COURT OF APPEALS DECISION DATED AND RELEASED March 13, 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. 95-0744-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
NORBERT J. MADAY,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Winnebago County: WILLIAM E. CRANE, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER CURIAM. Norbert J. Maday appeals
from a judgment of conviction of three counts of second-degree sexual assault
and one count of intimidation of a victim, and from an order denying his motion
for postconviction relief. He contends
that the evidence was insufficient to support the intimidation of a victim
conviction, that evidence was improperly excluded which would have impeached
testimony by one of the victims regarding a prior act of sexual misconduct, and
that the sentence was the result of an erroneous exercise of discretion. We conclude that the evidence was
sufficient, that the evidentiary ruling was proper and that sentencing
discretion was properly exercised. We
affirm the judgment and the order.
The convictions arose
out of sexual contact with two young boys in the care of Maday, a Roman
Catholic priest, at a recreational retreat facility in Oshkosh in June or July
1986. The assaults were not reported
until 1992.
The intimidation
conviction is based on the testimony of one victim that after the assault Maday
told the boy that if he told anyone, Maday would kill the boy's older
brother. Maday argues that the victim's
testimony alone is "the scantiest evidence that one could possibly
find."
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 will not substitute our evaluation of the evidence for that of the
jury. State v. Barksdale,
160 Wis.2d 284, 290, 466 N.W.2d 198, 201 (Ct. App. 1991).
With regard to the
intimidation of a victim, the State was obligated to prove beyond a reasonable
doubt that there was a victim of a crime, the defendant attempted to prevent or
dissuade the victim from reporting the crime, the defendant acted knowingly and
the defendant's acts were accompanied by threats of force or violence against
another. Section 940.45, Stats., 1985-86. Maday does not challenge the sufficiency of
the evidence regarding the sexual assault.
Thus, the evidence established that Maday's threat was made to a crime
victim with the intent to deter the victim from reporting the crime.
Maday challenges nothing
more than the victim's credibility that the threat was made. The jury, not a reviewing court, determines
the credibility of witnesses and the weight of their testimony. See State v. Wachsmuth, 166
Wis.2d 1014, 1023, 480 N.W.2d 842, 846 (Ct. App. 1992). We will not disturb the jury's credibility
determinations on appeal unless we determine that the testimony was incredible
as a matter of law. Id. Evidence is incredible only when it is in
conflict with the uniform course of nature or with fully established or
conceded facts. Haskins v. State,
97 Wis.2d 408, 425, 294 N.W.2d 25, 36 (1980).
We reject Maday's implication that the evidence was patently incredible
because it is "laughable" to believe that he would be of a mindset to
kill another person or because the victim's story was "far
fetched." Such a threat, even
coming from a Catholic priest, is not improbable, particularly in light of the
assaults that occurred. We need not
speculate as to whether the threat was real enough so as to buy the victim's
silence for all the ensuing years. The
victim's testimony by itself was sufficient to establish guilt beyond a
reasonable doubt on the intimidation charge.
See Wachsmuth, 166 Wis.2d at 1024, 480 N.W.2d at
846-47.
At trial the second
victim testified about an incident that occurred in the spring of 1986, before
his visit with Maday to the retreat facility.
The incident occurred in the rectory of the Chicago, Illinois church
where Maday resided. The victim
indicated that Maday sexually assaulted him while the two watched a movie called "Trick or Treat." The victim explained that the movie had been
rented from a video store. Maday sought
to introduce testimony that the official records of Warner Home Video indicated
that the movie "Trick or Treat" was not released to video retailers
until October 1987. The trial court
excluded this testimony as violating the prohibition in § 906.08(2), Stats., against the use of extrinsic
evidence to impeach witness credibility.
McClelland v. State, 84 Wis.2d 145, 158‑59, 267
N.W.2d 843, 849-50 (1978).
Maday does not challenge
the admission of the other acts evidence.
Nor does he develop a constitutional challenge to the trial court's
exclusion of the evidence regarding the video release date. No objection was made at trial on
constitutional grounds.
Section 906.08(2), Stats., provides that "[s]pecific
instances of the conduct of a witness, for the purpose of attacking or
supporting the witness's credibility ... may not be proved by extrinsic
evidence." McClelland
holds that impeachment of a witness on the basis of collateral facts introduced
by extrinsic testimony is forbidden. Id.
at 159, 267 N.W.2d at 849-50.
Maday attempts to
distinguish McClelland on the grounds that the extrinsic evidence
there was offered to impeach the defendant and here it is offered to show that
the victim was completely wrong about the prior incident and therefore the liar
the defense claimed he was. However,
Maday ignores that the evidence about the video release date was
collateral. "A matter is
collateral if the fact to which error is predicated could not be shown in
evidence for any purpose independently of the contradiction." State v. Olson, 179 Wis.2d
715, 724, 508 N.W.2d 616, 619 (Ct. App. 1993).
The evidence about the movie's video release date was only admissible to
contradict the victim's recounting of a prior occurrence, a collateral matter
itself. The evidence was only
admissible for the limited purpose of testing the victim's credibility. Thus, like the evidence examined in McClelland,
it was of a collateral nature and barred by § 906.08(2), Stats.
McClelland, 84 Wis.2d at 160, 267 N.W.2d at 850. We are bound by McClelland and
uphold the trial court's exclusion of the evidence.
Maday was sentenced to
serve two consecutive and one concurrent ten-year prison terms for the sexual
assaults. He was sentenced to a
five-year consecutive term on the intimidation of a witness conviction, but
that sentence was stayed and a five-year term of probation imposed consecutive
to parole. While Maday concedes that
the sentencing court adequately analyzed the appropriate factors required in
sentencing, he contends that the sentence is excessive and harsh as
"commensurate to a death penalty" because he will probably be seventy
years old when released from prison. He
also contends that the sentence is harsh because although he maintains his
innocence, the conduct for which he was convicted amounted to "attempted
masturbation at worse" and did not escalate into more intrusive forms of
behavior. He suggests that the ends of
justice will be accomplished by a sentence reduced to a term of seven to ten
years.
Sentencing is a
discretionary act and this court presumes that the sentencing court acted
reasonably. State v. Scherreiks,
153 Wis.2d 510, 517, 451 N.W.2d 759, 762 (Ct. App. 1989). This court will honor the strong policy against
interfering with the discretion of a sentencing court unless no reasonable
basis exists for its determination. See
id. 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. State v. Spears,
147 Wis.2d 429, 446, 433 N.W.2d 595, 603 (Ct. App. 1988). However, 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.
Maday was fifty-six
years old at the time of sentencing.
The court acknowledged this. The
court also considered Maday's character, his need for close rehabilitative
control and the need to protect the public.
Although the court was most influenced by the serious nature of the
offenses because Maday violated a position of trust with the young boys, we
reject Maday's contention that the court was assessing blame to Maday for all
the problems his victims suffered. The
sentence was based on the facts of record and proper considerations. It is less than the maximum and not so great
under the circumstances that it would shock the public conscience. The mere fact that Maday may be quite
elderly when released from prison does not mean 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.