State v. Christel

• Citation: 970 N.W.2d 582 (Table),2022 WI App 7
• Decision Date: 08 December 2021
• Docket Number: 2020AP1128-CR,Appeal Nos. 2020AP1127-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Dallas R. CHRISTEL, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

970 N.W.2d 582 (Table)

2022 WI App 7

STATE of Wisconsin, Plaintiff-Respondent,

v.Dallas R. CHRISTEL, Defendant-Appellant.

Appeal Nos. 2020AP1127-CR

2020AP1128-CR

Court of Appeals of Wisconsin.

December 8, 2021

NEUBAUER, J.

¶1 In these consolidated appeals, Dallas R. Christel appeals from judgments of conviction and orders denying his postconviction motions. Christel raises both facial and as-applied constitutional challenges to Wisconsin's statute criminalizing strangulation and suffocation, which a jury convicted him of violating. See WIS. STAT. § 940.235 (2019-20).¹ He also argues that the circuit court erred in concluding that he did not identify a new factor in his postconviction motion that warrants resentencing. We reject Christel's challenges and therefore affirm.

BACKGROUND

¶2 The State charged Christel with battery, domestic abuse; second-degree sexual assault, domestic abuse; and strangulation and suffocation, domestic abuse, all relating to an incident on May 7, 2017. Christel was charged as a repeat offender for each of the three counts. The State also charged Christel with battery, domestic abuse, and disorderly conduct, domestic abuse, both as a repeat offender, relating to an incident on May 27, 2017. The incidents involved Emma,² Christel's live-in girlfriend at the time.

¶3 Emma testified to the following facts at the jury trial. In early 2017, Emma, who was estranged from her husband, moved into Christel's apartment sometime around late February to early March. On the evening of May 7, Christel and Emma had an argument after having drinks at a local supper club, which continued throughout the car ride home.

¶4 The argument became physical when the two returned to Christel's apartment. Christel began screaming at Emma, pushed her down to the floor, and beat her with his closed fist. Christel struck Emma on her head with a metal chair and removed all of her clothing. Despite her attempt to flee, Christel pulled Emma back into the apartment and forced her to the bedroom.

¶5 Then Christel held Emma's hands behind her head and had sexual intercourse with her, which she testified was not consensual. Emma testified that she was terrified and told Christel to stop, but the assault escalated.

¶6 Emma explained how Christel strangled her during the sexual assault. He put his hand around and squeezed her neck while putting his hand at her lips. He applied pressure and she had difficulty breathing, testifying: "I couldn't get my breath. I couldn't breathe." Emma testified that she had not consented to being strangled. Emma stated that she and Christel had never discussed erotic asphyxiation

, nor had they previously engaged in such behavior or "rough sex."

¶7 Christel also testified at trial. He stated that he and Emma had consensual sex on the night of May 7. He further claimed that they had engaged in consensual asphyxiation

during sex, alleging that he awoke to find the victim with "her hand down my pants arousing my penis." Christel alleged that "she had grabbed my right hand and motioned it towards her neck, and she did the pull and squeeze." Christel said he complied, and the sex ended shortly thereafter. Christel denied using any force during the sexual intercourse, stating he grabbed Emma's throat in a "playful sexual manner."

¶8 Emma did not report the May 7 assault immediately after it had occurred. She returned to Christel's apartment a few days later. On May 27, the second incident took place. Emma testified that Christel again beat and assaulted Emma as he forcibly removed her clothing. Police responded to the incident after receiving a call from Emma's estranged husband. While Emma did not initially report the events of May 7, she later reported both the events of that night and May 27.

¶9 In September 2017, Christel executed a signature bond for his release from jail contingent upon his appearance at all subsequent court dates, maintaining sobriety, and not possessing any drugs or alcohol. However, Christel failed to appear on the first day of the jury trial. After a nationwide warrant was issued, Christel was apprehended a few months later in the state of Oregon.

¶10 The State then charged Christel with two counts of felony bail jumping for violating the terms of his signature bond. One count addressed Christel's failure to appear in court; the other, his possession of alcohol in his residence at the time he was apprehended. Christel pled no contest to the two felony bail jumping charges. The circuit court accepted his pleas and found Christel guilty.

¶11 At the trial in March 2019, a jury convicted Christel of all five counts related to the assaults of Emma, finding Christel guilty of strangulation and suffocation, contrary to WIS. STAT. § 940.235(1) ; nonconsensual sexual assault by use of violence, contrary to WIS. STAT. § 940.225(2)(a) ; and battery, relating to the assault on May 7. The jury also found Christel guilty of battery and disorderly conduct relating to the events of May 27. Each of the crimes related to acts of domestic abuse and included criminal penalty enhancers based on Christel's prior record.

¶12 The court had originally scheduled a consolidated sentencing hearing for the bail jumping and assault cases; however, Christel filed postconviction motions that delayed his sentencing in the assault case until after the sentencing hearing in the bail jumping case.

¶13 At the sentencing hearing on the bail jumping case, the circuit court acknowledged the additional charges that Christel was facing relating to the pending assault case. The court raised Christel's eligibility for the Substance Abuse Program (SAP) due to his prior issues with alcohol abuse. The parties discussed that Christel's eligibility for the program could be impacted by the fact that the convictions in the assault case would render him statutorily ineligible for the program; that the pending sentencing in the assault case would likely include a long prison term; and that the early release program under SAP could contradict the intentions of the court to impose its sentence in the assault cases.

¶14 The court sentenced Christel to six years’ imprisonment, comprised of three years of initial confinement and three years of extended supervision, on each of the bail jumping counts, to be served consecutively. The court also made Christel eligible for the SAP. After the prosecutor pointed out that the violent nature of Christel's crimes in the assault cases would make him ineligible for SAP once he was sentenced on the assaults, the court noted that it was sentencing only on the bail jumping cases at this point and the nature of the convictions there made Christel eligible at that point. The court further noted that the reason "we're sentencing like this is because, again, the decisions that Mr. Christel has made. There's nothing we can do about it. It is what it is."

¶15 Christel was sentenced for the assaults in August, several months after his sentencing on the bail jumping convictions. The circuit court sentenced him to a total of fourteen and one-half years of initial confinement and nine and one-half years of extended supervision. The court also placed numerous conditions on Christel, including absolute sobriety and no-contact orders with Emma, her former husband, and several of the testifying witnesses from the trial.

¶16 Christel subsequently filed postconviction motions in the circuit court. In one motion, Christel challenged the constitutionality of the strangulation and suffocation statute under which he was convicted, WIS. STAT. § 940.235. Christel argued the statute was unconstitutional, both facially and as applied to him. He challenged the statute on its face as overbroad for failing to account for consensual asphyxiation

as an affirmative defense.

¶17 Christel filed a separate postconviction motion arguing that he was entitled to sentence modification on the bail jumping convictions due to a new factor. Christel asserted that his conviction and sentencing in the assault case constituted a new factor warranting resentencing because the former rendered him statutorily ineligible to participate in SAP. See WIS. STAT. § 302.05(3)(a)1.

¶18 The circuit court issued written decisions denying Christel's facial and as-applied constitutional challenges to WIS. STAT. § 940.235. The court also denied Christel's motion for sentence modification, concluding that Christel failed to identify a new factor justifying resentencing. Christel appeals.

¶19 We include additional facts as necessary below.

DISCUSSION

¶20 On appeal, Christel argues that WIS. STAT. § 940.235, the strangulation and suffocation statute which he was convicted of violating, is unconstitutional, facially and as applied. Christel asserts that § 940.235 violates substantive due process by infringing on individual liberty and privacy rights, is overly broad, is vague, and is unconstitutional as applied to him. Christel also argues the circuit court erred in failing to determine that Christel raised a new factor justifying sentence modification. We discuss each challenge in turn.

Christel Fails to Overcome the Strong Presumption that WIS. STAT. § 940.235 is Constitutional

Standards of Review and General Constitutional Principles

¶21 These consolidated appeals first require us to consider whether WIS. STAT. § 940.235 is constitutional, facially and as applied. "The constitutionality of a statute is a question of law that we review de novo." State v. Wood , 2010 WI 17, ¶15, 323 Wis. 2d 321, 780 N.W.2d 63. We begin with a presumption that a statute is constitutional, and a party making a facial or as-applied challenge bears the burden of proving that the statute "is unconstitutional beyond a reasonable doubt." Id.

¶22 In a challenge to "a law or government action as being unconstitutional on its face ... the challenger must show that the law cannot be enforced ‘under any circumstances.’ " Id. , ¶13 (citing Olson v. Town of Cottage Grove , 2008 WI 51, ¶44 n.9, 309 Wis. 2d 365, ...