State of Wisconsin v. Luis C. Salinas

In this appeal, we are asked to determine whether the Brown County Circuit Court erred when

it granted the State's motion to join intimidation charges involving two victims, a mother and her daughter, with alreadypending sexual assault charges where the daughter was the victim. The circuit court1 held that joinder was proper under Wis. Stat. § 971.12(1)(2009-10);2 the court of appeals reversed in an unpublished per curiam opinion.3

¶2 We hold that joinder was proper because the charges joined were "2 or more acts or transactions connected together

or constituting parts of a common scheme or plan," the charges were "connected together," and the charges constituted parts of a "common scheme or plan." See Wis. Stat. § 971.12(1).

Accordingly, we reverse the court of appeals and affirm the

jury's verdicts finding Luis Salinas guilty of: (1) repeated

sexual assault of a child; (2) second-degree sexual assault; (3)

second-degree sexual assault of a child under the age of 16; (4)

intimidation of witness, M.S.; and (5) intimidation of witness,

V.G.

I. BACKGROUND

¶3 Salinas lived with his girlfriend M.S., their son

A.S., M.S.'s daughter V.G., and M.S.'s two sons. On October 26,

2009, police were called to the family home following a domestic

violence incident. V.G. reported that Salinas slapped her face

after M.S. left for work, and when M.S. returned home, V.G.

heard M.S. and Salinas arguing. V.G. said she saw Salinas with

both hands on M.S.'s neck in what looked like an attempt to

choke M.S. to death. V.G. yelled at Salinas to let M.S. go.

2 All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.

3 See State v. Salinas, No. 2013AP2686-CR, unpublished slip op. (Wis. Ct. App. Apr. 21, 2015)(per curiam).

No. 2013AP2686-CR

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M.S. yelled for V.G. to get out of the house and call police.

M.S. reported she grabbed Salinas's hair, escaped his grasp, and

ran out of the house. When M.S. looked back, Salinas had their

then four-year-old son, A.S., in the doorway and Salinas had a

knife in one hand although the knife was not pointed at A.S.

Salinas told A.S. to ask M.S. to come back inside. Salinas

yelled for V.G. not to call police or Salinas would kill A.S.

and kill himself. Police arrived shortly thereafter and

arrested Salinas.

¶4 The next day, October 27, 2009, the State charged

Salinas with four counts arising from this domestic violence

incident. Both M.S. and V.G. were domestic violence victims.

Salinas entered into a plea agreement with the State. On March

8, 2010, Salinas entered Alford4 pleas to domestic violence

strangulation and suffocation and domestic violence battery.

The other two counts were dismissed but read in at sentencing.

¶5 While the domestic violence charges were pending,

Salinas frequently called M.S. from jail. Between the time

Salinas was arrested and the date of his sentencing in the

domestic violence case on May 11, 2010, the jail recorded over

500 phone calls from Salinas to M.S. The intimidation charges

4 "An Alford plea is a guilty plea where a defendant pleads guilty to a charge but either protests his innocence or does not admit to having committed the crime. The plea derives its name from the United States Supreme Court's decision in North Carolina v. Alford, 400 U.S. 25 (1970)." State v. Garcia, 192 Wis. 2d 845, 851 n.1, 532 N.W.2d 111 (1995).

No. 2013AP2686-CR

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at issue here stem from those phone calls. The State asserted

that transcripts from the phone calls show Salinas's attempt to

pressure M.S. to change her statement to police about the

domestic violence incident and come to the sentencing to help

him look good with the sentencing judge.

¶6 In two of the calls, Salinas said:

I thank you so much for having my son, [M.S.] But you really piss me off. You don't know what I'm able to do. You don't know what I have done or what I could do. You are treating me like a piece of shit. No, my darling, you don't know who I am. That is why you want to send me to prison and you want me to go to hell. Fourteen years and six years for this and that and you think you're playing with a piece of shit. I told you long time ago don't call the cops on me because we're going – because they are going to take me seriously. And, look, you called the cops and all because of [V.G.].

I'm telling you, man, I can never talk to you because, look, you better start thinking that one day I'm coming out. Daughter of your fucking mother, because you're making me tired of always trying to kiss your ass. You better straighten your stinking, your fucking stinky ass. I'm so fucking sick of it. And then they don't want me to kick your ass, man. If you hate me so much, why don't you let me fuck myself up? You never have the mouth when I was outside. I know you're fucking mouthy. I'm tired of your shit. If I get out, if I get out, you are going to be sorry, my darling. You better answer me right now and tell me what is it that you want to do. I don't want to be mean to you because you're the mother of my son.

¶7 The State also asserted that Salinas pressured M.S. to

convince V.G. to do something to help him with the sentencing

judge. Salinas spoke with V.G. directly on one occasion.

Ultimately, both M.S. and V.G. testified at Salinas's sentencing

hearing on the domestic violence convictions. Both indicated to

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the sentencing judge that they wanted Salinas to come back home.

The sentencing court imposed three years of probation with nine

months of jail time.

¶8 On May 13, 2010, two days after Salinas's sentencing

on the domestic violence convictions, V.G. told her boyfriend,

E.D., that Salinas had been sexually assaulting her for the past

three years. According to E.D., V.G. was scared and shaky when

she revealed the sexual assaults and her story came out in "bits

and pieces." E.D. told V.G. to tell her mom and the police.

V.G. then told M.S. and M.S. took V.G. to the police station to

report what had happened.

¶9 V.G. told police that when she turned 13, Salinas

began forcing her to have sexual intercourse. The first time

was in the bathroom at their home on Oakland Street. Salinas

told her to lie down on the bathroom floor. He took down her

sweatpants and underwear and put his penis into her vagina.

When she said no, he told her that if she refused, he would take

her little brother away or send her away. He also hit her,

punched her, and slapped her to force compliance. V.G. told

police the sexual assaults took place 6 to 12 times a month over

the course of three years. She said Salinas did this when her

mother was not home. V.G. said the assaults occurred in the

living room and Salinas's bedroom and the assaults continued

when they moved to a different house on Dousman Street. V.G.

explained that Salinas rarely used a condom, but did not

ejaculate inside of her. He "pulled out" and then used a white

rag, which he often made her wash afterwards.

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¶10 V.G. told police that the last sexual assault occurred

the day Salinas was arrested for the domestic violence. Salinas

slapped her that day because she told him she did not want to

have sex with him. V.G. reported that she did not tell anyone

about the sexual assaults because she was afraid and ashamed and

because Salinas repeatedly threatened that he would take her

little brother away or send her away.

¶11 On May 19, 2010, the State charged Salinas with three

counts related to the sexual assaults: (1) repeated sexual

assault of a child in violation of Wis. Stat. § 948.01(1)-(2)

and Wis. Stat. § 948.025(1)(b); (2) second-degree sexual assault

in violation of Wis. Stat. § 940.225(2)(a); and (3) second

degree sexual assault of a child under the age of 16 in

violation of Wis. Stat. § 948.02(2). Salinas pled not guilty

and denied ever sexually assaulting V.G.

¶12 In August and September of 2010, the police listened

to and translated from Spanish all the recorded telephone calls

between Salinas and M.S. that Salinas made from jail. Both M.S.

and Salinas spoke in Spanish. Police also interviewed M.S. and

V.G. about all the telephone calls.

¶13 On October 5, 2010, the State charged Salinas with two

counts of misdemeanor intimidation of a witness, in violation of

Wis. Stat. § 940.44(1), and Wis. Stat. § 968.075(1)(a). One

count listed M.S. as the victim and the second count listed V.G.

as the victim.

¶14 On October 18, 2010, the State filed a motion to join

the intimidation counts with the already-pending sexual assault

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counts. The State argued the charges shared common victims and

arose within six months of one another; moreover, the State

argued for joinder because the evidence in the two cases

overlapped, and if the cases were joined, the victims would only

have to testify at one trial. Salinas argued the charges should

not be joined because the intimidation charges related to the

domestic violence case, not the sexual assault case. The

circuit court joined the cases reasoning:  One of the intimidation counts involves the same victim

of the sexual assaults——V.G.——making it logical to

"connect those two for purposes of trial."  Joining the two cases will not confuse the jury.  "There is a strong likelihood that all of this evidence

in this file would come in under other-acts evidence."

¶15 After the circuit court's ruling, the State amended

the Information to include the three sexual assault counts and

the two intimidation counts. At the pre-trial conference on

March 2, 2012, Salinas's lawyer indicated that Salinas would

plead guilty on the intimidation counts but go to trial on the

sexual assault counts. The State advised that even if the

intimidation counts were pled out, it intended to present

evidence on the intimidation charges in the sexual assault trial

because

it all ties together and that's why they were all joined. It starts with a domestic violence situation between the victim's mother and the defendant and evolves until we get to the disclosure in this case, and so I just want to be clear that [the] State

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intends to put all that evidence forward because that's our case.

¶16 Salinas's lawyer responded that the intimidation

charges arose from Salinas "trying to get them to consider a

better sentencing recommendation" in the domestic violence case

and "were completely separate from any sort of sexual assault

allegation." The State explained "the last sexual assault

occurred on the day [Salinas] went to jail for this

strangulation. So that evidence is coming forward. [V.G.]

knows it's that date because that's the date he strangled her

mother and he went to jail and he was not able to assault her

any further." The State argued that this evidence would be

relevant to explain why V.G. delayed reporting the sexual

assaults, and, in essence, to provide context. The circuit

court cautioned Salinas's lawyer that pleading to the

intimidation counts may not keep the evidence of the domestic

violence incident out of the sexual assault trial——that it could

come in as other acts evidence. The circuit court advised that

the lawyer should "do with that what you want, and if you want

to plea him, I'll take it on Tuesday" but "[w]hat I don't want

is for you to enter a plea with a belief you got some type of

commitment from the DA's Office or you're able to forecast what

I'm going to do because that would be wrong." Salinas decided

not to enter pleas to the intimidation counts and the joined

charges were tried to a jury on March 6-7, 2012. At no time did

Salinas file a motion seeking severance of the joined charges.

No. 2013AP2686-CR

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¶17 During the State's opening statement, the prosecutor

told the jury the evidence would show a "pattern of violence,

intimidation, threats, and most disturbingly, [that] repeated

sexual assault of a child occurred to the victim, [V.G.],

occurred within a family environment where her mother, [M.S.],

was also a victim, where she had three younger brothers in that

household as well." The prosecutor also explained that "this

story begins . . . October 26, 2009" the day Salinas was

arrested for domestic violence——for hitting V.G. and attempting

to strangle M.S.:

That is the day ladies and gentlemen, that the defendant strangled [M.S.], that he did that in front of [V.G.], that in the kitchen she was struggling to get away from him, that she yelled to [V.G.] to get out, call the police, that she was able to get away from the defendant, that she ran out herself, and when she turned around, what did she see? More violence and intimidation. She saw the defendant standing with his 4-year-old-son, [A.S.], to one side and a knife to the other telling [A.S.], "Tell your mother to come back inside."

That is a day of horror but that is also a day that stopped what was happening to [V.G.] That is a day that family got help. That is the day that [V.G.] stopped being assaulted from the defendant. And we also know that day is the last day he assaulted her.

¶18 In Salinas's opening, his lawyer told the jury:  "Just because he might be a bad guy is really

irrelevant."  The intimidation counts relate to a prior conviction for

hitting M.S. and V.G. The intimidation is not "about a

sexual assault."

No. 2013AP2686-CR

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 "I hope that you can parse out the difference between Mr.

Salinas having a jaded past, perhaps having done a bad

thing to these two people who are going to testify and

whether the charges that he's here for today actually

happened or not. They're very separate and

distinguishable[.]"

¶19 The State's main witnesses included victims V.G. and

M.S. V.G. testified:  Salinas started sexually assaulting her when she turned

13 years old. The assaults occurred when her mother was

not home and when her brothers were asleep or outside.  The first assault was on the bathroom floor; other times

Salinas assaulted her in the living room where he was

careful to watch out the window for M.S. to make sure he

did not get caught. He also assaulted her in the

bedroom.  He used a condom on only two occasions that she can

remember; typically he would pull out before he

ejaculated and finish with a white rag, which he often

made her wash afterwards.  The assaults occurred at both the Oakland Street house

and the Dousman Street house.  If she told Salinas she did not want to have sex with

him, he hit or threatened her. Salinas struck her many

times and told her if she refused sex, he would take her

little brother away or send her away to Mexico or to

California to live with her dad. He told her that if she

No. 2013AP2686-CR

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told her mother, he would blame her for "coming on to

him" and if she told police, Salinas told V.G. that the

police would take the children away from their mother.  One time after an argument with her mother, Salinas did

take her brother A.S. and left for 7-10 days.  Salinas assaulted her "more than 40 to 50 times" over two

and one-half years.  On October 26, 2009, after her mother left for work,

Salinas struck V.G. in the face because she did not want

to have sex with him; he proceeded to sexually assault

her.  Later that day when her mother returned home from work,

V.G. heard M.S. and Salinas arguing; Salinas told M.S. he

had struck V.G., and M.S. was angry. V.G. saw Salinas

choking her mother and yelled at Salinas to let go of

her. M.S. told V.G. to leave the house and go; V.G. left

the house and called police from a neighbor's house.  When police came, V.G. reported that Salinas hit her but

did not report the sexual assaults, "[b]ecause I just

wanted him gone because I thought that with him gone it

just wouldn't be going through all the things that I was

going through, and I thought that was just -- I was

afraid and just embarrassed and ashamed of everything."  She was also worried her mom "would be ashamed" and upset

and "blame herself because she never caught on, and we

had been living together all of us for so long."

No. 2013AP2686-CR

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 She testified that the police took Salinas to jail and

the phone calls from him started. She said she spoke

with Salinas only one time and he asked her to change her

statement and tell the sentencing court she missed him

and wanted him home.  She went to the sentencing hearing because her mom asked

her to go. V.G. thought if she attended the hearing, the

excessive phone calls would stop and maybe Salinas would

change. Also, she had been promised a phone card, and

her little brother, A.S., was missing his dad.  Two days after the sentencing, V.G. told her boyfriend,

E.D., about the sexual assaults because she wanted to be

honest with him. E.D. insisted she tell her mom and her

mom took her to the police station to report the sexual

assaults.

¶20 M.S.'s testimony began by describing what happened on

October 26, 2009. She had worked that day and when she arrived

home, Salinas told her he had hit V.G. for not listening to him.

This started an argument and Salinas threw a glass candle at her

that struck her head. At this point, Salinas’s lawyer objected:

Your Honor, I just have to object to this line of questioning. Mr. Salinas has pled guilty to all these things. They've been litigated before. There was a physical altercation. Let's move on. This is unfairly prejudicial. She's just bringing this up to try and say later on look how bad Luis Salinas is. He must have done it.

The prosecutor responded: "[T]his is all information that is

part of [M.S.]'s statement. It is part of the allegations in

No. 2013AP2686-CR

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this case. It certainly goes to the heart of the intimidation."

The circuit court overruled the objection: "I'm going to allow

it. I think it goes to Counts Four and Five [intimidation

counts] in terms of giving context or background. I'm going to

allow you to cross-examine."

¶21 M.S. continued describing the events of October 26,

2009:  Salinas put his hands on her neck and tried to choke her;

she told V.G. to get out of the house; she grabbed

Salinas's hair and escaped his grasp and ran outside.  When she turned back, her son, A.S., was standing in the

doorway and Salinas was telling A.S. to ask her to come

back inside. Salinas had a knife in his hand but it was

not pointed at A.S.  Salinas told V.G. to hang up the phone she was using to

call police or "he was going to kill the boy and he was

going to kill himself."  Police arrived and arrested Salinas.

¶22 M.S. also testified about the phone calls Salinas made

to her from jail. Salinas told her to change her statement to

police to say he did not try to strangle her and he did not

threaten to kill her. Salinas asked her to convince V.G. to

change her statement to say Salinas did not hit her. M.S. told

the jury she in fact tried to change her statement with police

because she believed if she did not, Salinas would take her son

away and he would kill her and her children.

No. 2013AP2686-CR

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¶23 M.S. explained why she went to Salinas's sentencing

hearing on May 11, 2010: Salinas made her feel guilty, blaming

M.S. and V.G. for putting him in jail, and Salinas threatened to

kill himself if she did not come. He also promised he would

change and things would be better if she came to the sentencing

and spoke in favor of him coming home. M.S. admitted she

pressured V.G. to come to the sentencing when V.G. did not want

to go. She promised V.G. a phone card if she would attend and

tell the court she wanted Salinas to come home.

¶24 M.S. testified that V.G. told her about the sexual

assaults on May 13, 2010, and she took V.G. to the police to

report what had happened. M.S. also told the jury that for the

last two years, Salinas refused to let V.G. go out of the house

with M.S. because Salinas said V.G. "misbehaved." She testified

about how Salinas forced V.G. to stay home from school for a

month in the Fall of 2009, her sophomore year in high school.

¶25 V.G.'s boyfriend, E.D., also testified. He talked

about meeting V.G. in French class at the start of the school

year, but that V.G. stopped coming to school until after October

26, 2009. When V.G. returned, they became friends and then

boyfriend-girlfriend. E.D. described how, on May 13, 2010, V.G.

disclosed the sexual assaults to him, that she was scared and

shaky, and how it was hard for her to talk about the assaults.

He told her to tell her mom and the police.

¶26 The parties stipulated that Salinas made over 500

phone calls to M.S. from jail. V.G.'s statement from Salinas's

No. 2013AP2686-CR

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sentencing for the domestic violence convictions was read to the

jury. The statement provided:

I wanted to say that -- well, I don't have it on paper but I wanted to say that our family has gone through a lot the last few months that he hasn't been at our house and we're all sad that he's not here so -- and we'd really like him to come home. That's all I wanted to say.

¶27 The circuit court gave jury instructions, including an

instruction that remarks by attorneys are not evidence and an

instruction that closing arguments are opinion and not evidence.

The circuit court cautioned the jury regarding Salinas's prior

convictions:5

Now, evidence has been received in this case that the defendant, Luis Salinas, has been convicted of crimes. This evidence was received solely because it bears upon the credibility of the defendant as a witness. You must not use it for any other purpose and particularly you should bear in mind that a criminal conviction at some previous time is not proof of guilt of the offense now charged.

¶28 During closing argument, the prosecutor recounted what

happened the evening of October 26, 2009:

[V.G.] hear[s] arguing between her mother and [Salinas]. [V.G.] waits and she goes out and she sees the defendant choking her mother and she's yelling. Her mother is yelling "get out, get out." She's able to go to the front door. Her mother is able to get away from the defendant and go out the side.

And, ladies and gentlemen, I would submit at this point the defendant is very concerned. To this point 5 Salinas testified he had been convicted 12 times. The circuit court, in essence, gave the standard jury instruction on prior convictions. See Wis JI——Criminal 327.

No. 2013AP2686-CR

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he's been able to keep them from calling the police. He's been able to intimidate them, use threats, use violence to make sure the police don't get involved. But this time they're out of the house. And what does he do in a last [d]itch effort and desperation? He takes a knife and he takes his little boy, the little boy he claims to love more than anything. He has a knife in one hand and he's telling [M.S.] get back in the house. He's telling the little boy, "Tell your mother to get back in the house or I'm going to kill myself and I'm going to kill the boy."

Salinas's lawyer argued to the jury that this case was not about

the battery and strangulation, that Salinas was already punished

for that and "that's not what we're here to decide today." He

also pointed out that V.G. and M.S. had "very vivid" and

detailed memories of the domestic violence incident, but V.G.

had "very little recall of the sexual assaults." He argued that

the "glossing over" of the sexual assault allegations should

convince the jury that the sexual assaults never happened. The

jury convicted Salinas on all three sexual assault counts and

both intimidation counts.

¶29 Salinas appealed, arguing that joinder was improper

and not harmless error. The court of appeals agreed and

reversed in a per curiam, unpublished opinion. See State v.

Salinas, No. 2013AP2686, unpublished slip op. (Wis. Ct. App.

Apr. 21, 2015)(per curiam). The State petitioned this court for

review and we granted the petition.

II. STANDARD OF REVIEW

¶30 The issue presented on appeal is whether joinder of

the intimidation and sexual assault charges was proper under

Wis. Stat. § 971.12(1). The initial decision on joinder is a

No. 2013AP2686-CR

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question of law that we review de novo. See State v. Locke, 177

Wis. 2d 590, 596-97, 502 N.W.2d 891 (Ct. App. 1993); State v.

Hoffman, 106 Wis. 2d 185, 208-09, 316 N.W.2d 143 (Ct. App.

1982). This case does not involve a motion for severance after

initial joinder, which is reviewed under an erroneous exercise

of discretion. See id. Although neither party disputes the de

novo standard of review on initial joinder, some Wisconsin cases

have applied a discretionary standard of review to both the

initial joinder decision and the decision on a motion to sever.

See Haldane v. State, 85 Wis. 2d 182, 188-89, 270 N.W.2d 75

(1978)("Generally, questions of consolidation or severance are

within the trial court's discretion."); Holmes v. State, 63

Wis. 2d 389, 395-96, 217 N.W.2d 647 (1974)("What is involved is

an exercise of trial court discretion."); State v. Brown, 114

Wis. 2d 554, 559, 338 N.W.2d 859 (Ct. App. 1983)(same). We make

clear here that those cases inaccurately described the proper

standard of review. As noted, the initial joinder decision and

a decision to sever properly joined charges are distinct

considerations that require different standards of review. As

Locke explained:

On appeal, review of joinder is a two-step process. First, the court reviews the initial joinder determination. Whether the initial joinder was proper is a question of law that we review without deference to the trial court, and the joinder statute is to be construed broadly in favor of the initial joinder.

. . .

[Second,] [s]ection 971.12(3) provides that even after initial joinder, the court may order separate trials

No. 2013AP2686-CR

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of the charges if it appears that a defendant is prejudiced by a joinder of the counts. A motion for severance is addressed to the trial court's discretion.

Locke, 177 Wis. 2d at 596-97. Here, because the issue in

Salinas's case involves only whether the initial joinder

decision was proper, our review is de novo.

III. ANALYSIS

¶31 Wisconsin Stat. § 971.12(1) describes when separate

crimes may be joined together in the same complaint:

JOINDER OF CRIMES: Two or more crimes may be charged in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.

The joinder statute is to be broadly construed in favor of

initial joinder. See Francis v. State, 86 Wis. 2d 554, 558, 273

N.W.2d 310 (1979)("A broad interpretation of the joinder

provision is consistent with the purposes of joinder, namely

trial convenience for the state and convenience and advantage to

the defendant."); Locke, 177 Wis. 2d at 596. The statute

provides four separate provisions under which initial joinder is

deemed proper: (1) when two or more crimes are of the "same or

similar character"; (2) when two or more crimes are based on the

"same act or transaction"; (3) when two or more crimes are based

on two or more acts or transactions that are "connected

together"; or (4) when two or more crimes are based on two or

No. 2013AP2686-CR

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more acts or transactions that constitute "a common scheme or

plan." Wis. Stat. § 971.12(1).

¶32 The State argues joinder was proper under Wis. Stat.

§ 971.12(1) because the intimidation and sexual assault charges

are either: (1) two or more acts connected together; or (2) two

or more acts or transactions constituting parts of a common

scheme or plan.6 Salinas argues the intimidation and sexual

assault charges do not fall into either category because the

intimidating phone calls relate only to the domestic violence

convictions, not the sexual assaults, and are so different they

cannot constitute a common scheme or plan. Salinas also argues

that the improper joinder of these charges prejudiced him and

therefore was not harmless error. We hold that the charges here

were properly joined because they were "2 or more acts or

transactions connected together or constituting parts of a

common scheme or plan", the charges were "connected together"

and the charges constituted "parts of a common scheme or plan."

Because we determine joinder was proper, we do not address

Salinas's harmless error argument.

¶33 Before we begin our analysis, we note that although

"connected together" and "common scheme or plan" are separate

and distinct prongs in the joinder statute, Wisconsin case law

has, on occasion, merged them into a single concept, suggesting 6 The State conceded the facts do not support joinder based on the sexual assaults and intimidation being crimes: (1) of the "same or similar character," or (2) based on the "same act or transaction."

No. 2013AP2686-CR

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the same analysis applies to both. See Francis, 86 Wis. 2d at

560. In Francis, neither victim could identify Francis, but

after police were able to link Francis to the crimes against one

of the victims, they were able to connect Francis to the crimes

against the other victim based on similar modus operandi. Id.

at 555-56, 560. The State filed a complaint charging Francis

with three crimes against the two victims; the circuit court

denied his motion to sever, and a jury found him guilty of all

charges. Id. at 556. On appeal to this court, Francis argued

only that initial joinder was improper, making no argument on

whether the circuit court's severance decision caused prejudice.

Id. at 555, 561-62. We upheld joinder as proper based on "the

phrase 'connected together or constituting parts of a common

scheme or plan.'" Id. at 555-56, 560. We so held because this

phrase had been interpreted by other courts to mean: "inter

alia that the crimes charged have a common factor or factors of

substantial factual importance, e.g., time, place or modus

operandi, so that the evidence of each crime is relevant to

establish the identity of the perpetrator." Id. at 560.

¶34 We have also, at least implicitly, upheld joinder

based solely on the "connected together" language and solely on

the "constituting parts of a common scheme or plan" language of

Wis. Stat. § 971.12(1). In State v. Bettinger, 100 Wis. 2d 691,

303 N.W.2d 585 (1981), we held there could be "no dispute" that

joinder of the sexual assault charge with the bribery charge was

proper under Wis. Stat. § 971.12(1) because the two acts were

"connected together." Id. at 694. In Bettinger, the identity

No. 2013AP2686-CR

21

of the perpetrator was not in dispute as he was a friend of the

family. Id. at 692-93. Bettinger sexually assaulted the victim

and then offered her a bribe to drop the charges or not

cooperate with the prosecution. Id. at 693. No one disputed

that these two separate crimes were properly joined because they

were "connected together." Id. at 694. They were connected

together because both crimes involved the same victim and the

same perpetrator and because the bribery was an attempt to avoid

conviction on the sexual assault.

¶35 In State v. Kramer, 45 Wis. 2d 20, 171 N.W.2d 919

(1969), this court upheld joinder on five separate crimes of two

unrelated victims using the "common scheme or plan" provision.

Id. at 24, 36.7 Kramer was convicted of false imprisonment,

injury by conduct regardless of life, armed robbery and two

counts of physical damage to property. Id. at 24. The "common

scheme or plan" involved crimping the gas line of women's cars

to disable the vehicle and then offering to give the stranded

women a ride. Id. at 24-26. We held joinder proper based on

this common scheme or plan. Id. at 36.

7 In State v. Kramer, 45 Wis. 2d 20, 171 N.W.2d 919 (1969), Wisconsin was still using the prior joinder statute, Wis. Stat. § 955.14(1)(1967), which provided: "Different crimes and different degrees of the same crime may be joined in one information, indictment or complaint." However, in Kramer this court cited Federal Criminal Rule 8(a), the federal joinder statute, which is substantially similar to the language of our current joinder statute at issue here.

No. 2013AP2686-CR

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¶36 This case presents us with the opportunity to analyze

whether the charges joined in Salinas's case should be upheld

because they were "2 or more acts or transactions connected

together or constituting parts of a common scheme or plan," the

charges were "connected together," and the charges constituted

"parts of a common scheme or plan." Before we proceed with that

analysis, we emphasize that this court "has historically

favored" initial joinder particularly when the charged crimes

were all "committed by the same defendant." See Francis, 86

Wis. 2d at 559 (citations and quotemarks omitted). We interpret

initial joinder decisions broadly because of the goals and

purposes of the joinder statute: (1) trial economy and

convenience; (2) to promote efficiency in judicial

administration; and (3) to eliminate multiple trials against the

same defendant, which promotes fiscal responsibility. See id.,

at 560; State v. Leach, 124 Wis. 2d 648, 671, 370 N.W.2d 240

(1985).

A. Connected together or constituting parts of a common scheme or plan

¶37 As we have seen, in Francis, we held joinder proper

because the separate crimes were connected together by a common

scheme or plan. In doing so, we did not analyze "connected

together" separately from "constituting parts of a common scheme

or plan." Citing several federal cases, we observed that the

entire phrase "connected together or constituting parts of a

common scheme or plan" has been interpreted, among other things,

to mean "that the crimes charged have a common factor or factors

No. 2013AP2686-CR

23

of substantial factual importance, e.g., time, place or modus

operandi, so that the evidence of each crime is relevant to

establish a common scheme or plan that tends to establish the

identity of the perpetrator." Id., 86 Wis. 2d at 560. In other

words, Francis's modus operandi connected the separate crimes

together and helped identify Francis as the person who had

committed these separate crimes. Id. at 560-61. Thus, in

joinder cases following Francis, most of which are unpublished,

the "common factor or factors of substantial factual importance"

test has been used both to analyze whether joinder is proper

under the entire phrase, under connected together, and under

constituting parts of a common scheme or plan.

¶38 Using the Francis test, we hold the crimes joined

against Salinas are "connected together or constituting parts of

a common scheme or plan" because Salinas's crimes share common

factors or factors of substantial factual importance. First,

V.G. was a victim of both the sexual assaults and the

intimidation crimes, which were charged after the domestic

violence conviction. Second, the last sexual assault occurred

on the same day as the domestic violence incident. Third,

Salinas's domestic violence toward V.G. immediately preceded the

sexual assault; Salinas used the physical abuse to accomplish

the sexual assault. Fourth, the intimidation charges and sexual

assault charges were close in time, involved the same people,

and Salinas arguably engaged in one crime to prevent disclosure

and punishment for another.

No. 2013AP2686-CR

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¶39 Although Francis discusses joinder in terms of the

crimes having substantial factors of a common scheme or plan

that establish identity, the law is not so limited. In Francis,

we indicated this statutory phrase had "been interpreted to mean

inter alia" what is quoted above. Id., 86 Wis. 2d at 560.

Inter alia means "among other things." In other words, the

identity link was one meaning given to the statutory phrase in

cases where identity is at issue. In cases where identity is

not at issue, however, the statutory phrase is not so limited.

¶40 Here, as in Bettinger, the perpetrator is known

because the situation involves a family. Salinas is the

perpetrator in both the intimidation and sexual assault crimes.

The perpetrator and victims resided together as part of the same

familial unit with daily interactions. V.G. was a victim of

the domestic violence, intimidation, and sexual assault crimes.

Salinas used domestic violence toward V.G. to overcome her

objections to having sexual intercourse with him. Salinas

created an atmosphere of fear, engaging in a scheme or plan of

manipulation, coercion, and intimidation to control and abuse

M.S. and V.G. The crimes of domestic violence and sexual

assault are connected because Salinas used both to establish

control over V.G. and M.S. that allowed him to break the law

without legal repercussions. Once incarcerated, Salinas could

no longer use physical or sexual abuse to control his victims so

he attempted to influence and control them through the use of

the telephone. Salinas made 500-plus phone calls including

threats that he would still be able to exert control from jail.

No. 2013AP2686-CR

25

The phone calls show manipulation done by phone to force V.G.

and M.S. to recant their claims of physical abuse and help get

him out of jail so he could continue his illegal acts without

legal repercussions. The intimidation charges arising from the

phone calls are part of Salinas's scheme or plan to manipulate

and control V.G. and M.S. so he could physically abuse and

sexually assault these victims without legal repercussions.

That is the evidence the State presented.

¶41 We also face the situation here where V.G. reported

the domestic violence but delayed reporting the sexual assault

crimes, even though one count of each crime occurred on the same

day. Had V.G. reported the sexual assault crimes at the same

time she reported the domestic violence incident, both the

sexual assault crimes and the domestic violence crimes would

have been charged in a single complaint. Had the intimidation

counts arisen after a trial on both the domestic violence and

sexual assault crimes, there would be no question that the

intimidation charges were connected to the sexual assaults. A

subsequent trial on intimidation would have necessarily included

evidence on both the domestic violence incident and the sexual

assaults. Delayed reporting on the sexual assaults should not

operate to disconnect these inextricably intertwined events.

These charges are closely related and interconnected. Likewise,

failure to come forward on the sexual assaults does not

extinguish the relatedness of these crimes or render initial

joinder improper. These crimes were logically connected, grew

out of related interactions, and had a concrete connection.

No. 2013AP2686-CR

26

B. Connected together

¶42 The "connected together" provision of Wis. Stat.

§ 971.12(1) is used to join together offenses committed by the

same defendant that are based on separate acts or transactions

against the same victim or separate victims. "Connected

together" is not defined in the statute, nor has it been

specifically defined by Wisconsin courts. This is so because

the words are self-defining.

¶43 Salinas argues the intimidation counts are not

connected to the sexual assaults; rather, he argues the

intimidation counts relate only to the domestic violence

convictions. In assessing whether separate crimes are

sufficiently "connected together" for purposes of initial

joinder, we look to a variety of factors, including but not

limited to: (1) are the charges closely related; (2) are there

common factors of substantial importance; (3) did one charge

arise out of the investigation of the other; (4) are the crimes

close in time or close in location, or do the crimes involve the

same victims; (5) are the crimes similar in manner, scheme or

plan; (6) was one crime committed to prevent punishment for

another; and (6) would joinder serve the goals and purposes of

Wis. Stat. § 971.12. See Francis, 86 Wis. 2d at 560; State v.

Hall, 103 Wis. 2d 125, 139, 307 N.W.2d 289 (1981)(connected

because "closely related in terms of time, place and modus

operandi, scheme, or plan"); Bettinger, 100 Wis. 2d at 694;

Leach, 124 Wis. 2d at 671 (The purpose of joinder is to promote

No. 2013AP2686-CR

27

economy and efficiency in judicial administration and avoid

multiple trials.).

¶44 Many of these factors apply in this case. The

intimidation charges and the sexual assaults are connected

together because they are closely related, share common factors

of substantial importance, are connected by time, location and

victims, and joinder serves the goals and purposes of Wis. Stat.

§ 971.12. These crimes are closely related as a series of

events within one household involving one defendant and two

victims. The crimes joined were connected together because the

domestic violence against V.G. and M.S. occurred on the same day

that Salinas sexually assaulted V.G., and the intimidation

charges involved coercion and threats to manipulate V.G. and

M.S. to withdraw their statements of physical abuse and to

persuade the sentencing judge to let Salinas go home. The goals

behind the joinder statute are clearly satisfied here because

all of Salinas's outstanding crimes against V.G. and M.S. were

resolved in one trial, the victims had to testify only once, and

the judicial resources utilized to mete out justice were

efficiently conserved. See Leach, 124 Wis. 2d at 671. Thus,

the intimidation counts and the sexual assaults are "connected

together" and joinder was proper under that provision of

§ 971.12(1).

C. Constituting parts of a common scheme or plan

¶45 We also hold that initial joinder was proper because

the intimidation and sexual assault charges constituted parts of

a "common scheme or plan." Neither the statute nor this court

No. 2013AP2686-CR

28

has specifically defined "common scheme or plan" as that term is

used in Wis. Stat. § 971.12(1). Because these are common words

with known meanings, it is not necessary for us to provide a

particular definition here.8

¶46 In analyzing whether Salinas's intimidation charges

and sexual assault charges constitute a "common scheme or plan,"

we look to what evidence the State presented to support its

position that the charges were properly joined under this

provision. The State presented evidence that all of Salinas's

crimes constituted parts of his common scheme or plan to use

threats, intimidation, physical and sexual abuse to maintain

power and control over the woman with whom he lived, as well as

her daughter, so he could break the law without risk of getting

caught. The State argued he created a pattern of violence,

threats, and intimidation so that he could continue to

physically and sexually abuse his girlfriend and her daughter

without consequence or reporting. In order to continue to engage

in his illegal acts and ensure neither M.S. or V.G. reported

Salinas's illegal behavior, he used threats and physical and

sexual abuse. On October 26, 2009, V.G. and M.S. broke the veil

8 Wisconsin case law has defined the term "plan" as "plan" is used in Wis. Stat. § 904.04(2) to mean "a design or scheme formed to accomplish some particular purpose." See State v. Cofield, 2000 WI App 196, ¶13, 238 Wis. 2d 467, 618 N.W.2d 214 (citing State v. Spraggin, 77 Wis. 2d 89, 99, 252 N.W.2d 94(1977)). The phrase in Wis. Stat. § 971.12(1), however, is "common scheme or plan" whereas Wis. Stat. § 904.04(2) uses solely "plan."

No. 2013AP2686-CR

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of silence by calling police. As a result, Salinas lost his

ability to physically and sexually assault them. But he still

had the ability to threaten and manipulate with his words via

the telephone. He did this by calling M.S. over 500 times from

jail, convincing her to lie to police and tell them he did not

try to strangle her as she had reported. He did this by trying

to get V.G. to lie and say he did not hit V.G. as she had

reported. He did this by trying to get M.S. to pressure or

bribe V.G. with the phone card. Salinas, in fact, succeeded in

his threats and intimidation because both M.S. and V.G. attended

his sentencing for the domestic violence and testified on his

behalf. The jail phone calls used to intimidate and control

V.G. and M.S. were an integral part of Salinas's common plan or

scheme to continue his illegal acts. The evidence presented by

the State sufficiently supported initial joinder of the

intimidation and sexual assault counts as parts of Salinas's

"common scheme or plan" to control and assault his girlfriend

and her daughter in his home. Thus, initial joinder was also

proper under this provision of Wis. Stat. § 971.12(1).

D. Harmless Error

¶47 Because initial joinder was proper, we need not

address harmless error. See Leach, 124 Wis. 2d at 669. We do

note, however, that this case is unusual because often joinder

cases concomitantly involve a severance claim. See, e.g., State

v. Linton, 2010 WI App 129, ¶¶15-16, 329 Wis. 2d 687, 791 N.W.2d

222; Locke, 177 Wis. 2d at 596-99. That is, a defendant will

argue both that initial joinder was improper and that even if it

No. 2013AP2686-CR

30

was proper, severance was necessary based on prejudice as set

forth in Wis. Stat. § 971.12(3): "If it appears that a

defendant . . . is prejudiced by a joinder of crimes . . . the

court may order separate trials of counts, grant a severance of

defendants or provide whatever other relief justice requires."

In fact, some cases present only the issue of severance on

appeal as there is no dispute that the initial joinder decision

was proper. See, e.g., Bettinger, 100 Wis. 2d at 694 ("There

can be no dispute in this case that joinder of these two charges

was authorized by sec. 971.12(1), Stats.")(footnote quoting

statute omitted).

¶48 It is unclear from the record why Salinas did not

request severance based on prejudice. The record shows that

Salinas's lawyer did make one objection when M.S. testified

about the domestic violence incident, but the circuit court

overruled the objection finding the testimony was relevant to

context and background. See State v. Marinez, 2011 WI 12, ¶26,

331 Wis. 2d 568, 797 N.W.2d 399 (evidence admissible for context

"to provide a more complete story of the sexual assault . . . as

well as to provide greater information from which the jury could

assess [the child victim's]credibility"). The record also shows

the circuit court cautioned Salinas against pleading on the

intimidation counts if his only reason for doing so was an

expectation that the pleas would result in total exclusion of

the domestic violence evidence. The circuit court explained

that the domestic violence evidence would most likely come in

anyway under Wis. Stat. § 904.04's "other acts" test. See Hall,

No. 2013AP2686-CR

31

103 Wis. 2d at 142-43 (other acts evidence otherwise

inadmissible may come in when offered for an accepted purpose,

as long as they are relevant and not unfairly prejudicial).

¶49 Salinas's lawyer represented at oral argument that

although the reason for failing to file a severance motion was

not clear from the record, it most likely stemmed from the

circuit court's repeated indications that the domestic violence

evidence would be admitted. Failing to make a severance motion,

regardless of the reason, however, results in this issue not

being ripe for our consideration. Thus, our opinion is limited

to our holding that initial joinder here was proper.

In sum, we hold that the initial decision to join the

intimidation charges with the sexual assault charges was proper

because these crimes were "2 or more acts or transactions

connected together or constituting parts of a common scheme or

plan." See Wis. Stat. § 971.12(1). Initial joinder was proper

under this entire phrase, under the "connected together"

provision, and under the "common scheme or plan" provision.

Because initial joinder was proper, we do not address harmless

error.