COURT OF APPEALS DECISION DATED AND RELEASED February
14, 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
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No. 94-2612-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
DONALD
D. MENTZEL,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Fond du Lac County: JOHN W. MICKIEWICZ, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
PER
CURIAM. Donald D. Mentzel appeals from
a judgment convicting him of keeping a place of prostitution contrary to
§ 944.34(2), Stats. His appellate issues are: (1) whether the trial court erroneously
declined to give an entrapment instruction to the jury; (2) whether the
government's agent behaved outrageously such that the charges against him
should have been dismissed on due process grounds; (3) whether a jury
instruction for § 944.34(2) denied him a unanimous jury verdict; and (4)
whether the trial court erroneously refused to give a mistake instruction. We reject each of these claims and affirm.
Mentzel
was convicted of keeping a place of prostitution after a jury trial. Although Mentzel does not contest the
sufficiency of the evidence to convict him, we briefly review it because it
provides a foundation for our discussion of Mentzel's claims on appeal.
Brenda
Vandekolk, a former bartender at Mentzel's exotic dance club, The Lagoon,
testified that Mentzel was on the premises every night during her term of
employment (November 1992 through May 1993) and that he was aware of acts of
prostitution occurring on the premises.
She stated that she advised him that she had observed acts of
prostitution and that while Mentzel said such conduct was prohibited, he took
no action to stop it beyond telling the dancers not to engage in prostitution
on the premises. Vandekolk testified
that the prostitution began in December 1992 or January 1993, and that sex acts
frequently occurred on the premises.
She testified that Mentzel charged the dancers $25 to leave the premises
during their shifts.
A
dancer, Jody Bettin-Floyd, testified that she was employed at The Lagoon for
all or part of the following months in 1993:
January, February, April, June and July. She testified that she wanted to work at The Lagoon because her
"regular customers," whom she described as persons interested in her
services as a prostitute, were from that area.
She testified that Mentzel understood that she engaged in prostitution
while employed by him and that she committed such acts on the premises every
time she worked and while Mentzel was at the club. She testified that Mentzel knew she left the premises to perform
acts of prostitution and that, although she signed a contract acknowledging
that she would not commit acts of prostitution on the premises, Mentzel told
her the contract did not mean anything.
On one occasion, Mentzel told her that certain customers wanted
"dates" with her, which she took to mean prostitution encounters, and
pointed her toward three men in the club.
Bettin-Floyd
also testified about accepting tips from customers while working at The Lagoon. In the course of tipping her, customers
often had contact with her genital area.
Mentzel was aware of the manner in which she accepted tips from
customers. She also testified that
Vandekolk let customers fondle her breasts on the premises.
Bettin-Floyd
testified that she began working as an agent for the Fond du Lac
sheriff in June 1993. While the
authorities were aware that she had committed acts of prostitution, she did not
tell them that she committed such acts in The Lagoon in April 1993. Law enforcement directed her not to engage
in any acts of prostitution while acting as their agent.
On
June 15, 1993, Bettin-Floyd went to The Lagoon in an attempt to get Mentzel to
agree that she could "do business" in the bar. While Mentzel initially said "no
dating" of customers, he later said that dating would be all right but
that she could not perform any sex acts at the bar. On July 2, 1993, Bettin-Floyd inquired of Mentzel if she could
"do business" from the bar; Mentzel did not tell her she could not. According to Bettin-Floyd, "do
business" meant engaging in prostitution.
She believed Mentzel understood what she meant.
Bettin-Floyd
testified that while she was acting as an informant and wired to record her
conversations with Mentzel, she did not engage in any acts of prostitution on
the premises. However, when she was not
wired, she did engage in acts of prostitution.
As far as Bettin-Floyd was aware, it was all right with Mentzel to set
up dates with customers. However, she
acknowledged that Mentzel made money from cover charges for dancing and drinks,
not prostitution.
Deputy
Sheriff Ian Nishimoto testified that he went to The Lagoon undercover and was
solicited by a dancer for prostitution.
After he left the premises with his partner and the dancer, the party
traveled to a house down the street owned by Mentzel in which there were many
beds and little other furniture.
Mentzel then appeared on the premises and yelled at them that there was
to be no prostitution. Sheriff Harry
Sokel testified that on one occasion, he arranged "a date" with two
dancers and that Mentzel did not get involved in the negotiations.
Detective
Joseph Wichman testified that in April 1993, he saw Vandekolk expose her
breasts for a fee and that prostitution was solicited on the premises. He acknowledged his awareness that Mentzel
was having difficulty keeping the dancers on the premises and that they often
went across the street to procure alcohol and cigarettes. Mentzel denied to Wichman that he knew
prostitution was occurring on the premises.
Mentzel
testified that he had no personal knowledge of acts of prostitution occurring
on his premises. He stated that he
required the dancers to sign a contract specifying that they would not engage
in sex acts on the property. Mentzel
testified that he did not hear or see any solicitation for prostitution and had
he done so, he would have fired the involved dancer. He testified that the club is well-lit and that he never saw any
sex acts occur on the premises, countering Bettin-Floyd's testimony that sex
acts occurred there with great frequency.
Mentzel fined the dancers for leaving the premises to deter them from
going across the street to purchase alcohol and cigarettes. He testified that the fine was not related to
prostitution.
Mentzel
testified that when Bettin-Floyd mentioned "doing business," he
believed she was referring to customers who came to the club specifically to
see her dance. Mentzel testified that
when he told Bettin-Floyd "no dating," he meant she should not
"get personal" with the customers.
Mentzel testified that he did not believe that accepting tips in the
manner described by Bettin-Floyd made him liable under the law for prostitution
occurring on the premises. He testified
that the house down the block was used as a dormitory for out-of-town dancers,
not as a prostitution site.
The
information charged Mentzel with one count of intentionally allowing the
continued use of The Lagoon as a place of prostitution contrary to
§ 944.34(2), Stats. Section 944.34 provides:
Whoever
intentionally does any of the following is guilty of a Class D felony:
(1) Keeps
a place of prostitution; or
(2) Grants the use or allows the continued use of a
place as a place of prostitution.
Mentzel
requested an entrapment instruction.
The trial court declined to give it.
A
trial court may decline to give an entrapment instruction if the instruction is
not reasonably required by the evidence.
State v. Hilleshiem, 172 Wis.2d 1, 9, 492 N.W.2d 381, 384
(Ct. App. 1992), cert. denied, 113 S. Ct. 3053 (1993). When an appeal is taken from a refusal to
give a requested instruction, "we will view the evidence in the most
favorable light it will reasonably admit from the standpoint of the accused." Id. at 9-10, 492 N.W.2d at
384.
Entrapment
is a defense when the "evil intent" and the "criminal
design" of the offense originated in the government agent's mind, and the
defendant would not have committed the offense but for the urging of the
government. Id. at 8, 492
N.W.2d at 384. To establish entrapment,
the defendant must show by a preponderance of the evidence that he or she was
induced to commit the crime. Id. That a government agent furnished the
defendant with an opportunity to commit the crime does not by itself constitute
entrapment. Id. at 9, 492
N.W.2d at 384. Entrapment exists only
if the agent "used excessive incitement, urging, persuasion, or
temptation, and prior to the inducement, the defendant was not already
predisposed to commit the crime." Id. The law does not prohibit "some
inducement, encouragement, or solicitation in order to detect
criminals." Id. "Because the defense of entrapment
allows a person, who under normal circumstances would be guilty, to go free, it
is disfavored in the law and should not be entertained lightly by the
courts." Id.
Mentzel
argues that the trial court should have granted his request for an entrapment
instruction, and that the following facts support his entrapment defense. He did not knowingly allow The Lagoon to be
used as a place of prostitution and did not witness and was not aware that
dancers were soliciting or committing acts of prostitution at The Lagoon before
a dancer (Edwyna Smith) was arrested on April 29, 1993. Mentzel fired Smith after her arrest. Mentzel was not aware that Vandekolk was
baring her breasts or soliciting undercover officers. Mentzel never witnessed Bettin-Floyd commit an act of
prostitution at The Lagoon and his discussions with her in June and July 1993
did not refer to prostitution at The Lagoon.
If any illicit activities occurred at The Lagoon, they occurred when
Mentzel was not present and without his knowledge and approval.
Viewing
the evidence in the most favorable light it will reasonably admit from
Mentzel's standpoint, we conclude that Mentzel did not show by a preponderance
of the evidence that he was induced to permit The Lagoon to be used as a place
of prostitution. See id.
at 8, 492 N.W.2d at 384. The fact that
Bettin‑Floyd entered The Lagoon on two occasions in 1993 (June 15
and July 2) to record conversations with Mentzel regarding prostitution is not
sufficient to establish excessive inducement.
The evidence does not suggest that Bettin-Floyd did anything other than
furnish Mentzel with an opportunity to permit his establishment to be used for
prostitution. Bettin-Floyd broached the
subject with Mentzel and Mentzel facilitated her request. As we have already stated, such "does
not by itself constitute entrapment."
Id. at 9, 492 N.W.2d at 384.
Mentzel
claims that he never authorized prostitution on his premises, was unaware if it
occurred and, if it did occur in the form of tipping the dancers, was mistaken
as to whether the conduct was illegal.
These assertions do not establish that Bettin-Floyd, as the government's
agent, "used excessive incitement, urging, persuasion, or
temptation ..." in an attempt to get Mentzel to permit prostitution at The
Lagoon. See id.
Additionally,
we do not agree with Mentzel that the record substantiates that Bettin-Floyd
committed an act of prostitution on the premises after she spoke with Mentzel
on June 15. In the course of
cross-examination, Bettin-Floyd was asked whether while acting as an informant
she committed an act of prostitution at The Lagoon. Bettin-Floyd said she had not.
She stated that when she was acting as an informant, she was wired and
did not work on those nights. She did,
however, testify that she went into The Lagoon when she was not wired and
committed an act of prostitution.
However, no effort was made to clarify the date on which Bettin-Floyd
committed prostitution, and the record does not substantiate Mentzel's forceful
assertion that she committed an act of prostitution a day or two after June 15,
the first occasion on which she spoke with Mentzel in her capacity as an
informant. While Bettin-Floyd has
admitted to committing acts of prostitution at The Lagoon, the record does not
substantiate that such acts occurred after she began acting as an informant.
As
the State points out, even if Bettin-Floyd did commit an act of prostitution at
The Lagoon after she spoke with Mentzel about soliciting prostitution from
there, that fact alone would not have required an instruction on
entrapment. Bettin-Floyd and Vandekolk
testified that acts of prostitution were ongoing at The Lagoon since shortly
after it opened. The charge against
Mentzel was intentionally allowing the continued use of The Lagoon as a place
of prostitution between January 19 and June 30, 1993, contrary to
§ 944.34(2), Stats. Therefore, the fact that Bettin-Floyd may
have engaged in prostitution on the premises subsequent to June 15 does not
suffice as some form of inducement with regard to the acts which allegedly
occurred prior to that date. We fail to
see how the commission of a crime subsequent to the alleged inducement can
itself be an inducement.
Mentzel
apparently argues that Bettin-Floyd's commission of prostitution subsequent to
her first recorded meeting with Mentzel was outrageous conduct warranting
dismissal of the charges against him on due process grounds.[1] For a defendant to properly assert the
"outrageous governmental conduct" defense, he or she must assert the
violation of a specific constitutional right and demonstrate that prosecution
of the defendant violates "fundamental fairness" and shocks "the
universal sense of justice" mandated by the Due Process Clause of the
Fifth Amendment. See State
v. Hyndman, 170 Wis.2d 198, 208-09, 488 N.W.2d 111, 115 (Ct. App. 1992)
(quoted source omitted).
Mentzel
does not identify a specific constitutional right violated by Bettin-Floyd's
allegedly outrageous conduct.
Therefore, we need not address this argument further except to comment
that Bettin-Floyd was instructed by her law enforcement contacts not to commit
prostitution and she apparently disobeyed this admonition. Additionally, there was testimony at trial
that acts of prostitution were ongoing at The Lagoon and that Bettin-Floyd was
not the only dancer to solicit or engage in prostitution. We conclude that the conduct which Mentzel
alleges was outrageous "does not amount to a violation of fundamental
fairness that shocks the universal sense of justice." State v. Steadman, 152 Wis.2d
293, 302, 448 N.W.2d 267, 271-72 (Ct. App. 1989).
Finally,
law enforcement officials testified at trial that they suspected prostitution
was occurring at The Lagoon. These
allegations, some of which were confirmed when undercover officers were
solicited at The Lagoon, were a legitimate reason to begin investigating the
club and were unrelated to Bettin‑Floyd's allegedly outrageous conduct.
Mentzel
next argues that the jury instruction for his alleged violation of
§ 944.34(2), Stats., posed a
unanimity problem. Specifically, he
complains that he was denied a unanimous verdict when the circuit court
instructed the jury that it could find him guilty of the crime of keeping a
place of prostitution if he either granted the use or allowed the
continued use of his premises for that purpose, without further requiring the
jury to unanimously agree on one or the other use of the premises. See id.
In
analyzing Mentzel's claim, we employ the analysis set out in Manson v.
State, 101 Wis.2d 413, 304 N.W.2d 729 (1981). In considering Mentzel's contention that the instruction deprived
him of a unanimous jury verdict, we read § 944.34(2), Stats., to determine whether the
statute defines two offenses or one offense with alternative means of
committing the offense. Manson,
101 Wis.2d at 419, 304 N.W.2d at 732.
If the statute defines two offenses, jury unanimity as to each offense
is required to convict the defendant of each offense. Id.
However, if the statute creates only a single offense, then we must
determine whether the jury may be instructed in the disjunctive without being
instructed that unanimity is required as to each alternative. Id.
Determining
whether § 944.34(2), Stats.,
defines a single offense or two separate offenses depends upon legislative
intent. Manson, 101
Wis.2d at 422, 304 N.W.2d at 734. We
consider the following factors in assessing legislative intent: (1) the statute's language; (2) the
statute's legislative history and context; (3) the nature of the proscribed
conduct; and (4) the appropriateness of multiple punishment for the
conduct. Id.
That
the prohibited conduct appears in the same subsection of § 944.34, Stats., suggests that § 944.34(2)
encompasses a single idea: it is
illegal to allow a place to be used for prostitution. "Grants the use" and "allows the continued
use" are conceptually similar. See
Manson, 101 Wis.2d at 427, 304 N.W.2d at 736. Similarly, the nature of the proscribed
conduct is similar, indicating a legislative intent that the conduct prohibited
by § 944.34(2)—the use of premises for prostitution—is one offense which
can be committed in two ways. See
Manson, 101 Wis.2d at 426, 304 N.W.2d at 736.
We
need not examine the legislative history of § 944.34(2), Stats., to determine whether one or two
offenses are contemplated. In Johnson
v. State, 76 Wis.2d 672, 251 N.W.2d 834 (1977), our supreme court noted
that "[p]roof of either ["allows" or "grants"]
constitutes proof of a violation [of the statute].” Id. at 678, 251 N.W.2d at 837. Similarly, the comments to Wis J I—Criminal 1571 recognize that
§ 944.34(2) contains "two alternatives" for committing the same
offense. Wis J I—Criminal 1571 at 2.
Mentzel
also argues that the jury should have been given a mistake instruction. Section 939.43(1), Stats., provides:
"An honest error, whether of fact or of law other than criminal
law, is a defense if it negatives the existence of a state of mind essential to
the crime." Mentzel testified that
he did not believe that a patron coming in contact with the dancer's genital area
while tipping her constituted "an act of prostitution." Mentzel claims that he was operating under a
mistake of fact, i.e., a mistake as to what constitutes allowable conduct for
dancers under Fond du Lac County's cabaret ordinance. The trial court denied Mentzel's request for Wis J I—Criminal 770, the mistake
instruction.
As
we have already stated, a trial court may decline to give an instruction if the
instruction is not reasonably required by the evidence. See Hilleshiem, 172
Wis.2d at 9, 492 N.W.2d at 384. We view
the evidence in the most favorable light it will reasonably admit from the
defendant's standpoint. Id.
at 9-10, 492 N.W.2d at 384.
Prostitution
is defined under § 944.30(5), Stats.,
as "commit[ting] or offer[ing] to commit or request[ing] to commit an act
of sexual contact for anything of value."
Sexual contact is defined as "any intentional touching ... either
directly or through clothing by the use of any body part or object, of ...
intimate parts if that intentional touching is either for the purpose of
sexually degrading; or for the purpose of sexually humiliating ... or sexually
arousing or gratifying ...."
Section 940.225(5)(b), Stats.
Mentzel
was not mistaken with regard to a fact; he was aware that the dancers accepted tips
in the manner described. Rather, he
claims to have been mistaken as to whether such conduct constituted
prostitution—a criminal offense.
However, such does not implicate the defense of mistake. A defendant who correctly perceives the
operable facts but does not believe that those facts amount to a violation of
the criminal law is not entitled to a mistake instruction. See State v. Britzke,
108 Wis.2d 675, 683, 324 N.W.2d 289, 292 (Ct. App. 1982), aff'd, 110
Wis.2d 728, 329 N.W.2d 207 (1983). It
is not a defense to be unaware that conduct is criminally punishable. Id. "A mistake of fact, then, is where one makes an erroneous
perception of the facts which actually exist." State v. Bougneit, 97 Wis.2d 687, 693, 294 N.W.2d
675, 679 (Ct. App. 1980). The trial
court did not err in declining to give the mistake instruction because the
evidence did not reasonably require it.[2]
Finally,
Mentzel argues that the trial court erroneously limited his cross-examination
of Bettin-Floyd and Fond du Lac County Sheriff's Department Sergeant Mark
Strand regarding what constitutes lewd and lascivious conduct and whether
tipping an exotic dancer violated the criminal law or the County's cabaret
ordinance.
Defense
counsel asked Strand whether tipping a dancer violated the criminal law. Strand testified he was not aware that was
true. At that point, the trial court
interrupted and ruled that such inquiries invaded the province of the court to
instruct the jury on the law. We see no
error in the trial court's ruling.
Mentzel did not qualify Strand as an expert who could express an opinion
regarding the meaning of the criminal law.
See § 907.02, Stats.,
1991-92 (a witness qualified as an expert may testify in the form of an
opinion). It is the province of the
trial court to instruct the jury and to provide the jury with the law to be
applied to the case. See Wis J I—Criminal 100. Finally, the trial court has discretionary
authority to control "the mode and order of interrogating witnesses and
presenting evidence ...." Section
906.11(1), Stats.
Mentzel
also complains that the trial court circumscribed his examination of
Bettin-Floyd regarding when and how many times she allegedly committed acts of
prostitution at the club. In an attempt
to identify one specific act of prostitution, defense counsel asked
Bettin-Floyd to identify one person with whom she had sexual contact at The
Lagoon. The State objected on relevance
grounds and the trial court sustained the objection. Mentzel also complains that the trial court precluded him from
examining Bettin‑Floyd regarding inconsistencies between her testimony at
trial and at the preliminary examination.
On
direct examination, Bettin-Floyd testified that when she referred to
"customers," she meant people who came to see her dance and with whom
she spent time other than at work. She
engaged in acts of prostitution with some of her customers. On cross-examination, defense counsel wanted
to impeach Bettin-Floyd with testimony she gave at the preliminary examination
as to what she meant when she talked to Mentzel about
"customers." At the
preliminary hearing, Bettin-Floyd testified that by "customers," she
meant people who came to see her dance, some of whom engaged in acts of
prostitution with her. Even though the
trial court disallowed this line of inquiry at trial, defense counsel asked
Bettin-Floyd whether she remembered testifying at the preliminary examination that
she entertained customers by dancing rather than by prostitution. Bettin-Floyd responded that although she did
not consider herself a prostitute, she had committed acts of prostitution. She acknowledged that Mentzel had hired her
to be a dancer, not a prostitute.
At
each court appearance, Bettin-Floyd admitted committing acts of prostitution
with Lagoon customers. We see no error
in the trial court's decision to preclude impeachment of otherwise consistent
testimony.
Mentzel
also argues that the trial court improperly curtailed defense questioning of
Bettin-Floyd about her knowledge of Vandekolk's solicitation activities at The
Lagoon when Mentzel was not present.
Bettin-Floyd testified that the level of prostitution was pretty steady
regardless of whether Mentzel was on the premises. Mentzel claims that his inability to question Bettin-Floyd about
Vandekolk's solicitation activities deprived him of the opportunity to present
a significant part of his defense, i.e., that solicitation for or acts of
prostitution occurred at The Lagoon in his absence and without his
knowledge. However, Bettin-Floyd did
testify that she never heard Mentzel direct Vandekolk to commit any acts of
prostitution and she did not know whether he had ever done so. We are not convinced that the trial court
precluded the development of this defense.
Mentzel
also complains that the trial court limited questioning of Bettin‑Floyd
regarding her recollection of tape recorded conversations with Mentzel. Mentzel argues that these discussions were
probative as to his knowledge and state of mind about Bettin-Floyd's
activities. Mentzel does not adequately
demonstrate on appeal why the trial court erred.
We
conclude that the foregoing evidentiary rulings were properly made in the
exercise of the trial court's discretion.
See State v. Lindh, 161 Wis.2d 324, 348, 468 N.W.2d
168, 176 (1991) (evidentiary rulings are within the trial court's discretion).
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] For purposes of
this argument, we will assume that Bettin-Floyd did so even though the evidence
is not clear on the point.
[2] Mentzel's
proposed mistake instruction bears out his erroneous understanding of the
necessity for the instruction. His proposed
instruction stated: "There is
evidence that at the time of the alleged offense the defendant believed that
allowing dancers to accept tips from customers who touched them was not in
violation of the criminal law."
This statement indicates a mistake regarding the criminal law, not a
mistake of fact, State v. Dahlk, 111 Wis.2d 287, 305, 330 N.W.2d
611, 621 (Ct. App. 1983), and is not cognizable under § 939.43(1), Stats.