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COURT OF APPEALS DECISION DATED AND RELEASED June 20, 1996 |
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. 94-1846-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANDREW HODGE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Wood County:
EDWARD F. ZAPPEN, JR., Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J. and Dykman, J.
PER
CURIAM. Andrew Hodge appeals from a judgment of conviction for
sexually assaulting a child. The issues
are whether: (1) there was sufficient evidence of sexual gratification to
convict; (2) the trial court erroneously exercised its discretion in precluding
impeachment evidence of the victim's juvenile adjudications; (3) the trial
court erroneously exercised its discretion in admitting impeachment evidence of
the defense witnesses' prior convictions; and (4) the trial court lessened the
State's burden of persuasion by modifying the standard jury instruction on
reasonable doubt.
We conclude that: (1)
there was sufficient evidence to convict; (2) Hodge failed to preserve his
objection to the preclusion of impeachment evidence; (3) the trial court
properly exercised its discretion in admitting evidence of the prior
convictions of the defense witnesses; and (4) Hodge waived his challenge to the
modified jury instruction. Therefore,
we affirm.
FACTS
The State presented
evidence that the victim, Fawn R., 15 years old at the time, spent the night
with a friend, Shannon, and John and Andrew Hodge.[1] Fawn testified that she, Shannon and John slept
in a small basement room with three beds.
At 4:00 in the morning Fawn was awakened by Andrew "crawl[ing] into
bed" with her. Fawn pretended to
be asleep and Andrew undid her pants and "played with" her vagina and
breasts for approximately an hour. Although Fawn was frightened, she did not say anything or cry out
to Shannon, who Fawn believed had passed out from drinking. Andrew left when someone called to him, but
returned about two hours later.
Although Fawn was lying on her side, facing away from Andrew, he
"played with [her] butt" and then reached over to fondle her breasts
and vagina. This continued for about
ten minutes until an alarm clock rang and Andrew left. Later, Fawn woke Shannon to tell her what
had happened. At trial, Shannon denied
that Fawn had slept there that night and explained that she must have wanted to
retaliate against Andrew because he had "refused her
[advances]." Andrew also denied
that Fawn had spent the night with them.
LAW
Conviction for sexual
assault of a child requires proof, beyond a reasonable doubt, that the
defendant had sexual contact with a child.
Section 948.02, Stats. Section 948.01(5), Stats., defines the relevant type of "sexual
contact" as an intentional touching for the purpose of "sexually
arousing or gratifying the defendant."
"Intent to become
sexually aroused or gratified, like other forms of intent, may be inferred from
the defendant's conduct and from the general circumstances of the
case--although the jury `may not indulge in inferences wholly unsupported by
any evidence.'" State v.
Drusch, 139 Wis.2d 312, 326, 407 N.W.2d 328, 334 (Ct. App. 1987)
(citation omitted). "We view the
evidence most favorably to the conviction and will overturn the verdict only if
the evidence `is inherently or patently incredible, or so lacking in probative
value that no jury could have found guilt beyond a reasonable
doubt.'" Id. at 325,
407 N.W.2d at 334 (citation omitted).
SUFFICIENCY OF THE EVIDENCE
Andrew contends that
there was no evidence that he had contact with Fawn to become sexually
aroused. We disagree. Fawn testified that Andrew got into her bed
twice and "played with" her breasts and vaginal area, first for an
hour and then for ten minutes. This
inappropriate conduct in Fawn's bed supports the jury's inference that Andrew
intended to become sexually aroused.
The duration of these contacts also negates that they were inadvertent. There is ample evidentiary support for the
jury's verdict.
Andrew also contends
that Fawn's testimony was incredible.[2] However, questions of credibility are
determined by the fact finder, and this court will not disturb that
determination if more than one reasonable inference can be drawn from the
credible evidence. See In
re the Estate of Dejmal, 95 Wis.2d 141, 151-52, 289 N.W.2d 813, 818
(1980) (the fact finder is in a superior position to the reviewing court
"to observe the demeanor of witnesses and to gauge the persuasiveness of
their testimony"). The jury was
presented with two versions of the incident.
The jury believed Fawn, whose testimony provided evidentiary support for
the verdict. Consequently, we will not
disturb that verdict.
PRECLUDING IMPEACHMENT EVIDENCE OF VICTIM'S
PRIOR JUVENILE ADJUDICATIONS
The defendant sought to
impeach Fawn with evidence of prior juvenile adjudications. The trial court summarized defense counsel's
sidebar assertion that he "had information regarding prior juvenile
adjudications of both this witness and ... Shannon ... and asked whether or not
he may inquire into those." The
trial court denied the request under § 906.09(4), Stats.
Although
§ 906.09(4), Stats.,
precludes evidence of juvenile adjudications for impeachment purposes, such
evidence has been admitted to demonstrate bias under Davis v. Alaska,
415 U.S. 308, 318-19 (1974).[3] An offer of proof "should state an
evidentiary hypothesis underpinned by a sufficient statement of facts to
warrant the conclusion or inference that the trier of fact is urged to adopt. The offer of proof must enable the reviewing
court to act with reasonable confidence that the evidentiary hypothesis can be
sustained." State v.
Robinson, 146 Wis.2d 315, 327-28, 431 N.W.2d 165, 169 (1988) (citations
omitted). Defense counsel failed to
make an offer of proof to explain how the juvenile adjudications would disclose
bias.[4] As a result, we have nothing to review.
ADMITTING EVIDENCE OF DEFENSE WITNESSES' PRIOR
CONVICTIONS
Andrew contends that the
trial court erroneously exercised its discretion in admitting evidence of prior
convictions of defense witnesses. Section
906.09, Stats., authorizes the
use of prior convictions to impeach a witness.[5] Andrew contends that many of the convictions
should have been precluded because they were only marginally relevant and did
not involve dishonesty. See §
906.09(2), Stats. "Although convictions involving
dishonesty are more probative of credibility than those that do not, Wisconsin
law presumes that all criminal convictions have some probative value regarding
truthfulness." State v.
Kuntz, 160 Wis.2d 722, 753, 467 N.W.2d 531, 543 (1991).
Defendant Andrew Hodge
Andrew had three prior
convictions and moved to exclude two of them, resisting an officer and
disorderly conduct, because they did not involve dishonesty. The trial court disagreed because, in its
opinion, both crimes evince a disrespect for legal authority "which may
also be evidence of a disregard to the seriousness of the oath that is to be
taken." We conclude that the trial
court properly exercised its discretion in admitting Andrew's three prior
convictions.
John Hodge
Andrew's brother John
contradicted Fawn's testimony that she spent the night and that there were
three beds in the basement bedroom.
John had three recent convictions, two for battery and one for fleeing a
traffic officer. The defense moved to
exclude them because they were not relevant to John's truthfulness. The trial court disagreed because battery
was a repeat offense and relevant to the witness's moral turpitude and
willingness to abide by the oath.
Fleeing an officer also evinces disrespect for the law. We conclude that the trial court properly
exercised its discretion in admitting John's three recent convictions.
Floyd Perkins
Floyd Perkins, the owner
of the building, testified that it would have been "pretty hard" to
fit three beds in the basement bedroom.
The defense moved to exclude the majority of Perkins's twelve prior convictions
because they were traffic offenses. The
trial court disagreed, stating that Perkins's record shows "a continual
pattern of traffic offenses and criminal behavior that remains virtually
uninterrupted since 1983." Many of
the traffic offenses, such as drunk driving and operating after revocation,
also demonstrate "an irresponsible attitude towards the law," which,
the court said, may also indicate an "irresponsible attitude to
[Perkins's] oath." We conclude
that the trial court properly exercised its discretion in admitting the
convictions.
FAILURE TO OBJECT TO MODIFIED JURY
INSTRUCTION
Andrew argues that the
trial court committed plain error because it modified the standard jury
instruction to lessen the State's burden of persuasion. The last paragraph of Wis J I—Criminal 140 provides: "While it is your duty to give the
defendant the benefit of every reasonable doubt, you are not to search for
doubt. You are to search for the
truth." The trial court deleted
the last sentence and instead instructed, "You are to determine whether or
not the State has proved beyond a reasonable doubt that the defendant is guilty
as charged." Andrew's trial
counsel failed to object to this modification at the instruction
conference. This failure constitutes
waiver. Section 805.13(3), Stats.; State v. McBride,
187 Wis.2d 409, 420, 523 N.W.2d 106, 111 (Ct. App. 1994).
We are precluded from
reviewing an unobjected-to, allegedly erroneous jury instruction unless we are
persuaded that it is probable that justice has miscarried, that is, that a new
trial would probably produce a different result. State v. Schumacher, 144 Wis.2d 388, 401, 424
N.W.2d 672, 676-77 (1988); McBride, 187 Wis.2d at 420, 523 N.W.2d
at 111-12; § 752.35, Stats. Although strict adherence to the standard
jury instructions avoids challenges to ad hoc modifications, we are not
persuaded that there was a substantial probability of a different result had
the trial court instructed the jury without this modification.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[2] Specifically, Andrew asserts that it is incredible that Fawn would allow this fondling to occur for over an hour and then recur, without disturbing Shannon and John, sleeping in the next bed. "This court will only substitute its judgment for that of the trier of fact when the fact finder relied upon evidence that was inherently or patently incredible--that kind of evidence which conflicts with the laws of nature or with fully-established or conceded facts." State v. Tarantino, 157 Wis.2d 199, 218, 458 N.W.2d 582, 590 (Ct. App. 1990). We conclude that Fawn's testimony is not "patently incredible," nor does it "conflict[] with the laws of nature." Id.
[3] In Davis, the Supreme Court held that the victim's juvenile record was admissible to show bias, to ensure the defendant's rights under the confrontation clause. Davis v. Alaska, 415 U.S. 308, 318-19 (1974); U.S. Const. amend. VI; Wis. Const. art. I, § 7.
[4] Davis does not require cross-examination on marginally relevant topics merely because bias might be disclosed. Chipman v. Mercer, 628 F.2d 528, 531 (9th Cir. 1980) (discussing Davis v. Alaska, 415 U.S. 308 (1974), and related cases). "[T]he confrontation clause does not prevent the trial court from weighing the offer of proof to determine its probative value ...." Id. (emphasis added).