State v. Kevin L.C.

• Decision Date: 04 December 1997
• Docket Number: No. 97-1087-CR,97-1087-CR
• Citation: 576 N.W.2d 62,216 Wis.2d 166
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. KEVIN L. C., Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 62

576 N.W.2d 62

216 Wis.2d 166

STATE of Wisconsin, Plaintiff-Respondent, v. KEVIN L. C., Defendant-Appellant. ^d

No. 97-1087-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 2, 1997.

Opinion Released Dec. 4, 1997.

Opinion Filed Dec. 4, 1997.

[216 Wis.2d 168] On behalf of the defendant-appellant, the cause was submitted on the briefs of John D. Lubarsky, Assistant State Public Defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Thomas J. Balistreri, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

Amicus curiae brief was filed by Robert R. Henak of Shellow, Shellow & Glynn, S.C. of Milwaukee, for American Civil Liberties Union of Wisconsin Foundation, Inc.

Before EICH, C.J., and ROGGENSACK and DEININGER, JJ.

DEININGR, Judge.

Kevin C. appeals a judgment convicting him of one count of first-degree sexual assault of a child in violation of § 948.02(1), STATS., and three counts of exposing a child to harmful materials contrary to § 948.11(2)(a), STATS. Kevin also appeals the denial of his motion for postconviction relief. Kevin claims the trial court violated his constitutional right of confrontation by declaring the child victim of the sexual assault, A.R., "unavailable" to testify at trial, and thereafter admitting statements A.R. had made to a social worker under the "residual" hearsay exception, § 908.045(6), STATS. Kevin also argues that § 948.11, which criminalizes the act of exposing a child to harmful materials, is unconstitutional because the statute does not require the State to prove the defendant knows the recipient of the materials is a minor. We reject both of Kevin's claims and affirm the judgment of conviction and the order denying postconviction relief.

BACKGROUND

Barbara R. and Michelle C. are sisters. In October 1994, Barbara and her four children went to live with Michelle, her husband Kevin and their three children. Sometime between October 30 and December 1, 1994, while living with Kevin and Michelle, Barbara left her children, including her five-year-old daughter A.R., with Kevin while she and Michelle left to do some errands. When the two returned from the errands they found Kevin and the children asleep in various rooms of the mobile home and nothing seemed out of the ordinary. On December 5 1994, Barbara and her children moved out of the home after an argument between Kevin and Barbara.

After moving out, Barbara returned to the home twice during December 1994 and January 1995. The second time Barbara did so, A.R. was with her. During this visit, A.R. called Kevin a "pussy licker." A.R. had used profanity before but her mother reported that she had never heard A.R. use the term "pussy licker" prior to that occasion. At Barbara's house later that evening, A.R. drew a picture of a penis. When questioned by her mother about the drawing, A.R. stated that Kevin pulled down her pants and licked her privates. Barbara contacted her family therapist who then contacted Grant County Social Services.

About two weeks later, a Grant County social worker, along with a sheriff's deputy, came to Barbara's home. The social worker interviewed A.R. in Barbara's home while Barbara remained in a separate room. During this interview, A.R. told the social worker that she saw Kevin's "peedoe" when her mom was at the store getting pizzas. A.R. reported that Kevin touched her "boobies" and her "peepee" in the bathroom at Kevin's house. A.R. stated that Kevin took off all his and A.R.'s clothes and then stuck "his peter into [A.R.'s] pussy." A.R. also stated that, while Kevin was having sex with her, B.R. (A.R.'s brother) and J.C. (Kevin's son) were getting knives. According to A.R., "[t]hey [B.R. and J.C.] were gonna stab Kevin and beat him up and cut his peter off. [bec]ause he's [Kevin] a fucking prick."

The social worker asked A.R. if she was ever with Kevin in his room. A.R. stated that Kevin "[g]rabbed my, got my hair, and got my hair, and he goes and gets a naughty movie out and I took off." A.R. claimed that she, along with B.R. and J.C., saw this movie. A.R. also stated that Kevin showed her a naughty magazine. When Kevin heard Barbara and Michelle return home he apparently took the naughty movie out and put in a "Barney" videotape.

At trial, A.R.'s interview with the social worker was read to the jury after the trial court had declared A.R. unavailable to testify at trial. The social worker repeated the questions she asked A.R., and A.R.'s answers were read by a sheriff's deputy. Additionally, a transcript of that interview was offered and received into evidence. Kevin objected to the reading and introduction of the transcript and moved for a mistrial following its presentation to the jury.

A.R.'s brother, B.R., who was eight years old, testified at trial. He reported that on one occasion his mother, Barbara, left him and his three sisters with Kevin. B.R. claimed that Kevin put a naughty movie in the VCR after his mother and Michelle left. B.R. testified that he watched this movie in which people were "humping" and doing other sexual acts. B.R. stopped looking at the movie when Kevin grabbed A.R. and went into the bedroom. B.R. said that he and J.C. looked underneath the bedroom door and saw Kevin and A.R. with no clothes on "[h]umping" on the bed. During this time, A.R. and J.C. had knives and were using them to "stab[ ] holes in the door" so that they could see what was happening in the bedroom. B.R. stated that, when Kevin went into the bathroom to get a dirty magazine, B.R. and J.C. tried to trap him there but Kevin was able to take the knives and return to the bedroom. B.R. then went back to looking under the door of the bedroom where he then saw "Kevin pushing [A.R.'s] head down to his D-I-C-K." Kevin then apparently heard his wife and Barbara return home, got dressed, and took out the dirty movie and replaced it with a "Barney" video.

J.C., Kevin's five-year-old son, testified at trial that Kevin never showed him a dirty movie. He also testified that he never saw his dad do anything to any of the children; that he never heard anyone talk about "humping"; and that he and B.R. never looked underneath the bedroom door. Kevin also testified at trial. He described numerous arguments between himself, Michelle and Barbara and denied that he sexually assaulted A.R. Kevin did admit to owning a pornographic videotape which he kept in his bedroom.

The jury found Kevin guilty on all counts. Kevin sought postconviction relief, alleging that the trial court violated his constitutional right to confrontation when it determined A.R. was unavailable and allowed her out-of-court statements to the social worker into evidence. In addition, Kevin claimed that § 948.11, STATS., Exposing a Child to Harmful Materials, is unconstitutional on its face because the statute does not require the State to prove, as an element of the offense, that the defendant knows the victim is a minor. The trial court denied Kevin's motion for postconviction relief, concluding again that A.R. was unavailable at trial pursuant to § 908.04(1)(b), STATS., and that her statements to the social worker were properly admitted "as a hearsay exception under the catch-all clause." Section 908.045(6), STATS. The court also denied Kevin's motion to declare § 948.11, unconstitutional. Kevin appeals his conviction and the order denying his postconviction motion.

ANALYSIS

a. Standards of Review

A decision to admit or exclude evidence is a matter within the discretion of the trial court. State v. Sorenson, 143 Wis.2d 226, 240, 421 N.W.2d 77, 82 (1988). Whether the admission of a particular item of evidence violates a defendant's constitutional right of confrontation, however, is a question of law which we review de novo. See State v. Riddle, 192 Wis.2d 470, 475, 531 N.W.2d 408, 410 (Ct.App.1995) (we review the application of a constitutional standard to undisputed facts without deference to the trial court). Likewise, whether a statute is unconstitutional on its face is a question of law which we decide independently of the trial court. Szarzynski v. YMCA, 184 Wis.2d 875, 883-84, 517 N.W.2d 135, 138 (1994).

b. Confrontation Clause

A.R.'s out-of-court statement to the social worker, in which she described the charged incident, is hearsay. See § 908.01(3), STATS. The trial court admitted the statement under Wisconsin's residual hearsay exception, § 908.045(6), STATS., after concluding that A.R. was unavailable to testify regarding the incident. Section 908.045(6) provides, in relevant part:

908.045 Hearsay exceptions; declarant unavailable.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

.

(6) OTHER EXCEPTIONS. A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.

Kevin does not challenge the trial court's conclusion that A.R.'s interview fell within the residual exception to the hearsay rule under § 908.045(6).

Some evidence that is admissible under a hearsay exception, however, is nonetheless barred by the Confrontation Clause ¹ when offered by the State in a criminal prosecution. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990). Once a witness has been shown to be unavailable, his or her out-of-court statement may be admitted " 'only if it bears adequate 'indicia of reliability.' ' " Id. at 814-15, 110 S.Ct. at 3146 (quoted source and internal quotation marks omitted). The State conceded in its brief that, in order to satisfy the Confrontation Clause in this case, it was required to (1) either produce A.R., or demonstrate her unavailability, and (2) establish that her out-of-court statement bore sufficient indicia of reliability. ² Kevin claims the State failed to meet either requirement. We therefore address both A.R.'s unavailability to testify and the indicia of...