State v. Robbins

• Decision Date: 17 September 2019
• Docket Number: 2018AP232-CR,Appeal Nos. 2018AP231
• Citation: 936 N.W.2d 399 (Table),2019 WI App 58,389 Wis.2d 103
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Shane T. ROBBINS, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

389 Wis.2d 103

936 N.W.2d 399 (Table)

2019 WI App 58

STATE of Wisconsin, Plaintiff-Respondent,

v.Shane T. ROBBINS, Defendant-Appellant.^†

Appeal Nos. 2018AP231

2018AP232-CR

Court of Appeals of Wisconsin.

DATED AND FILED September 17, 2019

PER CURIAM.

¶1 In these two consolidated cases, Shane Robbins, pro se, appeals a judgment of conviction for thirteen felonies and two postconviction orders. He raises thirty issues. We conclude that Robbins is procedurally barred from obtaining the relief he seeks in the first consolidated case, and that none of the issues he raises in the second consolidated case have merit.

BACKGROUND

¶2 Robbins worked on a dairy farm owned by Larry and Sarah, and he cohabitated with Sarah’s daughter, Barbara, in a separate residence.¹ Appeal No. 2018AP231 primarily involves allegations of sexual assault made against Robbins by Barbara’s five-year-old daughter, Isabel, who lived with Barbara and Robbins (Isabel’s case). Appeal No. 2018AP232 primarily involves allegations of sexual assault made against Robbins by Barbara’s eight-year-old sister, Grace, who lived on the farm with Larry and Sarah (Grace’s case). Although the cases have overlapping factual backgrounds and have been consolidated for that reason, they were tried separately and are before us in different procedural postures.

Appeal No. 2018AP231

¶3 In Isabel’s case, Robbins was convicted of first-degree sexual assault—intercourse with a person under the age of twelve; first-degree sexual assault—sexual contact with a person under the age of thirteen; child abuse—intentionally causing harm; and two counts of exposing genitals to a child. This court affirmed Robbins’ conviction on direct appeal in a no-merit proceeding. State v. Robbins , No. 2012AP2805-CRNM, unpublished op. and order (WI App Apr. 1, 2014). Our opinion explicitly addressed the sufficiency of the evidence, inconsistencies in the testimony of Isabel and other witnesses, a claim that Robbins was unable to adequately view Isabel during her testimony, several allegations of juror bias, potential sentencing issues, and Robbins’ counsel’s performance. Id. at 2-6. We further stated that we had independently reviewed the entire record and found no other issues of arguable merit. Id. at 6.

¶4 Following his direct appeal, Robbins filed a pro se motion seeking a new trial pursuant to WIS. STAT. § 805.15, which we construe as a motion seeking postconviction relief pursuant to WIS. STAT. § 974.06.² Robbins alleged that his trial counsel had provided ineffective assistance by: (1) failing to challenge "insufficient notice" as to the particulars of Count 3 (about which Isabel provided testimony that was inconsistent with her prior statements); (2) failing to move for a mistrial in response to an amendment of the complaint; (3) failing to adequately investigate potential defense witnesses—including Isabel’s four-year-old-brother, who provided a videotaped forensic interview—and present them at trial; (4) failing to challenge an allegedly inaccurate statement the prosecutor made during closing argument; (5) failing to move to strike a juror; (6) failing to demand a "bill of particulars" linking each of the counts to more specific alleged conduct; (7) failing to investigate and present photographs taken during Isabel’s sexual assault examination and to hire an expert witness to explain them; and (8) failing to challenge the unanimity of the verdict on Count 2.

¶5 The circuit court held a hearing on Robbins’ motion for a new trial. It concluded that most of the claims raised therein were procedurally barred because they had already been addressed in the no-merit proceeding before this court, and that Robbins had failed to establish his counsel performed deficiently with respect to the remaining claims. Robbins appeals from the order denying his motion for a new trial.

Appeal No. 2018AP232

¶6 In Grace’s case, Robbins was charged with thirteen offenses, all alleged to have occurred in the Town of Herman between February 1, 2009 and April 6, 2010, and some in specific ways and places. The complaint and Information described the charged offenses as follows: (1) child enticement—causing a child under the age of eighteen to go into a building to have sexual contact and sexual intercourse; (2) first-degree sexual assault—having sexual intercourse with a child under the age of twelve; (3) first-degree sexual assault—having anal intercourse with a child under the age of twelve (in a haymow in a barn); (4) first-degree sexual assault—having vaginal intercourse with a child under the age of twelve (on a couch at the victim’s sister’s home); (5) first-degree sexual assault—having anal intercourse with a child under the age of twelve (on a couch at the victim’s sister’s home); (6) first-degree sexual assault—having vaginal intercourse with a child under the age of twelve (in the bedroom of the victim’s sister’s home); (7) first-degree sexual assault—forcing a child under the age of twelve to perform fellatio (in the basement of the victim’s sister’s home); (8) child enticement—causing a child to go into a room (in the basement of the victim’s sister’s home) where he forced her to perform fellatio; (9) exposing a child to harmful material—showing a child images of explicit sexual conduct; (10) causing a child under the age of thirteen to view sexually explicit conduct on a computer; (11) exposing genitals—showing his penis to a child on multiple occasions; (12) exposing pubic area—causing a child to expose her pubic area to him on multiple occasions; and (13) physical abuse of child—intentionally causing bodily harm to a child while sexually assaulting her.

¶7 At trial, Larry testified he owned a dairy farm and lived on it with his wife Sarah and their five children, including Grace, who was born in January 2002. His stepdaughter Barbara lived near the farm. There was a calf barn on the farm with a haymow on the upper level that could be considered a secluded place. Larry employed Robbins to help out on the farm, including feeding calves in the barn. Larry sometimes observed Grace going into the barn while Robbins was feeding the calves.

¶8 Sarah testified that she had six children, including Barbara and Grace, and three grandchildren by her daughter Barbara, including Isabel. Grace and Isabel often played together and would stay over at each other’s houses because they were close in age. One evening, Barbara called Sarah in hysterics, telling her that Robbins had confessed to molesting Isabel. Sarah subsequently spoke with Grace, and Grace told her that Robbins had touched her and done other things to her, as well. Sarah contacted the authorities and took Grace to a hospital to have a nurse perform a sexual assault examination. Grace began crying while being swabbed during the examination because she was sore in her anal area.

¶9 Barbara also testified that Grace and Isabel often played together, including in the barn on Larry and Sarah’s farm while Robbins was working. Grace would frequently stay overnight at Barbara’s house, and Barbara would sometimes leave the children alone there with Robbins. On occasion, Barbara saw Robbins go into the basement, which contained a bedroom, while Grace was in the basement. Barbara also said that she kept a red bottle of lubricant on her bedroom dresser.

¶10 Robbins’ father, Thomas Muth, testified that Robbins came over to his house on the evening that Barbara confronted Robbins about Isabel’s sexual assault allegations. During their discussion, Robbins told Muth that he had a problem and thought he was a pedophile, and he agreed to seek help.

¶11 The nurse who examined Grace found a "very significant" injury to Grace’s hymen, and she noted in her report that Grace had experienced pain during the examination. Based on her experience, the nurse concluded Grace had suffered a sexual assault.

¶12 Grace testified that she knew Robbins as her sister’s boyfriend and that she often visited Barbara and Robbins’ house to play with Isabel and stay overnight. Grace said Robbins had sex with her in the calf barn, at Barbara’s house, at her own house, and in the haymow "a lot."

¶13 In the first incident Grace described, Grace was looking at kittens on the ground floor of the barn when Robbins walked her up to the haymow. Robbins placed Grace on a hay bale so she was kneeling facing away from him, and he pulled her pants and underwear down to her knees. Robbins then took a red bottle out of his pocket and "put it on his wee-wee," and then put his "wee-wee" into her bottom. The State introduced drawings on which Grace had circled a male crotch area with labels of "wee-wee" or "wiener," had circled a female vaginal area with a label of "private," and had circled a female anal area with a label of "bottom."

¶14 In the second incident Grace described, Robbins took both Grace and Isabel up to the haymow. Robbins told Grace to put her mouth on his wee-wee, but she refused, and so he made Isabel do it. Grace did, however, see Robbins’ wee-wee on that occasion.

¶15 In the third incident Grace described, Grace was by the heifers in the barn when Robbins again took Grace up to the haymow. He placed her in one of the calf hutches, even though she tried to get away. Robbins then put his wee-wee in her private.

¶16 In the fourth incident Grace described, Robbins made Grace sit down and put her mouth on his wee-wee while he stood in front of her in the lower level of the calf barn.

¶17 In the fifth incident Grace described, Grace was lying on the couch one night at Barbara’s house with Robbins lying behind her when Robbins pulled her pajama pants down and put his wee-wee in her butt. Grace said Barbara was sleeping in her room when this incident occurred.

¶18 In the sixth incident Grace described, Grace went to take a nap during the day in Barbara’s room while Barbara was out getting groceries. Grace was on her back sleeping when Robbins came into the room, pulled her pants down, and started having sex with...