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Counsel deficient in allowing jury to see exhibit, but defense prejudiced on just 1 of 5 counts

State v. Lamont Donnell Sholar, 2016AP987, 6/20/17, District 1 (not recommended for publication), petition for review granted 10/17/17, affirmed, 2018 WI 53; case activity (including briefs)

Sholar was charged with 5 counts of sex trafficking and 1 count of sexual assault.  At trial, defense counsel allowed “Exhibit 79”–a 181-page report containing the contents of Sholar’s cell phone, including 1,4000 text messages and photos of girls and women in suggestive poses, to go to the jury. The State concedes that defense counsel  performed deficiently, but argued that Sholar was prejudiced only with respect to the sexual assault charge, not the sex trafficking charges. The court of appeals agreed.

To nail down its prejudice holding, the court of appeals gave an exhausting 13-page summary of the evidence the State presenting at trial. It then concluded:

¶83 Sholar argues that he was prejudiced by the jury receiving Exhibit 79 in its entirety during deliberations because it portrayed him as a violent drug dealer and, therefore, we cannot be confident that the jury did not punish him for being a bad person, regardless of his guilt of each crime charged. Sholar’s argument ignores that even without Exhibit 79, the jury heard evidence that Sholar was a violent person, involved the violent crime of sex trafficking, and that he was a drug dealer.

¶84 The totality of the evidence in support of the sex trafficking charges involving E.C. and S.G. was overwhelming. See Johnson, 153 Wis. 2d at 128. The evidence clearly portrayed Sholar as a violent, threatening, controlling pimp who enslaved E.C., S.G. and other young girls in the sex trafficking trade, and who was involved in selling drugs.

¶85 The jury heard how Sholar recruited E.C. and S.G. and girls as young as thirteen years old to engage in acts of prostitution. It saw the photographs of E.C., S.G., and other young girls who were working for Sholar on Backpage being offered for sex. The jury heard that Sholar punched E.C., and threatened to punch S.G. if she did not do as told. It heard how Sholar threatened E.C. and S.G. and their families. The jury heard how Sholar forced E.C. and S.G. to engage in acts of prostitution on a daily basis and turn the money over to Sholar. It heard how Sholar broke the jaw of a girl who tried to escape from him. The jury heard, even from his own testimony, about Sholar’s involvement in selling marijuana.

¶86 The only evidence offered to rebut the testimony of E.C., S.G., and the other state witnesses was the rambling, incredible testimony of Sholar. We agree with the trial court that his testimony was not only wholly incredible, it was ridiculous

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