State v. Dilysi, 2021AP1800-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtPER CURIAM.
PartiesState of Wisconsin, Plaintiff-Respondent, v. Robert D. Dilysi, Defendant-Appellant.
Docket Number2021AP1800-CR
Decision Date22 November 2022

State of Wisconsin, Plaintiff-Respondent,
v.

Robert D. Dilysi, Defendant-Appellant.

No. 2021AP1800-CR

Court of Appeals of Wisconsin, District III

November 22, 2022


This opinion will not be published. See Wis.Stat. Rule 809.23(1)(b)5.

APPEAL from a judgment of the circuit court for Rusk County: No. 2018CF85 STEVEN P. ANDERSON, Judge.

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 Robert D. Dilysi appeals from a judgment convicting him of two counts of second-degree sexual assault of a child under

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sixteen years of age and one count of child enticement. Dilysi argues that the circuit court erroneously exercised its discretion by admitting other-acts evidence of his alleged improper sexual conduct with other young girls as well as evidence found on Dilysi's cell phone of sexually explicit cartoon images featuring young girls. He also claims that his trial counsel was constitutionally ineffective.

¶2 Based upon our independent review of the record, we conclude that the circuit court's decision to admit the other-acts evidence was reasonable and that the evidence was properly admitted under State v. Sullivan, 216 Wis.2d 768, 576 N.W.2d 30 (1998), and the greater latitude rule. Further, we conclude that Dilysi has forfeited his ineffective assistance of counsel claims based on his failure to file a postconviction motion in the circuit court. We therefore affirm the circuit court's judgment.

BACKGROUND

¶3 The charges against Dilysi were based on two allegations made by Emma,[1] a relative of Dilysi. In 2018, Emma disclosed to law enforcement one instance that occurred in 2017, when she was approximately thirteen years old, while she and her younger sister, Kari, were at Dilysi's new home. Dilysi instructed Emma to do chores inside the house while the others were working outside. While Emma was cleaning Dilysi's bedroom, Dilysi entered the bedroom and shut the door, began taking off Emma's clothes, and pushed Emma onto the bed. Emma testified that she tried to move away, but Dilysi "grabbed [her] arm so

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[she] couldn't." Dilysi then "repeatedly" forced his penis into Emma's vagina while she cried, and he eventually ejaculated on her leg. At trial, Emma testified that she told Kari about the sexual assault after it occurred, but she told law enforcement that "nothing had happened" because she "didn't want anyone to know." She was also worried that she "would be targeted" by Dilysi's mother, Linda Miller, who would "say lies about [Emma]."

¶4 Emma also disclosed a second instance that occurred in 2018, when she was fourteen. She had fallen asleep while babysitting Dilysi's children at her home. Emma testified that she was asleep in bed with the children when she awoke to find Dilysi "at the side of [her] bed" touching her "vaginal area" under her clothing with his fingers and then with his mouth. She "tried to move away and then her sister [Kari] walked in." According to Emma, Kari "was holding a knife and told [Dilysi] that he needed to leave." Dilysi left the room, woke his wife and kids, and they all left Emma's home.

¶5 Based on his conduct against Emma, the State ultimately charged Dilysi in a three-count Information with two counts of second-degree sexual assault of a child under sixteen years of age and one count of child enticement. Prior to Dilysi's trial, the State sought to introduce other-acts evidence pertaining to Dilysi's prior sexual conduct toward Emma, prior sexual conduct toward other young females, and "images of cartoon child pornography saved on" Dilysi's cell phone. Emma allegedly reported in a 2013 interview with law enforcement that Dilysi had walked into a bedroom she shared with Kari "with his penis exposed" and told Kari to leave her underwear off at night because "they were, 'going to have some fun.'" According to Emma, Dilysi then left the girls' room "with his

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penis in his hand and was wiggling it toward them." Emma stated that when she reported this incident, no one did anything about it.[2]

¶6 The State also sought to admit evidence of specific prior acts against four other young girls, two of whom were also Dilysi's relatives. First, in 2011, Collette, one of Dilysi's relatives, reported to law enforcement that Dilysi had engaged in sexual conduct with her and exposed himself to her when she was around nine or ten years old and was staying with Dilysi and his wife in Tennessee. Collette described several incidents, including one where Dilysi took her to a shed and told her they would play "fashion show," where she would try on "toddler-sized clothes and come out and do tricks for [Dilysi] (cheers, gymnastics, and twirls)." During this incident, Dilysi took pictures of Collette, and he asked her to try on "an invisible outfit," but Collette refused.[3] In another incident, Collette reported that Dilysi chased her around the house with his penis "exposed through the flap of his pajama pants" while stating, "I'm gonna get you."

¶7 In a final incident involving Collette, Collette reported that she had fallen asleep and ended up in bed with Dilysi. She awoke to find Dilysi "lying next to her (on their sides) and [to] him pulling her leg over him with his hand on

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her butt" and "pushing her vaginal area against his erection." Collette then went into the bathroom and locked the door. At trial, Collette testified that she told her mother about these incidents, and she gave a statement to law enforcement in Tennessee. Collette and her mother ultimately stopped pursuing charges because Miller "harass[ed] and threaten[ed]" them.

¶8 Second, Dilysi allegedly forced sexual contact on Bonnie, Emma's older sister. Bonnie alleged that when she was eight years old, she "was sitting on [Dilysi's] lap" while wearing shorts, and Dilysi touched her vagina with his hands under a picnic table. Although Bonnie told her parents, no charges were issued. At trial, Bonnie also testified that when Miller found out that Dilysi was touching Bonnie, "[s]he told me that I was lying and that I was thinking that it was someone else."

¶9 The third and fourth young girls, ages thirteen and fourteen, were hired by Dilysi to babysit his children. In 2013, both girls reported that Dilysi had tickled them without their permission, and Dilysi admitted to law enforcement that he tickled them in the "upper inner thigh area" but "they were just playing around." According to the State, one of the girls stated that while "she was alone with [Dilysi] in the garage," he gave her "a hickey and kissed her by putting his tongue in her mouth." She also stated that he "put his foot between [her] legs and rubbed her vaginal area while they sat on the couch." The other girl alleged that Dilysi rubbed his buttocks on her vaginal area and told her that if she was sixteen he would be "all over" her. Dilysi was convicted of two counts of disorderly conduct in Price County case No. 2013CM65 for his actions against these two girls.

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¶10 Finally, the State sought to introduce evidence of "graphic sexual depictions of cartoon female children" that a forensic examiner discovered on Dilysi's cell phone. The cartoon evidence was discovered after Dilysi was arrested in Tennessee on a warrant issued by the Rusk County Circuit Court, and his phone was seized.

¶11 Dilysi opposed the State's other-acts motion, and the circuit court held a hearing. After determining that the circumstances warranted application of the greater latitude rule and after analyzing the evidence under Sullivan, the court granted the State's motion. In particular, the court determined that the other-acts evidence pertaining to other young girls was properly offered for the purposes of establishing motive, intent, absence of mistake, and modus operandi. The court also concluded that the evidence was properly offered to "provide[] a context of this particular crime," and "[i]t also helps bolster the credibility of the victims in this case by showing that Mr. Dilysi has this method of operation, that his intent is to gratify himself sexually [by] perform[ing] sexual acts with these young children."

¶12 As to the sexually explicit cartoons, the circuit court observed that the evidence found on Dilysi's cell phone was cartoons of sexual activity with underage females and that "all of the same assessments apply" to the cartoon evidence, meaning that the evidence was admissible for analogous reasons. As to all the other-acts evidence, the court determined that admitting the evidence would not result in undue prejudice because it was consistent with prior case law and a proper cautionary instruction would ensure that the jury did not consider the evidence for an improper purpose.

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¶13 A jury found Dilysi guilty on all counts. The circuit court sentenced Dilysi to ten years' initial confinement followed by ten years' extended supervision on both sexual assault counts, to run consecutively. The court withheld sentence on the child enticement count and placed Dilysi on probation for fifteen years, consecutive to his sentences on the other counts. Dilysi appeals.[4]

DISCUSSION

I. Other-Acts Evidence

¶14 Dilysi first contends that the circuit court erroneously exercised its discretion by admitting other-acts evidence of his sexual behavior toward other young girls and cartoon images depicting children in sexual activity. Courts apply Sullivan's three-prong analysis to determine the admissibility of other-acts evidence. Sullivan, 216 Wis.2d at 771. Other-acts evidence is properly admitted if: (1) it is offered for a permissible purpose under Wis.Stat. § 904.04(2); (2) it is relevant under the two relevancy requirements found in Wis.Stat. § 904.01; and (3) its probative value is not substantially outweighed by the risk of...

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