Opinion
No. 2013AP2016–CR.
2014-07-29
STATE of Wisconsin, Plaintiff–Respondent, v. Demonta Lamar HAMBRIGHT, Defendant–Appellant.
Appeal from a judgment of the circuit court for Milwaukee County: Rebecca F. Dallet, Judge. Affirmed.
Before HOOVER, P.J., MANGERSON and STARK, JJ. ¶ 1 PER CURIAM.
Demonta Hambright appeals a judgment convicting him of two counts of intimidating a witness, his wife. The jury acquitted him of three other counts, including sexual assault of his wife. Hambright contends the circuit court's comments at sentencing exhibited bias that should have resulted in the judge recusing herself, and the court relied on an improper factor during sentencing by refusing to accept the jury's acquittal on the sexual assault charge. We reject those arguments and affirm the judgment.
DiscussionDiscussion
¶ 5 The court's consideration of the sexual assault charge at sentencing does not exhibit bias. A court may consider uncharged and unproven offenses, even offenses for which the defendant has been acquitted. State v. Leitner, 2002 WI 77, ¶ 45, 252 Wis.2d 449, 646 N.W.2d 341. There is a well-recognized distinction between the fact-finder's function at the guilt stage, where the question is whether the State has proved guilt beyond a reasonable doubt, and the sentencing judge's role, which is to assess the defendant's character using all available information. Prineas, 316 Wis.2d 414, ¶ 28, 766 N.W.2d 206. Here, the court also noted it had substantial information that was not presented to the jury. The court's comments did not reject the jury's verdict. Rather, the court appropriately considered all of the information it had regarding the incident and determined that, even though the State failed to prove the sexual assault beyond a reasonable doubt, Hambright's actions reflected badly on his character.
¶ 6 Hambright cites Brozovich v. State, 69 Wis.2d 653, 661, 230 N.W.2d 639 (1975), for the proposition that “knowledge of pending charges does not vitiate the sentence where the trial court did not express its opinion as to the guilt or innocence of the defendant in the pending case or rely on the pending charges in order to impose an increased penalty.” In Brozovich, the sentencing court was informed of other pending charges, but did not explicitly consider them when it imposed sentence. The language Hambright quotes from Brozovich draws a distinction between the court's knowledge of pending charges and its use of those charges when imposing sentence. Hambright fails to note the very next sentence: “Furthermore, even if the trial court took the pending charges into consideration in imposing sentence, under the decisions of this court it was entitled to do so.”
¶ 7 Hambright describes as “disingenuous” the sentencing court's statement that the sentence would be the same even if the court confined its consideration to the two intimidation charges without considering the sexual assault as a factor relating to Hambright's character. We see nothing in the record that supports that characterization, and no error or appearance of bias in the court's consideration of the sexual assault allegation.
¶ 8 Hambright also contends his conduct throughout the proceedings “cast the die for the trial court's bias at sentencing.” He refers to Hambright's “quarreling” with the judge about his standing to challenge the admissibility of evidence, his accusing the judge of bias, and accusing the judge of favoritism for agreeing to everything the prosecutor wanted. However, Hambright does not show anything in the record to establish the judge's bias or appearance of bias in the court's responses to Hambright's conduct.
¶ 9 Hambright contends his sentences were “way too steep” for his conduct. He describes his crimes as mere technicalities and contends his intimidation did not include any threats of physical violence against his wife. The sentencing court's rejection of these attempts to minimize the seriousness of Hambright's crimes does not constitute bias.
¶ 10 For the same reasons, Hambright has not shown that the sentencing court considered an impermissible factor in imposing sentence. Contrary to Hambright's argument, acquittal on the sexual assault charge does not mean that no sexual assault occurred. It merely means that the jury did not find proof beyond a reasonable doubt, which is not necessary when considering a factor relating to the defendant's character. See State v. Bobbitt, 178 Wis.2d 11, 17, 503 N.W.2d 11 (Ct.App.1973). The court could properly consider information presented at sentencing that was not presented to the jury. That evidence includes a long history of domestic abuse charges that were dismissed when the victim, in several cases Hambright's wife, failed to make court appearances. In addition, the record provides no reason for this court to discount the sentencing court's statement that the sentence would be the same if the court confined its consideration to the two crimes for which Hambright was convicted in this case.
Judgment affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5. (2011–12).