State v. Hunt
| Citation | 2014 WI 102,851 N.W.2d 434 |
| Decision Date | 01 August 2014 |
| Docket Number | No. 2012AP2185–CR.,2012AP2185–CR. |
| Parties | STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. James R. HUNT, Defendant–Appellant. |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
For the plaintiff-respondent-petitioner, the cause was argued by Eileen W. Pray, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant, there was a brief by Shelley M. Fite, assistant state public defender, and oral argument by Shelley M. Fite.
¶ 1 We review an unpublished, per curiam decision of the court of appeals 1 reversing the Jefferson County Circuit Court's judgment of conviction against the defendant, James R. Hunt.2 At trial, a jury found Hunt guilty of one count of causing a child under 13 to view or listen to sexual activity in violation of Wis. Stat. § 948.055 (2009–10).3
¶ 2 Two issues are presented for our consideration: 1) whether the circuit court erred in excluding the testimony of Hunt's friend, Matt Venske, that he never sent Hunt a video of a man and woman engaging in sexual intercourse, and if so, whether the error was harmless; and 2) whether Hunt's trial counsel provided ineffective assistance.
¶ 3 Because Venske's testimony was relevant to Hunt's theory of defense and corroborated his version of events, we hold that the circuit court erred in excluding the testimony. However, we conclude that the State met its burden of proving that it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,” State v. Harvey, 2002 WI 93, ¶ 49, 254 Wis.2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)), and thus, the error was harmless. We further determine that Hunt's ineffective assistance of counsel arguments fail under the two-part inquiry of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We conclude that, under the totality of the circumstances, Hunt received a fair trial, and our confidence in the judgment is not undermined. Accordingly, we reverse the decision of the court of appeals and reinstate the circuit court's judgment of conviction and affirm its denial of Hunt's post-conviction motion.
¶ 4 On November 11, 2010, James R. Hunt was charged with one count of sexual assault of a child under 13 in violation of Wis. Stat. § 948.02(1), and one count of causing a child under 13 to view or listen to sexual activity in violation of Wis. Stat. § 948.055(1) and (2)(a). The complaining witness was Hunt's adopted daughter, A.H. A.H. alleged that Hunt had placed her hand on his penis when she was six years old, and that when she was twelve, he had shown her three inappropriate images on his cell phone. The first image was a cartoon depiction of a woman in a dress bending over. The second image was a picture of a woman undressed from the waist up posing over a deer head and holding the antlers. The third image was a video of a man and a woman engaged in sexual intercourse.
¶ 5 Hunt pled not guilty to both charges, and the case was tried in the Jefferson County Circuit Court. During the preliminary hearing, A.H. testified that when Hunt had shown her the graphic images, he told her “this is the stuff that Matt sends me,” referring to Hunt's friend, Matt Venske, who would later testify at trial for the defense. This testimony was supported by A.H.'s account of events to Police Officer Terrance Nachtigal of the Fort Atkinson Police Department during his initial investigation of the incident, as recorded in his police report.4
¶ 6 Prior to trial, the court ruled the first two images described above did not constitute “sexually explicit conduct” under Wis. Stat. § 948.055(1).5 However, the court determined that the video of the man and woman engaged in sexual intercourse could satisfy the statutory requirements. Hunt's counsel filed a pretrial motion in limine arguing for exclusion of testimony regarding any images other than the video of sexual intercourse, citing Wis. Stat. § 906.08(2),6 but did not mention the motion during the final pretrial motion hearing. Nevertheless, Hunt's counsel objected at trial to statements regarding the two other images described by A.H. and also moved for a mistrial on that basis on two occasions. The circuit court ruled that evidence concerning these two images was relevant and admissible, explaining:
Well, these two images are not sexually explicit conduct under the statute.
They are, however, inappropriate images for an adult male to show to a minor female.
Mr. Hunt allegedly displayed these images to [A.H.] in a very short period of time on one particular occasion. So, all these three images are relevant to provide context and to fill out the picture of what occurred at that time.
These are not separate or remote incidents. All three images were allegedly displayed at about the same time.
Only one fits the definition of sexually explicit conduct. The other two, however, are inappropriate given the circumstances and are relevant to allow the State to explain the entire relevant set of circumstances to the jury.
Hunt's counsel continued to object that the other images were irrelevant each time A.H. testified regarding their content.
¶ 7 At trial, A.H. testified that Hunt had shown her the images in question in the basement of her grandparents' house. She explained that Hunt walked across the room and held the cell phone in his hand and laughed as he showed her the images, and he admonished her to never tell her mother. On cross-examination, Hunt's counsel asked A.H. the following question: “When your father showed you the pictures on his cell phone, he said something like, hey, do you want to see the kind of stuff that Matt sends me?” The State objected on hearsay grounds, and Hunt's counsel countered that the evidence was admissible as a statement against interest. The circuit court sustained the State's objection.
¶ 8 Hunt testified that he had never shown A.H. any of the images she described. Hunt explained that, on the day in question, he received a text message from Venske that said “just be glad you don't have a hernia like this.” Accompanying the message was a picture of a testicular hernia. Hunt had recently undergone surgery for an umbilical hernia, and he believed the message was meant as a joke. Hunt testified that A.H. was standing next to him when he received the text, but he did not intentionally show it to her, and he immediately turned his cell phone off after viewing the picture. Hunt also stated the image of a woman posing with a deer head described by A.H. was actually the screensaver on his cell phone for approximately a year and a half, and although he never purposefully showed it to A.H., she had seen it on his cell phone during that period. Hunt maintained he had never possessed any image of a cartoon depiction of a woman bending over or any videos of sexual intercourse, and he denied ever receiving text message images from anyone other than Venske.7
¶ 9 Hunt's theory of defense was that A.H. had seen the image of the testicular hernia and embellished the event to include other, more explicit images. Hunt believed the charges against him stemmed from his recent divorce from A.H.'s biologicalmother and the ensuing battle for custody of their biological daughter, J.H. Hunt also testified that, several months before A.H. leveled accusations against him, she had gotten into a fight with Hunt's mother during a family trip and did not see Hunt for several months after that incident.
¶ 10 Officer Nachtigal also testified at trial. Officer Nachtigal initially interviewed A.H. at the Fort Atkinson Police Department regarding her complaint against Hunt. Officer Nachtigal explained that, based on his interview with A.H., he had reason to believe Venske was the source of the inappropriate images allegedly sent to Hunt's cell phone. Following his interview with A.H., Officer Nachtigal interviewed Venske and asked him whether he had ever sent any videos to Hunt from his cell phone or computer. Officer Nachtigal testified that Venske denied sending any videos from his cell phone. Hunt's counsel then asked Officer Nachtigal if Venske admitted sending videos to Hunt from his computer, but the State objected on hearsay grounds.
¶ 11 The circuit court overruled the State's objection after issuing the following hearsay instruction to the jury:
A witness is not allowed to tell us what somebody else told him to prove that it happened. But the officer, or any witness, is allowed to discuss other conversations simply to establish who said what to whom.
So, if somebody wants to prove that Mr. Venske—.... Did something or didn't do something, they either need to have a witness who saw him do it or have Mr. Venske come in and testify himself.
When the Officer is being allowed to testify about this conversation, it's not to be used by you to determine whether Mr. Venske actually sent something from his phone or not.
It's being admitted simply so you understand the conversation that took place between these two gentlemen....
A statement is not hearsay if it's not used to prove the truth of the matter asserted, is the technical legal definition.
¶ 12 Hunt's counsel then called Venske, who testified he had sent Hunt text messages that occasionally contained pictures. Venske explained he had sent Hunt a picture of a testicular hernia as a joke following Hunt's hernia surgery, and he also had sent Hunt a picture of a topless woman posing with a deer head. Hunt's counsel then attempted to ask Venske the following question: The court interrupted counsel mid-question and pointed out that there...
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