State v. Molde

1

State of Wisconsin, Plaintiff-Respondent, v. Jobert L. Molde, Defendant-Appellant.

No. 2021AP1346-CR

Court of Appeals of Wisconsin, District III

May 21, 2024

Not recommended for publication in the official reports.

APPEAL from a judgment and an order of the circuit court for Dunn County: Cir. Ct. No. 2017CF34 ROD W. SMELTZER, Judge.

Before Stark, P. J., Hruz and Gill, JJ.

GILL J.

¶1 Jobert L. Molde appeals a judgment, entered following a jury verdict, convicting him of one count of first-degree sexual assault of a child who had not attained the age of twelve years and one count of incest with a child.

He also appeals an order denying his motion for postconviction relief following a Machner^[1] hearing.

¶2 On appeal, Molde argues that his trial counsel was constitutionally ineffective by failing to object to an expert's testimony at the jury trial regarding the truthfulness of alleged child sexual assault victims.^[2] In particular, the circuit court read a juror-submitted question to the expert, which asked "How frequent is it for children to make up a story of sexual abuse[?]" The expert responded, without an objection from Molde's trial counsel, "False disclosures are extraordinarily rare, like in the one percent of all disclosures are false disclosures.'" (Emphasis added.)

¶3 We agree with Molde that his counsel performed deficiently by failing to object to this testimony. At the time of Molde's jury trial, the law on impermissible vouching testimony was well settled, and Molde's trial counsel should have known to object to the expert's testimony for two reasons. See State v. Morales-Pedrosa, 2016 WI.App. 38, ¶16, 369 Wis.2d 75, 879 N.W.2d 772; State v. Mader, 2023 WI.App. 35, ¶¶36-38 408 Wis.2d 632, 993 N.W.2d 761, review denied (WI Sept. 26, 2023) (No. 2022AP382-CR). First, the expert was directly involved in the victim's examination following her sexual assault accusation against Molde, and the expert's answer to the juror's question regarding a child's propensity to tell the truth when reporting sexual assault "would inevitably be seen by the jury as 'a personal or particularized' endorsement of [the victim's] credibility." See Mader, 408 Wis.2d 632 ¶38 (citation omitted). Second, the expert's testimony-which effectively stated to the jury that 99 percent of all child sexual assault reports are true-'"provided a mathematical statement approaching certainty' that false reporting simply does not occur." See id., ¶39 (citation omitted).

¶4 As a result of trial counsel's deficient performance, there is a reasonable probability that, absent counsel's error, the result of the proceeding would have been different. The impermissible vouching testimony was a direct response to a juror's question; that juror was a member of the twelve-person jury that convicted Molde; the State twice relied upon the impermissible vouching testimony in its closing argument; and the evidence at trial "for and against guilt was nearly in equipoise." See id., ¶86. We therefore reverse Molde's judgment of conviction and the circuit court's denial of Molde's postconviction motion on this issue, and we remand for a new trial.

BACKGROUND

¶5 On January 13, 2017, Molde's daughter Lauren,^[3] took a "near lethal" amount of over-the-counter pain medication in her school's bathroom, purportedly in an attempt to take her own life. After school officials were notified, they found several notes in her backpack, including one addressed to Molde in which she referenced a "night mom was gone and you made [Whitney^[4] come get me. You told me to be a 'big girl for daddy.'" Lauren later detailed to a school counselor and school nurse that Molde had sexually assaulted her.

¶6 Lauren, who was thirteen years old at the time of the allegations, also provided a full narrative of the sexual assault in an audiovisual forensic interview at a children's advocacy center three days after her suicide attempt. The interview was conducted by a nurse practitioner employed by the children's advocacy center. Thereafter, the State charged Molde with one count of first-degree sexual assault of a child who had not attained the age of twelve years and one count of incest with a child. According to the State, the alleged assault occurred between January 2011 and January 2012.

¶7 The circuit court later granted the State's motion to allow the nurse practitioner to testify at Molde's jury trial as an expert witness. The court stated that the nurse practitioner would assist the jury in understanding the forensic interview as well as why child sexual abuse victims delay reporting abuse. After the State discovered that the nurse practitioner was unavailable for the scheduled jury trial, the circuit court granted the State's motion to use the nurse practitioner's supervisor, Dr. Alice Swenson, instead.

¶8 At the jury trial, Dr. Swenson testified that she is a child abuse pediatrician at the children's advocacy center and that she supervised Lauren's forensic interview in real time. Regarding child sexual abuse victims generally, Swenson testified that roughly "90 percent" of child sexual abuse victims delay reporting the abuse and that the "vast majority of sexual abuse cases are perpetrated by a person the victim knows." She also testified that some child sexual abuse victims "end up doing things like self-harming and suicide attempts and end up with very significant emotional behavioral problems." According to Swenson, she assesses a child sexual abuse victim's credibility by determining whether the child provides consistent supporting details, including the physical environment where the abuse took place and "information that a child wouldn't necessarily know about" such as sexual intercourse.

¶9 While Dr. Swenson was on the witness stand, the State played for the jury Lauren's audiovisual forensic interview. In the interview, Lauren stated that on the night of the alleged assault, Stephanie-Lauren's adoptive mother and Molde's wife-had "gone away" for the evening after getting into an argument with Molde. According to Lauren, Whitney was sleeping with Molde upstairs in his bedroom. Lauren stated that Molde "made [Whitney] come down and get [her]." When Lauren arrived in Molde's bedroom, Molde "made [her] take off [her] clothes and told [her] to be a big girl." Lauren stated that Molde then "laid me down on the bed, and he also got undressed" and "[h]e just told me it will be good." Lauren stated that Molde "used his private part and he put it in [her private part]" and that "it hurt." According to Lauren, Molde "had his legs around mine. His arms were above my shoulders." Lauren could not remember if "anything c[a]me out of [Molde's] private part" during the assault, but she did state that Molde did not "put anything on this private part."

¶10 Lauren stated that Whitney was at Molde's bedroom door while Lauren was in the bedroom during the sexual assault, and that the "door was open ... most of the way, but it was really dark." She stated, "He stayed on top of me or whatever for awhile, and then like he said he was done. He made me get my clothes and go back to bed." Lauren stated that after she left Molde's room, Whitney told her "she wanted to be a big girl, too." Lauren told her "she didn't," and then she took Whitney back downstairs with her. Lauren stated that in the morning, Whitney asked her "if she could be a big girl, and [Lauren] told her no" and that "it was just a dream, [and] to forget about it." According to Lauren, her two older brothers, Trevor and Heath, were downstairs sleeping during the incident.

¶11 After the forensic interview was played for the jury, Dr. Swenson testified regarding the physical examination conducted of Lauren after Lauren gave her recorded statements. She stated that the physical examination of Lauren yielded no physical signs of sexual abuse. However, she further testified that "[i]n about 97 percent of sexual abuse cases where there's been a report of penetration, there are no findings" during a physical examination.

¶12 Following Dr. Swenson's testimony, and consistent with the circuit court's previous order permitting juror questions, Juror No. 47, who ultimately sat on the twelve-person jury, submitted two written questions for Swenson. Prior to asking the questions of the witness, the court held a sidebar with Molde's trial counsel and the State. Molde's trial counsel did not object to the proposed questions.

¶13 The circuit court then read the questions to the witness with the jury present: "How frequent is it for children to make up a story of sexual abuse[?] Why would they do that[?]" Doctor Swenson responded to the first question, stating, "False disclosures are extraordinarily rare, like in the one percent of all disclosures are false disclosures." In response to the second question, Swenson stated, "I don't think I really have an answer to that." Molde's trial counsel did not object to either of Swenson's answers, but the court permitted trial counsel to ask Swenson a follow-up question. Molde's trial counsel asked Swenson whether she based her answers to the juror's questions on particular studies, to which Swenson stated, "There are that I've read, yes. I don't know the names off the top of my head."

¶14 Ultimately, the jury found Molde guilty of first-degree sexual assault of a child who had not attained the age of twelve years and guilty of incest with a child. The circuit court later sentenced Molde to an aggregate sentence of twenty-five years' initial confinement followed by seven and one-half years' extended supervision.

¶15 Molde filed a motion for postconviction relief, and later a supplemental motion, arguing that his trial counsel was constitutionally ineffective by: (1)...