Argument January 20, 2016
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(Ct.App. 2015 -- Unpublished).
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.
defendant-appellant, there were briefs by Steven D. Grunder,
assistant state public defender, and oral arguments by Steve
G. BRADLEY, J. ABRAHAMSON and BRADLEY, A. W., JJ. dissent.
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 held that
joinder was proper under Wis. Stat. §
971.12(1)(2009-10);  the court of appeals reversed in an
unpublished per curiam opinion.
[¶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.
[¶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
[¶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 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 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
[¶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
[¶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
[¶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
[¶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
[¶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
[¶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
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
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
o The intimidation counts relate to a prior conviction for
hitting M.S. and V.G. The intimidation is not " about a
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
[¶19] The State's main witnesses
included victims V.G. and M.S. V.G. testified:
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
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
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
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.
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
[¶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
jail. V.G.'s statement from Salinas's sentencing for
the domestic violence convictions was read to the jury. The
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