State v. Krueger

• Decision Date: 13 March 2013
• Docket Number: Appeal No. 2012AP51-CR,Cir. Ct. No. 2010CF307,Appeal No. 2012AP52-CR,Cir. Ct. No. 2010CF358
• Parties: STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. MACAULAY T. KRUEGER, DEFENDANT-APPELLANT.
• Court: Wisconsin Court of Appeals

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,

v.MACAULAY T. KRUEGER, DEFENDANT-APPELLANT.

Cir. Ct. No. 2010CF307

Cir. Ct. No. 2010CF358

Appeal No. 2012AP51-CR

Appeal No. 2012AP52-CR

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

Dated: March 13, 2013

NOTICE

This opinion is subject to further editing.If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.SeeWIS. STAT. § 808.10andRULE 809.62.

APPEALS from judgments and an order of the circuit court for Sheboygan County: TIMOTHY M. VAN AKKEREN, Judge.Affirmed.

Before Brown, C.J., Reilly and Gundrum, JJ.

¶1PER CURIAM.In these consolidated appeals, Macaulay T. Krueger appeals from judgments of conviction and an order denying postconviction relief.Krueger contends that there was insufficient evidence to support his convictions of causing a child under thirteen to view sexually explicitconduct.He further contends that the State violated his right to be free from double jeopardy.Finally, he contends that the circuit court erred in denying his postconviction motions based on ineffective assistance of counsel.We reject Krueger's arguments and affirm the judgments and order.¹

¶2 Krueger was convicted following a jury trial of three counts of causing a child under thirteen to view sexually explicit conduct.The charges stemmed from two separate cases that were consolidated for trial.

¶3 In the first case, Krueger was accused of twice exposing himself to Tyler W. when Tyler was eleven years old.On the first occasion, Krueger put a condom on his own erect penis in front of Tyler.On the second occasion, Krueger masturbated in front of Tyler.

¶4 In the second case, Krueger was accused of exposing himself to Megan H. when Megan was eleven years old.The exposure in that case again involved Krueger putting a condom on his own penis in front of Megan.

¶5The cases first went to trial on November 9, 2010.During direct examination in the State's case-in-chief, Tyler disclosed new details about his contact with Krueger that were not included in the discovery materials from the State.Accordingly, Krueger's counsel moved for a mistrial based upon theprejudicial nature of the new details.The circuit court agreed with counsel and granted a mistrial on both cases.

¶6 After the State provided defense counsel with additional discovery materials concerning Tyler's disclosure, Krueger's counsel moved to dismiss both cases on double jeopardy grounds.The circuit court denied the motion in an oral ruling.

¶7The cases proceeded to trial again on December 16 and 17, 2010, at which time the jury found Krueger guilty of all three counts.The circuit court subsequently imposed an aggregate sentence of eight years of initial confinement and twelve years of extended supervision.

¶8 Following sentencing, Krueger discharged his appointed attorney and filed several pro se motions for postconviction relief.He argued, among other things, that (1) the evidence was insufficient to support his convictions; (2) his double jeopardy rights were violated; and (3)he received ineffective assistance of counsel.The circuit court rejected Krueger's arguments.This appeal follows.Additional facts will be discussed below as necessary.

¶9 On appeal, Krueger first contends that there was insufficient evidence to support his convictions of causing a child under thirteen to view sexually explicit conduct.He complains that his act of putting on a condom in front of Tyler and Megan was not sexually explicit conduct.He further complains that the evidence offered against him was based on perjured testimony.

¶10 In reviewing the sufficiency of the evidence to support a conviction, this court may not substitute its judgment for that of the jury unless the evidence, viewed most favorable to the State and the conviction, is so lacking in probativevalue and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752(1990).If any possibility exists that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, this court may not overturn a verdict even if we believe that the jury should not have found guilt based on the evidence before it.Id.

¶11 To convict a person of causing a child under thirteen to view sexually explicit conduct, the State is required to prove four elements beyond a reasonable doubt: (1)the defendant caused the child to view sexually explicit conduct; (2)that act was intentional; (3) the child was under thirteen years of age; and (4)the defendant acted with the purpose of sexually arousing or gratifying himself or herself.SeeWIS JI—CRIMINAL 2125;WIS. STAT. § 948.055(2009-10).²

¶12 With respect to the charges involving Tyler, the evidence supports the jury's verdicts as to the first three elements discussed above.According to both Tyler and Krueger himself, Krueger exposed his erect penis to Tyler both in his room during the condom incident and at the YMCA during the masturbation incident.There is no dispute that the exposure was intentional, as Krueger admitted to purposefully showing Tyler the acts.Likewise, there is no dispute that Tyler was eleven years old at the time of both incidents.

¶13 The evidence also supports the jury's verdict as to the first three elements of the charge involving Megan.The jury heard evidence from Meganthat Krueger exposed his penis while in his room alone with her and later told her to not tell anyone about it.According to Amanda Roden, who did a clinical interview with Megan shortly after the incident was reported, Megan had described Krueger's penis as "pointing straight at her."Again, there is no dispute that Megan was eleven years old at the time of the incident.

¶14 Finally, we conclude that the evidence supports the jury's verdicts as to the fourth element of the charges.As noted by the State, the jury heard significant evidence that Krueger had a preoccupation with his penis, which supports the inference that he committed the acts for sexual gratification.³Moreover, in both the condom incidents and the masturbation incident, Krueger either had an erection or touched himself to get to that point.Viewing this evidence in a light most favorable to the State and the convictions, we are satisfied that a jury, acting reasonably, could have found that Krueger acted with the purpose of sexually gratifying himself when performing all three acts.

¶15 Although Krueger complains that his act of putting on a condom in front of Tyler and Megan was not sexually explicit conduct, we disagree.WISCONSIN STAT. § 948.01(7)(e) defines "sexually explicit conduct" to include "[l]ewd exhibition" of a person's intimate parts.Here, the jury heard evidence from Tyler that Krueger touched his penis to make it erect and evidence from Megan's initial report that Krueger's penis was "pointing straight at her."Accordingly, it was entitled to make a commonsense finding of "lewdness" in Krueger's exhibition of his penis.

¶16We also reject Krueger's argument that the verdicts cannot be supported because the evidence offered against him was based on perjured testimony.In addition to presenting no evidence of perjury, this argument fails because the jury, as fact finder, was charged with determining the credibility of witnesses and weighing the evidence.SeePoellinger, 153 Wis. 2d at 506.As demonstrated by its verdicts, the jury believed the evidence offered by the State.We are satisfied that such evidence was not "inherently or patently incredible" and therefore could be reasonably relied upon.State v. Tarantino, 157 Wis. 2d 199, 218, 458 N.W.2d 582(Ct. App.1990).

¶17 Krueger next contends that the State violated his right to be free from double jeopardy.This claim arises from the State's decision to prosecute him after the circuit court had granted the mistrial.

¶18 As noted, Krueger's cases first went to trial on November 9, 2010.The State began its case-in-chief by calling Tyler's mother and father.It then called Tyler to the stand.

¶19 During his direct examination, Tyler disclosed new details about his contact with Krueger that were not included in the discovery materials from the State.Specifically, Tyler stated that Krueger gave him "this weird measuring thing," made Tyler measure his own penis, and also measured his penis with the device.The prosecutor followed up with questions about the details of where and how the measuring occurred.

¶20 Krueger's counsel moved for a mistrial based upon the prejudicial nature of the new details.In response, the prosecutor indicated that Tyler had "never disclosed this in interviews" and thus the information was not part of the discovery materials.The prosecutor also objected to the proposed mistrial, arguing that the problem could be addressed with a curative instruction to the jury.Ultimately, the circuit court agreed with defense counsel and granted a mistrial on both cases.

¶21 The next day, the prosecutor wrote a letter to the circuit court and defense counsel to further explain the circumstances that prompted the mistrial.In it, he explained that during trial preparation, Tyler had made a brief statement about Krueger telling him to measure his penis.The prosecutor explained that he"did not think much of this statement during our preparation" and did not do much, if any, follow-up on the topic.He stated that both he and the assigned detective expressed surprise that Tyler had made the additional statement because he had not done so during his earlier interviews.The prosecutor acknowledged that he should have instructed Tyler to not say anything about the measuring and that he should not have followed up on the topic after Tyler disclosed it at trial.Finally, he noted that he did not inform defense cou...