State v. Vander Logt, 96-2015-CR
| Decision Date | 17 June 1998 |
| Docket Number | No. 96-2015-CR,96-2015-CR |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Roger P. VANDER LOGT, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from judgments and an order of the circuit court for Manitowoc County: FRED H. HAZLEWOOD, Judge. Affirmed in part; reversed in part and cause remanded.
Before SNYDER, P.J., and BROWN and ANDERSON, JJ.
Roger P. Vander Logt has appealed pro se from judgments convicting him of five counts of sexual exploitation of a child in violation of § 948.05(1)(b), STATS.; eleven counts of possession of child pornography in violation of § 948.12, STATS.; three counts of attempted sexual exploitation of a child in violation of § 939.32, STATS., and § 948.05, STATS.; and one count each of exposing his genitals in violation of § 948.10, STATS., and exposing a child to harmful material in violation of § 948.11(2)(a), STATS. The judgments were entered pursuant to no contest pleas, in exchange for which twenty-two other counts were dismissed.
Vander Logt was sentenced to a total of fifteen years in prison for the five counts of sexual exploitation of a child. Concurrent terms of nine months each were imposed for the convictions for exposing genitals and exposing a child to harmful materials. Vander Logt was given consecutive sentences of five years each for the attempted sexual exploitation charges, which were imposed and stayed in favor of a fifteen-year term of probation to commence upon his discharge from the sexual exploitation sentences. In addition, he was given consecutive sentences of two years each for the possession of child pornography convictions. Those sentences were also imposed and stayed in favor of a fifteen-year term of probation.
In addition to appealing his judgments of conviction, Vander Logt has appealed from an order denying postconviction relief. We affirm that order. In addition, we affirm the judgments in their entirety, with the exception of the conviction for possessing child pornography set forth in count ten of the complaint, which alleged that Vander Logt possessed a poster of Debra R. Because the State concedes that this item does not constitute a lewd exhibition of the subject's genitals, we reverse the portion of the judgment convicting Vander Logt of this particular count. We vacate the imposed and stayed two-year sentence for this count, thus reducing the total time Vander Logt would have to serve for the possession of child pornography charges if his probation was revoked from twenty-two years to twenty years.
None of the remaining arguments raised by Vander Logt provides a basis for relief from the judgments or the order. Vander Logt's first contention is that his appointed postconviction counsel rendered ineffective assistance by failing to investigate and pursue certain issues in the postconviction proceedings, leading Vander Logt to discharge him and proceed pro se on appeal. However, claims of ineffectiveness in the postconviction representation provided by appointed counsel must be raised in the context of a § 974.06, STATS., motion or a petition for a writ of habeas corpus filed in the trial court. See State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 681, 556 N.W.2d 136, 139 (Ct.App.1996). The issue cannot be raised in Vander Logt's direct appeal from his judgments of conviction and the order denying the motion for postconviction relief filed by counsel.
Vander Logt's next argument is that certain of his convictions were multiplicitous and violated double jeopardy protections. Specifically, he objects that the same pictures and videotape provided the basis for his conviction of three counts of sexual exploitation of a child and four counts of possessing child pornography. He contends that possession of child pornography is in fact a lesser included offense of sexual exploitation of a child.
Wisconsin applies the "elements only" test to determine whether one crime is a lesser included offense of another. See State v. Kuntz, 160 Wis.2d 722, 754, 467 N.W.2d 531, 544 (1991). Under the elements only test, an offense is a lesser included only if all of its statutory elements can be demonstrated without proof of any fact or element in addition to those which must be proved for the greater offense. See id. at 754-55, 467 N.W.2d at 544. An offense is not a lesser included if it contains an additional statutory element. See id. at 755, 467 N.W.2d at 544.
The elements only test requires this court to place the statutes defining the offenses side by side to compare the elements of each. See State v. Carrington, 134 Wis.2d 260, 265-66, 397 N.W.2d 484, 487 (1986). Doing so here, it is clear that possession of child pornography is not a lesser included offense of sexual exploitation of a child, regardless of whether the charges arise from the taking of the same picture. Sexual exploitation of a child under § 948.05(1)(b), STATS., requires that the defendant photographs, films, videotapes, records the sounds of or displays a child engaged in sexually explicit conduct. Proof of this element is not required for a conviction for possession of child pornography under § 948.12, STATS. Conversely, conviction under the latter statute requires proof that the defendant possesses the prohibited material, an element which need not be shown for conviction under § 948.05(1)(b).
Because possession of child pornography thus is not a lesser included offense of sexual exploitation of a child under the elements only test, punishment for both offenses is constitutionally permissible absent a clear indication of a legislative intent to the contrary. See Kuntz, 160 Wis.2d at 756, 467 N.W.2d at 544-45. Other factors which may indicate a contrary legislative intent regarding multiple punishments are the language of the statutes, the legislative history, the nature of the proscribed conduct, and the appropriateness of multiple punishments. See id. at 756, 467 N.W.2d 531, 467 N.W.2d at 545. We have been shown nothing related to these factors which indicates a contrary legislative intent here. The fact that possession of child pornography is proscribed in a statute separate from the sexual exploitation statute reinforces the conclusion that the legislature intended to permit multiple punishments. Cf. State v. Bruckner, 151 Wis.2d 833, 847, 447 N.W.2d 376, 382 (Ct.App.1989). Moreover, as pointed out by the State, a child who is photographed while engaging in sexually explicit conduct is victimized not only when his or her photo is taken, but each time the photo is viewed by a person who possesses it. Nothing in the nature of the proscribed conduct therefore indicates that multiple punishments for possession of child pornography and sexual exploitation of a child are inappropriate.
Vander Logt also appears to complain that many of the sexual exploitation counts of which he was convicted were the same in fact because although different photographs were taken, they were taken of the same child at the same place on the same day. He indicates that he should have been convicted of just one violation of § 948.05(1)(b), STATS., for each of the several victims.
Charges are multiplicitous if they are identical in law and fact. See State v. Davis, 171 Wis.2d 711, 716, 492 N.W.2d 174, 176 (Ct.App.1992). Because Vander Logt was charged with multiple violations of § 948.05(1)(b), STATS., those charges are the same in law. See Davis, 171 Wis.2d at 716, 492 N.W.2d at 176. However, whether they are the same in fact depends upon whether one count requires proof of an additional fact which the other does not. See id. Offenses are different in fact if they are separated in time, are significantly different in nature, or if each involves a separate volitional act. See id. at 717, 492 N.W.2d at 176. Separate volitional acts occur when there is sufficient time between the acts for the defendant to reflect upon his or her actions and recommit himself or herself to the criminal activity. See id. at 717-18, 492 N.W.2d at 176.
These tests are satisfied here. As set forth in the State's brief, while all of the pictures taken by Vander Logt depicted girls engaged in sexually explicit conduct, the various pictures of each individual girl involved different poses in different settings and sometimes in different outfits. Because Vander Logt had to take the time to set up each different picture, the photos were separated in time. In addition, because he had to reconsider his actions with each picture he took, each picture involved a separate volitional act. For these reasons, all of the sexual exploitation charges must be deemed different in fact. 1
Like the situation where a defendant is charged with different statutory violations, charges which are the same in law but different in fact may still be multiplicitous if the legislature intended that only a single count should be charged. See State v. Carol M.D., 198 Wis.2d 162, 173, 542 N.W.2d 476, 480 (Ct.App.1995). However, when charges satisfy the test of being different in law or fact, then this court must presume that the legislature intended to permit cumulative punishments. See id.
As previously set forth, when determining legislative intent for multiplicity purposes, this court considers the language of the statute, its context and legislative history, the nature of the proscribed conduct, and the appropriateness of multiple punishments. See id. In this case, the language of § 948.05, STATS., proscribes numerous different activities involving children and gives no indication that each act in violation of the statute cannot be punished separately. Similarly, nothing shown to this court in the legislative history of the statute indicates that a defendant cannot be separately punished for each...
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