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COURT OF APPEALS DECISION DATED AND RELEASED February 13, 1997 |
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. 95-2159-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANTHONY STANKUS,
Defendant-Appellant.
APPEAL from judgments of
the circuit court for Crawford County:
GEORGE S. CURRY, Judge. Affirmed.
Before Dykman, P.J.,
Roggensack and Deininger, JJ.
PER
CURIAM. Anthony Stankus appeals from three judgments of
conviction.[1] We affirm.
A jury convicted Stankus
of three felonies. He raises four
issues on appeal.
Stankus first argues
that it was plain error under § 901.03(4), Stats., for the circuit court to prohibit recross examination
of most witnesses at the trial. To be
plain error, the error must be so fundamental that a new trial or other relief
must be granted. State v. Vinson,
183 Wis.2d 297, 303, 515 N.W.2d 314, 317 (Ct. App. 1994). The error must be both obvious and
substantial, or grave, and the rule is reserved for cases where there is the
likelihood that the error has denied a defendant a basic constitutional right. Id. We reject the argument.
Stankus has not shown how the lack of recross examination prejudiced
him. He does not identify specific
questions he would have asked of any witness, or how the answers would have
helped his case.
Stankus next argues that
the court erred by allowing certain testimony by Leslie Charlton, a lay
witness, that should have been given only by an expert witness. He also characterizes certain testimony as
inadmissible hearsay. However, Stankus
did not object to any of this testimony at the time; and therefore, he waived
those claims of error. Section
901.03(1)(a), Stats. He does not argue that these were plain
errors.
The third issue he
raises is whether the circuit court erred by admitting a certain photograph
into evidence. One of the counts on
which Stankus was convicted was exposing a child to harmful material, contrary
to § 948.11(2)(a), Stats. Stankus argued to the circuit court that the
photograph does not meet the statutory definition of nudity provided in §
948.11(1)(d), Stats. As relevant to this photograph, the
definition states that nudity is the showing of the female breast with less
than a fully opaque covering of "any portion ... below the top of the
nipple." The photograph shows a
woman with shirt and jacket open to the waist, without exposing her
nipples. Stankus argues that because
the entirety of the breast below the top of the nipple is not exposed, it does
not meet the definition. We disagree. As we read the definition, it includes any
part of the breast which is below a horizonal line drawn parallel to the top of
the nipple. The photograph comes within
the meaning of § 948.11(1)(d).
Finally, Stankus argues
that the circuit court committed prejudicial error when it made a comment to
the jury about the prosecutor's impending wedding. Specifically, near the close of testimony, when dismissing the
jurors for dinner, the court made comments to the effect that the case had to
be completed that day, in part because the prosecutor was getting married the
following day. Stankus's attorney
apparently expressed a concern about this comment. After instructions, but before deliberation, the court advised
the jury that its comment did not mean they had to "rush to get a judgment
tonight," that they should not rush to judgment, and should deliberate as
long as reasonably necessary to reach a fair and just verdict.
Stankus argues the
court's comment was prejudicial in two ways.
First, by suggesting that the jury was obligated to deliberate quickly
and finish that night. We conclude that
any potential prejudice was cured by the judge's additional instruction before
deliberation. Stankus also argues the
comments were prejudicial because they suggest that completing the case with a
conviction would be "a nice wedding gift to the prosecutor." We reject the argument. Any potential concerns raised by the trial
court's attempt at levity, were cured by its instruction.
By the Court.—Judgments
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.