State v. Hurley

• Decision Date: 31 March 2015
• Docket Number: No. 2013AP558–CR.,2013AP558–CR.
• Citation: 861 N.W.2d 174,361 Wis.2d 529
• Parties: STATE of Wisconsin, Plaintiff–Appellant–Cross–Respondent–Petitioner, v. Joel M. HURLEY, Defendant–Respondent–Cross–Appellant.
• Court: Wisconsin Supreme Court

361 Wis.2d 529

861 N.W.2d 174

STATE of Wisconsin, Plaintiff–Appellant–Cross–Respondent–Petitioner

v.Joel M. HURLEY, Defendant–Respondent–Cross–Appellant.

No. 2013AP558–CR.

Supreme Court of Wisconsin.

Argued Jan. 8, 2015.

Decided March 31, 2015.

Reconsideration Denied June 25, 2015.

For the plaintiff-appellant-cross-respondent-petitioner, the cause was argued by Jacob J. Wittwer, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-respondent-cross-appellant, the cause was argued by Craig S. Powell and Kohler & Hart, S.C., Milwaukee. The briefs were filed by Craig S. Powell.

Opinion

MICHAEL J. GABLEMAN, J.

¶ 1 We review an unpublished per curiam decision of the court of appeals¹ reversing in part two decisions of the Marinette County circuit court.² In an amended criminal complaint (“amended complaint”) filed on July 29, 2011, the Marinette County District Attorney's Office charged Joel M. Hurley (“Hurley”) with one count of engaging in repeated acts of sexual assault of the same child under Wis. Stat § 948.025(1).³ The amended complaint detailed how Hurley sexually assaulted his stepdaughter, M.C.N., 26 times between 2000 and 2005. M.C.N. was between 6 and 11 years old when the assaults occurred.

¶ 2 Prior to trial, the State filed a motion to admit other-acts evidence under Wis. Stat. § 904.04(2)(a) (2011–12). The State sought to admit evidence that Hurley repeatedly sexually assaulted his younger sister, J.G., 25 years prior to trial. J.G. stated that the assaults occurred when Hurley was between the ages of 12 and 14 years old, and J.G. was between the ages of 8 and 10 years old. The circuit court granted the State's motion and admitted the other-acts evidence for the purpose of establishing Hurley's modus operandi (method of operation) and opportunity.

¶ 3 At trial, Hurley testified in his own defense and his attorney asked him twice whether he recalled the assaults alleged by J.G. Hurley answered that he did not recall the assaults. During closing argument, the prosecutor stated, “when the defendant testified, he was asked by his [ ] attorney regarding [J.G.] he said well, do you recall any of these incidents with [J.G.] ever happening? And his answer was no. The question wasn't did you do this or not, it was do you recall? That's different than it didn't happen.” The jury found Hurley guilty of one count of engaging in repeated acts of sexual assault of the same child and the circuit court sentenced him to 25 years imprisonment consisting of 18 years of initial confinement and 7 years of extended supervision.

¶ 4 Subsequently, Hurley filed a post-conviction motion arguing that his trial counsel was ineffective for failing to move to dismiss the amended complaint on due process grounds. Alternatively, Hurley argued that the amended complaint was deficient and constituted plain error⁴ requiring reversal. Hurley also argued trial counsel was ineffective for failing to object to the remarks made by the prosecutor during closing argument. Finally, Hurley argued that the prosecutor's remarks during closing argument required a new trial in the interest of justice.

¶ 5 The circuit court agreed with Hurley that the prosecutor's statement was improper and ordered a new trial in the interest of justice. The circuit court denied Hurley's other grounds for relief.

¶ 6 The State and Hurley filed cross-appeals with the court of appeals. The State argued the circuit court erroneously exercised its discretion by granting a new trial in the interest of justice. Hurley argued that his trial counsel was ineffective for failing to move to dismiss the amended complaint on due process grounds. Alternatively, Hurley argued that the amended complaint was deficient and constituted plain error requiring reversal. Hurley also argued that the circuit court erroneously exercised its discretion in admitting the other-acts evidence.

¶ 7 The court of appeals agreed with Hurley and concluded that the amended complaint failed to provide adequate notice, and thus violated Hurley's due process rights, and that the circuit court erroneously exercised its discretion in admitting the other-acts evidence. Hurley, No. 2013AP558–CR, ¶¶ 38, 54. The court of appeals did not address the remarks made by the prosecutor during his closing argument.

¶ 8 Three issues are presented for our consideration: 1) whether the amended complaint and information charging Hurley with one count of engaging in repeated acts of sexual assault of the same child provided adequate notice to satisfy Hurley's due process right to plead and prepare a defense; 2) whether the circuit court erroneously exercised its discretion in admitting other-acts evidence that Hurley had repeatedly sexually assaulted his sister, J.G., when she was between the ages of 8 and 10 years old and he was between the ages of 12 and 14 years old; and 3) whether the circuit court erroneously exercised its discretion in ordering a new trial in the interest of justice because of the prosecutor's remarks during closing argument.

¶ 9 First, we hold that the amended complaint and information⁵ provided adequate notice and thus did not violate Hurley's due process right to plead and prepare a defense. Second, we hold that the circuit court did not erroneously exercise its discretion in admitting the other-acts evidence. Finally, we hold that the circuit court erroneously exercised its discretion in granting a new trial in the interest of justice. We therefore reverse the court of appeals and remand to the circuit court with the instruction that the judgment of conviction be reinstated.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 10 On July 29, 2011, the Marinette County District Attorney's Office filed an amended complaint charging Hurley with one count of engaging in repeated acts of sexual assault of the same child, contrary to Wis. Stat. § 948.025(1),⁶ for assaulting his stepdaughter, M.C.N. on three or more occasions “on and between” 2000 and 2005.

¶ 11 According to the amended complaint, Hurley and M.C.N.'s mother were married sometime in 2000 and divorced in November 2006. The family lived together at a residence in Peshtigo, Wisconsin. According to M.C.N. the assaults began shortly after the marriage in 2000, when she was 6 years old, and lasted until 2005, when she was 11 years old. All the sexual assaults occurred at the family residence.

¶ 12 According to the amended complaint, M.C.N. explained that the assaults began “as the defendant played a type of game with her.” When M.C.N.'s mother was away from the residence, Hurley chased M.C.N. around the house and removed her clothing when he caught her. According to the amended complaint, the chasing game happened one time.

¶ 13 Hurley then started coming into M.C.N.'s bedroom at night and would get into bed with her. Hurley then placed his hand into M.C.N.'s pajama bottoms and inserted his fingers inside her vagina. The amended complaint relates that M.C.N. said Hurley did this “approximately five times during the time she lived with him.” The amended complaint also stated that during these incidents Hurley tried “to get her to touch him, which M.C.N. stated she did during one of these encounters.” M.C.N. was unsure whether her mother was home during these assaults.

¶ 14 Around the same time that the nighttime assaults began, Hurley began weighing M.C.N. while she was naked when she got home from school. During this game Hurley “would have her take her clothing off and would put her on his shoulders to take her into the bathroom” where he would weigh her on a scale. M.C.N. said that Hurley did this frequently, in excess of 20 times, when she was between the ages of 6 and 11 years old. M.C.N. stated that during these incidents Hurley “would not go any further than have her naked on his shoulders and weigh her.”

¶ 15 During one of the “last occasions” Hurley got into the shower with M.C.N. after school. M.C.N. stated she was naked but Hurley had on his underwear. Hurley asked her “you're not going to tell your mother are you?” M.C.N. replied “yes,” which caused Hurley to leave the shower.

¶ 16 M.C.N. stated these incidents occurred until 2005, one year prior to the 2006 divorce. M.C.N. estimated Hurley weighed her naked in excess of 20 times, placed his fingers inside of her vagina approximately five times, and forced her to touch his genitals one time while he was touching her genitals.

¶ 17 M.C.N. stated that she disclosed the assaults to a few friends in 2010 and decided to disclose the assaults to her mother in September 2010 when she was 15 years old after Hurley moved to Indiana.

¶ 18 Before trial, the State filed a motion to introduce other-acts evidence that Hurley had repeatedly sexually assaulted his younger sister, J.G., over the course of two years, from 1984 to 1986, when she was between the ages of 8 and 10 years old, and he was between the ages of 12 and 14 years old. At the motion hearing J.G. testified that Hurley repeatedly sexually assaulted her. J.G. testified that, while their parents were away, Hurley asked her to remove her clothes, put on a fur coat, and meet him in their parents' bedroom. When J.G. entered, Hurley was naked under the covers and asked J.G. to slowly perform a strip tease. J.G. stated that Hurley fondled himself while watching her, that they performed oral sex on each other, and that Hurley made J.G. fondle him. J.G. further testified that Hurley often penetrated her vagina with his fingers, and there was a lot of “humping,” but she could not recall whether Hurley penetrated her vagina with his penis.

¶ 19 The circuit court granted the other-acts motion, concluding that the evidence was admissible to show opportunity and method of operation. The circuit court also concluded that the evidence was relevant and that it bolstered M.C.N.'s credibility. The circuit court explained that there was great similarity between the assaults because 1) the victims were similar in age, 2) Hurley...