State v. Eric Christopher Bell, 2014AP2899-CR and 2014AP2900-CR, District 1, 11/24/2015 (not recommended for publication); case activity (including briefs)
Bell raises two challenges to the joinder of ten counts involving five victims; the court rejects both.
Two separate complaints each charged Bell with multiple sex crimes against children. The first complaint alleged counts involving two thirteen-year-old female victims; the second involved three different minor females: Bell’s daughters. (¶¶2-8). The cases were joined for trial and Bell was convicted on all counts. (¶¶10-11).
The court of appeals affirms the trial court’s ruling and its reasoning. First, Wis. Stat. § 971.12(1)&(4) permit joinder where the crimes charged “are of the same or similar character”; the crimes must “be the same type of offense occurring over a relatively short period of time and the evidence as to each must overlap.” State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584 (Ct. App. 1988). The court notes similarities in the type of sexual intercourse, age of the victims, and location and details of the assaults; that all victims reported assaults within a seven-month window; and that some of Bell’s daughters were witnesses for the assaults of the other victims, and concludes that the charged crimes were of similar character. (¶¶16-19).
The court next rejects Bell’s argument that the charges should have been tried separately pursuant to § 971.12(3), which permits severance where joinder would prejudice the defendant (or the state). This is a discretionary decision for the trial court and is only overturned where the defendant can show “substantial prejudice.” (¶21). Such prejudice is not present where the evidence as to each count would be admissible “other acts” evidence in trial of the others. (¶22). The court deploys the familiar Sullivan framework (in its ever-so-permissive “greater latitude” variant) to conclude that this is the case here. (¶¶23-27).
The court finally dismisses Bell’s claim that the similarities of the counts and interspersion of the evidence as to each created potential juror confusion, noting simply that the jury was instructed to consider each count separately. (¶¶30-31).