COURT OF APPEALS DECISION DATED AND FILED January 29, 2009 David
R. Schanker 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
from judgments and an order of the circuit court for
Before Dykman, Vergeront and Bridge, JJ.
¶1 VERGERONT, J. Michael Reveles appeals the judgments of conviction on six counts of second-degree sexual assault in violation of Wis. Stat. § 940.225(2)(g) (2007-08)[1] and the order denying his postconviction motion. First, he argues the evidence was insufficient to support the convictions because the State failed to prove an essential element of the crime beyond a reasonable doubt. Second, he argues that certain of the six counts are multiplicitous and therefore violate the double jeopardy provisions of the state and federal constitutions.[2] We conclude the evidence was sufficient and no counts are multiplicitous. We therefore affirm the judgments of conviction and the order denying postconviction relief.
BACKGROUND
¶2 In 2004 and 2005, Reveles was employed as a certified nursing
assistant at St. Mary’s Hospital in
¶3
(g) Is an employee of a facility or program under s. 940.295 (2) (b), (c), (h) or (k) and has sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program.
Wisconsin Stat. § 940.295(2)(h) refers to “[a]n inpatient health care facility.” The complaints alleged that St. Mary’s Hospital was an inpatient health care facility under para. (2)(h). For purposes of § 940.295, “inpatient health care facility” has the meaning given in Wis. Stat. § 50.135(1): “any hospital, nursing home, county home, county mental hospital or other place licensed or approved by the department [of health services (DHS)[3]] ….” See § 940.295(1)(i).
¶4 The three cases were joined for trial[4] and Reveles was tried for six counts of sexual assault involving patients at St. Mary’s Hospital: two involving Ramona B.; two involving Betty T.; and one each for Terry W. and Susan M. Reveles waived his right to a jury trial and was tried before the court.
¶5 The circuit court found Reveles guilty of all six counts. Reveles moved for postconviction relief on two grounds. First, he contended that there was insufficient evidence to prove beyond a reasonable doubt that St. Mary’s Hospital was licensed or approved by DHS. Second, he contended that the two counts involving Ramona B. were multiplicitous, as were the two counts involving Betty T. and therefore his right to be free from double jeopardy was violated. The court denied relief on both grounds. Reveles appeals both rulings.
DISCUSSION
I. Sufficiency of the Evidence
¶6 Reveles contends there was insufficient evidence to establish
beyond a reasonable doubt that St. Mary’s Hospital was licensed or approved by
DHS and that, in this case, this was an element of the crime under Wis. Stat. § 940.225(2)(g). The State does not dispute Reveles’s
contention that St. Mary’s Hospital’s licensure or approval by DHS is an
element of the crime with which Reveles’s was charged. We take this as an implicit concession that
it is an element of the crime.
¶7 Due process requires that the State must prove each element
of a charged offense beyond a reasonable doubt.
State v. Poellinger, 153
¶8 Before discussing the evidence we provide some additional statutory background. A hospital is defined in Wis. Stat. § 50.33(2)(a) as
any building, structure, institution or place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment of and medical or surgical care for 3 or more nonrelated individuals hereinafter designated patients, suffering from illness, disease, injury or disability, whether physical or mental, and including pregnancy and regularly making available at least clinical laboratory services, and diagnostic X-ray services and treatment facilities for surgery, or obstetrical care, or other definitive medical treatment.
It is illegal for a facility to
use the term “hospital” to identify itself if it is not approved by DHS. Wis.
Stat. § 50.39(2). In
addition, “no hospital may operate in
¶9 The State presented the following evidence at trial. Mary Kay Leonard testified without
contradiction that she is the director of an intermediate care unit at St.
Mary’s Hospital in
¶10 The State also presented evidence of the primary diagnosis, treatment, and procedure performed on each of the victims while they were patients at St. Mary’s Hospital. Susan M. suffered coronary atherosclerosis of native coronary vessel and underwent a cardiac catheterization after being admitted to the hospital on an emergency basis. Terry W. was taken to St. Mary’s Hospital by emergency ambulance and admitted with bleeding in the brain due to a brain aneurism that had burst; she had emergency surgery that day and remained in the hospital fourteen days. Ramona B. was admitted to St. Mary’s Hospital on March 17, 2005, and remained there for three or four days; she had fallen and there was concern that she might have suffered a rupture in the brain because she was on blood thinners following a previous stroke. Betty T. was admitted to St. Mary’s Hospital with cerebral thrombosis with cerebral infarction (a decrease in blood supply to the brain) and underwent a cardiac catheterization, remaining at the hospital for eight days.
¶11 In denying the postconviction motion, the court stated:
the Court is convinced that adequate evidence has been presented. First, the testimony of knowledgeable persons established that St. Mary’s Hospital actually holds itself out as “St. Mary’s Hospital.” The Wisconsin Statutes make clear that the use of the term “hospital” is strictly limited. Second, a number of witnesses testified to facts showing that St. Mary’s Hospital met the definition of “hospital” provided in Wis. Stat. § 50.33(2). The Statutes are clear that maintenance of a “hospital” is subject to [DHS] approval.
¶12 We agree with the circuit court that the evidence was sufficient to establish beyond a reasonable doubt that St. Mary’s Hospital is a hospital approved by DHS. The court was entitled to credit the testimony set forth in paragraphs 9 and 10, supra. From this testimony it is reasonable to infer beyond a reasonable doubt that St. Mary’s Hospital has been holding itself out as a hospital, has been operating as a hospital, and has met the definition of a hospital under Wis. Stat. § 50.33(2)(a) for at least the last sixteen years. Given that it is illegal for a facility to hold itself out as a hospital and to operate as a hospital without DHS approval, Wis. Stat. § 50.39(2) and Wis. Admin. Code. § HFS 124.03(1), and given the enforcement mechanism for violating that prohibition, § 50.39(4), it is reasonable to infer that St. Mary’s Hospital is approved to operate as a hospital by DHS. For the same reasons, it is reasonable to infer beyond a reasonable doubt that St. Mary’s Hospital’s certificate of approval has not been revoked.
¶13 Reveles contends that the State was required to provide
“affirmative proof” that St. Mary’s Hospital was licensed. He does not explain what he means by
“affirmative proof,” nor does he cite any case stating that “affirmative proof”
of an element is required to support a conviction. He mentions that one “possibility” for
“sufficient proof” of licensure would be testimony directly addressing
licensure. We agree that this is one
option for proving this element, but it is not the only option. It is well established that a finding of guilt
may rest upon evidence that is completely circumstantial. Poellinger, 153
¶14 Reveles points to State v. Powers, 2004 WI App 156,
276 Wis. 2d 107, 687 N.W.2d 50, as precedent for his position that a successful
prosecution under Wis. Stat. § 940.225(2)(g)
requires that the State “affirmatively prove” the state-licensed status of the
hospital. We do not agree. The issue in Powers was whether an employee
of a health care facility operated by the United States Department of Veteran
Affairs could be subject to § 940.225(2)(g). The parties stipulated that the facility was
federally regulated and was not subject to state regulation.
¶15 We conclude the evidence is sufficient for a reasonable fact finder to determine beyond a reasonable doubt that St. Mary’s Hospital is a hospital approved by DHS. Although there is no direct evidence of a certificate of approval, the reasonable inferences from the evidence are sufficient in force and probative value to establish this element beyond a reasonable doubt.
II. Multiplicity
¶16 The information charged Reveles with one count of touching Ramona B.’s breasts and one count of touching her genitals. It charged him with one count of touching Betty T.’s breasts and one count of touching her genitals.[6] Reveles argues that the evidence presented at trial was insufficient to support charging two separate counts with respect to Ramona B. and two separate counts with respect to Betty T. Reveles contends this violates the protection in the double jeopardy clause against multiple charges for the same punishment.
¶17 The purpose of a multiplicity challenge is to prevent the
defendant from being subject to multiple punishments for the same offense. State v. Koller, 2001 WI App 253,
¶28, 248
¶18 Reveles confines his argument to the first part of the test. He contends that the two counts involving Ramona B. and the two counts involving Betty T. are identical in fact because each set of charges arises out of a “single brief, continuous incident.” There is no dispute that the two charges involving Ramona B. are identical in law because both allege a violation of Wis. Stat. § 940.225(2)(g). The same is true of the two charges involving Betty T.
¶19 As a threshold matter, we address the State’s contention that Reveles
has waived his right to raise this multiplicity challenge on appeal because he
failed to timely raise the issue before the end of the trial. The State relies on Koller. In Koller, we held that a multiplicity
challenge based on the proof presented at trial must be raised before the end of
trial so that the State has an “opportunity to develop more facts while the witnesses
[are] on hand and to enable the trial court to resolve the matter in an
efficient and timely manner.”
¶20 Reveles concedes that he failed to raise a multiplicity
objection before the case was submitted to the jury, but he asserts that Koller
is “suspect” because it is inconsistent with a line of cases arising in
a guilty plea context. Specifically, in State
v. Morris, 108
¶21 Morris, Kelty, and the other cases Reveles
cites address waiver of multiplicity objections only in the context of a guilty
plea. In contrast, Koller is directly on
point because it addresses a situation in which the defendant’s multiplicity
challenge is directed to evidence presented at trial. We conclude we are bound by Koller. See Cook v. Cook, 208
¶22 Following Koller, we conclude that, because
Reveles did not raise a multiplicity objection to the charges before they were
sent to the jury, he has waived his right to raise this issue on appeal. 248
¶23 In order to prevail on a claim of ineffective assistance of
counsel, the defendant must show both that trial counsel’s performance was
deficient and that he was prejudiced as a result of that deficient performance.
Koller, 248
¶24 Charges are not identical in fact if they are “separated in
time or are of a significantly different nature….” State v. Eisch, 96
The “different nature” inquiry is not limited to an assessment of whether the acts are different types of acts. Rather, even the same types of acts are different in nature “if each requires ‘a new volitional departure in the defendant’s course of conduct.’” Furthermore, time is an important factor, but even a brief time separating acts may be sufficient:
“That the interval is merely minutes or even seconds, as with the other elements and factors discussed, cannot be a solely determinative factor. The resolution of this factor is not solved by a stopwatch approach.”
The pertinent time question is whether the facts indicate the defendant had “‘sufficient time for reflection between the assaultive acts to again commit himself.’”
Koller, 248
¶25 Ramona B. testified as follows. While she was a patient at St. Mary’s Hospital, Reveles came into her room, asked her if she wanted a back rub, and drew the curtains around her bed. He told her to lay on her stomach, and he began rubbing her back. In the course of this he moved his hands around her sides and began rubbing her breast. At that point, she tensed up and Reveles pulled away. After that, Reveles placed his hand on her buttocks and asked her if she wanted it rubbed. She said no. She indicated that he said something to her along the lines of “it feeling good.” She rolled over, trying to sit up, but Reveles reached under her gown and rubbed her breast again and while he did this, his other hand “came up through my private part.” According to Ramona B., this continued until she heard a noise, at which point he stopped. She then left the room and went to a common area where she sat “thinking about what just went on.” She decided that “he wasn’t getting away with it” and she reported the incident to a nurse ten to fifteen minutes later.
¶26 We conclude that the two counts involving Ramona B. are not multiplicious. After Reveles rubbed her breast, she tensed up, and he pulled away. At that point, he could have refrained from any further sexual contact with Ramona B. Instead, he placed his hand on her buttocks and when she said no and tried to evade his touch, he chose to touch her breast again and also to touch her genitals. We are satisfied that the touching of her genitals constituted a separate violation from the act of touching her breast.
¶27 Betty T. testified as follows. While she was a patient at St. Mary’s Hospital, Reveles asked her roommate, Ramona B., if she wanted a back rub, but because the curtains were drawn, she could not see what happened. After Ramona B. left the room, Reveles asked her if she wanted a back rub, and she said yes. Reveles instead gave her a sponge bath. In the course of the sponge bath, Reveles motioned for her to turn over on to her back, and she did. He touched her breast and her nipple and then “rubbed the nipple and pulled it out.” He then placed his fingers in the folds of her genitals and rubbed “back and forth.” She stiffened up and he stopped.
¶28 We conclude that the two counts involving Betty T. were not multiplicitous. Not only did Reveles touch two different intimate parts, he manipulated each in two distinct ways, each a separate volitional act.
¶29 We reject Reveles’s argument that State v. Hirsch, 140
¶30 We also reject Reveles’s argument that
¶31 Reveles also points out in that in Eisch and State v. Bergeron, 162 Wis. 2d 521, 470 N.W.2d 322 (Ct. App. 1991), in which the court found multiplicity, the sexual assaults were prolonged and involved assaultive behavior. However, nothing in those opinions suggest that less assaultive acts or acts any closer in time must be found to be identical in fact.
¶32 Because we conclude that the two counts against Reveles with respect to Ramona B. and the two counts with respect to Betty T. were not multiplicitous based on the trial evidence, Reveles’s trial counsel was not deficient for not raising a multiplicity objection, nor was Reveles prejudiced by the lack of an objection.[9] Accordingly, we conclude that Reveles did not receive ineffective assistance of counsel.
CONCLUSION
¶33 The circuit court correctly denied Reveles’s postconviction motion based on his challenge to the sufficiency of the evidence and his multiplicity challenge. Accordingly, we affirm his conviction and the order denying his postconviction motion.
By the Court.—Judgments and order affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The Fifth Amendment to the United States Constitution provides in relevant part: “[n]o person shall … be subject for the same offense to be twice put in jeopardy of life or limb….” Article I, § 8 of the Wisconsin Constitution provides in relevant part: “no person for the same offense may be put twice in jeopardy of punishment….”
[3] The
Department of Health and Family Services became the Department of Health
Services, effective July 1, 2008. 2007
[4] Another sexual assault case against Reveles was joined with the other three, but was ultimately dismissed before trial.
[5] All references to the Wisconsin Administrative Code are to the December 2004 version unless otherwise noted.
[6]
Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under s. 940.19 (1):
a. Intentional touching by the defendant or, upon the defendant’s instruction, by another person, by the use of any body part or object, of the complainant’s intimate parts.
“Intimate parts” means “the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being.” Wis. Stat. § 939.22(19).
[7] State
v. Machner, 92
[8] We note that in this case the analysis we undertake for the ineffective assistance claim is substantively the same as that we would undertake if we were to accept Reveles’s contention that State v. Kelty, 2006 WI 101, 294 Wis. 2d 62, 716 N.W.2d 886, permits a direct multiplicity challenge on appeal, in spite of waiver, based on the facts presented at trial. Both analyses in this case involve the application of the multiplicity standard to the evidence presented at trial under a de novo standard of review.
[9] We agree with the State that under State v. Koller, 2001 WI App 253, ¶¶44, 55, 248 Wis. 2d 259, 635 N.W.2d 838, in order to show that the defendant was prejudiced by counsel’s failure to make a multiplicity objection before the case went to the jury, the defendant must show the State would have been unable to present evidence satisfying the circuit court that the two counts were multiplicitous. However, because we conclude the defendant has not shown prejudice for another reason, we need not address this point.