On Point

State v. Nick J. W., 2009AP2030-CR, District 4, 8/26/10

court of appeals decision (3-judge, not recommended for publication); for Nick J.W.: Joseph L. Sommers; BiC; Resp.; Reply

Incest – Sufficiency of Evidence

The 16-year-old complainant’s testimony that her biological father had sex with her sufficed to prove the crime of incest, the court rejecting the defense argument that, because she didn’t look at the perpetrator, her identification was speculative:

¶19 The testimony is clear that Nick was home at the time of the charged assault based on Delores’s testimony that she believed that she and Nick were the only persons in the house. Thus, assuming that it believed Delores’s testimony about how she was sexually assaulted, the jury was faced with two alternatives: (1) that Nick was the offender, or (2) that some unknown person, undetected by Nick, entered the home while Nick was present and assaulted his daughter, risking that Delores would call for help and that Nick would come to her assistance. Indeed, under Nick’s intruder theory, this happened three times because it was revealed at trial that Delores alleged that Nick committed two similar sexual assaults. Thus, the evidence was easily sufficient to support the finding that Nick was the perpetrator.

State v. Turnpaugh, 2007 WI App 222 (ambiguous proposition not enough to establish solicitation of prostitute), distinguished.

Newly Discovered Evidence

Complainant’s post-trial admission that she had been hospitalized when defendant told her in a phone conversation he was “sorry” (she denied at trial having been hospitalized; defendant’s expression of regret was used at trial as an admission of guilt) didn’t warrant new trial. Her hospitalization due to suicide attempt was a double-edged sword: the jury could have attributed it to the assault by defendant; her credibility was otherwise impeached; there was no mention of the hospitalization in the phone call, so there was no reason to think the defendant was expressing sympathy for her plight rather than remorse for his act; and, the fact of hospitalization wouldn’t have assisted in the area most problematic to the defense, ascribing to the complainant motive to falsely accuse her father of incest.

Test for newly discovered evidence recited at ¶22.

State v. Donovan L. Lewis, 2009AP2531-CR, District 4, 8/26/10

court of appeals decision (3-judge, not recommended for publication); for Lewis: Shelley Fite, SPD, Madison Appellate; BiC; Resp.; Reply

Defense access to a complainant’s privileged counseling records requires first convincing the trial court to conduct an in camera inspection to see if the records contain information material to innocence. And that requires showing a reasonable likelihood the records contain non-cumulative material information. State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), as modified by State v. Green, 2002 WI 68. Lewis, charged with sexual assault of a co-worker, 14-year-old D.M.O., can’t make this showing:

¶18      Lewis’s defense theory is that D.M.O. is lying when he says he had oral sex with Lewis.[6] The key components of this defense theory are that (1) D.M.O. is homosexual, (2) his parents disapprove of this, (3) in reaction to his parents’ disapproval he was motivated to fabricate sexual encounters with Lewis, and (4) his general lack of truthfulness played a role in this fabrication. As for the first two components, even if there is a reasonable likelihood that there is information in D.M.O.’s counseling records that he is homosexual and that his parents disapprove of this, it is cumulative to evidence the defense already had and is therefore not necessary to the defense. Two persons who had worked with D.M.O. testified that he had told them his parents did not like the fact that he was gay. In addition, D.M.O. acknowledged that he was gay, that his parents didn’t accept it, and that he told people at work he was homosexual and his parents had problems with it.[7]

¶19      As for the third component—that in reaction to his parents’ disapproval D.M.O. was motivated to fabricate sexual encounters with Lewis—Lewis’s showing falls far short of a specific factual basis demonstrating a reasonable likelihood that his counseling records contain information on this point. There is no evidence that D.M.O. told his co-workers anything about his relationship with Lewis. As for his parents, the only evidence at the hearing on how they first learned of any relationship between Lewis and D.M.O. was that they found explicit emails between Lewis and D.M.O. This is not consistent with D.M.O. fabricating a sexual relationship with Lewis for “his parents’ benefit.”

As to “general lack of truthfulness”: D.M.O.’s own mother described him as a pathological liar, but Lewis can’t show “that his lying had anything to do with fabricating sexual encounters with males,” ¶23. OK, but if he could make that showing, then he wouldn’t need the records, would he? A fact-specific case, to be sure (as such cases tend to be, in the nature of things). But the larger message seems to be, good luck getting these records. You have to make a fairly compelling showing of materiality before the trial court inspects them to determine if they are … material. And if you can make that showing? Well, then in all likelihood that just means you’ve already acquired what you need and the records would be merely cumulative. Heads I win, tails you lose. Further Shiffra/Green discussion, in Davis v. Litscher, 290 F.3d 943 (7th Cir. 2002).

State v. David E. Steinke, 2009AP3207-CR, District 4, 8/26/10

court of appeals decision (1-judge, not for publication); for Steinke: Cody Wagner; BiC; Resp.; Reply

Driving with a prohibited alcohol content of .08 or more, second offense, is a crime and therefore subject to beyond-reasonable-doubt burden of proof. Sitting as trier of fact in a bench trial, the circuit arguably misapprehended the burden as greater weight of the credible evidence, but the court of appeals concludes that the correct burden was indeed applied:

¶17      It is true the court used the term “greater weight of the evidence.” Both times it did so was in the context of discussing Kalscheur’s testimony. We acknowledge the use of this phrase is confusing. However, in context we understand the circuit court to be expressing its view that Kalscheur’s testimony was probative as required for admissibility under Wis. Stat. § 885.235(3) and persuasive on the issue of Steinke’s PAC. We also consider it relevant that the prosecutor argued that the evidence showed Steinke was guilty of both the OWI charge and the PAC charge beyond a reasonable doubt, and the court expressly referred to the “beyond a reasonable doubt” standard in finding Steinke not guilty of OWI.[5] It is not reasonable to read the record as showing the court did not understand this was the correct standard for the PAC charge as well.

Worth remembering: whether the circuit court applied the correct burden is a question of law, reviewed de novo, ¶15, citing Wolfe v. Wolfe, 2000 WI App 93, ¶14.

PAC – Sufficiency of Evidence

Steinke was arrested at a probation office, following which his blood was drawn, yielding a blood alcohol content of .24 along with an “elimination rate” used to estimate his BAC at a prior time. However, no one had seen him drive to the office and there was no direct evidence as to when he had stopped drinking: Steinke therefore argues that there was no way to know if his PAC exceeded the limit when he drove. The court of appeals rejects the argument, concluding that, for various reasons, it was reasonable to infer Steinke entered the office as soon as he arrived and drank nothing thereafter — thus anchoring the time and allowing for a conclusion he drove with a prohibited level of alcohol in his system, ¶¶18-25.

The standard of review typically determines the outcome: deferential, and the odds of reversal are vanishingly small; independent, and they increase. Or so we are told. The court begins its analysis with a nod toward a principle that isn’t always articulated, ¶18: “Steinke’s challenge to the sufficiency of the evidence on the PAC charge…, too, presents a question of law, which we review de novo. See State v. Booker, 2006 WI 79, ¶12.” But it is also true that the court in its independent review resolves competing inferences in favor of, not against, the judgment of guilt. So far, so good. On to the facts. Guilt turns on just when Steinke arrived at the probation office parking lot, because if it was an appreciable time before he went in, then he could well have been drinking up a storm in the parking lot; driving up his BAC without driving. And, remarkably, the circuit court apparently threw up its hands and said it couldn’t tell:

¶20      The circuit court here stated that Steinke could have arrived anytime between 9:00 a.m. and 1:30 p.m. We are uncertain of the court’s reasoning in finding Steinke guilty of the PAC charge, given this broad time frame. In particular, we are uncertain what the court believed the expert’s testimony established concerning Steinke’s PAC at any particular time before he was seen by Kaczmarek at the probation office shortly after 1:00 p.m. However, because our review is de novo, we conduct our own analysis of the testimony, bearing in mind that we are to draw all reasonable inferences from the evidence is favor of the determination of guilt.[6]

You can see clearly, then, how the nominally favorable independent-review regime works against the appellant in this instance: it allows the court of appeals simply to ignore the trier of fact’s assessment of the evidence. It’s not something that happens every day. The court of appeals might well be correct in its view that reasonable inferences support guilt, but drawing those inferences requires that the court turn a blind eye to demonstrable trier-of-fact confusion on the decisive factual issue. If that confusion doesn’t support reversal and new trial in the interest of justice, what would? True, Steinke doesn’t seem to have made that argument, but that wouldn’t prevent the court from granting that relief on its own, especially given its own express uncertainty about the trial court’s reasoning.

Waukesha County DH&HS v. Michelle P., 2009AP1087, District 2, 8/25/10

court of appeals decision (1-judge, not for publication); for Michelle P.: Eileen A. Hirsch, SPD , Madison Appellate

Authority of the local department to suspend visitation without judicial approval is an “interesting” issue, but one that need not be reached under these facts because the error if any was harmless:

¶11 We point out that, under Wis. Stat. § 805.18(2), circuit court findings may only be set aside if there is an error that has “affected the substantial rights of the party seeking to reverse.” For an error to affect the substantial rights of a party, there must be a reasonable possibility that the error contributed to the outcome of the proceeding. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶28, 246 Wis. 2d 1, 629 N.W.2d 768. Because visitation issues were not central to the termination of Michelle P.’s parental rights under § 48.415(2), and because she failed to complete so many conditions that shecould have completed without visitation, we agree with the trial court that, even assuming the denial of visitation was unlawful, it was harmless error.

court of appeals publication orders, 8/25/10

On Point posts from this list:

2010 WI App 103 State v. Walter Allison, Jr.

2010 WI App 104 State v. Esteban M. Gonzalez

2010 WI App 107 State v. Tarence A. Banks

2010 WI App 113 State v. Wendy A. Brown

2010 WI App 114 Titus Henderson v. Rick Raemisch

2010 WI App 118 State v. Hou Erik Vang

State v. Jesenia R., 2009AP2906, District 1, 8/24/10

court of appeals decision (1-judge, not for publication); for Jesenia R.: Mary D. Scholle, SPD, Milwaukee Appellate

No prejudice resulted from counsel’s failure to object to violation of the change-of-placement notice requirement in § 48.357. ¶¶15-16.

The background is a bit fact-intensive. Roughly: The child (Elizabeth) had been placed with a foster family, who moved to Idaho and took Elizabeth with them, while the TPR was pending. No one notified the circuit court of the move till well after the fact. Confronting the problem post hoc, the circuit court expressed concern about what was in effect “a unilateral suspension of visitation rights” under the CHIPS order, and a concomitant leveraging of the State’s position in the TPR. The circuit court ordered that the foster parents bring Elizabeth back for the TPR hearing, so Jesenia could have several hours of visitation — not much of a remedy, was it? — but there doesn’t seem to be much else the court could do, the damage had been done. Once Elizabeth was whisked away, Jesenia had no chance to get her back; she was deprived of meaningful visitation through no fault of her own. When it got around to reaching the actual disposition, the circuit court concluded that Elizabeth’s removal to Idaho nonetheless had not “significantly impacted” Jesenia’s ability to establish a substantial relationship. In what might be described as a notional exercise, the circuit court imagined that Jesenia had been afforded visitation: termination still was warranted, given Jesenia’s dismissal from a substance-abuse treatment program and her mental-health hospitalization as a suicide threat, while the TPR was pending, ¶11.

Jesenia argued on postcommitment motion that she was denied effective assistance by trial counsel’s failure to timely challenge the move to Idaho. The circuit court agreed that counsel performed deficiently, but ruled the outcome hadn’t been affected, now putting its notional exercise to service in a conclusion of no prejudice. The court of appeals doesn’t explicitly say whether it agrees as to deficient performance, but it certainly agrees on the question of prejudice. “Given the circuit court’s assumptions as to what Jesenia R. would have done if Elizabeth were not taken to Idaho, and its findings of fact relating to Jesenia R.’s history of neglect of Elizabeth and her own significant child-endangering personal and mental-health problems, we agree on our de novo review that Jesenia R. has not shown prejudice by her lawyer’s failure to timely object to the Idaho move,” ¶16.

Jesenia’s significant child-endangering personal and mental-health problems? Well, the circuit court posited exactly two events to support the idea she wouldn’t have taken advantage of visitation — dismissal from drug treatment and hospitalization. As to the former: the circuit noted the absence of any evidence of lack of sobriety, which drains this factor of meaning. As to her hospitalization: so what? The court, to be sure, is presented with a real dilemma.  But the court’s solution — to hypothecate a counter-factual world in which Jesenia did get visitation and nonetheless continued to stumble — is a bit too pat. “Historians approach counterfactual reasoning with enormous unease, and they do so with good reason. … (C)ounterfactual reasoning comes in two varieties—good and bad. The bad reasoning is bad because it has no grounding; it is merely an act of imagination, and unconstrained imagination at that. The good reasoning is good because it can be grounded.” This isn’t to say that the court’s counterfactual exercise in this instance was necessarily bad (or good), just that it was an exercise in counterfactual reasoning. Draw your own conclusion as to whether the process instills at least some, if not enormous, unease.

TPR – Ineffective Assistance – Prior Termination

Partial summary judgment was granted on the ground of a prior termination within the past 3 years. Default judgment was entered in the prior termination, which Jesenia challenges on the basis of ineffective assistance. The court agrees that counsel in that case performed deficiently — he acknowledged he wasn’t prepared for the “prove-up” hearing, which he thought was merely a status date — but holds that no prejudice resulted, because the record showed that she acquiesced in the default, and in any event she presents no viable defense to either grounds or disposition in that case, ¶20.

Whether a prior TPR can be challenged on an IAC theory as here is potentially precedential. The court “assume(s) without deciding that where the earlier termination is the predicate for a termination under Wis. Stat. § 48.415(10), the validity of that earlier termination is in play,” ¶20 n. 6.

TPR – Ineffective Assistance – Warnings

Failure to warn the parent that termination in one case could be used as a ground to terminate rights to another child isn’t a basis to challenge the subsequent termination; therefore, counsel wasn’t ineffective for not raising this argument. Winnebago County Department of Social Services v. Darrell A., 194 Wis. 2d 627, 644–645, 534 N.W.2d 907 (Ct. App 1995) (notice not required where it would be superfluous because the act underlying the notice couldn’t be undone), deemed controlling, ¶21.

TPR – Disposition, Exercise of Discretion

The trial court fully considered all the factors in § 48.426, and properly exercised discretion in terminating parental rights, ¶22.

State v. Kurt D. Schmidt, 2010AP551-CR, District 3, 8/24/10

court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; BiC; Resp.; Reply

Conviction for disorderly conduct was established by evidence that Schmidt, following a contentious divorce, left messages on his ex-wife’s answering machine cautioning her “to question (her) own personal assurance and insurance,” and falsely reporting that her stepmother had died.

¶9 Schmidt claims his conduct does not fall within the statute’s ambit for three reasons. First, he claims the messages were not the type that cause or provoke a disturbance. In State v. Schwebke, 2002 WI 55, ¶25, 253 Wis. 2d 1, 644 N.W.2d 666, a defendant who anonymously sent disturbing mailings to several people raised a similar argument, which our supreme court rejected. The court concluded the mailings “constituted conduct that not only caused disturbances to the lives of the recipients, but … was of the type that would be disruptive to peace and good order in the community.” Id., ¶32. The messages here were of a similar nature, badly frightening Landin and her children. Schmidt’s conduct also affected friends and relatives, as one daughter wanted to leave and had a friend pick her up. Landin’s father also spent the night at Landin’s house.

¶10 Schmidt next argues the evidence was insufficient because “the messages never threatened to disrupt the peace, order, or safety of the community.” Conduct that causes a purely private disturbance is nonetheless prohibited if there is some risk that the disturbance will spill over into the public. Id., ¶31. Although directed solely at Landin, Schmidt’s messages caused fear in both Landin and her children. The messages included false statements about others, including allegations that Landin had caused her stepmother’s death. Further, the messages were antagonizing enough that Landin felt she needed to involve the police. Based on this evidence, a reasonable trier of fact could conclude Schmidt’s conduct caused, or created a risk of, a public disturbance.

¶11 Schmidt’s third and final sufficiency-of-the-evidence argument is that the messages would offend only a “hypercritical” individual described in Zwicker. Schmidt paints a portrait of Landin as paranoid and unreasonable, but the facts established at trial do not support this characterization. The obvious emotional turmoil of the divorce aside, there was no evidence Landin or her daughters were overly sensitive. Regardless, a reasonable person of ordinary temperament could view the messages as abusive, disturbing, and—given their length and tone—ultimately threatening.

Quoted at length so you can judge for yourself whether the case was thin. It doesn’t appear to take much to criminalize boorish, obnoxious behavior. On the other hand, much the same could be said about Schwebke, whose message the court is merely following here.