State v. DeRango

• Decision Date: 23 June 1999
• Docket Number: No. 98-0642-CR.,98-0642-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Gabriel DERANGO, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

229 Wis.2d 1

599 N.W.2d 27

STATE of Wisconsin, Plaintiff-Respondent, v. Gabriel DERANGO, Defendant-Appellant.¹

No. 98-0642-CR.

Court of Appeals of Wisconsin.

Submitted on briefs February 23, 1999.

Decided June 23, 1999.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert G. LeBell of Styler, Kostich, LeBell, Dobroski & McGuire of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Warren D. Weinstein, assistant attorney general.

Before Snyder, P.J., Brown and Anderson, JJ.

SNYDER, P.J.

On February 9, 1997, Gabriel DeRango telephoned fifteen-year-old Jessica E. and asked her to perform a striptease and sex acts for the purpose of making a pornographic videotape. Jessica refused. DeRango was later apprehended and found to be in possession of various "homemade" videotapes depicting young women performing stripteases and various sex acts. He was then convicted of child enticement and attempted child exploitation in violation of §§ 948.07, 948.05 and 939.32, STATS.² He now contends that his conviction was in error because (1) the charges of child enticement and attempted child exploitation were multiplicitous, (2) the presentation of his homemade videotapes to the jury was inadmissible other acts evidence, (3) the evidence was otherwise insufficient to sustain the conviction, (4) the State improperly amended the information at the close of evidence, and (5) he was denied a unanimous jury verdict as to the child enticement count. We reject DeRango's arguments, and affirm the trial court's decision.

BACKGROUND

On February 7, 1997, Jessica visited a McDonald's restaurant in Kenosha with some friends. While waiting outside, she was approached by DeRango, who was employed at the restaurant. He asked her what grade she was in and she responded that she was in the tenth grade. DeRango went back inside the restaurant but later returned to ask her whether she had ever modeled. She replied that she had and that she was currently in modeling school. He inquired whether she was interested in modeling for some magazines and catalogs. Jessica said "yes," and he then asked for her phone number, explaining that he needed to talk to her mother because she was underage. Jessica gave him her home phone number and he said he would call her soon.

Two days later, DeRango telephoned Jessica at home and asked her if she was still interested in modeling. When she asked what type of modeling was involved, he responded that the job was "risque." Then, as Jessica later testified:

He told me that he would give me $300 if I did it. He then asked me if I had a boyfriend. I told him yes. He then asked . . . if me and my boyfriend had ever fucked. I told him that it was none of his business. He asked me if I ever tried oral sex. I told him that it was none of his business. He told me that I should try to have sex with an older man. He was hinting that I should [do] it with him. He was very persistent in offering me $300 in exchange for him filming me doing sex acts. He told me he wanted me to strip tease. I would then engage in nude sex acts with either him or his friends while I was being videotaped. He would not take no for an answer. He told me to think about it, and he would call [tomorrow] to talk more about it.

The next morning Jessica went to the police and provided a statement to City of Kenosha Police Detective Russell Beckman.

On February 15, 1997, Beckman interviewed DeRango at his residence. After inquiring about DeRango's contact with Jessica, Beckman asked if he could take some videotapes he found in DeRango's living room. DeRango consented. When Beckman later viewed the tapes, he found them to be amateur productions depicting women, some of whom appeared to be in their middle to late teens, performing stripteases and sex acts.

A few days later, Beckman took a statement from DeRango at his home. DeRango indicated that on February 7, 1997, he was working at McDonald's when a young girl approached him and started talking. She told him that she was taking a modeling class and wanted to be a model. DeRango stated that he was surprised. She then gave him her phone number. He stated that she was between fifteen and seventeen years old. On Sunday, he called her and they talked about school. According to DeRango, Jessica said she was having trouble at school and with her boyfriend, that she was pregnant, that she needed money and that she would have sex with DeRango for fifty dollars. DeRango stated that he did not respond after that and then ended the call. DeRango was subsequently charged with one count of child exploitation for the purpose of videotaping sexually explicit conduct contrary to § 948.05(1)(a), STATS. After the preliminary examination, the State filed an information restating the child exploitation charge and adding a count of child enticement pursuant to § 948.07(1), STATS., charging DeRango with having an "intent to have sexual contact" with a child in a secluded place in violation of § 948.02(2), STATS.

DeRango pled not guilty to both charges. He then brought motions to dismiss claiming that the counts were multiplicitous and that the evidence presented at the preliminary examination did not support a probable cause finding that he had committed a felony. The court denied his motions. DeRango subsequently petitioned this court for leave to appeal the trial court's nonfinal order denying his motion to dismiss on grounds that the charges were multiplicitous. We denied his petition on July 7, 1997.

On July 17, 1997, a jury trial was commenced. At the close of evidence, the State amended its information to state the following charges: (1) attempted child exploitation contrary to §§ 939.32(1) and 948.05(1)(a), STATS.; and (2) child enticement with an attempt to cause Jessica to go into a secluded place and with the intent to have sexual contact with her, to expose a sexual organ to her, to cause her to expose a sexual organ, or to take pictures or audio recordings of her engaging in sexually explicit conduct contrary to § 948.07(1), (3) and (4), STATS. The jury found DeRango guilty on both counts, and he was then placed on four years of probation. DeRango appeals.

DISCUSSION

A. Errors at the Preliminary Hearing

DeRango initially contends that the evidence presented at the preliminary examination was insufficient to support the court's finding that probable cause existed that he had committed a felony. He asserted this position in a March 31, 1997 motion to dismiss and before the court during a motion hearing held on May 2, 1997. The court denied DeRango's motion. He resumes this argument on appeal.

[1]

Our review of a trial court's bindover decision is de novo. See State v. Moats, 156 Wis. 2d 74, 84, 457 N.W.2d 299, 304 (1990)

. The State contends that pursuant to State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991), DeRango waived any claim of error because he did not petition the court of appeals for permission to appeal the nonfinal probable cause order. In Webb, our supreme court held that

a conviction resulting from a fair and errorless trial in effect cures any error at the preliminary hearing. Accordingly, a defendant who claims error occurred at his preliminary hearing may only obtain relief before trial. Thus, no relief is available to the defendant in the case at bar.

Id. at 628, 467 N.W.2d at 110.

[2]

Unlike the defendant in Webb, DeRango did seek relief before trial by petitioning for leave to appeal from the trial court's June 16, 1997 order denying his motion to dismiss. The issue raised in that motion, however, did not involve the sufficiency of the preliminary examination; rather, it concerned whether the charges against him were multiplicitous in violation of the constitutional prohibition against double jeopardy and the guarantee of due process. This court denied his petition on July 7, 1997. Because DeRango now appeals on a different ground than that which was originally raised, his argument is waived.

B. Multiplicitous Charges

DeRango contends that the only conduct with which he has been charged was a telephone conversation with Jessica on February 9, 1997. He argues that being tried for violating two separate criminal statutes where only one act exists is multiplicitous, in violation of his rights to due process and the prohibition against double jeopardy under the Fifth Amendment and Article I, Section 8 of the Wisconsin Constitution. See State v. Rabe, 96 Wis. 2d 48, 61, 291 N.W.2d 809, 815 (1980)

. We are not persuaded.

The test for multiplicity first asks whether the charged offenses are identical in both law and fact. See State v. Grayson, 172 Wis. 2d 156, 159, 493 N.W.2d 23, 25 (1992)

. If they are identical, the charges are considered multiplicitous; if they are not, then we consider whether the legislature intended the charges to be brought as a single count. See id. Where the first test for multiplicity is not met, "then this court shall presume that the legislature intended to permit cumulative punishments." Id. at 160, 493 N.W.2d at 25 (quoted source omitted). This presumption may be overcome "only by `a clear indication of legislative intent to the contrary.'" State v. Johnson, 178 Wis. 2d 42, 50, 503 N.W.2d 575, 577 (Ct. App. 1993) (quoted source omitted).

Here, DeRango concedes that the counts are not identical in law. Therefore, the first test for multiplicity is not met. As to our second inquiry, we are "limited to determining whether the legislature's intent contravenes the presumption that multiple felony convictions are permissible under sec. 948.22(2), STATS." Grayson, 172 Wis. 2d at 160,493 N.W.2d at 25.

[3, 4]

Statutory construction involves a question of law and is reviewed de novo. See id.; State v. Nixa, 121 Wis. 2d 160, 163, 360 N.W.2d 52, 54 (Ct. App. 1984)

. In determining legislative intent for multiplicity purposes, we consider the...