Justia.com Opinion Summary: Defendant Esteban Gonzales was convicted of exposing a child to harmful material. The court of appeals affirmed the judgment of conviction. At issue on appeal was whether Defendant had shown there was a reasonable likelihood that a jury instruction misled the jury into believing that the State did not need to prove beyond a reasonable doubt that the defendant acted knowingly. The Supreme Court reversed, holding (1) that the jury was not instructed that it had to determine whether Defendant had knowingly exhibited the harmful material to the child, as distinguished from accidentally or unknowingly exhibiting harmful material to the child; and (2) Defendant established a reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt and therefore applied the instruction in an unconstitutional manner. Remanded for a new trial.
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2011 WI 63
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2009AP1249-CR
State of Wisconsin,
Plaintiff-Respondent,
v.
Esteban M. Gonzalez,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
2010 WI App 104
Reported at: 328 Wis. 2d 182, 789 N.W.2d 365
(Ct. App. 2010-Published)
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
July 8, 2011
March 8, 2011
CIRCUIT COURT
MILWAUKEE
PATRICIA D. McMahon
PROSSER, J. concurs (Opinion filed).
GABLEMAN, J. joins concurrence.
ZIEGLER, J. concurs (Opinion filed).
ROGGENSACK, J. joins concurrence.
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For
the
defendant-appellant-petitioner
there
were
briefs
and oral argument by Frank J. Schiro, Kristin Anne Hodorowski,
and Law Office of Frank Joseph Schiro, LTD.
For the plaintiff-respondent the cause was argued by Maura
Whelan, assistant attorney general, with whom on the brief was
J.B. Van Hollen, attorney general.
2011 WI 63
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2009AP1249-CR
(L.C. No.
2006CF2405)
STATE OF WISCONSIN
:
IN SUPREME COURT
State of Wisconsin,
FILED
Plaintiff-Respondent,
v.
JUL 8, 2011
Esteban M. Gonzalez,
A. John Voelker
Acting Clerk of Supreme
Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals.
Reversed and
remanded.
¶1
published
SHIRLEY S. ABRAHAMSON, C.J.
decision
of
the
court
of
This is a review of a
appeals1
affirming
the
judgment of conviction and order denying post-conviction relief
of the circuit court for Milwaukee County, Patricia D. McMahon,
Judge.
The defendant, Esteban M. Gonzalez, was convicted of
Count 1, exposing a child to harmful material, contrary to Wis.
1
State v. Gonzalez, 2010 WI App 104, 328 Wis. 2d 182, 789
N.W.2d 365.
No.
Stat. § 948.11(2)(a) (2005-06).2
2009AP1249-CR
He was acquitted of Count 2,
intentionally causing a child to view sexually explicit conduct,
which in the present case was masturbation.
¶2
The question presented on review of the conviction of
Count 1 is whether the defendant should be granted a new trial
because
there
misled
by
is
the
unconstitutional
presented
is
a
reasonable
jury
instruction
manner.
whether
likelihood
the
More
and
that
applied
specifically,
defendant
has
shown
the
jury
was
in
an
it
the
question
there
is
a
reasonable likelihood that the instruction, viewed in the light
of the proceedings as a whole, misled the jury into believing
2
Wisconsin Stat. § 948.11(2)(a) (2005-06) defines the crime
as follows:
(2)(a) Whoever, with knowledge of the character and
content of the material, sells, rents, exhibits,
plays, distributes, or loans to a child any harmful
material, with or without monetary consideration, is
guilty of a Class I felony if any of the following
applies:
1. The person knows or reasonably should know that the
child has not attained the age of 18 years.
2. The person has face-to-face contact with the child
before or during the sale, rental, exhibit, playing,
distribution, or loan.
All references to the Wisconsin Statutes are to the 2005-06
version unless otherwise noted.
2
No.
2009AP1249-CR
that the State need not prove beyond a reasonable doubt that the
defendant knowingly exhibited the harmful material to the child.3
¶3
We
conclude
that
the
jury
was
not
instructed
explicitly or implicitly that it had to determine whether the
defendant had knowingly exhibited the harmful material to the
child,
as
distinguished
from
accidentally
exhibiting harmful material to the child.
did
not
sufficiently
define
the
unknowingly
The jury instruction
of the
crime,
The defendant argues that the circuit court made
erroneous evidentiary rulings. "[E]rroneous evidentiary
can, in combination, rise to the level of a due
violation."
Montana v. Egelhoff, 518 U.S. 37, 53
(plurality opinion) (quoted with approval in Michigan v.
___ U.S. ___, 131 S. Ct. 1143, 1162 n.13 (2011).
several
rulings
process
(1996)
Bryant,
3
first
or
element
Because we determine that the misleading jury instruction
necessitates a new trial, we do not fully address those
arguments.
Nevertheless, we note two erroneous circuit court rulings.
First, the circuit court erroneously failed to allow the
defendant to present testimony bolstering his character. As the
State's brief concedes:
The circuit court misapplied § 906.08(1)(b). The rule
provides that the "truthful character" of a testifying
defendant "may be . . . supported by evidence in the
form
of
reputation
or
opinion." . . . Thus,
[Gonzalez's family members'] opinions about Gonzalez's
"truthful character" were admissible.
Second, the circuit court erroneously refused to allow the
defendant to make an offer of proof that the defendant offered
to take a polygraph examination prior to being represented,
believing that the polygraph results would be admissible.
The
State's brief (citing State v. Pfaff, 2004 WI App 31, ¶26, 269
Wis. 2d 786, 676 N.W.2d 562) acknowledges the appropriate law:
"Although polygraph test results are always inadmissible, an
offer to take a polygraph test may be admissible."
3
No.
2009AP1249-CR
namely, that the State must prove beyond a reasonable doubt that
the defendant knowingly exhibited the harmful material to the
child.
Accordingly, we are satisfied that the jury instruction
misled the jury into believing that the State did not have the
burden of proving beyond a reasonable doubt that the defendant
knowingly exhibited the harmful material to the child.
Viewing
the jury instruction in light of the proceedings as a whole, we
further conclude that the defendant has established a reasonable
likelihood that the jury applied the instruction in a way that
relieved the State of its burden of proving every element of the
crime
beyond
a
reasonable
doubt
and
therefore
applied
the
potentially confusing instruction in an unconstitutional manner.
We therefore reverse the decision of the court of appeals and
remand the cause for a new trial.
I
¶4
The defendant was charged with two counts.
was for exposing a child to harmful material.4
Count 1
Count 2 was for
intentionally causing a child to view sexually explicit conduct,
specifically in the present case, masturbation.5
4
Wis. Stat. § 948.11.
5
Wisconsin Stat. § 948.055 states in full:
(1) Whoever intentionally causes a child who has not
attained 18 years of age to view or listen to sexually
explicit conduct may be penalized as provided in sub.
(2) if the viewing or listening is for the purpose of
sexually
arousing
or
gratifying
the
actor
or
humiliating or degrading the child.
(2) Whoever violates sub. (1) is guilty of:
4
No.
¶5
2009AP1249-CR
The two counts stem from an incident that occurred on
April 24, 2006.
The defendant was taking care of his three-and-
one-half-year-old daughter in a two-bedroom apartment.
It is
undisputed that on that evening the defendant masturbated to a
pornographic film in the living room of his apartment.
¶6
Three
lieutenant,
police
and
the
officers,
defendant
two
were
detectives
the
and
their
principal
trial
witnesses.
¶7
The officers testified about statements made by the
defendant in two interviews on May 1 and 2, 2006.
¶8
The State's position at trial was that the defendant
admitted to the officers that he was aware that his daughter had
entered the living room, and that the defendant, "caught up in
the moment," failed to stop his activities, thereby exposing his
daughter
to
the
pornographic
film
and
sexually
explicit
that
the
defendant's
initial
behavior.
¶9
The officers testified
statements to police on May 1, 2006, were exculpatory.
The
defendant's statements were to the effect that the child was in
bed and that, although she may have been out of bed, she did not
see him masturbate and did not see the video.
¶10
The State presented testimony that at the May 2, 2006,
interview the defendant made oral and written statements that
(a) A Class F felony if the child has not attained the
age of 13 years.
(b) A Class H felony if the child has attained the age
of 13 years but has not attained the age of 18 years.
5
No.
were
inculpatory.
Lieutenant
Edwards
2009AP1249-CR
testified:
"[The
defendant] had told me that he heard [his daughter] come into
the [living] room.
He didn't directly look at her, but he knew
she was in the room from what he heard."
further
testified
that
"the
video
was
Lieutenant Edwards
on
the
television
approximately three minutes," "that [the defendant] masturbated
during the entire time," and that "the child was in the room
during the entire time."
¶11
Detective Antreassian testified: "[The defendant] told
me that in the evening hours he had been in a recliner in his
living room masturbating and he looked out the corner of his eye
and he did see his daughter in the room and at the time there
was a video playing and he was caught up in the moment and he
continued until he did ejaculate and she was in the room."
¶12
that
The persistent theme of the defendant's testimony was
during
the
initial
interviews
the
detectives
repeatedly
urged him to admit that he accidentally exposed the child to
harmful material, implying that he would be in less trouble if
he admitted to an accidental exposure.
¶13
At
trial,
the
defendant
denied
the
inculpatory
statements and testified that the pretrial statements were given
under duress and were coerced.
he was watching the video.
The defendant did not deny that
He did not deny that the video was
"harmful material" for the child.
¶14
child
was
playing.
At trial, the defendant denied any knowledge that the
present
He
in
claimed
the
living
that
the
6
room
child
while
was
the
never
video
was
within
his
No.
"eyeshot."
2009AP1249-CR
His testimony suggested that if the child saw the
video, the viewing was accidental and without his knowledge.
¶15
The defendant testified that on the evening of April
24, 2006, he was taking care of his daughter in his apartment.
At approximately 7:00 P.M. he put his daughter to bed.
Soon
afterward, she got out of bed and came out of her bedroom.
defendant put her back to bed.
defendant.
The
She then called out to the
He went into her room and tucked her back into bed.
A little while later, the defendant heard her bedroom door open,
saw the bathroom light go on, and heard his daughter put herself
back to bed.
At approximately 8:00 to 8:30 P.M., according to
the defendant, she came out of the bedroom a fourth time.
He
yelled at her and told her she needed to go back to bed, and he
placed her back in her bed.
¶16
Following this, the defendant testified that he was
watching television, sitting in his recliner in the living room,
and
talking
to
a
friend
on
the
computer.
The
defendant
estimated the conversation with the friend lasted an hour.
He
testified that he then began to play a pornographic video with
the sound muted and masturbate.
¶17
The defendant testified that approximately 30 seconds
after initiating those activities he heard a noise, sat up, and
looked around.
Seeing nothing and believing the noise to have
come
upstairs
from
testified
the
he
finished
neighbor's
apartment,
masturbating,
turned
the
off
defendant
the
video,
cleaned himself up, pulled up his pants, and watched a short
portion of a recorded television program.
7
No.
¶18
2009AP1249-CR
The defendant further testified that he then got up to
use the bathroom.
He walked around the corner of the living
room into the hallway and saw his daughter lying on the floor,
hands under her chin, in the doorway of her bedroom.
He again
scolded her and directed her to go back to bed.
¶19
Further facts will be presented in the discussion of
the jury instruction.
II
¶20
We turn now to the standard of review an appellate
court applies when a challenge is made to a jury instruction.
¶21
There
are
two
types
instruction.
One
challenges
instruction.
The
other
of
the
asserts
challenges
legal
that
a
to
accuracy
legally
a
jury
of
the
accurate
instruction unconstitutionally misleads the jury.6
¶22
When
completely
and
applicable
to
a
jury
instruction
correctly
the
charge,
informing
the
is
challenged
the
challenger
jury
has
of
as
not
the
law
presented
a
question of law that an appellate court determines independently
of the circuit court and court of appeals but benefiting from
their analyses.7
6
State v. Burris, 2011 WI 32, ¶44, ___ Wis. 2d ___, 797
N.W.2d 430.
7
Ferguson, 317 Wis. 2d 586, ¶9.
8
No.
¶23
2009AP1249-CR
When a jury instruction is challenged as confusing or
misleading, such that it is subject to misinterpretation by the
jury, a conviction should not be reversed "simply because the
jury possibly could have been misled."8
court
should
order
a
new
trial
only
Rather, an appellate
if
upon
review
of
the
instruction the court determines that the defendant has shown
that "there is a reasonable likelihood that the jury was misled
and therefore applied potentially confusing instructions in an
unconstitutional manner."9
¶24
The United States Supreme Court has stated that a new
trial is warranted when
the
defendant
carries
the
burden
of
establishing that "the instruction was ambiguous and that there
was
a
reasonable
likelihood
that
the
jury
applied
the
instruction in a way that relieved the State of its burden of
proving every element of the crime beyond a reasonable doubt."10
An erroneous instruction is not necessarily prejudicial
error.
State v. Harvey, 2002 WI 93, ¶35, 254 Wis. 2d 442, 647
N.W.2d 189 ("[A]n instruction that omits an element of the
offense
does
not
necessarily
render
a
criminal
trial
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence" (quoted source omitted; emphasis in
original).).
8
State v. Lohmeier, 205 Wis. 2d 183, 193, 556 N.W.2d 90
(1996).
9
State v. Lohmeier, 205 Wis. 2d 183, 194, 556 N.W.2d 90
(1996). See also Burris, 2011 WI 32, ¶49.
10
Burris, 2011 WI 32, ¶48 (quoting Waddington v. Sarausad,
555 U.S. 179, 129 S. Ct. 823, 831 (2009)).
9
No.
2009AP1249-CR
A new trial is also warranted when the defendant carries the
burden of establishing that there was a reasonable likelihood
that the jury applied the instruction in a way that denied the
defendant
"a
meaningful
opportunity
for
consideration
by
the
jury of his defense . . . to the detriment of the defendant's
due process rights."11
¶25
In
determining
whether
there
is
a
reasonable
likelihood that the jury was misled and applied the potentially
confusing
instructions
in
an
unconstitutional
manner,
an
appellate court "should view the jury instructions in light of
the
proceedings
as
a
whole,
instead
of
viewing
a
single
instruction in artificial isolation."12
¶26
Because
the
jury
instruction
given
by
the
circuit
court in the present case relating to Count 1, exposing a child
to harmful material, essentially tracked the language of the
statute and is arguably a correct statement of the law (even if
"States may not 'deprive the accused of liberty unless the
prosecution proves beyond a reasonable doubt every element of
the charged offense.'"
State v. Harvey, 2002 WI 93, ¶19, 254
Wis. 2d 442, 647 N.W.2d 189 (quoting Carella v. California, 491
U.S. 263, 265 (1989)).
11
Burris, 2011 WI 32, ¶50 (quoting State v. Lohmeier, 205
Wis. 2d 183, 192, 556 N.W.2d 90 (1996)).
"[A] jury applies an instruction in an unconstitutional
manner
if
it
believes
that
such
instruction
'precludes
consideration of constitutionally relevant evidence.'" State v.
Burris, 2011 WI 32, ¶50 (quoting Boyde v. California, 494
U.S. 370, 380 (1990).
12
State v. Lohmeier, 205 Wis. 2d 183, 194, 556 N.W.2d 90
(1996).
10
No.
2009AP1249-CR
the text regarding the fourth element is not applicable to the
present case),13 we shall consider the defendant's challenge to
the
jury
instruction
unconstitutionally
as
confusing
challenging
or
the
instruction
misleading
the
jury
as
into
believing that the State did not have to prove an element of the
crime,
namely
that
the
defendant
knowingly
exhibited
harmful
material to the child.14
III
¶27
At trial, the circuit court gave the following jury
instruction, substantially tracking the language of the statute
in regard to the substantive law of exposing a child to harmful
material, contrary to Wis. Stat. § 948.11(2)(a):
Exposing a child to harmful material as defined in
948.11(2)(a) of the criminal code of Wisconsin is
committed by one who, with knowledge of the character
and content of the material, sells, rents, exhibits,
plays, distributes, or loans to a child any harmful
material, with or without monetary consideration, and
has face-to-face contact with the child before or
during
this
sale,
rental,
exhibit,
playing,
distribution, or loan.
Before you may find the defendant guilty of this
offense, the State must prove by evidence which
satisfies you beyond a reasonable doubt the following
13
See ¶¶45-61, below.
14
State v. Lohmeier, 205 Wis. 2d 183, 194, 556 N.W.2d 90
(1996).
Were we to consider the defendant's challenge as asserting
that the jury instruction was legally incorrect, our analysis
would be substantially the same. For the reasons set forth, we
would conclude that the instruction was not a correct statement
of the law and was prejudicial error. State v. Harvey, 2002 WI
93, ¶44, 254 Wis. 2d 442, 647 N.W.2d 189.
11
No.
2009AP1249-CR
four elements: first, that the defendant exhibited or
played harmful material to [the child] . . . .
. . . .
The defendant had knowledge of the character and
content of the material is the second element.
And
this requires the defendant knew that the material
contained
a
description,
narrative
account,
or
representation of nudity, sexually explicit conduct,
sexual excitement, sadomasochistic abuse, physical
torture, or brutality.
Third element, [the child] was under the age of 18
years.
Fourth element, that the defendant had faceto-face contact with the child before or during the
exhibition or the playing of the material.
If you are satisfied beyond a reasonable doubt that
all four elements of this offense have been proved,
you should find the defendant guilty of exposing a
child to harmful material as charged in Count 1 of the
information (emphasis added).
¶28
As we shall explain more fully later, the instruction
at issue follows both the text of the statute15 and the text of
pattern criminal Jury Instruction 214216 to a substantial extent
15
Wisconsin
follows:
Stat.
§ 948.11(2)(a)
defines
the
crime
as
(2)(a) Whoever, with knowledge of the character and
content of the material, sells, rents, exhibits,
plays, distributes, or loans to a child any harmful
material, with or without monetary consideration, is
guilty of a Class I felony if any of the following
applies:
1. The person knows or reasonably should know that the
child has not attained the age of 18 years.
2. The person has face-to-face contact with the child
before or during the sale, rental, exhibit, playing,
distribution, or loan.
16
Pattern criminal jury instruction 2142 reads as follows:
12
No.
2009AP1249-CR
Statutory Definition of the Crime
Exposing a child to harmful material, as defined
in § 948.11(2)(a) of the Criminal Code of Wisconsin,
is committed by one who, with knowledge of the
character and content of material, sells, rents,
exhibits, plays, distributes, or loans to a child any
harmful
material,
with
or
without
monetary
consideration and [knows or reasonably should know
that the child has not attained the age of 18
years][has face-to-face contact with the child before
or
during
the
sale,
rental,
exhibit,
playing,
distribution, or loan.]
State's Burden of Proof
Before you may find the defendant guilty of this
offense, the State must prove by evidence which
satisfies you beyond a reasonable doubt that the
following four elements were present.
Elements of the Crime That the State Must Prove
1.
The
defendant
(sold)
(rented)
(played) (distributed) (loaned) harmful
(name of child).
(exhibited)
material to
This does not require that the defendant received
any monetary consideration.
"Harmful material" means
(identify the type of material) of a person or portion
of the human body that depicts nudity, sexually
explicit conduct, sadomasochistic
abuse,
physical
torture, or brutality, and that is harmful to
children.
"Harmful to children" means that quality of any
description, narrative account, or representation of
nudity, sexually explicit conduct, sexual excitement,
sadomasochistic abuse, physical torture, or brutality
when it
(1)
predominantly
appeals
to
the
shameful or morbid interest of children; and
prurient,
(2) is patently offensive to prevailing standards
in the adult community of Wisconsin as a whole with
respect to what is suitable material for children, and
13
No.
but deviates from both in an important respect.
2009AP1249-CR
The instruction
at issue, unlike the statute or the pattern jury instruction,
requires a jury to make a finding regarding the fourth element
as described in the jury instruction given.
the
present
case,
the
circuit
court
Under the facts of
used
the
incorrect
instruction for the fourth element of the crime.
¶29
The defendant requested the circuit court to modify
the jury instructions regarding the first element.17
He argued
(3) lacks serious literary, artistic, political,
scientific, or educational value for children of the
age of (name of child), when taken as a whole.
2.
The defendant had knowledge of the character and
content of the material.
This requires that the defendant knew that the
material contained a description, narrative account,
or
representation
of
nudity,
sexually
explicit
conduct, sexual excitement, sadomasochistic abuse,
physical torture, or brutality.
3.
(Name of child) was under the age of 18 years.
4.
The defendant [knew or reasonably should have
known that the child was under the age of 18
years][had face-to-face contact with the child before
or during the (sale) (rental) (exhibit) (playing)
(distribution) (loan)].
Wis JI——Criminal 2142 (footnotes omitted).
17
The defendant also suggested language relating to the
instruction on the fourth element, face-to-face contact.
The
defendant requested the jury instruction regarding the fourth
element
of
the
crime
be
modified
to
read
as
follows
(modifications in italics):
4.
The defendant had face-to-face contact with the
child before or during the exhibition or playing of
the material.
14
No.
that
the
jury
instruction
did
not
adequately
2009AP1249-CR
explain
the
requirement that the exhibition of the harmful material to the
child was done knowingly, and not accidentally.
He suggested
that the italicized language shown below be added to the pattern
instruction, advising the jury that the defendant had to have
knowingly exhibited the harmful material to the child:
ELEMENTS OF THE CRIME THAT THE STATE MUST PROVE
1.
The defendant knowingly exhibited
harmful material to [the child].
or
played
This does not require that the defendant received
any monetary consideration.
"Exhibited" means that the defendant knowingly
offered or presented for inspection to a specific
minor or minors material defined as harmful to
children.
"Exhibited"
requires
a
"knowing
and
affirmative act" by the defendant; which is only
satisfied by "affirmative conduct" of the defendant
"toward a specific minor." To find that the defendant
"exhibited" harmful material, you must be satisfied
beyond a reasonable doubt that the defendant targeted
harmful material at a specific minor child.
If you
find that the defendant intended to present the adult
video to any audience other than the specific minor
child [] in this case then you must find that he did
not "exhibit" it to her, for purposes of Count 1.
"Face-to-face contact" with the child means that
the defendant had "personal contact" or a "personal
meeting" with the child sufficient to allow him to
determine that his audience is underage, before or
during the exhibition or playing of the harmful
material.
"Face-to-face contact" therefore requires
"some interaction between the accused and the childvictim."
For a discussion of the "face-to-face contact" part of the
instruction, see ¶¶45-61, below.
15
No.
¶30
2009AP1249-CR
The defendant also asked for a jury instruction based
on his theory of defense that any exhibition of the harmful
material to the child was accidental.18
¶31
A circuit court has broad discretion in determining
whether to give a particular jury instruction.19
court
denied
the
defendant's
request
for
the
The circuit
modified
jury
instructions, stating that the concept of knowing is evident in
the context of the total pattern instruction and that the word
"exhibit" is not an exotic or difficult word that needs to be
described further.
The circuit court declared:
[T]he patterned instruction accurately states what the
law is. And we've got four elements, and the concept
of knowing is in the context of the four elements.
And I think exhibited is not such an exotic term that
it needs to be described further.
And, in fact, I
find that the proposed description is confusing and
misleading and not helpful . . . .
¶32
As is evident from the circuit court's ruling, the
circuit court agreed with the defendant on the basic premise of
law that the defendant was advancing:
of
proving
beyond
a
reasonable
The State has the burden
doubt
that
the
knowingly exhibited the harmful material to the child.
defendant
Indeed,
the circuit court, the court of appeals,20 and the State21 agree
18
The court of appeals ruled that because the defendant's
defense of accidental exhibiting "was adequately covered by the
other instructions given to the jury, he was not entitled to an
accident instruction." Gonzalez, 328 Wis. 2d 182, ¶17.
19
State v. Ferguson, 2009 WI 50, ¶9, 317 Wis. 2d 586, 767
N.W.2d 187.
20
State v. Gonzalez, 2010 WI App 104, ¶11, 328 Wis. 2d 182,
789 N.W.2d 365.
16
No.
2009AP1249-CR
with the defendant that the State has the burden of proving
beyond a reasonable doubt that the defendant knowingly exhibited
the harmful material to the child.
This court also agrees with
the defendant on this legal point.
¶33
As
the
defendant,
the
circuit
court,
the
court
of
appeals, the State, and this court know, the supreme court in
State v. Thiel, 183 Wis. 2d 505, 535, 515 N.W.2d 847 (1994),
interpreted
Wis.
Stat.
§ 948.11
to
mean
that
"an
individual
violates [the statute] if he or she, aware of the nature of the
material,
specific
knowingly
minor
or
offers
or
presents
minors
material
for
defined
inspection
as
to
harmful
a
to
children . . ." (emphasis added).22
21
Brief of the Plaintiff-Respondent at 20-22.
22
In State v. Thiel, 183 Wis. 2d 505, 515 N.W.2d 847
(1994),
to
avoid
an
unconstitutional,
overly
broad
interpretation of Wis. Stat. § 948.11, the court interpreted the
statute to include the concept of "knowingly."
When a statute
is challenged as unconstitutionally over-broad, the statute can
be
"saved"
by
a
narrowing
and
validating
judicial
interpretation. In Thiel, 183 Wis. 2d at 533, the court applied
such a narrowing and validating interpretation of Wis. Stat.
§ 948.11(2), holding that each of the verbs in Wis. Stat.
§ 948.11(2)(a)
and
(b)——"'sell,'
'loan,'
'exhibit,'
and
'transfer'——represents
a
knowing
and
affirmative
act. . . . [T]he language of sec. 948.11 focuses on the
affirmative conduct of an individual toward a specific minor or
minors. Therefore, an individual violates the statute 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 in sec. 948.11(1)(b)."
Thiel,
183 Wis. 2d at 535 (emphasis added).
This court reiterated this holding from Thiel in applying
Wis. Stat. § 948.11 in State v. Booker, 2006 WI 79, ¶17, 292
Wis. 2d 43, 717 N.W.2d 676.
17
No.
¶34
2009AP1249-CR
Wisconsin Stat. § 948.11, construed narrowly as Thiel
instructs, is the law.
The circuit court must instruct the jury
according to that law.
¶35
We
conclude,
for
the
following
reasons,
that
the
defendant has shown that there is a reasonable likelihood that
the jury instruction misled the jury on whether the State had to
prove the defendant acted "knowingly," and therefore the jury
applied the instruction in an unconstitutional manner.
¶36
First,
the
jury
instruction
did
not
explicitly
instruct the jury that the State must prove beyond a reasonable
doubt that the defendant knowingly, as opposed to accidentally,
exhibited
the
harmful
material
to
the
child.
The
word
"knowingly" does not appear anywhere in the instruction.
¶37
Thus, the likelihood of the jury being misled about
the State's obligation to prove beyond a reasonable doubt that
the defendant "knowingly" exhibited the video to the child is
In considering the concurrence, we reiterate that the court
did not rewrite Wis. Stat. § 948.11(2)(a) in Thiel and we do not
rewrite the statute in the present case.
Instead, Thiel
interpreted § 948.11(2)(a), and we apply Thiel's interpretation
of the statute.
Thiel's interpretation of the statute is the
law, at least until modified either by the legislature through
amending the language of the statute or by this court overruling
its prior interpretation.
18
No.
inherent in the jury instruction given.23
2009AP1249-CR
To avoid misleading
the jury, the proceedings as a whole (including the instruction)
must clearly show that the jury was aware of the State's burden
of
proving
that
the
defendant's
conduct
was
knowing,
not
accidental, with regard to exhibiting the material to the child.
¶38
Did the proceeding and the jury instruction viewed as
a whole so advise the jury?
appeals answered "Yes."
The circuit court and court of
The court of appeals concluded that
"[t]he 'exhibited or played harmful material to' language of the
instruction required a finding by the jury that [the defendant]
23
That the instructions were misleading in the present case
without use of the word "knowing" does not mean that the
instructions given in the present case would necessarily be
misleading in another case.
Jury instructions must fit the
facts of the particular case.
See Burris, 2011 WI 32, ¶64
(recognizing that language approved by the court may raise
questions if incorporated in a jury instruction in a case with
different facts).
The error in the present case is that the
statutory language and pattern instructions were not modified to
fit the facts of the present case.
The pattern jury instructions promulgated by the Wisconsin
Criminal Jury Instructions Committee and the University of
Wisconsin
Law
School
explain
the
function
of
pattern
instructions.
The Jury Instruction Committee advises that the
pattern instructions may frequently be used without change but
"may often have to be modified to fit the needs of the
particular case. . . . It is suggested that the comment and the
footnotes to the instructions be read fully and carefully before
the instruction is used, in order that the user be informed of
any conditions prerequisite to its use, alternative materials
for particular cases, and of other cautionary information."
I
Wis JI——Criminal xi (preface to 1962 edition reprinted in
current edition).
19
No.
acted
affirmatively
[i.e.,
knowingly]——as
2009AP1249-CR
opposed
to
accidentally."24
¶39
appeals.
We
disagree
with
the
circuit
court
and
court
of
We do not perceive the words cited by the court of
appeals as instructing the jury that the State had to prove the
defendant acted knowingly.
As we shall explain further, the
words "exhibited or played harmful material to," which the court
of appeals relied upon for the clarity of the instruction, are
the very words the jury questioned and about which the jurors
sought clarification.
¶40
"exhibit,"
Second, the jury instruction did not define the word
which
the
instructions define.
Thiel
court
and
the
pattern
jury
The Thiel court defined the statutory verb
"exhibit" in a way that did not constitutionally imperil Wis.
Stat. § 948.11.
The Thiel court presented a legal definition of
"exhibit," construing "'exhibit' to mean 'to offer or present
for inspection,'" citing Black's Law Dictionary.25
¶41
the
verb
The pattern jury instruction includes a footnote at
"exhibit."
The
footnote
states:
"In
State
v.
Thiel . . . the court construed 'exhibit' to mean 'to offer or
present for inspection,' emphasizing that, like the other terms
in the statute, it 'represents a knowing and affirmative act.'"26
24
State v. Gonzalez, 2010 WI App 104, ¶11, 328 Wis. 2d 182,
789 N.W.2d 365.
25
Thiel, 183 Wis. 2d at 535.
26
Wis JI——Criminal 2142.
20
No.
¶42
The
Thiel
court
and
the
Jury
2009AP1249-CR
Instruction
Committee
thought it important and necessary to define the verb "exhibit"
to
explicitly
explain
that
that
word
represents
a
knowing,
affirmative act.
¶43
In contrast, the jury was given no definition of the
word "exhibit."
The circuit court determined "exhibit" is not
an exotic term and need not be described further.
The words
"exhibited . . . to" may have been clear to the circuit court
and the court of appeals, both of whom had the benefit of the
Thiel case and the pattern instruction, but they were not clear
to the jurors, who did not have the benefit of these legal
materials.
Even
clarification
of
after
the
the
jury
phrase
specifically
"exhibit
to"
asked
the
in
for
jury
instruction,27 the circuit court did not clarify for the jury
that the burden was on the State to prove that the defendant
knowingly exhibited the harmful material to the child.
¶44
The
"exhibit,"
jury
making
instruction
the
at
instruction
issue
did
susceptible
not
to
define
ambiguity.
When we look beyond the instruction to the entire proceedings,
we cannot point to anything in the record that assures us that
the
jury
understood
that
it
was
required
to
find
that
the
defendant acted knowingly, as opposed to accidentally.
¶45
misleading
Third,
when
the
the
jury
circuit
instruction
court
27
was
erroneously
confusing
and
instructed
the
The jury questions are analyzed in further detail below
at ¶¶ 62-79.
21
No.
jury on the fourth element of the crime.
2009AP1249-CR
The court instructed
the jury that the fourth element of the crime required that the
defendant "had face-to-face contact with the child before or
during the exhibition or the playing of the material" (emphasis
added).
This "face-to-face contact" instruction was not the
appropriate
alternative
instruction
based
on
the
evidence
presented in the instant case.
¶46
The fourth element of the crime is that the defendant
knows the age of the child.
The State's burden of proving this
element can be satisfied in one of two alternative ways.
The
statute
the
and
the
pattern
instructions
clearly
set
forth
alternatives and clearly set forth that the circuit court should
instruct
on
the alternative
appropriate
to
the
facts
of
the
case.
¶47
harmful
The statute makes it a felony to expose a child to
material
"if
any
of
the
following
applies:
1.
The
person knows or reasonably should know that the child has not
attained the age of 18 years.
contact
with
the
child
2. The person has face-to-face
before
or
during
the
sale,
rental,
exhibit, playing, distribution, or loan."
¶48
Adhering to the text of the statute, the pattern jury
instruction
reads
as
follows:
"The
defendant
[knew
or
reasonably should have known that the child was under 18 years]
[had face-to-face contact with the child before or during the
(sale)
The
(rental)
footnote
to
(exhibit)
this
part
(playing)
of
22
the
(distribution)
pattern
jury
(loan)]."
instruction
No.
2009AP1249-CR
directs the circuit court that "[t]he alternative supported by
the evidence should be selected."
¶49
the
The first alternative, that the defendant knew that
child
was
under
18
years
of
evidence in the present case.
age,
is
supported
by
the
The child was the defendant's
daughter and she was three-and-one-half years old.
The circuit
court erred by not giving the jury this alternative instruction.
¶50
The State acknowledges that the circuit court should
have given only this first alternative under the statute and
pattern instruction.
the
jury
that
the
The circuit court should have instructed
State
had
the
burden
to
prove
that
the
defendant knew or should have known that the child was under 18
years old.28
No such instruction was given.
28
The State's brief asserts that the circuit court
instructed the jury on both alternatives and that the face-toface contact instruction merely imposed an additional burden on
the State.
According to the State, the error is therefore
harmless to the defendant. Brief of Plaintiff-Respondent at 2122.
The State is mistaken that the circuit court gave both
alternatives in its instruction on the elements of the crime.
It did not.
The circuit court read the information to the jury prior to
instructing the jury on the four elements of the crime.
The
information read to the jury charged both that the defendant
knew the child was under 18 years of age and that the defendant
had face-to-face contact with the child. The circuit court read
the following to the jury from the information:
"the
information in this case charges the defendant with the crime[]
of exposing a child to harmful material"; "the defendant did
exhibit to a child with whom the defendant had face-to-face
contact"; "the defendant knew or reasonably should have known
[that the child] had not attained the age of 18 years."
The circuit court explained
information to the jury as follows:
23
the
significance
of
the
No.
¶51
The
second
alternative
relating
to
2009AP1249-CR
"face-to-face
contact" is not appropriate in the present case and is confusing
in the context of the present case.
The State agrees in its
brief to this court that the circuit court erred in giving the
"face-to-face contact" instruction in the present case.29
¶52
This second alternative commonly applies to internet
transactions and does not apply to the present case.30
Generally
The
information
in
this
case
charges
the
defendant with the crimes of exposing a child to
harmful material and causing a child under 13 to view
sexual activity. . . .
The information is nothing more than a written,
formal accusation against a defendant charging the
commission of one or more criminal acts. You are not
to consider it as evidence against the defendant in
any way . . . .
After reading the information to the jury, the circuit
court then went on to instruct the jury about the four elements
of the crime.
The instruction did not state that one element
was that the defendant knew or should have reasonably known the
child was under 18 years of age.
The fourth element in the
instruction stated that the defendant had face-to-face contact
with the child before or during the exhibition or the playing of
the material. The instruction is printed at ¶27, above.
29
Brief of Plaintiff-Respondent at 21-22.
30
The alternative in the statute and the instruction
relating to "face-to-face contact" was added to the instruction
in response to changes made to the statute by 2001 Wis. Act 16.
The statutory change was made in response to State v. Weidner,
2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684.
24
No.
the
alternative
used
when
"face-to-face
evidence
supports
contact"
the
2009AP1249-CR
instruction
affirmative
should
defense
in
be
Wis.
Stat. § 948.11(2)(c) that the defendant had reasonable cause to
believe the child had attained the age of 18 years.
present
case,
the
defendant
did
not
claim
the
In the
affirmative
defense, and no evidence supports an affirmative defense that he
had reasonable cause to believe that the child had attained the
age of 18 years.
The circuit court thus chose the incorrect
alternative "face-to-face
contact"
instruction
in
the
present
case.
¶53
The
State
argues
that
the
erroneous
"face-to-face
contact" instruction just placed an additional burden on the
State and did not harm the defendant.
The State is wrong.
the
court
determined
that
Wis.
Stat.
In
Weidner,
§ 948.11(2) was "unconstitutional in the context of the internet
and other situations that do not involve face-to-face contact
between a minor and the accused" because the statute shifted the
burden of proving knowledge of the victim's age to the defendant
and infringed
upon
protected
First
Amendment
expression.
Weidner, 235 Wis. 2d 306, ¶1.
In Weidner, the accused was charged under Wis. Stat.
§ 948.11(2)(a) with sending harmful material to a minor over the
internet. The court declared that in situations devoid of faceto-face contact, such as in the context of the internet, the
State did not bear the burden to prove scienter; the legislature
had shifted the scienter element of Wis. Stat. § 948.11(2)(a) to
an affirmative defense, thereby eliminating an element of the
crime. Weidner, 235 Wis. 2d 306, ¶13. In response to Weidner,
the legislature amended Wis. Stat. § 948.11(2)(a) to ensure the
State was required to prove beyond a reasonable doubt that the
defendant reasonably knew that the child was under the age of 18
or that the defendant had face-to-face contact with the child
before
or
during
the
sale,
rental,
exhibit,
playing,
distribution, or loan of the harmful material.
25
No.
¶54
In
the
present
case,
the
2009AP1249-CR
"face-to-face
contact"
instruction was misleading when viewed in light of the entire
jury instruction and the entire proceedings.
Specifically, the
"face-to-face contact" instruction was misleading with regard to
the crucial element of the defendant's "knowingly" exhibiting
harmful
material
interpreted
to
the
the
child.
"face-to-face
The
jury
appears
have
instruction
contact"
to
as
interacting with the first element of the crime and requiring
the defendant to have face-to-face contact with the child.
¶55
Without clarification from the circuit court, the jury
was left to its own devices to figure out how the face-to-face
contact instruction related to the State's burden of proving the
defendant "exhibited material to" the child.
¶56
that
The
the
before
instruction
defendant
or
during
provides
"had
face-to-face
this
distribution, or loan."
that
sale,
the
State
contact
rental,
must
prove
the
child
with
exhibit,
playing,
The defendant's "face-to-face contact"
with the child thus could have occurred before the playing of
the video.
¶57
It is reasonably likely that this erroneous "face-to-
face contact" instruction misled the jury into thinking that the
State did not have to prove that the defendant affirmatively,
that is, knowingly, exhibited the harmful material to the child,
and instead that the State had to prove only that the defendant
had face-to-face contact with the child before exhibiting the
video to the child.
Clearly the defendant in the present case
26
No.
2009AP1249-CR
had face-to-face contact with the child before exhibiting or
playing the video.
¶58
The court of appeals determined that the jury could
not reasonably have concluded that face-to-face contact before
exhibiting the harmful material was sufficient for purposes of
finding
the
defendant
guilty
in
this
case.31
But,
the
jury
instruction explicitly stated that face-to-face contact with the
child before the playing of the video satisfied an element of
the crime.
¶59
The
erroneous
support
court
of
"requisite
its
appeals
explicitly
face-to-face
conclusion
that
relied
contact"
the
on
instruction
"face-to-face
the
to
contact"
instruction was such that "the jury would have had to find that
[the
defendant]
was
aware
of
(i.e.,
child's] presence in the room."32
reach
this
conclusion
only
by
had
knowledge
of)
[the
The court of appeals could
misreading
the
"face-to-face
contact" instruction to ignore the word "before" and to read the
instruction as containing only the phrase "face-to-face contact
during the playing."33
¶60
In contrast to the court of appeals, we conclude that
there is a reasonable likelihood that the "face-to-face contact"
instruction, which should not have been given in the present
case, misled the jury.
The jury was left on its own to figure
31
State v. Gonzalez, 328 Wis. 2d 182, ¶13.
32
Id., ¶11.
33
See id., ¶18.
27
No.
out
the
meaning
of
the
erroneous
2009AP1249-CR
"face-to-face
contact"
instruction, which under the law related to the fourth element,
the defendant's knowledge of the age of the child.
Yet, the
defendant's knowledge of the child's age was not at question in
the proceedings.
Under these circumstances, the jury was left
to ponder the significance of the State's burden to prove "faceto-face contact."
¶61
As
the
jury
questions
discussed
below
suggest,
the
jury viewed the "face-to-face contact" instruction as relating
to the first element of Count 1.
The jury's questions suggest
that the jurors were mistakenly using the "face-to-face contact"
instruction to determine the physical whereabouts of the child
in relation to the defendant for purposes of determining whether
the defendant "exhibited" the video "to" the child.
¶62
Fourth,
the
jury
asked
the
circuit
court
questions
that demonstrate its confusion about the jury instruction and
what was necessary to find the defendant guilty of exposing a
child to harmful material.
The questions posed show the jury's
confusion about key language in the instruction and whether the
State had to
prove
that
the
defendant
"knowingly"
played
or
exhibited harmful material to the child.
¶63
Within an hour of the start of deliberations, the jury
sent two sets of questions to the circuit court.
The first set
asked for some exhibits to be sent to the jury room.
set submitted two questions on the substantive law:
Q4:
Clarify word of exposure for us.
28
The second
No.
2009AP1249-CR
Q5: Clarify statement 'the defendant exhibited
played harmful material To [A.G.][the child]'
or
– what does to say? (Emphasis in original.)34
¶64
The circuit court sent the exhibits to the jury room,
as the parties had previously agreed should be done upon the
jury's request.
The jurors subsequently asked for all of the
exhibits and were told by the circuit court that they had all of
the exhibits.
¶65
The circuit court did not immediately respond in any
way to the questions on the substantive law.
did
not
immediately
questions.
communicate
Approximately
an
with
hour
The circuit court
counsel
after
regarding
the
the
substantive
questions were sent to the circuit court, the clerk of circuit
court suggested to counsel they take a lunch break and check in
about an hour and a half later.
¶66
court
as
Defense
counsel
instructed,
and
checked
the
in
circuit
later
court
with
the
circuit
informed
defense
counsel that the jury had submitted some questions.
¶67
With
counsel
for
both
parties
present,
the
circuit
court read the jury's questions to counsel and stated that it
had "waited to see what they were going to do, and apparently
they've asked a couple of times to the bailiffs, 'When will we
get an answer to our questions,' so they want an answer . . . ."
34
In addition the jurors asked: "Q3: What do we do about
hostility between jurors
aggressive behavior, while we
deliberate?"
In response to this "hostility" question, the
circuit court had lunch delivered and had the bailiffs take the
jury for a walk.
29
No.
¶68
questions
2009AP1249-CR
After receiving no response to the initial substantive
for
over
three
hours,
the
jury
further
asked
the
circuit court the following questions:
Q7: Please define face-to-face contact with the child
– proximity??-eye to eye? - in room?
Q8: Same question: on meaning of count 1, part 1,
'exhibited or played harmful material to [the child]'
– need more definition behind exhibited –
– need more definition behind played
– need more definition for
(Emphasis in original.)
¶69
The
parties
presented
the
their
entire
statement.
respective
arguments
regarding how the circuit court should respond to the original
and subsequent substantive questions.
¶70
that at
The State asserted that no response was necessary and
this point
the
jurors
should
use their
common-sense
application of the words in the original instruction.
¶71
The
defendant
contended
that
his
rejected
modified
jury instructions had been proffered in anticipation of the very
confusion that the jury's questions presented.
The defendant
asked the circuit court to answer the jury's question by reinstructing
with
the
modified
jury
instructions
he
had
originally offered.
¶72
While the parties were presenting their arguments to
the circuit court, the jury advised the circuit court that it
had reached a verdict.
The circuit court did not answer the
30
No.
2009AP1249-CR
questions, determining that the questions and answers were now
moot.
¶73
The
jury
found
the
defendant
guilty
of
the
first
count, exposing a child to harmful material, contrary to Wis.
§ 943.11(2)(a),35
Stat.
and
not
guilty
of
the
second
count,
intentionally exposing a child to sexually explicit activity,
contrary to Wis. Stat. § 948.055(1)(2)(a).36
¶74
The jury questions were directed specifically at the
language of the first element of Count 1, exposing a child to
harmful
material.
struggling
with
The
questions
interpreting
"exposure,"
"exhibited
to,"
contact."
Specifically,
the
suggest
the
that
scope
"played
to,"
questions
the
of
the
and
raise
jury
was
language
"face-to-face
the
issue
of
whether the defendant had to know that the child was present.
The
question
went
to
whether
the
defendant's
exhibiting
playing the video to the child had to be done "knowingly."
or
The
jury should not have been left to struggle with interpreting the
instruction without judicial assistance.
¶75
The Thiel court interpreted the statutory language to
ensure that the statute was not unconstitutionally overbroad.
That interpretation requires that an accused "knowingly" exhibit
the harmful material to the child.
The jury should not have
35
The jury verdict as to Count 1 reads: "We, the jury, find
the defendant, ESTEBAN GONZALEZ, guilty of EXPOSING A CHILD TO
HARMFUL MATERIAL, as charged in Count One of the Information."
36
The jury verdict as to Count 2 reads: "We, the jury, find
the defendant, ESTEBAN GONZALEZ, not guilty as to Count Two."
31
No.
2009AP1249-CR
been left to struggle with interpreting the statute when the
supreme court had already done so.
¶76
Without any modification of the instruction, the jury
was left on its own to sort out how to interpret the "exposure,"
"exhibit to" and "play to" language of the first element of the
crime.
The very language that the Thiel court had to narrowly
interpret to ensure the constitutionality of the statute was not
explained to the jury, even after it was evident from the jury's
questions
that
the
jurors
did
not
clearly
understand
the
instruction.
¶77
initially
ambiguous.
The jury's questions demonstrate that the instructions
given
by
the
circuit
court
were
confusing
and
The court erred in failing to provide the jury with
at least some part of the defendant's proffered modified jury
instruction37 so that the jury could understand that accidently
exhibiting harmful material
to
a
child
is
not
sufficient to
satisfy the first element of the crime charged.
37
The defendant's proposed modified jury instructions
expressly set forth the "knowing" and "affirmative" aspect of
the first element of the crime in several different ways.
Not all of the defendant's modifications to the pattern
jury instruction were necessarily correct or were needed to
properly instruct the jury. But without any modification of the
instruction to explicitly require the State to prove beyond a
reasonable doubt that the defendant knowingly exhibited the
harmful material to the child, or to provide an instruction
relating to an accident theory of defense, there is a reasonable
likelihood that the instruction was misleading in the present
case.
32
No.
¶78
The
jury
instruction
at
issue
in
the
2009AP1249-CR
present
case
failed to sufficiently instruct the jury on the meaning of the
statutory language under the circumstances of the present case.
Reviewing the jury instruction and proceedings as a whole, it is
reasonably likely that the jury was misled.
¶79
that
the
Nothing in the record or the instruction assures us
jury
found
the
defendant
guilty
of
count
1
after
interpreting the instruction to require that the State prove
beyond a reasonable doubt that the defendant knowingly exhibited
the
harmful
material
proceedings,
the
to
jury
the
could
child.
have
On
the
concluded
basis
the
that
either
of
the
defendant knowingly exhibited the harmful material to the child
or
that
the
defendant
material to the child.
accidentally
exhibited
the
harmful
We do not know the tack the jury took.
We do not know how the jury interpreted the misleading jury
instructions.
necessarily
Accordingly, we are not confident that the jury
found
that
the
State
proved
that
the
defendant
"knowingly" exhibited the harmful material to the child.
¶80
Fifth, the possibility that the jury was confused or
misled about the element of "knowing" in Count 1 is further
demonstrated
when
we
examine
the
jury
instruction
given
for
Count 2.
¶81
In the substantive instruction on Count 2, the jury
was instructed that to find the defendant guilty, the jury must
find that the defendant intentionally caused the child who had
not
attained
the
age
of
13
years
to
view
sexually
explicit
conduct for the purpose of sexual gratification, contrary to
33
No.
Wis. Stat. § 948.055(1),(2)(a).
2009AP1249-CR
The circuit court instructed
the jury as follows:
This section of the criminal code is violated by
person who intentionally causes the child to view
listen to sexually explicit conduct for the purpose
sexually
arousing
or
gratifying
the
person
humiliating or degrading the child.
a
or
of
or
Before you may find the defendant guilty of this
offense, the State must prove by evidence which
satisfies you beyond a reasonable doubt the following
four elements were present: first, the defendant
caused [the child] to view or listen to sexually
explicit conduct. . . .
Second element, that the defendant intentionally
caused [the child] to view or listen to sexually
explicit conduct.
"Intentionally" requires that the
defendant acted with a purpose to cause her to view or
listen to sexually explicit conduct. Third, that [the
child]
had
not
attained
the
age
of
13
years. . . . Fourth, that the defendant acted with the
purpose of sexually
arousing
or
gratifying
the
defendant or humiliating or degrading [the child]
(emphasis added).
¶82
Both
criminal
simultaneous events:
counts
arose
out
of
allegedly
The defendant was accused of intentionally
causing the child to view him masturbating as he simultaneously
watched and exhibited or played the video.
The instruction for
Count 2 expressly includes an element of intent.
For Count 2,
the jury was instructed that an element of the crime was "that
the defendant intentionally caused [the child] to view or listen
to sexually explicit conduct.
'Intentionally' requires that the
defendant acted with a purpose to cause her to view or listen to
sexually explicit conduct" (emphasis added).
34
No.
¶83
2009AP1249-CR
With regard to Count 1, the jury was instructed that
the State had to prove only that the defendant exhibited harmful
material
to
the
child;
the
instruction
for
Count
1
did
not
include the word "knowing" or "intentional."38
¶84
The jurors had the instructions for both Counts 1 and
2 before them.
Had the jurors compared the instruction for
Count 1 with the instruction for Count 2, they would have found
a significant difference between the two.
Count
2
explicitly
requires
the
State
The instruction for
to
prove
that
the
defendant intentionally caused the child to view or listen to
sexually explicit conduct.
view
sexual
activity
Intentionally causing a child to
necessarily
encompasses
presenting sexual activity to a child.39
knowingly
The instruction for
38
In the criminal statutes, as well as in ordinary
parlance, the words "intentional" and "knowing" denote a state
of mind.
Wisconsin Stat. § 939.23(1) provides that "[w]hen criminal
intent is an element of a crime in chs. 939 to 951, such intent
is indicated by the term 'intentionally', the phrase 'with
intent to', the phrase 'with intent that', or some form of the
verbs 'know' or 'believe'."
Wisconsin
Stat.
§ 939.23(2)
provides
that
"'[k]now'
requires only that the actor believes that the specified fact
exists."
Wisconsin Stat. § 939.23(3) defines "intentionally" to
include knowledge: "'Intentionally' means that the actor either
has a purpose to do the thing or cause the result specified, or
is aware that his or her conduct is practically certain to cause
that result. In addition, except as provided in [§ 939.23] sub.
(6), the actor must have knowledge of those facts which are
necessary to make his or her conduct criminal and which are set
forth after the word 'intentionally'."
39
Wis. Stat. § 939.23(3), quoted above.
35
No.
Count
1
has
no
similarly
explicit
"intention"
2009AP1249-CR
or
"knowing"
language.
¶85
the
This difference between the two instructions increases
likelihood
that
the
jury
may
have
interpreted
the
jury
instruction for Count 1 as not requiring the defendant to have
knowingly exhibited harmful material to a child.
¶86
Viewing the jury instruction for Count 1 in light of
the instruction for Count 2 and reviewing the proceedings as a
whole, we conclude that there is a reasonable likelihood that
the jury was confused and misled about the need for the State to
prove an element of the crime.
¶87
The jury expressed its confusion regarding the jury
instruction
material.
related to Count
1,
exposing
a
child
to
harmful
The circuit court had an opportunity to rectify the
jury instruction.
Yet, the circuit court did not respond to the
jury's queries.
¶88
We
instruction
do
to
not
know
require
whether
the
jury
the
to
jury
find
interpreted
that
the
the
defendant
knowingly exhibited the harmful material to the child or whether
the jury interpreted the instruction to allow the jury to find
that
the
defendant's
material
to
the
evidence
supports
child
accidental
was
either
of
exhibition
sufficient
these
to
of
find
findings.
the
harmful
guilt.
If
the
The
jury
interpreted the instruction in the latter way, the challenged
jury instruction relieved the State of the burden of proving an
element of the crime beyond a reasonable doubt, violating the
defendant's fundamental constitutional rights.
36
No.
¶89
2009AP1249-CR
Accordingly, we reverse the conviction and remand the
cause for a new trial.
IV
¶90
notify
Finally,
counsel
we
address
about
the
the
circuit
questions
the
court's
jury
failure
posed
to
until
a
substantial amount of time had elapsed.
¶91
and
see"
The defendant complains that the circuit court's "wait
approach
to
the
jury's
questions
violated
his
constitutional rights to trial by an impartial jury and to be
present with counsel at all critical stages of the trial.
¶92
has
The defendant does not contest that the circuit court
discretion
given.
The
to
determine
circuit
what,
court
is
if
any,
vested
re-instruction
with
discretion
is
in
determining the necessity for, the extent of, and the form of
any jury re-instruction.
Wis. 2d 1, 752 N.W.2d 839.
State v. Hubbard, 2008 WI 92, ¶57, 313
Wisconsin Stat. § 805.13(5) provides
that "[a]fter the jury retires, the court may reinstruct the
jury as to all or any part of the instructions previously given,
or may give supplementary instructions as it deems appropriate."
¶93
The defendant contends, however, that a defendant has
a right to be present and represented by counsel, so that he may
represent his interests in a circuit court's communications with
a
deliberating
jury.
The
defendant
argues
that
his
constitutional right to be present at a critical stage of trial
was violated by the circuit court's failure to promptly notify
him of the jury's questions.
Prompt notice would ensure that
37
No.
2009AP1249-CR
the defendant has an opportunity to discuss with the circuit
court a possible response to any jury question.
¶94
The
circuit
court's
communication
with
deliberating jury is a critical stage of the trial.40
the
We have
not determined whether a circuit court's decision not to respond
to
a
jury
question
deliberating
is
jury
equivalent
such
that
a
to
communicating
decision
constitutes a critical stage of the trial.
not
with
to
the
respond
Because we reverse
the decision of the court of appeals and remand for a new trial
on the basis of the jury instruction, we need not, and do not,
decide whether a circuit court's decision not to respond to a
jury question constitutes
whether
advising
the
circuit
counsel
a
court's
of
the
critical
delay
jury's
of
stage
two
of
to
the
trial,
or
three
hours
in
questions
violated
the
defendant's constitutional rights in the present case.
¶95
We do, however, recommend that circuit courts apply
Principle 15D of the American Bar Association Principles for
Juries & Jury Trial as a best practice standard.41
Principle 15D
states as follows:
40
State v. Anderson, 2006 WI 77, ¶¶67-69, 291 Wis. 2d 673,
717 N.W.2d 74.
41
In 2006, the Conference of Chief Justices adopted a
resolution encouraging the use of the ABA Principles for Juries
and Jury Trials as a best practice standard.
The resolution
states:
NOW, THEREFORE, BE IT RESOLVED that the Conference of
Chief Justices:
1. Encourages state courts to use the ABA Principles
for Juries and Jury Trials as the standard against
38
No.
2009AP1249-CR
When jurors submit a question during deliberations,
the court, in consultation with the parties, should
supply a prompt, complete and responsive answer or
should explain to the jurors why it cannot do so.42
¶96
Had this principle been applied in the present case,
the jury instruction may have been clarified and the appeal and
retrial may not have been needed.
* * * *
¶97
We
conclude
that
the
jury
was
not
instructed
explicitly or implicitly that it had to determine whether the
defendant had knowingly exhibited the harmful material to the
child,
as
distinguished
from
accidentally
exhibiting harmful material to the child.
did not sufficiently define
the
first
or
unknowingly
The jury instruction
element
of
the
crime,
which to evaluate and improve their own jury system
policies and procedures;
2. Encourages all state courts to implement procedures
and practices consistent with the ABA Principles for
Juries and Jury Trials;
3. Encourages state courts to continue to broaden
efforts to educate and inform the public about jury
service,
and
to
enhance
positive
attitudes and
opinions about jury service; and
4. Supports the continued efforts of the American Bar
Association through the Commission on the American
Jury Project.
Conference of Chief Justices, Resolution 14: In Support of the
American Bar Association Principles for Juries and Jury Trials
(2006), available at http://ccj.ncsc.dni.us/JuryResols.html.
42
ABA Principles for Juries and Jury Trials Principle 15 is
entitled "COURTS AND PARTIES HAVE A DUTY TO FACILITATE EFFECTIVE
AND IMPARTIAL DELIBERATIONS."
39
No.
2009AP1249-CR
namely, that the State must prove beyond a reasonable doubt that
the defendant knowingly exhibited the harmful material to the
child.
Accordingly, we are satisfied that the jury instruction
misled the jury into believing that the State did not have the
burden of proving beyond a reasonable doubt that the defendant
"knowingly"
exhibited
the
harmful
material
to
the
child.
Viewing the jury instruction in light of the proceedings as a
whole, we further conclude that the defendant has established a
reasonable likelihood that the jury applied the instruction in a
way
that
relieved
the
State
of
its
burden
of
proving
every
element of the crime beyond a reasonable doubt and therefore
applied
the
potentially
unconstitutional manner.
confusing
instruction
in
an
We therefore reverse the decision of
the court of appeals and remand the cause for a new trial.
¶98
By the Court.—The decision of the court of appeals is
reversed and the cause remanded.
40
No.
¶99
§ 948.11
DAVID T. PROSSER, J.
(concurring).
is entitled, in part,
"Exposing
material."
a
2009AP1249-CR.dtp
Wisconsin Stat.
child
to
harmful
It reads in part:
(2) Criminal
Penalties.
(a)
Whoever,
with
knowledge of the character and content of the
material, sells, rents, exhibits, plays, distributes,
or loans to a child any harmful material, with or
without monetary consideration, is guilty of a Class I
felony if any of the following applies:
1.
The person knows or reasonably should know
that the child has not attained the age of 18 years.
2.
The person has face-to-face contact with the
child before or during the sale, rental, exhibit,
playing, distribution, or loan.
Wis. Stat. § 948.11(2)(a).
¶100 A person looking at this statute might wonder why the
statute does not read as follows: "Whoever, with knowledge of
the
character
and
content
of
the
material,
sells,
rents,
exhibits, plays, distributes, or loans to a child any harmful
material, with or without monetary consideration, is guilty of a
Class I felony."
¶101 When ch. 948 of the statutes was created in 1988,1 Wis.
Stat.
§ 948.11(2)(a)
knowledge
of
the
did
nature
read
of
more
the
simply:
material,
"Whoever,
sells,
with
exhibits,
transfers or loans to a child any material which is harmful to
children, with or without monetary consideration, is guilty of a
Class E felony."
¶102 The legislature revised the statute and approved the
present language in § 948.11(2)(a) and (c) in 2001 in an effort
to
deal
1
with
continuing
issues
See 1987 Wis. Act 332, § 55.
1
surrounding
a
defendant's
No.
knowledge about a child's age.2
been troubling.
2009AP1249-CR.dtp
This knowledge factor has always
Defendants have had some form of an affirmative
2
See 2001 Executive Budget Act, 2001 Wis. Act 16, §§ 39763977.
The budget provision was derived from 2001 Senate Bill
26, introduced by a bipartisan group of legislators at the
request of Attorney General James Doyle. The bill analysis for
Senate Bill 26 reads, in part, as follows:
Current law does not require that the state prove that
the defendant knew or should have known that the
recipient of the material was a child. The law does,
however, establish an affirmative defense under which
the defendant may avoid criminal liability by proving
that he or she reasonably believed that the recipient
was 18 years of age or older. In order to prove that
he or she reasonably believed the recipient was 18
years of age or older, the defendant must show that
the recipient provided the defendant an official
document purporting to establish that the recipient
was at least 18 years of age.
The Wisconsin supreme court recently ruled that
the statute that prohibits exposure of a child to
harmful materials is unconstitutional as applied to a
defendant who sent harmful material over the Internet
to a 17-year-old, and to other instances in which the
defendant does not have face-to-face contact with the
recipient.
State v. Weidner, 235 Wis. 2d 306 (2000).
The supreme court found the statute unconstitutional
because the statute does not make knowledge of the
recipient's age an element of the crime, which the
state must prove to obtain a conviction. The supreme
court distinguished Weidner (in which the defendant
transmitted harmful material over the Internet) from
instances in which the defendant meets the recipient
face-to-face.
The supreme court did not disturb a
lower
court
ruling
that
found
the
statute
constitutional as applied to instances in which the
defendant meets the recipient face-to-face, because
the
face-to-face
meeting
provides
the
defendant
opportunity to assess the recipient's age.
This bill makes knowledge of the recipient's
status as a child an element of the crime only if the
defendant does not have face-to-face contact with the
child. Under the bill, if the defendant does not have
face-to-face contact with the recipient, the state
2
No.
defense
involving
reasonable
mistake
of
2009AP1249-CR.dtp
age——a
provision
embodied in § 948.11(2)(c)——for at least four decades.
now
See Wis.
Stat. § 944.25(11)(a) (1971).
¶103 Several years ago, the court observed that "[s]ection
948.11 has been somewhat of a 'work in progress' since 1957."
State
v.
Thiel,
183
Wis. 2d 505,
534
n.22,
515
N.W.2d 847
(1994).
Historically, the major points of contention have been
(1)
character
the
of
the
"harmful
material"
covered
by
the
statute, and (2) the defendant's knowledge about the child's
age.
To
some
extent,
both
of
these
issues
implicate
the
defendant's knowledge or state of mind.
¶104 The
present
case
presents
a new
issue
of
mens
rea
because of a somewhat unusual application of the statute.
¶105 The defendant played a pornographic video at night in
his apartment at a time when his three-year-old daughter was
supposed
to
be
in
bed.
Apparently,
the
daughter
left
her
bedroom and entered the room where the video was being shown.
Apparently, she saw the video.
¶106 The
State
contends
that
the
defendant
admitted
to
police officers that he was aware that his daughter had entered
need not prove that the defendant knew or should have
known that the recipient was a child. A defendant who
has face-to-face contact with the recipient may avoid
criminal liability by proving the affirmative defense
as modified by the bill.
The modified affirmative
defense requires that the defendant prove that he or
she had reasonable cause to believe that the recipient
was at least 18 years of age, but does not require the
defendant to prove that the recipient displayed an
official document purporting to establish that the
recipient was 18 years of age or older.
3
No.
2009AP1249-CR.dtp
the living room but he was so preoccupied that he failed to turn
off the video.
The defendant contests this version of events.
¶107 There
requires
more
is
no
than
dispute
that
pornographic video.
the
that
Wis.
defendant
Stat.
§ 948.11(2)
purposely
That is not unlawful.
played
a
The new issue is
what state of mind the defendant had to have with respect to his
daughter's seeing the video——the harmful material——to be guilty
of the offense.
¶108 The defendant argues that the instructions given to
the jury were misleading because they could have led the jury to
believe that if the child observed the defendant's video being
played and the defendant either saw the child before the child
watched the video, or if the defendant saw the child during the
time the child was watching the video, he would be guilty even
though
the
child's
accidental.
viewing
of
the
video
was
inadvertent
or
The defendant contends that permitting a jury to
convict him because of an accidental viewing by the child would
unconstitutionally relieve the State of the burden of proving an
affirmative act on his part vis-à-vis the child.
¶109 If we ask what state of mind the statute requires for
conviction, the question has nothing to do with the age of the
child.
The
knowledge.
"play"
or
question
has
everything
to
do
with
volition
or
Did the defendant have to make a conscious choice to
"exhibit"
the
video
to
his
daughter?
Could
the
defendant be convicted if he knew that his daughter had begun to
watch the video but he did not act immediately to stop the
viewing?
Is an accidental viewing subject to prosecution?
4
No.
¶110 Chief
Justice
Abrahamson
appears
2009AP1249-CR.dtp
to
address
these
questions by requiring the insertion of the word "knowingly"
before all six verbs in
exhibits,
plays,
instructions.
Wis. 2d at
the
statute,
distributes
or
namely,
loans,"
"sells,
in
rents,
future
jury
The word "knowingly" is derived from Thiel, 183
535,
where
the
court
said,
in
a
particular
fact
situation, that "an individual violates the statute 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."
¶111 There
is
(Emphasis added.)
resistance
to
this
remedy.
"knowingly" is not contained in the statute.
The
word
The word has not
been picked up and highlighted in the headnotes to the Thiel
case.
It has not been put into the jury instructions over the
past 16 years.
And the statute has been substantially amended
since 1994.
¶112 Justice
Ziegler
contends
that
a
state
of
mind
is
implicit in the six verbs——that each verb "represents a knowing
and affirmative act."
Thiel, 183 Wis. 2d at 535.
She believes
that adding the word "knowingly" to the jury instructions would
create mischief.
She wants to leave well enough alone.
¶113 On the other hand, the record in this case is clear
that the jury was confused and wanted guidance.
The circuit
court did not provide guidance, and the jury was left with an
erroneous instruction.
from
discussion
and
The circuit court would have benefited
advice
from
the
Wisconsin
Instructions Committee in the jury instructions.
5
Criminal
Jury
No.
2009AP1249-CR.dtp
¶114 Rather than try to resolve here the issue of mens rea
embedded in the first element of the statute involving the words
"play" and "exhibit," I would ground a new trial solely on the
misleading fourth element employed by the circuit court.
¶115 I
am
authorized
to
state
GABLEMAN joins this concurrence.
6
that
Justice
MICHAEL
J.
No.
¶116 ANNETTE KINGSLAND ZIEGLER, J.
2009AP1249-CR.akz
(concurring).
I write
in concurrence because I, like the lead opinion, conclude that
in light of these proceedings as a whole, Gonzalez has met his
burden of demonstrating a reasonable likelihood that the jury
applied the instruction on Count 1 in a manner that violates the
constitution.
In particular, Gonzalez has met his burden of
demonstrating that the instruction was ambiguous and that there
is a reasonable likelihood that the jury applied the instruction
in a way that relieved the State of having to prove beyond a
reasonable
doubt
that
Gonzalez
exhibited
material to three-year-old A.G.
that
the
jury
instruction
statement of the law.
opinion
should
"knowingly"
instruction
not
be
on
played
harmful
I wish to clarify, however,
Count
1
was
a
legally
correct
I concur to highlight that the lead
be
added
Wis.
on
or
read
to
Stat.
as
now
the
requiring
first
that
the
word
of
the
jury
element
§ 948.11(2)(a).
Indeed,
both
the
pattern jury instruction and the instruction given in this case
track the exact language
of
case,
set
under
a
different
§ 948.11(2)(a).
of
facts,
In
this
a
different
identical
jury
instruction might not pose any constitutional concerns.
I. ANALYSIS
A. The jury instruction was a legally
correct statement of the law.
¶117 The
language
of
jury
Wis.
instruction
Stat.
on
Count
§ 948.11(2)(a).
1
tracked
Section
the
exact
948.11(2)(a)
provides that a person is guilty of a Class I felony if he or
she
"with
knowledge
of
the
character
and
content
of
the
material, sells, rents, exhibits, plays, distributes, or loans
1
No.
to
a
child
any
harmful
material,
with
or
2009AP1249-CR.akz
without
monetary
consideration" and either (1) "knows or reasonably should know
that
the
child
alternatively,
before
or
has
(2)
during
not
"has
attained
the
face-to-face
the
sale,
age
of
contact
rental,
18
years"
with
the
exhibit,
or,
child
playing,
distribution, or loan."
¶118 Likewise, in this case, the circuit court instructed
the jury as follows:
Exposing a child to harmful material, as defined
in § 948.11(2)(a) of the Criminal Code of Wisconsin,
is committed by one who, with knowledge of the
character and content of the material, sells, rents,
exhibits, plays, distributes, or loans to a child any
harmful
material,
with
or
without
monetary
consideration and has face-to-face contact with the
child before or during the sale, rental, exhibit,
playing, distribution, or loan.
The circuit court then broke down the statutory definition into
four elements, instructing the jury that the State must prove
each element beyond a reasonable doubt:
Before you may find the defendant guilty of this
offense, the State must prove by evidence which
satisfies you beyond a reasonable doubt that the
following four elements were present.
. . . .
1. The defendant
material to [A.G.].
exhibited
or
played
harmful
. . . .
2. The defendant had knowledge of the character
and content of the material.
This requires that the defendant knew that the
material contained a description, narrative account,
or
representation
of
nudity,
sexually
explicit
2
No.
2009AP1249-CR.akz
conduct, sexual excitement, sadomasochistic
physical torture, or brutality.
abuse,
3. [A.G.] was under the age of 18 years.
4. The defendant had face-to-face contact with
the child before or during the exhibition or playing
of the material.
¶119 As the lead opinion explains, and I do not dispute,
the
circuit
court
erred
when
it
instructed
the
jury
on
the
fourth element and applied the incorrect alternative under the
statute.
See lead op., ¶¶46-52.
As I more fully explain in
Part B, on the basis of the fourth element, I conclude that
Gonzalez
has
likelihood
met
that
his
the
burden
jury
of
applied
demonstrating
the
legally
a
reasonable
correct
jury
instruction in a manner that violates the constitution.
See
infra ¶¶130-36.
¶120 The fourth element is a means of determining that the
defendant knew the child was under the age of 18.
¶46.
See lead op.,
Under the statute, the State can prove the fourth element
in one of two ways: either by proving that the defendant (1)
"kn[ew] or reasonably should [have] know[n] that the child ha[d]
not attained the age of 18 years" or, alternatively, (2) "ha[d]
face-to-face contact with the child before or during the sale,
rental,
exhibit,
playing,
Stat. § 948.11(2)(a).
distribution,
or
loan."
See
Wis.
In this case, given the fact that A.G. is
Gonzalez's daughter, the circuit court should have instructed
the jury that the fourth element is satisfied if the defendant
"kn[ew] or reasonably should [have] know[n] that [A.G.] ha[d]
not attained the age of 18 years."
3
See § 948.11(2)(a).
The
No.
2009AP1249-CR.akz
alternative "face-to-face" instruction is inapplicable under the
facts of this case.
¶121 In
spite
See lead op., ¶¶51-52; infra ¶¶130-31.
of
the
fact
that
the
instruction
on
the
fourth element did not fit the facts of this case, the jury
instruction otherwise tracked the exact language of Wis. Stat.
§ 948.11(2)(a).
The lead opinion claims to conclude that the
instruction was a legally correct statement of the law.
lead op., ¶¶26-28.
See
Still, at times, the lead opinion implies
that the jury instruction was legally inaccurate because the
word
"knowingly"
element.1
was
absent
from
the
instruction's
first
That is, the lead opinion implies that the circuit
court was required to explicitly instruct the jury that the jury
must be satisfied beyond a reasonable doubt that the defendant
"knowingly exhibited or played harmful material to A.G."
In
support, the lead opinion relies upon this court's decision in
State v. Thiel, 183 Wis. 2d 505, 515 N.W.2d 847 (1994).
The
lead opinion reasons:
1
See, e.g., lead op., ¶3 ("The jury instruction did not
sufficiently define the first element of the crime, namely, that
the State must prove beyond a reasonable doubt that the
defendant knowingly exhibited the harmful material to the
child."); id., ¶26 n.14 ("For the reasons set forth, we would
conclude that the instruction was not a correct statement of the
law and was prejudicial error."); id., ¶36 (concluding that
Gonzalez has met his burden of demonstrating that there is a
reasonable likelihood that the jury instruction misled the jury
because "the jury instruction did not explicitly instruct the
jury that the State must prove beyond a reasonable doubt that
the defendant knowingly, as opposed to accidentally, exhibited
¶83
("[T]he
the harmful
material
to
the
child");
id.,
instruction for Count 1 did not include the word 'knowing' or
'intentional.'").
4
No.
2009AP1249-CR.akz
As the defendant, the circuit court, the court of
appeals, the State, and this court know, the supreme
court in State v. Thiel, 183 Wis. 2d 505, 535, 515
N.W.2d 847 (1994), interpreted Wis. Stat. § 948.11 to
mean that "an individual violates [the statute] 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."
Wisconsin Stat. § 948.11, construed narrowly as
The circuit court must
Thiel instructs, is the law.
instruct the jury according to that law.
Lead op., ¶¶33-34 (alteration in original); see also lead op.,
¶75
("The
Thiel
court
interpreted
the
statutory
language
to
ensure that the statute was not unconstitutionally overbroad.
That interpretation requires that an accused 'knowingly' exhibit
the harmful material to the child.").
The lead opinion misreads
Thiel when it suggests that the circuit court was required to
add
the
word
instruction.
"knowingly"
to
the
first
element
of
the
jury
In so doing, the lead opinion rewrites the statute
in a manner that Thiel expressly advocated against.
I, unlike
the lead opinion, am not so willing to usurp the role of the
legislature or disregard the precedent that Thiel commands.
¶122 Our decision in Thiel must be understood in context.
In
that
case,
the
defendant
raised
a
facial
constitutional
challenge to Wis. Stat. § 948.11, arguing that the statute, as
written,
is
substantially
Specifically,
the
overbroad.
defendant
maintained
183
Wis. 2d at
that
the
518-20.
language
of
§ 948.11(2)(a), which provides that a person may not "exhibit"
material
legitimate
that
is
harmful
activities
to
protected
children,
by
effectively
the
First
chills
Amendment——
including an adult's right to sell, view, or examine sexually
explicit materials deemed harmful to minors.
5
Id. at 521.
We
No.
2009AP1249-CR.akz
disagreed, concluding that "[t]he statute properly regulates the
dissemination of materials considered to be harmful to minors
without unduly burdening the rights of adults to have access to
these same materials."
Id. at 523.
¶123 As the Thiel court recognized, pursuant to Ginsberg v.
New York, 390 U.S. 629 (1968), a state may enact a "variable
obscenity" statute that prohibits the distribution of sexually
explicit materials to children, even though the same materials
would
not
be
considered obscene
Thiel, 183 Wis. 2d at 524-27.
must
strike
a
proper
if
distributed
to an adult.
At the same time, such statutes
balance
between
a
state's
compelling
interest in protecting children and an adult's First Amendment
right to have access to materials not considered obscene for
adults.
See id. at 531 (citing Am. Booksellers v. Webb, 919
F.2d 1493 (11th Cir. 1990)).
Accordingly, variable obscenity
statutes must be narrowly construed and, importantly, cannot be
rewritten in order to conform to constitutional requirements.
See id. at 533.
¶124 The Thiel court concluded that Wis. Stat. § 948.11, as
written, can be narrowly construed to strike "a proper balance
between this state's compelling interest to protect the physical
and psychological well-being of our youth while not precluding
adult access to materials deemed to be harmful to minors though
not obscene for adults."
language
of
§ 948.11
Id. at 533-34.
has
been
We reasoned that the
narrowly
drafted
to
only
incidentally affect an adult's First Amendment right to view
materials not considered obscene for adults.
6
Id. at 534.
In
No.
particular,
person
the
may
language
of
sell,
loan,
not
§ 948.11(2)(a),
exhibit,
2009AP1249-CR.akz
providing
transfer
or
that
a
harmful
materials to a child, "focuses upon the affirmative conduct of
an individual toward a specific minor or minors."
Id. at 535.
With that being the focus, the statute is "[d]istinct from those
cases
involving
the
commercial
general, consumer audience."
only
"if
he
or
she,
display
Id.
aware
of
of
materials
to
a
A person violates § 948.11
the
nature
of
the
material,
knowingly offers or presents for inspection to a specific minor
or
minors
material
948.11(1)(b)."
defined
as
harmful
to
children
in
sec.
Id.
¶125 Thiel does not stand for the proposition that the word
"knowingly" is a requisite of the first element of the jury
instruction on Wis. Stat. § 948.11(2)(a).
To the contrary, the
Thiel court concluded that the statute, as written, "focuses
upon the affirmative conduct of an individual toward a specific
minor or minors."
Id. at 535.
Hence, just as the circuit court
and court of appeals concluded in the instant case, see lead
op.,
¶38,
rent[],
the
statute's
exhibit[],
material
"to
a
requirement
play[],
child"
affirmative conduct.
that
distribute[],
already
a
or
person
"sell[],
loan[]"
harmful
contemplates
knowing
and
The lead opinion rejects this analysis,
see id., ¶39, and instead, appears to rely on Thiel for the
proposition that the circuit court was required to explicitly
instruct
the
reasonable
jury
doubt
that
that
the
the
jury
must
defendant
played harmful material to A.G."
7
be
satisfied
"knowingly
beyond
exhibited
a
or
However, such rewriting of
No.
2009AP1249-CR.akz
§ 948.11(2)(a) amounts to judicial legislating and is exactly
what the Thiel
Wis. 2d at
court made
532-33;
see
clear
also
it
Heimerl
could not
v.
do.
Ozaukee
See
183
Cnty.,
256
Wis. 151, 155, 40 N.W.2d 564 (1949) ("[W]hile a statute should
be held valid whenever by any fair interpretation it may be
construed to serve a constitutional purpose, courts cannot go
beyond the province of legitimate construction to save it, and
where the meaning is plain, words cannot be read into it or out
of
it
for
the
purpose
of
saving
one
or
other
possible
alternative.").
¶126 In sum,
in
Thiel,
this
court
did
not
rewrite
Wis.
Stat. § 948.11(2)(a) and insert the word "knowingly" before the
phrase "sells, rents, exhibits, plays, distributes, or loans to
a child any harmful material . . . ."
statute,
which,
we
as
narrowly
written,
construed
already
Instead, as we parsed the
that
existing
encompasses
phrase
affirmative
as
one
conduct
towards a specific minor or minors——as opposed to the act of
selling, renting, exhibiting, playing, distributing, or loaning
the objected to material to an adult or group of adults when it
is not known that a minor is part of the group.2
¶127 Accordingly,
both
the
language
of
Wis.
Stat.
§ 948.11(2)(a) and this court's decision in Thiel lead me to
conclude that the jury instruction on Count 1 was a legally
2
See State v. Weidner, 2000 WI 52, ¶20, 235 Wis. 2d 306,
611 N.W.2d 684 (explaining that the Thiel court "not[ed] that
the term 'exhibit' contemplates affirmative conduct to target
specific minors rather than a commercial display to a general
audience" (emphasis added)).
8
No.
2009AP1249-CR.akz
correct statement of the law and that the absence of the word
"knowingly"
from
the
instruction deficient.
first
element
did
not
render
the
In a different case, under a different
set of facts, this identical jury instruction might not pose any
constitutional concerns.
¶128 However, I agree with the lead opinion that in light
of these proceedings as a whole, and particularly in light of
the
jury
instruction's
has
Gonzalez
likelihood
misapplication
burden
met
that
his
the
jury
of
of
the
fourth
demonstrating
applied
the
legally
a
element,
reasonable
correct
jury
instruction in a manner that violates the constitution.
B. In light of these proceedings as a whole,
Gonzalez has met his burden of demonstrating a
reasonable likelihood that the jury applied the
jury instruction in a manner that violates the
constitution.
¶129 A defendant is entitled to a new trial if he or she
establishes that "'there is a reasonable likelihood that the
jury applied the challenged [jury] instruction[] in a manner
that violates the constitution.'"
State v. Burris, 2011 WI 32,
¶45, __ Wis. 2d __, 797 N.W.2d 430 (quoting State v. Lohmeier,
205 Wis. 2d 183, 193, 556 N.W.2d 90 (1996)).
"[A]n 'especially
heavy burden'" is placed upon a defendant "who . . . seeks to
show constitutional error from a jury instruction that quotes a
Waddington v. Sarausad, 555 U.S. 179, 129 S.
state statute."
Ct. 823, 831 (2009) (quoting Henderson v. Kibbe, 431 U.S. 145,
155
(1977)).
A
defendant
meets
that
burden
if
he
or
she
"'show[s] both that the instruction was ambiguous and that there
was
a
reasonable
likelihood
that
the
jury
applied
the
instruction in a way that relieved the State of its burden of
9
No.
2009AP1249-CR.akz
proving every element of the crime beyond a reasonable doubt.'"
Burris, 2011 WI 32, ¶48 (quoting Waddington, 129 S. Ct. at 831).
Upon review, we consider the challenged jury instruction "in
light of the proceedings as a whole, instead of viewing a single
instruction in artificial isolation."
Lohmeier, 205 Wis. 2d at
194.
¶130 In this case, in light of the proceedings as a whole,
I agree with the lead opinion that Gonzalez has met his burden
of
demonstrating
that
the
jury
instruction
on
Count
1
was
ambiguous and that there is a reasonable likelihood that the
jury applied the instruction in a way that relieved the State of
having
to
prove
beyond
a
reasonable
doubt
exhibited or played harmful material to A.G.
that
Gonzalez
See lead op., ¶78
("The jury instruction at issue in the present case failed to
sufficiently instruct the jury of the meaning of the statutory
language under the circumstances of the present case.
the
jury
instruction
and
proceedings
as
a
Reviewing
whole,
it
is
reasonably likely that the jury was misled." (Emphasis added.)).
Unlike the lead opinion, I do not arrive at that conclusion on
the
grounds
that
the
jury
instruction
did
not
explicitly
instruct the jury that it must be satisfied beyond a reasonable
doubt that the defendant "knowingly" exhibited or played harmful
10
No.
material to A.G.3
See id., ¶¶36-37.
2009AP1249-CR.akz
As discussed above, the
jury instruction correctly stated the law.
Instead, I conclude
3
The lead opinion supports its conclusion, in part, by
comparing the jury instruction on Count 1 with the jury
On Count 2,
instruction on Count 2.
See lead op., ¶¶80-86.
consistent with the express language of Wis. Stat. § 948.055(1),
the circuit court instructed the jury that "[s]ection 948.055 of
the Criminal Code of Wisconsin is violated by a person who
intentionally causes a child to view or listen to sexually
explicit conduct for the purpose of sexually arousing or
gratifying the person or humiliating or degrading the child."
(Emphasis added.)
The lead opinion compares that instruction's
explicit reference to "intentionally" with the instruction on
Count 1, noting that "[t]he instruction for Count 1 has no
similarly explicit 'intention' or 'knowing' language."
Lead
op., ¶84.
In making such a comparison, the lead opinion makes
several false insinuations, including suggesting that the terms
"knowingly" and "intentionally" are one and the same. They are
not.
In the criminal statutes, the terms "knowingly" and
"intentionally" have distinct and particularized meanings.
Compare Wis. Stat. § 939.23(2) with § 939.23(3).
The lead opinion also falsely insinuates that Count 1 and
Count 2 are somehow interrelated.
A violation of Wis. Stat.
§ 948.11(2)(a), Count 1, is separate and distinct from a
violation of Wis. Stat. § 948.055(1), Count 2.
As the jury
instructions make explicit, the crimes are comprised of entirely
different elements. Compare Wis JI——Criminal 2142 with Wis JI——
Criminal 2125.
Notably, a person is guilty of violating Wis.
Stat. § 948.055(1) if he or she "intentionally causes a child
who has not attained 18 years of age to view or listen to
sexually explicit conduct" and does so "for the purpose of
sexually arousing or gratifying the actor or humiliating or
degrading the child." If the child is under the age of 13, then
the actor is guilty of a Class F felony.
§ 948.055(2)(a).
In
comparison, neither criminal "intention" nor sexual arousal is
an element of Wis. Stat. § 948.11(2)(a).
A violation of
§ 948.11(2)(a) is a Class I felony.
11
No.
2009AP1249-CR.akz
that the jury instruction was ambiguous and that there is a
reasonable
likelihood
that
the
jury
was
misled
because
the
instruction misapplied the fourth element of the offense, given
the facts of this case.
¶131 As
mentioned
earlier,
the
circuit
court
misapplied
Wis. Stat. § 948.11(2)(a) when it instructed the jury that it
must be satisfied beyond a reasonable a doubt that Gonzalez "had
face-to-face contact with [A.G.] before or during the exhibition
or playing of the [harmful] material."
As the lead opinion
explains, the instruction on "face-to-face contact" is generally
applicable to Internet transactions, in which the defendant may
assert the affirmative defense under § 948.11(2)(c) that he or
she "had reasonable cause to believe the child had attained the
age of 18 years."
See lead op., ¶52; Wis JI——Criminal 2142A.
In such cases, the State bears the burden of proving that the
defendant had "face-to-face contact with the child before or
during
the
sale,
rental,
exhibit,
playing,
distribution,
or
loan" of the harmful material and therefore had knowledge of the
child's age.
§ 948.11(2)(a)2.; see also State v. Weidner, 2000
WI 52, 235 Wis. 2d 306, 611 N.W.2d 684.
¶132 In this case, however, the instruction on "face-toface contact" was unnecessary because Gonzalez's knowledge of
Despite the fact that these two counts "arose out of
allegedly simultaneous events," lead op., ¶82, it is entirely
legitimate for the jury to convict on one and not the other, and
I reject the lead opinion's insinuation otherwise. For example,
it is possible that the jury could believe that the defendant
exhibited or played the pornographic video to A.G. but did not
intentionally cause her to view his masturbation for the purpose
of sexually arousing him or humiliating her.
12
No.
2009AP1249-CR.akz
A.G.'s age was not in doubt; A.G. is Gonzalez's daughter.
the
circuit
fourth
court
element
is
should
have
satisfied
instructed
on
the
the
jury
alternative
Thus,
that
grounds
the
that
Gonzalez "kn[ew] or reasonably should [have] know[n] that [A.G.]
ha[d]
not
attained
the
age
of
18
years."
See
Wis.
Stat.
§ 948.11(2)(a).
¶133 In a different case, a jury instruction's erroneous
application of the instruction on "face-to-face contact" might
not rise to the level of a due process violation.
this
case,
in
light
of
the
proceedings
as
a
However, in
whole,
it
is
reasonably likely that the instruction on "face-to-face contact"
misled the jury into believing that the State did not have to
prove
beyond
a
reasonable
doubt
that
Gonzalez
exhibited
it
be
or
played harmful material to A.G.
¶134 By
beyond
a
instructing
reasonable
a
the
jury
that
doubt
that
Gonzalez
must
"had
satisfied
face-to-face
contact with [A.G.] before or during the exhibition or playing
of
the
[harmful]
material,"
the
jury
instruction
may
have
relieved the State of having to prove that Gonzalez exhibited or
played harmful material to A.G.
(Emphasis added.)
That is, if
the jury found that Gonzalez had face-to-face contact with A.G.
before, but not during, the exhibition or playing of the harmful
material, then it is reasonably likely that the jury did not
believe that Gonzalez exhibited or played the harmful material
to
A.G.
That likelihood
is
compounded
by
defense
counsel's
closing arguments and the questions submitted by the jury.
13
No.
¶135 In
his
closing
arguments,
2009AP1249-CR.akz
Gonzalez's
counsel
repeatedly spoke of "face-to-face" contact in relation to the
State having
to
prove
that
Gonzalez
exhibited
or
played
the
pornographic video to A.G.4
¶136 In addition, the jury specifically asked the circuit
court to "[c]larify statement 'the defendant exhibited or played
harmful material To [A.G.] [the child],'" see lead op., ¶63, and
to define "face-to-face contact with the child," see id., ¶68.
¶137 I do not pretend to know the jury's thought process or
the meaning behind its questions; the court's role is not to
invite such speculation.
much of this.
Nonetheless, the lead opinion does
See id., ¶74 (speculating that the jury questions
"raise the issue of whether the defendant had to know that the
child
was
present"
and
"went
to
whether
the
defendant's
exhibiting or playing the video to the child had to be done
'knowingly'").
Still, I am satisfied that, given the closing
arguments and the jury questions as they related to the fourth
element,
it
is
at
least
reasonably
likely
that
the
jury
instruction misled the jury into believing that the State did
not
have
to
prove
beyond
a
reasonable
doubt
that
Gonzalez
exhibited or played harmful material to A.G.
4
For example, Gonzalez's counsel argued that "[t]here is
absolutely no evidence that [Gonzalez] intentionally exposed
[A.G.] to the video in a face-to-face confrontation or context,
which is required by the statute for the first count."
Similarly, he argued that Gonzalez's behavior was "consistent
with a reasonable parent who would not and has testified []
would not intentionally knowingly exhibit a face-to-face, for
their child, a porno movie . . . ."
14
No.
¶138 In conclusion,
I
want
to
make
2009AP1249-CR.akz
clear
that
the
jury
instruction was a legally correct statement of the law and that
the absence of the word "knowingly" from the first element did
not render the
instruction
deficient.
In
a
different case,
under a different set of facts, this identical jury instruction
might not pose any constitutional concerns.
However, I agree
with the lead opinion that in light of these proceedings as a
whole, Gonzalez has met his burden of demonstrating a reasonable
likelihood
that
the
jury
applied
the
legally
correct
jury
instruction in a manner that violates the constitution.
¶139 For the foregoing reasons, I respectfully concur.
¶140 I am authorized to state that Justice PATIENCE DRAKE
ROGGENSACK joins this concurrence.
15
No.
1
2009AP1249-CR.akz
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