State v. Luis C. Salinas , 369 Wis. 2d 9 ( 2016 )

2016 WI 44
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2686-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Luis C. Salinas,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 362 Wis. 2d 538, 865 N.W.2d 88
(Ct. App. 2015 – Unpublished)
OPINION FILED: May 26, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 20, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: Marc A. Hammer
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON and BRADLEY, A. W., JJ. dissent
(Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Katherine D. Lloyd, assistant attorney general, which
whom on the briefs was Brad D. Schimel, attorney general.
For the defendant-appellant, there were briefs by Steven D.
Grunder, assistant state public defender, and oral arguments by
Steve D. Grunder.
2016 WI 44
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2686-CR
(L.C. No. 2010CF542)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner, FILED
v. MAY 26, 2016
Luis C. Salinas, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA G. BRADLEY, J. In this appeal, we are asked
to determine whether the Brown County Circuit Court erred when
it granted the State's motion to join intimidation charges
involving two victims, a mother and her daughter, with already-
pending sexual assault charges where the daughter was the
victim. The circuit court1 held that joinder was proper under
1
The Honorable Mark A. Warpinski made the initial joinder
decision; however, he recused himself on November 9, 2011.
Ultimately, the Honorable Marc A. Hammer presided.
No. 2013AP2686-CR
Wis. Stat. § 971.12(1)(2009-10);2 the court of appeals reversed
in an unpublished per curiam opinion.3
¶2 We hold that joinder was proper because the charges
joined were "2 or more acts or transactions connected together
or constituting parts of a common scheme or plan," the charges
were "connected together," and the charges constituted parts of
a "common scheme or plan." See Wis. Stat. § 971.12(1).
Accordingly, we reverse the court of appeals and affirm the
jury's verdicts finding Luis Salinas guilty of: (1) repeated
sexual assault of a child; (2) second-degree sexual assault; (3)
second-degree sexual assault of a child under the age of 16; (4)
intimidation of witness, M.S.; and (5) intimidation of witness,
V.G.
I. BACKGROUND
¶3 Salinas lived with his girlfriend M.S., their son
A.S., M.S.'s daughter V.G., and M.S.'s two sons. On October 26,
2009, police were called to the family home following a domestic
violence incident. V.G. reported that Salinas slapped her face
after M.S. left for work, and when M.S. returned home, V.G.
heard M.S. and Salinas arguing. V.G. said she saw Salinas with
both hands on M.S.'s neck in what looked like an attempt to
choke M.S. to death. V.G. yelled at Salinas to let M.S. go.
2
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
3
See State v. Salinas, No. 2013AP2686-CR, unpublished slip
op. (Wis. Ct. App. Apr. 21, 2015)(per curiam).
2
No. 2013AP2686-CR
M.S. yelled for V.G. to get out of the house and call police.
M.S. reported she grabbed Salinas's hair, escaped his grasp, and
ran out of the house. When M.S. looked back, Salinas had their
then four-year-old son, A.S., in the doorway and Salinas had a
knife in one hand although the knife was not pointed at A.S.
Salinas told A.S. to ask M.S. to come back inside. Salinas
yelled for V.G. not to call police or Salinas would kill A.S.
and kill himself. Police arrived shortly thereafter and
arrested Salinas.
¶4 The next day, October 27, 2009, the State charged
Salinas with four counts arising from this domestic violence
incident. Both M.S. and V.G. were domestic violence victims.
Salinas entered into a plea agreement with the State. On March
8, 2010, Salinas entered Alford4 pleas to domestic violence
strangulation and suffocation and domestic violence battery.
The other two counts were dismissed but read in at sentencing.
¶5 While the domestic violence charges were pending,
Salinas frequently called M.S. from jail. Between the time
Salinas was arrested and the date of his sentencing in the
domestic violence case on May 11, 2010, the jail recorded over
500 phone calls from Salinas to M.S. The intimidation charges
4
"An Alford plea is a guilty plea where a defendant pleads
guilty to a charge but either protests his innocence or does not
admit to having committed the crime. The plea derives its name
from the United States Supreme Court's decision in North
Carolina v. Alford, 400 U.S. 25 (1970)." State v. Garcia, 192
Wis. 2d 845, 851 n.1, 532 N.W.2d 111 (1995).
3
No. 2013AP2686-CR
at issue here stem from those phone calls. The State asserted
that transcripts from the phone calls show Salinas's attempt to
pressure M.S. to change her statement to police about the
domestic violence incident and come to the sentencing to help
him look good with the sentencing judge.
¶6 In two of the calls, Salinas said:
I thank you so much for having my son, [M.S.] But you
really piss me off. You don't know what I'm able to
do. You don't know what I have done or what I could
do. You are treating me like a piece of shit. No, my
darling, you don't know who I am. That is why you
want to send me to prison and you want me to go to
hell. Fourteen years and six years for this and that
and you think you're playing with a piece of shit. I
told you long time ago don't call the cops on me
because we're going – because they are going to take
me seriously. And, look, you called the cops and all
because of [V.G.].
I'm telling you, man, I can never talk to you because,
look, you better start thinking that one day I'm
coming out. Daughter of your fucking mother, because
you're making me tired of always trying to kiss your
ass. You better straighten your stinking, your
fucking stinky ass. I'm so fucking sick of it. And
then they don't want me to kick your ass, man. If you
hate me so much, why don't you let me fuck myself up?
You never have the mouth when I was outside. I know
you're fucking mouthy. I'm tired of your shit. If I
get out, if I get out, you are going to be sorry, my
darling. You better answer me right now and tell me
what is it that you want to do. I don't want to be
mean to you because you're the mother of my son.
¶7 The State also asserted that Salinas pressured M.S. to
convince V.G. to do something to help him with the sentencing
judge. Salinas spoke with V.G. directly on one occasion.
Ultimately, both M.S. and V.G. testified at Salinas's sentencing
hearing on the domestic violence convictions. Both indicated to
4
No. 2013AP2686-CR
the sentencing judge that they wanted Salinas to come back home.
The sentencing court imposed three years of probation with nine
months of jail time.
¶8 On May 13, 2010, two days after Salinas's sentencing
on the domestic violence convictions, V.G. told her boyfriend,
E.D., that Salinas had been sexually assaulting her for the past
three years. According to E.D., V.G. was scared and shaky when
she revealed the sexual assaults and her story came out in "bits
and pieces." E.D. told V.G. to tell her mom and the police.
V.G. then told M.S. and M.S. took V.G. to the police station to
report what had happened.
¶9 V.G. told police that when she turned 13, Salinas
began forcing her to have sexual intercourse. The first time
was in the bathroom at their home on Oakland Street. Salinas
told her to lie down on the bathroom floor. He took down her
sweatpants and underwear and put his penis into her vagina.
When she said no, he told her that if she refused, he would take
her little brother away or send her away. He also hit her,
punched her, and slapped her to force compliance. V.G. told
police the sexual assaults took place 6 to 12 times a month over
the course of three years. She said Salinas did this when her
mother was not home. V.G. said the assaults occurred in the
living room and Salinas's bedroom and the assaults continued
when they moved to a different house on Dousman Street. V.G.
explained that Salinas rarely used a condom, but did not
ejaculate inside of her. He "pulled out" and then used a white
rag, which he often made her wash afterwards.
5
No. 2013AP2686-CR
¶10 V.G. told police that the last sexual assault occurred
the day Salinas was arrested for the domestic violence. Salinas
slapped her that day because she told him she did not want to
have sex with him. V.G. reported that she did not tell anyone
about the sexual assaults because she was afraid and ashamed and
because Salinas repeatedly threatened that he would take her
little brother away or send her away.
¶11 On May 19, 2010, the State charged Salinas with three
counts related to the sexual assaults: (1) repeated sexual
assault of a child in violation of Wis. Stat. § 948.01(1)-(2)
and Wis. Stat. § 948.025(1)(b); (2) second-degree sexual assault
in violation of Wis. Stat. § 940.225(2)(a); and (3) second-
degree sexual assault of a child under the age of 16 in
violation of Wis. Stat. § 948.02(2). Salinas pled not guilty
and denied ever sexually assaulting V.G.
¶12 In August and September of 2010, the police listened
to and translated from Spanish all the recorded telephone calls
between Salinas and M.S. that Salinas made from jail. Both M.S.
and Salinas spoke in Spanish. Police also interviewed M.S. and
V.G. about all the telephone calls.
¶13 On October 5, 2010, the State charged Salinas with two
counts of misdemeanor intimidation of a witness, in violation of
Wis. Stat. § 940.44(1), and Wis. Stat. § 968.075(1)(a). One
count listed M.S. as the victim and the second count listed V.G.
as the victim.
¶14 On October 18, 2010, the State filed a motion to join
the intimidation counts with the already-pending sexual assault
6
No. 2013AP2686-CR
counts. The State argued the charges shared common victims and
arose within six months of one another; moreover, the State
argued for joinder because the evidence in the two cases
overlapped, and if the cases were joined, the victims would only
have to testify at one trial. Salinas argued the charges should
not be joined because the intimidation charges related to the
domestic violence case, not the sexual assault case. The
circuit court joined the cases reasoning:
 One of the intimidation counts involves the same victim
of the sexual assaults——V.G.——making it logical to
"connect those two for purposes of trial."
 Joining the two cases will not confuse the jury.
 "There is a strong likelihood that all of this evidence
in this file would come in under other-acts evidence."
¶15 After the circuit court's ruling, the State amended
the Information to include the three sexual assault counts and
the two intimidation counts. At the pre-trial conference on
March 2, 2012, Salinas's lawyer indicated that Salinas would
plead guilty on the intimidation counts but go to trial on the
sexual assault counts. The State advised that even if the
intimidation counts were pled out, it intended to present
evidence on the intimidation charges in the sexual assault trial
because
it all ties together and that's why they were all
joined. It starts with a domestic violence situation
between the victim's mother and the defendant and
evolves until we get to the disclosure in this case,
and so I just want to be clear that [the] State
7
No. 2013AP2686-CR
intends to put all that evidence forward because
that's our case.
¶16 Salinas's lawyer responded that the intimidation
charges arose from Salinas "trying to get them to consider a
better sentencing recommendation" in the domestic violence case
and "were completely separate from any sort of sexual assault
allegation." The State explained "the last sexual assault
occurred on the day [Salinas] went to jail for this
strangulation. So that evidence is coming forward. [V.G.]
knows it's that date because that's the date he strangled her
mother and he went to jail and he was not able to assault her
any further." The State argued that this evidence would be
relevant to explain why V.G. delayed reporting the sexual
assaults, and, in essence, to provide context. The circuit
court cautioned Salinas's lawyer that pleading to the
intimidation counts may not keep the evidence of the domestic
violence incident out of the sexual assault trial——that it could
come in as other acts evidence. The circuit court advised that
the lawyer should "do with that what you want, and if you want
to plea him, I'll take it on Tuesday" but "[w]hat I don't want
is for you to enter a plea with a belief you got some type of
commitment from the DA's Office or you're able to forecast what
I'm going to do because that would be wrong." Salinas decided
not to enter pleas to the intimidation counts and the joined
charges were tried to a jury on March 6-7, 2012. At no time did
Salinas file a motion seeking severance of the joined charges.
8
No. 2013AP2686-CR
¶17 During the State's opening statement, the prosecutor
told the jury the evidence would show a "pattern of violence,
intimidation, threats, and most disturbingly, [that] repeated
sexual assault of a child occurred to the victim, [V.G.],
occurred within a family environment where her mother, [M.S.],
was also a victim, where she had three younger brothers in that
household as well." The prosecutor also explained that "this
story begins . . . October 26, 2009" the day Salinas was
arrested for domestic violence——for hitting V.G. and attempting
to strangle M.S.:
That is the day ladies and gentlemen, that the
defendant strangled [M.S.], that he did that in front
of [V.G.], that in the kitchen she was struggling to
get away from him, that she yelled to [V.G.] to get
out, call the police, that she was able to get away
from the defendant, that she ran out herself, and when
she turned around, what did she see? More violence
and intimidation. She saw the defendant standing with
his 4-year-old-son, [A.S.], to one side and a knife to
the other telling [A.S.], "Tell your mother to come
back inside."
That is a day of horror but that is also a day that
stopped what was happening to [V.G.] That is a day
that family got help. That is the day that [V.G.]
stopped being assaulted from the defendant. And we
also know that day is the last day he assaulted her.
¶18 In Salinas's opening, his lawyer told the jury:
 "Just because he might be a bad guy is really
irrelevant."
 The intimidation counts relate to a prior conviction for
hitting M.S. and V.G. The intimidation is not "about a
sexual assault."
9
No. 2013AP2686-CR
 "I hope that you can parse out the difference between Mr.
Salinas having a jaded past, perhaps having done a bad
thing to these two people who are going to testify and
whether the charges that he's here for today actually
happened or not. They're very separate and
distinguishable[.]"
¶19 The State's main witnesses included victims V.G. and
M.S. V.G. testified:
 Salinas started sexually assaulting her when she turned
13 years old. The assaults occurred when her mother was
not home and when her brothers were asleep or outside.
 The first assault was on the bathroom floor; other times
Salinas assaulted her in the living room where he was
careful to watch out the window for M.S. to make sure he
did not get caught. He also assaulted her in the
bedroom.
 He used a condom on only two occasions that she can
remember; typically he would pull out before he
ejaculated and finish with a white rag, which he often
made her wash afterwards.
 The assaults occurred at both the Oakland Street house
and the Dousman Street house.
 If she told Salinas she did not want to have sex with
him, he hit or threatened her. Salinas struck her many
times and told her if she refused sex, he would take her
little brother away or send her away to Mexico or to
California to live with her dad. He told her that if she
10
No. 2013AP2686-CR
told her mother, he would blame her for "coming on to
him" and if she told police, Salinas told V.G. that the
police would take the children away from their mother.
 One time after an argument with her mother, Salinas did
take her brother A.S. and left for 7-10 days.
 Salinas assaulted her "more than 40 to 50 times" over two
and one-half years.
 On October 26, 2009, after her mother left for work,
Salinas struck V.G. in the face because she did not want
to have sex with him; he proceeded to sexually assault
her.
 Later that day when her mother returned home from work,
V.G. heard M.S. and Salinas arguing; Salinas told M.S. he
had struck V.G., and M.S. was angry. V.G. saw Salinas
choking her mother and yelled at Salinas to let go of
her. M.S. told V.G. to leave the house and go; V.G. left
the house and called police from a neighbor's house.
 When police came, V.G. reported that Salinas hit her but
did not report the sexual assaults, "[b]ecause I just
wanted him gone because I thought that with him gone it
just wouldn't be going through all the things that I was
going through, and I thought that was just -- I was
afraid and just embarrassed and ashamed of everything."
 She was also worried her mom "would be ashamed" and upset
and "blame herself because she never caught on, and we
had been living together all of us for so long."
11
No. 2013AP2686-CR
 She testified that the police took Salinas to jail and
the phone calls from him started. She said she spoke
with Salinas only one time and he asked her to change her
statement and tell the sentencing court she missed him
and wanted him home.
 She went to the sentencing hearing because her mom asked
her to go. V.G. thought if she attended the hearing, the
excessive phone calls would stop and maybe Salinas would
change. Also, she had been promised a phone card, and
her little brother, A.S., was missing his dad.
 Two days after the sentencing, V.G. told her boyfriend,
E.D., about the sexual assaults because she wanted to be
honest with him. E.D. insisted she tell her mom and her
mom took her to the police station to report the sexual
assaults.
¶20 M.S.'s testimony began by describing what happened on
October 26, 2009. She had worked that day and when she arrived
home, Salinas told her he had hit V.G. for not listening to him.
This started an argument and Salinas threw a glass candle at her
that struck her head. At this point, Salinas’s lawyer objected:
Your Honor, I just have to object to this line of
questioning. Mr. Salinas has pled guilty to all these
things. They've been litigated before. There was a
physical altercation. Let's move on. This is
unfairly prejudicial. She's just bringing this up to
try and say later on look how bad Luis Salinas is. He
must have done it.
The prosecutor responded: "[T]his is all information that is
part of [M.S.]'s statement. It is part of the allegations in
12
No. 2013AP2686-CR
this case. It certainly goes to the heart of the intimidation."
The circuit court overruled the objection: "I'm going to allow
it. I think it goes to Counts Four and Five [intimidation
counts] in terms of giving context or background. I'm going to
allow you to cross-examine."
¶21 M.S. continued describing the events of October 26,
2009:
 Salinas put his hands on her neck and tried to choke her;
she told V.G. to get out of the house; she grabbed
Salinas's hair and escaped his grasp and ran outside.
 When she turned back, her son, A.S., was standing in the
doorway and Salinas was telling A.S. to ask her to come
back inside. Salinas had a knife in his hand but it was
not pointed at A.S.
 Salinas told V.G. to hang up the phone she was using to
call police or "he was going to kill the boy and he was
going to kill himself."
 Police arrived and arrested Salinas.
¶22 M.S. also testified about the phone calls Salinas made
to her from jail. Salinas told her to change her statement to
police to say he did not try to strangle her and he did not
threaten to kill her. Salinas asked her to convince V.G. to
change her statement to say Salinas did not hit her. M.S. told
the jury she in fact tried to change her statement with police
because she believed if she did not, Salinas would take her son
away and he would kill her and her children.
13
No. 2013AP2686-CR
¶23 M.S. explained why she went to Salinas's sentencing
hearing on May 11, 2010: Salinas made her feel guilty, blaming
M.S. and V.G. for putting him in jail, and Salinas threatened to
kill himself if she did not come. He also promised he would
change and things would be better if she came to the sentencing
and spoke in favor of him coming home. M.S. admitted she
pressured V.G. to come to the sentencing when V.G. did not want
to go. She promised V.G. a phone card if she would attend and
tell the court she wanted Salinas to come home.
¶24 M.S. testified that V.G. told her about the sexual
assaults on May 13, 2010, and she took V.G. to the police to
report what had happened. M.S. also told the jury that for the
last two years, Salinas refused to let V.G. go out of the house
with M.S. because Salinas said V.G. "misbehaved." She testified
about how Salinas forced V.G. to stay home from school for a
month in the Fall of 2009, her sophomore year in high school.
¶25 V.G.'s boyfriend, E.D., also testified. He talked
about meeting V.G. in French class at the start of the school
year, but that V.G. stopped coming to school until after October
26, 2009. When V.G. returned, they became friends and then
boyfriend-girlfriend. E.D. described how, on May 13, 2010, V.G.
disclosed the sexual assaults to him, that she was scared and
shaky, and how it was hard for her to talk about the assaults.
He told her to tell her mom and the police.
¶26 The parties stipulated that Salinas made over 500
phone calls to M.S. from jail. V.G.'s statement from Salinas's
14
No. 2013AP2686-CR
sentencing for the domestic violence convictions was read to the
jury. The statement provided:
I wanted to say that -- well, I don't have it on paper
but I wanted to say that our family has gone through a
lot the last few months that he hasn't been at our
house and we're all sad that he's not here so -- and
we'd really like him to come home. That's all I
wanted to say.
¶27 The circuit court gave jury instructions, including an
instruction that remarks by attorneys are not evidence and an
instruction that closing arguments are opinion and not evidence.
The circuit court cautioned the jury regarding Salinas's prior
convictions:5
Now, evidence has been received in this case that
the defendant, Luis Salinas, has been convicted of
crimes. This evidence was received solely because it
bears upon the credibility of the defendant as a
witness. You must not use it for any other purpose and
particularly you should bear in mind that a criminal
conviction at some previous time is not proof of guilt
of the offense now charged.
¶28 During closing argument, the prosecutor recounted what
happened the evening of October 26, 2009:
[V.G.] hear[s] arguing between her mother and
[Salinas]. [V.G.] waits and she goes out and she sees
the defendant choking her mother and she's yelling.
Her mother is yelling "get out, get out." She's able
to go to the front door. Her mother is able to get
away from the defendant and go out the side.
And, ladies and gentlemen, I would submit at this
point the defendant is very concerned. To this point
5
Salinas testified he had been convicted 12 times. The
circuit court, in essence, gave the standard jury instruction on
prior convictions. See Wis JI——Criminal 327.
15
No. 2013AP2686-CR
he's been able to keep them from calling the police.
He's been able to intimidate them, use threats, use
violence to make sure the police don't get involved.
But this time they're out of the house. And what does
he do in a last [d]itch effort and desperation? He
takes a knife and he takes his little boy, the little
boy he claims to love more than anything. He has a
knife in one hand and he's telling [M.S.] get back in
the house. He's telling the little boy, "Tell your
mother to get back in the house or I'm going to kill
myself and I'm going to kill the boy."
Salinas's lawyer argued to the jury that this case was not about
the battery and strangulation, that Salinas was already punished
for that and "that's not what we're here to decide today." He
also pointed out that V.G. and M.S. had "very vivid" and
detailed memories of the domestic violence incident, but V.G.
had "very little recall of the sexual assaults." He argued that
the "glossing over" of the sexual assault allegations should
convince the jury that the sexual assaults never happened. The
jury convicted Salinas on all three sexual assault counts and
both intimidation counts.
¶29 Salinas appealed, arguing that joinder was improper
and not harmless error. The court of appeals agreed and
reversed in a per curiam, unpublished opinion. See State v.
Salinas, No. 2013AP2686, unpublished slip op. (Wis. Ct. App.
Apr. 21, 2015)(per curiam). The State petitioned this court for
review and we granted the petition.
II. STANDARD OF REVIEW
¶30 The issue presented on appeal is whether joinder of
the intimidation and sexual assault charges was proper under
Wis. Stat. § 971.12(1). The initial decision on joinder is a
16
No. 2013AP2686-CR
question of law that we review de novo. See State v. Locke, 177
Wis. 2d 590, 596-97, 502 N.W.2d 891 (Ct. App. 1993); State v.
Hoffman, 106 Wis. 2d 185, 208-09, 316 N.W.2d 143 (Ct. App.
1982). This case does not involve a motion for severance after
initial joinder, which is reviewed under an erroneous exercise
of discretion. See id. Although neither party disputes the de
novo standard of review on initial joinder, some Wisconsin cases
have applied a discretionary standard of review to both the
initial joinder decision and the decision on a motion to sever.
See Haldane v. State, 85 Wis. 2d 182, 188-89, 270 N.W.2d 75
(1978)("Generally, questions of consolidation or severance are
within the trial court's discretion."); Holmes v. State, 63
Wis. 2d 389, 395-96, 217 N.W.2d 647 (1974)("What is involved is
an exercise of trial court discretion."); State v. Brown, 114
Wis. 2d 554, 559, 338 N.W.2d 859 (Ct. App. 1983)(same). We make
clear here that those cases inaccurately described the proper
standard of review. As noted, the initial joinder decision and
a decision to sever properly joined charges are distinct
considerations that require different standards of review. As
Locke explained:
On appeal, review of joinder is a two-step
process. First, the court reviews the initial joinder
determination. Whether the initial joinder was proper
is a question of law that we review without deference
to the trial court, and the joinder statute is to be
construed broadly in favor of the initial joinder.
. . .
[Second,] [s]ection 971.12(3) provides that even after
initial joinder, the court may order separate trials
17
No. 2013AP2686-CR
of the charges if it appears that a defendant is
prejudiced by a joinder of the counts. A motion for
severance is addressed to the trial court's
discretion.
Locke, 177 Wis. 2d at 596-97. Here, because the issue in
Salinas's case involves only whether the initial joinder
decision was proper, our review is de novo.
III. ANALYSIS
¶31 Wisconsin Stat. § 971.12(1) describes when separate
crimes may be joined together in the same complaint:
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.
The joinder statute is to be broadly construed in favor of
initial joinder. See Francis v. State, 86 Wis. 2d 554, 558, 273
N.W.2d 310 (1979)("A broad interpretation of the joinder
provision is consistent with the purposes of joinder, namely
trial convenience for the state and convenience and advantage to
the defendant."); Locke, 177 Wis. 2d at 596. The statute
provides four separate provisions under which initial joinder is
deemed proper: (1) when two or more crimes are of the "same or
similar character"; (2) when two or more crimes are based on the
"same act or transaction"; (3) when two or more crimes are based
on two or more acts or transactions that are "connected
together"; or (4) when two or more crimes are based on two or
18
No. 2013AP2686-CR
more acts or transactions that constitute "a common scheme or
plan." Wis. Stat. § 971.12(1).
¶32 The State argues joinder was proper under Wis. Stat.
§ 971.12(1) because the intimidation and sexual assault charges
are either: (1) two or more acts connected together; or (2) two
or more acts or transactions constituting parts of a common
scheme or plan.6 Salinas argues the intimidation and sexual
assault charges do not fall into either category because the
intimidating phone calls relate only to the domestic violence
convictions, not the sexual assaults, and are so different they
cannot constitute a common scheme or plan. Salinas also argues
that the improper joinder of these charges prejudiced him and
therefore was not harmless error. We hold that the charges here
were properly joined because they were "2 or more acts or
transactions connected together or constituting parts of a
common scheme or plan", the charges were "connected together"
and the charges constituted "parts of a common scheme or plan."
Because we determine joinder was proper, we do not address
Salinas's harmless error argument.
¶33 Before we begin our analysis, we note that although
"connected together" and "common scheme or plan" are separate
and distinct prongs in the joinder statute, Wisconsin case law
has, on occasion, merged them into a single concept, suggesting
6
The State conceded the facts do not support joinder based
on the sexual assaults and intimidation being crimes: (1) of the
"same or similar character," or (2) based on the "same act or
transaction."
19
No. 2013AP2686-CR
the same analysis applies to both. See Francis, 86 Wis. 2d at
560. In Francis, neither victim could identify Francis, but
after police were able to link Francis to the crimes against one
of the victims, they were able to connect Francis to the crimes
against the other victim based on similar modus operandi. Id.
at 555-56, 560. The State filed a complaint charging Francis
with three crimes against the two victims; the circuit court
denied his motion to sever, and a jury found him guilty of all
charges. Id. at 556. On appeal to this court, Francis argued
only that initial joinder was improper, making no argument on
whether the circuit court's severance decision caused prejudice.
Id. at 555, 561-62. We upheld joinder as proper based on "the
phrase 'connected together or constituting parts of a common
scheme or plan.'" Id. at 555-56, 560. We so held because this
phrase had been interpreted by other courts to mean: "inter
alia that the crimes charged 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 the identity of the perpetrator." Id. at 560.
¶34 We have also, at least implicitly, upheld joinder
based solely on the "connected together" language and solely on
the "constituting parts of a common scheme or plan" language of
Wis. Stat. § 971.12(1). In State v. Bettinger, 100 Wis. 2d 691,
303 N.W.2d 585 (1981), we held there could be "no dispute" that
joinder of the sexual assault charge with the bribery charge was
proper under Wis. Stat. § 971.12(1) because the two acts were
"connected together." Id. at 694. In Bettinger, the identity
20
No. 2013AP2686-CR
of the perpetrator was not in dispute as he was a friend of the
family. Id. at 692-93. Bettinger sexually assaulted the victim
and then offered her a bribe to drop the charges or not
cooperate with the prosecution. Id. at 693. No one disputed
that these two separate crimes were properly joined because they
were "connected together." Id. at 694. They were connected
together because both crimes involved the same victim and the
same perpetrator and because the bribery was an attempt to avoid
conviction on the sexual assault.
¶35 In State v. Kramer, 45 Wis. 2d 20, 171 N.W.2d 919
(1969), this court upheld joinder on five separate crimes of two
unrelated victims using the "common scheme or plan" provision.
Id. at 24, 36.7 Kramer was convicted of false imprisonment,
injury by conduct regardless of life, armed robbery and two
counts of physical damage to property. Id. at 24. The "common
scheme or plan" involved crimping the gas line of women's cars
to disable the vehicle and then offering to give the stranded
women a ride. Id. at 24-26. We held joinder proper based on
this common scheme or plan. Id. at 36.
7
In State v. Kramer, 45 Wis. 2d 20, 171 N.W.2d 919 (1969),
Wisconsin was still using the prior joinder statute, Wis. Stat.
§ 955.14(1)(1967), which provided: "Different crimes and
different degrees of the same crime may be joined in one
information, indictment or complaint." However, in Kramer this
court cited Federal Criminal Rule 8(a), the federal joinder
statute, which is substantially similar to the language of our
current joinder statute at issue here.
21
No. 2013AP2686-CR
¶36 This case presents us with the opportunity to analyze
whether the charges joined in Salinas's case should be upheld
because they were "2 or more acts or transactions connected
together or constituting parts of a common scheme or plan," the
charges were "connected together," and the charges constituted
"parts of a common scheme or plan." Before we proceed with that
analysis, we emphasize that this court "has historically
favored" initial joinder particularly when the charged crimes
were all "committed by the same defendant." See Francis, 86
Wis. 2d at 559 (citations and quotemarks omitted). We interpret
initial joinder decisions broadly because of the goals and
purposes of the joinder statute: (1) trial economy and
convenience; (2) to promote efficiency in judicial
administration; and (3) to eliminate multiple trials against the
same defendant, which promotes fiscal responsibility. See id.,
at 560; State v. Leach, 124 Wis. 2d 648, 671, 370 N.W.2d 240
(1985).
A. Connected together or
constituting parts of a common scheme or plan
¶37 As we have seen, in Francis, we held joinder proper
because the separate crimes were connected together by a common
scheme or plan. In doing so, we did not analyze "connected
together" separately from "constituting parts of a common scheme
or plan." Citing several federal cases, we observed that the
entire phrase "connected together or constituting parts of a
common scheme or plan" has been interpreted, among other things,
to mean "that the crimes charged have a common factor or factors
22
No. 2013AP2686-CR
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." Id., 86 Wis. 2d at 560. In other
words, Francis's modus operandi connected the separate crimes
together and helped identify Francis as the person who had
committed these separate crimes. Id. at 560-61. Thus, in
joinder cases following Francis, most of which are unpublished,
the "common factor or factors of substantial factual importance"
test has been used both to analyze whether joinder is proper
under the entire phrase, under connected together, and under
constituting parts of a common scheme or plan.
¶38 Using the Francis test, we hold the crimes joined
against Salinas are "connected together or constituting parts of
a common scheme or plan" because Salinas's crimes share common
factors or factors of substantial factual importance. First,
V.G. was a victim of both the sexual assaults and the
intimidation crimes, which were charged after the domestic
violence conviction. Second, the last sexual assault occurred
on the same day as the domestic violence incident. Third,
Salinas's domestic violence toward V.G. immediately preceded the
sexual assault; Salinas used the physical abuse to accomplish
the sexual assault. Fourth, the intimidation charges and sexual
assault charges were close in time, involved the same people,
and Salinas arguably engaged in one crime to prevent disclosure
and punishment for another.
23
No. 2013AP2686-CR
¶39 Although Francis discusses joinder in terms of the
crimes having substantial factors of a common scheme or plan
that establish identity, the law is not so limited. In Francis,
we indicated this statutory phrase had "been interpreted to mean
inter alia" what is quoted above. Id., 86 Wis. 2d at 560.
Inter alia means "among other things." In other words, the
identity link was one meaning given to the statutory phrase in
cases where identity is at issue. In cases where identity is
not at issue, however, the statutory phrase is not so limited.
¶40 Here, as in Bettinger, the perpetrator is known
because the situation involves a family. Salinas is the
perpetrator in both the intimidation and sexual assault crimes.
The perpetrator and victims resided together as part of the same
familial unit with daily interactions. V.G. was a victim of
the domestic violence, intimidation, and sexual assault crimes.
Salinas used domestic violence toward V.G. to overcome her
objections to having sexual intercourse with him. Salinas
created an atmosphere of fear, engaging in a scheme or plan of
manipulation, coercion, and intimidation to control and abuse
M.S. and V.G. The crimes of domestic violence and sexual
assault are connected because Salinas used both to establish
control over V.G. and M.S. that allowed him to break the law
without legal repercussions. Once incarcerated, Salinas could
no longer use physical or sexual abuse to control his victims so
he attempted to influence and control them through the use of
the telephone. Salinas made 500-plus phone calls including
threats that he would still be able to exert control from jail.
24
No. 2013AP2686-CR
The phone calls show manipulation done by phone to force V.G.
and M.S. to recant their claims of physical abuse and help get
him out of jail so he could continue his illegal acts without
legal repercussions. The intimidation charges arising from the
phone calls are part of Salinas's scheme or plan to manipulate
and control V.G. and M.S. so he could physically abuse and
sexually assault these victims without legal repercussions.
That is the evidence the State presented.
¶41 We also face the situation here where V.G. reported
the domestic violence but delayed reporting the sexual assault
crimes, even though one count of each crime occurred on the same
day. Had V.G. reported the sexual assault crimes at the same
time she reported the domestic violence incident, both the
sexual assault crimes and the domestic violence crimes would
have been charged in a single complaint. Had the intimidation
counts arisen after a trial on both the domestic violence and
sexual assault crimes, there would be no question that the
intimidation charges were connected to the sexual assaults. A
subsequent trial on intimidation would have necessarily included
evidence on both the domestic violence incident and the sexual
assaults. Delayed reporting on the sexual assaults should not
operate to disconnect these inextricably intertwined events.
These charges are closely related and interconnected. Likewise,
failure to come forward on the sexual assaults does not
extinguish the relatedness of these crimes or render initial
joinder improper. These crimes were logically connected, grew
out of related interactions, and had a concrete connection.
25
No. 2013AP2686-CR
B. Connected together
¶42 The "connected together" provision of Wis. Stat.
§ 971.12(1) is used to join together offenses committed by the
same defendant that are based on separate acts or transactions
against the same victim or separate victims. "Connected
together" is not defined in the statute, nor has it been
specifically defined by Wisconsin courts. This is so because
the words are self-defining.
¶43 Salinas argues the intimidation counts are not
connected to the sexual assaults; rather, he argues the
intimidation counts relate only to the domestic violence
convictions. In assessing whether separate crimes are
sufficiently "connected together" for purposes of initial
joinder, we look to a variety of factors, including but not
limited to: (1) are the charges closely related; (2) are there
common factors of substantial importance; (3) did one charge
arise out of the investigation of the other; (4) are the crimes
close in time or close in location, or do the crimes involve the
same victims; (5) are the crimes similar in manner, scheme or
plan; (6) was one crime committed to prevent punishment for
another; and (6) would joinder serve the goals and purposes of
Wis. Stat. § 971.12. See Francis, 86 Wis. 2d at 560; State v.
Hall, 103 Wis. 2d 125, 139, 307 N.W.2d 289 (1981)(connected
because "closely related in terms of time, place and modus
operandi, scheme, or plan"); Bettinger, 100 Wis. 2d at 694;
Leach, 124 Wis. 2d at 671 (The purpose of joinder is to promote
26
No. 2013AP2686-CR
economy and efficiency in judicial administration and avoid
multiple trials.).
¶44 Many of these factors apply in this case. The
intimidation charges and the sexual assaults are connected
together because they are closely related, share common factors
of substantial importance, are connected by time, location and
victims, and joinder serves the goals and purposes of Wis. Stat.
§ 971.12. These crimes are closely related as a series of
events within one household involving one defendant and two
victims. The crimes joined were connected together because the
domestic violence against V.G. and M.S. occurred on the same day
that Salinas sexually assaulted V.G., and the intimidation
charges involved coercion and threats to manipulate V.G. and
M.S. to withdraw their statements of physical abuse and to
persuade the sentencing judge to let Salinas go home. The goals
behind the joinder statute are clearly satisfied here because
all of Salinas's outstanding crimes against V.G. and M.S. were
resolved in one trial, the victims had to testify only once, and
the judicial resources utilized to mete out justice were
efficiently conserved. See Leach, 124 Wis. 2d at 671. Thus,
the intimidation counts and the sexual assaults are "connected
together" and joinder was proper under that provision of
§ 971.12(1).
C. Constituting parts of a common scheme or plan
¶45 We also hold that initial joinder was proper because
the intimidation and sexual assault charges constituted parts of
a "common scheme or plan." Neither the statute nor this court
27
No. 2013AP2686-CR
has specifically defined "common scheme or plan" as that term is
used in Wis. Stat. § 971.12(1). Because these are common words
with known meanings, it is not necessary for us to provide a
particular definition here.8
¶46 In analyzing whether Salinas's intimidation charges
and sexual assault charges constitute a "common scheme or plan,"
we look to what evidence the State presented to support its
position that the charges were properly joined under this
provision. The State presented evidence that all of Salinas's
crimes constituted parts of his common scheme or plan to use
threats, intimidation, physical and sexual abuse to maintain
power and control over the woman with whom he lived, as well as
her daughter, so he could break the law without risk of getting
caught. The State argued he created a pattern of violence,
threats, and intimidation so that he could continue to
physically and sexually abuse his girlfriend and her daughter
without consequence or reporting. In order to continue to engage
in his illegal acts and ensure neither M.S. or V.G. reported
Salinas's illegal behavior, he used threats and physical and
sexual abuse. On October 26, 2009, V.G. and M.S. broke the veil
8
Wisconsin case law has defined the term "plan" as "plan"
is used in Wis. Stat. § 904.04(2) to mean "a design or scheme
formed to accomplish some particular purpose." See State v.
Cofield, 2000 WI App 196, ¶13, 238 Wis. 2d 467, 618 N.W.2d 214
(citing State v. Spraggin, 77 Wis. 2d 89, 99, 252 N.W.2d
94(1977)). The phrase in Wis. Stat. § 971.12(1), however, is
"common scheme or plan" whereas Wis. Stat. § 904.04(2) uses
solely "plan."
28
No. 2013AP2686-CR
of silence by calling police. As a result, Salinas lost his
ability to physically and sexually assault them. But he still
had the ability to threaten and manipulate with his words via
the telephone. He did this by calling M.S. over 500 times from
jail, convincing her to lie to police and tell them he did not
try to strangle her as she had reported. He did this by trying
to get V.G. to lie and say he did not hit V.G. as she had
reported. He did this by trying to get M.S. to pressure or
bribe V.G. with the phone card. Salinas, in fact, succeeded in
his threats and intimidation because both M.S. and V.G. attended
his sentencing for the domestic violence and testified on his
behalf. The jail phone calls used to intimidate and control
V.G. and M.S. were an integral part of Salinas's common plan or
scheme to continue his illegal acts. The evidence presented by
the State sufficiently supported initial joinder of the
intimidation and sexual assault counts as parts of Salinas's
"common scheme or plan" to control and assault his girlfriend
and her daughter in his home. Thus, initial joinder was also
proper under this provision of Wis. Stat. § 971.12(1).
D. Harmless Error
¶47 Because initial joinder was proper, we need not
address harmless error. See Leach, 124 Wis. 2d at 669. We do
note, however, that this case is unusual because often joinder
cases concomitantly involve a severance claim. See, e.g., State
v. Linton, 2010 WI App 129, ¶¶15-16, 329 Wis. 2d 687, 791 N.W.2d
222; Locke, 177 Wis. 2d at 596-99. That is, a defendant will
argue both that initial joinder was improper and that even if it
29
No. 2013AP2686-CR
was proper, severance was necessary based on prejudice as set
forth in Wis. Stat. § 971.12(3): "If it appears that a
defendant . . . is prejudiced by a joinder of crimes . . . the
court may order separate trials of counts, grant a severance of
defendants or provide whatever other relief justice requires."
In fact, some cases present only the issue of severance on
appeal as there is no dispute that the initial joinder decision
was proper. See, e.g., Bettinger, 100 Wis. 2d at 694 ("There
can be no dispute in this case that joinder of these two charges
was authorized by sec. 971.12(1), Stats.")(footnote quoting
statute omitted).
¶48 It is unclear from the record why Salinas did not
request severance based on prejudice. The record shows that
Salinas's lawyer did make one objection when M.S. testified
about the domestic violence incident, but the circuit court
overruled the objection finding the testimony was relevant to
context and background. See State v. Marinez, 2011 WI 12, ¶26,
331 Wis. 2d 568, 797 N.W.2d 399 (evidence admissible for context
"to provide a more complete story of the sexual assault . . . as
well as to provide greater information from which the jury could
assess [the child victim's]credibility"). The record also shows
the circuit court cautioned Salinas against pleading on the
intimidation counts if his only reason for doing so was an
expectation that the pleas would result in total exclusion of
the domestic violence evidence. The circuit court explained
that the domestic violence evidence would most likely come in
anyway under Wis. Stat. § 904.04's "other acts" test. See Hall,
30
No. 2013AP2686-CR
103 Wis. 2d at 142-43 (other acts evidence otherwise
inadmissible may come in when offered for an accepted purpose,
as long as they are relevant and not unfairly prejudicial).
¶49 Salinas's lawyer represented at oral argument that
although the reason for failing to file a severance motion was
not clear from the record, it most likely stemmed from the
circuit court's repeated indications that the domestic violence
evidence would be admitted. Failing to make a severance motion,
regardless of the reason, however, results in this issue not
being ripe for our consideration. Thus, our opinion is limited
to our holding that initial joinder here was proper.
IV. CONCLUSION
¶50 In sum, we hold that the initial decision to join the
intimidation charges with the sexual assault charges was proper
because these crimes were "2 or more acts or transactions
connected together or constituting parts of a common scheme or
plan." See Wis. Stat. § 971.12(1). Initial joinder was proper
under this entire phrase, under the "connected together"
provision, and under the "common scheme or plan" provision.
Because initial joinder was proper, we do not address harmless
error.
By the Court.—The decision of the court of appeals is
reversed.
31
No. 2013AP2686-CR.ssa
¶51 SHIRLEY S. ABRAHAMSON, J. (dissenting). At issue in
the instant case is whether joinder of several criminal charges
against the defendant, Luis Salinas——two charges of intimidation
of a victim and one charge each of repeated sexual assault of a
child, second-degree sexual assault with use of force, and
second-degree sexual assault of a child——was proper under the
criminal joinder statute, Wis. Stat. § 971.12(1) (2009-10).1
¶52 Construing Wis. Stat. § 971.12(1) "broadly,"2 the
majority opinion concludes that the sexual assault charges and
the victim intimidation charges were properly joined because
they "were '2 or more acts or transactions connected together or
constituting parts of a common scheme or plan.'"3
1
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
Majority op., ¶¶30, 31, 36.
3
The following sentences of the majority opinion are
difficult to understand and are not necessarily consistent:
We hold that joinder was proper because the charges
joined were "2 or more acts or transactions connected
together or constituting parts of a common scheme or
plan," the charges were "connected together," and the
charges constituted parts of a "common scheme or
plan."
Majority op., ¶2 (citing Wis. Stat. § 971.12(1)).
[I]nitial joinder is deemed proper: . . . (3) when two
or more crimes are based on two or more acts or
transactions that are "connected together"; or (4)
when two or more crimes are based on two or more acts
or transactions that constitute "a common scheme or
plan."
Majority op., ¶31.
(continued)
1
No. 2013AP2686-CR.ssa
¶53 I disagree with the majority opinion. I would affirm
the decision of the court of appeals that joinder was improper.
I write separately in dissent for three reasons.
¶54 First, the majority opinion's discussion of the
criminal joinder statute, Wis. Stat. § 971.12(1),4 is confusing
and appears internally inconsistent.
¶55 The joinder statute sets forth four different bases
for joinder: (1) the charged crimes are of the same or similar
character; or (2) the charged crimes are based on the same act
or transaction; or (3) the charged crimes are based on two or
This case presents us with the opportunity to analyze
whether the charges joined in Salinas's case should be
upheld because they were "2 or more acts or
transactions connected together or constituting parts
of a common scheme or plan, the charges were
"connected together," and the charges constituted
"parts of a common scheme or plan."
Majority op., ¶36.
In sum, we hold that the initial decision to join the
intimidation charges with the sexual assault charges
was proper because these crimes were "2 or more acts
or transactions connected together or constituting
parts of a common scheme or plan."
Majority op., ¶50.
4
Wisconsin Stat. § 971.12(1) states (in relevant part):
971.12 Joinder of crimes. (1) 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. . . .
2
No. 2013AP2686-CR.ssa
more acts or transactions connected together; or (4) the charged
crimes constitute parts of a common scheme or plan. The first
two bases are not relevant in the instant case and are not
discussed by the majority opinion. Only the third and fourth
bases are discussed by the majority opinion.
¶56 After noting that "'connected together' and 'common
scheme or plan' are separate and distinct prongs of the joinder
statute," the majority opinion conflates the two prongs as well
as analyzing them separately. See majority op., ¶¶32, 33, 37,
42, 45.
¶57 Second, I question whether the "broad" construction of
the joinder statute adopted in Francis v. State, 86 Wis. 2d 554,
558, 273 N.W.2d 310 (1979), and applied by the majority opinion
is warranted in the instant case. Both the relevant text of the
joinder statute, Wis. Stat. § 971.12(1), and the overwhelming
evidence that joinder of multiple charges prejudices criminal
defendants militate against a "broad" interpretation of joinder
in criminal cases.5
5
See, e.g., Andrew D. Leipold & Hossein A. Abbasi, The
Impact of Joinder and Severance on Federal Criminal Cases: An
Empirical Study, 59 Vand. L. Rev. 349, 383-84 (2006)
(concluding, based on empirical data, that a "defendant's
chances of conviction increase by more than 10% if he stands
trial on more than one count."); James Farrin, Note, Rethinking
Criminal Joinder: An Analysis of the Empirical Research and Its
Implications for Justice, 52 Law & Contemp. Probs. 325, 327-31
(1989) (reviewing a variety of empirical studies showing joinder
of multiple charges may result in jury confusion, incorrect
weighing of the evidence, and improper jury inferences of
criminality; studies unanimously found an increase in the
likelihood of conviction of defendants facing joined charges).
3
No. 2013AP2686-CR.ssa
¶58 Third, regardless of how Wis. Stat. § 971.12 is
interpreted ("broadly" or otherwise), the majority opinion
overstates the factual and legal connections between the sexual
assault charges and the victim intimidation charges. I agree
with the court of appeals' decision that the sexual assault
charges and the victim intimidation charges are, at most,
tangentially related. As a result, the majority opinion's
conclusion that the sexual assaults and victim intimidation
charges are "2 or more acts or transactions connected together
or constituting parts of a common scheme or plan" is mistaken.
¶59 For the reasons set forth, I dissent and write
separately.
I
¶60 I begin with the criminal joinder statute, Wis. Stat.
§ 971.12(1). Wisconsin Stat. § 971.12(1) states (in relevant
part and with emphasis added):
971.12 Joinder of crimes. (1) 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. . . .
¶61 As I stated previously, the joinder statute sets forth
four different bases for joinder. The parties do not dispute
that the sexual assaults and victim intimidation charges are not
"of the same or similar character" and are not "based on the
same act or transaction . . . ." Wis. Stat. § 971.12(1).
Rather, the parties' arguments and the majority opinion's
4
No. 2013AP2686-CR.ssa
discussion focus on whether the sexual assaults and victim
intimidation constitute "2 or more acts or transactions
connected together or constituting parts of a common scheme or
plan." Wis. Stat. § 971.12(1).
¶62 The majority opinion's treatment of this language——"2
or more acts or transactions connected together or constituting
parts of a common scheme or plan"——is confusing and appears to
be internally inconsistent.
¶63 The majority opinion restates this language in several
different ways. See note 3, supra.
¶64 Although the majority opinion states that "'connected
together' and 'common scheme or plan' are separate and distinct
prongs in the joinder statute," the majority opinion begins its
analysis by conflating the two, analyzing whether "the separate
crimes were connected together by a common scheme or plan." See
majority op., ¶¶33, 37. Later, however, the majority opinion
analyzes each of these prongs of the joinder statute separately.
See majority op., ¶¶42-46.
¶65 In sum, these differing approaches at different parts
of the opinion are confusing and potentially inconsistent.
¶66 In my view, Wis. Stat. § 971.12(1) sets forth four
bases for joinder including when two or more acts or transactions
are connected together or two or more acts or transactions
constitute parts of a common scheme or plan. These two bases for
joinder do not have the same meaning, but the same fact situation
may satisfy both bases.
II
5
No. 2013AP2686-CR.ssa
¶67 Next, I question whether the "broad interpretation" of
the joinder statute stated in Francis v. State, 86 Wis. 2d 554,
558, 273 N.W.2d 310 (1979), and repeated in the majority opinion
and other cases without careful analysis is warranted in the
instant case.6
¶68 Two factors militate against "broadly" interpreting
the joinder statute in the instant case: (1) The text of the
joinder statute; and (2) empirical evidence that joinder of
multiple charges prejudices criminal defendants.
¶69 The text of Wis. Stat. § 971.12(1), the criminal
joinder statute, does not state, as the majority opinion does,
that the statute should be given a broad interpretation in favor
of joinder. The legislature has not instructed, as it sometimes
does, how the text should be construed: broadly, narrowly,
liberally, or strictly.7
¶70 Rather, the directive of broad interpretation of the
joinder statute stems from a 1979 case, Francis v. State, 86
Wis. 2d 554, 558-59, 273 N.W.2d 310 (1979). In Francis, this
court recognized that the joinder statute does not require
joinder of two or more charges, and joinder of two or more
6
See majority op., ¶¶30-31, 36; see also State v. Prescott,
2012 WI App 136, ¶15, 345 Wis. 2d 313, 825 N.W.2d 515; State v.
Bellows, 218 Wis. 2d 614, 622, 582 N.W.2d 53 (Ct. App. 1998);
State v. Hoffman, 106 Wis. 2d 185, 208, 316 N.W.2d 143 (Ct. App.
1982).
7
See, e.g., Wis. DWD v. Wis. DOJ, 2015 WI 114, ¶¶30-34, 365
Wis. 2d 694, 875 N.W.2d 545 (refusing to liberally construe Wis.
Stat. §§ 230.80-.89 despite clear legislative directive in Wis.
Stat. § 230.02 to "construe[ ] [the statutes] liberally in aid
of the purposes declared . . . .").
6
No. 2013AP2686-CR.ssa
charges does not require a joint trial on the charges.8 The
Francis court observed that "[a] broad interpretation of the
joinder provision is consistent with the purposes of joinder,
namely trial convenience for the state and convenience and
advantage to the defendant."9 The majority opinion agrees that a
broad interpretation of the joinder statute fits these
convenience and efficiency goals.10
¶71 In support of its "broad interpretation" of Wis. Stat.
§ 971.12, the Francis court relied on a 1961 article by Frank J.
Remington and Allan J. Joseph, titled Charging, Convicting, and
Sentencing the Multiple Criminal Offender, 1961 Wis. L. Rev.
528, 538-39. Remington and Joseph stated that joinder of
multiple charges generally promotes convenience and efficiency
and can be beneficial to defendants. The traditional policy in
favor of joinder is one of administrative convenience.11
8
Francis v. State, 86 Wis. 2d 554, 558, 273 N.W.2d 310
(1979).
9
Francis, 86 Wis. 2d at 558-59 (citing Frank J. Remington &
Allan J. Joseph, Charging, Convicting, and Sentencing the
Multiple Criminal Offender, 1961 Wis. L. Rev. 528, 538-39).
10
See majority op., ¶36 ("We interpret initial joinder
decisions broadly because of the goals and purposes of the
joinder statute: (1) trial economy and convenience; (2) to
promote efficiency in judicial administration; and (3) to
eliminate multiple trials against the same defendant, which
promotes fiscal responsibility.") (citing Francis, 86 Wis. 2d at
560; State v. Leach, 124 Wis. 2d 648, 671, 370 N.W.2d 240
(1985)).
11
See Note, Criminal Law——Joinder and Severence Under the
New Wisconsin Criminal Procedure Code, 1971 Wis. L. Rev. 604,
606.
7
No. 2013AP2686-CR.ssa
¶72 Although Francis was correct that a broad
interpretation of Wis. Stat. § 971.12(1) is consistent with the
purposes of joinder discussed therein, namely trial convenience,
judicial efficiency, and convenience to a defendant,12 Remington
and Joseph cautioned that "joinder of several offenses in a
single proceeding may, under some circumstances, be prejudicial
to the defendant."13 The defendant in the instant case in effect
objected to the joinder of charges because joinder would enable
the prosecution to introduce evidence irrelevant and unrelated
to the other criminal charges.
12
Wisconsin Stat. § 971.12(1) is modeled after Federal Rule
of Criminal Procedure 8. In interpreting and applying Wis.
Stat. § 971.12(1), federal authorities assist in my analysis.
See State v. Gudenschwager, 191 Wis. 2d 431, 439, 529 N.W.2d 225
(1995).
In analyzing Federal Rule of Criminal Procedure 8, Wright's
Federal Practice and Procedure states that a broad
interpretation of the joinder statute will allow joinder
regardless of whether it is just or fair. 1A Charles Alan
Wright et al., Federal Practice And Procedure § 143 (3d ed.
1999); see also Thomas C. Wales, Note, Harmless Error and
Misjoinder Under the Federal Rules of Criminal Procedure: A
Narrowing Division of Opinion, 6 Hofstra L. Rev. 533, 536-37
n.14 (1978):
For the defendant who goes to trial properly joined
under [federal] rule 8, the chances of receiving a
separate trial at a later time are unlikely at the
trial level and even less likely on appeal . . . . It
is for this reason that the courts' interpretation of
[federal] rule 8 and what they first determine to be
the bounds of proper joinder are of central
importance. A broad interpretation of rule 8 means
broad joinder.
13
Frank J. Remington & Allen J. Joseph, Charging,
Convicting, and Sentencing the Multiple Criminal Offender, 1961
Wis. L. Rev. 528, 538-39.
8
No. 2013AP2686-CR.ssa
¶73 The emphasis in Francis was on the value of joinder to
the administration of justice. The language in Francis
regarding a "broad interpretation" of the joinder statute makes
sense when limited to the administrative convenience purposes
stressed therein. Efficiency is an important value. Outside of
joinder for pretrial purposes, however, we should not broadly
interpret the joinder statute because the efficiency gained by
joining multiple charges for trial may result in significant
prejudice to the defendant. Interpreting the joinder statute
according to its text, without the patina of "broad
interpretation," avoids undue prejudice——another important value
in criminal law.
¶74 We should not broadly interpret and apply the text of
the four bases for joinder because, as recent empirical studies
of joinder have demonstrated, joinder of multiple charges has a
prejudicial effect on criminal defendants.
¶75 Empirical research, like other forms of evidence, can
and should inform decision making (as it does elsewhere in the
criminal justice system) in interpreting and applying the four
bases for joinder. Indeed, Wisconsin has been a leader in
9
No. 2013AP2686-CR.ssa
evidence-based decision making.14 Examples of empirical studies
describing the prejudice to defendants who face joinder of
multiple charges are as follows:
• Edie Greene & Brian H. Bornstein, Nudging the Justice
System Toward Better Decisions, 103 J. Crim. L. &
Criminology 1155, 1163 (2013) (reviewing Dennis J.
Devine, Jury Decision Making: The State of the Science
(NYU Press 2012)):
[J]oinder of criminal charges biases
jurors' judgments against a defendant
because jurors attribute multiple
instances of wrongdoing to a
defendant's criminal disposition and
confuse evidence relevant to multiple
charges.
• Andrew D. Leipold & Hossein A. Abbasi, The Impact of
Joinder and Severance on Federal Criminal Cases: An
Empirical Study, 59 Vand. L. Rev. 349, 383 (2006)
(emphasis added):
Joinder of counts has a significant
impact on the outcome of trials. A
14
See, e.g., Judge Elliot M. Levine, Evidence-Based
Decision Making: EBDM in Wisconsin: A Primer, Wis. Counties,
Aug. 2015, at 22; Planning & Policy Advisory Committee,
Effective Justice Strategies Subcommittee, Phase II: Progress
and Accomplishments 7 (Nov. 13, 2013) ("In the past 5 years,
evidence-based practices in Wisconsin have gained strides in
their use and understanding . . . ."), available at
https://www.wicourts.gov/courts/programs/docs/finalreport.pdf;
Mary Beth Kirven, National Center for State Courts, The Use of
Evidence-Based Practices in Wisconsin Adult Drug Courts: An
Overview 1 (2011-12) (identifying "court-related evidence-based
strategies that enhance public safety, reduce recidivism, and
address criminal and addictive behaviors . . . .") (quotation
omitted).
10
No. 2013AP2686-CR.ssa
defendant who stands trial on a single
count is roughly 9 percentage points
less likely to be convicted than
defendants who face multiple counts.
• Andrew D. Leipold, How the Pretrial Process
Contributes to Wrongful Convictions, 42 Am. Crim. L.
Rev. 1123, 1142-43 (2005) (footnotes omitted):
Joining charges or defendants in a
single trial is a great resource saver,
and it helps avoid the "scandal of
inconsistent verdicts." The risks of
joinder for the defense, however, are
many. A defendant who is guilty of one
charge but innocent of another may find
it difficult to present separate
defenses to separate charges,
particularly if he wants to take the
stand on the second count but not the
first. More significantly, a jury
considering an innocent defendant
charged with multiple counts may infer
a criminal disposition, or "may
cumulate the evidence of the various
crimes charged and find guilty, when,
if considered separately it would not
so find."
• James Farrin, Note, Rethinking Criminal Joinder: An
Analysis of the Empirical Research and Its
Implications for Justice, 52 Law & Contemp. Probs.
325, 330-31 (1989) (footnotes omitted):
[T]he studies are unanimous in finding
that defendants do face a greater
likelihood of conviction if offenses
are tried jointly rather than
separately. . . . A cumulative
compilation of all the joinder research
findings shows that the effect of
joinder of offenses is robust; there is
a significantly greater likelihood of
conviction for defendants. These
findings have been constant despite
11
No. 2013AP2686-CR.ssa
varying methodologies by the
researchers.
• Kenneth S. Bordens & Irwin A. Horowitz, Information
Processing in Joined and Severed Trials, 13 J. Applied
Soc. Psych. 351, 369 (1983):
[J]urors in a joined trial situation
cannot keep the two charges separate
and arrive at independent verdicts.
¶76 These studies identify several reasons why joinder of
multiple charges for trial leads to a significantly higher
likelihood of conviction: Juries may be confused, may struggle
to remember evidence going to numerous charges, may selectively
remember only the evidence that confirms their ultimate
conclusion, or may infer "that the defendant has a criminal
personality type"15 because of the multiple charges.16
¶77 Wisconsin case law echoes these concerns. "The
potential problem as a result of a trial on joint charges is
that a defendant may suffer prejudice since a jury may be
incapable of separating the evidence relevant to each offense or
because the jury may perceive a defendant accused of several
crimes is predisposed to committing criminal acts."17
15
Farrin, supra note 5, at 330.
16
Although these writings focus largely on the risks of
jury bias and confusion, at least one study concluded that the
prejudicial effect of joining multiple charges is actually more
substantial in bench trials than jury trials. See Leipold &
Abbasi, supra note 5, at 383.
17
State v. Leach, 124 Wis. 2d 648, 672, 370 N.W.2d 240
(1985) (citing State v. Bettinger, 100 Wis. 2d 691, 696-97, 303
N.W.2d 585 (1981)).
12
No. 2013AP2686-CR.ssa
¶78 As a result, I conclude that a "broad" interpretation
of the joinder statute is not justified in the instant case.
Rather, the joinder statute should be interpreted using the
interpretative tools ordinarily used in statutory
interpretation.
III
¶79 I turn now to the application of Wis. Stat.
§ 971.12(1) in the instant case. The majority opinion concludes
that the circuit court properly joined the multiple sexual
assault charges and the victim intimidation charges because they
are "2 or more acts or transactions connected together or
constituting parts of a common scheme or plan . . . ."18 Wis.
Stat. § 971.12(1). The instant case involves a third set of
charges, not at issue here, that involve domestic abuse.
¶80 In reaching its conclusion, the majority opinion
relies on the following:
• V.G. was the alleged victim of both victim intimidation
and sexual assault. See majority op., ¶38.
• The last sexual assault allegedly took place on the same
day as the domestic violence incident (to which the
victim intimidation charge is related). See majority
op., ¶38.
• "Salinas's domestic violence toward V.G. immediately
preceded the [last] sexual assault." Namely, Salinas
18
See majority op., ¶2.
13
No. 2013AP2686-CR.ssa
allegedly slapped V.G. on the date of the domestic
violence incident. See majority op., ¶38.
• The victim intimidation charges and sexual assault
charges "were close in time, involved the same people,
and Salinas arguably engaged in one crime to prevent
disclosure and punishment for another." See majority
op., ¶38.
• The majority opinion asserts that "[t]he State presented
evidence that all of Salinas's crimes constituted parts
of his common scheme or plan to use threats,
intimidation, physical and sexual abuse to maintain power
and control over the woman with whom he lived, as well as
her daughter, so he could break the law without risk of
getting caught." Majority op., ¶46.
¶81 The majority opinion's recounting of the "connections"
between the sexual assault charges and the victim intimidation
charges is seriously flawed. I agree with the decision of the
court of appeals. It carefully applied Wis. Stat. § 971.12(1)
and concluded that joinder of the sexual assault charges and the
victim intimidation charges was improper.
¶82 First, although the sexual assault charges and the
victim intimidation charges do have one victim in common, V.G.,
the majority opinion ignores the fact that M.S. was a victim
only of the victim intimidation.
¶83 Second, the majority opinion overstates the facts it
claims connect the sexual assault charges and the victim
intimidation charges by relying on a third set of charges——the
14
No. 2013AP2686-CR.ssa
domestic violence charges——that were not joined and are not at
issue in the instant case.
¶84 Although the majority opinion correctly asserts that
the last sexual assault allegedly occurred the same day as the
domestic violence incident (which, in turn, led to the victim
intimidation charges), V.G. alleged that Salinas sexually
assaulted her dozens of times over a period of two and one-half
years. Even if the last sexual assault incident were connected
to the victim intimidation charges (through the domestic
violence incident that is not at issue in this case), that
single incident does not connect 2.5 years of sexual assaults to
the intimidating phone calls. The intimidating phone calls were
made nearly six months after the last of the sexual assaults
allegedly occurred and one month before the sexual assaults were
reported.
¶85 Likewise, the majority opinion overstates the scope of
the alleged victim intimidation. Although the majority opinion
correctly states that Salinas made hundreds of phone calls from
jail to M.S. and V.G. while awaiting sentencing on the domestic
abuse charges,19 the majority opinion conveniently omits the fact
that only a handful of such calls were actually completed.
¶86 Third, the sexual assault charges and the victim
intimidation charges were not based on the same act or
transaction or on two or more acts or transactions connected
19
Majority op., ¶5.
15
No. 2013AP2686-CR.ssa
together. No connection existed between the jail phone calls
and the sexual assault charges.
¶87 With no factual support whatsoever, the majority
opinion asserts that "Salinas arguably engaged in one crime to
prevent disclosure and punishment for another."20 As the court
of appeals put it, "[t]here was no connection between the jail
phone calls and the sexual assault allegations. The coercive
phone calls were related only to sentencing in the domestic
abuse case. Indeed, the sexual assault allegations and charges
did not arise until after the domestic abuse case sentencing
hearing had concluded."21
¶88 Simply put, the only support for the majority
opinion's assertion that Salinas made the intimidating phone
calls in an effort to prevent disclosure of and punishment for
the sexual assaults is the majority's speculation about
Salinas's motives.
¶89 Fourth, the majority opinion makes the unsupported
assertion that "[t]he State presented evidence that all of
Salinas's crimes constituted parts of his common scheme or plan
to use threats, intimidation, physical and sexual abuse to
maintain power and control over" M.S. and V.G. "so he could
break the law without risk of getting caught."22
20
See majority op., ¶38.
21
See State v. Salinas, No. 2013AP2686, unpublished slip
op., ¶24 (Wis. Ct. App. Apr. 21, 2015) (emphasis added).
22
See majority op., ¶46.
16
No. 2013AP2686-CR.ssa
¶90 No evidence was presented that Salinas had a common
scheme or plan to intimidate and control M.S. and V.G. The only
"evidence" of such a scheme is the offenses themselves and the
majority's unsupported inferences and conjecture. As the court
of appeals put it, "[i]t appears the State may believe it was
appropriate to join the cases because the victim intimidation
and sexual assault allegations generally demonstrated Salinas's
character trait of being manipulative. If so, that does not
satisfy the joinder requirements of [Wis. Stat.] § 971.12(1)."23
¶91 I agree with the court of appeals. Neither the State
nor this court can justify joinder under Wis. Stat. § 971.12(1)
by speculation and conjecture.
¶92 Moreover, I agree with the defendant and the court of
appeals that the circuit court's decision that it was correct as
a matter of law under Wis. Stat. § 971.12(1) to permit joinder
of the sexual assault charges and the victim intimidation
charges against Salinas was prejudicial to the defendant.
Improper joinder is presumptively prejudicial, and the State
must rebut the presumption of prejudice by proving the error was
harmless.24
¶93 The State argues that any error in joining the sexual
assault charges and the victim intimidation charges against
Salinas was harmless because (1) the evidence of Salinas's guilt
23
State v. Salinas, No. 2013AP2686, unpublished slip op.,
¶27 (Wis. Ct. App. Apr. 21, 2015).
24
See Leach, 124 Wis. 2d at 672-73.
17
No. 2013AP2686-CR.ssa
on the sexual assault charges was overwhelming; and (2) the
evidence of the domestic abuse incident would have been admitted
in a separate trial as contextual "other acts" evidence.25
¶94 I disagree with the State's arguments.
¶95 First, the evidence of Salinas's guilt of the sexual
assaults was not overwhelming. As the court of appeals put it,
this was "a classic 'he-said, she-said' case," in which there
was no physical evidence or third-party witness reinforcing
V.G.'s allegations.26
¶96 Second, in assessing "other acts" evidence, we ask
whether (1) the evidence is offered for a permissible purpose
under Wis. Stat. § (Rule) 904.04(2); (2) the evidence is
relevant under Wis. Stat. § 904.01; and (3) the probative value
of the evidence outweighs the potential prejudice or risk of
confusion.27
¶97 Even assuming for the sake of argument that the
evidence of the victim intimidation charges (and domestic
violence) was relevant and offered for a permissible purpose,
the potential prejudice and risk of confusion far outweigh the
25
See State v. Shillcutt, 116 Wis. 2d 227, 236, 341
N.W.2d 716 (Ct. App. 1983) ("[A]n accepted basis for the
admissibility of evidence of other crimes arises when such
evidence furnishes part of the context of the crime or is
necessary to a full presentation of the case.") (internal
quotation marks and quoted source omitted).
26
See State v. Salinas, No. 2013AP2686, unpublished slip
op., ¶36 (Wis. Ct. App. Apr. 21, 2015).
27
See State v. Sullivan, 216 Wis. 2d 768, 783, 576
N.W.2d 30 (1998).
18
No. 2013AP2686-CR.ssa
probative value. V.G. alleged 40 to 50 sexual assaults over a
period of two and a half years. The fact that one of the
alleged sexual assaults occurred on the same day as the domestic
violence incident (which in turn led to the intimidating phone
calls——all of which occurred after the last sexual assault and
before the sexual assaults were reported) is simply not
sufficiently probative to outweigh the substantial risk of
prejudice to Salinas.
¶98 In sum, I would affirm the decision of the court of
appeals.
¶99 In closing, I note that the court of appeals' decision
in the instant case was an unpublished per curiam decision.
When the court granted review in the instant case, I wrote
separately, in a comment appended to the order, noting:
The Wisconsin Court of Appeals Internal Operating
Procedures explains that per curiam opinions do not
involve "new or unsettled questions of general
importance."
. . . .
I write to urge the court to keep in mind
Attorney Michael S. Heffernan's cautionary comment at
§ 23.14 in his book entitled Appellate Practice and
Procedure in Wisconsin (6th ed. 2014): "[There is]
considerable discrepancy in the quality of the
petitions [the Wisconsin Supreme Court] grants. To
control its calendar [in fear of being inundated] the
court may deny arguably meritorious petitions and then
may end up granting petitions for little apparent
reason other than filling its calendar."
¶100 This court's criteria for granting review are set
forth in Wis. Stat. § (Rule) 809.62(1r) and emphasize the law-
developing role of this court. Despite this court's law-
19
No. 2013AP2686-CR.ssa
developing role, 26% of the court's docket this term is expected
to be reviews of per curiam decisions of the court of appeals——
the highest rate in more than 20 years.28
¶101 Neither this court nor the court of appeals developed
the law in the instant case. Without developing the law, this
court is not fulfilling its role and is instead serving as an
error-correcting court. Unfortunately, it is the majority
opinion, not the court of appeals, that errs in the instant
case.
¶102 For the reasons set forth, I dissent and write
separately.
¶103 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
28
See Alan Ball, Is the Court of Appeals Responsible for
the Supreme Court's Per Curiam Diet?, SCOWStats, Apr. 26, 2016,
http://www.scowstats.com/2016/04/26/is-the-court-of-appeals-
responsible-for-the-supreme-courts-per-curiam-diet/; see also
Alan Ball, Justice Abrahamson's Concerns Over the Docket - An
Update, SCOWStats, Mar. 20, 2016,
http://www.scowstats.com/2016/03/20/justice-abrahamsons-
concerns-over-the-docket-an-update/; Alan Ball, Justice
Abrahamson's Concerns Over the 2015-16 Docket, SCOWStats, Oct.
15, 2015, http://www.scowstats.com/2015/10/15/justice-
abrahamsons-concerns-over-the-2015-16-docket-2/.
20
No. 2013AP2686-CR.ssa
1