State v. Parks

949 N.W.2d 884 (Table)

2020 WI App 60

STATE of Wisconsin, Plaintiff-Respondent,

v.Michael L. PARKS,^† Defendant-appellant.

Appeal No. 2019AP654-CR

Court of Appeals of Wisconsin.

DATED AND FILED August 4, 2020

PER CURIAM.

¶1 Michael Parks appeals a judgment, entered upon a jury's verdicts, convicting him of three counts of first-degree sexual assault. He also appeals an order denying him postconviction relief. Parks asserts the circuit court erroneously exercised its discretion by excluding evidence of: (1) specific instances where the victim, Sara,¹ stole money from her family members to support her drug addiction; and (2) a prior allegation of sexual assault that Sara made. Parks also asserts that the exclusion of this evidence violated his constitutional rights to present a complete defense, to confront his accuser, and to a fair trial. Further, he argues that his trial counsel performed ineffectively by not raising certain arguments he contends would have supported the admission of the excluded evidence, and also that he is entitled to a new trial in the interest of justice. We reject each of Parks’ arguments and affirm.

BACKGROUND

¶2 On March 10, 2014, the State charged Parks with four counts of first-degree sexual assault.² The charges arose from Sara's allegation that, in September 2013, Parks and another man entered her residence, beat her, and then took turns sexually assaulting her. Sara told police that Parks was her heroin dealer and that before assaulting her, he told her she owed him $3000 and she would "regret not paying."

¶3 Prior to trial, Parks moved to admit evidence of what he claimed was a prior untruthful allegation of sexual assault made by Sara, pursuant to WIS. STAT . § 972.11(2)(b)3. According to Parks’ motion, while in custody on an unrelated matter in March 2014, Sara informed police that her former boyfriend had "drugged and raped" her. The investigator who questioned Sara about this allegation wrote in her report that she "questioned the validity" of Sara's claim. Moreover, she wrote that she "found numerous inconsistencies" with Sara's statement. Accordingly, no charges were ever filed against Sara's former boyfriend.

¶4 Parks also filed a motion in limine seeking to admit evidence of three instances, occurring in March and April 2014, in which Sara had either forged checks or stolen credit cards from her family members. Parks argued testimony concerning each of these instances was "admissible pursuant to WIS. STAT. §§ 904.04 [1](b) and 904.05(2) as [Sara] has a specific trait of dishonesty which is an essential element to Mr. Parks’ defense."

¶5 The circuit court denied both of Parks’ motions. Parks then moved for reconsideration of the court's decision regarding the admissibility of the evidence related to the instances of Sara's deceitful conduct.³ The court denied this motion.

¶6 At trial, Sara testified that, during the fall of 2013, she purchased heroin and opioid pills from Parks. She stated that she did not always have money to pay for these drugs and, as a result, Parks would occasionally "front" her money for a purchase.

¶7 Sara testified that on the day in question,⁴ Parks and a male individual she did not know arrived at her house. She stated that Parks and the other man entered her bedroom without permission, and that Parks then "told me that I was going to pay him." After Sara told him she did not have any money, one of the two men (Sara could not identify which one) began to kick her and one of them hit her on the back of the head with a gun. Sara fell onto her bed, "felt [her] clothes being ripped off," and both men then sexually assaulted her.

¶8 Sara stated that Parks made it clear to her that she was being assaulted because she owed him money. In addition, Sara said that Parks told her immediately after the assault that she still owed him money. She also testified that Parks told her on a later date that if she did not pay her debts he would assault her again.

¶9 Sara testified that because she still "owed [Parks] money," she told her father about the assault and her drug debt approximately one week after the attack occurred. She acknowledged that she did not report the assault to police until January 2014, however, because she was "scared for [her] life."

¶10 On cross-examination, Sara acknowledged that while participating in counseling during her drug rehabilitation program, she had admitted that "sometimes honesty is hard." She also admitted that she had stolen money in the past to pay for drugs.

¶11 After defense counsel elicited this testimony from Sara, the prosecutor requested to be heard by the circuit court outside the presence of the jury. The prosecutor subsequently informed the court that it had "a problem with the fact that the last two questions ... asked are specific things that we dealt with by pretrial motion that [defense counsel] wasn't supposed to get into." The court agreed with the State, and it "admonished [defense counsel] not to proceed in that way." When the court asked whether the prosecutor was requesting Sara's responses be struck or otherwise addressed with the jury, however, the prosecutor stated he preferred the "court just move on with, I guess, the understanding, hopefully, that we all have now is that honesty issues, prior bad acts, whatever form they may come in, are covered under the court's pretrial ruling."

¶12 Sara's father testified that she called him and "told me she was raped" because "she owed somebody money." He stated this call occurred in early September 2013, and it was "probably a week" after the assault occurred. After the call, he went to see Sara and observed "bruises on her knees."

¶13 Sara's father denied that she asked him for any money when she first told him she was raped. He stated, however, that she "later" came to him and asked for money because "she was afraid it was going to happen again." Consequently, he gave her "a couple hundred dollars" and drove her to Eau Claire, where he saw her pay a "black man" the money.⁵

¶14 Parks testified in his own defense. He admitted that he sold heroin to Sara, although he denied that she ever owed him a substantial debt. He also denied sexually assaulting Sara and asserted he did not ever resort to violence when he needed to collect a drug debt.

¶15 Parks also called two of Sara's friends, as well as one of her former boyfriends.⁶ Each of these three witnesses testified that Sara told them she had lied about being sexually assaulted by Parks.

¶16 After the defense rested, the State recalled Sara. She testified that if she ever told anyone the sexual assault did not actually occur, she did so "to end a conversation I didn't want to talk about."

¶17 In its closing argument, the State told the jury this was a "he said/she said case" and argued that Sara was a more credible witness than Parks. Parks’ counsel informed the jury she agreed with the State that this was a "he said/she said" case, but she argued that Sara was "not a credible witness." Counsel explained that Sara's testimony contained numerous inconsistencies, and she further argued that "[t]here's a motive for [Sara] to make this up. She needed money to buy drugs. She told people that this happened, and she received money to buy drugs."

¶18 The jury acquitted Parks on the first-degree sexual assault by use of a dangerous weapon count and found him guilty of the remaining three counts of first-degree sexual assault. Parks subsequently filed a postconviction motion for a new trial. As relevant here, Parks’ postconviction motion challenged the circuit court's denial of his motions to admit evidence of Sara's prior untruthful allegation of sexual assault and her instances of deceitful conduct. Parks also asserted that his trial counsel provided ineffective assistance by failing to argue that: (1) the instances of Sara's deceitful conduct and her prior untruthful allegation of sexual assault were admissible "to demonstrate a motive for [Sara] to lie"; and (2) evidence of the instances of Sara's deceitful conduct should have been admitted under the curative admissibility doctrine, which generally allows for one party to introduce otherwise inadmissible evidence in response to the opposing party's either accidental or purposeful use of a piece of evidence that would normally be inadmissible.

¶19 Following a Machner⁷ hearing, the circuit court denied Parks’ postconviction motion. This appeal follows.

DISCUSSION

I. Evidentiary rulings

¶20 Under Wisconsin law, whether to admit evidence is a discretionary decision for the circuit court. State v. Franklin , 2004 WI 38, ¶6, 270 Wis. 2d 271, 677 N.W.2d 276. We review a circuit court's discretionary decisions under a deferential standard. State v. Echols , 2013 WI App 58, ¶14, 348 Wis. 2d 81, 831 N.W.2d 768. Accordingly, we will not reverse a circuit court's decision to exclude evidence if the court examined the relevant facts, applied a proper standard of law, used a demonstrated rational process, and reached a conclusion that a reasonable judge could reach. Id.

A. Instances of Sara's deceitful conduct

¶21 Parks first contends that the circuit court erroneously exercised its discretion by excluding evidence concerning the instances of Sara's deceitful conduct. He reasons that "[t]hese instances of deceitful conduct were admissible under WIS. STAT . §§ 904.04(1)(b), 904.05(2), 904.04(2)(a) or 906.08" and, further, that the evidence was "extremely probative, and not outweighed by any danger of unfair prejudice."

¶22 We begin by addressing whether the circuit court erroneously exercised its discretion by declining to admit the instances of Sara's deceitful conduct under WIS. STAT . §§ 904.04(1)(b)⁸ and 904.05(2).⁹ "As a general rule, ‘[e]vidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion ....’ " State v. Jackson , 2014 WI 4, ¶46, 352 Wis. 2d 249, 841 N.W.2d 791 (ci...