State v. David T. Hanke ( 2021 )


Menu:
  •        COURT OF APPEALS
    DECISION                                                NOTICE
    DATED AND FILED                            This opinion is subject to further editing. If
    published, the official version will appear in
    the bound volume of the Official Reports.
    January 13, 2021
    A party may file with the Supreme Court a
    Sheila T. Reiff                    petition to review an adverse decision by the
    Clerk of Court of Appeals               Court of Appeals. See WIS. STAT. § 808.10
    and RULE 809.62.
    Appeal No.        2018AP2301-CR                                                  Cir. Ct. No. 2017CF13
    STATE OF WISCONSIN                                             IN COURT OF APPEALS
    DISTRICT II
    STATE OF WISCONSIN,
    PLAINTIFF-RESPONDENT,
    V.
    DAVID T. HANKE,
    DEFENDANT-APPELLANT.
    APPEAL from a judgment of the circuit court for Washington
    County: JAMES G. POUROS, Judge. Affirmed.
    Before Neubauer, C.J., Reilly, P.J., and Davis, J.
    Per curiam opinions may not be cited in any court of this state as precedent
    or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
    No. 2018AP2301-CR
    ¶1       PER CURIAM. David T. Hanke appeals from a judgment
    convicting him of sexual assault of a student by a staff member. Hanke argues
    that (1) the evidence was insufficient to support the jury’s guilty verdict, (2) the
    circuit court erroneously admitted other-acts evidence, and (3) the circuit court
    erred in denying Hanke’s motion for a change of venue. For the reasons that
    follow, we affirm.
    BACKGROUND
    ¶2       In 2017, Hanke, a Slinger High School band teacher, was charged
    with sexual assault of a student by a school staff member in violation of WIS.
    STAT. § 948.095(2) (2017-18).1                The criminal complaint alleged that in
    September 2000, Hanke invited a student, R.A.S., to his home. He offered her a
    beer and the two engaged in small talk. Hanke invited R.A.S. to his basement and
    offered her a back rub. After he began massaging R.A.S., Hanke suggested that
    she “remove her shirt and bra so he could provide a proper massage.” R.A.S.
    reluctantly did so and laid facedown on the floor at Hanke’s request. Hanke then
    straddled R.A.S. and massaged her back before reaching under her and “grabbing,
    groping and massaging her bare breasts with his hands.”
    ¶3       The State filed motions to admit other-acts evidence, including
    testimony from eight former Slinger students who alleged witnessing or being
    victims of inappropriate conduct by Hanke; testimony from Hanke’s relative about
    photos he had seen on Hanke’s computer; conduct reports from Slinger High
    1
    All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
    noted.
    2
    No. 2018AP2301-CR
    School raising concerns about activities in the band room; and testimony from the
    former assistant band director.
    ¶4     The circuit court denied the State’s other-acts motion as to
    everything except for evidence concerning three former female students, R.K.H.,
    D.A.W., and J.M.M., each of whom had participated in the Slinger band while
    Hanke was the instructor. All three reported that Hanke invited them to his house
    shortly after they graduated from Slinger; that once alone with Hanke at his house,
    he offered them backrubs; and that Hanke either touched or attempted to touch
    their genitals during the massage. Given the similarities between each woman’s
    report and the facts alleged by R.A.S., the court ruled their testimony admissible
    and stated it would provide the jury a cautionary instruction.
    ¶5     Hanke also filed a motion for a change of venue, arguing that “an
    impartial trial [could not] be had in Washington County” on account of “[t]he
    media attention” received by the case. Hanke attached to his motion numerous
    news articles that he claimed had tainted the public perception of the case. The
    State objected to the motion. The circuit court denied the motion, determining that
    the publicity was not inflammatory and was more than one year old, and that the
    District Attorney’s Office had not participated in any adverse publicity. The court
    stated that it would address the pretrial publicity during jury selection.
    ¶6     During voir dire, the circuit court asked the potential jurors whether
    they knew Hanke and struck any potential juror who answered in the affirmative
    and believed they could not be impartial. The court then asked the potential jurors
    whether they “may know something about this case from any source; including
    newspaper, radio, social media, or television accounts.” The court discussed with
    each potential juror who answered in the affirmative whether they could still be
    3
    No. 2018AP2301-CR
    impartial and struck any juror who believed that they could not. In the end, only
    one of the fourteen jurors empaneled said that they had been exposed to pretrial
    publicity, and this juror said that the exposure would not affect their ability to be
    impartial.
    ¶7     At trial, R.A.S. testified that her date of birth is October 19, 1982,
    that she attended Slinger High School from 1997 to 2001, that she participated in
    band throughout her high school years, and that Hanke was her band director.
    R.A.S. also testified that her relationship with her parents was “a little rocky” and
    that Hanke acted “like a friend” or “father” to her. R.A.S. testified that she would
    have private lessons with Hanke and that Hanke would comment that her breasts
    “were nice” and that she was “sexy.”
    ¶8     With regard to the charged assault, R.A.S. testified that Hanke
    invited her to his house sometime in “[t]he first two weeks of September” 2000.
    R.A.S. recalled driving to Hanke’s home and that she was wearing “[j]eans and a
    T-shirt” that day and “did not have a jacket.” Hanke gave R.A.S. a beer and told
    her that he “wanted to show [her] the basement.”
    ¶9     In the basement, Hanke told R.A.S. that he “wanted to give [her] a
    back rub” and she “reluctant[ly]” agreed. Hanke started massaging her but said
    that in order to “give a proper massage, [R.A.S.] would have to take [her] shirt and
    [her] bra off.” R.A.S., again “reluctantly,” “took off [her] shirt and bra” and
    “threw them to the side,” feeling as though she “could [not] say no” to Hanke.
    R.A.S. then “laid on the floor,” “[f]ace down” with her “head to the side” and her
    “hands under [her] head,” “looking at the wall.” Hanke “straddled over the top of
    [R.A.S.]” with “[h]is left knee ... on the ground” to R.A.S.’s left and “his right foot
    on the ground” to R.A.S.’s right. Hanke began rubbing R.A.S.’s back but “quickly
    4
    No. 2018AP2301-CR
    moved to ... put his hands in between the carpet” and R.A.S.’s body “and was
    groping and massaging [her breasts].” Hanke “was moving [his hands] all around
    and squeezing and rubbing all of [R.A.S.’s] breast” on “[b]oth” sides for “[a]bout
    five minutes.” R.A.S. “felt scared” and “froze,” not “know[ing] what to do” and
    “worried” that Hanke may do something worse. R.A.S. could not remember how
    the assault ended but remembered “standing in the basement turned away from
    him, embarrassed, putting on [her] clothes.” As she walked to her car, Hanke
    “said something about a circle of trust” and made a circular motion “with his
    hand.” R.A.S. “dr[ove] to [her] boyfriend’s house,” “in shock,” and decided that
    she should “not say anything” because she “just wanted to forget it ever
    happened.” The incident was not reported to law enforcement until May 2016,
    after R.A.S. sent an e-mail to the Slinger High School principal.
    ¶10    Detective Hope Demler testified that she was the lead investigator
    on the case. She testified that R.A.S. initially indicated that the assault occurred
    when she was sixteen, during her junior year of high school. Demler asked R.A.S.
    to narrow down the time frame by looking at old photos and yearbooks, and
    R.A.S. did so, informing Demler that she had narrowed the time frame to the first
    two weeks in September 2000.
    ¶11    Like R.A.S., R.K.H., J.M.M., and D.A.W. all testified that they had
    a close, friendly relationship with Hanke, describing him as a “father figure” and
    confidante. All testified that they witnessed and/or received backrubs from Hanke
    at school.     Each testified about incidents where Hanke touched them
    inappropriately at his house under the pretense of a backrub.
    ¶12    R.K.H. testified that after she graduated, she would see Hanke in
    town and he would insist that they “get together before [she] left for college.” She
    5
    No. 2018AP2301-CR
    finally agreed and just before her eighteenth birthday, Hanke took her out to a
    restaurant before suggesting that they rent a movie and return to his house. When
    they returned to his house, Hanke “tried to get [R.K.H.] to go down in his
    basement to watch the movie,” but she did not agree and instead they watched the
    movie in Hanke’s living room.      Hanke also offered her alcohol, which she
    declined.   While watching the movie, Hanke began “touching [R.K.H.’s]
    shoulders” and repeatedly asked her to sit on the floor so he could “give [her] a
    proper back massage.” R.K.H. eventually sat on the floor and Hanke massaged
    her back, eventually “push[ing]” R.K.H. “to the floor,” where R.K.H. laid
    facedown while Hanke “straddled [her].” Hanke began “massaging [R.K.H.] all
    over,” going “[u]nder [her] shirt” and “[u]nder [her] shorts,” eventually reaching
    “under [her] bra” “touch[ing] the front of [her] breasts.” Hanke also moved
    R.K.H.’s underwear and “touched [her] vagina” with “[h]is fingers.”
    ¶13    J.M.M. testified that shortly after she graduated, Hanke invited her
    over to his house, claiming that other band members would be there. About ten
    minutes after arriving at his house, Hanke sat next to J.M.M. on the living-room
    couch and began to give her a backrub. Hanke then began reaching underneath
    J.M.M.’s shirt and asked if he could unhook her bra. J.M.M. refused and left
    Hanke’s house.
    ¶14    D.A.W. testified that on a visit home from college, Hanke invited
    her over to his house. Hanke offered her a mixed drink and they watched a video
    of one of their band performances. Hanke began commenting about the female
    students’ skirts, bottoms, and breasts, and said that D.A.W.’s marching gave her
    breasts “a good bounce.” Hanke began massaging D.A.W.’s neck and asked her
    “to lay on the floor so he could massage [her] back.” Hanke then began reaching
    under D.A.W.’s shirt and D.A.W.’s bra “became unhooked.” Hanke “reached
    6
    No. 2018AP2301-CR
    underneath [D.A.W.] and tried to massage [her] left breast.” Hanke also asked her
    to unbutton her pants so he could massage her lower back. Hanke then straddled
    D.A.W., continuing to “try to reach underneath [her] to get [her] left breast” and
    “to try and take [her] pants lower.” Hanke twice asked D.A.W. to go to his
    bedroom “where it would be more comfortable.” When Hanke stood up, D.A.W.
    “told him [she] needed to leave, grabbed [her] coat and left.” She heard him say
    “something about band family.”
    ¶15    In instructing the jury, the circuit court provided a cautionary
    instruction regarding other-acts evidence. The court explained that “[e]vidence
    has been presented regarding other conduct of the defendant for which the
    defendant is not on trial.” As to the evidence of Hanke’s conduct with R.K.H.,
    J.M.M., and D.A.W., the court instructed the jury that “[i]f you find that this
    conduct did occur, you should consider it only on the issues of motive,
    opportunity, intent, preparation or plan, absence of mistake or accident, and
    context or background,” and that the jury “may not consider this evidence to
    conclude that the defendant has a certain character” and “acted in conformity with
    that” character “with respect to the offense charged.” The court then defined for
    the jury motive, opportunity, intent, preparation or plan, absence of mistake or
    accident, and context or background.
    ¶16    The jury found Hanke guilty and he was sentenced to five years of
    initial confinement followed by five years of extended supervision. He appeals.
    7
    No. 2018AP2301-CR
    DISCUSSION
    Sufficiency of the Evidence
    ¶17     In order to convict Hanke, the jury had to find the following
    elements beyond a reasonable doubt: (1) Hanke had sexual contact with R.A.S.,
    who was not his spouse; (2) R.A.S. had attained the age of sixteen years and had
    not attained the age of eighteen years; (3) R.A.S. was enrolled as a student in a
    school or school district; and (4) Hanke was a member of the school staff of the
    school or district in which R.A.S. was enrolled. See WIS. STAT. § 948.095(2); WIS
    JI—CRIMINAL 2139. Hanke does not dispute the first,2 third, or fourth elements,
    but argues that the trial evidence was insufficient to prove beyond a reasonable
    doubt that R.A.S. had not turned eighteen at the time of the assault.
    ¶18     We review the sufficiency of the evidence de novo, but in the light
    most favorable to sustaining the conviction. State v. Hanson, 
    2012 WI 4
    , ¶15,
    
    338 Wis. 2d 243
    , 
    808 N.W.2d 390
    . The standard of review is the same whether
    the conviction relies upon direct or circumstantial evidence. State v. Poellinger,
    
    153 Wis. 2d 493
    , 503, 
    451 N.W.2d 752
     (1990). We will sustain a conviction
    unless the evidence is so insufficient “that it can be said as a matter of law that no
    trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.”
    
    Id. at 501
    . “If any possibility exists that the trier of fact could have drawn the
    appropriate inferences from the evidence adduced at trial to find the requisite guilt,
    2
    In addressing the State’s brief, Hanke makes a half-hearted and undeveloped argument
    apparently asserting that the State failed to prove that R.A.S. was not his spouse. We will not
    further address this undeveloped argument raised for the first time in Hanke’s reply brief.
    8
    No. 2018AP2301-CR
    an appellate court may not overturn a verdict even if it believes that the trier of
    fact should not have found guilt based on the evidence before it.” 
    Id. at 507
    .
    ¶19    We conclude that a reasonable juror could have found beyond a
    reasonable doubt that R.A.S. had not yet attained the age of eighteen when the
    assault occurred. R.A.S. testified that her date of birth is October 19, 1982 and
    that the assault occurred in the first two weeks of September 2000, when she
    would have been seventeen years old. That testimony alone is sufficient to sustain
    the jury’s guilty verdict.
    ¶20    Further, R.A.S. testified in detail about how she determined the time
    frame of the assault. She explained that she knew the assault occurred during her
    senior year because she went to her boyfriend’s home afterward and she dated her
    boyfriend during her senior year. R.A.S. also “distinct[ly]” remembered seeing
    “[f]ull green leaves on the trees outside.”     She provided a photograph from
    October 23, 2000, which showed that the leaves were changing color at that point
    in time. R.A.S. also remembered that it was warm outside, that she did not “have
    a jacket on” and that it was still light outside when she left Hanke’s house. She
    discussed specific events, explaining that she recalled practicing for the
    Homecoming parade the day of the assault and that Homecoming took place on
    September 29 and 30 that year. R.A.S. also remembered practicing for the school
    musical starting in mid-September and explained that those practices lasted until
    after dark, so she could not have gone to Hanke’s if she had been practicing for the
    play. The State introduced pages from R.A.S.’s yearbook and a program from the
    musical that supported these dates. Based on all of this, R.A.S. was “very certain”
    that the assault took place in the first two weeks of September 2000, when she was
    seventeen.
    9
    No. 2018AP2301-CR
    ¶21    Hanke argues that the evidence was insufficient because R.A.S. was
    initially unsure of the time frame and did not settle on September 2000 until
    learning that the offense charged required her to be under the age of eighteen.
    Hanke points out the offense date was extensively litigated at trial, with “both
    sides referring to school events and holidays that occurred during R.A.S.’s senior
    year in order to show that the alleged assault took place either before or after
    R.A.S.’s eighteenth birthday.”
    ¶22    Hanke’s argument demonstrates precisely why this is a classic jury
    question. R.A.S.’s credibility and how she came to recall the offense date was
    challenged by trial counsel on cross-examination and in closing argument. It is the
    jury’s function to determine the credibility of the witnesses, reconcile inconsistent
    testimony, and to weigh the evidence. Poellinger, 
    153 Wis. 2d at 504, 506
    . If
    more than one inference can be drawn from the evidence, this court will follow the
    inference that supports the jury’s finding “unless the evidence on which that
    inference is based is incredible as a matter of law.” 
    Id. at 506-07
    . On the
    evidence at trial, a reasonable juror could have found beyond a reasonable doubt
    that the assault occurred in September 2020, prior to R.A.S.’s eighteenth birthday.
    Other-Acts Evidence
    ¶23    Hanke argues that the circuit court erroneously exercised its
    discretion in admitting the other-acts testimony of R.K.H., J.M.M., and D.A.W.
    Though character evidence is generally not admissible to show that the person
    acted in conformity therewith, evidence of a person’s other crimes, wrongs or acts
    may be admitted for certain purposes, such as to prove motive, opportunity, intent,
    preparation, plan, knowledge, identity, or absence of mistake or accident. See
    WIS. STAT. § 904.04(2)(a). In determining whether other acts are admissible,
    10
    No. 2018AP2301-CR
    courts employ a three-part test: (1) the evidence must be offered for an acceptable
    purpose, (2) the evidence must be relevant, and (3) its probative value must not be
    substantially outweighed by the danger of unfair prejudice. See State v. Sullivan,
    
    216 Wis. 2d 768
    , 772-73, 
    576 N.W.2d 30
     (1998). In child sexual assault cases,
    greater latitude is afforded the admissibility of other-acts evidence.                   State v.
    Davidson, 
    2000 WI 91
    , ¶51, 
    236 Wis. 2d 537
    , 
    613 N.W.2d 606
    .
    ¶24     The decision whether to admit or exclude other-acts evidence is left
    to the circuit court’s sound discretion. State v. Hunt, 
    2003 WI 81
    , ¶34, 
    263 Wis. 2d 1
    , 
    666 N.W.2d 771
    . We will uphold its evidentiary ruling if the court
    “examined the relevant facts, applied a proper standard of law, used a
    demonstrated rational process, and reached a conclusion that a reasonable judge
    could reach.” 
    Id.
    ¶25     The circuit court’s decision to admit the other-acts testimony of
    R.K.H., J.M.M., and D.A.W. represents a proper exercise of discretion. The State
    sought to admit a variety of other acts, including testimony from eight former
    students. As to each proffered item, the court examined the particular facts,
    applied the Sullivan test, and came to a reasonable conclusion. With regard to
    five of the former students, the court acknowledged that their allegations shared
    facts in common with R.A.S.’s report but ruled them inadmissible because “after
    applying the Three-Step Analysis, there are sufficient differences in the facts as
    alleged” such that “unfair prejudice outweighs the probative value ….”3 The court
    then determined “that to allow the additional [five] witnesses would cause
    3
    The factual similarities mentioned by the circuit court included Hanke inviting the
    female students to his house, offering them alcohol, suggesting that they hang out naked in his hot
    tub, and engaging in awkward sexual conversations or borderline inappropriate physical contact.
    11
    No. 2018AP2301-CR
    confusion of the issues, be misleading to the jury, and would be needless
    presentation of cumulative evidence.”
    ¶26    Applying the Sullivan test to the other-acts evidence concerning
    R.K.H., J.M.M., and D.A.W., and in light of the greater latitude rule, the circuit
    court reasonably ruled their testimony admissible. The court properly found that
    the evidence was offered for and relevant to a number of acceptable purposes. See
    State v. Marinez, 
    2011 WI 12
    , ¶25, 
    331 Wis. 2d 568
    , 
    797 N.W.2d 399
     (“As long
    as the State and circuit court have articulated at least one permissible purpose for
    which the other-acts evidence was offered and accepted, the first prong of the
    Sullivan analysis is met.”).    Here, where Hanke was charged with a crime
    involving sexual contact, the evidence was, at a minimum, relevant to intent,
    motive, and absence of accident or mistake. See State v. Hammer, 
    2000 WI 92
    ,
    ¶¶27-28, 
    236 Wis. 2d 686
    , 
    613 N.W.2d 629
     (because sexual contact requires that
    the act be done for the purpose of sexual gratification, other-acts evidence is
    relevant to prove motive, intent, and lack of absence or mistake).         Hanke’s
    reported assaults on R.K.H., J.M.M., and D.A.W. were all similar to the crime
    charged in ways that were complex and distinct, and were therefore highly
    probative.   Sullivan, 
    216 Wis. 2d at 786-87
    .       Finally, the court reasonably
    determined “that the probative value in those three instances outweighs the danger
    of unfair prejudice to the defendant.”
    ¶27    Hanke argues that the other-acts testimony was irrelevant because
    R.K.H., J.M.M., and D.A.W. all testified that they had graduated or turned
    eighteen before the conduct occurred. We disagree. Hanke’s argument fails to
    recognize that whether the victim was a student and whether the victim was under
    eighteen at the time of the assault are not the only elements of the crime charged.
    The other-acts testimony was relevant to and highly probative of the first element,
    12
    No. 2018AP2301-CR
    whether Hanke had sexual contact with R.A.S. Additionally, all four victims were
    close in age when Hanke assaulted them and, like R.A.S., R.K.H. had not attained
    the age of eighteen.
    ¶28    Hanke also argues that the evidence was unduly prejudicial given the
    factual differences and because Hanke’s conduct with R.K.H., J.M.M. and D.A.W.
    did not satisfy the elements of the crime charged. We are not persuaded. The
    circuit court applied the proper standard in determining that the high probative
    value of the evidence was not substantially outweighed by the risk of unfair
    prejudice. See State v. Linton, 
    2010 WI App 129
    , ¶26, 
    329 Wis. 2d 687
    , 
    791 N.W.2d 222
     (“The balancing test of the probative value and danger of unfair
    prejudice favors admissibility.”). In addition, the court provided a cautionary
    instruction so as to “eliminate or minimize the potential for unfair prejudice.”
    Hammer, 
    236 Wis. 2d 686
    , ¶36.
    Motion to Change Venue
    ¶29    Hanke argues that the circuit court erred in denying his motion for a
    change in venue because prejudicial pretrial publicity precluded the possibility of
    an impartial jury. We review the court’s denial of a change-of-venue motion
    under the erroneous exercise of discretion standard. State v. Fonte, 
    2005 WI 77
    ,
    ¶12, 
    281 Wis. 2d 654
    , 
    698 N.W.2d 594
    . However, we independently evaluate the
    circumstances “to determine whether there was a reasonable likelihood of
    community prejudice prior to, and at the time of, trial and whether the procedures
    for drawing the jury evidenced any prejudice on the part of the prospective or
    empaneled jurors.” 
    Id.
     (citation omitted). The following factors are considered in
    evaluating pretrial publicity: “(1) the inflammatory nature of the publicity; (2) the
    timing and specificity of the publicity; (3) the degree of care exercised, and the
    13
    No. 2018AP2301-CR
    amount of difficulty encountered, in selecting the jury; (4) the extent to which the
    jurors were familiar with the publicity; (5) the defendant’s utilization of
    peremptory and for cause challenges of jurors; (6) the State’s participation in the
    adverse publicity; (7) the severity of the offense charged; and (8) the nature of the
    verdict returned.” Id., ¶31 (citation omitted).
    ¶30    Hanke’s motion to change venue asserted that an impartial jury
    could not be had in Washington County because: the publicity in his case was
    pervasive, appeared in a variety of media, and was inflammatory in nature; the
    school superintendent, members of the school board, and law enforcement
    participated in the publicity; the publicity contained some facts not admitted at
    trial; and the allegations against Hanke were serious. The State filed an opposing
    response.
    ¶31    At a hearing on the motion, the circuit court stated it had reviewed
    the lengthy materials and complimented trial counsel “on the thoroughness of the
    motion, about 75 pages long.” After reciting and applying the relevant legal
    standards, the court denied the motion, finding in particular that the publicity was
    not inflammatory, that much of it was “more than a year old now[,]” and that the
    State did not participate “in adverse publicity in any way.” The court determined
    that any impartiality concerns could be addressed through voir dire and invited the
    attorneys to submit questions they wanted the judge to pose to potential jurors.
    ¶32    We conclude that the circuit court properly denied Hanke’s motion
    to change venue. It applied the proper legal standard to correct facts and made a
    reasonable decision. Of particular import, the pretrial publicity reported objective
    factual information, such as the allegations in the complaint, that allegations had
    been brought by other individuals but could not be charged, and updates on
    14
    No. 2018AP2301-CR
    pretrial proceedings. See Fonte, 
    281 Wis. 2d 654
    , ¶32 (In evaluating whether
    pretrial publicity is inflammatory, “we note that objective, factual, non-editorial
    reporting is not prejudicial.”). The reporting cannot be characterized as “rabble
    rousing” or as “attempt[ing] to influence public opinion against” Hanke. See id. at
    ¶¶32-33 (citation omitted). Further, nearly all of the articles submitted by Hanke
    were published more than a year before his trial, allowing “the memories and
    passions of the readers … to fade.” State v. Messelt, 
    178 Wis. 2d 320
    , 330, 
    504 N.W.2d 362
     (Ct. App. 1993).
    ¶33      Moreover, and critically important, the circuit court and the
    attorneys conducted a careful voir dire and “ensured an impartial jury.” Fonte,
    
    281 Wis. 2d 654
    , ¶37. The court and parties discussed how to question potential
    jurors at the change-of-venue hearing and again, as part of a jury status conference
    well in advance of trial. At voir dire, the court asked the potential jurors whether
    they “may know something about this case from any source; including newspaper,
    radio, social media, or television accounts,” and the court discussed with those that
    answered in the affirmative whether they believed they could still be impartial,
    striking any potential juror who indicated they could not. The prosecutor revisited
    this issue with potential jurors, ensuring both that they understood that news
    reports are not evidence and that the publicity would not impact their ability to be
    impartial. The parties used three peremptory strikes to strike all but one juror who
    had been exposed to pretrial publicity.4 In all, the circuit court and the parties
    “easily selected” the jury in this case, see State v. Ritchie, 
    2000 WI App 136
    , ¶27,
    
    237 Wis. 2d 664
    , 
    614 N.W.2d 837
    , and the only empaneled juror with an
    4
    Hanke used two peremptories and the prosecutor used one.
    15
    No. 2018AP2301-CR
    awareness of the pretrial publicity said that the exposure would not affect their
    ability to be impartial.
    ¶34    Hanke claims the news reports were inflammatory because they
    discussed the fact that other individuals had come forward with allegations, but
    those allegations could not be charged.       This information may have been
    unfavorable to Hanke, but that does not transform objective reporting of those
    facts into “rabble rousing.” Hanke also claims, without citation to any authority,
    that the community’s memory of the initial media coverage would not have faded
    over the course of a year because Hanke was locally well known. This argument
    is unpersuasive. Moreover, only two potential jurors indicated that they knew
    Hanke and the circuit court struck both of them.
    By the Court.—Judgment affirmed.
    This opinion will not be published.        See WIS. STAT. RULE
    809.23(1)(b)5.
    16
    

Document Info

Docket Number: 2018AP002301-CR

Filed Date: 1/13/2021

Precedential Status: Non-Precedential

Modified Date: 9/9/2024