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State v. Salinas

Supreme Court of Wisconsin

May 26, 2016

State of Wisconsin, Plaintiff-Respondent-Petitioner,
Luis C. Salinas, Defendant-Appellant

         Oral Argument January 20, 2016

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         REVIEW of a decision of the Court of Appeals. COURT: Circuit. COUNTY: Brown. JUDGE: Marc A. Hammer. (L.C. No. 2010CF542). (Reported at 2015 WI App 43, 362 Wis.2d 538, 865 N.W.2d 884 (Ct.App. 2015 -- Unpublished).

         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.

         REBECCA G. BRADLEY, J. ABRAHAMSON and BRADLEY, A. W., JJ. dissent.


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          REBECCA G. BRADLEY, J.

          [¶1] 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 court[1] held that joinder was proper under 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 § 971.12(1)(2009-10); [2] the court of appeals reversed in an unpublished per curiam opinion.[3]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. 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 Alford[4] pleas to

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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 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 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

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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.

          [¶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 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:

o 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."
o Joining the two cases will not confuse the jury.
o " 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 intends to put all that

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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.

          [¶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:

o " Just because he might be a bad guy is really irrelevant."
o The intimidation counts relate to a prior conviction for hitting M.S. and V.G. The intimidation is not " about a sexual assault."
o " 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:

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o 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.
o 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.
o 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.
o The assaults occurred at both the Oakland Street house and the Dousman Street house.
o 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 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.
o One time after an argument with her mother, Salinas did take her brother A.S. and left for 7-10 days.
o Salinas assaulted her " more than 40 to 50 times" over two and one-half years.
o 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.
o 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.
o 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."
o 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."
o 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.
o 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.
o 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

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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 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:

o 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.
o 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.
o 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."
o 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.

          [¶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

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jail. V.G.'s statement from Salinas's 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 ...

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