COURT OF
APPEALS DECISION DATED AND
RELEASED January
4, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
Nos. 94-1131-CR
94-1132-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
LARRY
D. BENOIT,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for La Crosse County: DENNIS G. MONTABON, Judge. Affirmed.
Before
Eich, C.J., Dykman and Vergeront, JJ.
EICH,
C.J. Larry D. Benoit, appearing pro se, appeals from a
judgment convicting him of attempted second degree sexual assault of a child as
a repeater, contrary to §§ 939.32, 948.02(2) and 939.62(1)(b), Stats., and of bailjumping, also as a
repeater, contrary to §§ 946.49(1)(b) and 939.62(1)(b), Stats.[1] He asserts dozens of claimed evidentiary,
legal and constitutional errors during the course of his trial, and because we
conclude that all his claims either are waived or lack merit, we affirm his
convictions.
On
December 24, 1992, Benoit propositioned a 13-year-old boy, Steve C., for oral
sex in the presence of Steve C.'s friend, Tim B. Benoit was dating Tim B.'s mother, Donna B., at the time. When Donna B. learned of the incident, she
reported it to Benoit's probation officer.[2] Benoit was jailed on a probation hold in
January 1993 but released from the hold in March 1993. Later that month, Benoit was arrested and
charged with several crimes in connection with the December 24, 1992,
incident. Benoit's probation was later
revoked.
While
out on bail on the sexual assault charge, Benoit was discovered violating a
condition of his bond, that he have no contact with Tim B. He was charged with bailjumping and pled
guilty to the charge. He went to trial
on the attempted sexual assault charge and the jury found him guilty.
As
indicated, Benoit attempts to raise numerous issues in his brief. Among other things, he challenges the
voluntariness of his plea to the bailjumping charge, claims that the trial
court made numerous errors in the admission of evidence, challenges the
sufficiency of the evidence to support his conviction for attempted sexual
assault, claims he was subjected to double jeopardy, and challenges his
sentences. We reject all of his
arguments and affirm the judgment.
I.
The Bailjumping Plea
Benoit
argues that his plea to the bailjumping charge was involuntary. He claims that he was taking medication at
the time that affected his ability to comprehend the consequences of his plea
and, additionally, that he was "under duress by his attorney" to
accept the state's offer of a plea agreement.
The
proper procedure for challenging a claimed defect in a plea proceeding is to
move the trial court for withdrawal of the plea. State v. Riekkoff, 112 Wis.2d 119, 130, 332 N.W.2d
744, 750 (1983). Benoit did not file
such a motion until after he had appealed his conviction, and the trial court
properly denied the motion for lack of jurisdiction. His challenge to the plea is not properly before us.[3]
II.
The Attempted Sexual Assault Charge
Claims
of Evidentiary Error
The bulk of Benoit's
assignments of error on his appeal consist of claims of improperly admitted
evidence. The admission or rejection of
evidence is within the trial court's discretion, State v. Plymesser,
172 Wis.2d 583, 591, 493 N.W.2d 367, 371 (1992), and "[w]e will not
reverse a discretionary determination by the trial court if the record shows
that discretion was ... exercised and we can perceive a reasonable basis for
the court's decision." Prahl
v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App.
1987). Indeed, "`[b]ecause the
exercise of discretion is so essential to the trial court's functioning, we
generally look for reasons to sustain discretionary decisions.'" Burkes v. Hales, 165 Wis.2d
585, 590-91, 478 N.W.2d 37, 39 (Ct. App. 1991) (quoted source omitted).
We
will consider, seriatim, as many of Benoit's challenges as we can
ascertain have been properly preserved for appeal in his brief.[4]
While
in jail on the probation hold for the attempted sexual assault, Benoit wrote a
letter to a newspaper criticizing the lack of state funding for sex offender
counseling programs, concluding the letter with the statement: "I speak
from experience." When the State
sought admission of the letter at trial, Benoit objected on the basis of
relevancy and privilege.[5]
Evidence
is relevant if it makes the existence of a fact more or less probable than it
would be without the evidence. Section
904.01, Stats. We agree with the State that the letter,
written by Benoit while incarcerated pending trial on the charges in this case,
is relevant to a determination of whether he may have committed the charged
offense.
Nor
is the letter privileged. Even if, as
Benoit asserts, it might qualify for a medical or therapeutic privilege because
it discusses counseling (a point we find extremely tenuous), Benoit waived
privilege when he voluntarily discussed the matter in a public forum. See § 905.11, Stats. (disclosure by person claiming privilege waives
privilege).
Benoit
also argues that admission of the letter violated his Fifth Amendment right
against compelled self-incrimination and shifted the burden of proof of his
guilt away from the State. Neither
argument has merit. The Fifth Amendment
protects an individual against being compelled to incriminate himself or
herself, Hoffa v. United States, 385 U.S. 293, 304 (1966), and
there is no evidence in the record that Benoit's decision to write the letter
was involuntary. Nor has he referred us
to any evidence that the jury mistakenly believed that he was forced to carry
the burden of establishing his innocence.
The existence of incriminating evidence, without more, does not shift
the burden of proof to the defendant. See
Struzik v. State, 90 Wis.2d 357, 366, 279 N.W.2d 922, 926
(1979). The trial court did not
erroneously exercise its discretion in allowing the evidence.
Benoit
next argues that the trial court erred in admitting evidence of his prior
conviction for oral sexual assault of a child.
The trial court, over objection, allowed the evidence, concluding that
it was admissible as an exception to the general ban against character evidence
under § 904.04(2), Stats., in
order to show a common scheme or plan and, further, that its probative value
outweighed any potential danger of unfair prejudice that might result from its
admission.
The
admissibility of so-called "other acts" or "other wrongs"
evidence is governed by a two-part test.
State v. Friedrich, 135 Wis.2d 1, 19, 398 N.W.2d 763, 771
(1987). First, the evidence must be
admissible under § 904.04(2), Stats.,
which prohibits evidence of past acts to show character or propensity, but
allows evidence offered for another purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Id. The purpose of the statute is to prevent the
jury from concluding that "because an actor committed one bad act, he
necessarily committed the [charged] crime." State v. Fishnick, 127 Wis.2d 247, 261-62, 378
N.W.2d 272, 280 (1985). Second, if the
evidence is admissible under § 904.04, the trial court must exercise its
discretion under § 904.03 to determine whether the possibility of unfair
prejudice resulting from the admission of such evidence outweighs its probative
value. Friedrich, 135
Wis.2d at 19, 398 N.W.2d at 771.
In
Friedrich, another child sexual assault case, the supreme court
held that the defendant's commission of other acts of sexual contact with
minors was admissible to show a common plan where the other acts and the crime
charged were "quite similar."[6] Id. at 24, 398 N.W.2d at
773. The same is true in Benoit's case,[7]
and we see no error in the admission of the evidence.
Benoit next claims that
he was prejudiced by the prosecutor's reference to his "sexual
deviancy" in the presence of the jury.
There was but a single reference to Benoit as having a "sexual
deviancy" problem. Defense counsel
immediately objected, and the trial court sustained the objection. The error, if any, was de minimis and
therefore harmless. State v.
Dyess, 124 Wis.2d 525, 540, 370 N.W.2d 222, 230 (1985).
Benoit
also complains that the trial court improperly admitted hearsay evidence of
statements Steve C. made to his social worker.
The record shows that the trial court carefully limited the State to
questioning the social worker only as to Steve C.'s alleged indication that he
would not testify truthfully at trial, contrary to his statement on the witness
stand. Prior inconsistent statements do
not constitute hearsay. See §
908.01(4)(a), Stats.
Benoit
next argues that the trial court erred by failing to rule on his attorney's
objection to a question to Donna B. regarding her fear of him. Although the trial court did not say
"objection sustained" after Benoit objected to the question, we think
it is clear that the trial court did sustain the objection when it directed the
prosecutor to ask a different question.
While
in jail on the probation hold, Benoit prepared a written statement, at the
request of his probation officers, responding to the accusations at issue in
this case, as well as allegations of other probation violations. Benoit claims that the trial court violated
his fifth amendment protection against compelled self-incrimination by allowing
the statement into evidence. Here, too,
he did not raise any such objection at trial and we have held that
claims--whether of legal error or error of constitutional dimension--are waived
if not raised in the trial court. State
v. Damon, 140 Wis.2d 297, 300, 409 N.W.2d 444, 446 (Ct. App. 1987).
Sufficiency
of the Evidence
The trial court denied
Benoit's motion to dismiss the sexual assault charge at the close of the
evidence. He challenges that denial, as
well as the sufficiency of the evidence to support the jury's verdict.
We
employ the same standard of review in either instance: whether, considering the
evidence in the light most favorable to the state, the evidence adduced, if
believed and rationally considered by a jury, was sufficient to prove the
defendant's guilt beyond a reasonable doubt. State v. Johnson,
135 Wis.2d 453, 456, 400 N.W.2d 502, 503 (Ct. App. 1986); State v. Dahlk,
111 Wis.2d 287, 304-05, 330 N.W.2d 611, 620 (Ct. App. 1983). In reviewing a jury verdict, we must accept
the inferences drawn by the jury unless the evidence on which the inferences
are based is incredible as a matter of law.
State v. Gomez, 179 Wis.2d 400, 406, 507 N.W.2d 378, 380
(Ct. App. 1993).
To
prove an attempted crime, the State must show beyond a reasonable doubt that
the defendant: (1) had an intent to commit the crime charged; and (2) committed
sufficient acts to demonstrate unequivocally that it was improbable that the he
or she would desist from the crime of his or her own free will. State v. Stewart, 143 Wis.2d
28, 31, 420 N.W.2d 44, 45 (1988).
The
crux of Benoit's argument is that the State proved only that he had verbally
propositioned Steven C., and that because his actions consisted of "mere
words," unaccompanied by threat of physical action or coercion, the State
failed to prove either element of the offense.
Benoit
has not referred us to any Wisconsin case in support of his "mere
words" argument; and we agree with the State that, as the jury was
instructed in this case, in order to discharge its burden of proof, all the
prosecution was obligated to prove was that Benoit intended to commit the crime
of second-degree sexual assault of a child (in this case, by engaging in oral
sexual contact with Steve C., a child under the age of sixteen) and that his
conduct unequivocally demonstrated that he intended to and would have done so
but for the intervention of some extraneous factor. See Wis J
I—Criminal 580.
Steve
C. and Tim B. each testified that Benoit brought Steve C. into his bedroom
where he asked the boy to engage in oral sex with him. Both boys also testified, without objection,
that Benoit told them he had engaged in oral sex with other teenage boys in the
past, and that he was sure Steve C. would "enjoy" it. Additionally, as we have noted above, the
State had properly introduced evidence of Benoit's prior conviction for the
same offense on a previous occasion to show a common plan on this
occasion. Finally, the evidence of
Steve C.'s angry reaction to the proposition, coupled with the boys' immediate
departure from the room, is adequate, given our highly deferential standard of
review of jury verdicts, to indicate that, but for that reaction and the boys'
departure, Benoit would have continued in his efforts to engage Steve C. in the
sexual act.
The
trial court did not err in denying Benoit's motion to dismiss for insufficient
evidence. The evidence, if believed and
rationally considered by the jury, was sufficient to prove his guilt beyond a
reasonable doubt.
Other
Claims of Error
Double Jeopardy. Benoit asserts three double jeopardy
violations. First, he contends that his
current prison sentence and the sentence he received when his probation was
revoked constitute multiple punishments for the same offense. We see no violation. A sentence imposed for revocation of parole
or probation does not constitute an additional punishment for a single
act. "`The sentence [a
probationer] is required to serve upon revocation is the punishment for the
crime of which [the probationer] has previously been convicted' and [only]
involves changing the manner of serving the previously imposed sentence." State v. Verstoppen, 185
Wis.2d 728, 736-37, 519 N.W.2d 653, 656 (Ct. App. 1994) (quoted source omitted)
(emphasis in the original). Probation
revocation is not a criminal proceeding "designed to punish a defendant
for [the] newly charged wrong ...."
Id. at 736, 519 N.W.2d at 656. We agree with the State that while Benoit's conduct giving rise
to the charges in this case may have provided one of the reasons--or even the
sole reason--for terminating his probation on the earlier offense and imposition
of the previously withheld sentence, that sentence constitutes punishment for
the earlier offense, not the present one.
Benoit
sees a double jeopardy violation in the trial court's action of ordering him,
as part of the bailjumping sentence, to participate in a sex-offender
counseling program when the court must have "know[n] ... that [he] will be
ordered to attend ... counseling when released on parole [on the sexual assault
charge]." He does not explain the
argument further, other than to state that he will thus be subjected to
"multiple punishment for two (2) crimes in one (1)."
We
see no grounds for relief. The bond
violation and the sexual assault offense are factually and legally distinct
offenses, and separate punishment for each violation does not implicate the
double jeopardy clause, for the clause protects against being subjected to
multiple punishments for the same offense, State v. Kurzawa, 180
Wis.2d 502, 515, 509 N.W.2d 712, 717, cert. denied, 114 S. Ct. 2712
(1994), not against a similar punishment--even accepting Benoit's assertion
that a requirement to attend sexual counseling is part of his
"punishment"--for two different offenses. See State v. Grayson, 172 Wis.2d 156, 159
n.3, 493 N.W.2d 23, 25 (1992).
Finally,
as best we can discern, Benoit argues that the trial court has imposed
"multiple punishments" on him by using a single prior felony
conviction to enhance both the sentence for bailjumping and the sentence for
sexual assault under the repeater statute, § 939.62, Stats. We see no
error. The trial court used the
repeater statute only to enhance Benoit's sentence for bailjumping; it did not
enhance his sentence for the attempted sexual assault conviction. Moreover, the supreme court has concluded
that statutory enhancements for repeat offenders do not constitute multiple
punishments for the same offense. State
v. James, 169 Wis.2d 490, 496-97, 485 N.W.2d 436, 439 (Ct. App. 1992).
Ineffective
Assistance of Counsel. Benoit next
puts forth a series of unspecified claims which we construe as a challenge to
the effectiveness of his counsel. He
asserts that his counsel: (1) "should have objected numerous times during
trial to hearsay testimony"; (2) "misled [him] ... in regards to what
the judge [would] do" regarding the bailjumping charges, if taken to trial
rather than plea bargained; and (3) prejudiced his case by referring during
voir dire to a prior incident in which Benoit had sexual contact with a
juvenile.
Benoit
did not raise these issues in the trial court, however, and because claims of
ineffective assistance of counsel necessarily involve an evidentiary inquiry by
the trial court into counsel's actions, we do not consider such arguments when
raised for the first time on appeal. See
State v. Schultz, 148 Wis.2d 370, 379 n.3, 435 N.W.2d 305, 309
(Ct. App. 1988), aff'd, 152 Wis.2d 408, 448 N.W.2d 424 (1989), cert.
denied, 493 U.S. 1092 (1990).
Sentencing
Error. Benoit claims that the trial
court sentenced him to more time than the law allows. We have reviewed his sentences and conclude that each falls
within the statutory maximums for his convictions.
On
the attempted sexual assault conviction, he received a sentence of five years
in prison, the maximum allowed for the offense.[8]
On
the bailjumping conviction, the trial court sentenced Benoit to six years in
prison, staying the sentence and placing him on probation for ten years. Section 946.49(1)(b), Stats., allows the court to impose up
to five years in prison for bailjumping while released on felony charges. Benoit, however, was a repeater, having been
convicted of a felony within the preceding five years, and thus subject to
having his sentence increased by up to six years under § 939.62(1)(b), Stats.
His bailjumping sentence was well within the enhanced eleven-year
maximum.
As
for the ten-year probationary term, § 973.09(2)(b), Stats., permits a sentencing court to
order probation for a period of time up to the statutory maximum term of
imprisonment for the crime in question.
As explained above, the maximum prison sentence for the bailjumping conviction,
enhanced by the repeater provisions of § 939.62, is five plus six, or eleven
years.
Due
Process. Benoit, claiming lack of
notice and surprise, argues that the trial court erred by allowing the State to
add a third prior conviction to the two convictions previously recognized as
available for impeachment, should he testify at trial. Because Benoit never testified, and the
evidence was never used, we need not consider the argument further.
Preparation
of the Transcript. Benoit makes a
general argument, unsupported by references to the record or to authority, that
the court reporter incorrectly transcribed the testimony of witnesses. We agree with the State that the argument is
vague, is devoid of details and presents neither citation to the record nor any
legal authority for the proposition advanced.
For those reasons, we do not consider this issue. See Lechner v. Scharrer,
145 Wis.2d 667, 676, 429 N.W.2d 491, 495 (Ct. App. 1988) (appellate court need
not consider arguments unsupported by citations to authority or references to
the record).
Fees and Costs. Benoit argues that the court never
specifically ordered him to pay fees and costs and thus the State imposed these
costs on him without court authorization.
The judgments of conviction, dated August 23, 1993, and signed by the
sentencing judge, plainly order fees and costs.
Miscellany. Even though we do not address them
specifically in this opinion, we have examined Benoit's briefs in detail and
expressly reject his other arguments as either unintelligible, unsupported by
references to the record or legal authority, or waived.
By
the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.
[1] Benoit's two convictions were each the
subject of separate trial court proceedings below, but the cases have been
consolidated for this appeal.
[2] At the time of the incident, Benoit was
serving parole on a sentence for oral sexual assault of a child in another
state and was also on probation after a conviction for criminal damage to
property in Wisconsin.
[3] Benoit also claims that the condition of his
bond--that he have no contact with minors and in particular no contact with Tim
B. or Steve C.--was void on grounds of vagueness and impossibility. Because he attempts to raise the issue for
the first time on appeal, we do not review it.
In State v. Dean, 105 Wis.2d 390, 402, 314 N.W.2d 151,
157-58 (Ct. App. 1981), we said that "absent a showing of compelling
circumstances, an appellate court will not review a claim that was not raised
before the trial court." Benoit
has made no such showing.
[4] Several of Benoit's evidentiary challenges
are raised for the first time on appeal, and it is well established that the
failure to make a timely and specific objection to evidence waives the right to
challenge its admission on appeal. State v. Hartman, 145 Wis.2d
1, 9-10, 426 N.W.2d 320, 323 (1988).
Although pro se litigants are entitled to some leniency in complying
with procedural requirements, "[t]he right to self-representation is not a
license `not to comply with relevant rules of procedural and substantive
law.'" Waushara County v.
Graf, 166 Wis.2d 442, 452, 480 N.W.2d 16, 20 (1992), cert. denied,
113 S. Ct. 269 (1992) (quoted source omitted).
In addition to the claims specifically discussed in this opinion are the
following, each of which we deem waived as being raised for the first time on
appeal: (1) that certain testimony of Steve C. was "perjured";
(2) that the trial court improperly allowed mention of a prior conviction
which previously had been ruled inadmissible; (3) that privileged information
from his presentence investigation report was improperly allowed into evidence;
(4) that a handwriting expert called by the state was not qualified as such;
and (5) that Tim B.'s testimony concerning Benoit's sexual proposition to Steve
C. was improperly admitted.
His
challenge to remarks made by the prosecutor in closing argument is also waived
by his failure to voice his objection at the time. See State v. Fawcett, 145 Wis.2d 244, 256,
426 N.W.2d 91, 96 (Ct. App. 1988).
[5] On appeal, Benoit argues for the first time
that the letter was inadmissible because the danger of unfair prejudice
outweighed its probative value. See
§ 904.03, Stats. His failure to so object at trial waives the
objection. See Hartman, 145 Wis.2d at 9-10, 426 N.W.2d at
323; State v. Peters, 166 Wis.2d 168, 174, 479 N.W.2d 198, 200
(Ct. App. 1991) (defendant must apprise trial court of specific grounds for
objection to preserve the issue for appeal).
See also State v. Gollon, 115 Wis.2d 592, 604, 340
N.W.2d 912, 918 (Ct. App. 1983) (appellate court will not find an erroneous
exercise of discretion where party fails to ask the court to exercise its
discretion).
[6] Both Friedrich's earlier charge and the
pending charge involved girls of like age, similar sexual conduct on
Friedrich's part, a family or quasi-family relationship between Friedrich and
the victim, and situations where he took advantage of the girls in a context of
implied trust. State v. Friedrich,
135 Wis.2d 1, 24, 398 N.W.2d 763, 773 (1987).
[7] Benoit's prior conviction involved an act of
oral sex with a thirteen-year-old boy--whose family he knew and whom he had
babysat for--after watching video tapes and playing video games. In this case, Benoit claimed to have
befriended a young teenage boy by watching television and playing video games
with him and then seeking to have oral sexual contact with him.
[8] Under § 948.02(2), Stats., sexual assault of an individual under the age of
sixteen (a class C felony), the maximum possible prison sentence is ten
years. However, the attempt statute
limits the sentence for an attempted crime to half the maximum for the
completed crime. Section 939.32, Stats.
Although
the trial court was empowered to enhance Benoit's sentence beyond the five-year
maximum because Benoit is a repeater, it apparently chose not to do so. See § 939.62(1)(b), Stats.
Enhancing a sentence for repeater status is discretionary on the part of
the trial court. State v. Harris,
119 Wis.2d 612, 617-18, 350 N.W.2d 633, 636 (1984).