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Jury Instructions: Exposing Child to Harmful Materials – Accident Defense – Waiver; Evidence: Richard A.P. – Corroboration Rule; Evidence: Character – Polygraph Offer; Voluntary Statement

State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply

Jury Instructions – Exposing Child to Harmful Materials

The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter.

¶11 We agree with the trial court’s assessment that the pattern instruction accurately states the law. Before the jury could find Gonzalez guilty, the trial court’s jury instruction required the State to prove, among other things, that Gonzalez “exhibited or played harmful material to A[.]G[.]” and “had face-to-face contact with the child before or during the exhibition or the playing of the material.” (Emphasis added.) Encompassed within this instruction was the requirement that the jury find Gonzalez had the requisite knowledge. See State v. Thiel, 183 Wis. 2d 505, 535, 515 N.W.2d 847 (1994) (“[A]n individual violates [Wis. Stat. § 948.11] if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor or minors material defined as harmful to children….”). The “exhibited or played harmful material to” language of the instruction required a finding by the jury that Gonzalez acted affirmatively [i.e., knowingly]—as opposed to accidentally. (Emphasis added.) Moreover, as discussed later in this opinion, see infra ¶18, in order to prove the requisite face-to-face contact, the jury would have had to find that Gonzalez was aware of (i.e., had knowledge of) A.G.’s presence in the room.

The court deems Gonzalez’s proposed alternative (¶7), which greatly embellished the scienter requirement, “unnecessary and confusing,” ¶12. But, even if the alternative were appropriate, the trial court nonetheless retained discretion to reject it in favor of the adequate pattern version, ¶15.

Jury Instructions – Theory of Defense – Accident

¶17 A jury instruction on a theory of defense is warranted when four criteria are present: “(1) the defense relates to a legal theory of a defense, as opposed to an interpretation of evidence; (2) the request is timely made; (3) the defense is not adequately covered by other instructions; and (4) the defense is supported by sufficient evidence.” Coleman, 206 Wis. 2d at 212‑13 (citations omitted). Because Gonzalez’s defense was adequately covered by the other instructions given to the jury, he was not entitled to an accident instruction.

Gonzalez’s defense was that he didn’t knowingly expose the child to pornography; because the pattern “instruction required a finding by the jury that Gonzalez acted affirmatively [i.e., knowingly]—as opposed to accidentally,” ¶18, a theory of defense instruction on accident wasn’t necessary.

Jury Instructions – Waiver

Merely because the trial court fails to submit to the jury a proposed instruction is not the equivalent, for purposes of preserving the issue, of objecting to such failure, ¶16 n. 3:

… We conclude, however, that raising the issue, as Gonzalez’s attorney did, is not the same as objecting when the instruction was not given. See Wis. Stat. § 805.13(3) (“Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.”) (emphasis added). As such, the issue was not properly preserved for appeal. See id. Notwithstanding, we explain why an accident instruction was not warranted as if Gonzalez had preserved the issue.

Jury Deliberations

The trial court is not obligated either “to immediately notify counsel regarding jury questions” nor “to respond to those questions withing a certain timeframe,” ¶23.

¶24 Gonzalez’s citation to case law for the proposition that the court’s communications with the jury during deliberations constitutes a critical stage of trial during which defendants have a constitutional right to be represented by counsel likewise misses its mark given that the court never communicated with the jury. See Anderson, 291 Wis. 2d 673, ¶43 (“A substantive step in a trial for which an accused has a right to be present includes the [trial] court’s communications with the jury during deliberations.”). Although Gonzalez argues that the trial court’s silence was a form of communication insofar as it “communicated to the jury that their substantive questions would not be answered,” he has not directed us to any legal authority to support this proposition. Just as the initial jury instructions are within the trial court’s discretion, so also is “‘[t]he necessity for, the extent of, and the form of re-instruction’” given in response to requests or questions from the jury. See State v. Hubbard, 2008 WI 92, ¶29, 313 Wis. 2d 1, 752 N.W.2d 839 (citation omitted); see also Wis. Stat. § 805.13(5).[8] Given that the decision to reinstruct the jury is a discretionary one to be made by the trial court and Gonzalez has not cited any legal authority to support his position that the court’s silence was during a critical stage of trial, his argument based on the court’s delayed response also fails. See Kruczek, 278 Wis. 2d 563, ¶32.

The court stresses that the trial judge’s handling of the problem “is not optimal jury management,” ¶20 n. 5; a veiled criticism, in other words, that might discourage repetition.

Evidence – Richard A.P.

The trial court properly excluded evidence of his psychological profile (absence of traits of “known sex offenders or pedophiles”), State v. Richard A.P., 223 Wis. 2d 777, 790-92, 795, 589 N.W.2d 674, because the evidence wouldn’t be relevant given that the charge didn’t involve sexual assault.

¶32 Despite Gonzalez’s efforts to cast the charges against him as charges of sexual abuse of a child because they fall within Wis. Stat. ch. 948 (2005-06) (“Crimes Against Children”) and because convictions require Wisconsin Sex Offender Registration, see Wis. Stat. §§  973.048(2m), 301.45 (2005-06), we are not convinced. Instead, we agree with the State:

It is not a crime’s presence in Chapter 948 of the Criminal Code that is determinative. What is important is the evidentiary connection between the proffered evidence and the elements of the crime charged…. The harmful exposure count did not require proof of the fact that Gonzalez had any sexual interest in children, or that he was likely to assault or molest them for his own pleasure. Therefore Dr. Matthews’ [sic] testimony that he lacked such characteristics was not relevant to the harmful exposure count, because there was no fact at issue that the testimony would have made more or less probable.

(Citations omitted.)

Evidence – Police Misconduct

Evidence of alleged police misconduct (allegedly planting false evidence on Gonzalez’s hard drive) was properly excluded for lack of proof. State v. Missouri, 2006 WI App 74, 291 Wis. 2d 466, 714 N.W.2d 595, distinguished, “given that Gonzalez does not represent that the detectives who allegedly planted the images on Gonzalez’s computer were previously involved in similar incidents.” ¶¶34-40.

Appellate Review – Sufficiency of Evidence – Corroboration Rule

¶42 “The corroboration rule is a common-law standard. Determining if the facts fulfill a common-law standard presents a question of law. We view the facts in evidence in a light most favorable to the jury’s verdict.” State v. Bannister, 2007 WI 86, ¶22, 302 Wis. 2d 158, 734 N.W.2d 892 (citations omitted).

¶43 Pursuant to the corroboration rule, a conviction cannot stand on the defendant’s confession alone.  Id., ¶23. Instead, the State must corroborate “‘any significant fact.’” Id., ¶26. The corroboration rule test has been explained as follows:

All the elements of the crime do not have to be proved independently of an accused’s confession; however, there must be some corroboration of the confession in order to support a conviction. Such corroboration is required in order to produce a confidence in the truth of the confession. The corroboration, however, can be far less than is necessary to establish the crime independently of the confession. If there is corroboration of any significant fact, that is sufficient under the Wisconsin test.

Id. (citation omitted; emphasis added).

¶46 The State presented evidence that Gonzalez owned a pornographic video. This fact was significant because it gave confidence that Gonzalez exposed A.G. to harmful material. Accordingly, the State satisfied the corroboration rule.

Character Evidence for Truthfulness

¶52      Truthful character may be supported by evidence in the form of an opinion. See Wis. Stat. § 906.08(1)(b); State v. Cuyler, 110 Wis. 2d 133, 138, 327 N.W.2d 662 (1983). However, even if we were to conclude that the trial court’s decision to prevent Gonzalez’s mother and sister from testifying as to Gonzalez’s truthfulness is problematic in light of § 906.08(1)(b),[14] Gonzalez has not convinced us that the exclusion of testimony from his mother and sister attesting to his truthful character—which jurors easily could have discredited based on the close familial relationship—was pivotal to his case. Because we are persuaded that the real controversy, namely, whether Gonzalez exposed a child to harmful material, was tried despite the exclusion of this character evidence, we decline Gonzalez’s invitation to grant him a new trial on this basis. See State v. Prineas, 2009 WI App 28, ¶11, 316 Wis. 2d 414, 766 N.W.2d 206 (“We exercise our discretionary reversal power only sparingly.”).

Evidence – Polygraph Offer

An offer to take a polygraph is admissible, even if its results aren’t, assuming that the person believed the results accurate and admissible, ¶56, citing State v. Shomberg, 2006 WI 9, ¶39, 288 Wis. 2d 1, 709 N.W.2d 370. However, Gonzalez failed to make an adequate offer of proof on the issue, ¶57.

The court’s discussion is a bit elliptical. Gonzalez apparently argued that he was prevented from making an offer of proof. The court without explicitly rejecting that idea, notes that he had other options, including: “The jury trial was not Gonzalez’s only opportunity to submit an offer of proof; he could have done so via an affidavit when he filed his postconviction motion,” ¶57.

Evidence – Proof of Element

Because a pornographic video proved an element of the offense (harmful material” shown to the child), it was admissible despite the defendant’s offer to stipulate to the element and could be shown to the jury, ¶¶58-61.

Voluntary Statement

¶71      After reviewing the record, we independently conclude that Gonzalez’s statements were voluntary. We defer to the trial court’s assessment that Gonzalez was not credible. See Henderson, 245 Wis. 2d 345, ¶16. Even if his testimony had been believed, we are not convinced that coercive police tactics were employed based on the facts he alleges. See State v. Cydzik, 60 Wis. 2d 683, 692, 211 N.W.2d 421 (1973) (telling defendant “cooperation would be to his benefit” did not render statement involuntary under Miranda); State v. Markwardt, 2007 WI App 242, ¶¶41-42, 306 Wis. 2d 420, 742 N.W.2d 546 (concluding that loud and confrontational tone of interrogation did not amount to coercive police practice); State v. Owen, 202 Wis. 2d 620, 642, 551 N.W.2d 50 (Ct. App. 1996) (reaching same conclusion with respect to accusation that the suspect is lying); Deets, 187 Wis. 2d at 637 (concluding that suggestion that unless defendant cooperated the victims would be forced to testify and would suffer great trauma did not amount to coercive conduct); see also United States v. Mendoza, 85 F.3d 1347, 1351 (8th Cir. 1996) (collecting cases in support of the proposition that statement that defendant would be arrested immediately if she did not cooperate was not so coercive as to render statement involuntary). Accordingly, the trial court properly denied Gonzalez’s motion to suppress and subsequent motion for reconsideration.[20]

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