PUBLISHED OPINION
Case No.: 95-1073-CR
95-2500-CR
Complete Title
of Case:
No. 95-1073-CR
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANTHANSIOU C. KOURTIDIAS,
a/k/a ANTHANSIOUS C. KOURTIDIAS,
Defendant-Appellant.
-----------------------------------------------------------------------------------------
No. 95-2500-CR
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANTHANSIOU C. KOURTIDIAS,
Defendant-Appellant.
Submitted on Briefs: May 8, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: November 27, 1996
Opinion Filed: November
27, 1996
Source of APPEAL Appeals from judgments and an
order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If
"Special", JUDGE: BRUCE E. SCHROEDER
so indicate)
JUDGES: Brown, Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of David M. Turim of Hickey & Turim
of Waukesha.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James e. Doyle, attorney general, and Stephen
W. Kleinmaier, assistant attorney general.
COURT OF
APPEALS DECISION DATED AND
RELEASED November
27,1996 |
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. |
Nos. 95-1073-CR
95-2500-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
No.
95-1073-CR
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ANTHANSIOU
C. KOURTIDIAS,
a/k/a
ANTHANSIOUS C. KOURTIDIAS,
Defendant-Appellant.
-----------------------------------------------------------------------------------------
No.
95-2500-CR
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ANTHANSIOU
C. KOURTIDIAS,
Defendant-Appellant.
APPEALS
from judgments and an order of the circuit court for Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Anthansiou C. Kourtidias has been convicted
of enticement of a child pursuant to § 948.07(3), Stats., and exposing his genitals to a minor pursuant to
§ 948.10, Stats. He pled guilty to the exposure charge and
the matter proceeded to jury trial on the enticement charge. The jury found Kourtidias guilty. On appeal, Kourtidias contends that the
trial court erred by: (1) admitting
“other acts” evidence, (2) allowing testimony concerning his parole status, (3)
misinstructing the jury, and (4) misusing its sentencing discretion.
We
reject all of Kourtidias's arguments, save one. We hold that the court erred by admitting evidence concerning
Kourtidias's parole, but we also hold that the error was harmless. We therefore affirm the judgments of
conviction and the order denying postconviction relief.
FACTS
The
matter proceeded to jury trial on the charge that Kourtidias attempted to
entice the victim, Nicole H., into his vehicle while exposing his sex
organ. Kourtidias's theory of defense
was that, although he exposed his sex organ, he did not do so with the intent
to entice her into his vehicle.
The
evidence of Kourtidias's encounter with Nicole tracked the allegations of the
criminal complaint. Nicole was playing with a friend in front of her
house when she noticed a man, later identified as Kourtidias, driving a blue
station wagon stop at the corner, drive a few feet and then stop again. Nicole stated that she went into her house
and told her sister that a man was looking at her. When she returned outside to play, the man stopped in front of
her house, rolled down the passenger window and said, “Is there any houses for
sale.” Nicole answered him and the man
then asked her, “Do you think we could play sometime.” When Nicole approached the car she saw that
the man had his pants pulled down and was masturbating.
Besides
the foregoing evidence, the State introduced two lines of additional
evidence. First, the State presented
evidence of two prior similar incidents involving Kourtidias. One incident occurred in 1984, the other in
1988. The State also introduced a
signed statement which Kourtidias gave to the police regarding the 1988
incident.
Second,
the State introduced the testimony of Kourtidias's parole agent who testified
that at the time of the charged incident Kourtidias was under parole
supervision as a “high risk” sex offender, that he was under a “no contact with
minors” order and that he knew a violation of the no contact order could result
in the revocation of his parole. The
court reasoned that this testimony was admissible because it established “the
power of the motivation of the accused to commit the crime ¼.”
The
jury found Kourtidias guilty of child enticement. After receiving the verdict, the trial court immediately
sentenced Kourtidias as a repeat offender to three years of imprisonment on the
exposure count to which Kourtidias had pled guilty. Later, the court sentenced Kourtidias to a consecutive ten-year
sentence on the child enticement count.
Still later, the court denied Kourtidias's motion for postconviction
relief. Kourtidias appeals.
DISCUSSION
A. OTHER ACTS
EVIDENCE
Under
the law governing other acts evidence, we will discuss not only the 1984 and
1988 prior incidents involving Kourtidias, but also the testimony of
Kourtidias's parole officer. We
appreciate that the parole officer's testimony did not specifically detail any
prior act by Kourtidias. Instead, the
testimony dealt with Kourtidias's status as a parolee. Nonetheless, the obvious message conveyed by
this evidence was that Kourtidias had engaged in prior similar criminal
conduct. For that reason we will
analyze the admissibility of this evidence under the law of “other acts.” The trial court did likewise.
In
reviewing the admissibility of evidence, the question is whether the trial
court exercised its discretion in accordance with accepted legal standards and
the facts of record. State v.
Kuntz, 160 Wis.2d 722, 745, 467 N.W.2d 531, 540 (1991). If there is a reasonable basis for the trial
court's determination, a reviewing court will uphold the ruling. Id. at 745-46, 467 N.W.2d at
540. The admissibility of other acts
evidence is controlled by a two-pronged test; the trial court must first
determine whether the evidence is admissible under an exception to § 904.04(2),
Stats. Kuntz, 160 Wis.2d at 746, 467 N.W.2d at 540. If the evidence is admissible under one of
the enumerated exceptions, the trial court must then consider whether the
probative value of the evidence is outweighed by its prejudicial impact. Id.
1.
The 1984 and 1988 Incidents
Regarding
the 1984 incident, the State introduced the testimony of the victim that when
she was fourteen years old, she was approached by Kourtidias in a vehicle as
she was walking with a friend.
Kourtidias asked her for directions.
Because he spoke softly, she approached the car. She then saw that Kourtidias was exposing
himself. After the incident, she and
her friend continued walking home but Kourtidias “kept coming back around,” and
approached the girls again, asking if they wanted a ride. The woman testified that she thought
Kourtidias was trying to entice her into his car. As a result of this incident, Kourtidias was issued a municipal
citation. The record, however, does not
indicate the nature of the charge or the disposition of the case.
Regarding
the 1988 incident, the State introduced the testimony of the victim who
testified that when she was eleven years old, Kourtidias drove by her three
times as she was walking. On the third
pass, Kourtidias stopped his car and asked the victim if she wanted a
ride. She declined the offer. She then observed Kourtidias pull up to two
other girls and open the passenger door.
She later reported this incident to the police. As a result of this incident, Kourtidias was
convicted of enticing a child. The State
also introduced a statement which Kourtidias gave to an investigating officer
regarding this event.
The
trial court determined that the probative value of these two prior acts
outweighed their prejudicial effect. We
agree. Kourtidias's theory of defense
was that, despite his admitted exposure of his sex organ, he did not do so with
intent to entice Nicole. We agree with the trial court that this
other acts evidence was very relevant to this theory of defense. In addition, we observe that greater
latitude is allowed as to other acts evidence in sex crimes cases. State v. Friedrich, 135 Wis.2d
1, 20, 398 N.W.2d 763, 771 (1987).
We
also note that the trial court cautioned the jury, both when the evidence was
admitted and again in the final instructions, regarding the proper and limited
use of this evidence. By delivering a
cautionary instruction, the trial court can minimize or eliminate the risk of
unfair prejudice. See State
v. Landrum, 191 Wis.2d 107, 122, 528 N.W.2d 36, 42 (Ct. App.), cert.
denied, 116 S. Ct. 142 (1995).
We
conclude that the trial court properly exercised its discretion when admitting
the other acts evidence.
From
this, it logically follows that the trial court also properly admitted the
signed statement that Kourtidias made to the police with regard to the 1988
incident.[1] Kourtidias contends that the statement was a
“stream of consciousness” rambling unrelated to a particular event. Even though portions of the statement might
be so described, we nonetheless conclude that the statement was relevant and
highly probative. In the statement,
Kourtidias admitted that, “If the girl would approach or enter the car, I would
accept it, but ask her intentions. The
girls usually don't enter my car, but my desire for them to do this is for
raising my sexual experience. ¼ This is the
truth and my intentions.”
As
with the act itself, this admission was very relevant to Kourtidias's claim
that he did not intend to entice Nicole into his vehicle. We conclude that Kourtidias's signed
statement was admissible under § 904.04(2), Stats., and that its probative value outweighed any
resulting prejudice. See Kuntz, 160 Wis.2d at 746, 467 N.W.2d at
540.
2. Parole Officer's Testimony
Kourtidias
next claims the trial court erred when it allowed certain testimony from his
parole officer.[2] We agree.
At
a pretrial conference, the State requested that Kourtidias's parole officer be
allowed to testify as to Kourtidias's parole status and that he was under a “no
contact with minors” directive as a condition of parole.
The
trial court granted the State's request using an “irresistible impulse” kind of
logic. The court reasoned that the
parole officer's testimony “would be probative of how powerful was
[Kourtidias's] motivation to have contact with this young girl that he would
risk probation revocation in order to do it.”
The court further opined that the probative value of the evidence would
overcome any “modest” prejudicial impact.
Consistent
with this ruling, the agent testified before the jury that he was assigned to
handle high risk sex offender cases, that Kourtidias's case was classified as a
high risk supervision and that a condition of Kourtidias's parole was that he
have no contact with minors. In
addition, the agent testified as to the consequences of violating a condition
of parole.
In
State v. Ingram, 204 Wis.2d 177, 554 N.W.2d 833 (Ct. App. 1996),
this court recently considered the admissibility of a defendant's parole status
at the time of the alleged crime. We
conducted that inquiry, in part, under the law of other acts. See id. at 182-91, 554
N.W.2d at 835-39. In Ingram,
the defendant fled a police officer who was trying to stop him for a traffic
violation. Id. 180, 554
N.W.2d at 834. Prior to the flight, the
defendant had been drinking in a tavern.
Id. At the time of
the offense, the defendant was on parole, which included a condition that he
not drink alcoholic beverages. Id.
at 181, 554 N.W.2d at 835.
We
held that the trial court correctly admitted evidence of both the defendant's
parole status and the condition of parole; we said:
This
evidence ¼ suggested that Ingram did not want to be caught driving
a car after he had been out for the evening and provided an answer to why he
tried to flee the officer that evening.
Id. at 183, 554 N.W.2d at 836.
The
key factor in support of the evidence in Ingram was the strong
and direct nexus between the defendant's parole status and his criminal
conduct. The former directly explained
the motive for the latter. In fact, we
described the evidence as “crucial” to the State's case. Id.
Thus,
the law is as follows: evidence of a
defendant's probation or parole status and relevant conditions thereof are
admissible in the proper exercise of judicial discretion if such evidence
demonstrates the motive for, or otherwise explains, the defendant's alleged
criminal conduct. Id. Absent that scenario, such evidence is
inadmissible because the nexus between the conduct and the potential penalty is
too tenuous.
In
this case, that nexus is not present.
Kourtidias obviously did not attempt to entice Nicole into his vehicle
because he was on parole or because he was trying to avoid the consequences of
parole revocation. To the contrary, he
acted criminally despite such status and the possible consequences. But such “irresistible impulse” does not
make the parole evidence admissible.
Although
we approved use of the evidence in Ingram, we cautioned that
“[w]e cannot imagine too many other instances where informing the jury about
the defendant's current probation or parole status, or about the defendant's
success under supervision, could be more relevant than prejudicial.” Id. at 190, 554 N.W.2d at
838. This case falls outside the
limited proper use of probation or parole evidence envisioned by Ingram. We hold that the trial court erred by
admitting this evidence.
Nevertheless,
we conclude that the admission of the parole officer's testimony was
harmless. An evidentiary error requires
reversal or a new trial only where the improper admission of evidence has
affected the substantial rights of the party seeking relief on appeal. Heggy v. Grutzner, 156 Wis.2d
186, 196, 456 N.W.2d 845, 850 (Ct. App. 1990); § 805.18(2), Stats.
We reverse only where there is a reasonable possibility that the error
contributed to the final result. See
State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32
(1985). In making this determination,
we weigh the effect of the inadmissible evidence against the totality of the
credible evidence supporting the verdict.
State v. Britt, 203 Wis.2d 25, 41, 553 N.W.2d 528, 534
(Ct. App. 1996).
In
this case, the jury heard the testimony of Nicole which described the
circumstances of the encounter with Kourtidias. This testimony stands unimpeached. Kourtidias did not dispute that he was exposing his sex organ to
Nicole while engaging her in conversation which included his inquiry, “Do you
think we could play sometime.” There is
but one reasonable inference which a jury could draw from such conduct and
statements. That inference solidly
supports the guilty verdict.
Moreover,
the other acts evidence which the trial court properly admitted clearly
established Kourtidias's modus operandi and his motive both in those cases and
in this case. So also did his 1988
statement that he desires young girls to enter his car in order to “heighten
[his] sexual experience.” We conclude
that the inadmissible testimony given by Kourtidias's parole officer was
harmless given the strength of the other evidence which supports the jury's
verdict.
JURY
INSTRUCTIONS
Kourtidias
next claims that the trial court gave an erroneous jury instruction regarding
the enticement charge. However,
Kourtidias has failed to cite to those portions of the record which are
relevant to this issue and which might enable us to understand the claimed
error. We deem the issue waived. See State v. West, 179
Wis.2d 182, 195-96, 507 N.W.2d 343, 349 (Ct. App. 1993), aff'd, 185
Wis.2d 68, 517 N.W.2d 482, cert. denied, 115 S. Ct. 375 (1994). Moreover, from our independent review of the
record, it appears that the instruction which the trial court delivered was the
very language requested by Kourtidias.
On this further ground, we deem the issue waived. See State v. McCoy, 143
Wis.2d 274, 292, 421 N.W.2d 107, 113 (1988).
SENTENCING
Kourtidias's
final challenges relate to his sentence.
A trial court has great discretion in sentencing. State v. Wickstrom, 118 Wis.2d
339, 354, 348 N.W.2d 183, 191 (Ct. App. 1984).
An appellate court has a duty to affirm a sentence if facts of record
show it is sustainable as a proper exercise of discretion. Id. at 355, 348 N.W.2d at
191.
Kourtidias
first contends that the trial court erred by immediately sentencing him on the
misdemeanor exposure charge when the jury rendered the guilty verdict on the
felony enticement charge. Kourtidias
seems to contend that the court should have awaited the receipt of the
presentence report which the court did order on the enticement charge. However, the court stated it had sufficient
background information regarding Kourtidias to sentence him on the misdemeanor
charge. Where the facts required for a
rational disposition are evident from the record, it is not an abuse of
discretion to impose a sentence without a presentence investigation. See State v. Schilz, 50
Wis.2d 395, 403, 184 N.W.2d 134, 138-39 (1971).
Next,
Kourtidias challenges the sufficiency of the trial court's reasons for the
sentence on the exposure count. A trial
court must articulate the basis for the sentence imposed. State v. Harris, 119 Wis.2d
612, 623, 350 N.W.2d 633, 639 (1984).
The primary factors to be considered are the gravity of the offense, the
character of the defendant and the need for the protection of the public. Id.
Here,
the trial court correctly noted that Kourtidias was a “predatory sex offender”
who had not been deterred in the past.
The trial court expressed its concern for the public safety due to
Kourtidias's attraction to young girls.
The court then determined that the maximum sentence of three years
should be imposed. We conclude that the
trial court properly exercised its discretion and relied on correct information
and drew proper and reasonable inferences therefrom in sentencing Kourtidias.
Kourtidias
also contends that the trial court erroneously enhanced his sentence on the
exposure count as a repeat offender. He
argues that the prior conviction was not properly proven and that the court
failed to establish that the prior conviction fell within the five-year period
required by § 939.62(2), Stats.
A
plea of guilty or no contest to a criminal complaint which contains a repeater
provision that alleges a prior conviction constitutes an admission by the
defendant. State v. Rachwal,
159 Wis.2d 494, 512-13, 465 N.W.2d 490, 497 (1991). In such a case, the state need not prove the prior conviction for
sentencing purposes. Id.
at 513, 465 N.W.2d at 497. Before
accepting Kourtidias's guilty plea, the court engaged Kourtidias in an
extensive colloquy. The court
questioned Kourtidias about the 1988 judgment of conviction, which he
acknowledged. The State presented the
court with a copy of the judgment of conviction. Kourtidias admitted that between August 30, 1988, and March 29,
1994, he was in prison for more than six months. Thus, the five-year time limitation was satisfied.
While
Rachwal requires only that the defendant acknowledge or admit the
prior conviction, in this case, the State additionally presented evidence of
the conviction itself. The trial court
properly invoked the repeater provisions of the law against Kourtidias on the
misdemeanor conviction.
Last,
Kourtidias claims that his sentence on the child enticement charge was
improperly based on a repeater enhancement.
However, Kourtidias was sentenced to ten years on that conviction, the
maximum sentence allowed without invoking the repeater provision. When a sentence is within the term
prescribed by the statute for the substantive crime, the repeater statute is
not invoked. Harris, 119
Wis.2d at 619, 350 N.W.2d at 637. Since
the sentence on the enticement conviction did not invoke the repeater
provisions, we do not address Kourtidias's argument on the merits.
CONCLUSION
We
hold that the trial court properly admitted the other acts evidence. We further hold that the trial court erred
by admitting the parole officer's testimony but that the error was
harmless. We also hold that Kourtidias
has waived his claim of instructional error.
Finally, we hold that the trial court properly exercised its sentencing
discretion. Accordingly, we affirm the
judgments of conviction and the order denying postconviction relief.
By
the Court.—Judgments and order
affirmed.