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COURT OF APPEALS DECISION DATED AND RELEASED December 26, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1851-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent.
v.
MICHAEL L. SELLERS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
ROBERT O. WEISEL, Reserve Judge.
Affirmed.
WEDEMEYER, P.J.[1] Michael L. Sellers appeals from a judgment
entered after a jury convicted him of one count of battery, contrary to
§ 940.19(1), Stats. He claims that the trial court erred in
joining two separate battery complaints for one trial. Because the trial court did not err in
joining the two separate battery counts for one trial, this court affirms.
I. BACKGROUND
Sellers was charged with
two counts of battery in separate complaints.
The first charge stemmed from an incident that occurred on
August 29, 1993. Sellers's
girlfriend, Debra Bates, alleged that he “slapped and choked her, causing
pain.” The second charge stemmed from
an incident that occurred eight months later, on May 1, 1994. Bates again alleged that Sellers struck her
numerous times to the face, knocked her to the floor and kicked her. Both incidents occurred at 1736 North 36th
Street in the City of Milwaukee.
The State moved to join
the two separate complaints for trial.
Sellers objected to joinder claiming that trying the complaints together
would prejudice his defense because he claimed the August battery never
happened, but that the May battery occurred in self-defense. The trial court granted the State's motion
for joinder and the case was tried to a jury.
The jury convicted Sellers of the battery stemming from the May 1
incident, but acquitted him of the alleged battery relating to the
August 29 incident. Sellers now
appeals.
II. DISCUSSION
This court's review of a
trial court's decision to join separate crimes is a question of law reviewed de
novo. See State v.
Hoffman, 106 Wis.2d 185, 208, 316 N.W.2d 143, 156 (Ct. App. 1982). The joinder statute provides that separate
crimes can be joined for trial if they are of the “same or similar
character.” Section 971.12, Stats.[2] “Crimes are of the same or similar character
if they are ‘the same type of offense occurring over a relatively short period
of time, and the evidence as to each count overlaps.’” Hoffman, 106 Wis.2d at 208,
316 N.W.2d at 156 (citation and footnote omitted).
In reviewing the two counts
of battery that were joined in the instant case, this court notes that both
incidents alleged blows to the victim's face; both incidents occurred at the
same location; both incidents involved the same victim; and the eight-month
lapse between the incidents satisfies the “relatively short period of time”
requirement. See State v.
Hamm, 146 Wis.2d 130, 138-40, 430 N.W.2d 584, 588-89 (Ct. App.
1988). Based on these observations, the
two separate battery charges appear to be of the same or similar character.
In addition, as amply
stated by the trial court, the evidence as to each battery overlaps:
The acts of battery alleged on one date would
be admissible in relation to the other to prove the critical element of
intent. It may also be motive, but clearly
intent being an issue in both, and particularly in light of the fact that
you've indicated that self-defense may be an issue in one of these cases, the
intent of a prior wrongful act in a battery certainly is relevant to both the
defendant's state of mind, as well as whether or not he really was defending
himself or intended to harm the individual identified in the complaint.
Accordingly,
this court concludes that the requirements for joinder were sufficiently
satisfied and, therefore, the trial court did not err in granting the State's
motion seeking joinder.
Sellers claims that he
was prejudiced by the joinder because his defense was different with respect to
the charges, i.e., his defense to the August incident was that it never
happened and his defense to the May incident was it occurred in
self-defense. Sellers indicated he
therefore would testify in the self-defense case, but exercise his right to
remain silent in the other. This court
is not persuaded by this argument.
Wisconsin courts do not find joinder improper merely because a defendant
wishes to testify on one charge, but not the other. See Hamm, 146 Wis.2d at 140, 430 N.W.2d at
589. If this were the controlling
factor, joinder decisions would be decided by defendants rather than trial courts. Id.
Sellers also claims that
he was prejudiced by the joinder because of jury confusion. This court does not agree. An instruction was given, directing the jury
to consider each charge separately, and to not let the verdict on one count
affect the verdict on the other count.
Absent any specific evidence to the contrary, this court presumes that
the jury followed this instruction. See
State v. Deer, 125 Wis.2d 357, 364, 372 N.W.2d 176, 181 (Ct. App.
1985).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Section 971.12(1) and
(4), Stats., provides:
(1) Joinder of crimes.
Two or more crimes may be charged in the same complaint, information or
indictment in a separate count for each crime if the crimes charged, whether
felonies or misdemeanors, or both, 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.
....
(4) Trial together of separate charges. The court may order 2 or more complaints, informations or indictments to be tried together if the crimes and the defendants, if there is more than one, could have been joined in a single complaint, information or indictment.