United States District Court, E.D. Wisconsin
SEAN A. RIKER, Petitioner,
GARY BOUGHTON, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
UNDER 28 U.S.C. §2254 (DKT. NO. 1), DISMISSING CASE AND
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY
PAMELA PEPPER Chief United States District Judge.
November 2011, a Racine County jury convicted the petitioner
of sixteen charges related to the physical and sexual abuse
of his then-wife and two stepdaughters, CJ and KS. Dkt. No.
1. This habeas petition alleges that the state
presented insufficient evidence to convict him of nine of the
sixteen charges and that the court imposed an excessive
sentence in violation of the Eighth Amendment. Id.
The Wisconsin Court of Appeals did not unreasonably apply the
law in finding that the state presented sufficient evidence
to convict the petitioner. The court will dismiss the
petition and decline to issue a certificate of appealability.
about 10:45 a.m. on November 10, 2009, Tayler Riker came to
the Racine County Sheriff's Department with her four
children-CJ, KS, KR and SR-to file an assault complaint. Dkt.
No. 29-1 at 148-149. She was, according to the officer who
assisted her, upset, shaking, crying and injured.
Id. at 151. The officer took photos of the injuries.
Id. At trial, Tayler testified that in November
2009, she, the petitioner and the children had moved to
Wisconsin. Dkt. No. 29-3 at 66. She testified that after she
married the petitioner, he had begun to abuse the children,
and that it escalated as the relationship went on.
Id. at 73. She described various incidents of
physical injury and sexual abuse over the years before the
family moved to Wisconsin. Id. at 67-81. She told
the jury that once they arrived in Wisconsin, the petitioner
became more stressed and agitated, and that he abused her and
the children. Id. at 86-97. She described an
incident that occurred on November 5, 2009, when the family
arrived home from shopping to find that one of the children
had locked the keys in the house, and how the petitioner
reacted by physically abusing her and the children.
Id. at 87-97. These events included an incident
where the petitioner made CJ suck up a urine stain with her
mouth. Id. at 97-98. She described another incident
several days later, where the petitioner sexually abused CJ,
and hit her, while driving. Id. at 98-100. She
described an incident on November 9, 2009 where the
petitioner broke a broom and threatened her with the stick,
and where the petitioner threatened to kill her. Id.
at 100-105. She also described an incident where the
petitioner held a gun to several family members' heads.
Id. at 107-110.
on November 10, 2009, police apprehended the petitioner at
the family's residence. Id. at 177-181.
County charged the petitioner in a sixteen-count criminal
complaint. State of Wisconsin v. Sean A. Riker, Case
Number 2009CF001490, Racine County Circuit Court, available
at wcca.wicourts.gov (last visited Nov. 12, 2019). The
complaint alleged three counts of first-degree recklessly
endangering safety, one count of possession of firearm by a
felon, one count of battery, one count of strangulation and
suffocation, five counts of child abuse, two counts of
causing mental harm to a child, one count of repeated sexual
assault of the same child, one count of sexual contact with
person under the age of thirteen and one count of possessing
a short-barreled shotgun/rifle. Id. The jury trial
took place in November of 2011.
state presented evidence from Racine County Sheriff's
Department investigators, including detective James Muller,
who took the intake interview with Tayler Riker. Dkt. No.
29-1 at 151. The jury saw photographs of Tayler's bruises
and black eye from November 10, 2009. Id. The jury
watched video interviews of KS and CJ from the day they
reported to the Sheriff's Department and from a month
after reporting the allegations. See Dkt. No. 29-1
at 165-66 (November interview of KS); Dkt. No. 29-2 at 4
(December interview of KS); Dkt. No. 29-2 at 55 (November
interview of CJ); Dkt. No. 29-2 at 55-56 (December interview
of CJ). The jury heard in-person testimony from KS and CJ.
Dkt. No. 29-2 at 11-97. KS testified about an incident where,
after being locked out of the house, the petitioner blamed KS
and “smashed [her] against the door.” Dkt. No.
29-2 at 16. She testified about a time the petitioner
“was putting his hand on [CJ]'s leg and like
rubbing against it, and she told him not to and he got really
mad and smacked-um hit her[.]” Id. at 17. She
testified that she saw the petitioner with a gun and that he
put the gun to everyone's head. Id. at 17. She
testified that there was a time that CJ wet the bed and that
the petitioner made CJ suck half of it up with her mouth.
Id. at 18-19.
testified that she lived with the petitioner for three years
and did not like living with him. Id. at 59. She
testified that “[the petitioner] would make me sleep
with him at night. He would make me take a shower with him.
He would always touch me.” Id. at 60. She
testified that the petitioner showed her his penis; “he
would walk around the house naked always wave it in my face
and tell me to put it in my mouth.” Id. at 61.
She testified about an “incident that happened on the
futon in Wisconsin” where she “had an accident
and [the petitioner] made me suck it up with my mouth.”
Id. She testified that she witnessed the petitioner
putting a “sawed-off shotgun” to KS's and
Tayler Riker's head. Id.
jury heard from Rita Kadamian, a nurse practitioner who
physically examined CJ and KS on November 10, 2009. Dkt. No.
29-3 at 7-8. She testified that both girls had normal
physical and sexual exams (with the exception of one bruise
on CJ's back consistent with kicking), but that 95% of
all child victims present with normal exams. Id. at
9-11. The jury heard from Dr. Melissa Westendorf, a clinical
and forensic psychologist who conducted interviews with both
girls in December of 2009. Id. at 22. She testified
that she found the girls to have anxiety, excessive worry,
symptoms of anxiety (such as bed wetting) and symptoms of
depression. Id. at 24.
jury heard from Tayler Riker, who explained that in the week
the family had been in Wisconsin, things escalated beyond
their normal level. Id. at 86. She testified that
after the family got locked out of their house on November 5,
2009, the petitioner got angry and “slammed [KS's]
head against the door and he called her a bitch.”
Id. She stated the petitioner proceeded to beat and
choke her (Tayler) as well. Id. She testified that
she bled from this beating and hid her bloody shirt under the
sink. Id. at 92. The state presented the shirt as
well as a picture of where law enforcement found the
shirt-under the vanity. Id. Tayler also testified
about an incident on November 7, 2009, where she saw the
petitioner “play wrestling” with CJ and
“feeling her up.” Id. at 94. She said
that when CJ asked him to stop, and “knuckled
him” on the top of his head, the petitioner got angry
and began punching CJ in the head. She testified that before
CJ could run out of the room, CJ urinated on the futon.
Id. at 96. Tayler said that when the petitioner
discovered the urine on the futon, he “told [CJ] to
suck it up with her mouth.” Id. at 97.
testified about an incident that occurred while driving; she
said that while CJ was seated in the front passenger seat,
Tayler saw the petitioner “tr[ying] to caress the inner
part of [CJ's] left leg.” Id. at 99. CJ
told him to stop and eventually climbed into the back seat
with the rest of the family. Id. at 99-100. The next
day, Tayler testified that the petitioner became upset about
the house being messy and threatened Tayler: “if shits
not different tomorrow that's it.” Id. at
102. She testified that she feared he would kill her.
Id. As part of this tirade, Tayler stated the
petitioner broke the TV and VCR. Id. at 103.
Tayler testified that her husband brought a gun to Wisconsin
from Utah. Id. at 107. When shown a picture of the
gun eventually recovered from the residence, she stated her
belief that it was a shotgun and that she would not know the
difference between a shotgun and rifle. Id. at
107-108. She described an incident where the petitioner
pointed the gun at the back of her head, the back of KS's
head, and the back of her son SR's head. Id. at
108-09. She testified that she heard him pull the trigger
while the gun was behind KS's head. Id. at 110.
She testified that she was certain the gun was not loaded,
but went to the police because of the petitioner's access
to the gun, because things were escalating and because she
“really believed [the petitioner] would kill me.”
Id. at 111.
jury also heard from Peter Zurawski, who moved into the Riker
family's residence after Tayler moved out and found a gun
lodged behind the furnace. Id. at 171. Deputy
Sheriffs testified about making phone contact with the
petitioner on the day of his arrest and about following up
with Zurawski as to where he found the gun. Id. at
180-188. The jury heard from the investigator who located the
petitioner at his residence using the petitioner's cell
phone signals. Id. at 192. The same investigator
testified about executing a search warrant of the residence
and finding a bloody blue shirt, a broken TV and a broken
VCR. Id. at 194-97. He testified that they did not
find a gun, despite an extensive search. Id. at 198.
The jury heard from Nicholas Homa, a forensic scientist with
the Milwaukee Crime Lab, who testified that swabs taken from
the blue shirt indicated that it was Tayler Riker's
blood. Dkt. No. 29-4 at 3-4. Last, investigator Muller
testified upon re-call that he performed an e-trace of the
gun, which revealed its original owner to reside in Utah.
Id. at 17.
presenting witnesses, the petitioner moved to dismiss all
counts. Dkt. No. 29-4 at 25. His counsel focused particularly
on the “causing mental harm to a child” counts,
contending that “there's been no proof whatsoever
of any evidence showing that my client caused mental harm to
these children in Wisconsin.” Id. at 25. More
generally, he argued that the witnesses' testimony was
“all over the map in all days, times and locations.
Specific locations however as to what happened in Wisconsin
are woefully lacking.” Id. at 26. The trial
court reserved ruling. Id. at 29.
petitioner presented testimony from Dr. Thomas Schacht, a
professor of psychiatry and behavioral science at the College
of Medicine at East Tennessee State University Id.
at 32. Dr. Schacht reviewed the video interviews of the child
victims and offered various criticisms of the
interviewers' techniques; for example, the interviewers
did not (but, Schacht asserted, should have) explored the
alternative hypothesis that the mother had coached her
children. Id. at 49-50. Dr. Michael Kula, a clinical
psychologist, also testified for the defense. Id. at
104. He offered criticisms of the interviewing techniques and
testified that based on his review of the videotapes, KS
“did not experience the any [sic] type of significant
emotional affect or stress that would be diagnosable such as
a major depressive disorder or generalized anxiety
disorder.” Id. at 122. He further opined that
he did not believe the petitioner caused either daughter any
significant or substantial harm. Id. at 130.
petitioner did not testify. Id. at 154. In
cross-examination and closing argument, the petitioner's
counsel argued that Tayler Riker was on a mission to get rid
of her husband and had coordinated the children's reports
of abuse. Dkt. No. 29-5 at 45. Through Tayler, the petitioner
introduced almost forty photos and several home videos taken
during the trip to Wisconsin and in Wisconsin; he argued that
none of these photos or videos showed the children as being
unhappy or revealed evidence of abuse. Dkt. No. 29-3 at
149-50. He argued that the children's testimony had been
inconsistent-that it would be impossible for the jury to
conclude beyond a reasonable doubt that all these incidents
happened in Wisconsin (as opposed to Utah). Dkt. No. 29-5 at
54-57. He argued that although the child victims regularly
attended school, none of their teachers or other school
employees had ever reported suspicious injuries or
misbehavior. Id. at 53. He also argued that had the
abuse been as severe as the victims claimed, there would have
to have been physical evidence to corroborate that testimony;
because none existed, he argued, the jury could not (and
should not) believe the victims. Id. at 57.
jury returned guilty verdicts on all sixteen counts. Dkt. No.
29-5 at 122-25.
petitioner chose not to attend his sentencing. Dkt. No. 29-6.
His attorney reported that upon the attorney's arrival at
the petitioner's place of custody, he'd asked a guard
to call the petitioner; the petitioner had responded by
thanking counsel for coming, but indicating that he
“wasn't interested in being with [counsel] or
participating in this sentencing.” Id. at 2.
Counsel indicated that the petitioner had relayed that
message twice. Id.
sentencing judge (a different judge from the one who presided
over the trial) sentenced the defendant to ten years of
initial confinement on Count One; fifteen years of initial
confinement on Count Two; fifteen years of initial
confinement on Count Three; five years of initial confinement
on Count Four; one year of initial confinement on Count Five;
seven years of initial confinement on Count Six; seven years
of initial confinement on Count Seven; seven years of initial
confinement on Count Eight; seven years of initial
confinement on Count Nine; seven years of initial confinement
on Count Ten; seven years of initial confinement on Count
Eleven; thirteen and a half years of initial confinement on
Count Twelve; thirteen and a half years of initial
confinement on Count Thirteen; forty years of initial
confinement on Count Fourteen; forty years of initial
confinement on Count Fifteen; and five years of initial
confinement on Count Sixteen. Dkt. No. 29-6 at 62-66. He
ordered these sentences to run consecutively, for a
cumulative term of two hundred years of initial confinement.
Id. The periods of supervised release attached to
each of the periods of initial confinement totaled sixty-nine
Petitioner's Appellate Arguments
petitioner appealed. See Dkt. No. 15-4. He argued
that the state presented insufficient evidence to convict him
on all three of the first-degree recklessly endangering
safety counts, two of the five physical abuse of a child
counts, both causing mental harm to a child counts, the
repeated sexual assault of a child count and the sexual
assault of a child under thirteen count. Dkt. No. 15-4 at 2.
He argued that if the court vacated some of his convictions,
he was entitled to sentencing on the remaining counts.
recklessly endangering safety counts, the petitioner argued
that trial testimony showed that “the gun was not
loaded-and everyone, including Riker-knew it. This fact shows
that his conduct did not create a risk of death or great
bodily harm or evince utter disregard for human life.”
Id. at 17. For two of the physical abuse of a child
convictions, the petitioner argued that the state had not
presented evidence of pain or injury. Id. at 21. For
the causing mental harm to a child convictions, the
petitioner argued that Dr. Westendorf “could not say to
a reasonable degree of certainty that [the petitioner] caused
the harm” and that defense expert Dr. Kula testified
that “the testing produced scores that were in the
subclinical range and did not reveal major depression or
generalized anxiety disorders.” Id. at 24. For
the repeated acts of sexual assault charge, the petitioner
argued that CJ testified she slept with the petitioner
voluntarily and CJ's description of their sleeping style
(with the petitioner's front facing CJ's back and his
hand on her stomach) “failed to meet the jury
instruction that required contact with her vagina.”
Id. at 26. He also argued that CJ said the
petitioner used a bar of soap to touch her-not his hand or
fingers. Id. Finally, as to the sexual assault of
KS, the petitioner contended the state never established that
it happened in Wisconsin during the first week of November
2009. Id. at 28-29.
Court of Appeals Decision
January 28, 2015, the Court of Appeals affirmed the district
court. Dkt. No. 15-2. It observed that a jury verdict could
be reversed for insufficient evidence only where “the
evidence, viewed most favorably to the state and the
conviction, is so insufficient in probative value and force
that it can be said that no trier of fact, acting reasonably,
could have found guilt beyond a reasonable doubt.”
Id. at 2 (quoting State v. Poellinger, 153
Wis.3d 493, 501 (1990)).
the petitioner's challenge to the reckless endangerment
counts, the court observed that a firearm was considered a
dangerous weapon even if it was unloaded. Id. at 3
(citing Wis.Stat. §939.22(10)). The court surveyed the
trial testimony and concluded that “the jury reasonably
could have concluded that this escalation of established
abuse-saying he would kill them all, holding a gun to their
heads, and pulling the trigger-posed an unreasonable and
substantial risk of death or great bodily harm and evinced
utter disregard for their lives.” Id. at 4. It
had “no trouble” affirming these convictions.
the physical abuse of a child counts, the court noted
KS's testimony that the petitioner “slammed”
her head against the door, causing her to get a “big
bump.” Id. at 5. It observed that the
statutory definition of physical abuse required proof of
physical pain or injury, illness or any impairment of
physical condition; it did not require severe harm
necessitating medical treatment. Id. (citing
Wis.Stat. §939.22(4); Wis JI-Criminal 2109). Regarding
the hand-on-CJ's leg incident, the court of appeals
quoted CJ's testimony that when “she continued to
try and push it away and say no he began punching her
leg.” Id. at 6. It remarked “the jury
reasonably could have inferred from the testimony that
nine-year-old C.J. felt physical pain when a ‘really
mad' [petitioner] ‘smacked' or ‘hit'
or ‘punched' her in the face and on her leg. This
satisfied the element of bodily harm.” Id. at
the mental harm to a child counts, the appellate court
observed that although Dr. Westendorf opined that CJ and
KS's signs of anxiety, depression, and post-traumatic
stress disorder “stemmed from before they moved here,
” the jury also heard testimony that the
petitioner's outbursts increased to “every single
day” in Wisconsin and “were getting more
extreme.” Id. at 6-7. The appellate court
cited the petitioner's destruction of KS's school
materials and forcing CJ to suck up urine with her mouth as
evidence that allowed the jury “to conclude that [the
petitioner] caused the girls additional mental harm in
Wisconsin.” Id. at 6-7.
the sexual assault counts, the court relied on CJ's
testimony that the petitioner would walk around the house
naked, wave his penis in her face and tell her to put it in
her mouth. Id. at 7. It wrote “that sexualized
conduct provided sufficient evidence from which the jury
reasonably could have found that even if he used a bar of
soap to touch her vagina in the shower, he did it for
purposes of his sexual gratification.” Id. As
for the count related to KS, the court rejected the
petitioner's argument that KS had not been specific on
time-frame. Id. at 8. It concluded that “the
jury could have believed K.S.'s testimony about the
sexual assault in Wisconsin without believing that it
occurred in the summer.” Id. Having rejected
each of his arguments, the court affirmed the convictions.
Wisconsin Supreme Court declined review of the
petitioner's case ...