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Court of Appeals rejects challenges to child sexual assault convictions

State v. Timothy P. Gregory, 2016AP1265-CR, District 2, 3/14/18 (not recommended for publication); case activity (including briefs)

In this lengthy decision, the court of appeals rejects multiple challenges Gregory makes to his convictions for child sexual assault that occurred in 1997.

Because of the number of issues and their fact-intensive nature, this post will simply list the challenges and court’s disposition in summary fashion and cite to the relevant paragraphs for readers interested in more detail.

  • First, Gregory argues the circuit court should not have admitted other-acts evidence of sexual assaults he committed in 1986 (one of which he was convicted of) because it was unfairly prejudicial and only relevant to prove propensity. The court of appeals holds that the circuit court properly exercised its discretion in admitting the evidence under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and that the danger of unfair prejudice that Gregory emphasizes was mitigated by the cautionary instruction given to the jury. (¶¶9-17).
  • Second, he argues the circuit court erred in denying his motion for mistrial when the mother of the victim of the 1986 sexual assaults referred to other sexual assault allegations that were inadmissible. The jury was immediately instructed to disregard the first statement the mother made, but she made two more similar references. Gregory declined the offer of another curative instruction regarding those and instead moved for mistrial.  Given that the last two references were “a brief portion of a multiday trial dealing with sensitive allegations that were already years old,” the circuit court didn’t erroneously exercise its discretion in refusing the “drastic remedy” of a mistrial. (¶¶18-22).
  • Third, Gregory argues the circuit court improperly excluded evidence of alleged affairs by the mother of the victims in this case and the conflict stemming from the affairs, which he said gave the parents of the children accusing him of assault a motive to coach them to make false accusations. The court of appeals agrees with the circuit court that the evidence was not relevant because it was “conjecture”; moreover, even if relevant, it involved highly sensitive information, and its prejudicial and confusing effect outweighed its slight probative value. (¶¶23-28).
  • Fourth, Gregory argues that the circuit court erred by excluding certain photographs on the grounds that they were not disclosed to the State prior to trial as required by § 971.23(2m)(c). The court of appeals affirms the circuit court’s factual finding that the photos were not disclosed before trial, and that even if there was good cause for the failure to disclose, the exclusion of the evidence was harmless. (¶¶29-36).
  • Fifth, he argues his counsel was ineffective for failing to object and move for a mistrial when the prosecutor made an allegedly impermissible propensity argument during closing arguments. Trial counsel testified she thought an objection would be overruled, would only draw attention to the evidence, and that the case had gone well and she didn’t want to risk a mistrial at that point. The circuit court accepted this testimony as providing a reasonable strategic decision, and so does the court of appeals. (¶¶37-47).
  • Sixth, Gregory argues that the circuit court erred by instructing the jury to disregard an argument his attorney made during closing arguments regarding a potential corroborating witness the State did not call. This error, if it was one, was harmless, says the court of appeals. (¶¶48-49).
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