State v. Derango

Decision Date11 July 2000
Docket NumberNo. 98-0642-CR.,98-0642-CR.
Citation236 Wis.2d 721,2000 WI 89,613 N.W.2d 833
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Gabriel DERANGO, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner there were briefs by Robert G. LeBell, Milwaukee, and oral argument by Robert G. LeBell.

For the plaintiff-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. DIANE S. SYKES, J.

This is a child enticement and sexual exploitation case arising out of an incident in which the defendant telephoned a 15-year-old girl and offered her $300 to perform a striptease and other sexual acts on video. The defendant, Gabriel Derango, was convicted of one count each of child enticement and attempted child sexual exploitation, and now challenges those convictions on unanimity, multiplicity and sufficiency of the evidence grounds. He has other claims of error as well: the admission of other acts evidence against him, and the filing of an amended information conforming the charges to the proof at the close of the evidence. We affirm.

¶ 2. On February 7, 1997, 15-year-old Jessica E. and several of her friends were waiting for a ride outside a McDonald's restaurant in Kenosha when they were approached by the defendant, Gabriel Derango, a 68-year-old McDonald's employee. Derango asked Jessica what grade she was in. Jessica replied that she was in tenth grade and asked Derango why he wanted to know. Derango said he was just curious and went back inside the restaurant.

¶ 3. A short time later, Derango returned outside and asked Jessica if she had ever modeled. Jessica told him that she had, and that she was enrolled in modeling school. Derango then asked her if she was interested in modeling in magazines and catalogs. When Jessica said yes, Derango told her that he would first need her mother's permission because she was underage, and asked for her telephone number. Jessica gave Derango her home telephone number, and Derango said he would call her soon.

¶ 4. Two days later, Derango called Jessica and asked if she was still interested in modeling for him. Jessica inquired what kind of modeling was involved. Derango told her that the job was "risque." He then offered her $300 to perform a striptease and other nude sexual acts on video. Derango told Jessica that at some point, he or one of his friends would get in the video with her and perform sexual acts. Derango said he would pick Jessica up and take her somewhere to shoot the video. ¶ 5. In the course of the telephone call, Derango began asking Jessica personal questions, including whether she had a boyfriend, whether she and her boyfriend ever had sex, and whether she had tried oral sex. Jessica told Derango that it was none of his business, but Derango persisted, eventually telling Jessica that she should try having sex with an older man, hinting that she should try it with him. Jessica testified that Derango was "very persistent in offering me $300 in exchange for him filming me doing sex acts" and "would not take no for an answer." Derango told Jessica to think about his offer and he would call her the following day.

¶ 6. Jessica immediately told her mother about the call and the next morning went to the police to report the incident. On February 15, 1997, City of Kenosha Police Detective Russell Beckman went to Derango's home to question him. During the interview, Beckman noticed several videotapes with distinctive lettering scattered around Derango's living room. The tapes were labeled with women's names, including "Theresa," "Cindy," "Abbey," and "Vicky," and the words, "Parkside," "Milwaukee College," "Visitor Exchange Czech Republic," and "Racine." These titles corresponded to a handwritten list also found in Derango's home. Beckman asked Derango if he could take the tapes, and Derango consented.

¶ 7. The tapes were amateur productions depicting girls who appeared to be in their middle to late teens performing stripteases and other sexual acts. One video featured a girl in a bedroom that appeared to be that of a teenager or preteenager. On the tape, the girl is seen removing her clothes and performing sexually explicit acts, stating that she is 18, but that the viewer could pretend that she is 14, 15 or 16, and encouraging the viewer to remember what it was like to have a girl of her age.

¶ 8. On February 18, 1997, Beckman returned to Derango's home to take a statement. Derango told Beckman that, contrary to Jessica's version of events, Jessica had actually approached him while he was working and told him that she was taking modeling classes and wanted to be a model. Derango said Jessica then gave him her telephone number. Derango told Beckman that when he called Jessica they talked about trouble she was having in school and with her boyfriend. He said Jessica told him that she was pregnant and needed money, and then offered to have sex with him for $50.

¶ 9. Derango was charged with one count of child sexual exploitation (using, persuading, inducing, or enticing a child to engage in sexually explicit conduct for purposes of videotaping the conduct) contrary to Wis. Stat. § 948.05(1)(a) (1995-96).1 After the preliminary hearing, the State filed a two-count information that restated the child sexual exploitation charge and added a charge of child enticement (causing or attempting to cause a child to go into a secluded place with intent to have sexual contact or intercourse) contrary to Wis. Stat. § 948.07(1).

¶ 10. Derango pled not guilty and moved to dismiss, alleging that the counts were multiplicitous and that the evidence was insufficient to support the bindover. The Circuit Court for Kenosha County, Judge Emmanuel J. Vuvunas, presiding, denied the motion. Derango then unsuccessfully petitioned the court of appeals for leave to appeal. Derango also moved to exclude the videotapes from evidence. The circuit court denied that motion as well.

¶ 11. On July 17 and 18, 1997, the case was tried to a jury. At the close of the evidence, the court permitted the State to amend the information to conform to the proof, downgrading count one to attempted sexual exploitation, and changing count two to add violations of subsections (3) and (4) (intent to expose or cause a child to expose a sex organ, or take a picture of a child engaging in sexually explicit conduct) to the previously alleged violation of subsection (1) of Wis. Stat. § 948.07 as the basis for the child enticement charge. The jury found Derango guilty of both counts, and he was placed on four years probation. Derango appealed, and the court of appeals affirmed. State v. Derango, 229 Wis. 2d 1, 599 N.W.2d 27 (Ct. App. 1999).

¶ 12. Derango argues five grounds for reversal:2 1) he was denied the right to a unanimous jury verdict on count two, contrary to art. I, sec. 5 of the Wisconsin Constitution, 2) his conviction for both attempted child sexual exploitation and child enticement as a result of a single telephone call is multiplicitous, 3) the circuit court erred in admitting the videotapes as other acts evidence under Wis. Stat. § (Rule) 904.04(2), 4) the circuit court erred by permitting the State to amend the information at the close of the evidence, and 5) the evidence was not sufficient to support the guilty verdicts. We address each argument in turn.

I. Unanimity

[1, 2]

¶ 13. The Wisconsin Constitution's guarantee of a right to trial by jury includes the right to a unanimous verdict with respect to the ultimate issue of guilt or innocence. Wis. Const., art. I, §§ 5 and 7; Holland v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 288 (1979); Vogel v. State, 138 Wis. 315, 332-33, 119 N.W. 190 (1909); Boldt v. State, 72 Wis. 7, 14-16, 38 N.W. 177 (1888). "The principal justification for the unanimity requirement is that it ensures that each juror is convinced beyond a reasonable doubt that the prosecution has proved each essential element of the offense." State v. Lomagro, 113 Wis. 2d 582, 591, 335 N.W.2d 583 (1983); see also Holland, 91 Wis. 2d at 138 (requirement of jury unanimity linked to due process requirement of proof of each element of the offense beyond a reasonable doubt, citing In Re Winship, 397 U.S. 358 (1970)).

[3, 4]

¶ 14. Jury unanimity, however, is required "only with respect to the ultimate issue of the defendant's guilt or innocence of the crime charged, and. . . not. . . with respect to the alternative means or ways in which the crime can be committed." Holland, 91 Wis. 2d at 143. The threshold question in a unanimity challenge, therefore, is whether the statute creates multiple offenses or a single offense with multiple modes of commission. Id.; see also State v. Hammer, 216 Wis. 2d 214, 219, 576 N.W.2d 285 (Ct. App. 1997).

[5]

¶ 15. To resolve the question, we examine four factors: 1) the language of the statute, 2) the legislative history and context of the statute, 3) the nature of the proscribed conduct, and 4) the appropriateness of multiple punishment for the conduct. Hammer, 216 Wis. 2d at 220 (citing Manson v. State, 101 Wis. 2d 413, 422, 304 N.W.2d 729 (1981)). The point is to determine legislative intent: did the legislature intend to create multiple, separate offenses, or a single offense capable of being committed in several different ways? Id.

¶ 16. As always, we look first at the language of the statute. The offense of child enticement, Wis. Stat. § 948.07, is defined as:

Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class BC felony:
(1) Having sexual contact or sexual intercourse with the child in violation of s. 948.02 or 948.095.
(2) Causing the child to engage in prostitution.
(3) Exposing a sex organ to the child or causing the
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