State v. Sostre, 94-0778-CR

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: STEINMETZ
• Citation: 542 N.W.2d 774,198 Wis.2d 409
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jorge B. SOSTRE, Defendant-Appellant.
• Docket Number: No. 94-0778-CR,94-0778-CR
• Decision Date: 24 January 1996

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542 N.W.2d 774 198 Wis.2d 409 STATE of Wisconsin, Plaintiff-Respondent,
v.
Jorge B. SOSTRE, Defendant-Appellant. No. 94-0778-CR. Supreme Court of Wisconsin. Argued Nov. 28, 1995.
Decided Jan. 24, 1996.

[198 Wis.2d 411] For the defendant-appellant there were briefs and oral argument by Ruth S. Downs, Assistant State Public Defender.

For the plaintiff-respondent the cause was argued by Diane M. Nicks, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

STEINMETZ, Justice.

The issue in this case is whether a live-in boyfriend, who is a volunteer caretaker of a child, is a "person ... responsible for the welfare of [a] child," and thereby subject to the penalty enhancer found in Wis.Stat. § 948.03(5) (1993-94). ¹ We hold that a live-in

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boyfriend can be a "person ... responsible for the welfare of [a] child," if he was used by the legal guardian of the child as a caretaker for the child. In such situations, it is appropriate for the penalty enhancer found in Wis.Stat. § 948.03(5) to be applied.

The facts in this case are not in dispute. On November 10, 1991, defendant Jorge B. Sostre was charged with one count of child abuse for intentionally injuring three-year-old Joseph F. On November 12, Irene Lundin, a juvenile crisis worker, interviewed Joseph. The child told her that the defendant hit him and pointed to his head, his stomach and his buttocks. [198 Wis.2d 412] Asked where he was when this took place, the child brought the crisis worker into his bedroom and pointed to his bed and said "Poppy hit me."

The defendant's trial began on February 22, 1993. At trial, Sandra F., Joseph's mother, testified that she and Sostre had known each other about four or five years and lived together for about three years. Sandra F. said that during this time the defendant did everything that she did with regard to taking care of the children, including feeding and bathing them. She claimed that Joseph considered the defendant his father or stepfather, called him "Poppy," and that until the child abuse incident, Joseph had had a normal father-son relationship with the defendant.

Sandra then testified that on November 8, 1991, she left Joseph in the defendant's exclusive care. She rejoined her son a few hours later and discovered bruises on Joseph's face, stomach and buttocks. The defendant told her that he did not know how the child had gotten hurt. Sandra took Joseph to the hospital to treat his injuries.

Two physicians also testified for the State: Dr. Harlow LaBarge and Dr. James Concannon. Dr. LaBarge testified that during his October 24, 1991, examination of Joseph, he observed numerous older bruises on the child. He also found numerous acute injuries, including injuries to the back and abdomen, the left side of the head, the right side of the head and the top of the head. Dr. LaBarge opined that the injuries he observed on the body of Joseph were indicative of child abuse.

Dr. Concannon testified that the child told him that "Poppy" hit him and indicated that the blows were both with fists and with an open hand during the November 8, 1991, incident. The child also indicated [198 Wis.2d 413] that he had been struck about the face, the back, the butt, the penis and the belly. The doctor found the following acute injuries: bruising where the rib cage ends, along the right cheek and upper eyelid, petechiae on both cheeks of the face, and reddened areas on the buttocks. Dr. Concannon found a pattern to the injuries on the rib cage and cheek that was consistent with a slap with an open hand and which indicated more than one blow. It was his opinion, to a reasonable degree of medical certainty, that the injuries were consistent with intentional trauma and rose to the level of abuse.

At the trial, the defendant denied abusing Joseph. However, he admitted that he cared for Joseph and that he had what could be characterized as a parental relationship with Joseph while he was living with Sandra. He also admitted that all of Joseph's injuries occurred while he had the child in his exclusive custody.

A jury found the defendant guilty of physical abuse of Joseph F. pursuant to Wis.Stat. § 948.03(2)(b) (1993-94). ² He was sentenced to eight years in prison, which were stayed, and was placed on five years probation with certain conditions, including the service of one year in jail. The eight-year stayed sentence included a penalty enhancement of three years as required by Wis.Stat. § 948.03(5).

After the trial, the defendant moved for either a reduction of the sentence imposed or, alternatively, a new trial on the issue of the defendant's responsibility for the welfare of the child. The circuit court for Kenosha

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County, Michael S. Fisher, Judge, denied this motion, holding that the defendant's relationship with [198 Wis.2d 414] Joseph created a situation where the defendant became a "person ... responsible for the welfare of [a] child" under Wis.Stat. § 948.03(5). The defendant appealed this holding to the court of appeals. The court of appeals, citing due process...