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Repeated child sexual assault, § 948.025: instruction on first degree child sexual assault as lesser-included; other acts evidence; date of offense; ineffective assistance of counsel

State v. Robert T. Warriner, 2012AP244-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity

Instruction on first degree child sexual assault as lesser-included of repeated child sexual assault

At trial the child testified that Warriner sexually assaulted her on only two occasions, so the trial court agreed, over Warriner’s objections, to read the instruction for first-degree sexual assault of a child, § 948.02(1). (¶¶9-11). The jury convicted him of the lesser-included. The court declines to review Warriner’s argument that first degree sexual assault was not a lesser included charge because the argument is “completely undeveloped and lacks a single reference to either the record or to legal authority.” (¶13). To the extent Warriner’s argument is the same one he made to the trial court–that giving that lesser prejudiced him because the defense presumed that the State would only seek to use second-degree sexual assault of a child as a lesser–the trial court’s rejection of that argument “is well reasoned and amply supported by the record and legal authority.” (¶13). (The trial court relied on the fact the information charged three or more offenses under either 948.02(1) or (2) and that the victim was between the age of 5 and 7, well under the cut-off between first and second degree. (¶12).)

Other acts evidence

The trial court properly exercised its discretion in admitting evidence Warriner was convicted of assaulting another child during the same time period. (¶¶14-26). Warriner’s arguments to the contrary are “nothing more than a disagreement with the trial court’s proper exercise of its discretion. That does not provide a sufficient basis for us to overturn the trial court’s decision.” (¶25).

Date of offense

Warriner’s offense occurred between January 1, 1999, and December 2000, a time period with one foot in TIS and the other in the old indeterminate sentencing world. (¶2). He was sentenced under the pre-TIS indeterminate sentence scheme. (¶5). The court rejects Warriner’s claim the jury needed to specify the date of his lesser-included offense of first degree child sexual assault to determine which sentencing scheme to apply. Warriner’s argument is underdeveloped, conclusory, and lacking citation to authority, not to mention waived, because his lawyer agreed at sentencing that the pre-TIS law should apply. (¶¶27-28). And, the court concludes any error is harmless, as the pre-TIS structure is the more lenient of the two. (¶30).

Ineffective assistance of counsel

The court rejects claims that Werriner’s trial lawyer was ineffective for: i) calling two reputation witnesses who testified the victim had a reputation for truthfulness (counsel had a reasonable basis to believe they would provide helpful testimony, and any deficiency was not prejudicial given other evidence of the victim’s untruthfulness); ii) presenting alibi evidence showing the defendant was in jail during a significant part of the time period (a reasonable, “virtually unassailable” strategic decision to eliminate much of the time period alleged); and iii) failing to present evidence of one witness’s motive to plant the allegations in the victim’s mind (counsel did impeach the witness’s credibility, though without getting into the motive for her to lie). (¶¶31-41).

Appellate practice note: The court criticizes appellate counsel for referring to both victims by their full names, and then goes on to say “[w]e identify them both by their initials to protect their privacy, as did the State. In the future, we direct Warriner’s appellate counsel to do the same.” (¶2 n.2 (emphasis added)). No authority is cited for the court’s authority to “direct” counsel to adopt this practice, and the direction is apparently limited to Warriner’s counsel. As noted here, another panel of this court recently “urged” a different lawyer to use the the victim’s initials, which is more appropriate than directing counsel to do so because (as acknowledged by the previous panel) counsel is not statutorily prohibited from using the juvenile’s name in this situation.

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