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COURT OF APPEALS
NOTICE
DECISION
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.
October 15, 2002
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                  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.
                                                                                                                                                   Cir. Ct. No.   00 CF 51
Appeal No.                                                                       01-0810-CR
STATE OF WISCONSIN                                                                                                                                 IN COURT OF APPEALS
                                                                                                                                                   DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
PATRICK W. KENNEY,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an order  of  the circuit court for
Milwaukee County:   JOHN J. DiMOTTO, Judge.   Affirmed.
Before Wedemeyer, P.J., Fine and Curley, JJ.
¶1                                                                               PER  CURIAM.    Patrick  W.  Kenney  appeals  from  a  judgment
entered after a jury found him guilty of one count of child enticement, sexual




No.   01-0810-CR
contact, contrary to WIS. STAT. § 948.07(1) (1999-2000).1   He also appeals from
an order denying his postconviction motion.   He claims:                                      (1) WIS. STAT. § 948.07
is  unconstitutional  because  it  violates  free  speech;                                    (2)  the  evidence  was
insufficient for conviction;                                                                  (3)  he was essentially convicted of  “attempting to
attempt” a crime, which does not exist under Wisconsin law; (4) the trial court
erroneously admitted  “other acts” evidence; and  (5) the trial court erroneously
exercised its sentencing discretion.   Because State v. Robins, 2002 WI 65, 253
Wis. 2d 298, 646 N.W.2d 287, resolves the first three issues in favor of upholding
the judgment and order, and because the trial court did not erroneously exercise its
discretion on the evidentiary issue or in sentencing, we affirm.
BACKGROUND
¶2                                                                                            On September 23, 1999, Eric Szatkowski, a special agent with the
Wisconsin  Department  of  Justice,  posed  as  a  thirteen-year-old  boy  from
Milwaukee named “Alex.”   Szatkowski logged into an America OnLine chat room
on the internet and engaged in an online conversation with Kenney.    The two
discussed erotic wrestling, and Kenney explained that he paid men $100 per hour
for such activity.    At Kenney’s suggestion, they agreed to meet at a Denny’s
restaurant near the Milwaukee airport before going to a hotel to engage in erotic
wrestling.   Kenney indicated that after they met, either one could  “call it off.”
Kenney then packed his wrestling bag and drove from his home in Chicago to
Milwaukee.   When he arrived at Denny’s, he was arrested.
1  All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise
noted.   This crime contemplates both an attempt to entice a child and the completed act of
enticing a child.  Kenney was convicted of an attempt to entice a child.
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No.   01-0810-CR
¶3                                                                                     Kenney gave a statement to Agent Szatkowski admitting that he
knew Alex’s profile indicated he was thirteen years old, that he intended to meet
Alex and go to a hotel room for erotic wrestling, which would include sexual
contact.   Kenney was thereafter charged with child enticement and pled not guilty.
His case was tried to a jury, which found him guilty.   He was sentenced to four
years in jail based, in part, upon the trial court’s intention to deter the general
public from engaging in similar activity.   Kenney filed a postconviction motion,
which was denied.   He now appeals.
DISCUSSION
A.  Issues Controlled by Recent Supreme Court Case.
¶4                                                                                     Kenney argues that:                                                     (1) WIS. STAT.  § 948.07 is unconstitutional
because it violates his right to free speech;  (2) the evidence is insufficient to
support his conviction because there was no child to be enticed and he never
attempted to cause “Alex” to go into a room; and (3) his conviction is really for
“attempting to attempt” child enticement, which is a non-existent crime.   These
three issues were all recently decided in favor of the state by our supreme court in
Robins.
1.   Free Speech.
¶5                                                                                     Kenney contends that the child enticement statute is unconstitutional
as  applied  to  his  case  because  the  alleged  enticement  consisted  solely  of
communication  over  the  internet.    Robins  made  a  similar  argument,  and  our
supreme court rejected this contention.    The supreme court explained that the
“internet conversations and e-mails … do not by themselves constitute the crime
of  child  enticement.”    Robins,                                                     2002  WI  65  at  ¶44.    Rather,  this  contact  is
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No.   01-0810-CR
circumstantial  evidence  of  an  individual’s  intent  to  entice  a  child,               “which,
combined with his actions in furtherance of that intent, constitute probable cause
for the crime of attempted child enticement.”   Id.   The supreme court held that
“the First Amendment does not protect child enticements, whether initiated over
the internet or otherwise.”   Id.
¶6                                                                                          This reasoning and holding applies to Kenney as well.   Here, the
internet communications are circumstantial evidence of his intent to entice a child.
These, combined with his actions in furtherance of that intent, constitute probable
cause for the crime of attempted child enticement.   Kenney suggests that he did
not “act in furtherance of that intent.”   We disagree.   He packed his wrestling bag,
obtained cash for payment, and drove his car from Chicago to Milwaukee.   He
arrived at the place the two agreed to meet before proceeding to a hotel room for
the  planned  event.                                                                        Therefore,  we  reject  his  claim  that  this  statute  is
unconstitutional.
2.   Insufficient Evidence.
¶7                                                                                          Kenney  next  contends  the  evidence  is  insufficient  because  there
never actually was a thirteen-year-old child involved and he never caused a child
to go into a secluded place.   The Robins court rejected this argument also.   The
court reasoned that the lack of an actual child victim does not render the charge
non-existent.   Robins, 2002 WI 65 at ¶45.   A fictitious victim is the extraneous
factor that intervenes to prevent the completion of the crime, but it still allows
conviction of an attempt to engage in child enticement.  Id. at ¶27.
¶8                                                                                          Similarly, the court in Robins rejected the claim that attempted child
enticement is not an “‘attempt to commit a strict liability crime,’” impermissible
under  the  law  of  Wisconsin.    Id.  at  ¶30.    It further  rejected the  defendant’s
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No.   01-0810-CR
argument that when the victim is fictitious, it is legally impossible to commit child
enticement.   See id. at ¶¶31-32.
¶9                                                                                       Finally, Kenney’s argument is that the evidence is insufficient to
show that he attempted to get “Alex” to go into a secluded room.   We are not
persuaded.   Again, Kenney’s argument is based in part on the fact that “Alex” was
fictitious and that he never actually escorted “Alex” into a secluded room.   By
making this argument, Kenney is again relying on two premises that we have
rejected.   As noted, the Robins case permits prosecution of child enticement when
there is a fictitious victim, explaining that this factor merely intervenes to prevent
the completion of the crime.
¶10    Furthermore, the second part of his argument fails as well for similar
reasons.   It is true that Kenney never was able to escort Alex into a secluded room,
but that was only because the victim was fictitious and the law enforcement agent
intervened  before  the  meeting  could  take  place.    Like  Robins,  this  makes
Kenney’s conviction an attempt at child enticement, rather than a completed act.
It does not render the evidence insufficient to support the conviction.
3.   Attempting to Attempt.
¶11    Finally, Kenney argues that his conviction is really for an “attempt
to attempt” child enticement.   He contends that he was going to Denny’s simply to
call off the erotic wrestling date and, therefore, his actions constituted a non-
existent crime.   We do not agree.
¶12    The  court  in  Robins  rejected  a  similar  argument.     The  court
explained that attempt has two elements:                                                 “‘(1) an intent to commit the crime
charged; and (2) sufficient acts in furtherance of the criminal intent to demonstrate
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No.   01-0810-CR
unequivocally that it was improbable the accused would desist from the crime of
his or her own free will.’”   Id. at ¶36 (citation omitted).   The court reasoned that
although the law does not punish a person for his guilty intentions alone, the law
of attempt punishes for “‘acts that further the criminal objective.’”   Id. (citation
omitted).   In the instant case, the evidence proffered demonstrated an intent to
commit the crime and sufficient acts in furtherance.   The intent was evidenced by
the  communications  over  the  internet  and  the  acts  in  furtherance  included:
packing a wrestling bag; bringing $440 in cash and a digital camera; and driving
from Chicago to Milwaukee.
¶13    Although Kenney claims his intentions had changed and told the
jury so during his testimony, the jury did not find his self-serving claim credible.
Rather, they inferred from his actions that it was improbable he would desist from
committing child enticement.   Based on the foregoing, we cannot accept Kenney’s
contention that his conviction is for an “attempt to attempt” child enticement.   The
evidence demonstrates otherwise.   The only reason the crime was not completed
was because of the intervention of the fortuitous circumstance that “Alex” was an
undercover law enforcement agent.
B.  Other Acts Evidence.
¶14    Kenney argues that the trial court erroneously admitted other acts
evidence, which included three photographs found in his apartment that depicted
men engaged in “erotic wrestling” and the admission of his statement to police
that he had met more than a dozen men through the internet with whom he had
engaged in wrestling and sexual contact.   We reject his argument.
¶15    WISCONSIN STAT. § 904.04(2) prohibits the introduction of evidence
of                                                                                       “other  acts”  to  prove  a  person’s  character  in  order  to  show  conduct  in
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No.   01-0810-CR
conformity therewith.   The statute, however, permits the admission of other acts
evidence for other purposes.   Id.   Other acts evidence may be admitted if:                 (1) it is
offered for an acceptable purpose under § 904.04(2); (2) it is relevant; and (3) its
probative value substantially outweighs the danger of unfair prejudice, confusion
of the issues, misleading of the jury, undue delay, waste of time or needless
presentation of cumulative evidence.   State v. Sullivan, 216 Wis. 2d 768, 772-73,
576 N.W.2d 30 (1998).   We review the trial court’s decision to admit or exclude
other acts evidence under the erroneous exercise of discretion standard of review.
Id. at  780.   Here, we cannot state that the trial court erroneously admitted the
challenged evidence.
¶16    The photographic evidence was offered for the acceptable purpose of
absence  of  mistake―to  explain  away  an  innocent  explanation  for  Kenney’s
behavior.   Id. at 784.   Further, they were also offered for the acceptable purpose of
demonstrating  Kenney’s  intent  to  engage  in  sexual  contact  when  he  was
discussing “erotic wrestling.”   Similarly, Kenney’s statement of other encounters
was offered for the acceptable purpose of demonstrating plan, absence of mistake,
and intent.   Thus, the first step of Sullivan is satisfied.
¶17    The second step of the Sullivan test is also met—the evidence was
relevant to issues of intent, plan or scheme and absence of mistake, and to negate
Kenney’s potential innocent explanation for his conduct.   Kenney tries to argue
that the other acts evidence was not relevant because it involved adults and the
instant case involved a child.   Although this distinction is a proper consideration,
we cannot say that the distinction here renders the evidence irrelevant because it is
the  only  notable  difference  between  this  act  and  the  other  acts.    All  of  the
remaining factors demonstrate a common plan and scheme to meet someone over
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No.   01-0810-CR
the internet, and arrange for erotic wrestling/sexual contact.   Accordingly, the trial
court did not err when it found the second step of the Sullivan test was satisfied.
¶18    Likewise, we conclude that the third step of the test is satisfied.
Kenney  contends  the  evidence  was  highly  prejudicial  and  should  have  been
excluded under the third step.   We disagree.   The record reflects that the trial court
carefully  considered  this  factor  and,  as  a  result,  excluded  much  of  the  total
evidence proffered by the State, allowing only a select portion of the photographs
and Kenney’s statement to be introduced.   By doing so, the trial court minimized
any potential prejudice.   In addition, the trial court gave a cautionary instruction to
the jury to minimize any risk of unfair prejudice.   See State v. Mink, 146 Wis. 2d
1, 17, 429 N.W.2d 99 (Ct. App. 1988).
¶19    Based on the foregoing, we conclude that the trial court properly
exercised its discretion in addressing and deciding this issue.
C.  Sentencing.
¶20    Kenney’s last argument is that the trial court erroneously exercised
its sentencing discretion by imposing a long sentence because of the publicity
given  to  his  case.    He  contends  that  the  trial  court  improperly enhanced  his
sentence based on a factor beyond his control—media attention.   We reject his
claim.
¶21    The trial court has broad discretion in sentencing and we will not
disturb a sentence unless the trial court erroneously exercised its discretion.   To
properly exercise its sentencing discretion, the court must consider three primary
factors:    the gravity and nature of the offense, the character and needs of the
offender, and the need to protect the public.   State v. Spears, 227 Wis. 2d 495,
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No.   01-0810-CR
507, 596 N.W.2d 375 (1999).   The record reflects that the trial court considered
these factors when it imposed the sentence.
¶22    Kenney’s complaint is that the trial court imposed a longer sentence
because his case generated much media attention.   The record reflects that the trial
court did, in fact, base the sentence in part on the fact that the media was covering
Kenney’s case.    However, this was not improper.    The trial court imposed a
lengthy sentence in the hopes of deterring this type of activity, noting that the
media attention would facilitate that purpose.   This was not an erroneous exercise
of discretion.   Kenney briefly asserts that the trial court’s sentence violated his
constitutional rights to due process and equal protection because of the reference
to  media  attention.     We  decline  to  consider  this  argument  because  it  is
undeveloped.   State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992).
By the Court.—Judgment and order affirmed.
                                                                                        This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                               (b)5.
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