author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Melvin L. Moffett, Defendant-Respondent-Petitioner. State of Wisconsin, Plaintiff-Appellant, v. Jerrell I. Denson, Defendant-Respondent-Petitioner.
    Supreme Court

      Nos. 99-1768-CR, 99-1769-CR.

      Oral argument November 2, 2000.

    Decided December 19, 2000.

    2000 WI 130
    (Also reported in 619 N.W.2d 918.)

      For the defendant-respondent-petitioner, Melvin Moffett, there were briefs by Patrick J. Stangl and Coaty & Stangl, S.C., Madison, and oral argument by Patrick J. Stangl.

    For the defendant-respondent-petitioner, Jerrell I. Denson, there were briefs by Joseph L. Sommers, Madison, and oral argument by Joseph L. Sommers.

    For the plaintiff-appellant the cause was argued by David J. Becker, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶1. This is a review of a published decision of the court of appeals, State v. Moffett, 2000 WI App 67, 233 Wis. 2d 628, 608 N.W.2d 733, reversing an order of the Circuit Court for Dane County, Stuart A. Schwartz, Circuit Court Judge. The circuit court granted the defense motion to bar the State from charging Melvin L. Moffett and Jerrell I. Denson, the defendants, with being parties to the crime of attempted first-degree intentional homicide under Wis. Stat. §§ 939.32(1)(a)(1997-98) and 939.05 (1997-98) and with the crime of conspiracy to commit intentional homicide under Wis. Stat. § 939.31 (1997-98). The circuit court ordered the State to amend its information to charge the defendants with one or the other of the two crimes — but not both. The court of appeals reversed the order of the circuit court.

¶ 2. The parties present the following question to this court: May the State charge the defendants with two crimes, that is, with being parties to the crime of attempted first-degree intentional homicide and with the crime of conspiracy to commit first-degree intentional homicide — when both crimes had only one and the same intended victim? Stating the question more generally, may an accused be charged with both being a party to an attempt to commit a crime and a conspiracy to commit the same crime? For the reasons set forth below, we answer this question affirmatively.

I

¶ 3. This case comes before us at the pleading stage. Accordingly the facts of this case are still very much in dispute. We look to the criminal complaint for the alleged facts to put the legal issue presented to this court in context.

¶ 4. According to the criminal complaint, in 1996 Nancy Kellogg-Bowman allegedly began to discuss with defendant Melvin L. Moffett the possibility of killing her husband for the proceeds of his life insurance policy. Upon Moffett's release from prison in April 1998, he and Kellogg-Bowman traveled to his mother's house. There they met with defendant Jerrell I. Den-son, who is Moffett's nephew, and another individual, known as "Zake," later identified as Isaiah Hunter. Moffett allegedly provided Kellogg-Bowman with a gun and instructed her to give it to Zake, who would use the gun to kill her husband. Denson then drove Zake to a gas station, so that Zake would not be seen leaving the residence with Kellogg-Bowman. Kellogg-Bowman picked Zake up at the gas station and drove him to her home in Madison, Wisconsin, carrying the gun in her purse.

¶ 5. After Kellogg-Bowman's husband went to bed, he was allegedly awakened by two popping sounds and flashes. The husband allegedly saw Zake standing over him, holding a gun, and repeatedly pulling the trigger. However, the gun only clicked four or five times and did not fire. Zake left the bedroom, with the husband following. Zake again pointed the gun at the husband and it clicked two or three more times. The husband then tried to hide in the bathroom, but Zake followed him and pushed the door, open. The husband heard the gun click two or three more times. Zake then fled the house, and the husband heard what he thought was his wife's vehicle driving away.

¶ 6. While the attack was taking place, Kellogg-Bowman had allegedly been driving around the neighborhood. When she returned, Zake came out of the house and told her that the gun had jammed and that he would instead use a sharp knife to kill the husband. After Kellogg-Bowman told Zake that there were no sharp knives in the house, they drove away together and disposed of the gun. In the meantime, the husband telephoned 911. The husband had been shot in the hand and the right buttock.

¶ 7. The State's information, dated November 10, 1998, charged the defendants with one count of being parties to the crime of attempted first-degree intentional homicide, in violation of Wis. Stat. §§ 940.01(1) (first-degree intentional homicide), 939.32(l)(a) (attempt to commit a crime for which the penalty is life imprisonment), 939.63(l)(a)2 (penalties for committing a crime while using a dangerous weapon), and 939.05 (party to a crime), and another count of conspiracy to commit intentional homicide in violation of Wis. Stat. § 939.31. Both defendants filed motions to dismiss one of the counts as contrary to Wis. Stat. § 939.72(2), which states that a person shall not be convicted under both § 939.31 for conspiracy and § 939.05 "as a party to a crime which is the objective of the conspiracy."

¶ 8. The circuit court granted the defendants' motion. On July 8, 1999, the State filed an amended information, charging defendant Moffett with being a party to the crime of attempted first-degree intentional homicide and charging defendant Denson with conspiracy to commit intentional homicide. The State also filed an appeal with the court of appeals. The court of appeals reversed the order of the circuit court. The defendants seek review in this court of the court of appeals decision.

hH i — !

¶ 9. The defendants argue that charging them with being parties to the crime of attempted first-degree intentional homicide and with the crime of conspiracy to commit the same first-degree intentional homicide violates Wis. Stat. § 939.72(2), which bars convictions for both conspiracy and being "a party to a crime which is the objective of the conspiracy." Section 939.72 provides as follows:

A person shall not be convicted under both:

(1) Section 939.30,948.35 or 948.36 for solicitation and s. 939.05 as a party to a crime which is the objective of the solicitation; or
(2) Section 939.31 for conspiracy and s. 939.05 as a party to a crime which is the objective of the conspiracy; or
(3) Section 939.32 for attempt and the section defining the completed crime.

¶ 10. The defendants argue that the circuit court correctly interpreted Wis. Stat. § 939.72(2) as barring a conviction for being party to the crime of attempted first-degree intentional homicide under Wis. Stat. §§ 939.05 and 939.32 and the crime of conspiracy to commit intentional homicide under Wis. Stat. § 939.31. They further contend that if a conviction under both statutes is barred, then charging under both statutes is also barred.

¶ 11. The State argues that Wis. Stat. § 939.72(2) does not bar a conviction under both charges in the present case. The objective of the conspiracy, the State explains, was intentional homicide, but the defendants were charged with being parties to the crime of attempted intentional homicide. According to the State, the defendants were thus not charged with, and will not be convicted of, to use the words of § 939.72(2), "a crime which [was] the objective of the conspiracy." Moreover, because § 939.72(2) prohibits only a conviction under both § 939.31 for conspiracy and § 939.05 as a "party to a crime which is the objective of the conspiracy," the State argues that § 939.72(2) does not apply to the present case because this case is only at the pleading stage.

¶ 12. We agree with the State. Nothing in Wis. Stat. § 939.72 bars the State from charging a defendant with the crime of conspiracy and with being a party to the crime that is the objective of the conspiracy. Quite simply, Wis. Stat. § 939.72 governs only convictions and does not bar the State from bringing and proceeding with charges set forth in multiple statutes. The issue under Wis. Stat. § 939.72(2) of whether defendants can be convicted of the crime of conspiracy to commit intentional homicide and óf being parties to the crime of attempted first-degree intentional homicide is not before us at this juncture of the case.

¶ 13. Because we conclude that Wis. Stat. § 939.72(2) governing multiple convictions is inapplicable to the present case, involving pleading and multiple charges, we must consider the defendants' other arguments to support their position that the State is barred from charging both crimes.

¶ 14. The defendants argue that the two counts charged are multiplicitous. Multiple charging based on a single course of conduct implicates the federal and state constitutional protections against double jeopardy for the same offense. Multiplicity challenges often arise when an accused's repeated acts are charged as separate crimes. In such cases, an accused claims the acts are part of a continuous transaction and therefore a single crime, while the prosecutor asserts that a particular statute creates several separate offenses rather than a single crime that can be accomplished through multiple means. Another but less common way in which a multiplicity challenge arises is when an accused is charged with multiple offenses under separate criminal statutes based on the same course of conduct. The present case falls in this latter category of multiplicity cases.

¶ 15. The State and the defendants agree that the following two-part test applies to a multiplicity challenge: (1) are the charged offenses identical in law and fact, and (2) if the offenses are not identical in law and fact, did the legislature intend the multiple charges to be brought as a single charge?

¶ 16. The court of appeals carefully examined the two charges in this case and found them to be not identical in law and fact. Defendant Denson agrees with the court of appeals analysis of this part of the test. Defendant Moffett argues that the charges in the present case fail this part of the test. He urges this court to compare the elements of the party to a crime statute (§ 939.05(2)(c)) with the elements of conspiracy (§ 939.31), rather than compare the elements of attempt (§ 939.32) with the elements of conspiracy (§ 939.31) as the court of appeals did. We agree with the court of appeals that the two charges in this case are not identical in law and fact and adopt the court of appeals discussion at 233 Wis. 2d 628 at ¶¶ 11-14 as our own at the appendix attached.'

¶ 17. We therefore turn to the second part of the test. The defendants argue that the legislature did not intend to allow the State to charge an accused with conspiracy to commit intentional homicide under Wis. Stat. § 939.31 and with being a party to the crime of attempted first-degree intentional homicide under Wis. Stat. §§ 939.32(l)(a) and 939.05. But the only proof of legislative intent is the language and the legislative history of § 939.72(2).

¶ 18. The defendants argue that Wis. Stat. § 939.72(2) is clear evidence of a legislative intent not to charge an accused with conspiracy to commit intentional homicide and with being a party to the crime of attempted first-degree intentional homicide. We disagree with the defendants. The clear language of Wis. Stat. § 939.72(2) refers to convictions, not charges. Nothing in the legislative history of Wis. Stat. §939.72(2) suggests otherwise. We agree with the State that by limiting Wis. Stat. § 939.72(2) to convictions and by enacting Wis. Stat. § 939.65 allowing the State to bring multiple charges, the legislature has clearly expressed its intent to allow the State to proceed with both charges in the present case.

¶ 19. Section 939.65 gives prosecutors broad authority to charge under multiple statutes and provides that "if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions." Except for their arguments relating to Wis. Stat. § 939.72(2), the defendants offer no justification for not applying § 939.65 to the present case. Thus we conclude that the defendants' conduct forms the basis for two different offenses tinder two different statutory provisions and that Wis. Stat. § 939.65 permits the State to proceed under both statutory provisions. Section 939.65 is "a clear and unequivocal statement of the legislature's intent that multiple charging under different statutory provisions is permitted where an act forms the basis for a crime under more than one statutory provision."

¶ 20. The defendants also argue that the multiple charges in the present case are fundamentally unfair. The court of appeals disposed of this argument in State v. Kanarowski, 170 Wis. 2d 504, 489 N.W.2d 660 (Ct. App. 1992). The court of appeals explained that the first part of the multiplicity test, whether the offenses are identical in law or fact, "is not separate from a fundamental fairness analysis. [This test] is the way that courts in this state have attempted to apply fundamental fairness concerns to charging decisions." Kanarowski, 170 Wis. 2d at 514.

¶ 21. In conclusion, we hold that the State may properly charge the defendants with being parties to the crime of attempted first-degree intentional homicide and with conspiracy to commit first-degree intentional homicide of one intended victim.

¶ 22. For the reasons set forth, we affirm the decision of the court of appeals.

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

APPENDIX

In ¶ 16 above, we adopt the following paragraphs from State v. Moffett, 2000 WI App 67, 233 Wis. 2d 628, 608 N.W.2d 733. The paragraphs are set forth here:

¶ 11. To determine whether charges are multiplic-itous, we apply a two-part test. State v. Lechner, 217 Wis. 2d 392, 402-03, 576 N.W.2d 912 (1998). Using the "elements-only" test of Blockburger v. United States, 284 U.S. 299 (1932), we first determine whether each offense requires proof of an additional element that the other does not. Lechner at 405. The inquiry focuses on the statutes defining the offenses and has been codified in Wis. Stat. § 939.66(1), which provides that a defendant "may be convicted of either the crime charged or an included crime, but not both," and defines "included crime" as one "which does not require proof of any fact in addition to those which must be proved for the crime charged." State v. Johnson, 178 Wis. 2d 42, 49, 503 N.W.2d 575 (Ct. App. 1993). Thus, under the test,

an offense is a "lesser included" one only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be proved for the "greater" offense. . . .[A]n offense is not a lesser-included one if it contains an additional statutory element.

Johnson, 178 Wis. 2d at 49. If the Blockburger test is met, we presume that the legislature intended to permit cumulative punishments for both offenses, State v. Kuntz, 160 Wis. 2d 722, 755, 467 N.W.2d 531 (1991), and the question becomes whether other factors exist which clearly indicate a contrary legislative intent. State v. Rabe, 96 Wis. 2d 48, 63, 291 N.W.2d 809 (1980).

¶ 12. We begin by comparing the statutes defining the two offenses. The crime of attempt is defined as follows in Wis. Stat. § 939.32(3):

An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.
Section 939.31 defines the crime of conspiracy.
Except as provided in ss. 940.43 (4), 940.45 (4) and 961.41 (lx), whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony.

¶ 13. The language of the two statutes indicates quite plainly, we think, that neither offense includes the other. Each requires proof of an element which the other does not. To convict a person of attempt, the State must prove that he or she did "acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that [he or she] formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor." The crime of conspiracy doesn't require any such act. It attaches at an earlier stage, requiring only "an act to effect [the] object [of the conspiracy]" — and there is no requirement that that act must demonstrate unequivocally that the defendant formed an intent and would have committed the crime but for an extraneous intervening factor. The crime is complete when there is an agreement and an initial overt act in furtherance of the agreement.

¶ 14. These same preparatory acts, however, would not be sufficient to convict either the actor or his or her co-conspirators for attempt — a crime that is complete only at the latest possible stage before commission of the ultimate offense, and thus one requiring proof of an element or elements beyond those which would justify a conviction for conspiracy. By the same token, conspiracy requires proof of an element — an agreement or combination for the purpose of committing a crime — that attempt (a crime which, as the State notes, may be committed by an individual) does not.

       Wisconsin Stat. § 939.32(1)(a), entitled "Attempt," provides as follows:
      Whoever attempts to commit a felony.. .may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; except:
      (a)Whoever attempts to commit a crime for which the penalty is life imprisonment is guilty of a Class B felony.
      All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

       Wisconsin Stat. §939.05(1), entitled "Parties to crime," provides that a person "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."
      Section 939.05(2) states:
      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 or advises, hires, counsels, or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime....
      The complaint in the present case does not state, and it need not state, how the defendants were "concerned in the commission of the crime," that is, the complaint does not state whether the defendants' actions fall under § 939.05(2)(a), (b), or (c). The circuit court assumed that the parties came within subsection (c) as a party to a conspiracy. The State notes that it has not determined its theory of liability under Wis. Stat. § 939.05 and may prove that the defendants aided and abetted the crime of attempted first-degree intentional homicide under Wis. Stat. § 939.05(2)(b).
      The concept of conspiracy thus potentially appears in two forms in this case: as a conspirator party to the crime of attempted first-degree intentional homicide under § 939.05(2)(c) and as a participant in the inchoate crime of conspiracy under § 939.31.

       The inchoate crime of conspiracy is set forth in Wis. Stat. § 939.31 as follows:
      939.31 Conspiracy. Except as provided in ss. 940.43(4), 940.45(4) and 961.41(lx), whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, he fined or imprisoned or both not to exceed the maximum provided for the completed crime; except that for a conspiracy to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class B felony.

       This case presents a question of law that this court determines independently of the circuit court and court of appeals, benefiting from their analyses. As best the parties and the court can determine, the present case is the first appellate case to raise this issue.

       The defendants focus on an anomaly that might arise if an offender could not be convicted for the crime of conspiracy and a completed crime, but could be convicted for the crime of conspiracy and as party to an attempt. Thus an offender could face a lower maximum sentence for a completed crime than for an attempted crime and conspiracy to commit a crime. As the court of appeals explained, "a defendant who conspires to commit, and then is a party to an attempt to commit, a felony, faces potential punishment that is less severe if the attempt succeeds and the crime is actually committed than he or she would face if the attempt fails." State v. Moffett, 2000 WI App 67, ¶ 15, 233 Wis. 2d 628, 608 N.W.2d 733.
      The State argues that even if such an anomalous result might occur under certain circumstances, that would be a matter for the legislature, not the courts.
      The issues of conviction under both statutes and the possible anomaly are not before us in the present case.

       The State took a different approach before the circuit court. The State argued in the circuit court that if the jury's verdict was guilty on both counts, the State would move to dismiss one of those two counts .so that there would be only one conviction. Nevertheless the circuit court concluded that the State must drop one of the counts before trial. The circuit court concluded that the charge of conspiracy and the charge of party to the crime (as a conspirator) of attempted intentional first-degree homicide would lead to jury confusion and an inability on the part of the court as well as the parties to know what evidence the jury might have relied upon in reaching one of its verdicts. Like the court of appeals, we are not persuaded by the jury confusion argument because Wis. Stat. § 971.12(3) provides the possibility of other remedies.

         See State v. Kanarowski, 170 Wis. 2d 504, 509, 489 N.W.2d 660 (Ct. App. 1992).

       See, e.g., State v. Derango, 2000 WI 89, ¶ 27, 236 Wis. 2d 721, 613 N.W.2d 833; Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 19.3(c), at 776 (2d ed. 1999).

         See, e.g., State v. Kanarowski, 170 Wis. 2d 504, 489 N.W.2d 660 (Ct. App. 1992).

       Although the two defendants make slightly different arguments, we treat their arguments together.

        See, e.g., State v. Derango, 2000 WI 89, ¶ 29, 236 Wis. 2d 721, 613 N.W.2d 833, and State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998), describing this two-part test.

       The comment to 1953 Assembly Bill 100, in which the legislature enacted § 339.72, later renumbered as Wis. Stat. § 939.72, and upon which the defendants rely, reads as follows:
      Like the preceding section, this section treats one phase of the double jeopardy problem. Since under this code the inchoate crimes (attempt, conspiracy, and solicitation) are considered equally as serious as the completed crime in that they demonstrate to the same extent the actor's criminal tendencies, and since the same penalty is permissible for the inchoate crime as for the completed crime, it manifestly would be unfair to permit conviction of both.

        This comment refers expressly to "penalty" and "conviction" but does not support defendants' contention that the legislature intended to prohibit multiple charging.

       Wisconsin Stat. § 939.65 provides:
      Except as provided in s. 948.025 (3), if an act forms the basis for a crime punishable under more .than one statutory provision, prosecution may proceed under any or all such provisions.
      Wisconsin Stat. § 948.025(3), to which § 939.65 refers, is entitled "Engaging in repeated sexual acts of sexual assault of the same child," and provides:
      The state may not charge in the same action a defendant with a violation of this section and with a felony violation involving the same child under ch. 944 or a violation involving the same child under s. 948.02, 948.05, 948.06, 948.07, 948.08, 948.10, 948.11 or 948.12, unless the other violation occurred outside of the time period applicable under sub. (1). This subsection does not prohibit a conviction for an included crime under s. 939.66 when the defendant is charged with a violation of this section.
      Notwithstanding § 939.65, the State does not have unlimited power in charging multiple offenses under separate statutory provisions. For example, the State recognizes that when one of the offenses is a lesser-included offense of the other, both the offense and the lesser-included offense cannot be charged. See State v. Kennedy, 134 Wis. 2d 308, 324, 396 N.W.2d 765 (Ct. App. 1986).

       State v. Kanarowski, 170 Wis. 2d 504, 515, 489 N.W.2d 660 (Ct. App. 1992) (Nettesheim, P.J., concurring).

       Under the rule, multiple punishments are permissible only if each offense requires proof of an additional element or fact which the other offense or offenses do not. State v. Sauceda, 168 Wis. 2d 486, 501 485 N.W.2d 1 (1992). If the offenses are identical in law and fact, multiple punishment is barred. Id.

       We recognize that the definition of conspiracy used in the jury instruction for the crime of conspiracy (Wis. Stat. § 939.31) and the "agreement" or "conspiracy" element of the party-to-the-crime statute (Wis. Stat. § 939.05(2)(c)) is the same. See Wis JI - Criminal 570 and 410. Noting that fact, the trial court concluded that because "proof of the conspiracy would be included in the party to a crime liability for attempted murder under the conspiracy theory. . ,[i]t does not then appear that each statute requires proof of an additional fact which the other does not." We disagree. That conclusion ignores the fact that, although the description of a "member of a conspiracy" is the same under both sections, conspiracy under § 939.05(2)(c), as a party to the crime, cannot be considered in isolation when employing the "elements-only" test; it must be analyzed in conjunction with the crime of attempt — for the actual crime charged in this case was being a party to the crime of attempted first-degree intentional homicide. And, as we have said, when the two are read together, an attempt still requires proof of an additional fact which the crime of conspiracy does not — an "act[ ] toward the commission of the crime which demonstrate^ unequivocally, under all the circumstances, that the [defendant] formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor." Wis. Stat. § 939.32(3). Additionally, as we also have noted — and as the State emphasizes in its reply brief — a charge of being a party to the crime does not alter the nature of the underlying offenses; and proof of the acts which can support liability as a party to a crime is separate and distinct from proof of the underlying criminal act. See [State v. Horenberger, 119 Wis. 2d 237, 243, 349 N.W.2d 692 (1984)].


source: Caselaw Access Project

author: WILLIAM A. BABLITCH, J.

license: Public Domain

text:
    Gary K. Smith, Plaintiff-Appellant-Petitioner, v. General Casualty Insurance Company, Defendant-Respondent, Ronald A. Blain and Freight Systems, Inc., Defendants.
    Supreme Court

      No. 98-1849.

      Oral argument September 5, 2000.

    Decided December 19, 2000.

    2000 WI 127
    (Also reported in 619 N.W.2d 882.)

      For the plaintiff-appellant-petitioner there were briefs by Andrew Mishlove and Law Offices of Andrew Mishlove, Milwaukee, and oral argument by Andrew Mishlove.

    For the defendant-respondent there was a brief by Jacqueline E. Frakes and Eiche & Frakes, S.C., Milwaukee, and oral argument by Jacqueline E. Frakes.

   WILLIAM A. BABLITCH, J.

¶ 1. Petitioner Gary K. Smith (Smith) drove the last car hit in a three-vehicle collision. This collision, subsequently referred to as a chain reaction collision, was set into motion by a vehicle driven by an unidentified hit-and-run driver. In a suit arising from the accident, Smith brought a claim against General Casualty Company of Wisconsin (General Casualty), demanding coverage under the uninsured motorist policy covering the vehicle operated by Smith.

¶2. Smith asserts that Wisconsin's uninsured motorist statute mandates coverage when an unidentified hit-and-run vehicle strikes an intermediate vehicle, propelling the intermediate vehicle into the insured. We agree. Wisconsin Stat. § 632.32(4)(a)2.b. (1993-94) requires uninsured motorist coverage when an "unidentified motor vehicle" is "involved in a hit- and-run accident." We have interpreted the phrase "hit-and-run" to contain a physical contact requirement. Hayne v. Progressive N. Ins. Co., 115 Wis. 2d 68, 74, 339 N.W.2d 588 (1983). This physical contact requirement is satisfied in a chain reaction accident. Because the elements of the statute are satisfied, coverage is required under § 632.32(4). Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 3. In November 1993 Smith was driving a vehicle in the right-hand lane of Interstate 94, heading southbound. A tractor-double trailer driven by Ronald A. Blain was traveling in the middle lane. According to Blain, his vehicle was struck on the left steering tire, forcing his vehicle to the right, into the next lane of traffic and Smith's car. A witness observing the accident testified that a dark-colored passenger car struck the left "steer tire" of the tractor-trailer cab.

¶ 4. Smith brought an action in Milwaukee County Circuit Court against Blain and his employer, Freight Systems, Inc. Subsequently, and because Blain asserted that the accident was caused by an unknown hit-and-run driver, Smith amended his complaint to assert a claim for uninsured motorist coverage against General Casualty. General Casualty provided insurance coverage for the vehicle Smith was driving at the time of the accident.

¶ 5. General Casualty moved for summary judgment, asserting that because there was no physical contact between the hit-and-run vehicle and the insured vehicle, Smith was not entitled to uninsured motorist coverage under the policy. Milwaukee County Circuit Court Judge Michael J. Skwierawski granted the motion. Smith appealed. The court of appeals affirmed. Smith v. General Casualty Ins. Co., 230 Wis. 2d 411, 601 N.W.2d 844 (Ct. App. 1999). Smith subsequently filed a petition for review, which was granted.

STANDARD OF REVIEW

¶ 6. A circuit court's decision to grant summary judgment is a question of law, which this court reviews independently. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 28, 236 Wis. 2d 435, 613 N.W.2d 142. In our review, this court utilizes the same methodology, set forth in Wis. Stat. § 802.08(2) (1997-98), as employed by the circuit court and court of appeals. Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 110, 595 N.W.2d 392 (1999). Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2). A reviewing court will uphold a decision granting summary judgment "unless the record reveals that one or more genuine issues of material fact are in dispute or the moving party is not entitled to judgment as a matter of law." Strasser, 2000 WI 87 at ¶ 30.

¶ 7. Resolution of this summary judgment motion involves the interpretation of Wis. Stat. § 632.32(4). Interpretation of a statute also presents a question of law, which we review de novo while benefiting from the analysis of the court of appeals and circuit court. Theis v. Midwest Sec. Ins. Co., 2000 WI 15, ¶ 9, 232 Wis. 2d 749, 606 N.W.2d 162.

ANALYSIS

¶ 8. The issue in this case is whether Wis. Stat. § 632.32(4)(a)2.b. mandates uninsured motorist coverage when an unidentified vehicle strikes a second vehicle, which in turn is propelled into the insured's vehicle. More specifically, our inquiry is whether this chain reaction collision is a "hit" within the meaning of the statute.

¶ 9. Wisconsin Stat. § 632.32(4) provides in relevant part:

Required uninsured motorist and medical payments coverages. Every policy of insurance subject to this section that insures with respect to any motor vehicle registered or principally garaged in this state against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall contain therein or supplemental thereto-provisions approved by the commissioner:
(a) Uninsured motorists. 1. For the protection of persons injured who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, in limits of at least $25,000 per person and $50,000 per accident.
2. In this paragraph "uninsured motor vehicle" also includes:
b. An unidentified motor vehicle involved in a hit-and-run accident.

If the statute mandates coverage in this case, then the terms of the insurance policy need not be examined. Theis, 2000 WI 15 at ¶ 10.

¶ 10. Pursuant to Wis. Stat. § 632.32(4)(a)2.b., hit-and-run accidents are included within the statutorily mandated uninsured motor vehicle coverage. A hit- and-run occurs when three elements are satisfied: (1) there is an unidentified motor vehicle; (2) the unidentified vehicle is involved in a hit; and (3) the unidentified motor vehicle "runs" from the scene of the accident. Theis, 2000 WI 15 at ¶¶ 14-16.

¶ 11. We have previously held that the phrase hit-and-run in Wis. Stat. § 632.32(4)(a)2.b. unambiguously "includes a physical contact element." Hayne, 115 Wis. 2d at 79. In the instant case, we must consider whether the physical contact element is satisfied when an unidentified vehicle hits a second vehicle, and that vehicle is pushed into the insured vehicle. Our primary objective here, as in all cases of statutory interpretation, is to effectuate the legislature's intent in enacting § 632.32(4)(a)2.b. To discern this intent, we begin by examining the language of the statute itself.

¶ 12. Wisconsin Stat. § 632.32(4)(a)2.b. defines an uninsured motor vehicle as "an unidentified" vehicle "involved in a hit and run accident." The use of the word "involved" does not strike us as a word that should be narrowly applied only to a hit-and-run accident involving a direct hit to the insured vehicle. Here, the unidentified vehicle was clearly "involved": it precipitated the accident through contact with the intermediate vehicle.

¶ 13. The language of the statute points to the conclusion that coverage is mandated in this case. However, Wis. Stat. § 632.32(4)(a)2.b. does not specifically define the phrase "hit-and-run," and accordingly we have construed the statute on a case-by-case basis. Therefore, we turn , next to an examination of prior cases interpreting this law.

¶ 14. Cases interpreting Wis. Stat. § 632.32(4)(a)2.b. fall generally into two categories. The first category of cases is the "miss-and-run" series, including Hayne, Amidzich v. Charter Oak Fire Insurance Co., 44 Wis. 2d 45, 170 N.W.2d 813 (1969), and Wegner v. Heritage Mutual Insurance Co., 173 Wis. 2d 118, 496 N.W.2d 140 (Ct. App. 1992). The second category of cases involve flying objects or auto parts, such as Theis and Dehnel v. State Farm Mutual Automobile Insurance Co., 231 Wis. 2d 14, 604 N.W.2d 575 (Ct. App. 1999). Although both lines of cases are factually distinct from the instant controversy, these decisions help guide our conclusion.

¶ 15. The first line of cases, the miss-and-run series, is instructive for two reasons. First, it is from these cases that the physical contact requirement arose. The foundation for this interpretation was laid in Amidzich, in which this court construed the definition of "hit-and-run" in the uninsured motorist clause of an automobile liability insurance policy. The policy extended coverage to damages caused by a "hit-and-run" automobile, which it defined as a vehicle " 'which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident.'" Amidzich, 44 Wis. 2d at 48.

¶ 16. In Amidzich, the policyholder was injured when her automobile was forced off the road by an unidentified vehicle; no striking or actual collision occurred. Id. This court concluded that the phrase "physical contact" in the policy's definition of hit-and-run vehicle required that "there be an actual striking between the 'hit-and-run automobile' and the insured's vehicle, at least in a situation where only two vehicles are involved." Id. at 51.

¶ 17. Second, the miss-and-run cases are instructive because following our decision in Amidzich, the legislature modified Wis. Stat. § 632.32 to include an unidentified vehicle involved in a hit-and-run accident within the definition of required uninsured motorist coverage. Hayne, 115 Wis. 2d at 84. In reviewing the legislative history of § 632.32(4) in Hayne, we wrote that the legislature is presumed to have acted with full knowledge of the court's discussion of "hit-and-run" in Amidzich. Id. at 84. However, the two-vehicle miss- and-run situation in Amidzich represented only one obvious type of hit-and-run accident. As we noted in Hayne, 115 Wis. 2d at 80 n.7, and repeated in Theis:

The Legislative Council Note [in ch. 102, Laws of 1979] adopted by the legislature explains that '[a] precise definition of hit-and-run is not necessary for in the rare case where a question arises, the court can draw the line.' The legislature apparently recognized that a vast variety of unpredictable scenarios can give rise to claims for uninsured motorist coverage.

Theis, 2000 WI 15 at ¶ 18 (footnote omitted).

¶ 18. General Casualty points out that in Hayne we determined that by adopting the hit-and-run statutory provision the legislature was "simply incorporating a category of coverage into the statute that most standard policies already contained" and that the standard policy provision defining "hit-and-run" included a physical contact requirement. Hayne, 115 Wis. 2d at 83, 84. However, as Judge Fine aptly noted in his dissent to the court of appeals' decision in this case:

Hayne tells us that the legislature was aware of insurance-industry language that limited uninsured-motorist coverage for hit-and-run accidents to those situations where the unidentified motor vehicle causes bodily injury to an insured arising out of physical contact of such vehicle with the insured. Thus, it is reasonable to assume that by not adopting the industry language, the legislature intended to encompass situations where, as here, the unidentified motor vehicle makes physical contact with any of the vehicles involved in a multi-vehicle accident.

Smith, 230 Wis. 2d at 420 (Fine, J. dissenting) (internal quotation and citation omitted).

¶ 19. The Hayne decision presented a miss-and-run, as was the case in Amidzich. In Hayne, the driver of the insured vehicle swerved to avoid an oncoming vehicle, lost control of his vehicle, and the vehicle overturned. Hayne, 115 Wis. 2d at 69. We concluded that Wis. Stat. § 632.32(4)(a)2.b. did not require uninsured motorist coverage because there was no physical contact under the circumstances of the case. Id. at 74.

¶ 20. Similarly, there was no physical contact by the unidentified motorist in Wegner. As General Casualty points out, the Wegner case presents a factual situation more analogous to the case at hand. The insured vehicle was traveling in the far right lane of a three-lane stretch of highway. A gray car in the far left lane swerved into the path of a van in the center lane, causing the van to swerve into the path of the insured's vehicle. The insured vehicle was forced off the highway. Wegner, 173 Wis. 2d at 121. The litigants disputed whether the van struck the insured vehicle. Id. However, it was undisputed that there was no other contact between these motor vehicles. Id. Wegner argued that the unidentified gray car was an uninsured vehicle under Wis. Stat. § 632.32(4)(a)2.b. Id. at 124. The court of appeals concluded that § 632.32(4)(a)2.b. did not require coverage because the unidentified car that precipitated the events in Wegner was not involved with the physical contact. Id. at 127.

¶ 21. However Wegner is again a miss-and-run case while in the instant case there was a contact; the unidentified vehicle had contact with the intermediate vehicle, which in turn had contact with the insured vehicle. The miss-and-run cases do not foreclose interpreting Wis. Stat. § 632.32(4) as mandating coverage in this case.

¶ 22. While the miss-and-run cases establish the physical contact requirement, the second line of cases presents examples of where the court was required to consider whether that requirement was satisfied. In Dehnel, a chunk of ice fell off an unidentified semitrailer, breaking the insured vehicle's windshield and causing injury to the driver. Dehnel, 231 Wis. 2d at 15. The court of appeals wrote that the type of physical contact required under Wis. Stat. § 632.32(4)(a)2.b. is " 'a touching between the vehicles.'" Id. at 22 (quoting Hayne, 115 Wis. 2d at 78). The court of appeals rejected an interpretation of hit-and-run that would mandate coverage where "extraneous objects," those which are not even an integral part of the unidentified vehicle, come into contact with the insured vehicle. Id. As a result, the court found that no hit-and-run occurred for which insurance coverage under § 632.32(4)(a)2.b. was mandated.

¶ 23. This court found the facts presented in Dehnel to be significantly distinct from the facts presented in Theis. Theis, 2000 WI 15 at ¶¶ 25-26. In Theis a detached piece of an unidentified motor vehicle was propelled into the insured's vehicle by an unidentified vehicle. Id. at ¶ 2. The piece of unidentified motor vehicle came from either the unidentified motor vehicle that propelled it into the insured's vehicle or from yet another unidentified vehicle. Id. at ¶ 11. After reviewing Dehnel, Wegner, Hayne and Amidzich, we summarized the law on hit-and-run for the purposes of Wis. Stat. § 632.32(4) as requiring "physical contact between an insured's motor vehicle and an unidentified motor vehicle" but not barring a finding of " 'physical contact' between the insured's motor vehicle and a part of an unidentified motor vehicle." Theis, 2000 WI 15 at ¶ 26. Our opinion in Theis did not address a chain reaction collision.

¶ 24. In Theis, we determined that the language of the statute, the legislative history, and the cases interpreting Wis. Stat. § 632.32(4) did not compel a result on the law. Id. at ¶ 27. We therefore turned to a consideration of the public policy issues undergirding underinsured motorist coverage. This method of analysis is equally applicable here. When interpreting an ambiguous statute, we seek to discern the intent of the legislature and the policy behind the statute. State v. Hopkins, 168 Wis. 2d 802, 815, 484 N.W.2d 549 (1992). Accordingly, we turn next to an analysis of the policy concerns at issue here.

¶ 25. One public policy concern is of primary relevance to our analysis, that of preventing fraud. The physical contact element unambiguously included in the term "hit-and-run" in Wis. Stat. § 632.32(4)(a)2.b. prevents fraudulent claims from being brought by an insured driver who is involved in an accident of his or her own making. Theis, 2000 WI 15 at ¶ 30 n.10. Under the circumstances of this case, when physical contact has been applied by an unidentified motor vehicle to an intermediate motor vehicle and then transmitted through to the insured's vehicle, and where this physical contact may be confirmed in such a way as to provide safeguards against fraud, this purpose for the physical contact requirement is satisfied.

¶26. An additional policy concern is that the purpose of the statutorily mandated uninsured motorist coverage in Wis. Stat. § 632.32(4)(a) "is to compensate an injured person who is the victim of an uninsured motorist's negligence to the same extent as if the uninsured motorist were insured." Theis, 2000 WI 15 at ¶ 28. Here, if the vehicle that negligently started the chain reaction collision had been identified and was insured, Smith could have recovered under that policy. Thus, by interpreting the statute to mandate coverage in the present case, Smith would be compensated "to the same extent as if the uninsured motorist was insured." Id.

¶ 27. Finally, the parties, citing Theis, 2000 WI 15 at ¶ 29, assert that án additional public policy issue which should be considered is that of honoring the reasonable coverage expectations of the insured. Smith argues that a reasonable individual would expect coverage under the facts of this case. General Casualty asserts that no reasonable insured could read its policy as providing coverage unless a hit occurs between the unidentified vehicle and the insured. The public policy purpose of honoring the reasonable expectations of the insured is applied when the language of an insurance contract is interpreted and construed. Kremers-Urban Co. v. American Employers Ins., 119 Wis. 2d 722, 735, 351 N.W.2d 156 (1984). The question to be decided here, however, is not the construction of the policy, but what the law requires. Thus, the reasonable expectation of the insured regarding the language of the policy is not relevant to our analysis of Wis. Stat. § 632.32(4)(a)2.b.

¶28. In summary, the public policy concern of preventing fraudulent claims will be appropriately satisfied when an unidentified driver is involved in the type of collision that occurred in this case. In addition, the policy of the uninsured motorist statute, to provide compensation to the same extent as if the uninsured motorist were insured, is satisfied if coverage is mandated. Accordingly, based upon these policy concerns and the language of the statute, we conclude that when an unidentified driver is involved in a chain reaction collision, the physical contact requirement for a "hit- and-run" is satisfied and coverage is mandated under Wis. Stat. § 632.32(4)(a)2.b. As a result, Smith's complaint does set forth a claim against General Casualty under the statute, and therefore, summary judgment was not proper.

By the Court. — The decision of the court of appeals is reversed, and the cause is remanded to the circuit court.

       Defendant-Respondent General Casualty Company of Wisconsin was incorrectly designated General Casualty Insurance Company in the caption when the amended complaint was filed in circuit court.

       Unless otherwise noted, all subsequent references to the Wisconsin Statutes are to the 1993-94 version.

       For the purposes of its motion for summary judgment/declaratory judgment and for this review, General Casualty concedes the existence of the unidentified vehicle.

       The policy issued by General Casualty provides in relevant part:
      INSURING AGREEMENT
      A. We will pay damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury:"
      1. Sustained by an "insured;" and
      2. Caused by an accident.
      The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "uninsured motor vehicle."...
      B. "Insured" as used in this Part means:
      1. You or any "family member."
      2. Any other person "occupying" "your covered auto."
      C."Uninsured motor vehicle" means a land motor vehicle or trailer of any type:
      3.Which is a hit and run vehicle whose operator or owner cannot be identified and which hits:
      a. you or any "family member;"
      b. a vehicle which you or any "family member" are "occupying;" or

        c. "your covered auto."