Complete Title of Case:
†Petition for review filed.
Esteban M. Gonzalez, †
July 7, 2010
Submitted on Briefs:
April 1, 2010
Curley, P.J., Fine and Brennan, JJ.
On behalf of the defendant-appellant,
the cause was submitted on the briefs of Frank J. Schiro and Kristin A. Hodorowski of Law
Office of Frank Joseph Schiro, Ltd., of
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Maura F.J. Whelan, assistant attorney general.
2010 WI App 104
COURT OF APPEALS
DATED AND FILED
July 7, 2010
David R. Schanker
Clerk of Court of Appeals
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.
STATE OF WISCONSIN
IN COURT OF APPEALS
Esteban M. Gonzalez,
from a judgment and an order of the circuit court for
¶1 CURLEY, P.J. Esteban M. Gonzalez appeals from a judgment convicting him of exposing a child to harmful material, contrary to Wis. Stat. § 948.11(2)(a) (2005-06). He also appeals from the trial court’s order denying his motion for postconviction relief. Gonzalez raises seven issues on appeal. He argues: (1) the jury instructions and the trial court’s denial of a theory of defense instruction violated his constitutional rights by misleading jurors; (2) the trial court erred in failing to respond to the jury’s questions; (3) the trial court erred when it precluded his expert, Ronald Matthew, Ph.D., from testifying; (4) the trial court erred when it denied his pretrial motion to admit other acts of police misconduct, bias, and prejudice; (5) the evidence was insufficient to sustain his conviction because no substantial fact corroborates his statements to police; (6) he is entitled to a new trial because the real controversy was not fully tried; and (7) the trial court erred when it denied his motions to suppress and for reconsideration.
¶2 Upon review, we conclude: the jury instructions were not misleading; and the trial court did not err in its handling of the jury’s questions, in precluding Dr. Matthew from testifying, and in denying Gonzalez’s motion to introduce other acts evidence. We further conclude that Gonzalez’s incriminating statement was sufficiently corroborated, that he is not entitled to a new trial in the interest of justice, and that the trial court properly denied his suppression motion and his motion for reconsideration. Accordingly, we affirm.
¶3 Gonzalez was charged with one count of exposing a child to harmful material and one count of causing a child to view sexually explicit conduct, following an April 24, 2006 incident where he allegedly viewed a pornographic video and masturbated while his three-and-one-half-year-old-daughter, A.G., watched. The jury convicted Gonzalez of exposing a child to harmful material but acquitted him of causing a child to view sexually explicit conduct. The court imposed and stayed a sentence of eighteen months of initial confinement and twenty-four months of extended supervision. In addition, the court imposed a three-year term of probation, with nine months in the House of Correction as a condition.
¶4 Gonzalez subsequently filed a motion for a new trial, which was denied without a hearing. He now appeals. We will discuss additional facts in the context of the various issues raised by Gonzalez.
A. Jury instructions.
¶5 Gonzalez challenges the jury instructions in his case. He argues that the instructions violated his due process rights because they were confusing and misleading. He further argues that he was prejudiced when the trial court refused to give his theory of defense instruction.
¶6 The trial court’s instruction to the jury on the exposing a child to harmful material count set forth the elements that the State was required to prove as follows:
Exposing a child to harmful material as defined in § 948.11(2)(a) of the criminal code of Wisconsin is committed by one who, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration, and has face-to-face contact with the child before or during this sale, rental, exhibit, playing, distribution, or loan.
Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt the following four elements: first, that the defendant exhibited or played harmful material to A[.]G[.]…
The defendant had knowledge of the character and content of the material is the second element….
Third element, A[.]G[.] was under the age of 18 years. Fourth element, that the defendant had face-to-face contact with the child before or during the exhibition or the playing of the material.
consistent with the applicable pattern jury instruction. See
¶7 Gonzalez proposed submitting the following modified instruction to the jury:
2142 EXPOSING A CHILD TO HARMFUL MATERIAL – § 948.11(2)(a) (MODIFIED)
STATUTORY DEFINITION OF THE CRIME
Exposing a child to harmful material, as defined in § 948.11(2)(a) of the Criminal Code of Wisconsin, is committed by one who, with knowledge of the character and content of the material, knowingly sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration and [knows or reasonably should know that the child has not attained the age of 18 years] [has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan].
Elements of the crime that the State must prove
1. The defendant knowingly exhibited or played harmful material to A.G.
“Exhibited” means that the defendant knowingly offered or presented for inspection to a specific minor or minors material defined as harmful to children. “Exhibited” requires a “knowing and affirmative act” by the defendant; which is only satisfied by “affirmative conduct” of the defendant “toward a specific minor.” To find that the defendant “exhibited” harmful material, you must be satisfied beyond a reasonable doubt that the defendant targeted harmful material at a specific minor child. If you find that the defendant intended to present the adult video to any audience other than the specific minor child A.G. in this case, then you must find that he did not “exhibit” it to her, for purposes of Count 1.
4. The defendant had face-to-face contact with the child before or during the exhibition or playing of the material.
“Face-to-face contact” with the child means that the defendant had “personal contact” or a “personal meeting” with the child sufficient to allow him to determine that his audience is underage, before or during the exhibition or playing of the harmful material. “Face-to-face contact” therefore requires “some interaction between the accused and the child-victim.”
(Footnotes omitted; emphasis provided by Gonzalez to show modifications to pattern instructions.)
¶8 In refusing to give the jury Gonzalez’s modified instruction incorporating definitions of the terms “exhibited” and “face-to-face contact,” the trial court explained that the pattern instruction accurately states the law. The court stated:
[W]e’ve got four elements, and the concept of knowing is in the context of the four elements. And I think exhibited is not such an exotic term that it needs to be described further. And, in fact, I find that the proposed description is confusing and misleading and not helpful … to the issues involved here.
The court further explained that the meaning of face-to-face contact was understandable in the context of the pattern instruction.
¶9 “We will reverse and order a new trial ‘[o]nly if the jury
instructions, as a whole, misled the jury or communicated an incorrect
statement of law.’” State v. Lesik, 2010 WI
App 12, ¶6, 322
¶10 Whether to give a requested jury instruction is a discretionary
determination left to the trial court. State
v. Coleman, 206
¶11 We agree with the trial court’s assessment that the pattern
instruction accurately states the law.
Before the jury could find Gonzalez guilty, the trial court’s jury
instruction required the State to prove, among other things, that Gonzalez
“exhibited or played harmful material to
A[.]G[.]” and “had face-to-face contact with the child before or during the
exhibition or the playing of the material.”
(Emphasis added.) Encompassed
within this instruction was the requirement that the jury find Gonzalez had the
requisite knowledge. See State
v. Thiel, 183
¶12 Further, we agree with the trial court that the additional
information set forth in Gonzalez’s proposed instruction was unnecessary and
confusing. First, as the State points
out, language found in Gonzalez’s proposed exhibited instruction (i.e., “[i]f
you find that the defendant intended to present the adult video to any audience
other than the specific minor child A.G. in this case, then you must find that
he did not ‘exhibit’ it to her, for purposes of Count 1”), which was drawn from
cases distinguishing the commercial display of materials to a general consumer
audience from the affirmative conduct of an individual toward a specific minor,
is irrelevant in the present context. See Thiel,
¶13 In addition, we are not convinced by Gonzalez’s argument that from the instruction given, the jury could have determined that when he tucked A.G. into bed for the night, they had the requisite face-to-face contact such that the jury could find Gonzalez guilty of exposing her to harmful material if A.G. awoke and came out of her bedroom at some point later in the evening and saw the adult video playing. We agree with the State that the jury could not reasonably have concluded that such contact was sufficient for purposes of finding Gonzalez guilty.
¶14 Moreover, even if the trial court had instructed the jury in accordance with Gonzalez’s modified instruction related to “face-to-face contact,” his concerns in this regard would not have been alleviated. Gonzalez’s modified instruction provided in relevant part that “‘[f]ace-to-face contact’ with the child means that the defendant had ‘personal contact’ or a ‘personal meeting’ with the child sufficient to allow him to determine that his audience is underage, before or during the exhibition or playing of harmful material.” If we follow Gonzalez’s reasoning, even if presented with his proposed language, the jury could have concluded that the requisite face-to-face contact occurred when Gonzalez tucked A.G. into bed.
¶15 To the extent that the modified instructions requested by Gonzalez could be deemed appropriate, the court, nevertheless, was not required to present them to the jury given that the instruction it provided adequately set forth the applicable law. See State v. Lenarchick, 74 Wis. 2d 425, 455, 247 N.W.2d 80 (1976) (“If the instructions of the court adequately cover the law applicable to the facts, this court will not find error in the refusal of special instructions even though the refused instructions themselves would not be erroneous.”). As discussed in the following section of this opinion, the jury had questions regarding the meaning of the terms exposure, exhibit, and face-to-face contact. We are not, however, persuaded that Gonzalez’s proposed instructions would have resolved the jury’s questions. Because the instructions given were appropriate, Gonzalez’s due process rights were not violated.
¶16 Gonzalez also alleges error in the trial court’s failure to give his requested accident theory of defense instruction. Gonzalez proposed submitting an instruction to the jury that would explain that if the harmful material was not knowingly exhibited or played, it was an accident and he was not guilty of violating Wis. Stat. § 948.11(2)(a) (2005-06).
¶17 A jury instruction on a theory of defense is warranted when
four criteria are present: “(1) the
defense relates to a legal theory of a defense, as opposed to an interpretation
of evidence; (2) the request is timely made; (3) the defense is not adequately
covered by other instructions; and (4) the defense is supported by sufficient
evidence.” Coleman, 206
¶18 Throughout trial, Gonzalez maintained that he did not knowingly expose A.G. to harmful material. As previously discussed, the instruction that was given required the jury to find that Gonzalez had the requisite knowledge. See supra ¶11 (The “exhibited or played harmful material to” language of the instruction required a finding by the jury that Gonzalez acted affirmatively [i.e., knowingly]—as opposed to accidentally. (Emphasis added.)). Furthermore, we agree with the State:
If the jury had believed that Gonzalez did not know A.G. was in the room while the video was playing, it would have acquitted him. That is because, according to the jury instruction, it could not have concluded that Gonzalez was guilty unless he “had face-to-face contact with the child before or during the exhibition or playing of the material.” Gonzalez could not have had this face-to-face contact if he was unaware of A.G.’s presence. Therefore, the face-to-face instruction given was sufficient to guarantee that the jury would find Gonzalez guilty only if he knew that A.G. was present in the room during the video’s exhibition.
omitted.) Thus, we conclude that
Gonzalez’s theory of defense was adequately explained through the pattern
instructions on exposing a child to harmful material. Cf. State v. Pruitt, 95
¶19 In addition, Gonzalez argues that without his requested
instructions, Wis. Stat. § 948.11(2)(a)
is unconstitutional as applied to him.
He asserts: “although
[§ 948.11(2)(a)] requires the State [to] prove the defendant’s knowledge
of the victim’s age, it does not clearly require the State to prove the
defendant’s knowledge of the underage victim’s presence during the exhibition
or presentation of harmful materials.”
(Emphasis omitted.) As explained
in the preceding paragraph, the instruction requiring the State to prove
Gonzalez exhibited or played harmful material to A.G. and further requiring the State to prove Gonzalez had
face-to-face contact with A.G. ensured that the jury would find Gonzalez guilty
only if he acted affirmatively and knew that A.G. was present in the room. See
v. Truax, 151
B. Handling of jury’s questions.
¶20 Gonzalez further contends that the trial court erred in its handling of the jury’s questions during deliberations. The facts relevant to this claim are that at 10:53 a.m., after approximately one hour of deliberating, the jury asked the following three questions:
Q3: What do we do about hostility between jurorsàaggressive behavior, while we deliberate?
Q4: Clarify word of exposure for us.
Q5: Clarify statement ‘the defendant exhibited or played, harmful material To A[.G.]’—what does to say?
(Formatting altered.) The court neither responded to the questions posed nor did it immediately notify counsel that the jury had questions. According to Gonzalez, the court first advised counsel telephonically at 1:30 p.m., following the noon recess, that the jury had questions.
¶21 With counsel present in court, the trial court relayed that upon receiving the question on hostility between jurors, the bailiffs provided the jury with lunch and took the jurors on a walk. The court then waited to see how the jury would proceed and was advised that the jury had asked the bailiffs a couple of times when it would get an answer to its questions. While the attorneys were in court discussing how to resolve the questions, the jury posed two additional questions relevant to Gonzalez’s appeal:
Q7[:] Please define face-to-face contact with the child
—proximity?? eye to eye? in room?
Q8[:] Same question: on meaning of count 1, part 1 ‘exhibited or played harmful material to A[.]G[.][’]
—need more definition behind exhibited
—need more definition behind played
—need more definition for the entire statement.
(Formatting altered.) Upon receiving these questions, the attorneys continued to argue regarding the appropriate response. While they were doing so, the court was notified that the jury had reached a verdict. Consequently, the court determined that the jury’s questions were moot.
¶22 According to Gonzalez, the trial court “erroneously exercised its discretion by effectually refusing clarification of ‘exhibited or played to,’ ‘exposure,’ and ‘face-to-face contact,’” as those terms were used in the jury instructions. In addition, he claims:
The court violated Gonzalez’s constitutional right to a fair trial and to be present with counsel at a “critical stage” of trial by unilaterally electing not to answer the jury, failing to promptly alert defense counsel when the jury asked questions, and concealing or irresponsibly omitting the fact that critical questions were asked when the court contacted counsel at 12:00 [p.m., which according to Gonzalez, is the time when the court’s clerk telephoned defense counsel and advised that they should take a lunch break and check in with the court telephonically, at 1:30 p.m.].
¶23 Gonzalez criticizes the trial court for “wait[ing] to see” what
the jury would do for over two and one-half hours before telling counsel that
the jury had questions. He relies on
case law obligating the court to resolve jury questions with clarity and
precision. See Bollenbach v. United States,
326 U.S. 607, 612-13 (1946) (“When a jury makes explicit its difficulties a
trial judge should clear them away with concrete accuracy.”); State
v. Anderson, 2006 WI 77, ¶109, 291 Wis. 2d 673, 717 N.W.2d 74
(explaining that trial court has a duty “‘upon receiving a question or request
from the jury ... to respond [to the inquiry] with sufficient specificity to
clarify the jury’s problem’”) (citation omitted; alterations in Anderson). The problem for Gonzalez is that his case does
not involve the accuracy of the court’s response to the jury’s questions. Instead, at issue is whether the court is
obligated to immediately notify counsel regarding jury questions and whether
the court is obligated to respond to those questions within a certain
timeframe. Because he has not cited any
relevant legal authority to support his position in this regard, we do not
consider this argument further. See Kruczek v. DWD, 2005 WI App 12,
¶24 Gonzalez’s citation to case law for the proposition that the
court’s communications with the jury during deliberations constitutes a
critical stage of trial during which defendants have a constitutional right to
be represented by counsel likewise misses its mark given that the court never
communicated with the jury. See Anderson,
¶25 As Gonzalez points out, before a court responds to a jury’s
questions, parties must be given an opportunity to be heard regarding the
appropriate responses. See
C. Exclusion of Dr. Matthew’s testimony.
¶26 Gonzalez next claims that the trial court erred when it
prevented the jury from hearing expert testimony regarding his psychological
profile, commonly referred to as Richard A.P. evidence.
¶27 The admissibility of Richard A.P. evidence is committed
to the trial court’s discretion. State
v. Walters, 2004 WI 18, ¶2, 269
¶28 “Richard A.P. evidence, like other expert evidence, is subject
to the requirements of the rules governing the admissibility of evidence. These include not only the rules governing
character evidence and expert testimony, but also Wis. Stat. § 904.03, the rule governing the exclusion of
otherwise relevant evidence.” Walters,
¶29 Prior to Gonzalez’s jury trial, the State filed an amended information charging Gonzalez with exposing a child to harmful material, in violation of Wis. Stat. § 948.11(2)(a) (2005-06); causing a child under the age of thirteen to view sexual activity, in violation of Wis. Stat. § 948.055(1)(2)(a) (2005-06); and first-degree sexual assault of a child, in violation of Wis. Stat. § 948.02(1) (2005-06). With the first-degree sexual assault of a child charge pending, Gonzalez filed a pretrial motion to admit Dr. Matthew’s testimony. In response, the State “concede[d]” to the admission of Dr. Matthew’s testimony pursuant to Richard A.P.
¶30 The prosecutor subsequently moved to dismiss the first-degree sexual assault of a child count and filed an amended information listing the two charges at issue during Gonzalez’s trial, i.e., exposing a child to harmful material and causing a child under the age of thirteen to view sexual activity. During the final pretrial conference, the court and the parties returned to the issue of Dr. Matthew’s testimony, with the prosecutor arguing that its admission was no longer appropriate due to the dismissal of the sexual assault charge.
¶31 After reconsidering the issue, the court precluded Dr. Matthew from testifying, stating:
I think [Dr. Matthew’s] report is of concern. Much of that report is broad hearsay. It relates to the abuse allegation and whether or not that occurred and the nature of how this case got to the system, which we agreed in our prior hearing would not be mentioned, wouldn’t get into the fact of what the child did or didn’t do at the day care center, what the day care provider did or didn’t report. We won’t be getting into the divorce and the custody and all of those issues I am not going to be hearing.
The report contains many references to the fact that Dr. Matthew believes this is truthful and that is not truthful. That is concerning because obviously that is not admissible evidence.
And so I look at this, I apply the standard of [Wis. Stat. §] 904.01 as well as [Wis. Stat. §] 904.03 and I am satisfied given the fact we have no allegation of child abuse, no sexual assault of a child here, given the nature of the opinion offered by Dr. Matthew, I think it is not relevant on any issue raised in the two charges that are now before the defendant; and I’m also satisfied under [§] 904.03 any slight relevance that there might be is outweighed by the substantial probability that it would confuse or mislead the Jury on important issues.
¶32 Despite Gonzalez’s efforts to cast the charges against him as charges of sexual abuse of a child because they fall within Wis. Stat. ch. 948 (2005-06) (“Crimes Against Children”) and because convictions require Wisconsin Sex Offender Registration, see Wis. Stat. §§ 973.048(2m), 301.45 (2005-06), we are not convinced. Instead, we agree with the State:
It is not a crime’s presence in Chapter 948 of the Criminal Code that is determinative. What is important is the evidentiary connection between the proffered evidence and the elements of the crime charged…. The harmful exposure count did not require proof of the fact that Gonzalez had any sexual interest in children, or that he was likely to assault or molest them for his own pleasure. Therefore Dr. Matthews’ [sic] testimony that he lacked such characteristics was not relevant to the harmful exposure count, because there was no fact at issue that the testimony would have made more or less probable.
¶33 We agree with the trial court that Dr. Matthew’s testimony
became irrelevant once the first-degree sexual assault of a child charge was
dismissed. The trial court identified
the correct standard and reached reasonable conclusions on the probative value of
the evidence and the potential for jury confusion. See Walters, 269
D. Denial of Gonzalez’s motion to introduce other acts evidence.
¶34 Gonzalez also asserts that the trial court erroneously denied his pretrial motion to admit other acts of police misconduct, bias, and prejudice and the expert testimony of Henry Welch, Ph.D., P.E. According to Gonzalez, detectives planted images of child pornography on his laptop computer, which was seized pursuant to a warrant.
¶35 The relevant facts are that on May 12, 2006, police executed a search warrant authorizing them to seize Gonzalez’s laptop computer in order to search for evidence of physical abuse of A.G. Based on a detective’s averments that photographs of prepubescent teens in sexually explicit poses were found on the computer during that search, a warrant authorizing further search of the laptop computer for evidence of possession of child pornography was issued on May 19, 2006. A State Crime Lab report later established that the computer images, which formed the basis for the issuance of the second search warrant, were created on May 19, 2006, during the time when the computer was in the exclusive possession of the police.
¶36 Gonzalez contends that the images “must have been downloaded as false evidence” by the police. He sought to admit evidence of these other acts at trial and the expert testimony of Dr. Welch, a professor at the Milwaukee School of Engineering, who concluded that “the copy [of the files] observed on the hard drive was place[d] on the hard drive on May 19, 2006.”
¶37 After allowing Dr. Welch to testify during a pretrial hearing, the trial court concluded that an evidentiary hearing was warranted on Gonzalez’s motion to admit Dr. Welch’s testimony and other acts evidence. Following judicial rotation, however, the trial court judge who took over the case denied Gonzalez’s motion, stating:
The State is not planning to use this evidence [i.e., the images] and is not seeking to introduce this evidence in this case.
That is why I say this is an odd other acts evidence because the defense is seeking to introduce this evidence which introduces the images which introduces this whole side issue…. I think that brings it up, it raises a whole separate trial. I think it causes confusion.
But it also comes back to the testimony of Dr. Welch, and I read his testimony very carefully and I’m satisfied that his testimony is not sufficient to support this motion.
He’s not a forensic expert. He didn’t examine this computer. His testimony was not sufficient for this Court to rely on in making a ruling that would allow evidence to come in that ultimately would be prejudicial to the defendant even if the defendant wants it.
¶38 Gonzalez relies on State v. Missouri, 2006 WI App 74,
291 Wis. 2d 466, 714 N.W.2d 595, to support his argument that the trial court
erred when it denied his motion to admit other acts evidence. In
¶39 Trial courts are vested with discretion when it comes to
admitting an expert witness’s opinion testimony. Parker v. Wisconsin Patients Comp. Fund,
2009 WI App 42, ¶28, 317
¶40 Gonzalez sought to introduce Dr. Welch’s testimony as to the creation dates of the images to establish that the detectives manufactured false evidence. However, Dr. Welch testified that he did not examine Gonzalez’s computer and admitted that he had neither experience in forensic analysis nor training in the forensic examination of computers. In addition, he had never conducted a forensic examination to determine if changes had been made or created to conceal evidence. Against this backdrop, we conclude that the trial court acted within its discretion when it found that Dr. Welch’s testimony was insufficient to support Gonzalez’s motion.
E. Corroboration of Gonzalez’s statements.
¶41 According to Gonzalez, the State’s case was based solely on his statements to the police, which were not corroborated by substantial facts. Gonzalez acknowledges that in addition to his statements, the pornographic video he was convicted of exposing A.G. to was presented as evidence during trial. He argues, however, that the video’s mere existence and his ownership of it, do not constitute substantial facts sufficient to corroborate his alleged statements. We disagree.
¶42 “The corroboration rule is a common-law standard. Determining if the facts fulfill a common-law
standard presents a question of law. We
view the facts in evidence in a light most favorable to the jury’s
verdict.” State v. Bannister, 2007
WI 86, ¶22, 302
¶43 Pursuant to the corroboration rule, a conviction cannot stand
on the defendant’s confession alone.
elements of the crime do not have to be proved independently of an accused’s
confession; however, there must be some corroboration of the confession in
order to support a conviction. Such
corroboration is required in order to produce a confidence in the truth of the
confession. The corroboration, however,
can be far less than is necessary to establish the crime independently of the confession. If there is corroboration of any significant fact, that is sufficient
¶44 We agree with the State that the significant fact test in Bannister was satisfied by the pornographic video, which, in both his trial testimony and in his statements to the police, Gonzalez conceded he masturbated to while watching. Gonzalez further acknowledged that A.G. was in the house at the time. A detective testified that Gonzalez told him A.G. came into the room while the video was on and was able to view the television.
¶45 Gonzalez asserts that “absolutely no evidence supports the
essential element that A[.G.] actually ‘viewed’ harmful material.” As the State points out, Bannister rejected the
defendant’s argument that a significant fact required “that the right or proper
fact within the confession be corroborated.”
See id., ¶37. Bannister held: “Requiring that specific aspects of the
confession be corroborated, would require this court to abandon its test and
adopt the one adopted in other jurisdictions.
This court has repeatedly rejected the approaches of other jurisdictions
when it comes to the corroboration rule.”
¶46 The State presented evidence that Gonzalez owned a pornographic video. This fact was significant because it gave confidence that Gonzalez exposed A.G. to harmful material. Accordingly, the State satisfied the corroboration rule.
F. New trial in the interest of justice.
¶47 Alternatively, Gonzalez seeks a new trial under Wis. Stat. § 752.35, which permits us to grant relief if we are convinced “that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried.” Gonzalez invokes the first basis for relief, claiming that the real controversy was not fully tried.
¶48 We may reverse on the basis that the real controversy was not fully tried in two separate contexts:
when the jury was erroneously not given the opportunity to hear important testimony that bore on an important issue of the case; and when the jury had before it evidence not properly admitted which so clouded a crucial issue that it may be fairly said that the real controversy was not fully tried.
v. Smalley, 2007 WI App 219, ¶7, 305
¶49 Gonzalez argues that he is entitled to a new trial in the interest of justice because the trial court “excluded virtually all character and reputation evidence, although directly relevant to Gonzalez’s credibility”; “excluded Gonzalez’s offer to take a polygraph test, although relevant as consciousness of innocence”; and “showed a pornographic movie to the jury.” (Emphasis omitted.) We address each of his contentions in turn.
i. Character evidence.
¶50 The trial court did not permit Gonzalez to call three character witnesses: his mother, Olga Gonzalez; his sister, Luciana Gonzalez; and Police Officer Michael Garcia. Gonzalez submits that these witnesses would have testified regarding his character for “(1) truthfulness (offered to bolster Gonzalez’s credibility as a witness in his own defense)” and “(2) for being a protective, loving father (offered to show he acted in conformity with that character trait and did not commit the charged offenses).”
¶51 Gonzalez’s attorney represented to the trial court that Luciana Gonzalez would testify regarding Gonzalez’s “honesty, truthfulness and integrity[,] that he’s a protective good father,” and more specifically, “to the quality of [Gonzalez’s] parenting that is consistent with the parenting trait that would not be submitting this child to the pornographic video or allow her to see him masturbate intentionally.” Olga Gonzalez was to testify about Gonzalez’s character for truthfulness.
¶52 Truthful character may be supported by evidence in the form of
an opinion. See Wis. Stat. § 906.08(1)(b);
v. Cuyler, 110
¶53 Furthermore, we conclude that Gonzalez’s argument regarding the
admissibility of the anticipated testimony relating to Gonzalez’s parenting
skills is insufficiently developed.
Gonzalez argues, without analysis, that this testimony was admissible
pursuant to Wis. Stat. § 904.04(1)(a). This argument is insufficiently developed to
merit a response. See State v. Pettit, 171
¶54 With respect to Police Officer Michael Garcia, the trial court
postponed ruling on whether he would be permitted to testify as a witness, and
Gonzalez never mentioned the testimony again.
Given that counsel never followed up, we conclude that the issue was not
raised and argued with enough prominence to allow the trial court to address
the issue and make a ruling. See Bishop
v. City of Burlington, 2001 WI App 154, ¶8, 246 Wis. 2d 879, 631 N.W.2d
656 (“A litigant must raise an issue with sufficient prominence such that the
trial court understands that it is being called upon to make a ruling.”). Accordingly, we decline to consider this
argument. See Wirth v. Ehly, 93
ii. Offer to take a polygraph.
¶55 Next, Gonzalez contends that the trial court’s exclusion of evidence related to his offer to take a polygraph test constitutes reversible error. Gonzalez points to the court’s refusal during trial to allow to him to make an offer of proof on this issue.
¶56 While the result of a polygraph test is inadmissible in
¶57 The jury trial was not Gonzalez’s only opportunity to submit an
offer of proof; he could have done so via an affidavit when he filed his
postconviction motion. He did not do so. See
v. Winters, 2009 WI App 48, ¶22, 317 Wis. 2d 401, 766 N.W.2d 754
(concluding the defendant could have submitted an offer of proof via an
affidavit filed with his postconviction motion); Wis. Stat. § 901.03(1)(b) (“Error may not be predicated
upon a ruling which … excludes evidence unless a substantial right of the party
is affected; and … (b) … the substance of the evidence was made known to the
judge by offer or was apparent from the context within which questions were
asked.”). Instead, Gonzalez provided
only the following unsubstantiated statement in his brief: “The offer of proof would have informed the
court that during the investigation of the events being tried, before ever
speaking with an attorney, Defendant offered to take a polygraph test to prove
his innocence because Defendant believed that the test or analysis was
possible, accurate and admissible.” This
one sentence offered by Gonzalez’s attorney is insufficient for us to conclude
on appeal whether the trial court’s exclusion of evidence related to his offer
to take a polygraph test constitutes reversible error. See State v. Brown, 2003 WI App 34,
iii. Showing of the video.
¶58 Gonzalez claims that the trial court should not have shown the pornographic video to the jury. He contends that the video should have been excluded pursuant to Wis. Stat. § 904.03, as the only purpose served by showing it to the jurors “was to inflame their passions and sympathies on an uncontested matter.” According to Gonzalez, the court erroneously exercised its discretion by admitting the video because there were less prejudicial methods available for establishing that it was harmful to children, such as by allowing a detective to testify to its contents, by stipulation, or by judicial notice regarding Gonzalez’s concession that the video contained harmful material.
¶59 A trial court’s decision to admit or exclude evidence is a
discretionary determination and will not be upset on appeal if it has “a
reasonable basis” and was made “‘in accordance with accepted legal standards
and in accordance with the facts of record.’”
¶60 The State was required to prove that the video was harmful to children. See Wis. Stat. § 948.11(2)(a) (“Whoever, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material….”) (emphasis added); Wis JI—Criminal 2142 (listing as an element: “1. The defendant (sold) (rented) (exhibited) (played) (distributed) (loaned) harmful material to (name of child).”) (emphasis added; footnote omitted). In ruling that the video was admissible, the trial court concluded that the video had “high relevance” to the elements of the charged offenses. After balancing the dangers of showing the video against its relevance, and taking into account that the State was going to limit its showing to thirty seconds or one minute, the court deemed it admissible. The following day, defense counsel argued for a mistrial based on a number of perceived trial court errors, one of which related to the court’s admission of the video. At that time, the trial court explained that although it would have preferred that the parties stipulate that the video contained harmful material, the State had a right not to stipulate to the harmful nature of the video because it related to an essential element in the case.
¶61 The State concedes that the law does not require that the video
be shown to the jury to satisfy this element.
G. Denial of Gonzalez’s motions to suppress and for reconsideration.
¶62 As his final argument, Gonzalez asserts that the trial court erred when it denied his pretrial motions to suppress and for reconsideration.
¶63 The trial court conducted a Miranda-Goodchild hearing, at which three detectives and Gonzalez testified. The facts as testified to during the hearing reveal that Gonzalez talked to police at his apartment on May 1, 2006, and that no Miranda warnings were given. At the end of the interview, Gonzalez agreed to go to the police station the following day for further discussion. When Gonzalez appeared at the police station the morning of May 2, 2006, he spoke with two detectives. It was not until approximately two hours after he arrived that Gonzalez was given Miranda warnings. He subsequently waived his rights, made an oral statement, and wrote and signed a written statement.
¶64 At the conclusion of the hearing, the trial court found that Gonzalez was not in custody prior to when he received his Miranda warnings and that the warnings, which he subsequently received, were properly given to him. According to the trial court, Gonzalez’s credibility “suffered a pretty fatal blow when he backed off his testimony” regarding the reading of the Miranda warnings. The court found: “There’s no question—given his level of intelligence and education, there’s no question he understood the rights and that he agreed to waive them. He signed that statement.” The court further noted: “[Gonzalez] wrote a long statement of his own about the case without the detective standing over him. He was alone. He wrote what he wrote.” The court was “satisfied … that there were no threats, promises, there was nothing [that] deprived of [sic] him, there was no request he made that he was denied and the defendant even agrees with that.” It went on to hold that under the totality of the circumstances, the statements made by Gonzalez were voluntary.
¶65 Gonzalez subsequently filed a motion requesting that the trial court reconsider his suppression motion. According to Gonzalez, the court erred when it found that he had “backed off” his testimony during the suppression hearing. In denying this motion, the court reiterated its finding that Gonzalez “was less than credible throughout his testimony and among other things it was based on his appearance, the way he responded to questions in general and inconsistencies in the answers.”
¶66 Under Miranda v.
¶67 It is unclear whether Gonzalez seeks reversal of the trial
court’s ruling on his pre-Miranda statements. As the State points out, Gonzalez does not
argue that he was in custody or otherwise deprived of his freedom of action
prior to receiving his Miranda warnings. Because we will not develop his argument for
him, we conclude that Gonzalez has not adequately presented an argument for
exclusion of his pre-Miranda statements. See Pettit, 171
¶68 The State has the burden of proving, by a preponderance of the
evidence, the sufficiency of the Miranda warnings and the knowing and
intelligent waiver of Miranda rights. State v.
¶69 Courts will look at the totality of the circumstances when
making determinations as to voluntariness.
State v. Clappes, 136
[C]oercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment, but coercive activity does not, in and of itself, establish involuntariness.... [A] trial court should not undertake the balancing analysis [between personal characteristics and coercive police activity] unless some improper or coercive police conduct has occurred.
v. Deets, 187
¶70 On appeal, Gonzalez concedes that he signed the waiver of his Miranda rights and a written statement on May 2, 2006, but nevertheless contends that his written and oral statements were coerced. Gonzalez submits that he repeatedly denied any inappropriate behavior over the course of two days, and then, on May 2, 2006, after more than an hour of questioning, the lieutenant of detectives
came in with the heavy hand, called [him] a liar, threatened him with jail, and advised that if he admitted to his “accidental” but “knowing” acts in front of A[.G.], that they [i.e., the police] could help him, otherwise he would definitely go to jail and no jury would believe [his] version of events since the forensic video of A[.G.] was so specific, and that if he admitted to such acts, it would save his daughter the trauma of testifying in court.
Gonzalez claims that his requests to see the video of A.G. were refused, at which point, “[h]is will and resistance were ultimately broken,” and relying on the officers’ representations that if the acts were accidental they would not be a crime, he agreed to write a statement to that effect.
¶71 After reviewing the record, we independently conclude that
Gonzalez’s statements were voluntary. We
defer to the trial court’s assessment that Gonzalez was not credible. See Henderson, 245
By the Court.—Judgment and order affirmed.
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 In relevant part, the pattern jury instruction reads:
Statutory Definition of the Crime
Exposing a child to harmful material, as defined in § 948.11(2)(a) of the Criminal Code of Wisconsin, is committed by one who, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration and [knows or reasonably should know that the child has not attained the age of 18 years] [has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan].
State’s Burden of Proof
Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following four elements were present.
Elements of the Crime That the State Must Prove
1. The defendant (sold) (rented) (exhibited) (played) (distributed) (loaned) harmful material to (name of child).
2. The defendant had knowledge of the character and content of the material.
3. (Name of child) was under the age of 18 years.
4. The defendant … [had face-to-face contact with the child before or during the (sale) (rental) (exhibit) (playing) (distribution) (loan)].
 During the jury instruction conference, defense counsel raised the issue of the proposed accident instruction:
I had also submitted to the Court a modification of Section 772, “accident,” for Count 1 and Count 2. I know I had submitted it at a previous hearing. The DA received copies then and now, as ha[s] the Court. And I know we discussed it at that time.
The Court, I think, did not feel it was appropriate. But I at least want to present to the Court again the opportunity, now that the evidence is closed, to request that instruction on the basis that I believe if there’s any evidence that is produced during the course of the trial that suggests it may support an instruction for that, the defense would be entitled to it. I believe, based upon the testimony of the officers and, also, my client with regard to the concept of “accident,” that the testimony would support such instruction.
The trial court commented that the issue had not been raised during the off-the-record discussion that had just taken place and asked the State what its position was on the matter. The State opposed an accident instruction, at which point the parties and the court went on to discuss other matters without ever resolving the issue of the proposed accident instruction. Defense counsel does not appear to have mentioned the issue again; consequently, the court never explained its reasoning for not providing Gonzalez’s proposed accident instruction to the jury. Because the trial court failed to articulate a basis for its denial, Gonzalez argues that we should reverse and remand. We conclude, however, that raising the issue, as Gonzalez’s attorney did, is not the same as objecting when the instruction was not given. See Wis. Stat. § 805.13(3) (“Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.”) (emphasis added). As such, the issue was not properly preserved for appeal. See id. Notwithstanding, we explain why an accident instruction was not warranted as if Gonzalez had preserved the issue.
 At 10:28 a.m., the jury asked for copies of two exhibits. It is unclear whether Gonzalez is challenging the trial court’s decision to give the jury the requested exhibits without notice to counsel. As the State points out, the court’s decision was based on a prior agreement that enabled the court to do so, and, accordingly, was not erroneous. As such, we do not address the court’s response to these requests further.
 The State notes that Gonzalez did not provide a record cite to support this fact; however, it does not appear to contest that this is what transpired. We acknowledge that this is not optimal jury management.
 There was an approximate forty-minute interval between the time when the jury posed questions seven and eight and the time when it rendered its verdict.
 In his reply brief, Gonzalez offers: “Common sense alone dictates timely response on critical issues.” He goes on to re-cite Bollenbach v. United States, 326 U.S. 607 (1946), as support for the proposition that the court “should clear away the jury’s difficulties when the jury makes it explicit that they have difficulties.” (Underling and bolding omitted.) We do not agree with Gonzalez’s interpretation of Bollenbach as requiring an instantaneous court response to jury questions.
 Wisconsin Stat. § 805.13(5) reads: “Reinstruction. After the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given, or may give supplementary instructions as it deems appropriate.” (Emphasis added.)
 See State
v. Haseltine, 120
 As such, we need not address the other bases supporting the exclusion of Dr. Matthew’s testimony set forth by the trial court.
 According to the prosecutor, on May 19, 2006, the two already present images were downloaded onto a disk which caused a new file to be created on that date.
 The Honorable William W. Brash, III, presided over the initial hearing. Due to judicial rotation, the case was transferred to the Honorable Patricia D. McMahon. After hearing Dr. Welch’s testimony, Judge Brash concluded that Gonzalez was entitled to an evidentiary hearing on his motion, and the case was transferred to Judge McMahon. After reading the transcript of Dr. Welch’s testimony, learning that the State did not intend to present evidence related to the images, and listening to arguments, Judge McMahon denied Gonzalez’s motion.
Gonzalez writes: “Judge McMahon essentially overruled Judge
Brash, a fellow circuit court judge of equal jurisdiction, in an egregious,
erroneous exercise of discretion.” As
support, he offers only a fleeting reference to a violation of his Fifth and
Sixth Amendment due process rights. We
will not consider this conclusory and undeveloped argument. See State v. Butler, 2009 WI App 52, ¶17, 317
 Luciana Gonzalez was allowed to testify during trial; however, she was precluded from testifying as to character issues.
(1) Opinion and reputation evidence of character. Except as provided in s. 972.11(2), the credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to the following limitations:
(b) Except with respect to an accused who testifies in his or her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(1) Character evidence generally. Evidence of a person’s character or a trait of the person’s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:
(a) Character of accused. Evidence of a pertinent trait of the accused’s character offered by an accused, or by the prosecution to rebut the same….
he could have raised this issue prior to trial.
Although Gonzalez contends that he raised this issue by way of his
testimony during the hearing on his suppression motion, it is clear from the
record that the trial court was not aware that it was being asked to make a
ruling on the admissibility of evidence related to Gonzalez’s offer to take a
polygraph. See Bishop v. City of Burlington,
2001 WI App 154, ¶8, 246
 Gonzalez claimed that he testified during a suppression hearing that he offered to take a polygraph test to prove his innocence because he believed the test was possible, accurate, and admissible. The record belies this assertion as our review of the pages he cites reveals only that Gonzalez testified that he offered to take polygraph test.
 See Miranda
 In light of this statement, it is perplexing that Gonzalez argues that “[t]here is a complete absence of findings of fact upon which to base [the court’s] denial” of his motion for reconsideration.
 The State addressed the suppression motion on which Gonzalez’s subsequent reconsideration motion was based. We are not persuaded by Gonzalez’s contention that the State was required to specifically address the denial of his reconsideration motion and that the failure to do so somehow amounted to a concession “of the court’s reversible error.”