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COURT OF APPEALS
DECISION
DATED AND FILED
September 16, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Otis Leo Moore,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: JOSEPH
R. WALL and Jeffrey A. Wagner, Judges. Affirmed.
Before Fine, Kessler, JJ., and Daniel L. LaRocque, Reserve
Judge.
¶1 FINE, J. Otis Leo Moore appeals a judgment
entered after a jury found him guilty of two counts of first-degree sexual
assault of a child, see Wis. Stat. §
948.02(1), and an order denying his postconviction motion. Moore claims that: (1) he was denied the right to an impartial
jury; (2) the trial court erred in admitting expert testimony about why
children delay in reporting sexual assaults; (3) the expert improperly
gave her opinion on whether the victims were telling the truth; (4) the
prosecutor improperly told the jury during closing arguments that Moore made
delayed reporting an issue; and (5) there was insufficient evidence to
support the jury verdicts. We affirm.
I.
¶2 Moore
was charged with sexually assaulting his daughter, Janice M., and his stepdaughter,
Linda A. Janice M. and Linda A. reported
the assaults after a delay of approximately ten and twenty years, respectively. Before Moore’s
trial, the State notified the trial court and Moore’s lawyer that it intended to introduce expert
testimony on why some child sexual-assault victims do not immediately report
the assaults. Moore’s lawyer did not object.
¶3 During voir dire, a
potential juror asked the prosecutor when Janice M. and Linda A. had
reported the assaults. The prosecutor
told the panel that they had reported the assaults approximately one year
before the trial, but indicated that the assaults happened some ten years earlier. The potential juror then said that the delay
made the case “kind of weak.” The
prosecutor asked if other members of the venire panel had the same
opinion. One responded that he believed
that the delay might cause “[s]ome of the details [to] get foggy,” but said that
he would listen to the testimony and evaluate the witnesses’ credibility. Although the trial court told Moore’s lawyer that “[t]here
is absolutely no limit on … your questions,” the lawyer did not ask the venire
panel any questions about delayed reporting.
¶4 Janice M. was sixteen when she testified. She told the jury that Moore had sexually assaulted her many times when
she was seven or eight. According to Janice
M., she did not tell anyone because she “just didn’t know what to say to
anybody, and [Moore]
told me that I shouldn’t, ‘cause I wouldn’t want him to get in trouble.” Janice M. testified that when she was fifteen,
however, she told a counselor at her high school about the assaults. At her counselor’s urging, she then told her
mother, who called the police. On
cross-examination, Moore’s
lawyer asked Janice M. about her failure to contemporaneously tell anyone about
the assaults. The lawyer asked Janice M.
whether she had made up the accusations so that she would not get in trouble
with her mother, who had previously confronted her about being sexually
active. Janice M. told the jury that she
was telling the truth.
¶5 Linda A. was twenty-five when she testified. She told the jury that Moore had sexually assaulted her many times when
she was between five and six. Linda A.
testified that she did not contemporaneously tell anyone about the assaults
because she was scared of Moore. According to Linda A., Moore said that if she ever told anyone, he
would kill her, her mother, and her brother.
Linda A. also testified that when she was twelve or thirteen she
told a friend that Moore
had sexually assaulted her. She also
said that when she was sixteen she told an aunt, and when she was nineteen she
told her mother. On cross-examination, Moore’s lawyer got Linda
A. to admit that she did not contemporaneously reveal the assaults to her teachers
or any of her childhood doctors. The
lawyer asked Linda A. if she “only came forward with these allegations … to
back up what [her] sister was saying.”
Linda A. answered “no,” and told the jury that she came forward because
she was unhappy about what had happened to her sister and she knew that what Moore had done was
wrong.
¶6 Elizabeth Ghilardi, a social worker and a specialist on the
behavior of sexually-abused children, testified that it is not unusual for
children to delay reporting sexual abuse.
Ghilardi told the jury that it is often difficult for children to
disclose the abuse for a number of reasons:
Often, if this is someone close to the child or is
actually in the child’s home … they feel that they can’t tell, because that
person is right there. It may be someone
that they love and care about or provide -- who provides positive interactions
with them as well. They often are
fearful if there’s violence in the home or something negative going on…. [T]hey may not understand that it’s wrong or
the degree to that it’s wrong as in an adult world, and they … often don’t have
the experience or the language to really be able to explain what is happening,
or to put it in some kind of context.
Ghilardi further
explained that threats also tend to discourage disclosure: “If a perpetrator would threaten a child
overtly, tell them that something bad was going to happen to them, that often
is a reason that children won’t tell or won’t tell for a long time.” Ghilardi also testified that “very frequently
[child sexual-assault victims] don’t tell everything all at once,” but reveal “over
time, in bits and pieces.” Contrary to
the contention implicit in Moore’s argument, Ghilardi
did not opine whether in her view either Janice M. or Linda A. were
telling the truth when they said that Moore
had sexually assaulted them.
¶7 Moore
testified and denied assaulting Janice M. and Linda A. He told the jury that their mother was
“bitter” and blamed him for problems in their relationship.
¶8 During summation, Moore’s
lawyer argued that the failure of Janice M. and Linda A. to
contemporaneously complain about the assaults undercut their veracity. He contended that Janice M. and Linda A.’s
mother convinced them to falsely accuse Moore
because she was angry at him. He also
argued that it was essentially the word of Janice M. and Linda A. and
their mother against Moore’s
word:
You have no physical evidence at all. Not one speck of physical evidence, not
one. You
don’t have any non-family member, you don’t have any family member, aside
from [Janice M. and Linda A.’s mother], coming
forward and saying, “Yes, we recognized that this was happening. Yeah, these
girls told us what was happening.
(Emphasis
added.) Moore’s trial lawyer also reprised the
failure of Janice M. and Linda A. to contemporaneously report the
assaults: “Maybe they delayed in
reporting, maybe they didn’t. They didn’t report it for a long time,
but maybe kids do that, maybe they don’t.
Is there some sort of motive or reason why they didn’t do it when it happened? There is.”
(Emphasis added.) As we have
seen, Moore’s lawyer blamed the mother of Janice M.
and Linda A. for his predicament.
¶9 In her rebuttal summation, the prosecutor said that Moore was “making an issue about the fact that Janice
[M.] and Linda [A.] waited so many years to report this.” She reminded the jury that Janice M. and
Linda A. “testified that they thought they would be killed,” if they told
anyone about what Moore had done to them and pointed
to Ghilardi’s testimony, that “it’s very common that … sexual assault victims …
don’t tell anyone.” Moore’s
lawyer did not object to the prosecutor’s comments.
II.
¶10 As we have seen, other than Moore’s contention that there was
insufficient evidence to support the jury’s verdicts, Moore’s complaints on
appeal concern the alleged inability of Moore’s trial lawyer to explore during voir dire potential juror bias, the
trial court’s admission of Ghilardi’s testimony, and the prosecutor’s rebuttal
summation comment that Moore had made an issue of the failure by Janice M.
and Linda A. to contemporaneously report the assaults. As we have also seen, however, Moore’s trial lawyer did not object to any of these
matters, and thus we review his appellate complaints about these unobjected-to
matters in an ineffective-assistance-of-counsel context. See Kimmelman
v. Morrison, 477 U.S. 365, 375 (1986)
(unobjected-to error must be analyzed under ineffective-assistance-of-counsel
standards, even when error is of constitutional dimension); State
v. Williams, 2000 WI App 123, ¶21, 237 Wis. 2d 591, 606, 614 N.W.2d 11,
19 (trial lawyer’s failure to object or further question potential juror during
voir dire reviewed as
ineffective-assistance-of-counsel claim).
¶11 A defendant claiming ineffective assistance of counsel must
establish that: (1) the lawyer was
deficient; and (2) the defendant suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
To satisfy the prejudice aspect of Strickland, the defendant must
demonstrate that the lawyer’s errors were sufficiently serious to deprive him
or her of a fair trial and a reliable outcome, ibid., and “must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome,” id., 466 U.S. at 694. We
need not address both aspects if the defendant fails to make a sufficient
showing on either one. Id.,
466 U.S. at 697.
¶12 First, Moore contends that he was denied the right to an
impartial jury because neither the trial court nor the prosecutor introduced
Ghilardi to the panel as an expert witness on delayed reporting and that therefore
his trial lawyer was, according to Moore’s argument on appeal, not able to explore
either Ghilardi’s qualifications or any juror bias on the delayed-reporting issue. We disagree.
As we have seen, the State told Moore’s
lawyer that it intended to call an expert on delayed reporting and Moore’s lawyer was given unfettered opportunity to
question the jurors during voir dire. Accordingly, Moore
must show that he was prejudiced. He has
not done so.
¶13 During voir dire,
the trial court read Ghilardi’s name to the panel. None of the potential jurors recognized it. Moreover, as we have seen, the prosecutor explained
on voir dire that neither
Janice M. nor Linda A. reported the assaults contemporaneously, and asked the
potential jurors if this would affect their ability to evaluate Janice M. and
Linda A.’s credibility. None of the
potential jurors indicated that it would. See State v. Migliorino, 150 Wis. 2d 513, 537, 442 N.W.2d 36, 46 (1989) (“[g]eneral
questions” about abortion sufficient to establish whether prospective jurors
could remain impartial). Moore has submitted nothing to show that any potential
juror knew Ghilardi or was biased one way or the other regarding delayed
reporting. See State v. Louis, 156 Wis. 2d 470, 478, 457 N.W.2d 484, 487 (1990) (prospective
jurors presumed impartial and challenger has burden of proving bias).
¶14 Second, Moore contends that the
trial court erred when it admitted Ghilardi’s testimony about why some children
do not contemporaneously report having been sexually assaulted. As noted, Moore’s
trial lawyer did not object at trial to the admission of this evidence, and
thus, under the Strickland analysis, Moore
must show that he was prejudiced as a result.
¶15 Admission of evidence is vested in the trial court’s reasoned
discretion. State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30, 36 (1998). “An appellate
court will sustain an evidentiary ruling if it finds that the circuit court
examined the relevant facts; applied a proper standard of law; and using a
demonstrative rational process, reached a conclusion that a reasonable judge
could reach.” Id., 216 Wis. 2d at 780–781, 576 N.W.2d at 36. Wisconsin Stat. Rule 907.02 provides: “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise.” Ghilardi’s
testimony clearly was admissible under this rule. Contrary to Moore’s
contention on appeal, Ghilardi did not invade the province of the jury by
assessing the credibility or veracity of either Janice M. or Linda A. See State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673, 676 (Ct. App. 1984) (Witness
may not testify “that another mentally and physically competent witness is
telling the truth.”). Accordingly, Moore has
not shown prejudice. See State
v. Huntington, 216 Wis. 2d 671, 698,
575 N.W.2d 268, 279 (1998) (expert’s opinion that child’s delayed reporting was
consistent with what is expected in child sexual-abuse cases not inadmissible
comment on victim’s credibility).
¶16 Third, Moore contends that the prosecutor improperly told the
jury in her rebuttal closing argument that Moore made delayed reporting an
issue at trial. As noted, his trial
lawyer did not object. Moore
has not shown that he was prejudiced because it is evident that Janice M. and
Linda A.’s failure to contemporaneously report the assaults was a matter that Moore
contended showed that the assaults did not happen. Thus, Moore
has not shown that he was prejudiced by his trial lawyer’s failure to object to
the prosecutor’s comment during her rebuttal summation.
¶17 Finally, Moore claims that the
evidence is insufficient to support the jury verdicts. We disagree.
¶18 When reviewing the sufficiency of the evidence, we will reverse
a conviction only if “the evidence, viewed most favorably to the state and the
conviction, is so insufficient in probative value and force that it can be said
as a matter of law that no trier of fact, acting reasonably, could have found
guilt beyond a reasonable doubt.” State
v. Poellinger, 153 Wis. 2d 493, 501,
451 N.W.2d 752, 755 (1990). Moore purports to recognize this standard that governs
our review because he does not claim that Janice M. and Linda A.’s testimony
did not support the elements of first-degree sexual assault of a child. Rather, he contends that Janice M. and Linda
A.’s testimony was facially incredible. This
is a non-starter.
¶19 The jury is the sole judge of the credibility of the witnesses
and the weight to be given to their testimony. State v. Daniels, 117 Wis. 2d 9, 17, 343 N.W.2d 411, 415 (Ct. App. 1983). We will not substitute our judgment for the
jury’s unless the jury relied on evidence that is inherently or patently
incredible. Id.,
117 Wis. 2d at 17, 343 N.W.2d at 415–416. That is not the situation here. There was more than enough evidence upon which
the jury could reasonably rely to support the verdicts.
By the Court.—Judgment and order affirmed.
Publication in the
official reports is not recommended.