State v. Gimino, 2012AP1498–CR.

• Citation: 347 Wis.2d 550,2013 WI App 55,830 N.W.2d 723
• Decision Date: 07 March 2013
• Docket Number: No. 2012AP1498–CR.,2012AP1498–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Nicholas M. GIMINO, Defendant–Appellant.
• Court: Court of Appeals of Wisconsin

347 Wis.2d 550

830 N.W.2d 723

2013 WI App 55

STATE of Wisconsin, Plaintiff–Respondent,

v.Nicholas M. GIMINO, Defendant–Appellant.

No. 2012AP1498–CR.

Court of Appeals of Wisconsin.

March 7, 2013.

OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Racine County: Stephen A. Simanek and Eugene A. Gasiorkiewicz, Judges. Affirmed.

Before LUNDSTEN, P.J., SHERMAN and KLOPPENBURG, JJ.¶ 1LUNDSTEN, P.J.

Nicholas Gimino appeals a judgment of the circuit court finding him guilty after a bench trial of two counts of physical abuse of a child. He also appeals an order denying his motion for postconviction relief.¹ Gimino makes three arguments: 1) there was insufficient evidence to convict him on either of these counts; 2) the circuit court erroneously admitted expert testimony that should have been excluded because of a discovery violation; and 3) Gimino received ineffective assistance of counsel because his trial attorney failed to call an accident reconstruction expert and failed to impeach an important witness. We reject all three arguments, and affirm the circuit court.

Background

¶ 2 On the evening of October 11, 2009, Gimino took his two-year-old daughter, B.G., on a go-kart ride on a private road in his subdivision. The go-kart was a motorized vehicle with a frame, but no sides or roof. B.G. was not wearing a helmet or any other protective gear. Gimino may have fastened a seat belt around B.G., but, if he did, the belt was insufficiently tight to hold B.G. in place. As Gimino made a right-hand turn around a corner, B.G. fell out of the go-kart and onto hard pavement. Gimino told an investigator that he was driving ten miles per hour at the time B.G. fell out of the go-kart.

¶ 3 Gimino stopped the go-kart and observed that B.G.'s pants were scuffed up. Gimino carried B.G. inside his residence to inspect her for any wounds. After removing her clothing, Gimino observed road rash on B.G.'s body and a puncture wound on her right leg. Gimino cleaned the wounds with a washcloth and applied an antibiotic. Gimino woke B.G. up periodically throughout the night to check on her. Gimino also gave B.G. “Motrin.” He did not take B.G. to the hospital.

¶ 4 After observing B.G.'s injuries, Gimino called Tamara Varebrook, the aunt of B.G.'s mother, and told her that B.G. had injured herself by falling off of a bike. Gimino told Varebrook that B.G. had some road rash, but no cuts or other injuries. Gimino did not call B.G.'s mother, Carrie Willms, because there were restraining orders between Gimino and Willms.

¶ 5 The next morning, Willms's boyfriend, Wallace Kissh, drove to pick B.G. up from Gimino's residence. Before arriving, Kissh spoke with Gimino on the phone and could hear B.G. crying in the background. When Kissh arrived at Gimino's residence, he noticed that B.G. was whimpering. Gimino then informed Kissh that B.G. was injured while riding in his go-kart. Kissh drove B.G. back to Willms's house. Kissh and Willms then took B.G. to the hospital.

¶ 6 At the hospital, B.G. was treated by Dr. Mary Saunders. Dr. Saunders diagnosed B.G. as having road rash on her left side, including her flank, thigh, shin, and ankle. Dr. Saunders gave B.G. pain medication and then scrubbed out her wounds and bandaged them. Dr. Saunders observed no infection of B.G.'s wounds.

¶ 7 Willms later spoke with Gimino over the phone and, according to Willms, Gimino told her that B.G. was not injured from a bike accident, but rather she was injured when she fell out of his go-kart. Gimino told Willms that he was driving too fast.

¶ 8 Gimino was charged with two counts of physical abuse of a child. The first count was based on the go-kart incident, and the second count was based on Gimino's failure to take B.G. to the hospital.² After a bench trial, Gimino was found guilty of both counts. Gimino filed a motion for postconviction relief, making the same arguments he makes on appeal. The circuit court denied his motion for postconviction relief, and Gimino appealed.

Discussion

I. Sufficiency Of The Evidence For A Conviction

¶ 9 Gimino argues that the State did not present sufficient evidence at trial to support his convictions. The high hurdle Gimino must clear was explained in State v. Poellinger, 153 Wis.2d 493, 451 N.W.2d 752 (1990):

[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.

Id. at 507, 451 N.W.2d 752 (citations omitted). Thus, the question here is whether the evidence, viewed in a light most favorable to Gimino's convictions, is so lacking in probative value that no reasonable fact finder could have found Gimino guilty.

¶ 10 Both charges here were for the same crime, “recklessly causing bodily harm to a child.” SeeWis. Stat. § 948.03(3)(b).³ This crime has three elements:

1. “The defendant caused bodily harm to [the victim]. ‘Bodily harm’ means physical pain or injury, illness, or any impairment of physical condition.”

2. “The defendant recklessly caused bodily harm. This requires that the defendant's conduct created a situation of unreasonable risk of harm to [the victim] and demonstrated a conscious disregard for the safety of [the victim].”

3. “[The victim] had not attained the age of 18 years at the time of the alleged offense.” ⁴

Wis JI—Criminal 2112. In evaluating recklessness, the factors to consider include: “what the defendant was doing; why [he] was doing it; how dangerous the conduct was; how obvious the danger was; and whether the conduct showed any regard for the safety of [the victim].” Id. Proof of recklessness does not require proof that the defendant was subjectively aware of the risk to the child's safety. State v. Williams, 2006 WI App 212, ¶ 26, 296 Wis.2d 834, 723 N.W.2d 719.

A. The Go–Kart Incident

¶ 11 Gimino contends that the evidence was insufficient to support his conviction relating to the go-kart incident in which B.G. was initially injured. We first explain why the evidence was sufficient, and then address Gimino's specific arguments on this topic.

¶ 12 Viewing the evidence most favorably to the verdict reveals the following. Gimino put two-year-old B.G. in a go-kart and drove her around his neighborhood. The go-kart had a frame, but no sides or roof. While Gimino was driving around a curve, B.G. fell out of the go-kart and sustained severe road rash injuries. Gimino admitted to B.G.'s mother that he was traveling “too fast” and that B.G. “flew out of the side” of the go-kart when he turned a corner. B.G. was not wearing a helmet or any protective gear. It is reasonable to infer from the fact that B.G. fell out of the go-kart as it rounded a turn that Gimino either did not put a seat belt on B.G. or that, if he did, it was so loose that it should have been obvious that it would not secure the child. ⁵

¶ 13 This evidence is easily sufficient to support Gimino's conviction. It shows that he failed to properly restrain a very young child in a vehicle with open sides and then drove dangerously fast around a curve, causing B.G. to fall out and sustain serious injury. This conduct created a situation of unreasonable risk of harm and demonstrated conscious disregard for B.G.'s safety.

¶ 14 Gimino argues that his conduct was not obviously dangerous because there is no law requiring a helmet or other protective gear when riding in a go-kart and because taking a child for a drive in a go-kart is similar to taking a child for a ride in a car or allowing a child to ride a bicycle or play on “monkey bars” at a playground. We find these analogies unhelpful because they are too vague. For example, it is certainly not criminal behavior to take a young child for a ride in a car. But it might be criminally reckless to give a very young child a ride without restraining the child and with car windows open and then driving at excessive speeds around turns, causing the child to fall out of a car window.

¶ 15 For similar reasons, we reject Gimino's argument that his conduct was not reckless because many families recreationally use go-karts at go-karting establishments. Gimino provides no details suggesting that such establishments create a hazard similar to the one he created for B.G. here. It may be that these establishments provide additional safety measures, such as better seat restraints, protective gear, softer road surfaces, age or size limits, or speed limits, which were not present when Gimino gave B.G. a ride in his go-kart. As with Gimino's other analogies, this one sheds no light on whether his behavior was criminally reckless.

¶ 16 Gimino also argues that he showed regard for B.G.'s safety by putting her in a seat belt. Gimino claimed that he put B.G. in a seat belt, but that she may have unbuckled it or gotten out of it without his knowledge. The problem with the argument is that it does not view the evidence in a light most favorable to the circuit court's verdict. For example, Gimino ignores Willms's testimony that B.G. could not unbuckle a seat belt. And, as we have already explained, a reasonable factual inference is that B.G. was either not wearing a seat belt or that Gimino did not take care to make sure that B.G. was properly restrained.⁶

¶ 17 Finally, Gimino argues that “a common thread” in published cases, where courts have concluded that the “reckless” element of Wis. Stat. § 948.03(3) has been met, is that the convicted person causing injury had actual physical contact with the victim....