STEINMETZ, J.
The issue in this case is whether charging an individual who continuously failed to pay court-ordered child support for the years 1986, 1987, 1988, and 1989, with four counts of felony nonsupport under sec. 948.22(2), Stats., one for each year, is mul-tiplicitous and therefore impermissible.
We hold that sec. 948.22(2), Stats., permits a prosecutor to charge one count of felony nonsupport for each 120-day term a person fails to pay child support, even if that person failed to pay over one continuous period.1
The defendant, Keith A. Grayson, was convicted on his plea of no contest of four counts of nonsupport contrary to sec. 940.27(2), Stats. 1987-88.2 Each of the four counts was for failure to pay court ordered child support for more than 120 days during a separate calendar year (1986, 1987, 1988 and 1989). During that four-year period, the defendant's failure to pay support was continuous. In other words, he paid no support at all for four years. The court of appeals affirmed all four convictions. State v. Grayson, 165 Wis. 2d 557, 560, 478 N.W.2d 390 (Ct. App. 1991).
[159] The defendant has petitioned this court and argues that the four charges were multiplicitous. Consequently, his convictions should be overturned.
Multiplicity is defined as the charging of a single criminal offense in more than one count. Harrell v. State, 88 Wis. 2d 546, 555, 277 N.W.2d 462, 464-65 (1979). Multiplicitous charges are impermissible because they violate the double jeopardy provisions of the Wisconsin and United States Constitutions. See, e.g., State v. Rabe, 96 Wis. 2d 48, 61, 291 N.W.2d 809, 815 (1980).
In Wisconsin, courts employ a two-prong test when analyzing a multiplicity problem. Under the first prong, courts inquire whether the charged offenses are identical in law and fact. If they are, the charges are multiplic-itous. Id. at 63. However, if the charges are different in law or fact, they may still be multiplicitous under the second prong. State v. Tappa, 127 Wis. 2d 155, 164, 378 N.W.2d 883, 887 (1985). Under that test, the charges are multiplicitous if the legislature intended them to be brought as a single count.3
In State v. Sauceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992), this court stated that the first element of the multiplicity test, identity of law and fact, is the same whether we are addressing multiple criminal charges brought under different statutory sections, as in [160] Sauceda, or multiple charges brought under one statutory section, as in the instant case. Id. at 493 n.8. We also stated in Sauceda that if the first factor of the multiplicity test is satisfied, "then this court shall presume that the legislature intended to permit cumulative punishments_" Id. at 495. Since the first factor of the multiplicity test is the same under the fact situation in Sauceda and the fact situation here, it follows that the presumption of multiple punishments is also the same. We so hold.
In the instant case, the defendant concedes that each of the four charges is different in fact because they are based on different time periods. Consequently, our inquiry is limited to determining whether the legislature's intent contravenes the presumption that multiple felony convictions are permissible under sec. 948.22(2), Stats.
Statutory construction involves a question of law and is reviewed de novo. See, e.g., State v. Nixa, 121 Wis. 2d 160, 163, 360 N.W.2d 52, 54 (Ct. App. 1984).
When determining legislative intent for multiplicity purposes, this court examines four factors:
(1) the language of the statute;
(2) the legislative history and context of the statute;
(3) the nature of the proscribed conduct; and
(4) the appropriateness of multiple punishment for the conduct.
Tappa, 127 Wis. 2d at 165.
There is no express indication of legislative intent as to the allowable unit of prosecution in the language or legislative history of sec. 948.22, Stats. The state concedes that the statute is ambiguous in this respect.
[161] The defendant argues that this lack of express intent and presence of ambiguity means that he should prevail. He bases this conclusion on the rule of lenity: in the absence of express legislative intent to permit multiple punishment, a penal statute should be interpreted in the defendant's favor. See, e.g., State v. Bohacheff, 114 Wis. 2d 402, 417, 338 N.W.2d 466, 473 (1983).
This argument fails for several reasons. First, it flies in the face of the presumption that sec. 948.22(2), Stats., permits multiple counts.
Second, this court has previously rejected it. We did this by adopting the four-factor test. If an express legislative intent or the absence of ambiguity were the benchmark against which the issue of the allowable unit of prosecution had to be decided, consideration of the matter would be limited to the first two factors. The last two factors would not then be relevant.
This court has also rejected the defendant's argument expressly. In Tappa, 127 Wis. 2d at 170-71, a case similar to this one involving the issue of the allowable unit of prosecution under a single statute, we stated the following:
We hold that a common sense reading of the statute supports the conclusion that transfer and concealment are separate offenses. The Defendant argues that if there is any ambiguity in the statute, then the statute should be interpreted in his favor. In Wisconsin, 'penal statutes are generally construed strictly to safeguard a defendant's rights.' Austin, 86 Wis. 2d at 223. However, 'the rule of strict construction is not violated by taking the common-sense view of the statute as a whole and giving effect to the object of the legislature, if a reasonable construction of the words permits it. Austin, 86 Wis. 2d at 223 (quoting [162] Zurnott v. Timken-Detroit Axle Co., 244 Wis. 506, 600, 13 N.W.2d 53 (1944)).
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STEINMETZ, J.
The issue in this case is whether charging an individual who continuously failed to pay court-ordered child support for the years 1986, 1987, 1988, and 1989, with four counts of felony nonsupport under sec. 948.22(2), Stats., one for each year, is mul-tiplicitous and therefore impermissible.
We hold that sec. 948.22(2), Stats., permits a prosecutor to charge one count of felony nonsupport for each 120-day term a person fails to pay child support, even if that person failed to pay over one continuous period.1
The defendant, Keith A. Grayson, was convicted on his plea of no contest of four counts of nonsupport contrary to sec. 940.27(2), Stats. 1987-88.2 Each of the four counts was for failure to pay court ordered child support for more than 120 days during a separate calendar year (1986, 1987, 1988 and 1989). During that four-year period, the defendant's failure to pay support was continuous. In other words, he paid no support at all for four years. The court of appeals affirmed all four convictions. State v. Grayson, 165 Wis. 2d 557, 560, 478 N.W.2d 390 (Ct. App. 1991).
[159] The defendant has petitioned this court and argues that the four charges were multiplicitous. Consequently, his convictions should be overturned.
Multiplicity is defined as the charging of a single criminal offense in more than one count. Harrell v. State, 88 Wis. 2d 546, 555, 277 N.W.2d 462, 464-65 (1979). Multiplicitous charges are impermissible because they violate the double jeopardy provisions of the Wisconsin and United States Constitutions. See, e.g., State v. Rabe, 96 Wis. 2d 48, 61, 291 N.W.2d 809, 815 (1980).
In Wisconsin, courts employ a two-prong test when analyzing a multiplicity problem. Under the first prong, courts inquire whether the charged offenses are identical in law and fact. If they are, the charges are multiplic-itous. Id. at 63. However, if the charges are different in law or fact, they may still be multiplicitous under the second prong. State v. Tappa, 127 Wis. 2d 155, 164, 378 N.W.2d 883, 887 (1985). Under that test, the charges are multiplicitous if the legislature intended them to be brought as a single count.3
In State v. Sauceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992), this court stated that the first element of the multiplicity test, identity of law and fact, is the same whether we are addressing multiple criminal charges brought under different statutory sections, as in [160] Sauceda, or multiple charges brought under one statutory section, as in the instant case. Id. at 493 n.8. We also stated in Sauceda that if the first factor of the multiplicity test is satisfied, "then this court shall presume that the legislature intended to permit cumulative punishments_" Id. at 495. Since the first factor of the multiplicity test is the same under the fact situation in Sauceda and the fact situation here, it follows that the presumption of multiple punishments is also the same. We so hold.
In the instant case, the defendant concedes that each of the four charges is different in fact because they are based on different time periods. Consequently, our inquiry is limited to determining whether the legislature's intent contravenes the presumption that multiple felony convictions are permissible under sec. 948.22(2), Stats.
Statutory construction involves a question of law and is reviewed de novo. See, e.g., State v. Nixa, 121 Wis. 2d 160, 163, 360 N.W.2d 52, 54 (Ct. App. 1984).
When determining legislative intent for multiplicity purposes, this court examines four factors:
(1) the language of the statute;
(2) the legislative history and context of the statute;
(3) the nature of the proscribed conduct; and
(4) the appropriateness of multiple punishment for the conduct.
Tappa, 127 Wis. 2d at 165.
There is no express indication of legislative intent as to the allowable unit of prosecution in the language or legislative history of sec. 948.22, Stats. The state concedes that the statute is ambiguous in this respect.
[161] The defendant argues that this lack of express intent and presence of ambiguity means that he should prevail. He bases this conclusion on the rule of lenity: in the absence of express legislative intent to permit multiple punishment, a penal statute should be interpreted in the defendant's favor. See, e.g., State v. Bohacheff, 114 Wis. 2d 402, 417, 338 N.W.2d 466, 473 (1983).
This argument fails for several reasons. First, it flies in the face of the presumption that sec. 948.22(2), Stats., permits multiple counts.
Second, this court has previously rejected it. We did this by adopting the four-factor test. If an express legislative intent or the absence of ambiguity were the benchmark against which the issue of the allowable unit of prosecution had to be decided, consideration of the matter would be limited to the first two factors. The last two factors would not then be relevant.
This court has also rejected the defendant's argument expressly. In Tappa, 127 Wis. 2d at 170-71, a case similar to this one involving the issue of the allowable unit of prosecution under a single statute, we stated the following:
We hold that a common sense reading of the statute supports the conclusion that transfer and concealment are separate offenses. The Defendant argues that if there is any ambiguity in the statute, then the statute should be interpreted in his favor. In Wisconsin, 'penal statutes are generally construed strictly to safeguard a defendant's rights.' Austin, 86 Wis. 2d at 223. However, 'the rule of strict construction is not violated by taking the common-sense view of the statute as a whole and giving effect to the object of the legislature, if a reasonable construction of the words permits it. Austin, 86 Wis. 2d at 223 (quoting [162] Zurnott v. Timken-Detroit Axle Co., 244 Wis. 506, 600, 13 N.W.2d 53 (1944)).
Similarly, in Manson v. State, 101 Wis. 2d 413, 428, 304 N.W.2d 729 (1981), this court decided whether Wisconsin's armed robbery statute, sec. 943.32, Stats. 1977, defined one or two separate offenses by resorting to "a common sense reading of the statute which [was] reasonable and fair to offenders and society ...." Manson, 101 Wis. 2d at 428. Like the statute at issue here, the robbery statute did "not expressly state whether the legislature intended ... one or two offenses." Id.
Consequently, because the legislature failed to expressly state the allowable unit of prosecution under sec. 948.22, Stats., this court must determine its intent as to that issue according to "a common sense reading of the statute" that will give effect to "the object of the legislature" and produce a result that is "reasonable and fair to offenders and society." If such a reading fails to rebut the presumption in favor of multiple counts, the state will prevail. To determine legislative intent, we will examine the four factors mentioned above.
A. Factor No. 1: Statutory Language
Section 948.22(2), felony nonsupport, reads as follows:
Any person who intentionally fails for 120 or more consecutive days to provide . . . child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class E felony.
Section 948.22(3), misdemeanor nonsupport, reads as follows:
Any person who intentionally fails for less than 120 consecutive days to provide . . . child support [163] which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class A misdemeanor.
The applicable penalty language, provides as follows:
For a Class E felony, a fine not to exceed $10,000 or imprisonment not to exceed 2 years, or both.
Section 939.50(3) (e), Stats.
For a Class A misdemeanor, a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.
Section 939.51(3)(a), Stats.
Because of its express reference to the 120-day time period, the felony nonsupport statute can reasonably be interpreted as allowing a separate felony charge for each 120-day period a person fails to provide child support.
The applicable penalty language supports this interpretation. It is well established in Wisconsin that when an offense is an ongoing one over a period of time, the existence of gradations in punishment is indicative of a legislative intent that the offense constitute one continuing crime. State v. Schumacher, 144 Wis. 2d 388, 411-12, 424 N.W.2d 672 (1988); John v. State, 96 Wis. 2d 183, 191, 291 N.W.2d 502 (1980), aff'g 89 Wis. 2d 214, 219, 278 N.W.2d 235 (Ct. App. 1979). For example, in Schumacher, 144 Wis. 2d at 411-12, considering a welfare fraud issue, we stated the following:
Section 49.12(6), Stats., incorporates the penalty structure of sec. 49.12(1). Subsection (1) makes clear that the penalties for welfare fraud become increasingly more severe depending on the amount of money the defrauder has received . ...
[164] This structure of penalties is a progressive one. The more money one fails to report under subsec. (6), the stiffer the penalty becomes. Use of a progressive penalty structure must, within reason, contemplate a continuing crime.
Just as the presence of gradations in the penalty structure indicates that an ongoing offense should be treated as a single crime, the lack of gradations is viewed as indicating that an ongoing offense may be charged as multiple separate offenses.
B. Factor No. 2: The Legislative History and Context of the Statute
The history of the nonsupport statute is not enlightening. The present statute is critically different from its predecessors. Consequently, even if the former statutes did not permit multiple charges, there is no reason to conclude the same for the present statute.
Prior nonsupport statutes provided as follows:
Any person who deserts or wilfully neglects or refuses to provide for the support and maintenance of his or her spouse or marital or nonmarital child under 18 years in destitute or necessitous circumstances shall be fined not more than $500 or imprisoned not more than 2 years or both.
Section 52.05(1), Stats., 1983-84.
Any parent who intentionally neglects or refuses to provide for the necessary and adequate support of his or her marital or nonmarital child under 18 years ... shall be guilty of a misdemeanor and may be fined not more than $100 or imprisoned not more than 3 months in the county jail or both.
Section 52.055(1), Stats., 1983-84.
The present statute breaks from its predecessors in two critical ways. First, the present statute introduced a [165] time period, 120 days, to which the unit of prosecution can be tied. This time period defines the felony offense. Consequently, for the first time, the statute can reasonably be construed as permitting multiple felony counts for each 120-day period of nonsupport.
Second, the present statute also recognizes for the first time gradations in the severity of nonsupport violations. The present statute expressly provides that nonsupport for a period of less than 120 days is a class A misdemeanor; for a period of 120 days or more it is a Class E felony. Consequently, it becomes reasonable to conclude that, the legislature did not intend the gradations to end at 120 days. Interpreting sec. 948.22(2), Stats., as permitting a count for each 120 day period of nonsupport is consistent with the legislature’s desire, evinced by the felony/misdemeanor distinction, to punish more serious violations of the statute more severely.
C; Factor No. 3: The Nature of the Proscribed Conduct
State v. Eisch, 96 Wis. 2d 25, 31, 291 N.W.2d 800 (1980), states that multiple charges under a single statute are permissible if the facts underlying the charges "are either separated in time or are of a significantly different nature in fact." Here the facts are both separated in time and different in nature. They are separate in time because, each 120-day period of failure to provide support occurred in a separate and distinct calendar year. They are different in nature because a new mens rea was formed for each 120-day period of nonpayment. The crime of nonsupport is a crime of omission, but it is also a crime of intent. The 120-day period that must elapse before the defendant is guilty of an additional count of felony nonsupport provides more than sufficient time to reflect and form a new mens rea.
[166] D. Factor No. 4: The Appropriateness of Multiple Punishment
Multiple punishments based on each 120-day period of nonsupport are not only appropriate, but essential, if the statute is to provide deterrence and proportionality in its operation.
State v. Hamilton, 146 Wis. 2d 426, 432 N.W.2d 108 (Ct. App. 1988), illustrates the need for deterrence. In Hamilton, the court of appeals determined that a defendant who possesses at one time and place a number of items with altered or removed serial numbers (contrary to sec. 943.37(3), Stats.) may be prosecuted for a separate charge based on each altered article of personal property. Id. at 429. It reasoned that deterrence would not exist unless possession of each item constituted a separate offense. Id. at 441. More specifically, the court stated the following at p. 441:
If only a single charge and punishment is available . . . no matter how many items are possessed, thieves and receivers are encouraged, not deterred. The more they, possess, the greater their potential profit, with no concomitant increase in risk. We think such a result contrary to public policy in and of itself and is certainly contrary to the intent of the legislature.
The same is true here. If a parent failing to provide child support for 120 days or more is liable to prosecution for only one offense no matter how long the period of nonsupport continues, the continuation of the failure to provide support is encouraged, not deterred. Multiple charges are not only appropriate, they are essential if the nonsupport statute is to deter long-term failures to provide support.
Multiple charges are also needed to assure proportionality between the harm caused by and the punish[167] ment received for nonsupport. In this case, at the end of 120 days, the defendant had failed to provide approximately $1,700 in support. At the end of seven years, he had failed to provide approximately $36,400 in support. The longer the period of nonpayment, the greater the harm that is inflicted. A child is left with increasing amounts of the monies needed for his or her support unpaid. Our holding that sec. 948.22(2) permits multiple counts, even if that person fails to pay over one continuous period, provides for punishment proportional to this increased harm. Otherwise, a person who fails to provide support for one year and a person who fails to provide support for 18 years would be subject to the same penalty.
Examination of the aforementioned factors indicates that the presumption in favor of multiple counts is not rebutted. A common sense reading of sec. 948.22, Stats., establishes a legislative intent to permit multiple counts of felony nonsupport when the defendant fails to pay child support for one continuous period.
By the Court — The decision of the court of appeals is affirmed.