State v. Beals, 2012AP1079–CR.
| Decision Date | 09 July 2013 |
| Docket Number | No. 2012AP1079–CR.,2012AP1079–CR. |
| Citation | 837 N.W.2d 177,2013 WI App 105,349 Wis.2d 788 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Roy H. BEALS, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Kenosha County: Barbara A. Kluka and Jason A. Rossell, Judges.1Affirmed.
Before CURLEY, P.J., FINE and KESSLER, JJ.¶ 1CURLEY, P.J.
Roy H. Beals appeals the judgment convicting him of repeated first-degree sexual assault of the same child, contrary to Wis. Stat. § 948.025(1) (2005–06).2 Beals, who was convicted of sexually assaulting his ex-wife's daughter in 2005 when she was eight years old, raises four issues on appeal. Beals argues that: (1) trial counsel was ineffective for failing to object to the admission of videotaped testimony from the victim recorded in 2007; (2) the admission of the 2007 video warrants a new trial in the interest of justice; (3) the trial court erred in allowing “other acts” evidence from the 2007 video, as well as from videotaped testimony from the victim recorded in 2009; and (4) the trial court erroneously exercised its discretion pursuant to Wis. Stat. § 908.08 in admitting the 2009 video. We affirm.
¶ 2 In August 2009, Beals was charged with sexually assaulting S.D., his ex-wife's daughter. S.D. alleged that the assaults occurred between May and August 2005, when she was about eight years old and in third grade. Beals pled not guilty, and his case went before a jury.
¶ 3 At trial, S.D. testified about her abusive home life with Beals and the assaults in detail. S.D. explained that when her mother married Beals—which occurred when she was about four years old—she was initially happy because she “thought of him as a father figure.” But then Beals “turned into a monster,” becoming “very abusive.” For example, Beals hit S.D.'s younger brother with a TV remote so hard that there were marks on his back, and he hit S.D.'s feet with gardening sticks with such force that S.D. had difficulty walking. S.D. explained that this continued abuse prevented her from telling anyone about the instances when Beals sexually assaulted her. S.D. testified that the sexual assaults occurred when she was in the third grade. S.D. testified that Beals would ask her to sit on his lap, at which time she would feel something against her lower back that was not Beals' hands. She thought that this “something” was Beals' “private part.” She further testified that Beals touched other parts of her body as well. S.D. testified that at the time she felt uncomfortable and confused about why Beals would do something like that. She did not tell him to stop and did not tell anyone what had happened, however, because she was scared of Beals. S.D. explained that even after she and her brother had lived for a while with her grandmother in Belize, and even after her mother had divorced Beals, she did not believe that Beals was truly gone from her life. This was because S.D.'s mother had attempted to leave Beals before, and Beals had found them. S.D. testified that she finally decided to tell her aunt about the assaults in 2009, which was a few years after she had last lived with Beals. S.D. explained that she trusted her aunt and felt less embarrassed talking to her about the assaults because her aunt had revealed that she too had been sexually abused as a child.3
¶ 4 The State also presented testimony from several other witnesses, including S.D.'s father, grandmother, aunt, and mother, as well as from Kenosha police officer Gregory Munnelly.
¶ 5 S.D.'s father, Raul D.—who had contact with S.D. in 2006 when he took S.D. and her brother to Belize to live with their maternal grandmother—testified that his daughter appeared “troubled.” Raul D. explained that by “troubled,” he meant that S.D. did not speak to anybody and kept to herself.
¶ 6 S.D.'s maternal grandmother, Neria P.—with whom S.D. and her brother lived in Belize for a few months in 2006 and for about a year in 2007—testified that when S.D. moved in with her, S.D. did not “look[ ] right” to her. Neria P. testified that S.D. would lock herself in her room, and when asked, “never wanted to tell [her] anything.” Neria P. testified that over the course of the year S.D. eventually began speaking more, and told Neria P. that Beals was bothering her and hitting her. Neria P. further testified that she then told S.D.'s mother that she would not return the children to her unless she separated from Beals.
¶ 7 S.D.'s maternal aunt, Michelle P., testified that S.D. told her about the assaults. Michelle P. was very close with S.D. and S.D's mother; S.D.'s mother had moved in with Michelle P. in 2006 after divorcing Beals, and Michelle P. spent a considerable amount of time with S.D. after S.D. moved back from Belize. Michelle P. testified that in August 2009, while cooking with S.D. and telling her about her own experiences being sexually abused as a child, S.D. “broke down,” began gasping and crying, and told her that Beals had abused her. Michelle P. then called S.D.'s mother to tell her what S.D. had told her.
¶ 8 S.D.'s mother testified that, upon hearing about the assaults from Michelle P., she took S.D. to the police department to file a report. She testified that initially she got angry with S.D. for not telling her directly, and asked S.D. why she did not tell her about the assaults earlier. S.D. began crying and said that she had tried to tell her previously, but could not.
¶ 9 Kenosha police officer Munnelly testified regarding the report he received from S.D.'s mother and his interview with S.D. Munnelly testified that S.D. was “very upset,” “crying,” “[a]ppeared to be very scared,” and was “clutching onto her mother” when she told him that Beals had touched her private areas over and under her clothes. Munnelly testified that S.D. had told him that the touching began when she was in the third grade.
¶ 10 Beals and several of his family members testified as well. Beals testified that there were “numerous, numerous times” when he was alone with the children, but denied sexually assaulting S.D.
¶ 11 In addition to the live witness testimony, two videos were introduced at trial.4 The first video recorded an interview that the Houston Child Advocacy Center had with S.D. in 2007. At the time, S.D. and her brother were staying with Raul D. in Houston, as they had just moved back from Belize. While the children were in Belize, S.D.'s brother said that Beals had put his penis in his mouth. In Houston, both S.D. and her brother were interviewed at the Child Advocacy Center regarding possible sexual contact with Beals. The second video recorded an interview that the Child Advocacy Center at the Children's Hospital of Wisconsin in Kenosha had with S.D. in 2009, about a week before the complaint charging Beals with sexual assault was filed.
¶ 12 At a pre-trial motion hearing, the parties made various arguments regarding the 2007 video. Beals moved the trial court to allow him to play portions of the 2007 tape as needed for impeachment. The State did not object, but instead informed the court that the State may use parts of the tape. The court responded that there would be no problem with the video being played so long as a proper foundation was laid. At this hearing, the court also addressed the State's request to introduce other acts evidence. The State sought to introduce Beals' other acts of violence against the family as well as sexual assault against S.D.'s younger brother. Beals objected. The court concluded that it could not rule on the State's motion until it heard the witnesses testify at trial.
¶ 13 At trial, after laying the proper foundation, the State played the 2007 tape. The first portion of the 2007 tape established S.D.'s age, her grade in school, her understanding of the importance of telling the truth, and her relationship to Beals. When the interviewer asked S.D. if she knew why she was being interviewed, S.D. stated,
I am here today because, um, when I was living with my mom and she was living with her husband he would um, he would scold us, he would knock us. Since he was my stepfather he would tell me I had to call him dad, but I didn't feel comfortable calling him dad. But if I did call him by his first name he would slap me or knock me or something.
S.D. continued to describe how Beals was physically aggressive toward her, her mom and her brother. Then, when asked, S.D. told the interviewer which parts of her body are private. The following exchange then occurred:
Q. Okay. And what's another part that no one should touch?
A. Um, I'm not sure. I do know something what he did to my brother.
Q. Okay, hold on one second. Is there a part behind you that no one should touch?
A. Yes.
S.D. then told the interviewer about a time when Beals pushed her mother into a wall.
¶ 14 At approximately the nine-minute and fifty second mark, the 2007 tape was stopped and the jury was dismissed from the courtroom. Beals moved for a mistrial, arguing that the State had impermissibly introduced other acts evidence of violence by Beals toward S.D., her younger brother, and her mother. He also argued that the video was unfairly prejudicial, as portions of it showed S.D. crying as she related what Beals had done to her and her family. The court acknowledged that only evidence of what Beals did to S.D. was admissible, and that it had not yet ruled on the other acts evidence. The court then instructed the jury to disregard all of the video that it had just seen and heard:
You are to totally disregard everything you have just heard and seen on this particular tape. It is not evidence in the case. You are not to consider it as evidence in the case. You are going to see a portion of the tape now which you may consider as evidence, and what you're...
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