State v. Keyes

2007 WI App 163, 736 N.W.2d 904, 304 Wis. 2d 372
CourtCourt of Appeals of Wisconsin
DecidedJune 14, 2007
Docket2004AP1104-CR, 2004AP1105-CR
StatusPublished
Cited by3 cases

This text of 2007 WI App 163 (State v. Keyes) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Keyes, 2007 WI App 163, 736 N.W.2d 904, 304 Wis. 2d 372 (Wis. Ct. App. 2007).

Opinions

HIGGINBOTHAM, J.

¶ 1. Angela A. Keyes and Matthew E. Keyes own and operate Keyes to Design, Inc., a construction contracting company. They were charged with felony theft by contractor, party to a crime, in violation of Wis. Stat. §§ 779.02(5), 939.05, and 943.20(l)(b) and (3)(c) (2001-02).1 A preliminary hearing was held, after which the circuit court bound the Keyeses over for trial. The Keyeses moved to dismiss the bindover and the information, which the circuit court denied. We granted their motion for leave to appeal the circuit court's order denying their motion.

¶ 2. The Keyeses argue that the State failed to establish the elements of the offense of felony theft by contractor at their preliminary hearing, thereby pre-[378]*378eluding bindover. This argument rests on their interpretation of Wis. Stat. § 779.02(5) as permitting a prime contractor also acting as a subcontractor to pay itself for the profit on items supplied as a subcontractor before all other subcontractors have been paid in full for labor and materials or paid proportionately in cases of a deficiency.

¶ 3. The State argues that the circuit court properly refused to dismiss the felony charges against the Keyeses because Wis. Stat. § 779.02(5) prohibits a prime contractor from paying itself profit on items supplied as a subcontractor before all other subcontractors have been paid for labor and materials in full, or proportionately in cases of a deficiency. The State also argues that there was sufficient evidence supporting bindover.

¶ 4. We conclude that Wis. Stat. § 779.02(5) prohibits contractors from taking a profit on materials supplied as a subcontractor before all other subcontractors have been paid in full for their labor and materials for amounts due and owing or to become due, or paid proportionally in cases of a deficiency. We further conclude that there was sufficient evidence to support bindover of the Keyeses.2 We therefore affirm the circuit court's order denying the Keyeses' motion to dismiss the bindover.

[379]*379BACKGROUND

¶ 5. In December 2001, Angela and Matthew Keyes, d/b/a "Keyes to Design, Inc.," entered into a written contract with James and Rose Wettstein to build the Wettsteins a home. The parties agreed on a contract price of $2,500 for pre-construction services and $37,500 for construction services plus the cost of the work. The contract also provided that Matthew, the project manager, would be paid $50.00 per hour for labor. The construction cost was estimated at $467,723, which was later revised to $492,204.

¶ 6. On May 28, 2003, Angela was charged with one count of felony theft by contractor as a party to a crime; Matthew was charged with the same felony on June 3, 2003. The court held a preliminary hearing on both cases; after finding probable cause that the Keyeses had committed a felony, the court bound over both defendants for trial. An information was filed against the Keyeses, charging them with the same crime listed in the complaint, as well as an additional charge of criminal slander of title as a party to a crime.3

¶ 7. On November 13, 2003, the Keyeses filed a motion to dismiss the bindover, alleging insufficiency of evidence. In their motion, the Keyeses argued that Angela was authorized by contract to keep the $36,036.28 at issue in this case, and that the Keyeses therefore did not violate the law. In a written order dated April 6, 2004, the circuit court denied the motion, concluding that the evidence at the preliminary hearing supported a reasonable inference that the Keyeses had probably committed a felony, theft by contractor, in violation of Wis. Stat. §§ 779.02(5) and 943.20(l)(b). We granted the Keyeses' petition for leave to appeal the [380]*380circuit court's order denying the motion to dismiss the bindover as well as their motion to consolidate their appeals.

¶ 8. After the appellate briefs were filed, we held oral arguments. We then determined that additional briefing was necessary. In a February 1, 2005 order we directed the parties to address the following issues:

(1) Does Wis. Stat. § 779.02(5) prohibit a prime contractor who acts as a subcontractor from paying itself for the profit on items supplied as a subcontractor before all other subcontractors have been paid in full or proportionately in cases of a deficiency? The parties should discuss whether the statute is ambiguous on this point and, if it is, what the proper resolution of the ambiguity is.
(2) Is Wis. Stat. § 779.02(5) unconstitutionally vague because it is not sufficiently definite to give a person of ordinary intelligence who seeks to avoid its penalties fair notice of the conduct required or prohibited with respect to a prime contractor acting as a subcontractor.

Additional briefing ensued.

DISCUSSION

¶ 9. In this appeal we address two issues: (1) whether Wis. Stat. § 779.02(5)4 prohibits a prime contractor who also acts as a subcontractor from taking [381]*381a profit on items supplied as a subcontractor before all other subcontractors have been paid for labor and materials in full, or proportionately in cases of a deficiency; and (2) whether there was sufficient evidence to support a bindover. We address each issue in turn.

A. Wisconsin Stat. § 779.02(5)

¶ 10. This case requires us to interpret and apply Wis. Stat. § 779.02(5). Statutory interpretation is a question of law, which we review de novo. State v. Stenklyft, 2005 WI 71, ¶ 7, 281 Wis. 2d 484, 697 N.W.2d 769.

¶ 11. Statutory interpretation begins with the statute's text; we give the text its common, ordinary, and accepted meaning, except that we give technical or specially defined words their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context within which it is used, "not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46. In construing a statute we are to give deference to the policy choices made by the legislature in enacting the law. Id., ¶ 44. We also consider the scope, context and structure of the [382]*382statute itself. Id., ¶¶ 46, 48. If this process of analysis yields a plain meaning, then there is no ambiguity and we apply that plain meaning. Id., ¶ 46.

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Related

Levine v. Ward (In Re Ward)
425 B.R. 507 (E.D. Wisconsin, 2010)
State v. Keyes
2008 WI 54 (Wisconsin Supreme Court, 2008)
State v. Keyes
2007 WI App 163 (Court of Appeals of Wisconsin, 2007)

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Bluebook (online)
2007 WI App 163, 736 N.W.2d 904, 304 Wis. 2d 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-keyes-wisctapp-2007.