State v. Luis C. Salinas

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 App. 2015 – Unpublished)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in an unpublished per curiam opinion.3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