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COURT OF APPEALS DECISION DATED AND RELEASED October 17, 1995 |
NOTICE |
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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. |
No. 94-1422-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LA RANCE THACKER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: DAVID A. HANSHER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. La Rance Thacker appeals from a judgment convicting him
of eleven counts of first-degree sexual assault, as a party to a crime,
contrary to §§ 940.225(1)(c), and 939.05, Stats. On appeal, he
argues that the trial court: (1) erroneously exercised its discretion in
excluding evidence of the victim's alleged prior sexual conduct; (2) denied him
a fair trial because it made allegedly prejudicial remarks in the presence of
the jury; and (3) erred by failing to dismiss two counts because the evidence
was insufficient to support those convictions.[1] Thacker waived the first two alleged errors
by failing to properly preserve them at the trial court level; thus, we do not
address them on appeal. Further, we
reject Thacker's remaining argument and affirm.
On the night of
September 13, 1991, the victim, an adult woman, was using a public telephone
located on a street corner on the near north side of the City of
Milwaukee. Thacker, Herbert Fobbs, and
another man drove up beside her in their car.
Thacker forced her into the car, which one of the men drove into a
nearby alley. There the men forced the
victim to engage in numerous acts of sexual intercourse and sexual contact with
them. One of the men threatened to kill
the victim if she did not submit. When
someone shouted “police,” all three men ran off. Thacker and Fobbs were tried together and the jury convicted
them, as parties to a crime, of all eleven counts of first-degree sexual
assault—eight of the counts were based upon nonconsensual acts of sexual
intercourse, and the remaining three counts were based upon nonconsensual acts
of sexual contact.
VICTIM'S PRIOR SEXUAL CONDUCT—IMPEACHMENT
In the course of
cross-examination, counsel for co-defendant Fobbs asked the victim whether she
had a boyfriend. She stated that she
did not. The court commented: “We'll let this question be asked but
nothing further, please.” Fobbs's
counsel suggested that he make an offer of proof. The court told him to proceed with the examination and
stated: “Make your offer of proof
later.” Fobbs's counsel requested a
side bar, which the court denied. When
Fobbs's counsel persisted and asked the victim with whom she had had sexual
intercourse, the State objected. The
court excused the jury. Fobbs's counsel
explained, in response to the court's inquiry, that he had evidence that the
victim had sexual intercourse with a man the day before the alleged assaults,
and that this evidence was offered to impeach the victim's denial that she had
a boyfriend. The trial court castigated
Fobbs's counsel for asking questions in violation of the rape-shield law, and
did not allow an offer of proof to be made.
On appeal, Thacker
argues that the court's refusal to permit Fobbs's counsel to make an offer of
proof prejudiced Thacker's right to impeach the victim. Thacker neither objected to the trial
court's ruling, nor attempted to make an offer of proof. Accordingly, he has waived appellate review
of this issue as a matter of right, see State v. Shears,
68 Wis.2d 217, 262, 229 N.W.2d 103, 125 (1975) (failure to object to the
State's cross-examination of defendant relating to his silence or to State's
closing argument comments on his silence waived appellate review of the issue);
§ 974.02(2), Stats., and we
decline to use our power of discretionary reversal to review the issue. See § 752.35, Stats.
FAIR TRIAL—CONDUCT OF THE TRIAL COURT
For the first time on
appeal, Thacker asserts that the trial court violated his constitutional right
to a fair trial by remarks it made during his cross-examination of a witness
called by Fobbs:
Q. Now, you and
[the victim] in September had known each other how long?
A. Maybe about a
month.
Q. And was this
your first date?
[Prosecutor]: Objection,
your Honor, relevance.
THE COURT: I don't
know what the relevance is here.
Q. Was the first
time the two of you gone out together?
[Prosecutor]: Same
objection.
THE
COURT: Sustained. I don't know the
relevance of this witness period, the issues of your defenses. So, it is not relevant. It is a waste of this Court's time, this
jury's time.
Thacker argues that the
trial court's denial of his motion for a mistrial for commenting on the weight
and sufficiency of the evidence violated his right to a fair trial. Our reading of the colloquy indicates to us
that the trial court excluded the evidence on the basis of relevance. In such case, counsel should have made an
offer of proof. Section 901.03(1)(b), Stats.
Absent an offer of proof, this court has nothing to review. Thacker also complains that the trial court
denied his motion for an instruction charging the jury not to draw inferences
based on the court's comments on the evidence.
The proper method for objecting to a court's refusal to charge is upon
denial of a motion to instruct as prescribed by §805.13(3), Stats.—at the instruction
conference. Failure to object to
incompleteness of the charge at that time is a waiver of any error.
Further, at no time did
Thacker raise the issue of denial of his fair trial rights by objection or
motion. Accordingly, he waived the
issue. Shears, 68
Wis.2d at 262, 229 N.W.2d at 125.
DENIAL OF MOTIONS TO DISMISS
After the State rested
its case, Thacker moved to dismiss two of the counts that were premised upon
nonconsensual sexual contact with the victim.
Thacker argues that the trial court's reason for denying his dismissal
motion—that a failed sexual intercourse can be a contact—is erroneous and in
fact would excise from Wisconsin jurisprudence the offense of attempted sexual
intercourse. He argues that the
evidence supports, at best, convictions of attempted sexual assault rather than
contact. In essence, we conclude that
Thacker's argument is really a challenge to the sufficiency of the evidence
supporting his conviction on the two counts of sexual assault based upon sexual
contact.
On appeal, we will
reverse a judgment of conviction for insufficient evidence only if the evidence
favorable to the State is so insufficient in probative value that it can be
said as a matter of law that no trier of fact could be reasonably convinced of
guilt beyond a reasonable doubt. State
v. Wilson, 180 Wis.2d 414, 424, 509 N.W.2d 128, 131 (Ct. App. 1993). There was overwhelming evidence to support
the jury's verdict on the two challenged counts. The victim testified that Thacker tried to insert his penis into
her vagina, but that he failed. This is
sufficient under the statutory definition of sexual contact. See § 940.225(5)(b), Stats.
Thacker argues that these counts were actually failed attempts at sexual
intercourse, not sexual contacts for purpose of sexual arousal or
gratification. His argument is specious;
if the facts were sufficient to establish intent to commit attempted sexual
assault, as Thacker contends, they were sufficient to prove intent to commit
sexual contact.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.