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Ineffective assistance of counsel — failure to object to evidence. Circuit court’s discretion to admit other acts evidence and child victim’s video statement

State v. Roy H. Beals, 2012AP1079-CR, District 2/1, 7/9/13; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of counsel

Trial counsel in a sexual assault prosecution was not ineffective for failing to object to portions of two different video statements of the child victim (one from 2007, the other from 2009) because the evidence did not prejudice Beals. Trial counsel did object to the first 10 minutes of the 2007 video until after it had been played, but the trial court sustained the objection and instructed the jury to disregard that part of the video. The jury is presumed to have followed that instruction, State v. Adams, 221 Wis. 2d 1, 12, 584 N.W.2d 695 (Ct. App. 1998), despite Beals’s claim the presumption should not apply here. (¶¶26-29). As to the part of the 2007 video the jury was allowed to consider, the “brief mention” of an alleged act of sexual contact with a different child did not prejudice Beals because it was “de minimus when considered in the context of the trial testimony in its entirety.” (¶30). For the same reasons, the playing of the 2007 video does not warrant a new trial in the interest of justice. (¶¶34-36).

Circuit court’s evidentiary rulings

Beals’s complaints about the admission of other acts evidence are rejected because: 1) some of the evidence was in the portion of the 2007 video stricken from the record; 2) the brief reference to alleged acts with a different child were, as we’ve already seen, de minimus and therefore did not cause any undue prejudice; and 3) whether redacted portions of the 2009 video were mistakenly played when the jury reviewed the video during deliberations is not established by the record, so the court presumes the missing information supports the conviction, Fiumefreddo v. McLean, 174 Wis. 2d 10, 27, 496 N.W.2d 226 (Ct. App. 1993), and in any event playing the redacted material was harmless. (¶¶38-41).

Nor did the circuit court err in admitting the 2009 video statement under § 908.08. The court’s factual findings regarding the statutory factors are not clearly erroneous and the court’s reasoning process is reflected in the record, which shows it exercised its discretion in accordance with the proper legal standards and facts of the case. (¶¶43-46).

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