Petition for Writ of Certiorari — Petrone v. Wisconsin

a | FILED |

91-386 °

SEP 6 199)

No. 91-__ | OFFIGE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

+

JERRY W. “ETRONE,

Petitioner,

STATE OF WISCONSIN,

Respondent.

Petition For A Writ Of Certiorari

To The Supreme Court Of

The State Of Wisconsin

*

PETITION FOR A WRIT OF CERTIORARI

9

SHELLOW, SHELLOW & GLYNN, S.C.

James A. WALRATH

(Counsel of Record)

222 East Mason Street

Milwaukee, Wisconsin 53202

(414) 271-8535

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

nl RK i Sy

QUESTIONS PRESENTED

1. Were devuties authorized to seize unmarked,

unidentified film rolls while executing a search warrant

for film “involving nude and partially nude female juve-

niles,” when, at the time of seizure, it could not be

determined whether the film rolls fell within the warrant?

2. Did the seizure of over 1,800 unrelated photo-

graphs, numerous videotapes, audiotapes, address books,

photo albums, as well as the petitioner’s recreational

boat, result in a flagrantly excessive, unconstitutional

seizure?

ii

TABLE OF CONTENTS

Page

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PO PER TT PTC RT Te Per re Terre F 2

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

SiAcaeeeees OP THE CARE. 2. 656s csteccveessess 2

REASONS FOR GRANTING THE WRIT ........... 5

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et PETTITT App. 1

A. Opinion of the Wisconsin Supreme Court,

Ce ke er ree App. 1

B. Order Denying Motion for Reconsideration

ee 8 errr ee! App. 33

iii

TABLE OF AUTHORITIES

CASES

Andresen v. Maryland, 427 U.S. 463 (1976)

Fort Wayne Books v. Indiana, 489 U.S. 46 (1989) ..9, 10

Lee Art Theatre v. Virginia, 392 U.S. 636 (1968)...... Yy

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) ..9, 11

Marron v. United States, 275 U.S. 192 (1927) ...5, 6, 10

New York v. P.J. Video, Inc., 475 U.S. 868 (1986) ..... 9

Roaden v. Kentucky, 413 U.S. 496 (1973) ............. 9

Stanley v. Georgia, 394 U.S. 557 (1969)............... 6

State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676

ee ee eeeceeeres 1, 5, &

United States v. Beusch, 596 F.2d 871 (9th Cir.

Neen enn pew perateees 7

United States v. Carsello, 425 F.Supp. 769 (N.D. IIl.

ee ckwesesetevenes 7, 8

United States v. Lambert, 771 F.2d 83 (6th Cir

Ne eg one cesceusee 7, 12

United States v. Wuagneux, 683 F.2d 1343 (11th

Nee ee nkeenveeseeeteees 7

CONSTITUTIONAL PROVISIONS

EE g

Eg 2, 5, 10, 11

iv

TABLE OF AUTHORITIES - Continued

Page

RULE

Rule 10(c), Rules of the United States Supreme

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STATUTES |

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S SE Fe I sx vv esd venwesvcevedavessoesas 4

PL TESOL TORN AP

No. 91-___

>

In The

Supreme Court of the United States

October Term, 1991

°

JERRY W. PETRONE,

Petitioner,

STATE OF WISCONSIN,

Respondent.

¢

Petition For A Writ Of Certiorari

To The Supreme Court Of

The State Of Wisconsin

r

PETITION FOR A WRIT OF CERTIORARI

®

Petitioner, Jerry W. Petrone, respectfully prays that a

Writ of Certiorari issue to review the judgment and opin-

ion of the Supreme Court of Wisconsin entered on May 6,

1991.

OPINION BELOW

The opinion of the Wisconsin Supreme Court is

reported as State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d

676 (1991) and is reproduced in the Appendix at App. 1 to

32.

JURISDICTION

The judgment of the Wisconsin Supreme Court was

entered on May 6, 1991. A timely motion for reconsidera-

tion was denied on June 10, 1991 (App. 33) in an

unpublished order. Jurisdiction of this court is invoked

under 28 U.S.C. § 1254(1).

¢

CONSTITUTIONAL PROVISIONS INVOLVED

Amend. IV, U.S. Const.:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

ee ee

¢

STATEMENT OF THE CASE

On August 6, 1987, a Walworth County prosecutor

requested search warrants for petitioner’s home and tav-

ern. A 15-year old female testified at the ex parte warrant

application proceedings that on July 29, 1987, Jerry

Petrone used both a Polaroid and a 35mm camera to

photograph her and two other females, who then were

between 15 and 17 years of age, as they posed in cos-

tumes, swimsuits and in the nude at petitioner’s home on |

Lake Delavan. The witness stated that two adult women

also posed for photographs. She stated that the subjects

were told to sit on the ground and to draw their knees up

acne

to show parts of their bodies. The witness stated that she

had been told that the photographs would be put into a

brochure at petitioner’s tavern. The witness last saw the

Polaroid photographs on July 29 before she left his home.

She did not know whether the 35mm photographs had

been developed or where they would be developed.

The court issued two search warrants. The warrant

for petitioner’s house directed law enforcement officers

to locate and seize the following items:

Pink, strapless formal gown, 2-piece blue

bathing suit, yellow sheet or slipcover, all cam-

era, film, or photographic equipment used in the

taking, processing and development of photo-

graphic pictures, involving nude and partially

nude female juveniles.

The warrant for the tavern ordered officers to seize

“photo album(s) containing nude photographs of female

juvenile(s) together with developed photographs and

35mm negatives of same.”

During their execution of the house warrant, sheriff's

deputies seized over 1,800 still photographs, seven video-

tapes, three audiotapes, address books, and photo

albums. The videotapes were viewed later; the audi-

otapes were confiscated and later transcribed. A friend of

the petitioner, who arrived at his home in the midst of the

search, had her own personal photographs confiscated

from the front seat of her car. Officers also seized peti-

tioner’s boat which was docked next to the pier at his

residence.

Two deputies also confiscated three unmarked, uni-

dentified film canisters containing unidentifiable 35mm

rolls, along with three, unmarked and unidentified C-110

film cartridges. The rolls were found in Petrone’s dining

room — the same room where deputies found Polaroid

photos involving the juveniles. The following day,

another deputy developed the film cartridges and rolls,

discovering that only 61 photos on the 35mm film rolls

related to the July 29 photography session.

Jerry Petrone was then charged with three felony

violations of Wisconsin’s sexual exploitation of children

statute, Wis. Stat. §940.203(2). The complaint alleged that

petitioner and his adult female companion photographed

the three juveniles while they were engaged in lewd

exhibition of the genital and pubic areas.

Petitioner contested the seizure of the 35mm film

rolls in written motions, asserting that deputies exceeded

their authority under the warrant and that the massive

number and variety of items seized flagrantly exceeded

the scope of the warrant. Petitioner’s pretrial motions to

suppress on these grounds were denied in a written

decision by the Circuit Court of Walworth County. The

matter was submitted to a jury and petitioner was found

guilty on all three counts. Petitioner was sentenced to a

four-year prison term with a concurrent six-year term of

probation.

Petitioner appealed his conviction to the Wisconsin

Court of Appeals. On May 30, 1990 that court certified the

case to the Wisconsin Supreme Court, noting that the

seizure of the unmarked, unidentified 35mm film rolls

presented an issue of “statewide import.” On June 12,

1990 the Wisconsin Supreme Court granted the certifica-

tion request. c

In its May 6, 1991 decision the Wisconsin Supreme

Court ruled that the seizure of the then-unidentifiable

film was permissible under the Fourth Amendment and

that deputies were not limited to seizing only identifiable

films. 161 Wis. 2d at 543, 468 N.W.2d at 680. The Court

also rejected Petrone’s claim that the processing of the

film constituted a separate, unauthorized search. 161 Wis.

2d at 545, 468 N.W.2d at 681. Lastly, although the Court

found that numerous “items were seized that were not

within the scope of the warrant,” it concluded that the

seizures did not amount to a flagrant disregard of the

warrant’s terms. 161 Wis. 2d at 549, 468 N.W.2d at 682-83.

¢

REASONS FOR GRANTING THE WRIT

I.

THE WARRANT AUTHORIZED DEPUTIES TO SEIZE

ITEMS THAT WERE APPARENTLY RELATED TO THE

WARRANT’S DESCRIPTIONS, BUT NOT UNIDENTI-

FIABLE FILM.

In Marron v. United States, 275 U.S. 192 (1927) this

Court reiterated the importance of the Fourth Amend-

ment’s “particularity” requirement, declaring that a

search warrant’s terms must be sufficiently specific. “As

to what is to be taken, nothing is left to the discretion of

the ofticer executing the warrant.” 275 U.S. at 196. The

warrant here met that particularity requirement. Only

films or photographs of a certain character were to be

seized. Nonetheless, deputies defied the principle of Mar-

ron by seizing numerous items, as their discretion

dictated, without connecting the items to the partic-

ularized description in the warrant.!

No definitive rulings since Marron have emanated

from this Court to guide police officers in the proper

execution of search warrants in this or similar contexts.

Justice Stewart’s concurring opinion in Stanley v. Georgia,

394 U.S. 557 (1969), however, is relevant. Officers there

found three reels of film in the defendant’s bedroom

while executing a search warrant for gambling parapher-

nalia. Using a projector found on the premises, officers

viewed the films on a screen and concluded that they

were obscene. They then seized the films and Stanley was

criminally prosecuted for obscenity violations. Noting

that “the contents of the films could not be determined by

mere inspection,” 394 U.S. at 571, Justice Stewart con-

demned the film seizures as beyond any authority confer-

red either by the warrant or by the “plain view

exception.” Id. Arguably, officers could have contended,

as here, that there was a possibility that the films con-

tained evidence relevant to the warrant. But, Justice Stew-

art, joined by Justices Brennan and White, emphasized

the fact that nothing about the reels connected them to

the warrant. Id. The “search that began as perfectly law-

ful became the occasion for an unwarranted and uncon-

stitutional seizure of the films.” Id. at 570.

Here, the warrant specified that only certain kinds of

film could be seized; yet deputies seized virtually all

1 At the suppression hearing a sheriff’s deputy conceded

that he seized anything “in undeveloped form [where] you

couldn’t tell whether it was or was not involving a nude

female.” Appeal Document 64 at 169-170.

es

films and photographs (as well as videotapes and audi-

otapes), whether identifiable or not, relying on the subse-

quent processing and separate review of such items at the

stationhouse, rather than the search scene, to decide

whether particular items fell within the warrant’s terms.

Unlike other reported situations, the seized items in

question here were not commingled with other clearly

identifiable items falling within the warrant. No practical

considerations required that the 35mm film rolls be

seized with the other items that were taken. Compare

United States v. Lambert, 771 F.2d 83, 93 (6th Cir. 1985)

(where FBI agents seized items not named in a drug

investigation search warrant because microscopic drug

residue could not be removed practicably from the var-

ious items) and United States v. Wuagneux, 683 F.2d 1343,

1353 (11th Cir. 1982) (where agents seized any file or

book in which documents falling within the search war-

rant’s terms were located).

Laying such practical considerations aside, no items

should be seized under a search warrant unless the item

“appears at the time of the search, to contain evidence

reasonably related to the purposes of the search... ,”

United States v. Beusch, 596 F.2d 871, 877 (9th Cir. 1979)

(emphasis added). The circumstances presented here are

more comparable to those discussed in United States v.

Carsello, 425 F. Supp. 769 (N.D. Ill. 1977), where an officer

executing a search warrant for gambling paraphernalia

seized various documents which at the time of the search

he could not connect to gambling. Police reviewed the

documents further and discovered that they reflected the

defendant’s loan sharking activities, leading to his indict-

ment for income tax violations. The district court sup-

pressed the seized documents because of the officer’s

inability at the time of the search to draw a connection

between the seized documents and the search warrant’s

description of items subject to seizure.

[The officer] merely seized the papers on the

basis of a suspicion which he wished to fortiry

by further analysis and inspection by experts. In

our opinion, this does not justify seizure of the

records, although it may have justified an ex

parte consultation with an expert upon which a

second search warrant might have been

obtained.

425 F. Supp. at 771. That is precisely the course of action

that should have been taken by the deputies at peti-

tioner’s home. If they had reached a point where no

35mm photographs of the type described in the warrant

could be located, they should have applied to the issuing

judge for a second warrant, specifically authorizing the

seizure and processing of the 35mm film rolls.

The warrant did not authorize deputies to seize and

remove unidentifiable items from petitioner’s home for

later analysis; the warrant did not authorize a search

extending from items found at petitioner’s home to any

items of his property subsequently removed to the sta-

tionhouse. Yet the Wisconsin Supreme Court resolved the

issue by holding that the warrant effectively allowed the

seizure of unidentified film as well as a subsequent

search of that property, not at petitioner’s home, but at

sheriff’s headquarters. 161 Wis. 2d at 542, 468 N.W.2d at

680.

9.

These issues take on added importance because of

the special First Amendment implications raised when-

ever films are seized:

We have long recognized that the seizure of

films or books on the basis of their content

implicates First Amendment concerns not raised

by other kinds of seizures. For this reason, we

have required that certain special conditions be

met before such seizures may be carried out.

New York v. P.J. Video, 475 U.S. 868, 873 (1986). This

heightened scrutiny, directed to searches and seizures of

films and books, is found in a long line of cases from this

Court.

[W]hile the general rule under the Fourth

Amendment is that any and all contraband,

instrumentalities, and evidence of crimes may

be seized on probable cause (and even without a

warrant in various circumstances), it is other-

wise when materials presumptively protected

by the First Amendment are involved.

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989).

In Lee Art Theatre v. Virginia, 392 U.S. 636 (1968) a film

seizure was condemned because it was based upon a

mere conclusory assertion that the firm was obscene. In

Roaden v. Kentucky, 413 U.S. 496 (1973) the film seizure,

though incident to Roaden’s arrest, was invalidated

because it was accomplished without any warrant. In Lo-

Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) this Court

found the warrant process constitutionally defective,

insofar as the search led to seizures of films not specified

in the warrant, after they were viewed by the issuing

magistrate at the search scene. More recently, the Court in

10

Fort Wayne Books v. Indiana, supra, ruled that massive

pretrial seizures of film materials at an adult bookstore in

the absence of a prompt adversary hearing were uncon-

stitutional. The overall, guiding principle in these cases is

that the Fourth Amendment’s warrant requirements must

be strictly observed when the objects of a search and

seizure are materials presumptively protected under the

First Amendment.

It is understandable, therefore, that the Court of

Appeals certified the issue in this case to the Wisconsin

Supreme Court: “The second issue of statewide import is

one of first impressicn in Wisconsin (and perhaps nation-

ally) as well: whether undeveloped, unmarked rolls of

film satisfy a search warrant’s specification of ‘film... .

involving nude and partially nude female juveniles.’ ”

Certification Order at 6. On review the Wisconsin

Supreme Court agreed that the seizure and subsequent

processing of undeveloped film under a warrant describ-

ing particular illegal photographs raised a Fourth

Amendment issue previously unresolved by any appel-

late court. 161 Wis. 2d at 540, 468 N.W.2d at 679.

Accordingly, petitioner’s conviction presents “special

and important reasons” under Rule 10(c), Rules of the

Supreme Court of the United States, meriting review by

certiorari.

Il.

EXECUTION OF THE SEARCH WARRANT RESULTED

IN EXCESSIVE, UNCONSTITUTIONAL SEIZURES.

A search warrant must describe with particularity the

things to be seized. Marron v. United States, 275 U.S. 192,

11

196 (1989). The Fourth Amendment's requirement of par-

ticularity is designed to prevent general searches so that

the decision as to what categories of evidence should be

seized is not delegated to the executing officers. Lo-Ji

Sales, Inc. v. New York, 442 U.S. 319, 325 (1979). Despite

the protections afforded by a particularized warrant, offi-

cers may on occasion flagrantly exceed the scope of the

warrant, causing a separate Fourth Amendment viola-

tion. Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976).

The search warrant here directed the officers to focus

on film and photographic equipment “involving nude

and partially nude female juveniles.” Yet, the deputies

took it upon themselves to seize all photographs at peti-

tioner’s residence, so long as the photos showed females

in any relatively unclad state.

The officers also took it upon themselves to define

other categories of items which were subject to seizure.

Over 1,800 photographs were seized along with unde-

veloped film rolls and cartridges, as well as seven video-

tapes and three audio cassette tapes, even though the

search warrant testimony focused on a very isolated,

single occurrence.

The search warrant testimony did not show a “perva-

sive scheme” of illegal activity such that a massive seiz-

ure would be likely. No one testified that hundreds, much

less thousands, of photographs, as well as films, video-

tapes and audiotapes involving nude juveniles were in

existence.

Regrettably, the Wisconsin Supreme Court did not

comprehend the excessive reach of the search at Petrone’s

12

home. Personal vacation pictures in unmarked, unde-

veloped, C-110 cartridges were seized. Scrapbooks and

address books having no bearing at all to the investiga-

tion were taken; even holy cards from the funeral of the

petitioner’s mother were confiscated. Videotapes were

taken and then viewed. Audiotapes were confiscated and

later transcribed, though they had no tie to the case.

After deputies had spread out to seize over 1,800

pictures having nothing to do with the claims against

petitioner, they moved outside the house. A friend who

drove up to petitioner’s home in the midst of the search

had her own car invaded, leading to the confiscation of

her own personal photographs from the front seat.

The ultimate excess was the seizure of petitioner’s

Chris Craft boat, which obviously had no practical evi-

dentiary value for the state’s investigation.

A flagrant disregard for the limitations of a search

warrant will make an otherwise valid search an imper-

missible general search requiring the suppression of all

the evidence seized. E.g., United States v. Lambert, 771 F.2d

83, 93 (6th Cir. 1985) and cases cited.

The Wisconsin Supreme Court should not have over-

looked the gross, wholesale seizure of the petitioner’s

personal effects which were so plainly beyond the scope

of the warrant. Suppression of all evidence seized was the

proper remedy. Review by this Court on this additional

issue will clarify under what circumstances a partic-

ularized warrant will be deemed to have resulted in an

unconstitutional, general search.

¢

13

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Wiscon-

sin Supreme Court.

Dated at Milwaukee, Wisconsin, September 5, 1991.

Respectfully submitted,

James A. WALRATH

(Counsel of Record)

SHELLOW, SHELLOW & GLYNN, S.C.

222 East Mason Street

Milwaukee, Wisconsin 53202

(414) 271-8535

Attorneys for Petitioner

App. 1

STATE of Wisconsin,

Plaintiff-Respondent,

Vv.

Jerry W. PETRONE,

Defendant-Appellant.

No. 89-1551-CR.

Supreme Court of Wisconsin.

Argued Jan. 25, 1991.

Decided May 6, 1991.

SHIRLEY S. ABRAHAMSON, Justice.

This is an appeal from a judgment of conviction

entered by the circuit court for Walworth county, John R.

Race, Circuit Judge, on a jury verdict finding the defen-

dant guilty of three counts of sexual exploitation of chil-

dren contrary to sec. 940.203(2), Stats.1987-88.' The court

of appeals certified the case to this court. Section (Rule)

809.61, Stats. 1989-90. The court sentenced the defendant

to a term of four years’ imprisonment with a concurrent

term of six years’ probation.

The defendant challenges his conviction and sentence

on several grounds. First, the defendant challenges var-

ious aspects of the seizure of undeveloped photographic

film from his home as a violation of the fourth amend-

ment. Second, the defendant argues that his complaint

and information failed to charge the required element of

' Sec. 940.203, Stats. 1987-88, was repealed and recreated

as sec. 948.05, Stats. 1989-90, by sec. 29, 1987 Wis. Act 332,

effective July 1, 1989.

App. 2

scienter. Third, the defendant challenges the jury instruc-

tion defining the word “lewd” in sec. 940.203(2). Last, the

defendant argues that his presentence report contained

inaccurate information and that he was denied a due

process hearing to challenge the allegedly inaccurate.

information.

The court of appeals certified the following two

issues: (1) “Does a search warrant which authorizes the

seizure of ‘[a]ll ... film... used in the taking .. . of

photographic pictures, involving nude and partially nude

female juveniles’ include within its scope unmarked and

undeveloped rolls of film?” (2) “If a criminal complaint

fails to allege requisite scienter, is that failure curable

even if scienter is a constitutionally required element of

the crime?” We answer both questions in the affirmative.

We also reject the defendant’s other challenges to the

conviction and sentencing and affirm the iudgment of

conviction and sentence.

I.

The relevant facts of the case follow. On August 6,

1987, a fifteen-year-old female testified before Walworth

County Circuit Judge James L. Carlson as part of a

request by the state for two search warrants. The war-

rants were for the search of the defendant’s Delavan

home and his business, a tavern.

The juvenile testified that on July 29, 1987, she and

two other female juveniles posed in costumes, swimsuits

and in the nude while the defendant photographed them.

Two adult women also participated in the photo session.

The juvenile testified that during the photo session the

App. 3

defendant told her and the others to sit on the-ground

and put their knees up so that they would show parts of

their bodies. According to the juvenile’s testimony, the

defendant used both a Polaroid and a 35 mm camera and

told the subjects the photographs were to be used in a

brochure for the club, meaning the defendant’s tavern.

Search warrants were issued and executed on August

6, 1987, for both the defendant’s home and tavern.” The

search warrant for the defendant’s home directed depu-

ties to seize the following items:

Pink, strapless formal gown, 2-piece blue

bathing suit, yellow sheet or slipcover, all cam-

era, film, or photographic equipment used in the

taking, processing and development of photo-

graphic pictures, involving nude and partially

nude female juveniles.

Using the warrant, Walworth county deputies seized

a number of items from the defendant’s home, including

1,800 still photographs, videotapes, audiotapes, address

books and photo albums. They also seized three

unmarked film canisters containing undeveloped 35 mm

film cartridges. The deputy seizing the film was unable to

determine what kinds of photographs, if any, the rolls of

film contained. The sheriff's department developed the

film the day following the search and found that those

rolls of film had been taken at the July 29 photo session.

2 The search warrant for the defendant’s tavern is not at

issue here. I directed deputies to seize “photo album(s) con-

taining nude photographs of female juvenile(s) together with

developed photographs and 35 mm negatives of same.”

App. 4

The developed pictures in slide form were presented as

evidence at the defendant'’s trial.

A criminal complaint was issued on March 2, 1988,

charging the defendant with three violations of sexual

exploitation of children, that is, with photographing three

juveniles while they were engaged in the lewd exhibition

of their genital and pubic areas contrary to sec.

940.203(2), Stats. 1987-88.

II.

We first address the defendant’s challenges to the

search and seizure. The warrant directed the deputies to

search the house and seize, among other things,

“all... film... used in the taking, processing and

development of photographic pictures, involving nude

and partially nude female juveniles.”

The defendant argues that the deputies acted outside

the warrant when they seized and later developed

unmarked 35 mm film.? The defendant argues that under

either the terms of the warrant or the plain view excep-

tion to the warrant requirement, the deputies had to be

able to determine during the search of the house that the

film was used in the taking of photographic pictures

3 Approximately 80 photographs were introduced as evi-

dence at the defendant's trial. About 60 of the photographs

were developed from the rolls of 35 mm film; 20 were Polaroid

photographs found at the defendant’s home. The defendant

does not challenge the admission of the 20 Polaroid photo-

graphs. He maintains that the admission of the 35 mm photo-

graphs was critical because of the emphasis the prosecution

placed upon them at trial.

App. 5

involving nude or partially nude female juveniles. The

defendant reasons that the canisters could not have been

lawfully seized under the warrant because nothing linked

the canisters to the photographs of the juveniles. The

seizures were based, asserts the defendant, upon the

mere hope that the 35 mm film, when developed, might

generate evidence falling within the scope of the warrant.

The defendant further contends that the process of devel-

oping the films was beyond the authority of the warrant.

The state, as one might expect, disagrees. The state

asserts that deputies searching premises pursuant to a

warrant for film used in taking illegal photographs may

seize undeveloped film for developing and viewing to

determine whether it contains the kind of phc.ographs

described in the warrant.

The court of appeals characterized this issue as one

of first impression in Wisconsin and perhaps nationally.

Neither the state nor the defendant cites any case from

any jurisdiction involving the seizure of undeveloped

film. The research of the court of appeals and this court

was similarly unavailing.

To determine whether the undeveloped film falls

within the scope of a warrant, we examine the words of

the warrant, considering the purposes underlying the

fourth amendment requirement of particularity. 2 LaFave,

Search and Seizure § 4.6(a), p. 234 (2d ed. 1987). The

fourth amendment requires that warrants “particularly

describe the place to be searched, and the persons or

things to be seized.”

The fourth amendment’s particularity requirement

fulfills three objectives. It prevents general searches; it

i

App. 6

prevents the issuance of warrants on less than probable

cause; it prevents the seizure of objects when the warrant

describes different objects.4 As we explain more fully

below, the warrant in this case fulfills these objectives.

The particularity requirement is especially trouble-

some when an item to be seized - such as film — is a

household item whose use is ordinarily legitimate. In this

case, the investigation leading to the search warrant

yielded few details specifically identifying the film to be

seized. The only way to particularize the description of

the film in this case to differentiate between film subject

to seizure and film not subject to seizure was to describe

the generic class of items, that is film, and set reasonable

parameters for the search and seizure, as the warrant did,

in terms of the criminal activities in which the film was

used. The warrant in this case describes the film as

involving nude and partially nude female juveniles. This

particularity prevents the law enforcement officers from

seizing film obviously unrelated to the unlawful activity

described in the warrant.

The warrant in this case described the film to be

seized with as much particularity and specificity as the

circumstances and the nature of activity under investiga-

tion permitted. The juvenile who testified at the hearing

to obtain the search warrant stated that a Polaroid and a

35 mm camera were used but did not describe the brand

of the film or the camera. The warrant therefore could not

describe the type of film or the number of rolls, whether

4 Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76,

72 L.Ed. 231 (1927); Go-Bart Importing Co. v. United States, 282-

U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931).

App. 7

the film had been developed or where tke film might be

located in the defendant’s home, because this information

was not available from the investigation when the war-

rant was obtained.®

The warrant was specific enough in this case to pre-

vent a general search, and the specificity in the warrant

prevented issuance of the warrant on less than prabable

cause. The warrant was specific enough to prevent the

seizure of objects not described in the warrant. The war-

rant enabled the searcher reasonably to ascertain and

identify the thing to be seized. United States v. Betancourt,

734 F.2d 750, 754-55 (11th Cir.), cert. den. 469 U.S. 1021,

105 S.Ct. 440, 83 L.Ed.2d 365 (1984).

Even when the search warrant meets the particularity

requirements the search must be conducted reasonably

and appropriately limited to the scope permitted by the

warrant. Whether an item seized is within the scope of a

search warrant depends on the terms of the warrant and

the nature of the items seized. Considering the words of

the warrant in relation to the particularity requirement

5 As Professor LaFave notes, “a greater degree of ambi-

guity will be tolerated when the police have done the best that

could be expected under the circumstances, by acquiring all

the descriptive facts which reasonable investigation of this

type of crime could be expected to uncover and by ensuring

that all of those facts were included in the warrant.” 2 LaFave,

Search and Seizure, sec. 4.61(a), p. 238 (2d ed. 1987).

At oral argument the defendant’s counsel suggested that

the warrant might have specified 35 mm film. This reasoning

conflicts with the defendant’s principal contention that the

officers could not seize the film because they did not know its

contents.

App. 8

and the nature of the items to be seized, we conclude that

the deputies acted within the scope of the warrant.

The warrant in this case expressly allowed seizure of

film. To locate film of nude and partially nude female

juveniles, the deputies were authorized to examine places

where the film might have deen kept. The deputies could

open closets, chests and containers that could reasonably

contain film. The deputies found the canisters of unde-

veloped film in the same room and in close proximity to

Polaroid photos of nude female juveniles, supporting the

inference that the film may have b2en shot at the same

time and to photograph the same subjects as the Polaroid

photos.

The deputies would have to peruse all film found on

the premises to determine whether it fell within or out-

side the scope of the warrant. The deputies did not know

whether the film had been exposed or what was depicted

on the film. The deputies were not able to determine with

certainty at the house whether the film involved nude or

partially nude juveniles. Any attempts to examine the

rolls of film at the house might have destroyed them.

Until the film was developed and examined no one could

be sure whether the canisters contained items within the

scope of the warrant, that is, film involving nude or

partially nude female juveniles. The only way to peruse

the film contained in the canisters, which the deputies

had a right to do under the search warrant, was to

remove the film from the home and develop and view it

to determine its relevance to the crime described in the

warrant.

App. 9

-The defendant asserts that the warrant required the

deputies to make an on-the-scene determination that the

film involved nude and partially nude female juveniles.

We disagree with the defendant. The warrant does not

include a directive that the items must be immediately

and definitively identified at the scene of the search. In

United States v. Santarelli, 778 F.2d 609, 616 (11th Cir.

1985), the court explained that items seized under a war-

rant could under special circumstances be examined off

the premises of the search.

Given that the officers were entitled to examine

the documents while they remained in the

home, we cannot see how Santarelli’s privacy

interest was adversely affected by the agents’

examination of the documents off the premises,

so long as any items found not to be relevant

were promptly returned. Indeed . . . to require

an on-premises examination under such circum-

stances would significantly aggravate the intru-

siveness of the search by prolonging the time

the police would be required to remain in the

home.

Although the investigation appears to have been tho-

rough, it could not provide specific identifying details of

the items to be seized. The generic category of items to be

seized, film, had both lawful and unlawful purposes and

might require technological processing to determine its

relevance to the crime described in the warrant. Consid-

ering these factors, we conclude that the deputies acted

within the scope of the warrant when they seized the

App. 10

canisters that might reasonably contain film involved in

the criminal activities described in the warrant.®

The defendant further contends that even if the war-

rant included the rolls of undeveloped film, developing

the film later at the police station was a second, separate

search for which a warrant should have been obtained.

The defendant argues that the warrant allowed only

inspection and seizure of the evidence in “its existing

state.” We disagree with the defendant. A search warrant

does not limit officers to naked-eye inspections of objects

lawfully seized in the execution of a warrant.

Developing the film is simply a method of examining

a lawfully seized object. Law enforcement officers may

employ various methods to examine objects lawfully

seized in the execution of a warrant. For example, blood

stains or substances gathered in a lawful search may be

subjected to laboratory analysis. State v. Warren, 309 N.C.

224, 306 S.E.2d 446, 449 (1983). The defendant surely

could not have objected had the deputies used a magni-

fying glass to examine lawfully seized documents or had

enlarged a lawfully seized photograph in order to exam-

ine the photograph in greater detail. Developing the film

6 A comparison of the warrants for the home and the

tavern lends support to our conclusion that the warrant for the

home covered undeveloped film. Film was specifically men-

tioned in the search warrant for the defendant’s home; it was

not mentioned in the search warrant for his tavern. The war-

rant for the tavern authorized the seizure of “photo album(s)

containing nude photographs of female juvenile(s) together

with developed photographs and 35 mm negatives of same.”

The word “negatives” does not refer to undeveloped film;

negatives result when film is developed.

App. 11

made the information on the film accessible, just as labo- -

ratory tests expose what is already present in a substance

but not visible with the naked eye. Developing the film

did not constitute, as the defendant asserts, a separate,

subsequent unauthorized search having an intrusive

impact on the defendant's rights wholly independent of

the execution of the search warrant. The deputies simply

used technological aids to assist them in determining

whether items within the scope of the warrant were in

fact evidence of the crime alleged.” Because the unde-

veloped film was lawfully seized pursuant to the war-

rant, the deputies were justified in developing and

viewing the film.

The defendant challenges the search and seizure on

several other grounds. He argues that the state failed to

establish probable cause that illegal photographs would

be found at the defendant’s home, especially several days

after the photography session. He claims that the search

warrant for the defendant’s home was based on mere

guess or hunch, not probable cause.

The warrant was issued on the basis of the testimony

of one of the female juveniles who had participated in the

photography session at the defendant’s home and envi-

rons. She testified that the illegal Polaroid photographs

taken of her were on a table in the defendant’s home and

that the 35 mm film had not been developed when she

left the home on July 29. She did not know where the film

7 See, e.g., Commonwealth v. Copenhefer, __ Pa. __, 587

A.2d 1353 (1991), holding that retrieval of deleted computer

files from a computer seized pursuant to a warrant by use of a

special program did not violate the fourth amendment.

App. 12

would be developed or what had happened to the photo-

graphs in the ten days between the photography session

on July 29 and her testimony on August 7. The photo-

graphs were, she testified, destined to be put in a bro-

chure to promote the tavern.

The defendant argues that this testimony does not

support a finding of probable cause that the illegal film or

photographs would be found at the defendant’s home.

We conclude that the circuit court could reasonably infer

from the testimony that the defendant kept the photogra-

phy equipment and film used in the photo session in his

home; that the defendant would retain the photographs

for a substantial time; and that the photographs and

exposed film were either at the defendant’s home or at

the tavern.

Issuing a search warrant requires only a reasonable

probability that evidence will be found at a certain loca-

tion. In evaluating probable cause, a “grudging or nega-

tive attitude by reviewing courts towards warrants is

inconsistent with the fourth amendment’s strong prefer-

ence for searches conducted pursuant to a warrant.”

United States v. Premises Known as 1007 Morningside Ave-

nue, Sioux City, lowa, 625 FSupp. 1343, 1348 (N.D. Iowa

1985). We conclude that the circuit court was aware of

facts sufficient to show that film used to take illegal

pictures of juveniles would probably be found at the

defendant’s home. State v. Tompkins, 144 Wis.2d 116,

124-25, 423 N.W.2d 823 (1988).

The defendant further argues that the state failed to

establish probable cause that the juveniles exhibited their

genital or pubic areas to be photographed. After the

App. 13

juvenile testified that she had posed in the nude, the

circuit court objected that nudity alone was insufficient to

show a violation of the child pornography law. The cir-

cuit court stated that the photographs had to be “sexually

explicit.” The circuit court then questioned the juvenile

witness as follows to determine whether the photographs

were a lewd exhibition of genitals:

[Judge]: You have to show a little bit more

than that under the Statute. It has to be sexually

explicit photographs.

[Assistant District Attorney]: Which

includes the last subsection, lude [sic] exhibition

of genitals. It doesn’t require any sexual activity.

[Judge]: Were you posing or asked to pose

in any certain fashion or way in these photo-

graphs?

[Witness]: Yes, we were. We had to like sit

on the ground and like put our knees up and

stuff and just so that we could show parts of our

bodies.

The witness’s description of the photography session

satisfied the circuit court that there was probable cause to

believe the defendant had photographed juveniles in the

lewd exhibition of their genitals. Although the witness

did not describe in exact terms which parts of her body

the defendant photographed, her testimony that the juve-

niles were asked to put their knees up to show parts of

their bodies strongly implies that their genital areas were

exposed. Probable cause is not a technical, legalistic con-

cept but a flexible, common-sense measure of the plau-

sibility of particular conclusions about human behavior.

Texas v. Brown, 460 U.S. 730, 743, 103 S.Ct. 1535, 1543, 75

App. 14

L.Ed.2d 502 (1983); State v. Wisumierski, 106 Wis.2d 722,

739, 317 N.W.2d 484 (1982). Applying the “common

sense” test for probable cause, we conclude that the cir-

cuit court was justified in finding probable cause that the

photographs violated the statute.

The defendant’s final argument is that the execution

of the search warrant resulted in excessive unconstitu-

tional seizures. While the search warrant directed the

deputies to seize film and photographic equipment

“involving nude and partially nude female juveniles,” the

defendant complains that the deputies seized over 1,800

photographs along with undeveloped film rolls and car-

tridges, seven videotapes, three audiotapes, and the

defendant’s boat. The defendant urges that in executing

the warrant the deputies so flagrantly violated the terms

of the warrant that all items seized must be suppressed.

We agree with the defendant that items were seized

that were not within the scope of the warrant. The gen-

eral rule is that items seized within the scope of the

warrant need not be suppressed simply because other

items outside the scope of the warrant also were seized,®

unless the entire search was conducted in “flagrant disre-

gard for the limitations” of the warrant.?

8 United States v. Tamura, 694 F.2d 591, 597 (9th Cir.1982);

United States v. Shilling, 826 F.2d 1365, 1369 (4th Cir.1987); cert.

denied, 484 U.S. 1043, 108 S.Ct. 777, 98 L.Ed.2d 863 (1988).

9 United States v. Lambert, 771 F.2d 83, 93 (6th Cir.1985),

cert. denied, 474 U.S. 1034, 106 S.Ct. 598, 88 L.Ed.2d 577 (1985);

State v. Noll, 116 Wis.2d 443, 460, 343 N.W.2d 391 (1984).

App. 15

Although the catalogue of items seized in this case

includes numerous items not covered by the warrant, we

conclude that the deputies did not flagrantly disregard

the terms of the warrant. The state argues that all the

items seized were arguably related to the warrant.

Although the deputies seized photos of the juveniles in

bikinis and gowns, the photos were of the same juveniles

the defendant photographed nude. The photos were

related to this crime and were in plain view.

The deputies seized the boat upon which some of the

photographs of the nude or partially nude female juve-

niles were taken along with two address books and three

audiotapes which they thought could help identify the

juveniles in the photos. The deputies appear to have

seized only items they thought were arguably related to

the crime described in the warrant.

od

The deputies did not conduct the kind of general

search condemned in United States v. Medlin, 842 F.2d

1194 (10th Cir. 1988). The warrant in that case authorized

the seizure of firearms and records of the purchase and

sale of firearms. The executing officers seized 130 fire-

arms and 667 iterns unrelated to the warrant. The court

held that the proceeds of the entire search must be sup-

pressed because the officers had “grossly exceed[ed]” the

scope of the warrant. Id. at 1199. See also, United States v.

Rettig, 589 F.2d 418 (9th Cir. 1978), suppressing the entire

proceeds of a search where officers executed a warrant

for marijuana and paraphernalia and seized over 2,000

other items, mostly written material. The deputies in this

case did not seize items that were not arguably connected

in some way with the illegal activity described in the

App. 16

warrant. We conclude that the warrant was not flagrantly

disregarded.

For the reasons set forth, we conclude there was no

violation in the execution of the warrant, and we uphold

the circuit court’s admission of the photographs into evi-

dence.

ITI.

The defendant asserts that the complaint and infor-

mation are fatally deficient because they omit the essen-

tial element of scienter in charging three violations of

sexual exploitation of children contrary to sec. 940.203(2),

Stats.1987-88. The defendant asserts that because of this

defect the circuit court lacked jurisdiction, the criminal

complaint and information should be dismissed, and the

conviction vacated.

The defendant was charged with violating sec.

940.203(2), Stats.1987-88, entitled Sexual Exploitation of

Children, that provided as follows:

“No person may photograph, film, video-

tape, record the sounds of or display in any way

a child engaged in sexually explicit conduct.”

Section 940.203(2) does not expressly embody the element

of scienter. The defendant has consistently argued

throughout the proceedings that scienter is a constitu-

tionally required element of the offense and that the

statute is constitutionally defective, depriving the circuit

court of jurisdiction. The defendant argues that the state’s

App. 17

position has changed over the course of the proceeding. 1°

In any event, at trial and on appeal the state has asserted

that either the legislature intended scienter to be an ele-

ment of the crime’! or the court will supply this deficiency

10 At the preliminary hearing apparently the state and

defendant disagreed whether scienter was a necessary element

of the crime. The defendant sought leave to appeal his motion

to dismiss on the grounds that scienter was a necessary ele-

ment. The court of appeals denied the defendant's petition for

leave to appeal because “[t]he state concedes that . . . it will be

required to establish scienter at trial.” Citing New York v. Ferber,

458 U.S. 747, 765, 102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113 (1982),

the state argues on appeal that scienter is a constitutionally

required element.

11 The legislative history is not decisive on this issue. On

the one hand, the legislative history can be interpreted as

indicating that the legislature did not intend scienter to be an

element of the offense and deliberately did not use the word

“knowing” as an element of the crime. Subsections (1), (3), and

(4) of sec. 940.203 punish only conduct that was “knowingly”

undertaken; subsection (2) is the only offense that does not

contain the word “knowingly.”

On the other hand a recent recodification of sec. 940.203

suggests that scienter was always an element of the offense.

The legislature recently repealed and recreated sec. 940.203.

The new version of the sec. 940.203(2), sec. 948.05, Stats.

1989-90, defines the offense inter alia as photographing a child

engaged in sexually explicit conduct “with knowledge of the

character and content of the sexually explicit conduct involv-

ing the child.” Section 948.05(1)(b) provides as follows:

Whoever does any of the following with knowledge

of the character and content of the sexually explicit

(Continued on following page)

App. 18

in the statute to uphold its constitutionality. !2

We agree with the parties that scienter is a constitu-

tionally required element of the offense charged. We need

not decide for purposes of this case whether the legisla-

ture intended the statute to include the element of scien-

ter or whether this court would read the element of

scienter into the statute to enable the statute to pass

constitutional muster.

Prior to trial the court of appeals ruled that the state

would be required to establish scienter. The circuit court

instructed the jury that the state must prove defendant's

(Continued from previous page)

conduct involving the child is guilty of a Class C

felony: { . . (b) Photographs, films, videotapes,

records the sounds of or displays in any way a child

engaged in sexually explicit conduct.

The drafter’s note to sec. 948.05 declares that the new law

“does retain” knowledge as an element of the crime, thereby

implying that sec. 940.203 included an element of scienter or

knowledge. Citing New York v. Ferber, 458 U.S. 747, 102 S.Ct.

3348, 73 L.Ed.2d 1113 (1982), the note states that this inclusion

of a knowledge element recognizes that criminal responsibility

may not be imposed for the acts prohibited by this statute

without some element of scienter on the part of the defendant.

See 1987 Wisconsin Act 332, sec. 55 creating sec. 948.05.

12 The court has interpreted statutes to save them from

being declared unconstitutional. See State ex rel. Chobot v. Cir-

cuit Court for Milwaukee County, 61 Wis.2d 354, 367, 212 N.W.2d

690 (1973).

App. 19

knowledge beyond a reasonable doubt.'? The defendant

does not show that he was prejudiced at trial by the

omission of scienter in the complaint and information.

The defendant nevertheless argues that the omission

of a scienter allegation in the criminal complaint and

information is a jurisdictional defect that vitiates the con-

viction. The court of appeals certified this issue because it

detected “two differing strains” running through our

cases that need this court’s clarification.

In one line of cases pertaining to prosecutions for

crimes other than obscenity, the rule is that a complaint

or information failing to articulate an element of the

crime but citing the number of the substantive statute

defining the crime is sufficient to support a prosecution

as long as the defendant was not prejudiced in any wey

by the failure of the charging documents to set forth

every element of the crime.'4 if the complaint and infor-

mation in this case fall within this line of cases, the

13 At the defendant’s request, the circuit court told the

jury in its opening instructions that the state had to prove

beyond a reasonable doubt that the defendant knew the “con-

duct being depicted involved sexuaily explicit conduct of the

type alleged.” At the close of trial the circuit court explained

that the state must prove “that the defendant knew that the

conduct depicted in the photographs involved lewd exhibition

of the genital or pubic areas.”

14 See, e.g., State v. Bachmeyer, 247 Wis. 294, 19 N.W.2d 261

(1945) (first degree murder); Clark v. State, 62 Wis.2d 194, 214

N.W.2d 450 (1974) (first degree murder); State v. Nowakowski, 67

Wis.2d 545, 227 N.W.2d 697 (1975) (failure to report a campaign

contribution; statute on its face did not require intent; court

(Continued on following page)

App. 20

defendant's argument fails. Although the complaint and

information in this case were deficient in charging scien-

ter, they cited the number of the statute defining the

crime, and the defendant cannot show he was prejudiced.

(Continued from previous page)

ruled that intent had to be read into statute as an element and

proved at trial); Schleiss v. State, 71 Wis.2d 733, 239 N.W.2d 68

(1976) (burglary); Lambert v. State, 73 Wis.2d 590, 243 N.W.2d

524 (1976) (theft by fraud).

But see Champlain v. State, 53 Wis.2d 751, 193 N.W.2d 868

(1972), in which the court held that an information charging

armed robbery was fatally defective even though the informa-

tion referred to the statute by number. Champlain has been

explained as not conflicting with the general rule because of

special characteristics of that case. In Clark v. State, 62 Wis.2d

194, 203, 214 N.W.2d 450 (1974), Champlain was distinguished

on the ground that the statutory reference “related to the

sentencing provisions of the statute and not the substantive

section of the statute describing the crime for which the state

was prosecuting the defendant.” Champlain was also distin-

guished in Schleiss v. State, 71 Wis.2d 733, 738-39, 239 N.W.2d

68 (1976). The court stated that the citation in Champlain was to

a statute defining two separate and distinct crimes and the

information failed to allege the particular crime of which the

accused was charged.

These cases comport with sec. 971.26, Stats. 1989-90, that

States:

“No Indictment, information, complaint or warrant shall

be invalid, nor shall the trial, judgment or other proceedings be

affected by reason of any defect or imperfection in matters of

form which do not prejudice the defendant.”

The general test of the sufficiency of a complaint or an

information is that the accusation is such that the accused may

(Continued on following page)

App. 21

In a second line of cases pertaining to prosecutions

for an obscenity crime, the rule is that an allegation of

scienter in a criminal obscenity complaint or information

is a jurisdictional prerequisite, that a complaint or infor-

mation lacking such an allegation charges no offense

known to law, and that proceedings initiated by such a

complaint or information are void ab initio. The defendant

argues that this case involves first amendment rights and

is therefore governed by rules of pleading set forth in

obscenity cases which also involved first amendment

rights.

Our cases have not, however, been consistent in

explaining the basis for a different approach to defective

pleadings in obscenity and nonobscenity prosecutions.

The line of cases distinguishing between pleadings in the

two types of crimes begins with Court v. State, 51 Wis.2d

683, 188 N.W.2d 475 (1971), vacated 413 U.S. 911, 93 S.Ct.

3032, 37 L.Ed.2d 1023 (1973), affirmed on remand, 63

Wis.2d 570, 217 N.W.2d 676 (1974), an obscenity prosecu-

tion in which a pleading was alleged to be defective for

failing to state the element of scienter. Citing Smith v.

California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959),

the court concluded in Court v. State that scienter was a

necessary element of the crime of sale of obscene mate-

rials, “and it [scienter] must be alleged in the criminal

(Continued from previous page)

determine whether it states an offense to which the accused is

able to plead and prepare a defense and whether conviction or

acquittal is a bar to another prosecution for the same offense.

Blenski v. State, 73 Wis.2d 685, 695-96, 245 N.W.2d 906 (1976).

App. 22

complaint.” In that case, however, the court held that the

pleading was not defective.'5

Although the Smith case holds that scienter is a consti-

tutionally required element of an obscenity crime, the

United States Supreme Court did not require in Smith that

scienter be alleged in a criminal complaint. In some cases,

this court appears to acknowledge that the Court case may

have misread the Smith case to impose as a constitutional

requirement that the complaint and information in an

obscenity prosecution include the element of scienter.'®

15 In the second case in this obscenity prosecution line of

cases, State v. Schneider, 60 Wis.2d 563, 567, 211 N.W.2d 630

(1973), the court concluded that because the complaint charg-

ing possession for sale of obscene material did not allege

scienter, the proceedings were void ab initio. The Schneider

court relied on the Court and Smith cases, and on Champlain v.

State, 53 Wis.2d 751, 193 N.W.2d 868 (1972), a nonobscenity

case, which it interpreted as holding that a criminal pleading

which charges no offense is jurisdictionally defective. In

Schneider the information omitted the scienter element but

included the statutory citation. A companion case to Schneider

was State v. Green, 60 Wis.2d 570, 211 N.W.2d 634 (1973).

This court followed Schneider in State v. Reichert, 67 Wis.2d

69, 73-74, 226 N.W.2d 196 (1975), an obscenity case. The

Reichert court explained Schneider as follows: “We held that an

allegation of scienter, or criminal intent, in a criminal com-

plaint was a jurisdictional prerequisite in obscenity cases and

that, absent such allegation, the complaint charges no offense

known to law and the proceedings are void ab initio.”

16 In Clark v. State, 62 Wis.2d 194, 203, 214 N.W.2d 450

(1974), a nonobscenity case, the court stated that Smith and

(Continued on following page)

App. 23

Thus in Schleiss v. State, 71 Wis.2d 733, 739, 239 N.W.2d 68

(1976), a burglary case, the court characterized this

court’s special rule for pleadings in obscenity prosecu-

tions as resting on “the policy of this court in criminal

obscenity cases,” rather than on a federal constitutional

mandate. !7

The most recent discussion of defective pleading in

obscenity and non-obscenity prosecutions appears in

Lambert v. State, 73 Wis.2d 590, 243 N.W.2d 524 (1976). The

Lambert court upheld the defective pleadings in theft by

fraud and refused to apply the rule developed in the line

of cases involving obscenity prosecutions. The Lambert

court characterized the obscenity prosecution cases as “a

peculiar situation where the First Amendment overlay

(Continued from previous page)

Schneider “go directly and only to the question of whether

scienter is a constitutionally required element in a criminal

obscenity statute because it is intimately related to the consti-

tutional scope (first amendment) of the power to bar material

as obscene.”

See also Organ v. State, 65 Wis.2d 36, 43-44, 221 N.W.2d 823

(1974) and State v. Nowakowski, 67 Wis.2d 545, 569-70, 227

N.W.2d 697 (1975). Clark, Organ, and Nowakowski can also be

interpreted as distinguishing obscenity cases from non-

obscenity cases.

17 Schleiss reads Reichert and Schneider as holding that

an allegation of scienter ... in a criminal complaint was a

jurisdictional prerequisite in obscenity cases . . . ’ [evolving]

from the dimensions of first amendment rights as they relate to

statutes which control obscene material.” 71 Wis.2d at 739, 239

N.W.2d 68.

“dé

App. 24

creates a standard of pleading not generally applica-

ble.”18

The case at bar is not an obscenity case.'? We could

distinguish the cases involving obscenity prosecutions on

this basis. We do not, however, rest our holding on this

distinction. Upon examining our cases we no longer see

any justification for establishing or following a special

judicially created rule for pleading criminal obscenity

cases in contrast to other criminal cases. The first amend-

ment considerations requiring scienter pertain to the ele-

ments of the substantive crime, not to the pleadings.

Federal and state cases have not construed the Smith case

as holding that a charge in an obscenity case is void for

failing to state the scienter element.?°

18 The Lambert court quoted the Clark case interpreting our

defective pleading obscenity cases and the United States

Supreme Court Smith case as going directly and only to the

question of whether scienter is a constitutionally required ele-

ment in a criminal obscenity statute.

19 Child pornography may be prohibited even if it is not

obscene. New York v. Ferber, 458 U.S. 747, 757, 761 and n. 12, 102

S.Ct. 3348, 3354, 3357, and n. 12, 73 L.Ed.2d 1113 (1982).

20 For federal and state cases holding that a pleading in an

obscenity case omitting scienter does not void the proceedings,

see, e.g., United States v. Zacher, 332 F.Supp. 883 (E.D. Wis.1971)

(indictment for transporting obscene material omitted scienter;

indictment legally sufficient, but proof of scienter required at

trial); Tallman v. United States, 465 F.2d 282 (7th Cir.1972)

(indictment for uttering obscene language by radio communi-

cation omitted scienter; indictment need not allege scienter if it

is proved at trial; collateral attack); State v. Wein, 80 N.J. 491,

404 A.2d 302 (1979) (indictment for sale of obscene films

upheld even though failed to allege scienter); Wall Distributors,

(Continued on following page)

App. 25

We conclude that a single rule should govern all

criminal cases in which a pleading fails to set forth all the

elements of the crime but includes a correct citation to the

applicable substantive criminal statute. In the present

case, the complaint and the information omitted the ele-

ment of scienter but referred to the correct substantive

criminal statute by number. While the statute did not

expressly include the element of scienter, the circuit court

had construed the statute to include the element of scien-

ter. By citing the statutory number, the pleadings suffi-

ciently alleged all the elements of the offense, even those

the court read into the statute.?!

(Continued from previous page)

Inc. v. City of Newport News, 228 Va. 358, 323 S.E.2d 75 (1984)

(upholding indictment citing statute regarding possession of

obscene materials with intent to distribute but failing to allege

scienter).

Some state courts appear to hold that a charging document

omitting an essential element of the crime is not sufficient for

any crime. See, e.g., State v. Oman, 265 Minn. 277, 121 N.W.2d

616 (Minn. 1963) (prosecution of bookseller for sale and pos-

session of obscene literature); State v. Serstock, 402 N.W.2d 514

(Minn.1987) (indictment alleging violation of the Minnesota

Code of Professional Responsibility did not state a violation of

a statute).

Other state courts distinguish between obscenity and non-

obscenity prosecutions. See, e.g., Commonwealth v. Bacon, 374

Mass. 358, 372 N.E.2d 780 (1978) (indictment for carrying a gun

without a license was sufficient without stating element of

scienter; obscenity cases distinguished).

21 State v. Nowakowski, 67 Wis.2d 545, 571-72, 227 N.W.2d

697 (1975).

App. 26

Prior to the trial, the defendant knew that the pros-

ecution must prove the element of scienter; the jury was

instructed that the state must prove scienter. The defen-

dant does not show that he was prejudiced in any way at

trial by the omission of scienter in the complaint and

information.

Adhering to the rule set forth in the nonobscenity

cases, we conclude that the defective complaint and infor-

mation in this case are legally sufficient.

IV.

We next address the defendant’s challenge to the

court’s jury instruction regarding the meaning of “lewd”

within the statute. Section 940.203(2), Stats. 1987-88, pro-

hibits the following conduct:

No person may photograph, film, videotape, record

the sounds of or display in any way a child engaged in

sexually explicit conduct.

The statute defines “sexually explicit conduct” as

“lewd exhibition of the genitals or pubic area of any

person.” Wis. Stats. sec. 940.203(6)(b)5, 1987-88. The term

“lewd” is not defined in sec. 940.-203(6)(b)5.

The circuit court gave the following instruction

defining “lewd”:

“The word “lewd” has a general well recog-

nized meaning, connoting sexual suggestive-

ness.

.. . Mere nudity does not constitute the

type of exhibition which is prohibited by the

statute.

ae

App. 27

Now, examples of sexually suggestive or

lewd photographs of a child would be those in

which the child is depicted or posed in such a

way as to depict or suggest a willingness to

engage in sexual activity or a sexually coy atti-

tude. Whether or not the child intended such a

pose is not the issue, but rather what a reason-

able person viewing a photograph would per-

ceive is being suggested. Now, no expanded

writing or written definition of what constitutes

a lewd exhibition of the genital areas would

encompass all of the uncountable variations

which such photographs might take. . . . Just as

a written description of the face of a loved one

could be read by a third person without that

third person being able to see in his or her mind

the same mental picture as is in the mind of the

person writing the description. Words cannot

describe all of the nuances of that which consti-

tutes lewdness. However, ... with a few general

principles in mind, most persons, upon seeing a

photograph which is lewd, would be able to

agree that it is such.”

The defendant argues that the circuit court’s instruc-

tion to the jury, derived from United States v. Nemuras, 567

F.Supp. 87 (D.Md.1983), aff'd, 740 F.2d 286 (4th Cir. 1984),

is erroneous because it is a rambling, open ended, and

vague definition. The defendant argues that an instruc-

tion defining “lewd” in terms of sexually coy mistakenly

tells the jury that “lewd” means sexually shy or bashful

rather than inciting lust or sensual desire. The defendant

is not reading the instruction properly. The judge did not

define “lewd” as sexual coyness. Sexual coyness is part of

the explanation of sexual suggestiveness.

App. 28

The defendant also argues that the circuit court’s

open-ended reference to the term “lewd” as meaning

whatever “most persons” agree to allowed the jurors to

create their own standards of culpability and rendered

the jury instructions unconstitutionally vague.

The defendant contends that the definition of “lewd”

exhibition of genitals promulgated in State v. Lubotsky,

148 Wis.2d 435, 434 N.W.2d 859 (Ct.App.1988), which was

decided after the trial in this case, is the correct defini-

tion. The circuit court and the court of appeals in Lubotsky

defined “lewd” in terms of the dictionary definition -

“inciting to lust or lechery.” We conclude that the circuit

court instructed the jury in this case that “lewd” means

sexual suggestiveness, giving “iewd” essentially the same

meaning as “inciting to lust or lechery.”22

To determine if the instruction is correct-as a matter

of law, the instruction must be read in its entirety.?° If the

overall meaning is a correct statement of the law, then

22 In Lubotsky, the court approved two other dictionary

definitions of “lewd” that are as follows: “inclined to, charac-

terized by, or inciting lust or lechery” and “inciting to sensual

desire or imagination.” Lubotsky, 148 Wis.2d at 438, 434 N.W.2d

859.

23 The defendant argues that parts of the instruction are

inaccurate, rendering the whole definition vague. The defen-

dant objects to phrases in the jury instruction taken from

Nemuras, which included the following: “sexually coy atti-

tude,” “sexually suggestive,” and “most persons, upon seeing

a photograph which is lewd, would be able to agree that it is

such.” Nemuras, 567 F.Supp. at 89-90.

App. 29

any erroneous part of the instruction is harmless and not

grounds for reversal. Betchkal v. Willis, 127 Wis.2d 177,

188, 378 N.W.2d 684 (1985); State v. Paulson, 106 Wis.2d

96, 108, 315 N.W.2d 350, 356 (1982).

After examining cases interpreting similar child por-

nography laws and the term “lewd,” we conclude that no

one definition has been established for “lewd.” Three

concepts are generally included in defining “lewd” and

sexually explicit. First, the photograph must visibly dis-

play the child’s genitals or pubic area. Mere nudity is not

enough. Second, the child is posed as a sex object. The

statute defines the offense as one against the child

because using the child in that way causes harm to the

psychological, emotional and mental health of the child.

The photograph is lewd in its “unnatural” or “unusual”

focus on the juvenile’s genitalia, regardless of the child’s

intention to engage in sexual activity or whether the

viewer or photographer is actually aroused. Last, the

court may remind the jurors that they should use these

guidelines to determine the lewdness of a photograph but

they may use common sense to distinguish between a

pornographic and innocent photograph. New York v. Fer-

ber, 458 U.S. 747, 765, 102 S.Ct. 3348, 3359, 73 L.Ed.2d 1113

(1982); United States v. Wiegand, 812 F.2d 1239, 1243-44

(9th Cir.), cert. den., 484 U.S. 856, 108 S.Ct. 164, 98

L.Ed.2d 118 (1987); United States v. Arvin, 900 F.2d 1385,

1391 (9th Cir. 1990), cert. den., U.S. __, 111 S.Ct. 672,

112 L.Ed.2d 664 (1991).

In this case, looking at the jury instructions as a

whole, we conclude that the circuit court accurately

apprised the jury of what “lewd” means. The circuit court

told the jurors that mere nudity is not enough — the

App. 30

pictures must display the child’s genital area; that the

photographs must be sexually suggestive; and that the

jurors may use common sense to determine whether the

photographs were lewd.

We conclude that the instruction taken as a whole

gave the jury an adequate definition of “lewd.”

V.

The defendant objected to parts of the presentence

report containing unattributed allegations whose accu-

racy was contested, including charges that the defendant

sought to falsify statements in a traffic violation case; that

the defendant had engaged in prostitution activities and

money laundering; that the defendant assaulted people

on numerous occasions; and that he had been involved in

illegal drugs. The likely effect of this information was to

increase the defendant’s sentence.?4

In response to the defendant’s objection, the sentenc-

ing court declined to rule on the motion or to state on the

record what information in the report would be rejected,

although the sentencing court agreed that the inclusion of

24 In Bruneau v. State, 77 Wis.2d 166, 174-75, 252 N.W.2d

347 (1977), the court summarized an accused’s due process

rights at sentencing as follows:

(1) to be present at the hearing and to be afforded

the right of allocution,

(2) to be represented by counsel, and

(3) to be sentenced on the basis of true and correct

information.

App. 31

some information in the report was troublesome. The

circuit court could have easily avoided raising suspicion

that it was considering improper matters by stating on

the record what information it would not consider. Unfor-

tunately in explaining its sentencing rationale, the court

did not state which information it relied upon and which

it did not.

The circuit court, however, did not mention any par-

ticular incidents except those evidenced by convictions

for misconduct and assaults alleged by the defendant's

ex wife.

In reviewing sentencing, an appellate court begins

with “the presumption that the trial court acted reasona-

bly and with the requirement that the [appellant] must

show some unreasonable or unjustifiable basis in the

record for the sentence complained of.” Jung v. State, 32

Wis.2d 541, 548, 145 N.W.2d 684, 688 (1966), cert. denied,

386 U.S. 999, 87 S.Ct. 1321, 18 L.Ed.2d 349 (1967). Sentenc-

ing is a matter within the discretion of the circuit court.

“There should be evidence in the record that discretion

was in fact exercised and the basis of that exercise of

discretion should be set forth.” State v. Hutnik, 39 Wis.2d

754, 764, 159 N.W.2d 733 (1968).

We are satisfied, on the basis of the record, that the

circuit court properly exercised its discretion in sentenc-

ing the defendant. At the sentencing hearing, the defen-

dant alerted the circuit court to the items in the

presentence he considered objectionable. The circuit court

agreed with the defendant that “some things in [the

presentence report] . .. went beyond what I would expect

and would want in a presentence by way of background.”

App. 32

The circuit court explained, however, that it was capable

of separating the “wheat from the chaff” and that the case

would “rise and fall on what I heard in the court room.”

There is nothing in the record to suggest that the circuit

court relied upon factors which were “totally irrelevant

or immaterial to the type of decision to be made.” Ocanas

v. State, 70 Wis.2d 179, 187, 233 N.W.2d 457 (1975). See

also, State v. Thompson, 146 Wis.2d 554, 566-67, 421 N.W.2d

716 (Ct.App. 1988). Accordingly we conclude the circuit

court did not abuse its discretion.

For the reasons set forth, we affirm the judgment of

conviction and sentence.

The judgment of the circuit court is affirmed.

ee

App. 33

SUPREME COURT

OF WISCONSIN

P.O. BOX 1688

MADISON, WI 53701-1688

TELEPHONE (608) 266-1880

MARILYN L. GRAVES

CLERK

JUNE 10, 1991

TO: THOMAS J BALISTRERI

ASST ATTORNEY GENERAL

PO BOX 7857 -

MADISON, WI 53707

PHILIP A KOSS

DISTRICT ATTORNEY

WALWORTH COUNTY COURTHOUSE

ELKHORN, WI 53121

JAMES A WALRATH

SHELLOW, SHELLOW & GLYNN

222 E MASON ST

MILWAUKEE, WI 53202-3668

THE COURT TODAY ANNOUNCED AN ORDER IN

YOUR CASE AS FOLLOWS:

DISTRICT 2

STATE v. PETRONE, J., 89-1551-CR

MOTION FOR RECONSIDERATION DENIED,

WITHOUT COSTS.