COURT OF APPEALS DECISION DATED AND RELEASED FEBRUARY 4, 1997 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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This opinion is subject to
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No. 96-2276-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DANNY W. FILTER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Shawano County:
THOMAS G. GROVER, Judge. Affirmed
in part; reversed in part, and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Danny Filter appeals a judgment of
conviction for second-degree sexual assault of a child, contrary to §
948.02(2), Stats., obstructing an
officer, contrary to § 946.41(1), Stats.,
and manufacturing marijuana, contrary to § 161.41(1)(h)1, Stats., all as a repeater, and two
counts of selling alcohol to a minor, contrary to § 125.07(1)(a)1, Stats.
Filter argues that the trial court's refusal to grant a separate trial
on the drug charge violated § 971.12(1) or (3), Stats., and his constitutional right to a fair trial.[1]
The State concedes that
the trial court erred by permitting the drug charge to be joined with the other
four counts for trial, but argues that the error was harmless. We agree that the court erred. However, we conclude that the improper
joinder of the sexual assault charge with the other charges resulted in
prejudice to Filter. Because the
evidence on the obstructing, drug, and alcohol charges was overwhelming, we
affirm those convictions but remand for a new trial on the sexual assault
charge.
On September 1, 1995,
Michael A., his daughter Erika A., age thirteen, and her thirteen-year-old
friend Sasha K., arrived for the weekend at the larger of two cottages on
Michael's lake property. Filter rented
the smaller cottage on the property.
Late that evening, Michael and Filter left the girls at Michael's
cottage and went to a bar. Erika and
Sasha testified that as the men left, Filter told them that they could have the
beer in his cottage. Each of the girls
drank some beer. Filter later returned
to Michael's cottage and gave them another six-pack of beer.
Michael returned after
bar time and fell asleep in his room, adjacent to the room in which the girls
shared a bed. A short while later,
Filter tapped on the bedroom window and asked the girls to bring the beer to
the pontoon boat docked in front of Michael's cottage. The girls drank more beer on the boat. They sat and talked with Filter, and Filter
kissed Erika. The girls returned to
Michael's cottage and went back to sleep.
Sasha testified that
about fifteen or twenty minutes later, Filter came into the room and sat on the
edge of the bed. He touched Sasha's
vagina over her underpants and touched her breasts. She scratched his lip when he tried to kiss her. Erika testified that she did not witness the
touching, but saw Filter sitting on the bed.
Both girls testified that Filter then stepped out onto the porch and
returned in a few minutes to the foot of the bed, where he sat and rubbed their
feet and ankles.
Sasha pretended to be ill
and asked Erika to go to the bathroom with her. Erika testified at trial that Sasha told her that Filter touched
her breasts and had his hand under her shorts.
The girls then went into Michael's bedroom, but did not wake him. They took the dog outside and went for a
walk. When they returned to the
cottage, they saw Filter standing by his car and spoke with him before going
back inside. They did not tell Michael
about the alleged assault. However,
Sasha told her mother about it several days later and they reported it to the
police.
Filter was arrested for
the sexual assault on September 15, 1996.
He was charged with obstructing an officer because he gave a false name
to the police during questioning. The
evidence was uncontradicted that Filter initially identified himself to the
officer as Matthew Gulzcynski instead of Danny Filter, and admitted furnishing
beer to the girls. Filter gave a
statement, in which he admitted providing the girls with beer, drinking with
them on the boat, and kissing Erika. He
said that when he went into their room to wake them up, he nudged Sasha's
shoulder, but denied any other touching.
Filter did not testify at trial, but his statement was admitted.
On September 16, 1995,
while Filter was in custody, Michael told the police that he found marijuana
plants growing in a closet of the cottage Filter rented. The police conducted a search and found five
marijuana plants and a pipe. An officer
testified that when he questioned Filter about the plants, Filter admitted they
were his.
The
court denied Filter's motion to sever the drug charge from the other
charges. Filter was tried on all five
counts in a single trial, and the jury found him guilty of sexual assault,
obstructing an officer, and manufacturing marijuana. The court found him guilty of the two alcohol offenses.[2] He now appeals the judgment of conviction on
all charges.
The issue on appeal is
whether the trial court's refusal to grant a separate trial on the drug charge
violated § 971.12(1), Stats., and
his constitutional right to a fair trial.
Whether charges were properly joined is a question of law that we review
de novo. State v. Locke,
177 Wis.2d 590, 596, 502 N.W.2d 891, 894 (Ct. App. 1993). The first step in our review of joinder
issues is to consider whether the joinder of charges was appropriate. Id.
The joinder of charges
is appropriate only if the crimes "are of the same or similar character or
are based on the same act or transaction or on 2 or more acts or transactions
connected together or constituting parts of a common scheme or plan." Section 971.12(1), Stats. Crimes are of
the same or similar character if they are "the same type of offenses
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, 588 (Ct. App. 1988).
In order to be connected
or to constitute parts of a common scheme or plan, "the crimes charged
[must] have a common factor or factors of substantial factual importance, e.g.,
time, place or modus operandi, so that the evidence of each crime is relevant
to establish a common scheme or plan that tends to establish the identity of
the perpetrator." Francis v.
State, 86 Wis.2d 554, 560, 273 N.W.2d 310, 313 (1979). The State concedes that the court erred when
permitted the drug charge to be joined with the other four counts for
trial. Because we are satisfied that
the drug charge was an entirely separate and unrelated offense to the other
charged offenses, we agree that the court erred when it denied severance of the
charges.
Next, we must consider
whether the trial court's refusal to grant a separate trial on the drug charge
resulted in prejudice to Filter.
According to our supreme court, "if the offenses do not meet the
criteria for joinder, it is presumed that the defendant will be prejudiced by a
joint trial. The state may rebut the
presumption on appeal by demonstrating the defendant has not been prejudiced by
a joint trial." State v.
Leach, 124 Wis.2d 648, 669, 370 N.W.2d 240, 251 (1985). If the state shows that "there is no
reasonable possibility that the error contributed to the conviction of the
defendant as to any of the separate charges," the court's error is
harmless. Id. at 674, 370
N.W.2d at 254.
The determination
whether joinder causes prejudice is significant for two reasons. The jury may not be able to separate the
evidence relevant to each offense, or the jury may infer that the defendant has
a predisposition to commit crimes because he or she is accused of several
crimes. Id. at 672-73,
370 N.W.2d at 253. However, misjoinder
may be harmless if the charges are "logically, factually and legally
distinct, so that the jury does not become confused about which evidence
relates to which crime," or there is overwhelming evidence that the
defendant is guilty of each offense. Id.
at 672, 370 N.W.2d at 253.
The State argues that
misjoinder was harmless because the evidence of the drug charge was presented
separately from the evidence of the other charges, the court instructed the
jury to consider each crime separately, and the evidence of guilt as to each
charge was overwhelming. We disagree. First, because the jury heard testimony from
eleven witnesses regarding different occurrences at each of the cottages on the
lake property on September 1, 15, and 16, 1995, it may have been difficult to
separate the evidence relevant to the drug charge from the evidence relevant to
other charges. One witness testified to
facts relevant to both the drug and other charges.
More significantly, the
jury may have perceived Filter as a person predisposed to criminal activity
because he was charged with five offenses, including the drug charge. The misjoinder of a drug charge, because of
the nature of that charge, may be especially prejudicial to the defendant. See United States v. Terry,
911 F.2d 272, 277 (9th Cir. 1990). The
risk that the jury "will cumulate the evidence of the crimes charged and
find guilt when it otherwise would not if the crimes were separately
tried" is particularly strong here because the evidence of the drug charge
was overwhelming. See State v.
Bettinger, 100 Wis.2d 691, 696-97, 303 N.W.2d 585, 588 (1981).
Whereas the parties
concede that the evidence of guilt as to the drug charge was overwhelming, the
evidence as to the sexual assault charge was not. There was no physical evidence of the assault, Filter denied any sexual
contact with Sasha, and there were no independent witnesses to the alleged
touching. The girls did not wake
Michael to tell him about the assault, and did not report it to the police
until days later. Although this
evidence may have been sufficient to support a finding of guilt, we conclude
that it was not overwhelming and, therefore, not harmless error.
The State is correct to
point out that the jury was properly instructed to consider the charges
separately, in accordance with Wis J
I—Criminal 484. See Leach,
124 Wis.2d at 673, 370 N.W.2d at 253.
In Leach, our supreme court decided: "Only cynicism would suggest this
instruction was disregarded by the jury since the proof of the defendant's
guilt as to each crime was overwhelming as proven by separate
evidence." Id. Unlike the circumstances in Leach,
however, the evidence regarding Filter's guilt was not overwhelming as to each
offense. We are not persuaded that the
cautionary instruction, in and of itself, eliminated the reasonable possibility
that the misjoinder contributed to Filter's conviction on any of the separate
charges.
We conclude that the
court erred when it permitted the drug charge to be tried with the other
charges against Filter. However,
because the evidence of guilt on the obstructing, drug, and alcohol charges was
overwhelming, we affirm those convictions.
As to the sexual assault charge, we reverse and remand for retrial.
By the Court.—Judgment
affirmed in part; reversed in part, and cause remanded with directions.
Not recommended for
publication in the official reports.
[1] We do not address § 971.12(3), Stats., because we conclude that the initial joinder was inappropriate. See State v. Locke, 177 Wis.2d 590, 597, 502 N.W.2d 891, 894 (Ct. App. 1993) ("Section 971.12(3) provides that even after initial joinder, the court may order separate trials of the charges if it appears that a defendant is prejudiced by a joinder of the counts.").