State v. Gonzalez
| Decision Date | 08 July 2011 |
| Docket Number | No. 2009AP1249–CR.,2009AP1249–CR. |
| Citation | 802 N.W.2d 454,335 Wis.2d 270,2011 WI 63 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent,v.Esteban M. GONZALEZ, Defendant–Appellant–Petitioner. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the defendant-appellant-petitioner there were briefs and oral argument by Frank J. Schiro, Kristin Anne Hodorowski, and Law Office of Frank Joseph Schiro, LTD.For the plaintiff-respondent the cause was argued by Maura Whelan, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.SHIRLEY S. ABRAHAMSON, C.J.
This is a review of a published decision of the court of appeals 1 affirming the judgment of conviction and order denying post-conviction relief of the circuit court for Milwaukee County, Patricia D. McMahon, Judge. The defendant, Esteban M. Gonzalez, was convicted of Count 1, exposing a child to harmful material, contrary to Wis. Stat. § 948.11(2)(a) (2005–06).2 He was acquitted of Count 2, intentionally causing a child to view sexually explicit conduct, which in the present case was masturbation.
¶ 2 The question presented on review of the conviction of Count 1 is whether the defendant should be granted a new trial because there is a reasonable likelihood that the jury was misled by the jury instruction and applied it in an unconstitutional manner. More specifically, the question presented is whether the defendant has shown there is a reasonable likelihood that the instruction, viewed in the light of the proceedings as a whole, misled the jury into believing that the State need not prove beyond a reasonable doubt that the defendant knowingly exhibited the harmful material to the child. 3
We conclude that the jury was not instructed explicitly or implicitly that it had to determine whether the defendant had knowingly exhibited the harmful material to the child, as distinguished from accidentally or unknowingly exhibiting harmful material to the child. The jury instruction did not sufficiently define the first element of the crime, namely, that the State must prove beyond a reasonable doubt that the defendant knowingly exhibited the harmful material to the child. Accordingly, we are satisfied that the jury instruction misled the jury into believing that the State did not have the burden of proving beyond a reasonable doubt that the defendant knowingly exhibited the harmful material to the child. Viewing the jury instruction in light of the proceedings as a whole, we further conclude that the defendant has established a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt and therefore applied the potentially confusing instruction in an unconstitutional manner. We therefore reverse the decision of the court of appeals and remand the cause for a new trial.
¶ 4 The defendant was charged with two counts. Count 1 was for exposing a child to harmful material.4 Count 2 was for intentionally causing a child to view sexually explicit conduct, specifically in the present case, masturbation.5
¶ 5 The two counts stem from an incident that occurred on April 24, 2006. The defendant was taking care of his three-and-one-half-year-old daughter in a two-bedroom apartment. It is undisputed that on that evening the defendant masturbated to a pornographic film in the living room of his apartment.
Three police officers, two detectives and their lieutenant, and the defendant were the principal trial witnesses.
¶ 7 The officers testified about statements made by the defendant in two interviews on May 1 and 2, 2006.
¶ 8 The State's position at trial was that the defendant admitted to the officers that he was aware that his daughter had entered the living room, and that the defendant, “caught up in the moment,” failed to stop his activities, thereby exposing his daughter to the pornographic film and sexually explicit behavior.
¶ 9 The officers testified that the defendant's initial statements to police on May 1, 2006, were exculpatory. The defendant's statements were to the effect that the child was in bed and that, although she may have been out of bed, she did not see him masturbate and did not see the video.
¶ 10 The State presented testimony that at the May 2, 2006, interview the defendant made oral and written statements that were inculpatory. Lieutenant Edwards testified: Lieutenant Edwards further testified that “the video was on the television approximately three minutes,” “that [the defendant] masturbated during the entire time,” and that “the child was in the room during the entire time.”
¶ 11 Detective Antreassian testified: “[The defendant] told me that in the evening hours he had been in a recliner in his living room masturbating and he looked out the corner of his eye and he did see his daughter in the room and at the time there was a video playing and he was caught up in the moment and he continued until he did ejaculate and she was in the room.”
¶ 12 The persistent theme of the defendant's testimony was that during the initial interviews the detectives repeatedly urged him to admit that he accidentally exposed the child to harmful material, implying that he would be in less trouble if he admitted to an accidental exposure.
¶ 13 At trial, the defendant denied the inculpatory statements and testified that the pretrial statements were given under duress and were coerced. The defendant did not deny that he was watching the video. He did not deny that the video was “harmful material” for the child.
¶ 14 At trial, the defendant denied any knowledge that the child was present in the living room while the video was playing. He claimed that the child was never within his “eyeshot.” His testimony suggested that if the child saw the video, the viewing was accidental and without his knowledge.
¶ 15 The defendant testified that on the evening of April 24, 2006, he was taking care of his daughter in his apartment. At approximately 7:00 P.M. he put his daughter to bed. Soon afterward, she got out of bed and came out of her bedroom. The defendant put her back to bed. She then called out to the defendant. He went into her room and tucked her back into bed. A little while later, the defendant heard her bedroom door open, saw the bathroom light go on, and heard his daughter put herself back to bed. At approximately 8:00 to 8:30 P.M., according to the defendant, she came out of the bedroom a fourth time. He yelled at her and told her she needed to go back to bed, and he placed her back in her bed.
Following this, the defendant testified that he was watching television, sitting in his recliner in the living room, and talking to a friend on the computer. The defendant estimated the conversation with the friend lasted an hour. He testified that he then began to play a pornographic video with the sound muted and masturbate.
¶ 17 The defendant testified that approximately 30 seconds after initiating those activities he heard a noise, sat up, and looked around. Seeing nothing and believing the noise to have come from the upstairs neighbor's apartment, the defendant testified he finished masturbating, turned off the video, cleaned himself up, pulled up his pants, and watched a short portion of a recorded television program.
¶ 18 The defendant further testified that he then got up to use the bathroom. He walked around the corner of the living room into the hallway and saw his daughter lying on the floor, hands under her chin, in the doorway of her bedroom. He again scolded her and directed her to go back to bed.
¶ 19 Further facts will be presented in the discussion of the jury instruction.
¶ 20 We turn now to the standard of review an appellate court applies when a challenge is made to a jury instruction.
¶ 21 There are two types of challenges to a jury instruction. One challenges the legal accuracy of the instruction. The other asserts that a legally accurate instruction unconstitutionally misleads the jury.6
When a jury instruction is challenged as not completely and correctly informing the jury of the law applicable to the charge, the challenger has presented a question of law that an appellate court determines independently of the circuit court and court of appeals but benefiting from their analyses.7
¶ 23 When a jury instruction is challenged as confusing or misleading, such that it is subject to misinterpretation by the jury, a conviction should not be reversed “simply because the jury possibly could have been misled.” 8 Rather, an appellate court should order a new trial only if upon review of the instruction the court determines that the defendant has shown that “there is a reasonable likelihood that the jury was misled and therefore applied potentially confusing instructions in an unconstitutional manner.” 9
¶ 24 The United States Supreme Court has stated that a new trial is warranted when the defendant carries the burden of establishing that “the instruction was ambiguous and that there was a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.” 10 A new trial is also warranted when the defendant carries the burden of establishing that there was a reasonable likelihood that the jury applied the instruction in a way that denied the defendant “a meaningful opportunity for consideration by the jury of his defense ... to the detriment of the defendant's due process rights.” 11
¶ 25 In determining whether there is a reasonable likelihood that the jury was misled and applied the potentially confusing instructions in an unconstitutional manner, an appellate court “should view the jury instructions in light of the proceedings as a whole,...
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