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Court of appeals rejects multiple-issue challenge to child pornography conviction

State v. Jose O. Gonzalez-Villarreal, 2013AP1615-CR, District 1, 1/27/15 (not recommended for publication); case activity

The court of appeals rejects Gonzalez-Villarreal’s challenge to his conviction for possessing child pornography based on claims that: his right to a speedy trial was violated; discovery restrictions violated his right to equal protection; other acts evidence was erroneously admitted; the trial court rejected his modified jury instruction on possession; the court erroneously exercised its sentencing discretion.

Speedy trial: The 3-year, 9-month delay was presumptively prejudicial, but the delay was due primarily to the defense, not the state (even though 15 months of the delay was attributable to Gonzalez-Villarreal’s successful interlocutory appeal of the state’s motion to disqualify his lawyer), and in any event Gonzalez-Villarreal hasn’t shown he was prejudiced by the delay. (¶¶6-22).

Discovery restrictions: Gonzalez-Villarreal’s claim that the state failed to disclose the contents of his computer hard drive is rejected because his brief’s record citations don’t support his argument and his argument is undeveloped. (¶24). His claim that the circuit court erred in denying his request to modify the protective order issued under State v. Bowser, 2009 WI App 114, 321 Wis. 2d 221, 772 N.W.2d 666, fails because the circuit court’s decision is not in the appellate record, and “[w]hen a record is incomplete, we assume that the missing material supports the decision under attack. State v. Benton, 2001 WI App 81, 10, 243 Wis. 2d 54, 625 N.W.2d 923.” (¶27).

Other acts evidence: Investigators found 1100 images of child pornography on Gonzalez-Villarreal’s computer, but charged him with only five counts. The state limited its case-in-chief to the five charged images, but after Gonzalez-Villarreal testified that he didn’t know how those images appeared on his computer the circuit court allowed the state to put on rebuttal evidence about the number of other images found. (¶¶2-3, 28-29). The circuit court didn’t err in admitting the rebuttal other acts evidence: It was offered for a proper purpose (providing context and to show lack of accident or mistake); it was relevant to show lack to accident; and its probative value was not outweighed by its prejudice, State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). (¶¶30-40).

Jury instruction: The circuit court properly rejected Gonzalez-Villarreal’s request, based on State v. Mercer, 2010 WI App 47, 324 Wis. 2d 506, 782 N.W.2d 125, to substitute language about “possession” from the standard jury instruction, Wis. J.I.—Criminal 2146A, with an instruction that observing a pornographic image doesn’t establish possession. The standard instruction accurately states the law, and Gonzalez-Villarreal seems to argue the instruction he asked for widened the basis for liability, which would not have helped his defense. (¶¶41-45).

Sentencing discretion: Gonzalez-Villarreal didn’t raise this issue in a postconviction motion, so it won’t be considered on appeal, State v. Walker, 2006 WI 82, ¶30, 292 Wis. 2d 326, 716 N.W.2d 498. (¶46).

As in the previous interlocutory appeal, where counsel’s brief “failed to comply with the most rudimentary and significant requirements” of § 809.19, 2012 WI App 110, ¶1 n.1, Gonzalez-Villareal’s lawyer’s briefs are explicitly criticized by the court—e.g., “the appellant’s brief was very poorly written and in some places incomprehensible” (¶5 n.3)—even though the case activity entries show counsel was ordered to file replacement briefs. We can’t easily judge the briefs for ourselves because they are not available on-line: early in the case the court granted a waiver of the electronic filing requirement.

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