State v. Von Loh

458 N.W.2d 556, 157 Wis. 2d 91, 1990 Wisc. App. LEXIS 585

• Court: Court of Appeals of Wisconsin
• Decided: June 14, 1990
• Docket: 89-1736-CR
• Status: Published

Opinions

EICH, C.J.

Daniel E. Von Loh appeals from a judgment convicting him of criminal trespass to dwellings and lewd and lascivious behavior contrary to secs. 943.14 and 944.20(2), Stats. There are three issues: (1) whether the trial court erred in considering a pending criminal charge against Von Loh when sentencing him; (2) whether the state proved that Von Loh's conduct tended to create or provoke a breach of the peace as required by sec. 943.14; and (3) whether he should be granted a new trial in the interests of justice. We resolve all issues against Von Loh and affirm the judgment and order.

Von Loh, posing as a lingerie salesman from a local apparel store, came to the homes of three different women asking whether he could model men's underwear for them. Once inside their homes, he proceeded to model clothing which exposed his genitals. In another instance, Von Loh telephoned a woman claiming to be conducting a sex survey. The next day he arrived, uninvited, at her place of residence and walked into the house when she opened the door. He then tried to persuade her to let him model underwear. Eventually, and at her insistence, he left.

After a jury trial, Von Loh was convicted of four counts of criminal trespass to dwellings and three counts of lewd and lascivious behavior. Other facts will be referred to in the body of the opinion.

I. THE SENTENCING

At the sentencing hearing, the state offered into evidence the transcript of a preliminary hearing in another pending case in which Von Loh had been bound over for trial on charges of burglary and first-degree sexual assault. The court considered the transcript in sentencing him. The state eventually dismissed the sexual assault and burglary charges after two trials resulted in hung juries. Von Loh then filed a postconviction motion in this case, asking for reconsideration of his sentences in light of the dismissal. He also sought a new trial. The trial court denied the motion and Von Loh appealed.

Von Loh, appearing to concede that the court could consider pending charges in sentencing him, argues that a different rule should apply where, as he claims is the situation here, the pending charge was "far more serious" than any of the offenses for which he was being sentenced and, additionally, where the pending charge was never proved in court. He contends that, under those circumstances, consideration of the pending charge was "fundamentally unfair" in light of the presumption of innocence attending all defendants in criminal cases, and thus violated his right to due process of law.

In State v. McQuay, 154 Wis. 2d 116, 126, 452 N.W.2d 377, 381 (1990), the supreme court recognized that: "In determining the character of the defendant and the need for his [or her] incarceration and rehabilitation, the [sentencing] court must consider whether the crime is an isolated act or a pattern of conduct. Evidence of unproven offenses involving the defendant may be considered by the court for this purpose." (Emphasis added.) See also Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559, 562 (1980), where the court stated:

[T]he trial court in imposing sentence for one crime can consider other unproven offenses, since those other offenses are evidence of a pattern of behavior which is an index of the defendant's character, a critical factor in sentencing. [We have held] that the trial court could consider offenses which were uncharged and unproven. The trial court can also consider pending charges for which there has been no conviction. [Citations omitted.]

The same appears to be true even with respect to charges that are, or have been, dismissed. In Elias, for example, the court, emphasizing " [t]he responsibility of the sentencing court... to acquire full knowledge of the character and behavior pattern of the . . . defendant before imposing sentence," relied on two federal cases approving the use of the underlying factual bases of dismissed counts in a sentencing proceeding. Id., 93 Wis. 2d at 285, 286 N.W.2d at 562, citing United States v. Martinez, 584 F.2d 749, 750 (5th Cir. 1978), and United States v. Majors, 490 F.2d 1321, 1324 (10th Cir. 1974), cert. denied, 420 U.S. 932 (1975).

The crux of Von Loh's argument is that because the other, more serious, charge was eventually dismissed after two "hung jury" trials, he was being punished in this case for offenses for which he had never been — and now never could be — convicted. We disagree.

The trial court began its sentencing analysis by rejecting probation on grounds that such a sanction "neither addresses the seriousness of the offenses in the context of [Von Loh's] criminal record [n]or provides adequate protection to the community, and it unnecessarily and inappropriately would depreciate the seriousness of the course of conduct." Then, again emphasizing the seriousness of Von Loh's conduct, the court stated: "It is serious because a violation of a person's dwelling is a violation of a zone of privacy and security which is . . . carefully protected . . . and [constitutes] a very significant and fundamental value in our society." The court also referred to the sexual activities engaged in by Von Loh while in the women's homes as "assaultive" and "assault[s] of a fundamental nature" which citizens have a right to be protected against.

Turning to Von Loh's character, the court noted that the offenses, in the context of his prior record, were "consistent with the pattern of conduct in the past." Then, considering the pending sexual assault charge, the court noted first that consideration of the preliminary hearing transcript had to be undertaken "with caution" because not only had the court not heard the testimony itself, but, more importantly, it was "only a probable cause hearing," and Von Loh had not been convicted of any of the charges. The court continued:

[B]ut I think the question for the public and ... for me in particular is, is this a dangerous person? Is this a person from whom we need not only protection because of his potential for annoyance, or . . . [might] other victims ... be more harmed than these [victims] . . . apparently were [?]

I need to know whether or not potentially these could have been dangerous situations, and I think that the evidence in the preliminary examination suggests that these may well have been highly dangerous situations to these victims . . .. The fact was that each of [the women] dealt with [Von Loh] in a non-confrontational manner. They did not humiliate him. They did not confront him.

The transcript. ; . suggests that, had they acted otherwise, he might have acted otherwise.

The court then concluded that Von Loh was in need of rehabilitation and "a long period of strict . . . incarceration or supervision ... to get at [his] problem [which has not been corrected] even though there has been intervention over a long period of time by the criminal justice system."

After imposing prison sentences on the seven counts, the court stated as follows with respect to the pending sexual assault charge:

I want to be very explicit that I have not enhanced any sentence assuming that [Von Loh] committed other offenses. I have taken into consideration the evidence of [his] character. I have not punished him for an offense for which he has not been convicted, and I have specifically circumscribed my sentence to make it clear that I have not done so.

The court's statements at the sentencing hearing satisfy us that it was not, as Von Loh asserts, punishing him in this case for his alleged conduct in the since-dismissed case. The court, as it stated, was considering the preliminary hearing testimony as evidence of Von Loh's character, as in McQuay and Elias, and we see nothing "fundamentally unfair" or otherwise violative of his due process rights in the manner in which the court used that transcript at his sentencing hearing.

II. BREACH OF THE PEACE

Von Loh next argues that the state failed to prove that his conduct tended "to create or provoke a breach of the peace" as required by sec. 943.14, Stats.¹ He relies on Black's Law Dictionary 171 (5th ed. 1979), which defines a "breach of the peace" as "[a] violation or disturbance of the public tranquility and order. The offense of breaking or disturbing the public peace by any riotous, forcible, or unlawful proceeding." (Citation omitted.) Von Loh argues that the facts proved by the state "failed to show any violent, abusive, or unruly conduct" by him, and that he "left when requested" and "did not obstruct or threaten" the women.

We reject Von Loh's narrow definition of the phrase in the context of the criminal trespass statute. The pattern jury instruction on criminal trespass to dwellings states that "[i]t is not necessary that an actual breach of the peace occurred as a result of defendant's conduct. The term 'breach of the peace' includes all violations of peace and order." Wis JI-Criminal 1437 (1985) (emphasis added). The comment to the instruction refers to the disorderly conduct instruction, Wis JI — Criminal 1900 (1990), as instructive on the breach-of-the-peace element of the offense. The latter instruction states that conduct may provoke a disturbance even though "it may not be violent, abusive, indecent, profane, boisterous, or unreasonably loud" (footnote omitted).

The attorney general, in an opinion discussing the offense of criminal trespass to dwellings, concluded that a breach of the peace within the meaning of the statute involves conduct that is "calculated to put one in fear of bodily harm, and disturbing that quiet and repose which constitute, essentially, the comfort and rest of social life. It involves an act 'likely to put a person of ordinary firmness' in a state of fear of bodily harm." 62 Op. Att'y Gen. 16, 19 (1973), quoting State v. Thompson, 84 A.2d 594, 595 (Vt. 1951).

While those authorities are not binding on this court, we agree with the attorney general and the Supreme Court of Vermont that, as applied to the offense of criminal trespass to a dwelling, the required breach of the peace need only be such as to put the victim in fear of bodily harm or otherwise disturb or disrupt the peace and sanctity of the home.

Section 943.14, Stats., is not a disorderly conduct statute or one relating to disturbances of the public peace and good order. It is thus distinguishable from State v. Maker, 48 Wis. 2d 612, 180 N.W.2d 707 (1970), cert. denied, 401 U.S. 1013 (1971), and the other cases cited by Von Loh — all of which involve sec. 947.01, Stats., a statute appearing in the chapter entitled "Crimes Against Public Peace, Order and Other Interests," and penalizing "violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct in which the conduct tends to cause or provoke a disturbance."

The statute at issue here, sec. 943.14, Stats., punishes trespass. It is a property crime. It punishes one for nonconsensual entry and objectionable conduct in the private residence of another. In that sense, it bears no relation to traditional "public" breach of the peace offenses. It is much more akin to the so-called "self-help" repossession laws which give secured creditors the right to take possession of collateral without judicial process if it can be accomplished "without breach of the peace." The majority of cases construing such laws hold that no violence or threat of violence need occur before a breach of the peace may be found.²

In this case, each of the women whose homes Von Loh entered were upset and frightened by his conduct. One testified that she asked him to leave several times and that she was "[v]ery, very uncomfortable." She stated: "I was standing there in my pajamas, and my daughter was sleeping, and I was home alone and actually a little bit frightened." Another stated that when Von Loh exposed himself to her she was ”[v]ery uncomfortable, very embarrassed, scared, because ... if he can expose himself to me like that, I didn't know what else he would do." She stated that she "just wanted him to be gone" and that she "was worried about trying to get him out of the apartment without anything else happening." The third testified that she "was really, really afraid, really scared." She was afraid that if she asked him to leave "he might have done something to [her]."

Where, as here, a defendant challenges the sufficiency of the evidence to support the jury's verdict, the test is whether the evidence adduced, believed, and rationally considered by the jury was sufficient to prove his or her guilt beyond a reasonable doubt.

Conversely stated, the test is whether, when considered most favorably to the state and the conviction, the evidence is so insufficient in probative value and force that it can be said as a matter of law that no trier of facts acting reasonably could be convinced to that degree of certitude which the law defines as "beyond a reasonable doubt." Furthermore, it is not necessary that this court be convinced of the defendant's guilt but only that the court is satisfied the jury acting reasonably could be so convinced. State v. Koller, 87 Wis. 2d 253, 266, 274 N.W.2d 651, 658 (1979) (citations omitted).

We will interfere with the jury's finding only if, under all the evidence, "the jury could not have found guilt beyond a reasonable doubt." State v. Alles, 106 Wis. 2d 368, 377, 316 N.W.2d 378, 382 (1982) (emphasis in original). Thus, "if any possibility exists that the jury could have drawn the appropriate inferences from the evidence ... to find the requisite guilt, we will not overturn a verdict even if we believe that a jury should not have found guilt based on the evidence before it." Id. (emphasis in original).

In this case, Von Loh obtained entry to the women's homes on false pretenses, exposed himself to them and placed them in varying degrees of fear for their own safety and that of their families. We have no difficulty concluding that the evidence of his actions in each case was adequate to permit the jury to find that he had violated sec. 943.14, Stats.

III. NEW TRIAL IN THE INTEREST OF JUSTICE

Von Loh's last argument is only two sentences long. He requests that we order a new trial be granted in the interest of justice because of "the apparent unfairness of his trial." Before we may order a new trial in the interests of justice under the discretionary authority granted to us by sec. 752.35, Stats., we must conclude either that the real controversy has not been fully tried or that there is a substantial degree of probability that a new trial will likely produce a different result. State v. Kaster, 148 Wis. 2d 789, 805, 436 N.W.2d 891, 898 (Ct. App. 1989). Von Loh has not demonstrated through references to the record or to case law that the real controversy was not fully tried or that a new trial would be likely to produce a different result. We therefore reject his request. Lechner v. Scharrer, 145 Wis. 2d 667, 675-76, 429 N.W.2d 491, 495 (Ct. App. 1988).

By the Court. — Judgment and order affirmed.

1 Section 943.14, Stats., provides that: "Whoever intentionally enters the dwelling of another without the consent of some person lawfully upon the premises, under circumstances tending to create or provoke a breach of the peace, is guilty of a Class A misdemeanor." (Emphasis added.)

2 The authorities are reviewed in extenso in Bloomquist v. First Nat. Bank of Elk River, 378 N.W.2d 81, 85-86 (Minn. Ct. App. 1985). In that case, the Minnesota court, noting that that state's highest court had adopted the view that a nonviolent, unconsented-to entry to retake possession of a tenant's premises constituted a breach of the peace, stated, after reviewing the cases, that n[t]he requirement of violence apparently represents a minority view." Id. at 86.