State v. Tarantino

• Decision Date: 27 June 1990
• Docket Number: No. 88-0176-CR,88-0176-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Louis A. TARANTINO, Jr., Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 582

458 N.W.2d 582

157 Wis.2d 199

STATE of Wisconsin, Plaintiff-Respondent, v. Louis A. TARANTINO, Jr., Defendant-Appellant. ^d No. 88-0176-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 17, 1990.

Opinion Released June 27, 1990.

Opinion Filed June 27, 1990.

Frank Joseph Schiro, Milwaukee, Douglass K. Jones of Law Offices of Dewane, Dewane, Kummer & Lambert, Manitowoc, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Christopher G. Wren, Asst. Atty. Gen., for plaintiff-respondent.

Before NETTESHEIM, P.J., and BROWN and SCOTT, JJ.

NETTESHEIM, Presiding Judge.

Louis A. Tarantino, Jr. appeals from an order denying his motion for postconviction relief. A jury found Tarantino guilty of fourteen counts of first-degree sexual assault on three of his stepdaughters. At the jury trial, the state introduced videotaped testimony of the three child victims. The lead issue on appeal concerns the admissibility of the videotape under Wisconsin's videotape statute, sec. 908.08, Stats., and the constitutionality of that statute.

We conclude that the trial court properly admitted the videotaped testimony of all three victims under sec. 908.08, Stats., and that the statute is constitutional on its face and as applied. Tarantino also argues insufficiency of the charging document, insufficiency of the evidence, reversal in the interests of justice and abuse of sentencing discretion. We reject these further arguments and affirm the trial court's order.

Tarantino was charged with fourteen counts of first-degree sexual assault. The victims, M.L.K., B.J.K. and K.A.K., were Tarantino's stepdaughters, and the assaults occurred when M.L.K. was eight or nine years old, B.J.K. was five or six years old, and K.A.K. was seven or eight years old. ¹ At the preliminary hearing, all three girls testified to the assaults on direct and cross-examination, and their testimony was videotaped.

Pretrial, the state moved the trial court to admit the videotape into evidence at trial, pursuant to sec. 908.08, Stats. Tarantino objected. Following a hearing, the trial court ruled that the videotaped testimony of all three girls was admissible under sec. 908.08. At the time of trial M.L.K., B.J.K. and K.A.K. were twelve-and-a-half, ten-and-a-half and nine years old, respectively. As required by sec. 908.08(1), all three girls were available to testify at the trial. As to each girl, the jury viewed the direct examination videotape and the state declined to pursue further live direct; the jury then viewed the cross-examination videotape and Tarantino pursued live cross-examination.

The jury returned guilty verdicts on all fourteen counts. The trial court sentenced Tarantino to twenty years' imprisonment for each of the first twelve counts and structured the sentences to provide for forty years' incarceration. Consecutive to these sentences, the trial court imposed ten years' probation for counts thirteen and fourteen. Tarantino filed a postconviction motion in the trial court challenging the admission of the videotape, the sufficiency of the evidence, and the sentences. The trial court denied the motion for postconviction relief. Tarantino appeals.

I. SUFFICIENCY OF THE INFORMATION

The first issue is whether the trial court erred when it refused to dismiss the information. The information stated that counts one through twelve occurred "sometime in 1982 or 1983" and that count thirteen occurred "sometime during the school year of 1985 to 1986." Tarantino contends that the alleged time frames are overbroad and deprived him of his constitutional right to notice, due process, compulsory process and a fair trial. See State v. Fawcett, 145 Wis.2d 244, 426 N.W.2d 91 (Ct.App.1988); State v. R.A.R., 148 Wis.2d 408, 435 N.W.2d 315 (Ct.App.1988).

We, however, are unable to review the merits of this argument since Tarantino has failed to provide us with necessary portions of the record. While the record does include a "motion to make more definite and certain" and a "motion for a bill of particulars," we are not provided any record of the arguments for or against these motions. ² Most importantly, we are not provided any record of the trial court's reasoning and rulings on the matter. It is well established that, when an appeal is brought on a partial transcript, the scope of our review is necessarily limited to those portions of the record that are available to us. State v. Aderhold, 91 Wis.2d 306, 314, 284 N.W.2d 108, 112 (Ct.App.1979). ³

II. ADMISSIBILITY OF THE VIDEOTAPE

The next issue is whether the trial court properly admitted the videotape into evidence pursuant to sec. 908.08, Stats., titled "Videotaped statements of children." Tarantino argues that admission was improper because sec. 908.08 is inapplicable to videotaped preliminary hearing testimony. Alternatively, he contends that even if the statute is applicable, the videotape in this case did not meet the statutory criteria for admission and was inadmissible hearsay. We reject Tarantino's arguments and affirm the trial court's rulings.

Generally, the admissibility of evidence presents a question of trial court discretion. State v. Mares, 149 Wis.2d 519, 525, 439 N.W.2d 146, 148 (Ct.App.1989). An abuse of discretion can occur if the trial court's evidentiary ruling is premised upon an error in the appropriate and applicable law. Id. Whether the videotape falls within sec. 908.08, Stats., presents a question of statutory interpretation. See Mares, 149 Wis.2d at 525, 439 N.W.2d at 148. This is a question of law to which we apply an independent standard of review. Id.

Tarantino first argues that the videotape should not have been admitted under sec. 908.08, Stats., because the girls' preliminary hearing testimony is not an "oral statement" within the meaning of the statute. Section 908.08 reads in relevant part:

Videotaped statements of children. (1) In any criminal trial or hearing ... the court or hearing examiner may admit into evidence the videotaped oral statement of a child who is available to testify, as provided in this section.

Tarantino reasons that the legislature could not have intended that a videotape could be made at one judicial proceeding for use at another. We reject this argument.

In construing sec. 908.08, Stats., we must ascertain legislative intent by first looking to the language of the statute itself. State v. Pham, 137 Wis.2d 31, 34, 403 N.W.2d 35, 36 (1987). Only if the language of the statute is ambiguous are we permitted to look beyond the statutory language and examine the scope, history, context, subject matter, and object of the statute to discern legislative intent. Id. We can refer to a recognized dictionary for the common and approved meaning of words. State v. McCoy, 143 Wis.2d 274, 287, 421 N.W.2d 107, 111 (1988).

Webster's Third New International Dictionary 1585 (1976), defines "oral" as "conducted or delivered by the spoken word." The same source defines "statement" as "the act or process of stating, reciting, or presenting orally or on paper." Id. at 2229. An oral statement thus is a presentation delivered by the spoken word. Accordingly, we conclude that the girls' preliminary hearing testimony constituted "oral statements" within the plain meaning of sec. 908.08, Stats.

Moreover, we see no basis for distinguishing an oral statement as given at a preliminary hearing from oral statements generally. If anything, an oral statement at a preliminary hearing is more reliable because it is given under oath or other circumstances which impress upon the child witness the importance of being truthful.

Tarantino next argues that the videotaped testimony of the oldest child, M.L.K., was erroneously admitted because there was no basis for finding that the "interests of justice" warranted admission. See sec. 908.08(3)(a)2, (4), Stats. We disagree. These subsections provide that the videotaped statement of a child "at least 12 years of age but younger than 16 years of age" shall be admitted if the "interests of justice warrant [its] admission." Sec. 908.08(4). ⁴

Because M.L.K. was twelve-and-one-half years of age at the time of trial, admission of her videotaped statements turned upon whether the trial court correctly determined that the "interests of justice warrant[ed] its admission." Sec. 908.08(3)(a)2, Stats. Subsection (4) lists nine factors which the trial court may take into consideration when making this determination. ⁵

The trial court made findings as to all of the factors listed in sec. 908.08(4), Stats. The court determined that admissibility was not warranted under most of the factors. However, the court concluded that two factors weighed heavily in favor of admissibility. Those factors were the nature of the crime and the close emotional relationship M.L.K. had with the other two victims and Tarantino, see subsec. (4)(c), and the showing of the videotape would lessen the number of times M.L.K. would have to testify about the sexual assaults, see subsec. (4)(i). After balancing all the factors, the court concluded that admission of the videotape would be appropriate.

We uphold the trial court's factual findings as to each of the statutory factors since they are not clearly erroneous. Sec. 805.17(2), Stats. Furthermore, the trial court's reasoning process is reflected in the record. The trial court exercised its discretion in accord with the proper legal standards and facts of the case. State v. Stinson, 134 Wis.2d 224, 232, 397 N.W.2d 136, 139 (Ct.App.1986). Thus, no abuse of discretion occurred and we affirm the admissibility of M.L.K.'s videotaped statements under sec. 908.08, Stats.

Tarantino next challenges the admission of the videotape on hearsay grounds, arguing that the witnesses were available and, thus, the videotape was inadmissible. Tarantino relies on State v. Sorenson, 152 Wis.2d 471, 488, 449 N.W.2d 280, 287 (Ct.App.1989), which held that the state's use of the videotaped statement of an...