State v. Pittman, 91-1413-CR

Citation485 N.W.2d 838,168 Wis.2d 358
Decision Date24 March 1992
Docket NumberNo. 91-1413-CR,91-1413-CR
CourtCourt of Appeals of Wisconsin

Page 838

485 N.W.2d 838
168 Wis.2d 358
STATE of Wisconsin, Plaintiff-Respondent,
Anthony PITTMAN, Defendant-Appellant.
No. 91-1413-CR.
Court of Appeals of Wisconsin.
March 24, 1992. *

Appeal from a judgment and an order of the circuit court for Milwaukee county, Frank T. Crivello, Judge.

Circuit Court, Milwaukee County


Before MOSER, P.J., and SULLIVAN and FINE, JJ.


Anthony Pittman was convicted of one count of second degree sexual assault in violation of sec. 940.225(2)(d), Stats. He appeals from the judgment of conviction and the order denying his motion for post-conviction relief. Pittman contends that sec. 940.255(2)(d) is unconstitutionally vague. He also contends that he was denied the opportunity to present a defense, in violation of his constitutional rights, when the trial court denied him the right to present expert testimony on sleep, refused to admit a blood alcohol chart, and refused to allow him to question the complaining witness concerning an allegation that she had earlier falsely complained of being sexually assaulted. Furthermore, Pittman contends that the jury instruction defining "unconsciousness" as a loss of awareness that may be caused by sleep denied his due process and fair trial rights. We reject his arguments and affirm the judgment and order.

H.B. spent the afternoon and evening of Christmas Day 1989, at the apartment of her boyfriend, M. Kelner. After spending some time together in the afternoon, they joined Kelner's downstairs neighbors for a Christmas celebration that ended after dinner. H.B. and Kelner returned to his apartment. Both parties indicated that they anticipated sexual activity. While H.B. prepared for bed, Kelner went into the living room. Kelner wanted to play his turn on a board game that he had been playing over several days with H.B.'s brother. He testified that he fell asleep in the living room listening to Christmas songs. H.B. also fell asleep.

Pittman had been staying with Kelner. He was present for the Christmas festivities and dinner. When H.B. and Kelner returned to Kelner's apartment, Pittman had remained downstairs and watched television with the downstairs neighbor. Later, the neighbor called Kelner's apartment and when no one answered the telephone, Pittman went up to the apartment.

H.B. testified that she awoke feeling pressure on her legs and a penis being removed from her vagina. She then saw Pittman getting up off of her. Neither she nor Pittman spoke, and he turned and left the room. H.B. got up, wrapped a blanket around herself, and went into the living room. She woke Kelner and told him Pittman had raped her. Pittman was on the sofa next to Kelner, apparently asleep. Additional facts will be recited as relevant.


Section 940.225(2)(d), Stats., prohibits "sexual contact or sexual intercourse with a person who the defendant knows is unconscious." The court of appeals has previously held that, as used in sec. 940.225(2)(d), Stats., "unconscious" describes a state characterized by a loss of awareness and this loss of awareness may be caused by sleep. State v. Curtis, 144 Wis.2d 691, 695-96, 424 N.W.2d 719, 721 (Ct.App.1988). The court reached its conclusion after examining dictionary definitions of "unconscious" and "sleep". "Unconscious" implies the state of not knowing or perceiving, and "sleep" is a natural suspension of consciousness. Id. at 695, 424 N.W.2d 721. Pittman argues that extending the definition of "unconscious" to include a lack of awareness resulting from sleep makes the statute void for vagueness.

Because legislative enactments are presumed constitutional, the person challenging the constitutionality of a statute must establish its unconstitutionality beyond a reasonable doubt, and every presumption and doubt are resolved in favor of the statute's constitutionality. State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989). The issue presents a question of law, which this court reviews de novo. Id.

A criminal statute is unconstitutionally vague if it does not give reasonable notice of the proscribed conduct, i.e. if persons of common intelligence are left to guess at its meaning and will differ as to its applicability. State v. Tronca, 84 Wis.2d 68, 86, 267 N.W.2d 216, 224 (1978). The statute must be sufficiently definite so that a person wishing to obey the law has sufficient warning that his or her conduct is near the proscribed area. Id. The statute must also provide standards so that those who enforce the law and adjudicate guilt may apply the law objectively to a defendant's conduct without creating or applying their own standards. State v. Popanz, 112 Wis.2d 166, 173, 332 N.W.2d 750, 754 (1983).

Pittman's argument appears to be two-fold. First, the Curtis decision was wrong because it ignored the definition of "unconscious" in State v. Disch, 129 Wis.2d 225, 234-35, 385 N.W.2d 140, 144 (1986). Second, there are no guidelines to indicate what stage or level of sleep produces a sufficient lack of awareness to equate it with being unconscious.

The Disch case construed a portion of the implied consent law at sec. 343.305(2), Stats. This section is part of the laws against driving while intoxicated, and it provides that the holder of a motor vehicle license consents to blood alcohol tests if certain conditions are met. Section 343.305(2). If a person is "unconscious or otherwise not capable of withdrawing consent" and other conditions are met, the statute creates a presumption that the consent is not withdrawn. Section 343.305(3)(b), Stats. The Disch court stated that "unconscious" describes "a person who is insensible, incapable of responding to sensory stimuli, or in a state lacking conscious awareness." Disch, 129 Wis.2d at 234-35, 385 N.W.2d at 144. There is no conflict between Disch and Curtis. One whose consciousness is naturally suspended by sleep is "in a state lacking conscious awareness."

Pittman's second argument also lacks merit. The Curtis decision did not equate sleep and unconsciousness; rather, the court concluded that the loss of awareness characterizing the state of unconsciousness may be induced by sleep. Curtis, 144 Wis.2d at 695-96, 424 N.W.2d at 721. The proscribed behavior is sexual contact or sexual intercourse with a person who is not consciously aware of the situation. Furthermore, the defendant must know that the victim is unconscious. The jury must still determine whether the victim was "unconscious", i.e., whether she was at a level of sleep that produced a sufficient lack of awareness. Additionally, the jury must determine whether the defendant knew of that lack of awareness. 1


Pittman challenges three evidentiary rulings claiming that they violated his constitutional right to present a defense. After hearing an offer of proof, the trial court refused to allow Dr. Paul Nausieda to testify about the physiology of sleep or to render an expert medical opinion. The court also refused to allow into evidence a chart showing blood alcohol concentrations by number of drinks consumed and body weight. Finally, the trial court refused to allow questioning of H.B. to develop evidence that she had previously made a false accusation of sexual assault.

A fundamental element of due process of law is the right to present a defense through the defendant's own witnesses. Washington v. Texas, 388 U.S. 14, 19 (1967). Thus, a state cannot arbitrarily disqualify a witness who would testify to events he or she personally observed if the testimony would be relevant and material. Id. at 23. Nor can a state mechanically apply hearsay rules to exclude testimony critical to the defense if the circumstances indicate the statements are reliable. Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

The right to present a defense does not, however, include the right to present irrelevant evidence. Milenkovic v. State, 86 Wis.2d 272, 286, 272 N.W.2d 320, 327 (Ct.App.1978). Evidence is irrelevant if it does not tend to prove a fact of consequence to a material issue. Section 904.01, Stats. This court will uphold the trial court's determination of relevancy unless the ruling constitutes an abuse of discretion. State v. Pharr, 115 Wis.2d 334, 345, 340 N.W.2d 498, 503 (1983). Even if there is an abuse of discretion, reversal is not automatic. Schmid v. Olsen, 111 Wis.2d 228, 237, 330 N.W.2d 547, 552 (1983). This court is obligated to conduct an independent review of the record to determine if there are facts of record that would support the trial court's discretionary decision had discretion been exercised on the basis of those facts. Id. If so, we are obligated to uphold the decision. Id.

The theory of Pittman's defense was that H.B. was conscious of, and consented to, sexual intercourse. Afterwards she accused him of sexual assault either because she panicked or because she wanted attention from Kelner. Consequently, a critical issue is whether H.B. was sleeping so soundly that she was not conscious of the sexual activity until it was completed. To bolster H.B.'s version of events, the prosecution introduced evidence that she always...

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