State v. Gary Lee Wayerski, 2015AP1083-CR, District 3, 10/31/17 (not recommended for publication), petition for review granted 3/13/18, and modified, and afford as modified, 2019 WI 11; case activity (including briefs)
Rejecting Wayerski’s argument to the contrary, the court of appeals holds that a police officer alleged to have sexually assaulted two teenage boys could be convicted under § 948.095(3)(a), which prohibits a person over age 21 “who engages in an occupation or participates in a volunteer position that requires him or her to work or interact directly with children” from having sexual contact or sexual intercourse with a child “whom the person works or interacts through that occupation or volunteer position.” The court also rejects the challenges Wayerski makes to the conduct of his trial.
Wayerski, a village police officer, had interviewed J.P. and J.H. when investigating some thefts they were involved in. He talked with their parents about how to resolve the charges, offered to “mentor” and “supervise” the boys, and thereafter took them on patrol “ride-alongs” as part of program established by the village. Weyarski eventually invited the boys to his home, where, they testified, Wayerski showed them pornography and sexually assaulted them. (¶¶6-8, 65-66).
Wayerski argues § 948.095 is inapplicable to police officers because they don’t engage in any of the occupations or activities listed in § 948.095(3)(d). The court disagrees. “[Section] 948.095(3)(d) does not contain an exclusive list of persons who, under [sub.] (3)(a), engage in occupations or participate in volunteer positions that require them to work or interact directly with children. Rather, [sub.] (3)(d) merely allows the State to establish as prima facie evidence that defendants engaged in the listed occupations do work or interact directly with children.” (¶61). The jury wasn’t instructed that the state established such prima facie evidence, and nothing in sub. (3)(d) restricted the State from establishing that Wayerski engaged in an occupation or participated in a volunteer position that required him to work or interact directly with children, even though a prima facie case was not established. Further, a police officer may be shown to be required to work with children based on the duties under chs. 48 and 938 that involve interaction with children. (¶62).
The court also rejects Wayerski’s claim there was insufficient evidence to prove he worked in an occupation in which he interacted with children, and also concludes the jury could convict on the alternative theory that his “mentoring” and “supervision” was sufficient to prove he participated in a volunteer position involving J.P. and J.H. (¶¶64-66).
The court also rejects, in fact-intensive discussions, Wayerski’s following challenges to his trial:
- The circuit court’s denial of his motion to change venue or seek a jury from another county due to pretrial publicity. The court of appeals concludes the pretrial publicity wasn’t inherently prejudicial or inflammatory and the circuit court took exercised considerable care in picking the jury. (¶¶4, 17-20).
- The circuit court’s admission of other-acts evidence, in particular pornographic images found on his computer, his sexually explicit messages on an internet chat site, his cable bill for on-demand pornography, and a photo of his penis. The court of appeals concludes all the evidence passes the test under State v. Sullivan, 216 Wis. 2d 768, 772, 576 N.W.2d 30 (1998). (¶¶10-11, 21-42).
- Trial counsel’s failure to ask Wayerski during his testimony to deny the allegations of Clark, a jail inmate, that Wayerski confessed some of his conduct while locked up before trial. Even if trial counsel should have elicited the denial, the failure to do so wasn’t prejudicial. Clark’s credibility was suspect given the jury heard he had 20 prior convictions, Wayerski otherwise clearly he denied the allegations during his testimony, there were witnesses that one victim recanted his allegations, and the evidence as a whole was overwhelming. (¶¶12-14, 43-47).
- The state’s failure to inform Wayerski that Clark had pending criminal charges (including two counts of child sexual assault) and therefore a motive to curry favor with the state. The court of appeals finds this failure didn’t violate Brady v. Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United States, 405 U.S. 150, 154 (1972). The court holds that under State v. Randall, 197 Wis. 2d 29, 38, 539 N.W.2d 708 (Ct. App. 1995), it wasn’t “an intolerable burden” for the defense to have found the information about the witness on CCAP and in any event, even if the state should have turned over the information, it wasn’t material because Clark had already been thoroughly impeached with his 20 prior convictions. (¶¶49-57).