State v. Veach

• Decision Date: 10 May 2001
• Docket Number: No. 98-2387-CR.,98-2387-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael L. VEACH, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

246 Wis.2d 395

2001 WI App 143

630 N.W.2d 256

STATE of Wisconsin, Plaintiff-Respondent,¹ v. Michael L. VEACH, Defendant-Appellant.²

No. 98-2387-CR.

Court of Appeals of Wisconsin.

Oral argument April 19, 2001.

Decided May 10, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanne Hagopian, assistant state public defender, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James E. Doyle, attorney general, and Daniel J. O'Brien, assistant attorney general.

Before Dykman, P.J., Vergeront and Lundsten, JJ.

¶ 1. VERGERONT, J.

Michael Stephen Veach appeals a judgment of conviction for two counts of first-degree sexual assault of a child in violation of WIS. STAT. § 948.02(1)(1997-98),³ and the order denying his motion for postconviction relief. He contends the trial court erroneously exercised its discretion in admitting evidence that eleven years ago he engaged in sexual acts with his daughter; he also contends he was denied effective assistance of counsel because his trial counsel did not know he could exclude this evidence by stipulating to certain elements of the charged crime. We conclude the trial court's decision to allow the other acts evidence was a proper exercise of discretion under State v. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606,⁴ and we reject Veach's other challenges to this evidence. However, we conclude State v. DeKeyser, 221 Wis. 2d 435, 585 N.W.2d 668 (Ct. App. 1998), compels the conclusion that Veach was denied effective assistance of counsel. We therefore reverse.

BACKGROUND

¶ 2. The complaint arose out of two incidents that occurred during the summer of 1994 at a campsite where Veach was staying with his girlfriend and others, including Rebecca L., the seven-year-old goddaughter of his girlfriend. The complaint alleged that on one occasion when he and Rebecca were lying in a hammock together, he rubbed his hand under her clothing on her vaginal area; on another occasion when she spent the night in his van at the campsite, he rubbed his hand under her clothing on her vaginal area and buttocks.

¶ 3. In his statement to the investigating officer, Veach acknowledged that Rebecca got into the hammock with him, but denied touching her inappropriately. He acknowledged she stayed overnight in his van because it was cold, but said no contact occurred other than that he rubbed "her back and her legs and everything else through the sleeping bag" to try to warm her up because she said she was cold.

¶ 4. The State moved for an order declaring the admissibility of evidence relating to Veach's daughter, who was nine years old in 1983, when the prior acts took place. The proffered evidence included a signed statement by Veach's daughter dated September 17, 1987, and a signed statement by Veach dated October 3, 1987. In Veach's statement he admitted that on one occasion, about six months before he left the household, he had sexual contact with his daughter. He took her clothes off, he touched her in "the wrong places," he exposed himself to her, and he ejaculated on her stomach. When told his daughter had said there were six or seven incidents of sexual contact, he said it was possible, but he only remembered this one; when told that his daughter had described an incident in which he put his penis in her mouth, he said he did not recall it. Veach pleaded guilty to one count of first-degree sexual assault and a judgment of conviction was entered on April 11, 1988.⁵

¶ 5. The State offered the evidence concerning his daughter to prove that Veach touched the vaginal area and buttocks of Rebecca intentionally and with the motive of sexual gratification and to prove absence of mistake. Defense counsel objected to the admission of this evidence, arguing that its probative value was weak because the prior conduct took place six years before the charged incidents, the conduct was incestuous, it took place at home, it involved threats to the victim, as well as grooming, enticement, invasive activity, and evidence of arousal, none of which occurred in the charged incidents concerning Rebecca. Defense counsel also argued that any probative value was outweighed by unfair prejudice.

¶ 6. The court decided to admit the evidence "barring surprises in the testimony that would change the picture." The court reasoned that, because Veach's defense was that any touching of Rebecca that occurred was not done with a sexual motive, the proffered evidence was probative on the issue of motive. The court also stated that mistake or accident was an issue. In the court's view, the probative value of the evidence was considerable, because the presence or absence of a sexual motive for the touching of Rebecca was the central issue in this case, and the similarities between the charged incidents and the conduct with his daughter were significant given the age of the girls and the nature of his relationship to each. The court concluded that the evidence of Veach's conduct with his daughter was extremely prejudicial, but not unfairly so, because it went directly to the issue the jury had to decide.

¶ 7. The morning of trial the prosecutor asked for a clarification of the scope of the court's ruling on the other acts evidence, stating he intended to offer a certified copy of the judgment of conviction and the testimony of the detective who took the statement from Veach. Defense counsel objected to any evidence concerning the prior acts if Veach's daughter did not testify, because Veach would have no opportunity to cross-examine her and make distinctions between the prior acts and the charged incidents. The prosecutor explained he did not intend to offer the victim's statement through the detective's testimony, acknowledging that would be subject to hearsay and confrontation objections. The court stated the scope of its ruling on other acts evidence included any admissible evidence of Veach's sexual conduct with his daughter. It held that a certified copy of the judgment of conviction and the detective's testimony of Veach's statement to him were both admissible; it rejected defense counsel's argument that the former did not provide enough information to be probative of motive, and his argument that if the former were admitted, the latter should be excluded as cumulative.

¶ 8. The evidence at trial established that Veach and his girlfriend were friends of Rebecca's family for a number of years and they often went camping together. Veach and Rebecca had a close relationship. Veach's girlfriend agreed that "[Rebecca] kind of viewed him like either a close uncle or maybe even a father on occasion." ¶ 9. The evidence of the two charged incidents consisted of the statement Veach gave to the officer investigating this case and the trial testimony of Rebecca and Veach. Rebecca testified that in July of 1994, at night, Veach was resting in a hammock at his campsite and invited her to join him. She climbed in and lay down on his stomach. He put his hand inside her underwear and rubbed her vaginal area.⁶ Veach testified Rebecca got in the hammock with him quite often, but he denied she ever lay on his stomach and denied he ever touched her inappropriately.

¶ 10. With respect to the van incident, Rebecca testified she and Veach were sleeping in his van later that same summer. She was lying on her stomach and he unzipped her sleeping bag and, with his hand under her clothes, rubbed her back and her butt; then put his hand underneath her on her stomach and rubbed her vaginal area. Veach testified that after he had carried Rebecca to the bathroom that night and she crawled back in her sleeping bag, she said she was cold and asked if she could cuddle up next to him. He said no, but he did rub her arms and back through the sleeping bag to try to warm her up and he described doing this "in a fatherly way." On cross-examination he explained that by saying "and everything else" to the investigating officer, he meant "her leg or arm or feet." He denied touching her inappropriately in any way.

¶ 11. The evidence of the other acts presented by the State consisted of the certified copy of the judgment of conviction; the testimony of Detective Christ Tzakais, the officer to whom Veach gave his October 3, 1987 statement; and Veach's trial testimony of the incident he had described in that statement. ¶ 12. When Detective Tzakais began his description of the investigation, this interchange occurred:

Q Can you describe for us what it was that led you to become involved with the investigation?

A On September 16th of `87 [his daughter] and her mother came into the sheriff's department quite distraught about something that was going on—

MR. CARNS: (Interposing) Objection on hearsay grounds as to what other folks have told Detective Tzakais.

THE COURT: Overruled. I'll permit some latitude by way of preliminary questions. As we get into it, we need to be attentive to the hearsay problem.

After the detective described Veach's statement of the one incident with his daughter, this interchange occurred:

A. . . . I asked him if he could recall another incident where [his daughter] described him having her give him a blow job and he indicated he did not recall that. However, he indicated that it could have happened. He was also confronted and asked if he recalled the other six incidents that—

MR. CARNS: (Interposing) Objection. Maybe we should hear this outside the presence of the jury.

THE COURT: For the present time I would ask the officer to respond to questions from the District Attorney.

MR. CARNS: My objection would go to the fact that we are also going to introduce a judgment of conviction which shows one conviction and not a series of events.

THE COURT: I would overrule that objection.

Shortly thereafter, in response to the prosecutor's question of whether Detective Tzakais had asked Veach if Veach "had been involved in similar behavior with [his daughter],"...