COURT OF APPEALS DECISION DATED AND FILED March 30, 2010 David
R. Schanker Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Terence Deandrea Casey, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 PER CURIAM. Terence Deandrea Casey appeals from a judgment of conviction, entered upon a jury’s verdict, on two counts of first-degree sexual assault of a child and two counts of second-degree sexual assault of a child. Casey also appeals from an order denying his motion for postconviction relief, asserting that trial counsel was ineffective for failing to seek severance of the fourth count, which involved a different victim than the first three counts, and that the trial court erred in exercising its sentencing discretion. We conclude that severance would not have been granted, so trial counsel was not ineffective for failing to seek it, and that the trial court properly exercised sentencing discretion. We therefore affirm the judgment and order.
Background
¶2 A criminal complaint filed in 2006 charged Casey with four counts of sexual assault. These were: (1) one count of first-degree sexual assault of a child for an act of finger-to-vagina sexual intercourse with victim Keywaunda H., before she had reached age thirteen for an incident occurring between July 6, 2001, and June 30, 2002; (2) one count of second-degree sexual assault of a child for an act of penis-to-vagina intercourse with Keywaunda H., before she had reached age sixteen, for an incident between June 3, 2002, and September 1, 2002; (3) one count of second-degree sexual assault of a child, for an act of mouth-to-vagina intercourse with Keywaunda H., before she had reached age 16, for an incident between September 1, 2002, and June 30, 2003; and (4) one count of first-degree sexual assault of a child for an act of finger-to-vagina sexual contact with victim Miracle S., before she had reached age 13, for an incident between May 5, 2004, and December 27, 2004.
¶3 The case was tried to a jury, which convicted Casey on all four counts. The trial court sentenced Casey to fifteen years’ initial confinement and five years’ extended supervision on each of the first-degree counts, and ten years’ initial confinement and five years’ extended supervision on each of the second-degree counts. All four sentences were set to run consecutively, resulting in a total of fifty years’ initial confinement and twenty years’ extended supervision. The court also imposed a $1,000 fine on the first count.
¶4 Casey filed a postconviction motion seeking a new trial or, alternatively, resentencing. In seeking a new trial, Casey alleged counsel was ineffective for failing to seek severance of count four, involving Miracle S., from the three counts involving Keywaunda H. Casey alternatively sought resentencing on the grounds that the trial court failed to properly explain the sentence and failed to consider the applicable sentencing guidelines. The trial court denied the motion after briefing but without a hearing, ruling that evidence regarding the fourth count would have been admissible “other acts” evidence in a trial on the first three counts, so counsel was not ineffective in failing to seek severance. Regarding resentencing, the court stated it had adequately considered the relevant factors and that, although it had not so stated at sentencing, it considered the guidelines.[1]
Discussion
I. Ineffective Assistance of Counsel
A. Standard of Review
¶5 A defendant claiming ineffective assistance of counsel must
show that counsel’s performance was deficient and that the deficiency
prejudiced the defense. State
v. Jeannie M.P., 2005 WI App 183, ¶6, 286
¶6 To prove deficient performance, a defendant must establish
that his or her attorney made errors so serious that the lawyer was not
performing as constitutionally guaranteed counsel.
¶7 Casey alleges counsel was ineffective for failing to seek severance of count four, which Casey asserts would have been granted because of misjoinder or prejudice. The trial court, ruling on the postconviction motion, stated it “would have denied a motion to sever had trial counsel raised the issue.”
B. Severance Based on Misjoinder
¶8 Before counts can be severed, they must first have been
joined. Wisconsin Stat. § 971.12(1) (2007-08)[2]
states, in part, that two or more crimes “may be charged in the same complaint
… in a separate count for each crime if the crimes charged … are of the same or
similar character or are based on the same act or transaction or on two or more
acts or transactions connected together or constitute parts of a common scheme
or plan.” Whether crimes are properly joined
in a complaint is a question of law. State
v. Hoffman, 106
¶9 Crimes are not of the same character merely because they
constitute violations of the same statute.
¶10 We conclude the charges were properly joined in the complaint
because Wis. Stat. § 971.12(1)
is to be liberally construed in favor of initial joinder. Hoffman, 106
C. Severance Due to Prejudice
¶11 Although Wis. Stat. § 971.12(1) is liberally construed in favor of initial joinder, relief may still be had if the otherwise proper joinder appears prejudicial. Under § 971.12(3), if a defendant appears prejudiced by joinder, “the court may order separate trials of counts … or provide whatever other relief justice requires.” Casey asserts he was prejudiced by “the cumulative effect of the evidence and commingling of the charges” and counsel was thus ineffective for failing to move for severance on the basis of prejudice.
¶12 A motion for severance is committed to the trial court’s
discretion. Locke, 177
¶13 “Some” prejudice is insufficient to justify severance, as any
joinder is likely to involve some prejudice.
See Hoffman, 106
¶14 Wisconsin Stat. § 904.04(2)
prohibits admission of “other crimes, wrongs, or acts … to prove the character
of a person in order to show that the person acted in conformity therewith.” The admissibility of “other acts” evidence
under § 904.04(2) is governed by a three-step analytical framework.
¶15 Also at play when we conduct the Sullivan analysis is the “greater
latitude rule.” See State v. Davidson, 2000 WI 91, ¶51, 236
¶16 Here, the question we must address is whether the trial court properly concluded evidence of the assault against Miracle S., including her testimony, would have been properly admitted as other acts evidence in a trial of the assaults against Keywaunda H.
1. Acceptable Purpose
¶17 The first step in the Sullivan analysis is to determine whether
the other acts evidence would be admissible for an acceptable purpose under Wis. Stat. § 904.04(2), including
“proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.”
While the statute provides several examples of acceptable purposes, the
list is not exclusive or exhaustive. See State v. Hunt, 2003 WI 81, ¶54, 263
¶18 Casey asserts that: (1) intent was never in dispute, so evidence of Keywaunda H.’s assaults is not relevant to Miracle S.’s case; (2) none of the evidence was relevant to a “plan”; (3) the evidence was not probative as to motive; and (4) dissimilarities defeat any notion of a modus operandi. However, we agree with the State that evidence of the assault against Miracle S. was admissible for showing a common design as to the assaults on Keywaunda H.—in essence, for showing Casey’s modus operandi.
¶19 As noted in the joinder discussion, the assaults involved
grade-school-aged girls, assaulted in their homes while other adults who
resided in the home were absent. Casey
occupied a position of authority and trust as to each girl—he was a father
figure to Keywaunda H., and he is Miracle S.’s father. The first assault of Keywaunda H., like the
assault on Miracle S., involved finger-to-vagina contact; in all of the
assaults, Casey removed the girls’ clothes himself. Because of the common elements and in view of
the greater latitude rule, we agree that the evidence as to Miracle S. was
admissible for a proper purpose as to Keywaunda H. See Davidson, 236
¶20 We note that we also agree with the State that the evidence was appropriately offered for the purpose of rebutting Casey’s defense theory that the mothers of both victims had their daughters fabricate a story as revenge for disputes with Casey; and to prove absence of mistakes or accident, even though Casey denied assaulting the girls at all. See id., ¶64 n.13 (disproving defense theory); United States v. Best, 250 F.3d 1084, 1092 n.3 (7th Cir. 2001) (absence of mistake/accident).
2. Relevancy
¶21 The second prong to the Sullivan analysis is to determine whether
the proffered evidence is relevant as defined by Wis. Stat. § 904.01, which defines relevant evidence as
“evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Put
another way, the evidence must “relate[] to a fact or proposition that is of
consequence to the determination of the action” and must have probative value,
“a tendency to make the consequential fact or proposition more probable or less
probable than it would be without the evidence.” Sullivan, 216
¶22 In the trial court, the State argued that the similarities
between the two girls’ assaults “make the consequential facts at bar more
probable[,]” based on “the improbability of a like result being repeated by
mere chance …. The stronger the
similarity between the other acts and the charged offense, the greater will be
the probability that the like result was not repeated by mere chance or
coincidence.”
3. Probative Value v. Unfair Prejudice
¶23 The third admissibility prong for other acts evidence asks whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, or confusion of the issues. See Wis. Stat. § 904.03.
Unfair prejudice results when the proffered evidence has a tendency to influence the outcome by improper means or if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case.
Sullivan, 216
¶24 First, a proper cautionary instruction was given to the
jury. Cautionary instructions help limit
the risk of unfair prejudice that can result from other acts evidence. Davidson, 236
D. Summary
¶25 The cases were appropriately joined in the complaint, so any
motion for severance due to misjoinder would have been unsuccessful. Evidence of Miracle S.’s assault was properly
admissible in Keywaunda H.’s case, so any motion for severance based on unfair
prejudice would have been denied. Therefore,
counsel was not ineffective for failing to seek severance of the fourth
count. See State v. Harvey, 139
II. Trial Court’s Sentencing
Discretion
¶26 Casey was sentenced to a total of fifty years’ initial confinement and twenty years’ extended supervision. He was also ordered to pay a $1,000 fine, with 120 days’ jail time if the fine remained unpaid at the end of his extended supervision. Casey argues that the trial court failed to adequately explain the sentence.
¶27 Sentencing is committed to the trial court’s discretion. State
v. Gallion, 2004 WI 42, ¶17, 270
¶28 In explaining a sentence, the court must identify relevant
factors it considered. The three primary
factors to be considered are the gravity of the offense, the character of the offender,
and the need to protect the public. State
v. Berggren, 2009 WI App 82, ¶40, 320
¶29 Casey’s complaints about his sentence are as follows: (1) because the sentence exceeds his life expectancy,[6] it is a life sentence; (2) the court failed to explain the general range of the sentence; (3) the court failed to identify objectives of greatest importance; (4) the court failed to explain why a life sentence was the minimum necessary consistent with the sentencing objectives; and (5) the court failed to explain why consecutive sentences were chosen. The postconviction court stated it had adequately considered the sentencing factors without discussing any other claimed errors.
¶30 Casey first seems to suggest that a sentence operating as a
life sentence is somehow subject to heightened scrutiny. See
State
v. Hall, 2002 WI App 108, ¶18, 255 Wis. 2d 662, 648 N.W.2d 41
(“The long length of Hall’s [304-year] sentence renders it meaningless.”). However, the Hall court did not accept
Hall’s argument that such a sentencing was per
se unreasonable.
¶31 Further, Hall did not establish a procedural requirement
that a sentencing court separately articulate why it imposed consecutive,
instead of concurrent, sentences. See Berggren, 320
¶32 The trial court’s “exercise of discretion does not lend itself
to mathematical precision .… We do
expect, however, an explanation for the general range of sentence
imposed.” Gallion, 270
¶33 The court was critical of Casey’s “despicable” and “disgusting” conduct “with young ladies at that stage of their life … because they’re so impressionable and they’re just coming into young womanhood.” The court explained, “it’s a very, very difficult thing for [these girls] to come to grips with, particularly when it involves a breach of trust” and noted how difficult it had been for Keywaunda H. and Miracle S. to testify at trial. The court further commented, “[T]hat’s really what this is all about. We never want to put these kids back in that predicament.”
¶34 The court went on to observe that it was not unusual that Casey maintained his innocence, but the lack of “necessary remorse” made it difficult for both Casey and his victims to recover. The court further observed that Casey, who told the presentence investigation report author that he had had more than one hundred sexual partners, seemed to use his “multiple arrangements with different women” to mask “some kind of underlying thing that you want some fresh, viriginistic type of girl or whatever else is bizarre going on there[,]” a mindset for which the court hoped Casey would get treatment.
¶35 Ultimately, the court imposed a total of seventy years’
imprisonment out of a total 180 years’ exposure and a $1,000 fine where up to $20,000
could have been imposed. Casey’s sentence
is well within the statutorily permitted maximums and is not so disproportionate
to his offenses as to shock the sentiment of reasonable people. See
Berggren,
320
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Casey does not re-raise the sentencing guidelines issue on appeal.
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] Because
of the trial court’s abbreviated analysis, we search the record for reasons to
sustain the court’s evidentiary rulings.
[4] The
State is incorrect that evidence of the assault on Miracle S. was relevant to
intent on counts two and three, the second-degree charges involving Keywaunda
H. The State asserts that evidence of
the assault against Miracle S. “tended to prove the element … necessary to
establish second-degree sexual assault … that Casey intentionally touched
[Keywaunda H.] for the purpose of becoming sexually aroused or gratified.” However, such intent was not an element of
any charges involving Keywaunda H., as arousal and/or gratification are not
elements where sexual intercourse is charged, only where sexual contact is
alleged.
[5] Both victims testified at trial.
[6] Casey’s statistical life expectancy is apparently 61.7 years; he will not be eligible for extended supervision until he is 81 years old.
[7] Casey does not appear to be challenging the fact that a fine was imposed; rather, he simply seeks to use its imposition as evidence of an overall lack of reasoning for the entire sentence. We therefore decline to address the fine in any other context.