Appeals court rules against Hathaway

The Wisconsin Court of Appeals today upheld Douglas County Circuit Judge Michael Lucci’s ruling on a case that thrust Superior into the international spotlight.

In March, 21-year-old Bryan James Hathaway pled no contest to one charge of sexual gratification with an animal for having sex with a dead deer Oct. 11, 2006, he saw while biking along Stinson Avenue.

Assistant State Public Defender Jefren Olsen filed an appeal on his behalf in November, arguing Hathaway was accused of a nonexistent crime. The statute uses the word “animal,” which is defined by dictionaries as a “living being.” Since the deer was dead, Olsen argued, no crime was committed and the the conviction should be reversed.

Hathaway’s original attorney, Public Defender Fredric Anderson, brought up the same argument in a motion hearing in Douglas County Circuit Court prior to his plea. The motion to dismiss was denied by Lucci.

The appeals court didn’t address whether the statute applies to a dead animal.

“We conclude that by pleading no contest Hathaway waived his argument on the motion to dismiss,” they wrote in their decision.

The court did, however, note that Hathaway “rather convincingly contends that ‘animal’ means a living creature.”

Since the Superior man pleaded no contest to a crime that exists, they wrote, his argument does not apply.

The Appeals Court also agreed with Lucci that a statement Hathaway gave to Officer Adam Poskozim of the Superior Police Department was admissible as evidence.

The officer was at the residence when agents first made contact with Hathaway. Poskozim testified in Douglas County Circuit Court that the Superior man was covered in hair and blood, raising concerns about the possibility of injury or violent crime. The officer was also aware of bestiality allegations against Hathaway in the past.

Olsen contended that Hathaway’s statement to Poskozim was influenced by the statement he made to his probation agents, which is protected by the 5th Amendment. After taking Hathaway’s statement, the agents told Poskozim they wanted Hathaway charged with bestiality, according to testimony given in Douglas County Circuit Court.

“Apparently, Hathaway thinks that otherwise Poskozim would not have wanted to interview him,” the court wrote. “It is simply unreasonable to conclude that a police officer would not want to interview a person covered in hair and blood.”

The appeals court found that Poskozim did not use any of the information Hathaway gave to probation agents in his own questioning. The officer testified that he simply asked Hathaway what happened and the Superior man told him that he had sex with a dead deer.

Lucci sentenced Hathaway to one year of probation with 161 days in jail and the condition that he undergo psychological treatment. The Superior man is currently serving a nine-month sentence at the Douglas County Jail for violating his probation.

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