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Evidence sufficient to support jury’s sexual assualt verdict against gynecologist; joinder of claims upheld

State v. Evan K. Saunders, 2013AP1229-CR, District 1, 11/5/13 (1 judge; ineligible for publication); case activity

This case concerns a gynecologist’s sexual assault of 4 different patients over 2 1/2 years.

Sufficiency of evidence:  Fourth degree sexual assault requires proof that the defendant had “sexual contact” with the victim without her consent.  Wis. Stat. § 940.225(3m).  And “sexual contact,” among other things, requires evidence that the defendant acted either with intent to harm the victim, or to become sexually aroused or gratified, or to sexually degrade or humiliate the victim.   Saunders said there was no evidence to prove harm, his own gratification, or degradation/humiliation of the victim because he touched intimate parts these women during their medical examinations.  See WIS-JI–Criminal 1219.

The court of appeals didn’t buy that argument–at all.  It spent over 5 pages cataloguing Saunders’s efforts to sexually arouse his patients during gynecological exams, and it highlighted the State’s expert’s testimony that there was no medical explanation for Saunders’s misconduct.  While Saunders presented contrary evidence, including some from the State’s expert, the court of appeals held that jury was free to accept the victims’ testimony, along with the portions of the State’s expert’s testimony that supported conviction, and “to infer from [that] evidence that Saunders had the intent necessary to find him guilty of all four fourth-degree sexual assault charges. Slip op. ¶19.  [Customary bow to State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) regarding the court’s deference to a jury’s verdict.]

Joinder and Severance.  According to the court of appeals, the four sets of charges against Saunders were properly joined in one action because: (1) they involved the same types of offenses, and (2) they occurred over a relatively short period of time–here 2 1/2 years.  See Wis. Stats. § 971.12(1).  Is 2 1/2 years really a “short period of time”?  The court’s answer:  “[G]iven the similarities between each of the victim’s reports, two and one-half period of time is a relatively short period of time.”  Slip op. ¶26.  See State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584 (Ct. App. 1988) (crimes 15-18 months apart), which discusses the “relatively short” standard.

The court also held that Saunders  was not prejudiced by the denial of his motion to sever the 4 sets of charges:

¶36 Because we conclude that, if tried separately, the testimony of each of the victims would have been admissible in the trials of the others as other acts evidence, Saunders has not established that he was substantially prejudiced by joinder of the charges. As such, the trial court did not erroneously exercise its discretion when it denied Saunders’ motion to sever.


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