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COURT OF APPEALS DECISION DATED AND FILED January 26, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Plaintiff-Respondent, v. Tushar S.
Achha, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 ANDERSON, J. Tushar S. Achha appeals from his conviction for using a computer to facilitate a child sex crime. The first issue he raises is the contention that he received ineffective assistance of trial counsel. He did not present this issue to the trial court before filing this appeal and we decline to address the issue. The second issue is his contention that the evidence is insufficient to negate his primary defense that he was entrapped by a police officer taking advantage of Achha’s ignorance of American culture. We reject this contention because the evidence establishes beyond a reasonable doubt that Achha was trolling the Internet to initiate a sexual relationship. Therefore, we affirm his conviction.
¶2 “On the Internet, Nobody Knows You’re a Dog,” is the caption
of a cartoon that appeared in The New Yorker magazine in 1993.[1] The cartoon accentuates the almost complete
anonymity Internet users enjoy. For Achha,
a twenty-nine-year-old engineer from
¶3 On April 23, 2008, Stuhlman-Roberts was conducting an
Internet sting operation to detect and apprehend individuals who would try to
arrange to have sex with a child under the age of sixteen. As part of this sting, she developed a profile
of a thirteen-year-old
¶4 Initially, Achha established that Niki was thirteen years old
and then asked, “u like guys???”[6] Niki responded that she liked older guys and
had been with a forty-five year old. Achha
then launched into an explicit Internet chat in which he bragged about his
physical attributes and prowess.
¶5 Niki invited Achha to come to
¶6 Achha then asked Niki if they could have a date. She said, “sure,” and asked for a phone number
that she could call him at for the coming weekend. He readily gave her his number. Niki asked “wen is a good time to call u? I have to use my friends fone cuz u r long
distance”; she went on to explain, “yes wen is a good time to call u? I get done w/ school at 3pm so I could call u
after that. im certain my mom is going
up north this week end so it wood b good.”
Achha complained that he would be tired on Friday evening because he would
be working until 5 p.m. Niki asked if he
would be staying the night, and he replied in the affirmative. She then asked him to bring condoms and beer. He revealed he was from
¶7 The next day, April 24, 2008, Niki called Achha to tell him
that her mother was not going away until the following weekend and that is when
they should meet. Achha agreed.[8]
The brief phone call ended with the
parties exchanging kisses.
¶8 On April 25, 2008, Achha and Niki instant messaged to work
out plans for the following Friday. Niki
messaged that her mother would be gone at least until Saturday evening, and if
her boyfriend went with her mother, she would be gone until Sunday. She told Achha that they would meet at a
McDonald’s right off I-94 that was near her home. Achha said this would be a great experience
for him; Niki replied it would be for her, but she would be a little shy and
would need one or two beers to loosen up.
She asked if her age would bother him and Achha replied there would be
no problem if she was physically developed.
He bragged again about his physical attributes and wondered if he would
hurt her. Niki assured him, “we wont kno
til we try rite??” And if it did not
happen, they could do other things. To
which Achha responded that if he was excited, he might not be able to stop
himself.
¶9 Achha recounted for Niki that when he was sixteen, he missed
a chance for a physical relationship, and if he did not have a relationship
with her, he would regret the missed opportunity. He again boasted about his physical prowess and
she said to “bring many condoms I don’t want to get pregnant.” Answering a question from Achha, Niki
reported that she had just finished her period.
Yet again Achha told her about his physical attributes and prowess. He then told her that he was a vegetarian and
asked her to have appropriate vegetarian foods in the house, including milk and
sugar which he liked in breaks between intimacy.
¶10 There were no substantive instant messaging during the following week. On the morning of May 2, 2008, Achha messaged Niki asking her to call him. During the phone call, they decided that they could not meet that night, and Achha spending Saturday night was out of the question. They agreed to meet the following weekend. Niki told him there were hotels in the area, but her home was the best place to be together. They had a brief instant message exchange later in which Achha wrote, “We will MAKE it in the next week.”
¶11 The next computer chat they had was on May 5, 2008, when Achha asked if she really wanted a physical relationship with him, and he reported that he had watched a video concerning a twenty-six-year-old male who had chatted with a thirteen-year-old girl on the computer and then went to the girl’s home where police and the media were waiting and he was arrested and put in jail. Niki responded that they would meet at McDonald’s and he would drop her one block from her house and then he could come a few minutes later. She told him not to worry.
¶12 Niki and Achha had a phone conversation on May 8, 2008, during
which she assured him that she really wanted him. They agreed to meet the next day at the
McDonald’s near Niki’s house. Later that
evening, they computer chatted about the next evening and meeting at McDonald’s,
and Niki reminded him to bring condoms and beer. Achha messaged that he was more than someone
who was interested in sex, that he also liked to chat.
¶13 They had two brief phone conversations on Friday. When Achha got to the McDonald’s restaurant,
he was arrested in the parking lot. A
search of his car uncovered a box of condoms and a bag with clothing. Achha gave a written statement in which he
claimed he believed he was chatting with another adult and that he or she was
lying about being thirteen, and he came to
¶14 Achha was charged with one count of using a computer to
facilitate a child sex crime in violation of Wis. Stat. §§ 948.075(1r)
and 939.50(3)(c) (2005-06).[9] Achha’s motions to suppress his statements
and evidence seized during the search of his vehicle were denied. At the conclusion of a two-day trial, the jury
instructions included the standard entrapment instruction,
JI—Criminal 780, and Achha was convicted on the sole count
of the Information. The trial court
sentenced him to five years of initial confinement and five years of extended
supervision. Achha appeals pro se.[10]
¶15 As with the majority of pro se appeals, it is difficult to ferret out Achha’s issues. He complains that his trial counsel provided him with ineffective assistance of counsel by not vigorously pursuing an entrapment defense. We also believe that he is generally challenging the sufficiency of the evidence.
¶16 Both of Achha’s issues spring from his claim that he is the victim of entrapment by law enforcement.
Stuhlman Roberts framed me, because she had an
advantage over me—my ignorance. I would
like to use word framed over the word
entrapped. In entrapment, defendant had always a choice
not to be entrapped. He knows he
shouldn’t do this thing, because it is legally prohibited; even he has been
incited by someone. He has an idea if it
doesn’t work the way it plan to be, then he will be in big trouble. But I have been framed; I had no idea which
law I was violating and how much greater trouble it would cause for me. I had been framed to violate Wis. Stat.
§948.075 step-by-step by taking advantage of my ignorance. I wasn’t even violating the statu[t]e … by
just showing indifference to Niki’s age while chatting on internet.
¶17 “Entrapment is a defense available to a defendant who has been
induced by law enforcement to commit an offense which the defendant was not
otherwise disposed to commit.” State
v. Pence, 150
¶18 Entrapment, however, necessarily admits the act charged. State v. Monsoor, 56
¶19 Ineffective Assistance of
Counsel. We will not address this
issue because Achha has failed to preserve his challenge to trial counsel’s
performance. Achha waived this issue by
not raising it in a Wis. Stat. Rule
809.30(2)(h) postconviction motion.
¶20 Sufficiency of the
Evidence. We now turn our attention
to Achha’s challenge to the sufficiency of the evidence. In reviewing the sufficiency of the evidence,
we may not reverse the trier of fact unless the evidence, viewed in the light
most favorable to the outcome of the proceeding, is so deficient that, as a
matter of law, no reasonable fact finder could have reached the same result. State v. Poellinger, 153
¶21 There are four elements to the crime of using a computer to facilitate a child sex crime in violation of Wis. Stat. § 948.075(1r):
1. The defendant used a computerized communication system to communicate with an individual.
2. The defendant believed or had reason to believe that the individual was under the age of 16 years.
3. The defendant used a computerized communication system to communicate with the individual with intent to have sexual (contact) (intercourse) with the individual.
4. The defendant did an act, in addition to using a computerized communication system, to carry out the intent to have sexual (contact) (intercourse).
¶22 The State has more than met its burden on all four
elements. First, Stuhlman-Roberts
testified that she was conducting an Internet sting and had entered a chat room
operated or maintained by Yahoo! and she and Achha communicated using the Yahoo!
chat feature. Second, Achha asked if she
was really thirteen years old and Niki replied, “yes I am.” Almost immediately, Niki asked, “cool do you
like 13 yr olds.” Third, during their
first Internet chat, and after learning that Niki had been with an older man,
Achha asked if she had sex with him and then asked, “can we have sex??” He also bragged about his physical attributes
and prowess. Before the first chat ended,
they agreed that Achha would come to
¶23 The final element of the offense is that the “defendant did an
act, in addition to using a computerized communication system, to carry out the
intent to have sexual (contact) (intercourse).”
¶24 Giving Achha the benefit of the doubt, we read his brief not to
directly challenge the sufficiency of the evidence; rather, he appears to
challenge the sufficiency of the evidence to negate his defenses of (1)
entrapment and
(2) fantasy/role playing.[11] “Entrapment is a defense to a charge when the
‘evil intent’ and the ‘criminal design’ of the offense originate in the mind of
the government agent, and the defendant would not have committed an offense of
that character except for the urging of the government.” State v. Hilleshiem, 172
[T]he law permits law enforcement officers to engage in some inducement, encouragement, or solicitation in order to detect criminals. Thus, entrapment will only be established if the law enforcement officer used excessive incitement, urging, persuasion, or temptation, and prior to the inducement, the defendant was not already disposed to commit the crime. In the context of narcotics transactions, merely seeking or offering to buy drugs is not the kind of inducement which establishes entrapment.
¶25 We have summarized the explicit chat room transcripts and the recorded telephone calls and it shows that Achha had only one thing on his mind: sex with a thirteen-year-old girl. He steered every conversation toward sex, he bragged about his prowess and physical attributes, he asked Niki if she could handle his prowess and physical attributes, he asked whether she had been with other older men, he constantly sought to arrange a meeting with Niki for the sole purpose of engaging in sexual relations with a thirteen year old. The evidence establishes that Achha was trolling the Internet for girls with the goal of inducing one to have sex with him.
¶26 The evidence establishes that Stuhlman-Roberts did nothing more
than provide an opportunity for Achha to achieve his goal. The fact that the State’s agent cultivates a
friendship, as a thirteen-year-old girl, with an adult male does not constitute
entrapment. State v. Bjerkaas, 163
¶27 A theme running through Achha’s brief is that Stuhlman-Roberts
entrapped him by taking advantage of his ignorance of American culture; he
stresses that he did not know that thirteen-year-old girls flirted on the
Internet. He asserts that she knew he
was from
¶28 Finally, in a written statement at the time of his arrest and
in his testimony, Achha claims he believed he was chatting with an adult and not
a thirteen year old and that the adult was lying about his or her age to fool
him. He drove to
¶29 Conclusion. We affirm Achha’s conviction for using a computer to facilitate a child sex crime. He has failed to preserve his claim that he received ineffective assistance of trial counsel. The evidence overwhelmingly supports the jury’s conclusion that Achha was guilty and, without a doubt, it negates his defenses that he was entrapped and was only engaged in role playing with an adult.[12]
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] Coleen M. Barger, On the Internet, Nobody Knows You’re a Judge: Appellate Courts’ Use of Internet Materials, 4 J. App. Prac. & Process 417 & n.2 (2002).
[2] “The largest and most comprehensive information portal on the Web. Along with Web search, news, sports and weather, Yahoo! offers e-mail, instant messaging, travel, auctions, classified ads, discussion groups, Web hosting and numerous other services.” Yahoo! The Free Dictionary, http://encyclopedia2.thefreedictionary.com/Yahoo! (last visited Dec. 8, 2010).
[3]
A chat room is a place on the world wide web where Internet users with common interests can sign on to communicate in real time. Generally, when users enter a chat room they see a list of other persons (usually known by pseudonyms) who have also signed on to the chat room site. To “chat,” users type a message which can be seen almost immediately by all of the other persons “present” in the chat room. They may, in turn, respond.
[4] “A screen name is an appellation used to identify oneself in a chat room or when sending instant messages to another computer user. Although it can be the user’s real name, it is more often a pseudonym.” Mitchell, 353 F.3d at 554 n.3.
[5] At The Free Dictionary, http://encyclopedia2.thefreedictionary.com/instant+messaging (last visited Dec. 8, 2010), instant messaging is explained as:
Exchanging text messages in real time between two or more people logged into a particular instant messaging (IM) service. Instant messaging is more interactive than e-mail because messages are sent immediately, whereas e-mail messages can be queued up in a mail server for seconds or minutes. However, there are no elaborate page layout options in instant messaging as there are with e-mail. The IM text box is short, and pressing the enter key often sends the text. IM is designed for fast text interaction.
[6] As the 7th Circuit did in Mitchell, 353 F.3d at 555 n.4, we will not use “[sic]” to indicate errors or mistakes in the original texts of the messages because real time conversations in Internet chat rooms and through instant messenger services are most often informal and involve typographical errors, shorthand, symbols and abbreviations.
[7] Stuhlman-Roberts
uploaded three childhood photos of the wife of a
[8] During telephone conversations, Niki was portrayed by Shari Ackeret, a civilian payroll clerk in the sheriff’s department because she had a younger sounding voice than twenty-year veteran Stuhlman-Roberts.
[9] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[10] After his initial brief was filed, Achha wrote this court on January 12, 2010, seeking to discharge his appointed counsel. This letter prompted counsel to move to withdraw, and after we warned Achha of the difficulties and disadvantages of self-representation, we granted that motion on February 4, 2010.
[11] Achha
could not directly challenge the sufficiency of the evidence. As we previously noted, the entrapment
defense admits that all essential elements of the crime are taken as having
been proved beyond a reasonable doubt. State
v. Saternus, 127
[12] Achha
asks for a variety of forms of relief that can best be described as imposing
limitations of Internet sting operations; we will not address his requests
because they are without merit. Even if
they had any merit, we are powerless to change the law. Cook v. Cook, 208