COURT OF APPEALS DECISION DATED AND RELEASED February 21, 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. |
No. 95-0243-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANIEL MAHNKE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Waukesha County: KATHRYN W. FOSTER, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER CURIAM. Daniel Mahnke appeals
from a judgment of conviction of second-degree sexual assault of a child, as a
habitual criminal, and an order denying his postconviction motion. He argues that his ability to present a
defense was hampered by evidentiary rulings by the trial court and that the
sentence was unduly harsh. We reject
his claims and affirm the judgment and the order.
Mahnke was charged with the
sexual assault of a fourteen-year-old girl who was babysitting the children of
Mahnke's girlfriend. Mahnke went to his
girlfriend's house and was to relieve the babysitter. The victim testified that Mahnke kissed her, rubbed her breast,
laid on top of her, kissed her belly button, and partially removed her bra and
suckled her breast. After returning
home, the victim called a friend and told him of the assault. She then told her mother and the police were
called. Mahnke testified that nothing
sexual occurred between himself and the babysitter.
Mahnke first argues that
the evidence was insufficient to support the conviction. However, in doing so he concedes that the
existing record supports the conviction with the only issue for the jury being
one of credibility. His principal
contention is that the record would have been insufficient if the trial court
had not precluded the admission of evidence which would have served to impeach
the victim or provide an alternative explanation for her conduct following the
alleged assault.
Mahnke's argument
muddles the standard of review. We do
not consider whether evidence which was not admitted renders other evidence
insufficient. Our review of the
sufficiency of the evidence is to determine whether the evidence, viewed most
favorably to the State and the conviction, is so insufficient in probative
value and force that it can be said as a matter of law that no trier of fact,
acting reasonably, could have found guilt beyond a reasonable doubt. State v. Ray, 166 Wis.2d 855,
861, 481 N.W.2d 288, 291 (Ct. App. 1992).
We defer to the jury's function of weighing and sifting conflicting
testimony. See State v.
Wilson, 149 Wis.2d 878, 894, 440 N.W.2d 534, 540 (1989).
We need not recite in
detail the trial testimony. As Mahnke
recognizes, the victim's testimony, accepted as credible by the jury, was more
than sufficient to support the conviction.
We turn to consider
whether the trial court erroneously exercised its discretion in excluding
evidence Mahnke sought to introduce. A
circuit court has broad discretion in determining the relevance and
admissibility of proffered evidence. State
v. Brecht, 143 Wis.2d 297, 320, 421 N.W.2d 96, 105 (1988). We will not find an erroneous exercise of
discretion if any reasonable basis exists for the decision. State v. Lindh, 161 Wis.2d
324, 361 n.14, 468 N.W.2d 168, 181 (1991).
Mahnke sought to impeach
the victim's testimony that she had no relationship with her father and had not
seen him until the Saturday before the trial by calling a woman who would
testify that she had seen the victim and her father together at a restaurant
about a week after the assault. He also
wanted to introduce evidence that the victim was concerned about possibly being
pregnant as evidence of an alternative cause for "assault symptoms"
the victim exhibited after the assault.[1] The trial court denied admission of this
evidence. Mahnke argues that the ruling
violates his Sixth Amendment right of confrontation. We need not consider Mahnke's constitutional claim because it is
raised for the first time on appeal. See
State v. Sharp, 180 Wis.2d 640, 647‑48 n. 2, 511 N.W.2d
316, 320 (Ct. App. 1993) (unless an objection is made on confrontation grounds
at trial, the issue is waived).
The trial court
correctly excluded the testimony that the victim and her father had been
seen together a week after the assault.
It was extrinsic evidence offered solely for the purpose of attacking
the victim's credibility and excluded by § 906.08(2), Stats.[2] Under § 906.08(2), the defense could only
cross-examine the victim as to the specific instance. Even if we were to consider Mahnke's claim that his right of
confrontation was violated, he is not entitled to relief. A defendant's right of confrontation is not
denied when evidence is properly excluded under § 906.08(2). State v. Olson, 179 Wis.2d
715, 724-25, 508 N.W.2d 616, 620 (Ct. App. 1993).
The trial court ruled
that evidence of the victim's concern that she might be pregnant was irrelevant
and excluded under the rape shield law, § 972.11(2)(b), Stats.
The relevancy ruling was correct in that the testimony indicated that
the victim experienced emotional changes right after the assault and her
concern about being pregnant occurred only two to three weeks before trial.[3] Concerns about being pregnant were not
relevant to explain behavior that occurred after the assault.
Moreover, the evidence
was not admissible under any exception in the rape shield law.[4] In his description of the relevancy of the
evidence, Mahnke admits that it demonstrates that the victim was "a girl
who at a very young age is potentially sexually active." This is the very type of evidence that the
rape shield law is designed to exclude.
See In re Michael R. B., 175 Wis.2d 713, 727, 499 N.W.2d
641, 647 (1993) (the law protects victims of sexual assault from themselves
becoming the focus of scrutiny during trial).
The rape shield law renders the sexual activity of the victim or the
possible existence of a pregnancy inadmissible.[5] Even the confrontation clause does not
require the admission of such evidence.
See State v. DeSantis, 155 Wis.2d 774, 793-94, 456
N.W.2d 600, 609 (1990).
Finally, Mahnke argues
that his ten-year sentence was unduly harsh.
Sentencing is committed to the discretion of the sentencing court and
appellate review is limited to determining whether there was an abuse of discretion. State v. J.E.B., 161 Wis.2d
655, 661, 469 N.W.2d 192, 195 (Ct. App. 1991), cert. denied, 503 U.S.
940 (1992). Appellate courts have a
strong policy against interference with that discretion. Id. Thus, we begin with the presumption that the trial court acted
reasonably and the appellant must show some unreasonable or unjustifiable basis
in the record for the sentence complained of.
State v. Petrone, 161 Wis.2d 530, 563, 468 N.W.2d 676,
689, cert. denied, 502 U.S. 925 (1991).
It may be a misuse of
discretion if the sentencing court places too much weight on any one factor in
the face of contravening considerations.
State v. Spears, 147 Wis.2d 429, 446, 433 N.W.2d 595, 603
(Ct. App. 1988). However, the weight to
be accorded to particular factors in sentencing is for the sentencing court,
not the appellate court, to determine. Id. We may not substitute our preference for a
sentence merely because had we been in the sentencing court's position we would
have meted out a different sentence. Id.
Mahnke argues that the
sentence is harsh because he is innocent and that the trial court failed to
recognize that the victim was not telling the absolute truth. We have reviewed the trial court's
sentencing remarks and do not find undue emphasis placed on its perception that
Mahnke was evasive and vague in his answers regarding the offense. Rather, the sentence was based on
appropriate considerations, including the nature of the offense and its effect
on the victim, Mahnke's past record of criminal offenses, positive aspects of
Mahnke's family and employment history, Mahnke's rehabilitative needs, and the
need to protect the public. We reject
Mahnke's contention that the reasons for the sentence have not been fully set
forth.
A sentence may be
excessive when it shocks public sentiment and violates the judgment of
reasonable people concerning what is right and proper under the
circumstances. Spears,
147 Wis.2d at 446, 433 N.W.2d at 603.
Nothing here persuades us that the sentence is unduly harsh.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] There was testimony at trial that after the assault the victim's psychological and emotional tenor changed.
[2]
Section 906.08(2), Stats.,
provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than conviction of crimes as provided in s. 906.09, may not be proved by extrinsic evidence. They may, however, subject to s. 972.11(2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.
[3] An offer of proof was made by the testimony of the victim's mother that the victim was concerned before trial that she was pregnant. The assault occurred on January 8, 1994. Trial commenced on March 29, 1994.
[4] Mahnke does not argue that an exception under § 972.11(2)(b), Stats., applies. The exception for a specific instance of sexual conduct showing the source of pregnancy does not apply because the degree of sexual assault or extent of injury suffered was not at issue. See § 972.11(2)(b)2.
[5] Mahnke's brief argues that the victim's symptoms "could very well have stemmed from the fact that she was pregnant, which fact was shown as a matter of physiological fact later." The record does not support appellate counsel's representations that the victim was in fact pregnant. Counsel's representation nears the edge of a fair and truthful portrayal of the record.