Appeals court rejects arguments of Fredonia man who assaulted stepdaughter
A Fredonia man serving a 35-year prison sentence for raping his 12-year-old stepdaughter during a 2013 assault arranged with the help of the girl’s mother is not entitled to a new trial, an appeals court has ruled.
Affirming the decisions of Ozaukee County Circuit Judge Paul Malloy, the District 2 Wisconsin Court of Appeals rejected the man’s claims that Malloy incorrectly barred evidence at his trial that could have impeached the credibility of one of two key witnesses — the victim’s mother, who was his wife at the time.
The 47-year-old man, who Ozaukee Press is not naming to protect the identity of the victim, also argued there was not enough evidence to convict him and that Malloy abused his authority by imposing an exceedingly harsh sentence. The appeals court also rejected those claims in its Sept. 21 decision.
On Feb. 5, 2014, after a day-and-a-half of testimony, an Ozaukee County jury deliberated for less than two hours before finding the man guilty of two felonies — first-degree sexual assault of a child and incest with a child by a stepparent.
During the trial, the victim testified that at about 9 p.m. on April 1, 2013 — her stepfather’s 44th birthday — her mother led her to the master bedroom of the family’s second-story apartment where her stepfather was waiting for her in bed.
“She (her mother) said, ‘We’re going to give your daddy a special birthday gift,’” the girl told the jury. “I said, ‘I don’t want to, mommy,’ but she said, ‘Do this just for once.’”
In the bedroom, the girl said, her mother instructed her to take off her clothes and lie on the bed. Then her stepfather sexually assaulted her, she said.
“She (her mother) was lying right next to me telling me it will be all right,” the girl testified. “I was just like, ‘Oh God, not this.’
“Ten or 15 minutes later, I said, ‘I think that’s enough,’ and he stopped. My mom told me to take a shower, get ready for bed and never tell anybody what happened.”
The girl’s mother, who at the time was facing felony charges and is currently serving a prison sentence for her role in the assault, corroborated much of her daughter’s account, telling the jury she was depressed and overworked and finally gave in to her husband’s incessant requests to have sex with one of her daughters.
Her husband’s attorney, Robert Olmr, targeted her credibility when he attempted to question her about photographs and a text message she received on her phone that allegedly expressed interest in a sexual encounter with her in the presence of one of her daughters.
The appeals court ruled that Malloy correctly prohibited the questioning, concluding that while not very useful it was highly prejudicial, “designed to smear more than it is to shine any light on what’s happened here.”
Without any physical evidence, the testimony of the victim and her mother was crucial. The assault was reported about two months after the attack when the victim’s older sister accidentally mentioned it while the girls were visiting their biological father, who then reported the crime.
The appeals court ruled the testimony was sufficient to convict the man of two of the three felonies he faced. The jury acquitted him of child enticement.
The man also argued in his appeal that in sentencing him Malloy did not give ample weight to the fact he had no prior criminal record, a presentence report recommended a lesser punishment and that he did not use force against the victim.
Again, the appeals court rejected this argument, noting Malloy based his sentence on the fact the man betrayed the trust of his stepdaughter as well as the need to protect the public and deter similar crimes.
At the March 15, 2014, sentencing hearing, which the victim did not attend, Malloy told the man, “I was hoping (the victim) would have been in court today. I want her to understand we can’t undo what happened to her, but we can make sure you can’t hurt anyone again, and that’s exactly what I’m going to do.
“You were one of two people she had a right to expect would protect her.”
The victim’s 40-year-old mother, who pleaded no contest in May 2014 to felony crimes of failure to protect a child from sexual assault, being party to the crime of first-degree sexual assault of a child and child enticement, was sentenced in June 2014 by Ozaukee County Circuit Judge Sandy Williams to 22-1/2 years in prison and 15 years of extended supervision.
“This is one of those cases that, quite frankly, is repulsive,” Williams said during the sentencing.
The woman also appealed her case, claiming that she was convicted twice for the same crime in violation of the double jeopardy clause of the constitution and that her lawyer failed to adequately represent her because he did not advise her of the double jeopardy violation.
The court of appeals rejected those argument, but she has filed a petition for review, which is pending.