State v. Schneider

1

State of Wisconsin, Plaintiff-Respondent, v. Colton C. Schneider, Defendant-Appellant.

No. 2023AP1377-CR

Court of Appeals of Wisconsin, District III

November 12, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from a judgment and an order of the circuit court for Eau Claire County: Cir. Ct. No. 2020CF992 MICHAEL A. SCHUMACHER Judge. Reversed and cause remanded for further proceedings.

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

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

PER CURIAM

¶1 Colton C. Schneider appeals from a judgment convicting him following a jury trial, of third-degree sexual assault, as a repeater. He also appeals from a circuit court order denying his postconviction motion for a new trial. Schneider argues that the State introduced evidence and argument at his sexual assault trial that are barred by the rape shield statute WIS. STAT. § 972.1 l(2)(a)-(b) (2021-22).^[1] Accordingly Schneider asserts that he is entitled to a new trial based on plain error, based on the constitutionally ineffective assistance of his defense counsel, and in the interest of justice. For the reasons that follow, we agree that Schneider is entitled to a new trial due to there being plain error. We therefore reverse Schneider's judgment of conviction and the court's order denying his postconviction motion, and we remand for further proceedings consistent with this opinion.

BACKGROUND

¶2 The State charged Schneider with one count of third-degree sexual assault, as a repeater. According to the criminal complaint and the testimony at the one-day trial Sally^[2] alleged that on July 31, 2020, Schneider had sexual intercourse with her without her consent. Sally testified at trial that she and Schneider met online in June 2020 through a social networking application called "MeetMe." They began messaging each other every day-sometimes multiple times a day-through that app. They were "get[ting] to know each other fairly well" when they first met in person for a walk in a park. The second time they met at the park, they kissed. They also visited each other's homes, and Sally stayed at Schneider's home overnight on one occasion.

¶3 On the date of the alleged assault, Sally's friend, Becky, dropped Sally and Schneider off at Lake Altoona, where they went swimming and went on the swing set. When it started to get dark, Sally testified that Schneider took her to the public changing rooms near the lake. There, Sally stated that they began "ma[king] out" by "[k]issing and fingering." According to Sally, Schneider "laid his towel on the concrete"; took all of Sally's clothing off, except for her bra; and then began having sexual intercourse with Sally, inserting his penis into her vagina until he ejaculated. Sally testified that the encounter lasted "five or ten minutes"; that she said "no, that [she] didn't want it" three times; and that Schneider did not respond and did not stop. It ended when Sally received a text message that Becky was coming back to get them.^[3]

¶4 When Becky arrived, she noticed that Sally was "very quiet and reserved," which was out of character, while Schneider was "[v]ery lovey-dovey." Becky dropped Schneider off at his house, and Becky and Sally went to another friend's home. Eventually, Sally shared with Becky, by Facebook messenger, that something had happened. That message stated: "He put his thingy in me ooooooowwwwwyyyyyy." Becky then "got really angry," and she called and texted Schneider "to see if he would fess up to it." Schneider messaged Becky that "[w]e tried doing shit but we talked about it" and that "[i]t didn't go inside her." Becky stayed the night at Sally's house, and the next morning they told Melissa, Sally's mother, what had happened. Melissa took Sally to the hospital for a sexual assault examination. Sally then reported the alleged sexual assault to police.

¶5 Melissa also testified at trial. She explained that she believed that Sally and Schneider were just friends and that they were not dating. In particular, the State asked Melissa about Sally's romantic history and whether she had discussed sex with Sally. Melissa testified she had asked Sally that "if she was thinking about having sex to let [Melissa] know ahead of time so that [she could] make sure [Sally was] on proper birth control and answer any other questions she might have." Melissa concluded, however, that Sally was "not ready" for sex because "[s]he's still waiting for Mr. Right."

¶6 A Sexual Assault Nurse Examiner (SANE) testified about Sally's forensic examination. According to the SANE, she observed no injuries that appeared to be related to a sexual assault. She also collected samples from Sally as part of the examination. A DNA analyst testified that a sperm fraction was found on Sally's vaginal and external genital samples, and Schneider was identified as the source of the sperm.

¶7 Detective Edward Bell testified that he interviewed both Sally and Schneider. According to Bell, Schneider "stated initially that [he and Sally] had only held hands and kissed," but he later admitted that they had sex. A portion of Schneider's recorded interview was then played for the jury, during which Schneider referred to Sally as a virgin and stated that he was her first boyfriend. Bell also testified that during Sally's interview, Sally said that she told Schneider to stop "twice or so" and that the sexual encounter lasted for three minutes.

¶8 After the close of the State's case, Schneider testified in his own defense. Schneider stated that he and Sally were dating during June and July 2020, and he considered them to be in a relationship. Schneider presented his version of the events that occurred on July 31, 2020. According to Schneider, he and Sally went to the changing room area where they were kissing for ten or fifteen minutes. Then, at some point, Sally "grabb[ed] onto [Schneider] and [pulled him] to the floor and then [got] on top" of him, which is when they had intercourse. Schneider explained that he told Becky that nothing happened between him and Sally because "sex is a very embarrassing subject to talk about in general." Schneider also testified that he originally did not tell Detective Bell the truth because he was "embarrassed and all that" because "[f]hat's usually a subject you talk to your significant other about."

¶9 On cross-examination, the State asked Schneider if he was Sally's first boyfriend and if Sally was a virgin, and he responded "[y]es" to both questions. The State referred to Sally as a virgin again when it asked Schneider the following question: "And it's your testimony that [Sally]-the quiet, shy virgin-got on top of you?" Schneider answered, "Yes."

¶10 Finally, during closing arguments, the State used the evidence of Sally's virginity to argue that Sally's version of the alleged sexual assault was more plausible. When comparing Schneider's version-i.e., that Sally was the instigator-to Sally's testimony, the State argued to the jury:

You saw [Sally] on the stand. You heard testimony about her from her friend and from her mother. She's a quiet, shy 20 year old. When she met ... Schneider she had never had a boyfriend. She was a virgin. There's one account that makes more sense than the other.

¶11 The jury found Schneider guilty of third-degree sexual assault. Thereafter, the circuit court sentenced Schneider to four years' initial confinement followed by five years' extended supervision.

¶12 Schneider filed a postconviction motion for a new trial. He moved the circuit court to vacate his judgment of conviction and grant him a new trial- based on plain error, ineffective assistance of counsel, and in the interest of justice-due to the State's introduction of improper evidence and argument that Sally was a virgin, both of which are barred by the rape shield statute. The State opposed the motion, arguing, among other things, that the testimony and argument related to Sally's virginity were admissible "as evidence of the complaining witness's past conduct with the defendant" "and evidence use[d] in determining the degree of sexual assault." See WIS. STAT. § 972. ll(2)(b) 1.-2.

¶13 The circuit court held an evidentiary Machner^[4] hearing on the motion. Schneider's defense counsel was the sole witness. Counsel explained that he did not object to Melissa's testimony, to the video of Schneider's interview with police, or to Schneider's cross-examination because he did not believe that evidence implicated the rape shield statute. Counsel stated that he "remember[ed that] during the trial there was a question, [he] believe[d], asked of [Sally] regarding her virginity and [he] was going to object at that point." But "then [he] considered ... what the implications of the objection would be and how it would work in with the rest of the trial."^[5] According to defense counsel, he did not object because he did not want to call the jury's attention to the discussion.

¶14 Following defense counsel's testimony and the parties' arguments, the circuit court denied Schneider's motion on all grounds. Relying on State v. Mulhern, 2022 WI 42, 402 Wis.2d 64, 975 N.W.2d 209 the court first stated that the rape shield law "appl[ies] to a victim's virginity" and that none "of the statutory exceptions to the rape shield law apply here." The court then determined that "some of [the statements] individually and then in a totality circumstance" amounted to "a violation of the rape shield statute." Nevertheless, the court ultimately concluded that the State had proved, beyond a reasonable doubt, that Schneider was not harmed by this evidence or...