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Sexual assault, human trafficking, and pandering charges regarding two different victims were properly joined

State v. Jermaine L. Rogers, 2013AP992-CR & 2013AP993-CR, District 1, 1/14/14; court of appeals decision (not recommended for publication); case activity: 2013AP992-CR; 2013AP993-CR

The trial court properly exercised its discretion in granting joinder under § 971.12(1) of two cases involving human trafficking, sexual assault, attempted pandering, and child enticement charges against two different victims, P.R. and K.D. Relying primarily on State v. Hamm, 146 Wis. 2d 130, 430 N.W.2d 584 (Ct. App. 1988), the court of appeals rejects Rogers’s argument that joinder was improper because of the differences in the ages of the victims, the time gap between the offenses, and the differences in the allegations. Instead, the court concludes, the offenses were of the “same or similar character”  because the evidence regarding each victim overlapped (in particular, the evidence showed a similar modus operandi for soliciting the victims). (¶¶12-14). For the same reason, the substance of the allegations with respect to each victim was similar, and the similarities of the character and substance of the allegations made the roughly three-year gap between the offenses not too remote in time. (¶¶15-16).

Nor did Rogers suffer substantial prejudice from the joint trial. State v. Locke, 177 Wis. 2d 590, 597, 502 N.W.2d 891 (Ct. App. 1993). His claim of prejudice is that the evidence regarding K.D. would not have been admissible at a trial limited to P.R. under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), because it was unduly prejudicial, and without the evidence regarding K.D. the evidence was insufficient to convict him of the crimes against P.R. The court disagrees with both assertions: The evidence would have been admissible, and in any event there was sufficient evidence based on P.R.’s testimony to convict him of the crimes against her. (¶¶17-19).

The court also rejects Rogers’s claims that his trial lawyer was ineffective on various grounds: failing to object to joinder (counsel did object, and joinder was proper (¶23)); failing to object to leading questions of a witness (no showing of prejudice (¶¶24-25)); failing to object to references to his nickname, “Pimp Rah” (again, no showing of prejudice (¶¶26-27)); cross-examining K.D. in a way that elicited evidence proving an element (the court disagrees the evidence proved the element, and there was plenty of other evidence to prove it (¶¶28-30)); and a conflict of interest because of a relationship with an other-acts witness called by the state (the court finds no conflict (¶¶31-33)).

Finally, the court rejects sufficiency challenges to three of the counts. (¶¶34-40).

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