June 6, 2016 – The Wisconsin Supreme Court has ruled (5-2) that the state properly joined intimidation charges to a sexual assault case that was not opened yet when the defendant made repeated threats to his girlfriend, a witness, from a jailhouse phone.

Luis Salinas was in jail on domestic violence charges, but that case closed before police learned about witness intimidation. After his sentencing on domestic violence charges, his girlfriend’s daughter told police that Salinas sexually assaulted her repeatedly.

Despite an objection from Salinas, the circuit court allowed the witness intimidation and sexual assault charges to be joined. Salinas was later convicted on all charges.

An appeals court ruled that joinder was improper because the intimidation charges related to the domestic violence case, not the sexual assault case.

But the supreme court reversed in State v. Salinas, 2016 WI 44 (May 26, 2016), concluding that the intimidation charges were properly joined with the sexual assault charges, even though those charges were not pending when the intimidation occurred.

Domestic Violence, Intimidation, and Sexual Assault

Salinas was living with his girlfriend, their son, and his girlfriend’s son and daughter in 2009 when he was arrested for domestic violence. He beat up his girlfriend and said he would kill their four-year-old son and himself if anyone called the police. But the police arrived, and he was booked on four domestic violence-related charges.

While Salinas was in jail, he made phone calls to his girlfriend that were recorded. The transcripts later showed that Salinas was threatening her. Salinas also spoke to his girlfriend’s daughter on the phone. She was also a witness in the case against him.

Both testified at his domestic violence sentencing and told the judge they wanted him to come home. Two days after Salinas was sentenced to nine months in jail with three years of probation, his girlfriend’s daughter revealed that Salinas had been raping her since she was 13 years old, and beat and threatened her if she did not comply.

The last assault occurred the same day Salinas was arrested for domestic violence. The state then charged Salinas with three counts of sexual assault.

Police did not listen to the jail phone recordings until after he was arrested for sexual assault. The state then filed a motion to join witness intimidation charges to the sex assault case. Salinas argued that those charges were related to the domestic violence case, which was closed. The circuit court allowed the intimidation charges to be joined.

At trial, the jury was allowed to hear all about the domestic violence incident and the intimidation charges. The jury ultimately convicted Salinas of all charges. Salinas successfully appealed for improper joinder of the intimidation charges.

Majority Reverses

A 5-2 majority reversed the appeals court, noting that the joinder was permissible under Wis. Stat. section 971.12(1), which governs when crimes can be joined into one case.

That statute says two or more crimes may be charged in the same complaint if the crimes charged 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.”

“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 of substantial factual importance,” wrote Justice Rebecca Bradley for the majority.

The majority noted that his girlfriend’s daughter was one victim in both crimes of sexual assault and intimidation, the domestic violence and the last sexual assault occurred on the same day, and domestic violence immediately preceded the sexual assault.

“[T]he 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 of another,” Justice R. Bradley wrote. “Delayed reporting on the sexual assaults should not operate to disconnect these inextricably intertwined events.”

In reaching its conclusion, the majority relied on a case from 1979, Francis v. State, 86 Wis. 2d 554, 273 N.W.2d 310. In that case, the supreme court noted that the joinder statute should be broadly construed to promote the efficient administration of justice.

Dissent

Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley. Abrahamson said the statute should not be construed broadly because of overwhelming evidence that joinder of multiple charges can prejudice criminal defendants.

And Justice Abrahamson said the majority’s analysis was wrong. “I agree with the court of appeals’ decision that the sexual assault charges and the victim intimidation charges are, at most, tangentially related,” wrote Justice Abrahamson, who also said that Salinas called the girlfriend on the phone, not the girlfriend’s daughter.

“As a result, the majority opinion’s conclusion that the sexual assaults and victim intimidation charges are ‘2 or more acts or transactions connected together or constituting parts of a common scheme or plan' is mistaken."