COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 15, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1146-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD J. DRAVES,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Washburn County: WARREN WINTON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Donald Draves appeals a judgment and an
order denying postconviction relief, convicting him of physical child abuse,
contrary to § 948.03(2)(b), Stats.,
to which he was sentenced to three years probation with the condition that six
months be served in the county jail.
Draves argues that (1) he was unfairly prejudiced by erroneously
admitted "other acts" evidence and (2) the prosecutor's closing
arguments denied him a fair trial. We
reject his arguments and affirm the judgment.
The underlying facts of
the offense are uncontroverted. During
a visit from Draves's four children from a prior marriage, his
seven-year-old-son, J., had a tantrum after refusing to clean his room. Draves's wife, Pam, sent J. to his room and,
when he refused to calm down, she spanked him.
Later, when Draves went upstairs to see the child, the child said he did
not have to listen. Draves pulled down
the child's trousers and underpants and spanked him twice on his rear. J. then had a "fit of rage,"
throwing things around his room. Draves
spanked him twice more on his rear. J.
then cleaned up the room.
Draves then told J. to
come downstairs for a bath, during which a handprint could be seen on his
posterior. Draves's wife decided that
J. should have a cool bath to reduce the redness. While in the bath, J. apologized to Pam for swearing.
After the bath, Draves
talked to J. about why he was spanked.
J. apologized for his behavior.
Pam telephoned J.'s mother and told her of the spanking. When J.'s mother arrived to pick J. up,
Draves asked her if she was "going to turn him in." He explained that after he spanked J. the
first two times, J. said he was going to tell his mom and she would turn him
in. Draves responded: "I'll give you something to tell them
about" and administered the two final spankings.
The marks on J. turned
into a large bruise with a white handprint in the center. A doctor who examined J. after the incident
stated that in forty years of practice he never had seen a bruise more severe
and that the amount of force necessary to cause a bruise of the sort would have
to be considerable.
Draves's defense was
parental discipline. See
§ 939.45(5)(b), Stats. On cross-examination, Draves testified that
he agreed there were limits to how hard one can hit a child. However, Draves thought he had done the
right thing and would do it again. At
trial, the prosecution introduced photographs of the child's bruise. The jury returned a verdict of guilty and
Draves appeals.
Draves argues that he
was unfairly prejudiced by evidence that two years before he had used a plastic
baseball in a disciplinary incident, causing bruises on the child's hip. During rebuttal closing argument, the
prosecutor stated to the jury:
This
is a man who struck his child with a baseball bat, a plastic bat in the past
and left a bruise. This is a man who
does this to a child and this is a man who is going to do this again. This is not even a close call, ladies and
gentleman. And it's not about the right
to discipline. This is about abusing
young children. That's what this case
is about.
Evidence of prior bad acts
are not admissible to show the defendant's bad character or propensity to
misconduct. Section 904.04(2), Stats.
The evidence may be admitted, however, for other purposes, including
motive and intent. Id.[1] The courts engage in a two-step process to
determine whether evidence of other bad acts is admissible. State v. Alsteen, 108 Wis.2d
723, 729, 324 N.W.2d 426, 429 (1982).
First, the court must determine whether the evidence fit within one of
the exceptions in § 904.04(2) and, second, determine whether the probative
value is outweighed by its prejudicial effect.
Id. Implicit in
this analysis is the requirement that the evidence be relevant. Id. When we review an evidentiary ruling, we must defer to the trial
court's exercise of discretion. State
v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983). We must uphold the decision if it has a
reasonable basis and if it was made in accordance with accepted legal standards
and the facts of record. Id.
Draves was convicted of
violating § 948.03(2)(b), Stats.,
which provides: "Whoever
intentionally causes bodily harm to a child is guilty of a Class D
felony." Draves relies on State
v. Danforth, 129 Wis.2d 187, 201, 385 N.W.2d 125, 131 (1986), which
held that "specific intent ... is not an element of child abuse"
under § 940.201, Stats., 1981-82,[2]
and, therefore, alleged prior acts of child abuse were erroneously admitted
under § 904.04(2), Stats. Danforth held, however, that
because there was no reasonable possibility that the error contributed to the
verdict, the error was harmless. Id.
at 204, 385 N.W.2d at 132.
Danforth is
not instructive because it is based upon an earlier child abuse statute. As Draves states in his brief, "intent
to cause bodily harm was an element of the crime charged here even if it was
not controverted." Nonetheless,
Draves argues that his theory of defense, the parental discipline privilege,
rendered evidence on the issue of intent irrelevant. The defense theory was explained to the trial court as follows:
[Defense
counsel]: We are not claiming that he
didn't intentionally slap that kid on the butt. We claim that he's privileged to do that if he doesn't over do it
....
Although defense counsel
agreed that his theory was that Draves didn't intend to "hurt" the
child, Draves now argues that pain is an integral part of a spanking. Because § 939.22(4), Stats., defines "[b]odily harm" to mean
"physical pain or injury," Draves contends that his parental
discipline defense essentially admitted the elements of the crime, but claimed
privilege. As a result, he contends,
evidence of intent was irrelevant and its admission was error, citing Alsteen,
108 Wis.2d at 730, 324 N.W.2d at 429.
Alsteen
involved a sexual assault prosecution where the defendant admitted the sexual
intercourse but defended on the basis that it was consensual. Alsteen held that evidence of
the defendant's prior sexual assaults "has no probative value on the issue
of [the victim's] consent." Id.
at 730, 324 N.W.2d at 429. Because the
evidence had no tendency to prove a material fact, it was wrongly
admitted. Id.
Alsteen is
not instructive here because the defense of consent, which is unique to the
victim, is sharply distinct from the defense of privilege, which is unique to
the defendant. The defense of privilege
can be claimed:
When
the actor's conduct is reasonable discipline of a child by a person responsible
for the child's welfare. Reasonable
discipline may involve only such force as a reasonable person believes is
necessary. It is never reasonable
discipline to use force which is intended to cause great bodily harm or death
or creates an unreasonable risk of great bodily harm or death.
Section
939.45(5)(b), Stats.
Because "reasonable
discipline may involve only such force as a reasonable person believes is
necessary," the issue of intent did not altogether drop out of the case
when Draves raised the defense of parental discipline. At issue was not whether Draves intended to
inflict "bodily harm," an element of 948.03(2)(b), Stats., defined as pain, § 939.22, Stats., but whether he intended to
inflict such force as would be unreasonable, which would negate his
defense. The other acts evidence
refutes the claim implicit in Draves's defense that he did not intentionally
use excessive force.
Other acts evidence
should be used sparingly because of the potential for prejudice. State v. Plymesser, 172 Wis.2d
583, 595, 493 N.W.2d 367, 373 (1992).
Nonetheless, the State has the burden to prove all elements of a crime
and to negate defenses. Cf. id.
at 594, 493 N.W.2d at 372 ("The state must prove all the elements of a crime
beyond a reasonable doubt, even if the defendant does not dispute all of the
elements.").[3] Because the issue of intent related to
Draves's defense, we are satisfied the trial court reasonably admitted other
acts evidence. We decline to grant
Draves's request for a new trial in the interest of justice.
Next, Draves argues that
he was denied a new trial because of the prosecutor's closing argument:
[Defense counsel] has asked that an
instruction be given to you that a parent has a privilege to discipline their
children and that's not true. ... [W]here the discipline becomes abusive, then
its my job to protect the children of this county, and that's why we are here
today.
....
You
need to send a message to him as well as to the people throughout this county
that we don't tolerate this.
Draves
did not object to any of these statements.
Draves agrees that failure to make contemporaneous objection or to move
for a mistrial in the trial court waives the issue. See State v. Goodrum, 152 Wis.2d 540, 549, 449
N.W.2d 41, 46 (Ct. App. 1989).
Nonetheless, Draves argues that we should grant a new trial because this
error prejudiced his right to a fair trial.
See State v. Neuser, 191 Wis.2d 131, 137, 140, 528 N.W.2d
49, 51, 53 (Ct. App. 1995).
We are unconvinced that
the prosecutor's comments deprived Draves of a fair trial. A prosecutor may strike "hard
blows" although not "foul ones." Id. at 139, 528 N.W.2d at 52. The prosecutor's argument could be fairly
interpreted that Draves's claimed defense did not apply under the facts of this
case. "Closing argument is the
lawyer's opportunity to tell the trier of fact how the lawyer views the
evidence and is usually spoken extemporaneously and with some
emotion." State v. Draize,
88 Wis.2d 445, 455-56, 276 N.W.2d 784, 790 (1979). The prosecutor may not, however, suggest that the jury arrive at
their verdict by considering factors other than the evidence. Id. at 454, 276 N.W.2d at
789. The prosecutor's argument stressed
the photographic evidence in the case.
Taken in context, the prosecutor's "protect the children" and "send
a message" remarks were not so far afield to exceed the bounds of
propriety. The court's instructions to
the jury that counsel's arguments were not evidence but rather opinions of the
attorneys put the comments in proper perspective.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1]
Section 904.04(2), provides:
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[2]
Section 940.201, Stats.,
(1981-82) states:
Whoever tortures a child or subjects a child to cruel maltreatment, including, but not limited to severe bruising, lacerations, fractured bones, burns, internal injuries or any injury constituting great bodily harm under s. 939.22(4), is guilty of a Class E felony. In this section, 'child' means a person under 16 years of age.
[3] Although language in State v. Alsteen, 108 Wis.2d 723, 324 N.W.2d 426 (1982), suggests that the evidence of elements of the offense that are not disputed is immaterial, we follow State v. Plymesser, 172 Wis.2d 583, 493 N.W.2d 367 (1992), the later case. State v. Locke, 177 Wis.2d 590, 598, 502 N.W.2d 891, 895 (Ct. App. 1993).