|
COURT OF APPEALS
DECISION
DATED AND FILED
April 13, 2011
A.
John Voelker
Acting Clerk of Court of Appeals
|
|
NOTICE
|
|
|
|
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
|
|
|
Appeal No.
|
|
|
|
STATE OF WISCONSIN
|
IN COURT OF
APPEALS
|
|
|
DISTRICT II
|
|
|
|
|
|
|
|
State of Wisconsin,
Plaintiff-Respondent,
v.
Dennis J. Thornton,
Defendant-Appellant.
|
|
|
|
|
|
|
|
|
APPEAL
from a judgment of the circuit court for Washington County: ANdrew
t. Gonring, Judge. Affirmed.
Before Neubauer, P.J., Anderson
and Reilly, JJ.
¶1 NEUBAUER, P.J. Dennis
J. Thornton was found guilty of third-degree sexual assault, contrary to Wis. Stat. § 940.225(3) (2009-10),
following a jury trial. Thornton challenges his conviction on three
grounds. First, he contends that the
jury instruction should have been modified to include “knowledge of nonconsent”
as an element of the offense. Second, he
argues that the trial court erred when it precluded certain testimony offered
by the defense. Finally, he contends
that there was not sufficient evidence to convict him. We reject each of Thornton’s challenges. We affirm the judgment.
BACKGROUND
¶2 On October 9, 2007, Thornton
was charged with third-degree sexual assault of R.S. The charge stemmed from an incident occurring
at R.S.’s home on February 19, 2006. At
trial, R.S. testified that she and her husband, Tim, had been married seven
years. R.S. indicated that, at the time
of the alleged assault, she and her husband and Thornton and his wife were
“best friends” and had, until shortly before the incident, lived a block apart
from each other. R.S. worked at the same
company as Thornton and she and Thornton
engaged in activities together such as walking after work. On February 18, 2006, R.S. and her husband drove
to the Thornton
residence to carpool to a holiday party.
They stayed there for approximately two and one-half hours visiting and
having drinks before leaving for the party.
R.S. had one glass of wine, but did not know how much Thornton or her
husband had consumed. They got to the party
at about 5:30 p.m. and stayed for five or six hours. Thornton’s
wife did not feel well, so after the party Thornton’s
wife dropped R.S., Tim and Thornton in downtown Hartford and went home.
¶3 R.S. stayed out at a bar with Tim and Thornton for
approximately two hours before walking to her home. R.S. testified that neither Thornton nor Tim
appeared to be overly intoxicated on the walk home. R.S. testified that she “was fine” but tired.
Once home, she went “straight to bed”
and left Tim and Thornton
in the living room. At some point, R.S.
woke up and felt somebody caressing her breasts, then “going down” her pants
and manually penetrating her vagina. R.S.’s
back was to the person, who she assumed was her husband, and the touching
continued for “[p]robably a couple minutes.”
Believing it was “foreplay,” R.S. turned around to embrace her husband
when she saw Thornton. R.S. left the room, tried to wake up her
husband, said “he touched me,” and then ran to the bathroom to throw up. When Tim came into the bathroom, R.S.
“couldn’t talk” and just laid on the floor.
She eventually told him what happened the next morning. R.S. testified that she did not at any time
give Thornton
consent to touch her breasts or insert his finger into her vagina. She eventually reported the incident to the
police in February 2007.
¶4 Prior to trial, Thornton
moved to modify the jury instruction for third-degree sexual assault. The standard jury instruction includes two
elements: (1) the defendant had sexual
intercourse with the alleged victim and
(2) the alleged victim did not consent. See Wis JI—Criminal 1218. Thornton
requested the inclusion of a third element—the defendant knew or had reason to
know the alleged victim did not consent.
Thornton
argued that without this element, the crime would require no intent (scienter)
and thus would be a strict liability crime.
After further briefing and prior to trial, the trial court issued an
oral ruling denying Thornton’s
motion. The court determined that Thornton was essentially
challenging the constitutionality of the statute and, thus, was procedurally
barred from doing so because he had failed to notify the attorney general’s
office. The court also determined that
it did not have the authority to modify long-standing standard instructions by
adding or deleting elements and, further, that the law is accurately reflected
in the instruction.
¶5 The matter proceeded to trial. A jury found Thornton guilty of third-degree sexual
assault and the trial court sentenced him to three years of probation with 120
days of jail time with huber privileges. Thornton
appeals.
DISCUSSION
Wisconsin
Stat. § 940.225 Does Not and Need Not Include Intent as an Element of
the Crime.
¶6 Thornton
contends that “knowledge of non-consent should be required as an element of
third-degree sexual assault.” He asserts
that the statutory language of Wis.
Stat. § 940.225(3) is not dispositive and the crime’s penalty and
purpose necessitate an element of intent.
In making a determination of whether a criminal statute includes
scienter as an element of the crime when the statute does not explicitly refer
to scienter, a court may consider the following factors: (1) the language of the statute, (2) the
legislative history of the statute,
(3) the seriousness of the penalty, (4) the purpose of the statute, and (5) the
practical requirements of effective law enforcement. See State v. Jadowski, 2004 WI 68, ¶¶21-30,
272 Wis. 2d
418, 680 N.W.2d 810. Because this involves
a question of statutory interpretation, we review Thornton’s challenge de novo. See id., ¶9.
¶7 Wisconsin Stat. §
940.225(3) governs third-degree sexual assault.
It provides in relevant part:
“Whoever has sexual intercourse with a person without the consent of
that person is guilty of a Class G felony.”
Id. The jury instruction for third-degree sexual
assault requires the State to prove only that the defendant had sexual
intercourse with the victim and that the victim did not consent. Wis JI—Criminal 1218. Consent is defined by § 940.225(4) as
“words or overt actions by a person who is competent to give informed consent
indicating a freely given agreement to have sexual intercourse or sexual
contact.” “In the context of sexual
assault, consent in fact requires an affirmative indication of willingness. A failure to say no or to resist does not
constitute consent in fact.” State
v. Long, 2009 WI 36, ¶31, 317 Wis.
2d 92, 765 N.W.2d 557.
¶8 Thornton
acknowledges that Wis. Stat. § 940.225(3),
on its face, does not include a scienter element. Rather, Thornton
premises his argument on the seriousness of the penalty exposure for
third-degree sexual assault, namely, a felony conviction with a maximum penalty
of ten years in prison. Thornton cites
to Jadowski,
272 Wis. 2d 418, ¶27, in support of his contention that the severity of the
penalty imposed for a particular offense bears significant consideration in
determining whether a statute should be construed as dispensing with mens
rea. See
also Morissette v. U.S., 342 U.S. 246, 256 (1952) (penalties for
strict liability crimes “commonly are relatively small and conviction does no
grave damage to an offender’s reputation”).
In other words, the more severe the penalty attached to the crime, the
more likely it is that the legislature intended a scienter element despite a
statute’s silence on the issue. We
reject Thornton’s
argument as applied to § 940.225(3).
¶9 In State v. Lederer, 99 Wis. 2d 430, 433, 299
N.W.2d 457 (Ct. App. 1980), a defendant challenged the constitutionality of Wis. Stat. § 940.225(3) on grounds
of overbreadth, specifically that the definition of consent in
§ 940.225(4) “could subject an individual to punishment for engaging in
consensual sexual activities where no testimony was produced regarding acts or
words which evidenced freely given consent.”
This court rejected the defendant’s argument. We concluded that the plain language of
§ 940.225(3) requires the state to prove that the act of intercourse was
without consent, but relieves the state of the burden of proving that the
victim resisted in order to establish that the act was nonconsensual. Lederer, 99 Wis. 2d at 434. As to the defendant’s contention that two
parties may enter into consensual sexual relations without manifesting freely
given consent through words or acts, this court observed: “[W]e know of no other means of communicating
consent.” Id. at 435. We agree.
The statute requires proof of nonconsent, which pursuant to the
definition of consent under § 940.225(4)
includes an absence of words or overt actions indicating freely given consent
to have sexual contact with defendant. It
is the consent, the “affirmative indication of willingness” of the victim, and
not the knowledge of the defendant that is controlling. See
Long,
317 Wis. 2d
92, ¶31.
¶10 Finally, in addressing the defendant’s challenge to Wis. Stat. § 940.225(3) as
creating a strict liability offense, i.e., one requiring no knowledge or
intent, this court acknowledged that a violation subjects an offender to a
severe punishment and the severity of punishment “is often indicative of the
legislature’s intent to create a strict liability offense.” Lederer, 99 Wis. 2d at 435. However, we nevertheless concluded that the
legislature is not “precluded from creating a strict liability offense where
substantial penalties are to be imposed.”
Id. We rejected the defendant’s constitutional challenge
to § 940.225(3). Lederer,
99 Wis. 2d at
435. In light of Lederer, Thornton’s challenge to § 940.225(3)
fails.
The Trial Court Did Not Err in Precluding Hearsay
Testimony.
¶11 Thornton
next contends that the trial court erred in precluding certain testimony of
Thornton’s and Tim’s mutual friend, Brian Mechinech, as hearsay evidence under Wis. Stat. § 908.01(3). Hearsay under § 908.01(3) is an out-of-court
statement offered to prove the truth of the matter asserted. See State v. Patino, 177 Wis. 2d 348, 362, 502 N.W.2d 601 (Ct. App. 1993). As in all evidentiary determinations, the
admissibility of out-of-court statements pursuant to a hearsay exception lies
within the trial court’s discretion and will be upheld absent any misuse of
that discretion. See State v. Huntington,
216 Wis. 2d 671, 680-81, 575 N.W.2d 268
(1998); State v. Petrovic, 224 Wis.
2d 477, 484, 592 N.W.2d 238 (Ct. App. 1999).
If the trial court’s decision is supported by the record, we will not
reverse even though the court may have given the wrong reason or no reason at
all. Petrovic, 224 Wis. 2d at 484. Here, Thornton
sought admission of Mechinech’s testimony under § 908.01(4)(a)1., an exception
to the hearsay rule that governs prior inconsistent statements.
¶12 Thornton
expected Mechinech to testify regarding a conversation with Tim. According to Mechinech, Tim told him that R.S.
had said that she and Thornton were kissing on the night in question before the
touching occurred. Thornton asserts that, if Mechinech had been
permitted to testify, R.S.’s alleged statement to Tim would have contradicted
R.S.’s testimony that she believed it was Tim in bed with her until she turned
around. In other words, Thornton argues, that
“[h]earing that there may have been kissing prior to the touching would have
discredited [R.S.’s] testimony and supported the conclusion that the acts were
consensual.” Tim testified at trial that
he had not told anyone that R.S. had kissed Thornton that night and denied R.S. ever
telling him that. Further, R.S. testified on cross-examination
that she had not kissed Thornton and had not
told anyone that she had kissed Thornton.
¶13 Thornton
contends that Mechinech’s testimony was admissible as a prior inconsistent
statement under Wis. Stat. § 908.01(4)(a)1. The State, however, argues that the testimony
was inadmissible because Thornton
failed to present a witness who heard R.S. make the statement to Tim. Both parties agree that Mechinech’s testimony
involved “double hearsay” (Tim told Mechinech that R.S. told Tim about kissing)
offered to prove the truth of the matter asserted. As such, both levels of hearsay must fall
under the exception of prior inconsistent statements. See Wis. Stat. § 908.05 (hearsay is
not excluded “if each part of the combined statements conforms with an
exception to the hearsay rule”). The
State also argues, without citation to authority, that the testimony, even if a
prior inconsistent statement, is inadmissible because Thornton is attempting to prove the truth of
the matter asserted. While prior
inconsistent statements were previously admissible only as impeachment
evidence, see Vogel v. State, 96 Wis. 2d 372, 379, 291
N.W.2d 838 (1980), the law has since changed, id. at 378-86. Because prior inconsistent statements are not
hearsay, they are generally admissible and, therefore, may be offered as
substantive evidence if the declarant is available for cross-examination. State v. Horenberger, 119 Wis. 2d 237, 247, 349
N.W.2d 692 (1984). Nevertheless, even if
testimony is relevant and admissible, a trial court may still exclude the
evidence under Wis. Stat. § 904.03
and the trial court implicitly did so here.
¶14 In ruling on the admissibility of Mechinech’s testimony, the
trial court determined that Mechinech’s testimony might be used to show a prior
inconsistent statement by Tim, but otherwise would be hearsay. In addition, the court determined that Thornton was attempting
to use the testimony as truth of the matter asserted, i.e., to establish
consent.
¶15 Tim’s testimony at trial was consistent with R.S.’s testimony
in which she also denied kissing or having told anyone that kissing was
involved in the incident. Insofar as
Tim’s testimony conflicted with a prior statement made to Mechinech, the trial
court noted, and we agree, “it could well be a prior inconsistent statement of
Tim.” However, the court went on to rule
that “Mechinech is not going to be able to testify that Tim told him that [R.S.] said that there was kissing
involved.” (Emphasis added.) Although the trial court’s holding permitted Thornton’s attorney to ask Mechinech whether Tim had told
Mechinech the incident involved kissing, Tim had already denied having done so,
and Thornton’s
attorney chose not to pursue it with Mechinech, stating that he would “avoid
the topic.”
¶16 As to the exclusion of Mechinech’s testimony regarding R.S.’s
alleged statement to Tim, we see no error in the trial court’s exercise of
discretion. First, the alleged statement
was hearsay within hearsay. Second,
Mechinech had no personal knowledge of what R.S. told Tim, see Wis. Stat. § 906.02. Third, Mechinech’s proffered testimony was
not corroborated by any other witnesses and, finally, both Tim and R.S.
provided consistent testimony unequivocally denying the substance of Mechinech’s
testimony. It is evident from the record
that the court found Mechinech’s testimony as to what Tim told Mechinech that
R.S. told Tim to be too attenuated and unreliable to be admitted at trial. We cannot conclude that the court erred in
its evaluation of the evidence. See State v. Sorenson, 143 Wis. 2d 226, 240, 421
N.W.2d 77 (1988) (the circuit court has not committed an erroneous exercise of
discretion if we can discern a reasonable basis for its evidentiary decision).
Sufficiency of the Evidence
¶17 Thornton’s
final argument on appeal is that the State did not present sufficient evidence
upon which the jury could base a guilty verdict for third-degree sexual
assault. Based on our review of the
record, we disagree.
¶18 “[A]n appellate court may not reverse a conviction unless 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. Poellinger, 153 Wis. 2d 493, 501, 451
N.W.2d 752 (1990). The test is not
whether this court is convinced of the appellant’s guilt beyond a reasonable
doubt, but “whether this court can conclude that the trier of fact could,
acting reasonably, be so convinced by evidence it had a right to believe and
accept as true.” State v. Searcy, 2006 WI
App 8, ¶22, 288 Wis. 2d 804, 709 N.W.2d 497 (citing
Poellinger,
153 Wis. 2d
at 503-04).
¶19 In support of his argument, Thornton simply recites testimony that
arguably contradicts R.S.’s claims or makes them less credible. For example, Thornton points out that Tim had discouraged
her from going to the police and that Tim’s testimony as to the events of the
morning of February 19, 2006, differed in some aspects from R.S.’s. We are unpersuaded. It is the jury’s task, not this court’s, to
sift and winnow the credibility of the witnesses. State v. Toy, 125 Wis. 2d 216, 222, 371 N.W.2d 386 (Ct. App.
1985). Further, “it is certainly
allowable for the jury to believe some of the testimony of one witness and some
of the testimony of another witness even though their testimony, read as a
whole, may be inconsistent.” Id.; see
also Poellinger, 153 Wis.
2d at 503 (“The function of the jury is to decide which evidence is credible
and which [evidence] is not and how conflicts in the evidence are to be
resolved.”). Here, R.S. provided
sufficient testimony to support a verdict for third-degree sexual assault. The jury’s verdict reflects its finding that
R.S. was credible, and we will not disturb that finding on appeal.
CONCLUSION
¶20 This court has previously concluded that third-degree sexual
assault is a strict liability crime under Wis.
Stat. § 940.225(3). Thus,
the trial court did not err in denying Thornton’s
request to modify the jury instructions to include “knowledge of
non-consent.” We further conclude that
the trial court properly exercised its discretion when it deemed Mechinech’s
proffered testimony inadmissible.
Finally, we have reviewed the record and find sufficient evidence upon
which the jury could have found Thornton
guilty of third-degree sexual assault.
We therefore affirm the judgment.
By the Court.—Judgment affirmed.
Not
recommended for publication in the official reports.