State v. Gee
| Decision Date | 14 May 2019 |
| Docket Number | Appeal No. 2018AP1069-CR |
| Citation | 2019 WI App 31,931 N.W.2d 287,388 Wis.2d 68 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Christopher L. GEE, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of John T. Wasielewski of Wasielewski & Erickson of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Hannah S. Jurss, assistant attorney general, and Brad D. Schimel, attorney general of Wisconsin.
Before Kessler, P.J., Brennan and Brash, JJ.
¶1 Christopher L. Gee appeals his judgment of conviction entered after a jury convicted him of two counts of first-degree sexual assault using a dangerous weapon.
¶2 On appeal, Gee challenges the constitutionality of WIS. STAT. § 904.04(2)(b)2. (2017-18),1 which permits, in cases of first-degree sexual assault, the admission of evidence regarding other convictions on the same charge to show that the defendant "acted in conformity" with the conduct in the previous conviction. Id. Gee contends that his right to due process was violated because he chose not to testify based on the trial court’s pretrial ruling regarding the admission of his prior conviction for rape in Indiana: the trial court determined that the prior conviction could be introduced at trial pursuant to § 904.04(2)(b) 2, but limited its admission to purposes of rebuttal in the event that Gee presented evidence attacking the credibility of the victims. Gee further asserts that the trial court erroneously exercised its discretion in making that ruling.
¶3 We conclude that WIS. STAT. § 904.04(2)(b)2. is constitutional, both facially and as applied to Gee. We further conclude that the trial court did not erroneously exercise its discretion in its ruling regarding the admission of Gee’s prior conviction. We therefore affirm.
¶4 The charges against Gee stem from two separate incidents, occurring about a month apart, involving two different victims: A.M. and J.P.
¶5 On March 27, 2015, A.M. accompanied her friend and that friend’s boyfriend to an apartment building located at 1200 East Singer Circle in Milwaukee to smoke marijuana. The friend and her boyfriend left shortly after midnight to get more rolling papers, leaving A.M. alone.
¶6 A.M. stated that she had used the bathroom, and when she walked out an unknown man came up behind her, put a knife to her throat, and told her not to scream or he would kill her. The man forced A.M. to take off her clothes, then took her into a bedroom and locked the door. The man had penis-to-vagina intercourse with A.M. while holding the knife to her throat. Afterwards, the man unlocked the bedroom door and A.M. put on her clothes and left. A.M.’s cousin picked her up and took her to a hospital, where a sexual assault examination was performed.
¶7 J.P. reported that on April 27, 2015, she had gone to 1200 East Singer Circle in Milwaukee to have sex with "Michael" for $200, after he responded to a Backpage.com advertisement that J.P. had placed. J.P. did not know Michael. When she arrived at the apartment building, a man who claimed to be building security directed her to the back of the building. Once there, the man pulled out a knife and put it to J.P.’s throat, demanding that she perform penis-to-mouth oral intercourse. He told her not to scream or she would "end up in the river." He then forced J.P. to lie on the ground and had penis-to-vagina sexual intercourse with her. Afterwards, he told J.P. that she could leave. J.P. told her friend, who had driven J.P. to the apartment building, that the man had "raped" her. J.P. reported the assault to police after she was arrested on April 30, 2015.
¶8 Each victim gave a similar physical description of her assailant. J.P. noted that he was wearing a black knit cap at the time of her assault. Additionally, both victims provided descriptions of the knife, with A.M. stating that it was "weird looking" with a black handle, and J.P. describing it has having a wood or metal handle and a curved blade.
¶9 Police were able to identify Gee and his address from the phone number he used to contact J.P. about the Backpage.com advertisement. Both victims identified Gee in the photo arrays they were shown by police. A.M. became "visibly upset" when she saw the photo of Gee. J.P. did not initially identify Gee, but after viewing his photo again, she identified him as the man who assaulted her. Police searched Gee’s apartment, located at 1200 East Singer Circle, and discovered a knife with a curved blade as well as a black knit cap.
¶10 Gee was arrested and gave a statement to police. He admitted to responding to the Backpage.com ad placed by J.P., but initially said that he did not have sex with her. He later admitted that they had sex, but that he did not have the money to pay her. He said that he often does not pay prostitutes, and he denied having a knife. He said that he did not recognize a picture he was shown of A.M., but that "[t]hese girls' appearances change so drastically." Gee further stated that he had served eighteen years in prison in Indiana for a "bullshit" sexual assault charge. Detectives reviewed online court records and found that Gee had pled guilty in 1996 to a charge under Indiana’s rape statute: Gee had contacted an escort service to hire a "model," and when the victim arrived at his apartment building he had threatened her with a handgun and sexually assaulted her.
¶11 Gee was charged with two counts of first-degree sexual assault with use of a dangerous weapon. Prior to trial, the State filed a motion to admit other acts evidence, including the 1996 conviction in Indiana, pursuant to WIS. STAT. § 904.04(2)(b)2. Gee objected, arguing that § 904.04(2)(b)2. was unconstitutional, and that evidence of the prior conviction had little probative value and would be unfairly prejudicial.
¶12 After a thorough analysis of the constitutional issue—including a discussion of case law from the Wisconsin Supreme Court, the United States Supreme Court, and other jurisdictions, as well as a comparison to the Federal Rules of Evidence—the trial court held that WIS. STAT. § 904.04(2)(b)2. is both facially constitutional and constitutional as applied to Gee.
¶13 The trial court also determined that Gee’s prior Indiana conviction could be introduced by the State pursuant to WIS. STAT. § 904.04(2)(b) 2, but only for rebuttal purposes should Gee present evidence attacking the victims' credibility. The court specifically stated that the State could not introduce that evidence in its case-in-chief. In coming to this conclusion, the court performed a Sullivan analysis to determine whether the evidence could be admitted, and found that it satisfied all three prongs of the test: it was being proffered for a proper purpose, it was relevant to the current case, and the probative value would outweigh the possibility of undue prejudice with the limitations the court had placed on its admission. See State v. Sullivan , 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998).
¶14 The matter proceeded to trial in November 2015. Gee did not testify, and he stated on the record that his decision not to testify was "made in light of the [c]ourt’s ruling" regarding his prior conviction. The defense called no other witnesses. Evidence relating to Gee’s prior conviction was never introduced. A mistrial was declared after the jury was unable to reach a unanimous verdict.
¶15 The case was retried in March 2016. J.P. testified, describing the assault. She acknowledged that she had gone to Singer Circle to engage in prostitution. J.P. further admitted that she had a warrant out for her arrest at the time of the assault, which is why she did not immediately report it to the police, and that she had been convicted of crimes on three occasions.
¶16 A.M. also testified regarding the details of her assault. A.M. acknowledged that at the time of her assault she was working as a dancer at Silk Gentleman’s Club, and that after the assault she had been arrested for prostitution in a different county.
¶17 The defense called two witnesses, both police detectives. One of the detectives testified about J.P.’s initial dishonesty regarding her reason for going to the apartment building. The other detective’s testimony contradicted A.M.’s testimony with regard to a composite drawing that was done prior to police identifying Gee: A.M. had testified that the composite by the detective had been "really close" to the picture of Gee she subsequently identified, but the detective testified that the picture was only forty to fifty percent complete due to difficulties with the software being utilized.
¶18 Again, Gee chose not to testify. The trial court asked him whether anyone had made threats, promises, or used any pressure to persuade him not to testify, to which he answered, "If the [c]ourt’s ruling can be construed as such, then yes." The court explained that its ruling involved "consequences ... that happened to you." The court then confirmed with Gee that no one had used threats, promises, or pressure to persuade him not to testify.
¶19 No evidence regarding Gee’s prior conviction was introduced at the second trial, either. The jury returned guilty verdicts after less than four hours of deliberations. Gee was sentenced in May 2016 to twenty years of initial confinement and ten years of extended supervision for each count, to be served consecutively. This appeal follows.
¶20 Gee’s arguments on appeal are focused on the trial court’s ruling regarding the admission of his 1996 conviction for rape in Indiana. The ruling permitted the prior conviction to be introduced, but only on rebuttal should Gee present evidence attacking the victims' credibility. Evidence regarding that prior conviction was never actually introduced at trial.
I. Constitutional Challenge of WIS. STAT. § 904.04(2)(b)2.
¶21 Although not specifically...
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