State Of Wis. v. Gonzalez, 2009AP1249-CR.
| Decision Date | 07 July 2010 |
| Docket Number | No. 2009AP1249-CR.,2009AP1249-CR. |
| Citation | 789 N.W.2d 365,2010 WI App 104 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Esteban M. GONZALEZ, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
789 N.W.2d 365
2010 WI App 104
STATE of Wisconsin, Plaintiff-Respondent,
v.
Esteban M. GONZALEZ, Defendant-Appellant. †
No. 2009AP1249-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs April 1, 2010.
Opinion Filed July 7, 2010.
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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 Milwaukee.
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.
Before CURLEY, P.J., FINE and BRENNAN, JJ.
CURLEY, P.J.
¶ 1 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). 1 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.
¶ 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.
This is consistent with the applicable pattern jury instruction. See Wis JI-Criminal 2142. 2 Gonzalez,
however, challenges the description of the element requiring that he “exhibited or played harmful material to A[.]G [.]” According to Gonzalez, “this statement, without clarification, invited confusion because it is satisfied by an accidental, unknowing exposure of a child to harmful material, contrary to law.” We disagree.
¶ 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 Wis.2d 753, 780 N.W.2d 210 (citation omitted; alteration in Lesik ). We review de novo the legal question of whether a jury instruction is a correct statement of law. Id.
¶ 10 Whether to give a requested jury instruction is a discretionary determination left to the trial court.
State v. Coleman, 206 Wis.2d 199, 212, 556 N.W.2d 701 (1996). In exercising its discretion, the court is to ensure that the jury is “ ‘fully and fairly inform[ed] ... of the rules of law applicable to the case and ... assist the jury in making a reasonable analysis of the evidence.’ ” Id. (citation omitted).
¶ 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 Wis.2d 505, 535, 515 N.W.2d 847 (1994) (“[A]n individual violates [Wis. Stat. § 948.11] if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor or minors material defined as harmful to children....”). 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.) Moreover, as discussed later in this opinion, see
infra ¶ 18, in order to prove the requisite face-to-face contact, the jury would have had to find...
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