510 N.W.2d 837 (Ct. App. 1993) (judicial
estoppel is applied to preclude "cold manipulation and not
unthinking or confused blunder" (quoting Konstantinidis v. Chen,
626 F.2d 933, 939 (D.C. Cir. 1980))).    Here, nothing indicates
that the State is playing "fast and loose," id., with the court
system by asserting inconsistent positions such that we conclude
it is necessary to invoke judicial estoppel.       See State v.
Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996) ("The
doctrine precludes a party from asserting a position in a legal
proceeding and then subsequently asserting an inconsistent
position.").    The State has consistently maintained that
Steinhardt's convictions on Counts 1 and 2 do not violate double
jeopardy because the counts are not identical in fact. See id.
at 353 (concluding that judicial estoppel did not apply because
"Petty has consistently sought to minimize the length of his
prison stay, whether it be receiving a concurrent sentence, or
dismissal of the state charge on grounds of statutory double
jeopardy").


                                     11
                                                                              No.    2015AP993-CR



       ¶19    "Charged offenses are not multiplicitous if the facts

are    either      separated     in    time        or    [are]     of    a     significantly

different nature."         Anderson, 219 Wis. 2d at 749.                       We are unable

to determine from the facts in the criminal complaint exactly

how much time elapsed here; however, we are able to discern acts

that are significantly different in nature such that we can say

Counts 1 and 2 are not multiplicitous.

       ¶20    When      analyzing        whether          acts         are     significantly

different in nature, "[t]he question is whether the elements,

which are legally identical, are sufficiently different in fact

to    demonstrate       that    a    separate        crime       has    been        committed."

Eisch, 96 Wis. 2d at 31.               Accordingly, this court concluded in

Eisch that conviction for four different counts of "forcible and

unconsented sexual intercourse" did not violate double jeopardy

because each sexual act was "of a significantly different nature

in fact."         Id. at 28, 31.         The defendant in Eisch had vaginal

intercourse        with   the       victim,    inserted           his    penis        into    the

victim's anus, inserted a beer bottle into the victim's vagina,
and inserted his penis into the victim's mouth.                               Id. at 27-28.

In concluding that no double jeopardy violation existed, this

court said, "[I]t is the different nature of the acts which we

deem to be of importance."                 Id. at 33.              Given the different

nature   of       the   acts,   it    mattered          not     that    all    of     the    acts

occurred within the same incident.                       See id. at 31 (noting that

the assault "took place within a relatively short period").

       ¶21    Relying     on    Eisch,    this          court    determined          that    five
counts       of    second-degree       sexual           assault     were       "sufficiently
                                              12
                                                                        No.   2015AP993-CR



different in fact to demonstrate that separate crimes [had] been

committed" when the defendant in Ziegler had the minor "perform

oral    sex     on   him,"     digitally     penetrated       the    minor's        vagina,

fondled the minor's breasts, had the minor touch his penis, and

"str[uck the minor's] buttocks."                   State v. Ziegler, 2012 WI 73,

¶¶60,     64-65,     342     Wis. 2d 256,         816    N.W.2d 238.          The     court

determined that these acts were sufficiently different in fact

such that five separate crimes were committed because each act

constituted a departure from Ziegler's previous conduct.                                 Id.,

¶73.         Moreover,     each    different       act   "resulted    in      a    new   and

different humiliation, danger, and pain" to the victim.                            Id.

       ¶22     On the other hand, the defendant's right to be free

from double jeopardy was violated when the State charged the

defendant in Hirsch with three counts of first-degree sexual

assault for touching a five-year old's vagina, then anus, and

then vagina again within the span of a few minutes, because the

nature of the conduct was not sufficiently different to say that

multiple       crimes    had      been   committed.          State   v.    Hirsch,       140
Wis. 2d 468, 474-75, 410 N.W.2d 638 (Ct. App. 1987).                              The court

noted that "the alleged actions are extremely similar in nature

and character," id. at 474, and that there was no "significant

change in activity as in Eisch," id. at 475.

       ¶23     Here, we have an act of omission——Steinhardt sitting

on     the    bed    observing      Walter        sexually    assault      her      child——

supporting Count 1 and an act of commission——Steinhardt bringing

her daughter to the bedroom——supporting Count 2.                              As in both
Eisch and Ziegler, there is a difference in Steinhardt's conduct
                                             13
                                                                       No.    2015AP993-CR



that amounts to a significant change in activity.                             Sitting on

the bed is a departure from bringing F.G. to the bedroom and

represents         a    change     in    Steinhardt's      activity    such    that   her

conduct is different in nature.                     Indeed, sitting on the bed is

such a departure from Steinhardt's conduct of bringing F.G. to

the bedroom that we can say Steinhardt came "to a fork in the

road,"    Harrell,            88   Wis. 2d at       558   (quoting    Irby    v.   United

States,      390       F.2d    432,     437   (D.C.   Cir.   1967)    (Leventhal,     J.,

concurring)), and departed from her earlier course of conduct

such that we have two separate volitional acts, see Eisch, 96

Wis. 2d at 36 (emphasizing that each crime required "a separate

volitional act").              Unlike Hirsch where the acts were similar in

nature, here we have a change that had to take place between

Steinhardt acting in the first instance (bringing her daughter

into the bedroom) and Steinhardt failing to act (sitting on the

bed and observing Walter sexually assault her daughter) in the

second.      Furthermore, F.G. was subjected to a new and different

humiliation, danger, and pain with each act her mother took.
Consequently, we conclude that Counts 1 and 2 are not identical

in fact and therefore Steinhardt's convictions on both counts do

not violate double jeopardy.

  2.     Whether Steinhardt Has Overcome the Presumption that the

   Legislature Intended Cumulative Punishments for Her Conduct

       ¶24    Having determined that Counts 1 and 2, while identical

in law, are not identical in fact, we now turn to the second

prong of the test and look to whether the legislature intended
cumulative punishments for Steinhardt's conduct.                         We begin (as
                                               14
                                                                       No.       2015AP993-CR



we must) with the presumption that it did.                        "[I]f the offenses

are   different      in   law    or     fact,    the     presumption        is    that    the

legislature        intended       to      permit        cumulative      punishments."

Ziegler,     342     Wis. 2d 256,        ¶62.          Consequently,         "[a]t       this

juncture, we are no longer concerned with a double jeopardy

violation but instead a potential due process violation."                                 Id.

The defendant bears the burden of proving that "the offenses are

nevertheless multiplicitous on grounds that the legislature did

not intend to authorize cumulative punishments."                             Id.       "This

presumption may only be rebutted by a clear indication to the

contrary."       Anderson, 219 Wis. 2d at 751.

      ¶25   We     use    four   factors        to    examine    legislative         intent

under   this       second    prong:         (1)       "all     applicable         statutory

language";     (2)    "the      legislative          history    and   context       of    the

statutes"; (3) "the nature of the proscribed conduct"; and (4)

"the appropriateness of multiple punishments for the conduct."

Ziegler, 342 Wis. 2d 256, ¶63.

      ¶26   We note that, even though it is Steinhardt's burden to
overcome the presumption that the legislature intended to allow

cumulative     punishments        for    failure        to   protect    a    child       from

sexual assault and first-degree sexual assault of a child under

13 as a party to a crime, she failed to undertake any analysis

of the relevant four factors.                   Instead, she simply points to




                                           15
                                                                         No.    2015AP993-CR



Wis.    Stat.     § 939.66(2p).15          According         to    Steinhardt,        "[t]he

legislature       has    directly       addressed      this       situation[,        meaning

legislative       intent    to    allow    cumulative         punishments,]          by   the

passage      of   statutory       [sic]    Wis.      Stat.    § 939.66."             As   her

argument runs, Counts 1 and 2 are identical in law by operation

of this statute and are identical in fact because Counts 1 and 2

are supported by the same conduct; therefore, the legislature

did    not   intend      cumulative       punishments.            With    that       as   her

argument, the State correctly argues that Steinhardt could be

said to have conceded the last three of the four factors in the

second prong.           This is so because it is her burden to use all

four    factors     to     show   that    the     legislature        did       not    intend

cumulative        punishments,      and     this      she     has     failed         to   do.

Nonetheless,       we    choose    to   analyze      the     legislative        intent     in

accordance with the four relevant factors in order to determine

if, in fact, Steinhardt's convictions for Counts 1 and 2 violate

due process.

       ¶27    Under the first factor, we look to all the applicable
statutory     language      to    determine     if    the     legislature        indicated

whether it intended the imposition of cumulative punishments.

See State v. Grayson, 172 Wis. 2d 156, 160-64, 493 N.W.2d 23

(1992) (looking to the "common sense" reading of the statute to



       15
       Wisconsin Stat. § 939.66(2p) is the statute that makes
failure to protect a child from sexual assault a lesser-included
offense of first-degree sexual assault of a child under 13 as a
party to a crime.


                                           16
                                                                    No.   2015AP993-CR



determine whether the statutory language indicated a legislative

intent to impose cumulative punishments).

       ¶28    The statutory language of Wis. Stat. § 948.02 itself

is   silent    as    to    whether    the   legislature     intended      cumulative

punishments.        Section 948.02 simply lists both of the crimes we

have here:          § 948.02(1)(e) says, "Whoever has sexual contact

with a person who has not attained the age of 13 years is guilty

of a Class B felony," and § 948.02(3) says:

            A person responsible for the welfare of a child
       who has not attained the age of 16 years is guilty of
       a Class F felony if that person has knowledge that
       another person intends to have, is having or has had
       sexual intercourse or sexual contact with the child,
       is physically and emotionally capable of taking action
       which will prevent the intercourse or contact from
       taking place or being repeated, fails to take action
       and the failure to act exposes the child to an
       unreasonable risk that intercourse or contact may
       occur between the child and the other person or
       facilitates the intercourse or contact that does occur
       between the child and the other person.
A    common   sense       reading    of   this   statute    could    lead    to   the

conclusion that the legislature intended cumulative punishments
for first-degree sexual assault of a child under 13 and failure

to protect a child from sexual assault because both offenses are

listed in separate subsections of the statute.                       Cf. State v.

Church, 223 Wis. 2d 641, 653-55, 589 N.W.2d 638 (Ct. App. 1998)

(reasoning that the legislature likely did not intend multiple

punishments     for       different   subsections      of   the   same     statutory

provision      because      "neither,       standing   alone,       constitutes     a

separate offense" as was the case in Sauceda, 168 Wis. 2d 486).



                                            17
                                                                 No.   2015AP993-CR



      ¶29    Moreover, when we look to Wis. Stat. § 939.66(2p), we

see   that    the   legislature     provided    one    punishment      under    Wis.

Stat. § 948.02 for each criminal act.                  Section 939.66 states,

"Upon prosecution for a crime, the actor may be convicted of

either the crime charged or an included crime, but not both."

(Emphasis added).           Steinhardt's resort to § 939.66(2p) may have

had traction if, for example, the State had alleged a crime and

then sought entry of judgment of guilt for both first-degree

sexual assault of a child under 13 as a party to the crime as

well as      the lesser-included offense of failure to protect a

child.      However, that is not the case we are called upon today

to decide.

      ¶30    Here we have two criminal acts——Steinhardt's act of

commission in bringing F.G. to the bedroom and Steinhardt's act

of omission in sitting on the bed while the assault took place.

Because      of     this,     Steinhardt's      reliance    on       Wis.      Stat.

§ 939.66(2p) is misplaced and we see nothing in the language of

Wis. Stat. § 948.02(1)(e) or § 948.02(3) that would rebut the
presumption that the legislature intended cumulative punishments

for the violations of these statutes, and we move to the second

factor.

      ¶31    The    legislative    history     and    context   of     Wis.    Stat.

§ 948.02 likewise does nothing to overcome the presumption that

the   legislature     intended     cumulative    punishments.          Indeed,    we

recognize that this court, along with the court of appeals, has

noted that the legislative history of ch. 948 in general shows
that the legislature takes crimes against children seriously.
                                       18
                                                                     No.      2015AP993-CR



E.g.,    Ziegler,        342   Wis. 2d 256,       ¶76    (allowing      for     multiple

punishments to "further[] the legislature's express objective of

emphasizing        the    seriousness        of   crimes     against       children");

Church,      223    Wis. 2d at        661-63      (discussing     the      legislative

history of ch. 948 in relation to the child enticement statute).

Such a history indicates that cumulative punishments for crimes

against children are appropriate.

       ¶32   We also recognize that the legislative history of Wis.

Stat. § 939.66(2p) indicates that the legislature intended to

make Wis. Stat. § 948.02(3) a lesser-included offense of Wis.

Stat. § 948.02(1)(e).            However, this means that, had Steinhardt

been charged only with one count of violating § 948.02(1)(e)

based   on    one    act,      she   could    have   been   convicted         of   either

§ 948.02(1)(e) or          § 948.02(3), but not both.                In this case,

these are two separate offenses because Steinhardt's conduct is

sufficiently different in nature——one is an act of commission

and the other an act of omission.                       Accordingly, § 939.66(2p)

does not apply here, as the parties argue, and nothing under
this    second       factor      overcomes        the     presumption         that    the

legislature intended cumulative punishments under § 948.02 for

her conduct.

       ¶33   The third factor requires us to look at the nature of

the conduct and ask whether the conduct is separated in time or

different      in    nature.           See     Grayson,     172   Wis. 2d at          165

(evaluating whether "the facts are both separated in time and

different in nature"); see also Anderson, 219 Wis. 2d at 755-56
(evaluating the third factor by referring back to its inquiry
                                             19
                                                                                      No.    2015AP993-CR



into    identity       in        fact).         We       have    already         determined             that

Steinhardt's         conduct          consisted          of    one     act      of     commission         in

knowingly leading her child to be sexually assaulted (Wis. Stat.

§ 948.02(1)(e)) and one act of omission in passively observing

while     her        daughter           was,         in        fact,        sexually          assaulted

(§ 948.02(3)),             and     there      is     nothing           about         the     nature       of

Steinhardt's       conduct            that    overcomes         the     presumption           that        the

legislature        intended            cumulative             punishments.                  See,        e.g.,

Anderson,       219        Wis. 2d at         756     ("Because            the       nature        of    the

different proscribed conduct causes separate harms, we perceive

no   clear     indication             under     this          factor       of    the       analysis       to

overcome       the         presumption          that           the     legislature             intended

cumulative punishments.").                     As the court in Church recognized,

counts    that       rely        on    different          conduct          indicate         legislative

intent for cumulative punishments.                             See Church, 223 Wis. 2d at

663.

       ¶34    As      to     the       fourth       factor,          the     appropriateness               of

multiple punishments for Steinhardt's conduct, we determine this
factor likewise does nothing to overcome the presumption that

the legislature intended cumulative punishments.                                      When examining

this fourth factor, the court has typically looked for multiple

acts.        See, e.g., Ziegler, 342 Wis. 2d 256, ¶77 (noting that

there were multiple acts that subjected the victim to "a new and

different humiliation and danger"); Church, 223 Wis. 2d at 664

("[M]ultiple criminal punishments are appropriate for multiple

acts, but not for multiple thoughts.").                                We have multiple acts
here——one act of commission in bringing F.G. to the bedroom and
                                                    20
                                                                             No.   2015AP993-CR



one act of omission in sitting idly by on the bed while the

sexual assault took place.                   Thus, it cannot be said that this

factor       assists        in    overcoming          the        presumption        that       the

legislature intended cumulative punishments.

       ¶35     In reviewing the four factors, we find nothing, either

individually or in the aggregate, that overcomes the presumption

that the legislature intended for cumulative punishments.                                  Thus,

Steinhardt's convictions on Counts 1 and 2 do not violate due

process, and we decline to vacate her conviction for Count 1.

               3.     Whether Count 3 Violates Double Jeopardy

       ¶36     Steinhardt argues that concluding that her convictions

on Count 1 and Count 2 do not violate double jeopardy creates a

double       jeopardy       problem      with    Count       3     because       Count     3    is

supported      by     the    same      conduct       as    Count    1.      We     reject      her

contention       because         child      enticement       is     a    wholly      different

statute with different elements, making Count 3 different in law

from Count 1.          See State v. DeRango, 229 Wis. 2d 1, 13-17, 599

N.W.2d 27       (Ct.     App.       1999)     (concluding           that     the    different
concerns      underlying         the   child     enticement         statute      (Wis.     Stat.

§ 948.07)       and     the      child      exploitation           statute       (Wis.     Stat.

§ 948.05) allowed the defendant to be charged under both for the

same conduct).          Accordingly, we operate under the presumption

that the legislature intended for cumulative punishments.

       ¶37     We see nothing that overcomes this presumption.                             Under

the    first    factor       where     we    look     to    the     applicable      statutory

language, a common sense reading of Wis. Stat. § 948.07(1) and
Wis.    Stat.       § 948.02(1)(e)          indicates        that       Steinhardt       can    be
                                                21
                                                                           No.       2015AP993-CR



convicted        under     both     statutes.          Section      948.07       applies        to

"[w]hoever, with intent to commit any of the following acts,

causes or attempts to cause any child who has not attained the

age   of    18     years    to    go   into     any    vehicle,      building,         room     or

secluded place."               On the other hand, § 948.02(1)(e) applies to

"[w]hoever has sexual contact with a person who has not attained

the   age     of    13    years."        Each     statute      criminalizes           different

conduct——one          criminalizes       the    act    of     bringing     a     child     to    a

secluded place, and the other criminalizes the act of having

sexual contact with a child (or, in Steinhardt's case, anyone

who aids another in sexual contact with a child).

      ¶38       In looking to the legislative history in applying the

second      factor,       we     likewise      see    nothing       in    the    legislative

history that overcomes the presumption.                          In fact, as was the

case with Counts 1 and 2, the legislative history indicates that

the legislature takes crimes against children seriously.                                    See,

e.g., Ziegler, 342 Wis. 2d 256, ¶76.

      ¶39       Nothing under the third factor, where we look to the
nature     of    the     proscribed       conduct,      overcomes        the    presumption.

Wisconsin        Stat.     § 948.02(1)(e)         protects      children        from     sexual

acts and Wis. Stat. § 948.07(1) protects children from being

enticed to a secluded place where a sexual act can occur.                                     The

nature of the conduct criminalized by each statute is different.

In    fact,      no      sexual    act     need       occur    to    be    charged        under

§ 948.07(1); only the intent to commit a sexual act need occur.

All   that      must     occur    under     § 948.07(1)        is   that       the    child     be
brought to a secluded place.                    Church, 223 Wis. 2d at 664 ("The
                                               22
                                                                            No.     2015AP993-CR



crime of enticement is completed, however, when a person causes,

or   attempts        to    cause,   a    child      to    go    to    a   secluded       place,

regardless of whether any of the intended illegal acts is ever

completed       or        attempted.").           The     nature       of     the     conduct,

therefore,      is        sufficiently      different          in    nature     because     the

conduct     criminalized        under     § 948.02(1)(e)             pertains       to    sexual

acts committed with a child and the conduct criminalized under

§ 948.07(1) pertains to taking a child to a secluded place where

such acts can be performed.               See Church, 223 Wis. 2d at 663.

      ¶40      The    fourth    and     last     factor——the          appropriateness         of

multiple     punishments——also           fails       to   overcome        the     presumption

that it is appropriate to impose multiple punishments because

different interests of the child are protected by each statute.

See DeRango, 229 Wis. 2d at 14-17.                        "[T]he central concern of

[Wis. Stat. § 948.07] is the removal of a child from the general

public    to    a     secluded      place    in      order      to    facilitate         various

illegal conduct."             Id. at 14.            "The underlying acts, such as

sexual contact, . . . are not the primary concern of § 948.07
because other statutes specifically address these crimes."                                 Id.

      ¶41      Consequently, we conclude that no double jeopardy or

due process violation with Count 3 is created by our conclusion

regarding Counts 1 and 2.

     B.     Steinhardt's Ineffective Assistance of Counsel Claim




                                               23
                                                                                No.    2015AP993-CR



       ¶42     The Sixth Amendment to the United States Constitution16

and     Article       I,      Section        7     of    the     Wisconsin       Constitution17

guarantee a criminal defendant the right to counsel.                                           "This

right to counsel includes the right to the effective assistance

of counsel."          Trawitzki, 244 Wis. 2d 523, ¶39.                         We apply a two-

pronged test, commonly referred to as the Strickland18 test, to

determine whether counsel was ineffective.                              Id., ¶¶39-40.           "The

first       part    of     the      test     requires       a    defendant      to     show     that

counsel's      performance             was     deficient."            Id.,     ¶40.      "If     the

defendant establishes that counsel's performance was deficient,

then     the       defendant         must        satisfy       the    second     part     of    the

Strickland         test       and      prove      that     this       deficient       performance

prejudiced the defense."                   Id.

       ¶43     Steinhardt argues that her counsel's performance was

deficient      for       failing       to    alert       her    to    the    potential     double

jeopardy claim.               However, as we have determined, there is no

double      jeopardy        violation          occasioned        by    her   convictions        for

Counts 1 and 2 because Counts 1 and 2 are different in fact.
Consequently, counsel's performance was not deficient, State v.

Johnson,       2004      WI      94,    ¶24,       273     Wis. 2d 626,        681    N.W.2d 901


       16
       "In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his
defence."
       17
       "In all criminal prosecutions the accused shall enjoy the
right to heard by himself and counsel . . . ."
       18
            Strickland v. Washington, 466 U.S. 668 (1984).


                                                   24
                                                                                No.    2015AP993-CR



(concluding           counsel's    performance         was       not      deficient        because

"there was nothing objectionable about the line of testimony"

claimed to be improper).               We need not address the second prong,

State      v.    Maloney,      2005      WI    74,    ¶14,       281      Wis. 2d 595,          698

N.W.2d 583 ("We need not address both components of the inquiry

if the defendant makes an insufficient showing on one."), and no

useful purpose would be accomplished by doing so.                                    Accordingly,

we determine that there is no need to remand Steinhardt's case

for a hearing on whether her counsel was deficient.

                                    IV.       CONCLUSION

      ¶44       We conclude that Counts 1 and 2 are not multiplicitous

and   thus       Steinhardt's       convictions           for    both      counts       does    not

violate     double       jeopardy.        Counts      1     and      2    are    supported       by

different conduct and thus are not identical in fact.                                      We also

conclude that Steinhardt's convictions for Counts 1 and 2 do not

violate         due    process.        Accordingly,             we     decline        to    vacate

Steinhardt's conviction for Count 1.

      ¶45       Last,     we      conclude      that        Steinhardt's              claim     for
ineffective           assistance    of    counsel         fails,         and    therefore,       we

decline to remand her case for a hearing.

      By    the       Court.—The      decision       of    the       court      of    appeals    is

affirmed.




                                               25
                                                                            No.    2015AP993-CR.ssa


       ¶46    SHIRLEY S. ABRAHAMSON, J.                            (dissenting).          According

to the complaint, Heather Steinhardt knowingly and intentionally

took her 12-year-old daughter to Walter's bedroom and remained

there      sitting       on     Walter's         bed,    facilitating          Walter's        sexual

assault of the child.                 According to the majority opinion, Walter

is Heather Steinhardt's husband.                          Heather Steinhardt's conduct

was revolting and detestable!

       ¶47    The        federal        and       state        constitutional           guarantees

against double jeopardy protect us all, even Heather Steinhardt.

       ¶48    In        the    instant       double       jeopardy       challenge,         Heather

Steinhardt argues that she was convicted of two offenses, counts

1    and     2,    that       are     the     same       in    law    and     fact,       that    is,

multiplicitous.               The   majority            opinion       agrees       with     Heather

Steinhardt that the two convictions at issue are identical in

law.         The       majority       opinion          concludes,       however,          that     the

convictions for Count 1 (failure to act to protect a child from

sexual assault contrary to Wis. Stat. § 948.02(3)) and Count 2

(first-degree sexual assault of a child under 13 as a party to a
crime contrary to Wis. Stat. §§ 948.02(1)(e) and 939.05) are not

identical         in    fact    and     that      Heather      Steinhardt's            multiplicity

challenge fails.

       ¶49    Heather          Steinhardt         also     argues      that       if    this     court

upholds her convictions on Counts 1 and 2 upon the State's new

factual arguments in this court, a different multiplicity issue

is   created           with    regard       to    Count       3.      The   majority        opinion

concludes that count 3 (causing a child to go into a room with
intent to have sexual contact or sexual intercourse contrary to

                                                   1
                                                                   No.    2015AP993-CR.ssa


Wis. Stat. § 948.07(1)) is not identical in law or fact, that

the legislative intended multiple convictions under Count 3, and

that Heather Steinhardt's multiplicity challenge fails.

    ¶50       I   conclude,     contrary       to   the   majority       opinion,         that

Counts    1    and   2   are    identical       in    law    and    fact;          that   the

legislature       did    not   intend    that        these   two    counts          for   two

offenses identical in law and fact under two subsections of a

single statute would result in two convictions, see Wis. Stat.

§ 939.66(1) and (2p);1 and that convictions for both counts are

multiplicitous.           I    further     conclude       that     Count       3     is   not

identical in law with the other counts but that the legislature

did not intend that Heather Steinhardt's single, brief course of

conduct       subject    her    to   multiple        convictions         and       that   her

conviction of Count 3 is multiplicitous.

    ¶51       Accordingly, I would reverse the decision of the court

of appeals and the order of the circuit court.                           I would remand


    1
         Wisconsin Stat. § 939.66(1) and (2p) provide as follows:

    Sec.    939.66.    Conviction   of    included   crime
    permitted. Upon prosecution for a crime, the actor may
    be convicted of either the crime charged or an
    included crime, but not both.    An included crime may
    be any of the following:

    (1) A crime which does not require proof of any fact
    in addition to those which must be proved for the
    crime charged.

              . . . .

    (2p) A crime which is a less serious or equally
    serious type of violation under s. 948.02 than the one
    charged.


                                           2
                                                                  No.   2015AP993-CR.ssa


the matter to the circuit court to vacate the convictions on

Counts 1 and 3 and for further proceedings consistent with this

dissent.

       ¶52     Notwithstanding       the       heinous        nature     of        Heather

Steinhardt's conduct, the ultimate question for double jeopardy

purposes is whether it is fundamentally fair to convict her of

the    three     offenses.        "Basically,      where       problems       of    double

jeopardy       or   multiplicity      arise,      the        question      is      one   of

fundamental fairness or prejudice to the defendant.                        A defendant

ought not be charged, tried, or convicted for offenses that are

substantially alike when they are a part of the same general

transaction or episode."           State v. Eisch, 96 Wis. 2d 25, 34, 291

N.W.2d 800 (1980).

       ¶53     The problem of unfairness caused by the overcharging

of    multiple      criminal   offenses        based    on    a   single      course     of

criminal conduct is not a new concern.                       Over forty years ago,

United States Supreme Court Justice William Brennan, concurring

in Ashe v. Swenson, 397 U.S. 436, 452 (1970), sounded a warning.
Although       directed      at    another       area        of   double        jeopardy

jurisprudence, Justice Brennan's concerns pertain to the instant

case:

       Given the tendency of modern criminal legislation to
       divide the phases of a criminal transaction into
       numerous   separate   crimes,   the   opportunities   for
       multiple prosecutions for an essentially unitary
       criminal episode are frightening.         And given our
       tradition of virtually unreviewable prosecutorial
       discretion concerning the initiation and scope of a
       criminal    prosecution,    the     potentialities    for
       abuse . . . are     simply    intolerable.     (Footnotes
       omitted.)

                                           3
                                                                  No.    2015AP993-CR.ssa


    ¶54    I conclude that two counts in the instant case are

identical in law and fact, that the third count is identical in

fact, and that the three are multiplicitous for the following

reasons:

      I.   The text of the statutes and the facts alleged in the

           complaint demonstrate that Counts 1 and 2 are the same

           in law and supported by the same facts.                         Because the

           same conduct satisfies each count, the text of the two

           statutes clearly expresses a legislative intent that

           there     not      be    two    convictions.            See     Wis.     Stat.

           § 939.66(1), (2p).              Count 3 is different in law but

           the   same      conduct       supports    all   three        counts.         The

           legislature did not intend multiple convictions for

           the three counts under the facts of the instant case.

      II. An indication that Counts 1, 2, and 3 are identical in

           fact is the short time that elapsed between the "acts"

           alleged.          Heather      Steinhardt     performed        the    role    of

           isolating the child by bringing the child into the
           bedroom      and      facilitating       Walter's      sexual        assaults.

           Her   mens      rea     was    unvarying.       Her    relatively        brief

           course    of      conduct      demonstrated     a     single     intent      and

           purpose      of    getting      the   child     into     the    bedroom       to

           facilitate Walter's sexual assaults.

    III. The majority opinion's commission/omission "test" is

           not viable.           The majority opinion adopts the state's

           novel position about the facts in this court, which
           differs from the State's position in the circuit court

                                            4
                                                             No.   2015AP993-CR.ssa


            and court of appeals.            The majority opinion "slices

            and dices" Heather Steinhardt's single volitional act

            constituting   a     single      course    of   conduct      into     two

            offenses, one an act of omission and the other an act

            of commission.

         IV. The majority opinion's reasoning can easily lead to

            the   overcharging    of    offenses      and   the    imposition      of

            multiple   sentences       for   a   single     act    or    course   of

            conduct.

     ¶55    I develop these four reasons further below.

                                        I

     ¶56    The text of the statutes and the facts alleged in the

complaint demonstrate that the three counts are supported by the

very same facts, that is, by the very same "acts" of Heather

Steinhardt described in the complaint.2


     2
       The criminal information, unlike the complaint, does not
state the facts upon which the charges are based. The criminal
information charges a third offense (unmentioned in the
complaint) as follows:

     The above-named defendant on or about Monday, April
     01, 2013, in the Town of Fredonia, Ozaukee County,
     Wisconsin, with intent to have sexual intercourse with
     the child in violation of Section 948.02, Wis. Stats.,
     did cause a child, FG, DOB 11/26/2000, who had not
     attained the age of 18 years to go into a room,
     contrary to sec. 948.07(1), 939.50(3)(d) Wis. Stats.,
     a Class D Felony, and upon conviction may be fined not
     more than One Hundred Thousand Dollars ($100,000), or
     imprisoned not more than twenty five (25) years, or
     both.

     Child enticement is set forth in Wis. Stat. § 948.07(1),
which provides:

                                                                        (continued)
                                        5
                                                    No.    2015AP993-CR.ssa


    ¶57   The   complaint   alleges    identical   facts    as   probable

cause to believe that Heather Steinhardt committed the three

offenses charged.   The probable cause section of the complaint

states:

                            PROBABLE CAUSE:

    Complainant alleges that on June 19, 2013, Detective
    Lambrecht and Lieutenant Knowles interviewed Heather
    Steinhardt   about   the    allegations   that   Walter
    Steinhardt had sexual intercourse with F.G., date of
    birth 11/26/2000.      At that time, Heather told
    Detective Lambrecht that Walter had been interested in
    having intercourse with both of her daughters for the
    last three years. Heather stated that throughout the
    day on April 1, 2013, Walter had been prodding Heather
    to allow him to have sexual intercourse with F.G.
    Heather stated that at one point she went to one of
    the other rooms were [sic] F.G. was and brought her
    into the bedroom that Heather shared with Walter and
    sat with her on the bed.    Heather stated that Walter
    was prepared, lying on the bed under the covers.
    Heather stated that Walter then told F.G. to take off
    her clothes at which time Heather remained on the bed
    while Walter engaged in digital penetration of F.G.,
    Walter had F.G. engage in oral sex with him, and
    ultimately Walter had sexual intercourse with F.G.
    placing his penis inside her vagina.     Heather stated
    she remained on the bed the whole time.          Walter
    finished and F.G. left the room to take a shower with
    Heather following her into the bathroom.




    948.07 Child enticement. Whoever, with intent to
    commit any of the following acts, causes or attempts
    to cause any child who has not attained the age of 18
    years to go into any vehicle, building, room or
    secluded place is guilty of a Class D felony:

    (1) Having sexual contact or sexual intercourse with
    the child in violation of s. 948.02, 948.085, or
    948.095.


                                   6
                                                  No.   2015AP993-CR.ssa

    Complainant further alleges that all the above stated
    events occurred in the County of Ozaukee, State of
    Wisconsin.

    Based on the foregoing, the complainant believes this
    complaint to be true and correct.
    ¶58   I examine Count 1 first.   It charges Heather Steinhart

with failure to act, that is, failure to protect a child from

sexual assault in violation of Wis. Stat. § 948.02(3), which

provides as follows:

    (3) FAILURE TO ACT. A person responsible for the welfare
    of a child who has not attained the age of 16 years is
    guilty of a Class F felony if that person has
    knowledge that another person intends to have, is
    having or has had sexual intercourse or sexual contact
    with the child, is physically and emotionally capable
    of taking action which will prevent the intercourse or
    contact from taking place or being repeated, fails to
    take that action and the failure to act exposes the
    child to an unreasonable risk that intercourse or
    contact may occur between the child and the other
    person or facilitates the intercourse or contact that
    does occur between the child and the other person.[3]
    (Emphasis added.)

    3
       The complaint stated the statutory offense in count 1 as
follows:

          Count 1:   FAILURE TO PROTECT A CHILD

    The above-named defendant on or about Monday, April
    01, 2013, in the Town of Fredonia, Ozaukee County,
    Wisconsin, as a person responsible for the welfare of
    a child under the age of sixteen, FG, DOB 11/26/2000,
    with knowledge that a person intended to have sexual
    sexual [sic] contact with said child, did fail to take
    action to prevent the sexual contact and created an
    unreasonable risk of the sexual contact occurring,
    contrary to sec. 948.02(3), 939.50(3)(f) Wis. Stats.,
    a Class F Felony, and upon conviction may be fined not
    more than Twenty Five Thousand Dollars ($25,000), or
    imprisoned not more than twelve (12) years and six (6)
    months, or both.


                                 7
                                                             No.    2015AP993-CR.ssa


      ¶59    With regard to Count 1, which charges a violation of

Wis. Stat. § 948.02(3), the facts alleged fall squarely in the

language of the charged offense.            The probable cause part of the

complaint clearly states that Heather Steinhardt is the mother

of the assaulted child.         No one disputes that as a mother she is

responsible for the welfare of the child.               She had "knowledge"

that Walter wanted to have sexual intercourse4 or sexual contact5

with her child.       On April 1, 2013, Heather Steinhardt succumbed

to Walter's wishes.          She failed to take action to prevent the

sexual     assaults   from   taking   place   on   April     1     by    failing     to

remove her daughter to a safe place away from Walter's grasp

(instead, she brought the child into Walter's bedroom).                            This

failure to take action exposed the child to an unreasonable risk

that intercourse or contact may occur.             By the act of sitting on

the bed she facilitated the ongoing sexual assaults, and she did

nothing to stop them.

      ¶60    Heather Steinhardt's conduct, whether denoted "acts of

omission" or "acts of commission," explicitly falls within the
text of Wis. Stat. § 948.02(3)'s prohibition on failing to act,

the violation of which constitutes Count 1.

      ¶61    The majority opinion declares that the act of sitting

on   Walter's   bed    during   the   assaults     is   an    act       of     omission

constituting Count 1.


      4
       "Sexual        intercourse"     is     defined        in         Wis.      Stat.
§ 939.22(36).
      5
          "Sexual contact" is defined in Wis. Stat. § 939.22(34).


                                       8
                                                       No.   2015AP993-CR.ssa


    ¶62     I now consider Count 2.        Count 2 charges first-degree

sexual assault of a child under 13 as party to a crime in

violation    of    Wis.    Stat.    §§ 948.02(1)(e)   and    939.05,   which

provide:

    Wis. Stat. § 948.02 Sexual assault of a child.

    (1) FIRST     DEGREE SEXUAL ASSAULT.

            . . . .

    (e) Whoever has sexual contact or sexual intercourse
    with a person who has not attained the age of 13 years
    is guilty of a Class B felony.

    Wis. Stat. § 939.05 Parties to crime.

    (1) Whoever is concerned in the commission of a crime
    is a principal and may be charged with and convicted
    of the commission of the crime although the person did
    not directly commit it and although the person who
    directly committed it has not been convicted or has
    been convicted of some other degree of the crime or of
    some other crime based on the same act.

    (2) A person is concerned in the commission of the
    crime if the person:

    (a) Directly commits the crime; or

    (b) Intentionally aids and abets the commission of it;
    or

    (c) Is a party to a conspiracy with another to commit
    it . . . .6

    6
       The complaint states the statutory offense in Count 2 as
follows:

    Count 2:   1ST DEGREE CHILD SEXUAL ASSAULT – CONTACT
    WITH A CHILD UNDER AGE 13 – AS A PARTY TO A CRIME

    The above-named defendant on or about Monday, April
    01, 2013, in the Town of Fredonia, Ozaukee County,
    Wisconsin, as a party to a crime, did have sexual
    contact with a person who has not attained the age of
                                                   (continued)
                              9
                                                                  No.    2015AP993-CR.ssa


     ¶63    With regard to Count             2,    sexual assault of a child

under 13 as party to a crime, the complaint relies on the same

facts as does Count 1, namely those facts set forth in the

probable cause section.          These facts fall squarely within the

text of Wis. Stat. §§ 948.02(1)(e) and 939.05, as well as within

the text of § 948.02(3).

     ¶64    The    probable    cause    part       of    the    complaint        clearly

states that Heather Steinhardt intentionally aided and abetted

Walter's sexual assaults by failing to take action to remove the

child    from   Walter's   grasp       and    by       bringing      the      child    into

Walter's bedroom.       In addition, by sitting on Walter's bed and

failing to do anything to stop the assaults, she facilitated

Walter's ongoing sexual assaults.                  Heather Steinhardt had the

duty and opportunity to protect the child.                    Heather Steinhardt's

conduct,    whether    denoted     "acts          of    omission"        or    "acts     of

commission,"      explicitly   falls     within         the   text      of    Wis.    Stat.

§§ 948.02(1)(e) and 939.05, the violation of which constitutes

Count 2.7


     thirteen, FG, DOB 11/26/2000, contrary to sec.
     948.02(1)(e), 939.50(3)(b), 939.05 Wis. Stats., a
     Class B Felony, and upon conviction may be sentenced
     to a term of imprisonment not to exceed sixty (60)
     years.
     7
       Heather Steinhardt's conduct constituted aiding and
abetting. The court described aiding and abetting as follows in
State v. Tourville, 2016 WI 17, ¶¶49-50, 367 Wis. 2d 285, 876
N.W.2d 735:

     In order to aid and abet a crime, the defendant need
     be only a willing participant. State v. Marshall, 92
     Wis. 2d 101, 122, 284 N.W.2d 592 (1979)).       "Such
     participation as would constitute aiding and abetting
                                                    (continued)
                               10
                                                                  No.    2015AP993-CR.ssa


       ¶65   The majority opinion declares that the act of bringing

the     child    into   Walter's      bedroom      is     an    act     of     commission

constituting Count 2.

       ¶66   The majority opinion concludes, without analysis or

explanation, that had Heather Steinhardt been charged "only with

one count of violating § 948.02(1)(e) based on one act, she

could     have     been        convicted     of    either        § 948.02(1)(e)           or

§ 948.02(3), but not both."                Majority op., ¶32.                The majority

opinion neither explains this hypothetical scenario nor cites

authority for this interpretation of the statutes.

       ¶67   In sum, the text of the statutes and the text of the

complaint demonstrate that Counts 1 and 2 are supported by the

same    facts.      I   therefore     conclude       that      the     two    counts     are

identical in fact (as well as in law) and are multiplicitous.

The legislature clearly stated it did not intend that these two

counts for offenses based on the same facts and charged under

two     subsections       of    a   single       statute       would    lead        to   two

convictions.      See Wis. Stat. § 939.66 (1), (2p).
       ¶68   Another      multiplicity       issue      involves       Count       3.    The

majority     opinion,      ¶¶36-41,        concludes     that        Count     3    in   the



       does not even require that the defendant be present
       during the [crime]."    Id.  "One need not perform an
       act which would constitute an essential element of the
       crime in order to aid and abet that crime. It is only
       necessary that he undertake some conduct (either
       verbal or overt), which as a matter of objective fact
       aids another person in the execution of a crime, and
       that he consciously desire or intend that his conduct
       will in fact yield such assistance." Id.


                                            11
                                                                  No.    2015AP993-CR.ssa


information setting forth the crime of child enticement, see ¶56

n.2, supra, is not multiplicitous.

    ¶69     Heather Steinhardt's reply brief argues that in light

of the State's novel approach to the facts in this court, Count

3 is not identical in law but is multiplicitous because Count 3

is supported by the same conduct as Count 2.                       See Steinhardt's

Reply Brief at 8.         A single act or course of conduct may support

multiple     convictions         if   the     legislature      intended        there     be

multiple    convictions      "to      protect      different     interests       of    the

victim or the public."            See State v. DeRango, 229 Wis. 2d 1, 16,

599 N.W.2d 27 (Ct. App. 1999); State v. Patterson, 2010 WI 130,

329 Wis. 2d 599, 790 N.W.2d 909.

    ¶70     No one disputes that Count 3 is based on the course of

conduct    set    forth     in    the    probable      cause     statement       in    the

complaint.       This course of conduct supports all three counts.

    ¶71     Under    Wis.    Stat.      § 948.07(1),       the    State     must      prove

that the accused causes a child who has not attained the age of

18 years to go into a room with the intent to have sexual
contact or sexual intercourse with the child.                            See ¶56 n.2,

supra; State v. Church, 223 Wis. 2d 641, 664, 589 N.W.2d 638

(Ct. App. 1998) ("The crime of enticement is completed, however,

when a person causes, or attempts to cause, a child to go to a

secluded    place,    regardless         of      whether   any    of     the    intended

illegal acts is ever completed or attempted.").

    ¶72     The facts alleged in the probable cause part of the

complaint    fall    squarely         within     the   language     of    the    charged
offense in Count 3.          The complaint clearly states that Heather

                                            12
                                                                No.    2015AP993-CR.ssa


Steinhardt caused the child to go into a room with the intent

that Heather Steinhardt aid and abet Walter as a party to the

crime of sexually assaulting the child.

      ¶73   I     conclude     that    in     the    instant      case    the   three

convictions based on Heather Steinhardt's same course of conduct

over a brief period of time contravene the same interests of the

victim and the community that the legislature was protecting in

all three offenses.        All three statutes protect the child and the

community against the seriousness of sexual assault of a child.

"Enticement of a child to a vehicle, building, room, or other

secluded place isolates a child from the protections of the

public.     It also provides the opportunity, with substantially

less risk of detection, for the person to exercise force and

control over the child for purposes of sexual gratification."

State v. Hanson, 182 Wis. 2d 481, 487, 513 N.W.2d 700 (Ct. App.

1994) (internal citations and quoted source omitted).

      ¶74   My review of the text of the statutes, the statutory

and     legislative       history,     the        nature   of    the     statutorily
proscribed      conduct,       Heather      Steinhardt's        brief     course    of

conduct,     and    the      appropriateness         of    multiple      punishments

supports    the    conclusion     that      the    legislature     did    not   intend

three    convictions      in   the    instant      case.    The       three   statutes

protect the same interests of the victim and the community.

Count 3 is multiplicitous.            The instant case is more like State

v. Church, 223 Wis. 2d 641, 648, 589 N.W.2d 638 (Ct. App. 1998),

review dismissed as improvidently granted, State v. Church, 2000
WI 90, 236 Wis. 2d 755, 613 N.W.2d 848 (the facts on which the

                                         13
                                                                    No.    2015AP993-CR.ssa


convictions       were     based     were        not    separated          in     time       or

significantly different in nature), than State v. DeRango, 229

Wis. 2d 1, 14-17, 599 N.W.2d 27 (1999) (the legislature created

two statutes and two offenses intending to protect different

interests of the victim or public).

                                           II

     ¶75    One     indicator       of     whether         the     three     counts       are

identical in fact is how much time elapsed between "acts."

     ¶76    The complaint is silent as to how much time passed

during    and    between    Heather      Steinhardt's            "acts."        Time    is    a

factor in cases like this.8

     ¶77    The     majority       opinion       disregards        the     time       factor,

stating that it is "unable to determine from the facts in the

criminal    complaint       exactly        how      much     time     elapsed          here."

Majority op., ¶19.          True, but there is no indication in the

complaint that any considerable amount of time passed between

Heather's       bringing   the     child     into      Walter's      bedroom      and    the

assaults.
     ¶78    In State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800

(1980),    the    court    surmised      from     the    record      that       the    sexual

assaults took place over a period that did not exceed two and


     8
       See State v. Carol M.D., 198 Wis. 2d 162, 170, 542
N.W.2d 476 (Ct. App. 1995); State v. Hirsch, 140 Wis. 2d 468,
475, 410 N.W.2d 638 (Ct. App. 1987); Christine M. Wiseman &
Michael Tobin, 9 Wisconsin Practice:      Criminal Practice and
Procedure § 15:6 (2d ed. 2008) ("Whether there is a difference
in fact depends upon whether the offenses are separated in time,
significantly   different  in   nature,   or   involve  separate
volitional acts.").


                                           14
                                                          No.   2015AP993-CR.ssa


one-half hours.     The court characterized this period of time as

"a relatively short period."         The Eisch court also stated that

this "relatively short time period" was "not significant enough

to make the time interval alone controlling."             Eisch, 96 Wis. 2d

at 31, 33.     Heather Steinhardt's acts were not separated by a

significant enough period of         time    to make the time interval

controlling in the instant case.

      ¶79   I surmise from the complaint that the "acts" leading

to the three charged offenses in the instant case occurred over

a   significantly   shorter   time    than    two   and    one-half     hours.

Indeed, they are patently part of the same episode.                    Heather

Steinhardt's   conduct   constituting       the   three   charged     offenses

arose out of one continuous course of conduct within a brief

period of time.9

      ¶80   The complaint makes clear that Heather Steinhardt and

Walter planned her participation in the sexual assaults on April


      9
       State v. Hirsch, 140 Wis. 2d 468, 475, 410 N.W.2d 638 (Ct.
App. 1987) ("Given the short time frame, we cannot say that the
defendant had sufficient time for reflection between the
assaultive acts to again commit herself.") (internal quotation
marks omitted); Irby v. United States, 390 F.2d 432, 437-38
(D.C. Cir. 1967) (Leventhal, J., concurring) ("If at the scene
of the crime the defendant can be said to have realized that he
has come to a fork in the road, and nevertheless decides to
invade a different interest, then his successive intentions make
him subject to cumulative punishment, and he must be treated as
accepting that risk, whether he in fact knows of it or not.").

     See Christine M. Wiseman & Michael Tobin, 9 Wisconsin
Practice: Criminal Practice and Procedure § 15:6 (2d ed. 2008)
("Whether there is a difference in fact depends upon whether the
offenses are separated in time, significantly different in
nature, or involve separate volitional acts.").


                                     15
                                                                          No.   2015AP993-CR.ssa


1, 2013.     The plan was that she perform the same role before and

during     the    sexual        assaults,    that        of    facilitator.             Heather

Steinhardt's conduct consisted of a single volitional act.                                    She

did not reconsider her course of conduct.                            Heather Steinhardt's

course      of        conduct,     contrary         to        the     State's         argument,

continuously inflicted the same humiliation and emotional and

physical     danger       and    pain   to    her       daughter.10             Her   mens    rea

throughout the time at issue was unvarying; she demonstrated a

single intent and purpose of                  taking the child into Walter's

bedroom and exposing the child to Walter's sexual assaults.

      ¶81    In sum, the facts underlying the three counts took

place during a relatively short period of time and constituted a

single course of conduct during which Heather Steinhardt could

not (and did not) change her mens rea or engage in separate

volitional acts.          Compare State v. Carol M.D., 196 Wis. 2d 162,

542   N.W.2d 476        (Ct.     App.   1995),      in       which    the       defendant    was

convicted        of    several     offenses        as    a     result       of     making     the

conscious    decision       on     numerous       occasions          to    leave      the   child
alone with the assaulter.               Counts 1, 2, and 3 are identical in

fact in the instant case.               The legislative intent is that there

be one conviction, not three, in the instant case.                                     See Wis.

Stat. §§ 939.66(1), (2p).

                                             III

      10
       In State v. Ziegler, 2012 WI 73, ¶77, 342 Wis. 2d 256,
816 N.W.2d 238, the court held that cumulative punishments were
appropriate when each aspect of the defendant's conduct
"resulted in a new and different humiliation and danger on the
part of a child."


                                             16
                                                             No.    2015AP993-CR.ssa


     ¶82    With regard to Counts 1 and 2, the majority opinion

adopts the novel approach taken by the State in this court (to

which     the   defendant      vigorously       objects   because     it     differs

significantly from the State's position taken in the circuit

court and court of appeals).                The majority opinion "slices and

dices" Heather Steinhardt's single volitional act constituting a

single course of conduct into two acts, three crimes, and a

multiplicity problem.11

     ¶83    The    majority       opinion    describes    Heather    Steinhardt's

conduct as consisting of two "acts" for purposes of Counts 1 and

2:   The act of sitting on the bed becomes, according to the

majority opinion, "an act of omission" that constitutes Count 1,

failure    to   protect    a   child     from   sexual    assault;    the    act   of

bringing the child into Walter's bedroom becomes, according to

the majority opinion, "an act of commission" that constitutes

Count 2, first-degree sexual assault of a child under 13 as

party to a crime.      Majority op., ¶23.

     ¶84    The majority opinion does not identify the "act" that
is the basis of Count 3.           I assume from the criminal information

that the act relates to taking the child into Walter's bedroom.

     ¶85    The word "act" (in common parlance and as used by the

majority    opinion)      means    the   "process    of   doing     something"     or

"performing       something."          Thus,    according    to     the     majority

     11
       For the majority opinion's cursory response to Heather
Steinhardt's arguments that the State should be judicially
estopped from taking a position in this court contrary to the
position that it took in the circuit court and court of appeals,
see majority op., ¶18 n.4.


                                          17
                                                                          No.     2015AP993-CR.ssa


opinion,        Heather    Steinhardt's          criminal             conduct      consisted       of

doing      or   performing        something          (which       it    labels      an    "act    of

omission")        and    doing      or    performing        something        else        (which   it

labels an "act of commission").

      ¶86       The     majority     opinion's         commission/omission                approach

rests on quicksand.               With little difficulty, the same conduct

can usually be classified in terms of both malfeasance (act of

commission) and nonfeasance (act of omission).

      ¶87       For     instance,        sitting      on    Walter's         bed      during      the

sexual assaults (which the majority opinion characterizes as an

act   of    omission)       can     be    restated         as    an    act   of    commission——

Heather Steinhart's staying in Walter's room and sitting on the

bed during the assaults facilitated the assaults.

      ¶88       Bringing the child into Walter's bedroom for Walter's

sexual assaults (which the majority opinion characterizes as an

act   of    commission)        can       be   restated       as    an    act    of    omission——

Heather Steinhardt failed to remove the child from harm's way.

      ¶89       For a discussion of the difficulty of distinguishing
acts of commission and omission, see 2 Dan B. Dobbs, Paul T.

Hayden, & Ellen M. Bublick, The Law of Torts § 406 (2d ed. 2011)

("[N]o rule has been formulated to prescribe whether courts are

to characterize conduct as affirmative action with an embedded

omission or as simple non-action."); W. Page Keeton et al.,

Prosser     and       Keeton   on    Torts      § 56,       at    373-75       (5th      ed.   1984)

("[I]n theory the difference between the two is fairly clear;

but in practice it is not always easy to draw the line and say
whether conduct is active or passive."); Fleming James, Jr.,

                                                18
                                                               No.   2015AP993-CR.ssa


Scope of Duty in Negligence Cases, 47 Nw. U. L. Rev. 778, 801

(1953) ("Often the same conduct could be described as either one

or the other [that is, as either an act or omission]"); Behrendt

v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶54, 318 Wis. 2d 622,

768     N.W.2d 568         (2009)   (Abrahamson,       C.J.,   concurring)       (the

distinction between misfeasance and nonfeasance is "tenuous and

misleading"); id., ¶88 (Roggensack, J., concurring) ("the claim

made could be characterized as either a failure to act or as an

act negligently performed, depending on the lens that the author

of the opinion applies"); Pehle v. Farm Bureau Life Ins. Co.,

Inc.,      397    F.3d     897,   902   (10th   Cir.   2005)   (the    distinction

between misfeasance and nonfeasance is not useful because the

conduct can be characterized as either one).12

      ¶90        Resting    multiplicitous      criminal   penalties      upon    the

shaky foundation of "commission" and "omission" in the instant

case is a cause for concern because these concepts are largely

malleable.

                                           IV
      ¶91        Unfortunately, the reasoning of the majority opinion

will have deleterious effects on the administration of justice.

The reasoning can too easily lead to prosecutorial overcharging

of offenses and the imposition of consecutive multiple criminal

      12
       "Malfeasance"   and   "nonfeasance"   may  have   special
significance in "no-duty," "special relationship" cases.    See,
e.g., 2 Dan B. Dobbs, Paul T. Hayden, & Ellen M. Bublick, The
Law of Torts § 406 (2d ed. 2011); W. Page Keeton et al., Prosser
and Keeton on Torts § 56, at 373-78 (5th ed. 1984); Fleming
James, Jr., Scope of Duty in Negligence Cases, 47 Nw. U. L. Rev.
778, 802 (1953).


                                           19
                                                           No.   2015AP993-CR.ssa


penalties for a volitional act constituting a single course of

conduct with a single purpose.                Under the majority opinion,

Heather Steinhardt apparently could be charged with additional

offenses, namely, an offense for each distinct sexual intrusion

that Walter inflicted on the child.

     ¶92     In the Eisch case, 96 Wis. 2d at 27, the court upheld

the prosecutor's charging the defendant with four acts of sexual

assault; the court viewed each sexual assault as a different

intrusion on the body of the victim.                 Here Walter committed

three different sexual intrusions on the child and apparently

Heather Steinhardt might be charged with party to a crime for

each assault.

     ¶93     Each    charge   of   a   sexual    assault   supports    its    own

penalty      and    the   sentences     for     multiple   assaults     can   be

consecutive.        A real question exists whether it is fundamentally

fair to allow such charging and sentencing in the instant case

when Heather Steinhardt's course of conduct took place over a

relatively brief period of time and was all part of the same
episode.13

                                   * * * *

     ¶94     I conclude, contrary to the majority opinion, that the

three counts are identical in fact and that the legislature did

not intend multiple convictions in the instant case.                  Moreover,

the legislature did not intend that Counts 1 and 2, which are

     13
       For an objection to charging for multiple violations of a
single statute, see State v. Pal, 2017 WI 44, ¶54, 374
Wis. 2d 759, 893 N.W.2d 848 (Kelly, J., concurring).


                                        20
                                                                No.    2015AP993-CR.ssa


identical    in        law,   would   result     in   two    convictions      for   two

offenses identical in fact under two subsections of a single

statute.         See    Wis. Stat. § 939.66(1), (2p).                 Accordingly, I

would reverse the decision of the court of appeals and the order

of the circuit court.            I would remand the matter to the circuit

court   to   vacate       the   convictions      on   Counts    1   and   3   and   for

further proceedings consistent with this dissent.

    ¶95      Accordingly, I dissent.

    ¶96      I    am     authorized    to    state    that     Justice    ANN   WALSH

BRADLEY joins this dissenting opinion.




                                            21
    No.   2015AP993-CR.ssa




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