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COURT OF APPEALS DECISION DATED AND RELEASED September 25, 1996 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2324-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
CHRISTOPHER T. SEILER,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Ozaukee
County: WALTER J. SWIETLIK, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER CURIAM. Christopher T. Seiler
appeals from judgments of conviction
for two counts of first-degree sexual assault and from an order denying his
motion for postconviction relief. On appeal,
Seiler raises a host of issues, none of which we find persuasive. Accordingly, we affirm the judgments and the
order of the circuit court.
Seiler was convicted of
having intercourse with two young girls, aged twelve and thirteen, some ten
days apart. Each of the victims
testified at the trial, and the jury found Seiler guilty on both counts. Further facts will be set forth as
necessary.
We first address
Seiler's contention that trial counsel was ineffective. We deem this issue waived. In State v. Machner, 92 Wis.2d
797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979), we held that “it is a
prerequisite to a claim of ineffective representation on appeal to preserve the
testimony of trial counsel. We cannot
otherwise determine whether trial counsel's actions were the result of
incompetence or deliberate trial strategies.”
Here, although Seiler's appellate counsel argued ineffective assistance
in her motion for a new trial, she points to nothing in the record which
reflects any attempt to produce the testimony of either trial attorney. We therefore deem this issue waived.
We turn next to Seiler's
claim that the trial court erred in not granting a new trial. Under this rubric, Seiler presents three
subissues. First, Seiler challenges the
sufficiency of the evidence. This court
will reverse a conviction only when the evidence considered 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 facts acting reasonably
could be convinced beyond a reasonable doubt.
See State v. Poellinger, 153 Wis.2d 493, 507, 451
N.W.2d 752, 757-58 (1990). We cannot so
conclude.
The first victim,
C.M.B., testified that Seiler went into her mother's bedroom, C.M.B. came in as
well, and they had intercourse. A
friend of C.M.B.'s testified that she saw the two go into the bedroom and that
when C.M.B. came out, her shorts were ripped.
The second victim, G.A.W., testified that she and C.M.B. went to
Seiler's residence some ten days later.
The three sat on Seiler's bed and Seiler began kissing her. At some point, C.M.B. left the room, and
G.A.W. and Seiler had intercourse.
C.M.B. testified similarly.
Seiler marshals much
trial testimony from other witnesses and from the victims themselves to show
how each victim's story was inherently or patently incredible. While the victims' testimony was inconsistent
and sometimes contradicted, it was not inherently incredible. Inherently or patently incredible evidence
is that type of evidence which is in conflict with nature or fully established
or conceded facts. See Day
v. State, 92 Wis.2d 392, 400, 284 N.W.2d 666, 671 (1979). The victims' testimony did not rise to this
level, and we accordingly reject Seiler's challenge to the sufficiency of the
evidence.
Seiler's second subissue
concerns the falsus in uno instruction.
He contends that the jury was misled by the court's giving this
instruction sua sponte. We cannot
agree. While its use has generally
fallen into disfavor, it remains appropriate where false testimony relates to a
material fact and was willfully and intentionally made. See State v. Robinson,
145 Wis.2d 273, 281, 426 N.W.2d 606, 610 (Ct. App. 1988). Here, at the hearing on the motion for a new
trial, the court stated that
[t]he
testimony was clearly contrary. The
defendant testified that he did not have relations with either of these
girls. The girls, unequivocally,
testified that he did, and it wasn't a question of somebody being
mistaken. It was clearly a question of
somebody testifying falsely, and, as I say, I can't imagine a more appropriate
situation for the giving of that instruction, although the court is reluctant
to give it in most cases.
Because
the trial court had the benefit of observing the actual testimony of the
witnesses, its determination ought to be given much weight. Id. at 282, 426 N.W.2d at
611. We cannot, therefore, conclude
that the trial court erred in giving the falsus in uno instruction.
Seiler's final subissue
relating to the motion for a new trial concerns the trial court's sua sponte
giving of the jury instruction on agreement.
Seiler contends that the court gave the instruction prematurely, thereby
coercing the jury. We cannot
agree. In Quarles v. State,
70 Wis.2d 87, 90, 233 N.W.2d 401, 402 (1975), our supreme court discussed
supplemental instructions such as the one given here and concluded that an
argument that such a sua sponte instruction invaded the province of the jury
was completely without merit. Moreover,
the court went on to state that the trial judge can determine to give a
supplemental instruction when the jury has deliberated for some time without
reaching an agreement. See id.
at 91, 233 N.W.2d at 403. Here, the
jury had been out for more than two and one-half hours. We cannot conclude that the court erred in
giving the supplemental instruction after that length of time.
We turn next to Seiler's
claim that the trial court erred by failing to sever the two counts of sexual
assault. Again, we cannot agree. A motion for severance is addressed to the
trial court's discretion. State
v. Locke, 177 Wis.2d 590, 597, 502 N.W.2d 891, 894 (Ct. App.
1993). The test for failure to sever
turns to an analysis of other crimes evidence.
See id. We
are persuaded by the State's position that the crimes were similar in nature,
close in time and relevant to demonstrate Seiler's plan. See § 904.04(2), Stats.
Accordingly, we are unconvinced that the court misused its discretion in
denying severance.
Seiler's next argument
concerns prosecutorial misconduct.
Although the argument heading alludes to a number of prosecutorial
actions, the argument itself apparently details only one. On appeal, issues raised but not briefed or
argued are deemed abandoned. State
v. Johnson, 184 Wis.2d 324, 344, 516 N.W.2d 463, 470 (Ct. App.
1994). The only point properly
preserved concerns the prosecutor withholding the address of a witness. However, the court ordered the prosecutor to
give that address to the defense, and he apparently did. The defense elected not to call the
witness. We therefore reject this
argument.
Seiler also contends
error in the court's quashing of a subpoena.[1] It is within the trial court's discretion to
quash a subpoena. See State
v. Horn, 126 Wis.2d 447, 456, 377 N.W.2d 176, 180 (Ct. App. 1985), aff'd,
139 Wis.2d 483, 407 N.W.2d 854 (1987).
The court quashed the subpoena on the strength of § 885.205, Stats.
The proper ground for quashing the subpoena, however, was § 905.04, Stats.
An appellate court is concerned with whether a court decision being
reviewed is correct rather than with the reasoning employed by the circuit
court. See State v.
Baudhuin, 141 Wis.2d 642, 648, 416 N.W.2d 60, 62 (1987). The court's quashing of the subpoena was
correct and will be sustained. See
id.
Finally, Seiler broadly
attacks the sentence. Much of that
attack is unsupported by any reference to legal authority. We need not and do not consider such
arguments. See State v.
Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992). The only portion of this argument supported
by authority contends that the prosecutor unfairly penalized Seiler for
exercising his right against self-incrimination by referring to his lack of
remorse. We cannot agree. In sentencing, the court made clear that it
believed that Seiler testified falsely at trial. A sentencing court may consider a defendant's demeanor and
failure to admit guilt without necessarily misusing its sentencing
discretion. See State v.
Baldwin, 101 Wis.2d 441, 459, 304 N.W.2d 742, 752 (1981). Our review of the sentencing transcript
convinces us that the court did not give undue or overwhelming weight to any
one factor. See id. We conclude that the sentence reflected a
proper exercise of discretion.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.