                                                          2016 WI 44

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2013AP2686-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Luis C. Salinas,
                                 Defendant-Appellant.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 362 Wis. 2d 538, 865 N.W.2d 88
                                  (Ct. App. 2015 – Unpublished)

OPINION FILED:         May 26, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 20, 2016

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Brown
   JUDGE:              Marc A. Hammer

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON and BRADLEY, A. W., JJ. dissent
                       (Opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Katherine D. Lloyd, assistant attorney general, which
whom on the briefs was Brad D. Schimel, attorney general.




       For the defendant-appellant, there were briefs by Steven D.
Grunder, assistant state public defender, and oral arguments by
Steve D. Grunder.
                                                                          2016 WI 44
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.        2013AP2686-CR
(L.C. No.     2010CF542)

STATE OF WISCONSIN                              :            IN SUPREME COURT

State of Wisconsin,

               Plaintiff-Respondent-Petitioner,                        FILED
       v.                                                         MAY 26, 2016
Luis C. Salinas,                                                     Diane M. Fremgen
                                                                  Clerk of Supreme Court
               Defendant-Appellant.




       REVIEW of a decision of the Court of Appeals.                 Reversed.



       ¶1      REBECCA G. BRADLEY, J.       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 already-

pending      sexual    assault   charges   where      the     daughter       was    the

victim.       The circuit court1 held that joinder was proper under




       1
       The Honorable Mark A. Warpinski made the initial joinder
decision; however, he recused himself on November 9, 2011.
Ultimately, the Honorable Marc A. Hammer presided.
                                                              No.    2013AP2686-CR



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).


                                        2
                                                                       No.   2013AP2686-CR



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).


                                             3
                                                               No.     2013AP2686-CR



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

                                         4
                                                              No.     2013AP2686-CR



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.
                                         5
                                                             No.    2013AP2686-CR



      ¶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
                                        6
                                                                     No.    2013AP2686-CR



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


                                           7
                                                                  No.     2013AP2686-CR


    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.




                                          8
                                                                 No.    2013AP2686-CR



    ¶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."


                                       9
                                                                   No.   2013AP2686-CR



           "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
                                         10
                                              No.   2013AP2686-CR



    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."


                            11
                                                   No.   2013AP2686-CR



       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


                                 12
                                                              No.    2013AP2686-CR



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.


                                          13
                                                                  No.     2013AP2686-CR



      ¶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


                                           14
                                                 No.   2013AP2686-CR



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.


                                   15
                                                           No.    2013AP2686-CR


       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


                                      16
                                                                No.     2013AP2686-CR



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

                                         17
                                                                            No.     2013AP2686-CR


      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




                                                 18
                                                                   No.    2013AP2686-CR



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."


                                            19
                                                              No.     2013AP2686-CR



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
                                         20
                                                            No.   2013AP2686-CR



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.


                                     21
                                                                  No.     2013AP2686-CR



    ¶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


                                           22
                                                                       No.     2013AP2686-CR



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.


                                              23
                                                                       No.     2013AP2686-CR



       ¶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.
                                               24
                                                                        No.   2013AP2686-CR



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.
                                               25
                                                                          No.     2013AP2686-CR



                                  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


                                                 26
                                                                         No.       2013AP2686-CR



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
                                                  27
                                                               No.    2013AP2686-CR



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."


                                      28
                                                        No.        2013AP2686-CR



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
                                    29
                                                                        No.    2013AP2686-CR



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,
                                            30
                                                                             No.     2013AP2686-CR



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.

                                     IV.    CONCLUSION

      ¶50      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.

      By    the     Court.—The       decision       of    the        court    of     appeals    is

reversed.




                                             31
                                                         No.   2013AP2686-CR.ssa


      ¶51    SHIRLEY S. ABRAHAMSON, J.        (dissenting).         At issue in

the instant case is whether joinder of several criminal charges

against the defendant, Luis Salinas——two charges of intimidation

of a victim and one charge each of repeated sexual assault of a

child,     second-degree   sexual   assault      with   use    of   force,   and

second-degree sexual assault of a child——was proper under the

criminal joinder statute, Wis. Stat. § 971.12(1) (2009-10).1

      ¶52    Construing    Wis.   Stat.   § 971.12(1)         "broadly,"2    the

majority opinion concludes that the sexual assault charges and

the   victim   intimidation   charges     were    properly     joined   because

they "were '2 or more acts or transactions connected together or

constituting parts of a common scheme or plan.'"3

      1
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
      2
          Majority op., ¶¶30, 31, 36.
      3
       The following sentences of the majority opinion                       are
difficult to understand and are not necessarily consistent:

      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."

Majority op., ¶2 (citing Wis. Stat. § 971.12(1)).

      [I]nitial joinder is deemed proper: . . . (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 more acts
      or transactions that constitute "a common scheme or
      plan."

Majority op., ¶31.

                                                                    (continued)
                                     1
                                                       No.   2013AP2686-CR.ssa


    ¶53    I disagree with the majority opinion.             I would affirm

the decision of the court of appeals that joinder was improper.

I write separately in dissent for three reasons.

    ¶54    First,    the   majority       opinion's   discussion     of   the

criminal joinder statute, Wis. Stat. § 971.12(1),4 is confusing

and appears internally inconsistent.

    ¶55    The joinder statute sets forth four different bases

for joinder: (1) the charged crimes are of the same or similar

character; or (2) the charged crimes are based on the same act

or transaction; or (3) the charged crimes are based on two or


    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."

Majority op., ¶36.

    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."

Majority op., ¶50.
    4
        Wisconsin Stat. § 971.12(1) states (in relevant part):

    971.12 Joinder of crimes. (1) 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. . . .


                                      2
                                               No.   2013AP2686-CR.ssa


more acts or transactions connected together; or (4) the charged

crimes constitute parts of a common scheme or plan.       The first

two bases are not relevant in the instant case and are not

discussed by the majority opinion.    Only the third and fourth

bases are discussed by the majority opinion.

     ¶56   After noting that "'connected together' and 'common

scheme or plan' are separate and distinct prongs of the joinder

statute," the majority opinion conflates the two prongs as well

as analyzing them separately.    See majority op., ¶¶32, 33, 37,

42, 45.

     ¶57   Second, I question whether the "broad" construction of

the joinder statute adopted in Francis v. State, 86 Wis. 2d 554,

558, 273 N.W.2d 310 (1979), and applied by the majority opinion

is warranted in the instant case.   Both the relevant text of the

joinder statute, Wis. Stat. § 971.12(1), and the overwhelming

evidence that joinder of multiple charges prejudices criminal

defendants militate against a "broad" interpretation of joinder

in criminal cases.5


     5
       See, e.g., Andrew D. Leipold & Hossein A. Abbasi, The
Impact of Joinder and Severance on Federal Criminal Cases: An
Empirical   Study,  59   Vand.  L.   Rev.   349,  383-84   (2006)
(concluding, based on empirical data, that a "defendant's
chances of conviction increase by more than 10% if he stands
trial on more than one count."); James Farrin, Note, Rethinking
Criminal Joinder: An Analysis of the Empirical Research and Its
Implications for Justice, 52 Law & Contemp. Probs. 325, 327-31
(1989) (reviewing a variety of empirical studies showing joinder
of multiple charges may result in jury confusion, incorrect
weighing of the evidence, and improper jury inferences of
criminality; studies unanimously found an increase in the
likelihood of conviction of defendants facing joined charges).


                                3
                                                                  No.     2013AP2686-CR.ssa


       ¶58    Third,        regardless    of      how    Wis.     Stat.     § 971.12      is

interpreted         ("broadly"       or   otherwise),       the     majority         opinion

overstates the factual and legal connections between the sexual

assault charges and the victim intimidation charges.                              I agree

with the court of appeals' decision that the sexual assault

charges      and     the    victim    intimidation         charges      are,    at    most,

tangentially         related.        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.

       ¶59    For     the     reasons     set     forth,    I     dissent      and    write

separately.

                                              I

       ¶60    I begin with the criminal joinder statute, Wis. Stat.

§ 971.12(1).          Wisconsin Stat. § 971.12(1) states (in relevant

part and with emphasis added):

       971.12 Joinder of crimes. (1) 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. . . .
       ¶61    As I stated previously, the joinder statute sets forth

four different bases for joinder.                   The parties do not dispute

that the sexual assaults and victim intimidation charges are not

"of the same or similar character" and are not "based on the

same    act     or    transaction . . . ."               Wis.     Stat.     § 971.12(1).
Rather,       the    parties'     arguments        and     the    majority      opinion's

                                              4
                                                                   No.    2013AP2686-CR.ssa


discussion     focus    on   whether    the         sexual    assaults       and   victim

intimidation      constitute     "2     or          more    acts     or     transactions

connected together or constituting parts of a common scheme or

plan."      Wis. Stat. § 971.12(1).

      ¶62    The majority opinion's treatment of this language——"2

or more acts or transactions connected together or constituting

parts of a common scheme or plan"——is confusing and appears to

be internally inconsistent.

      ¶63    The majority opinion restates this language in several

different ways.        See note 3, supra.

      ¶64    Although the majority opinion states that "'connected

together' and 'common scheme or plan' are separate and distinct

prongs in the joinder statute," the majority opinion begins its

analysis by conflating the two, analyzing whether "the separate

crimes were connected together by a common scheme or plan."                            See

majority op., ¶¶33, 37.             Later, however, the majority opinion

analyzes each of these prongs of the joinder statute separately.

See majority op., ¶¶42-46.
      ¶65    In sum, these differing approaches at different parts

of the opinion are confusing and potentially inconsistent.

      ¶66    In my view, Wis. Stat. § 971.12(1) sets forth four

bases for joinder including when two or more acts or transactions

are   connected    together    or    two       or    more    acts    or     transactions

constitute parts of a common scheme or plan.                   These two bases for

joinder do not have the same meaning, but the same fact situation

may satisfy both bases.
                                        II

                                           5
                                                                 No.   2013AP2686-CR.ssa


     ¶67       Next, I question whether the "broad interpretation" of

the joinder statute stated in Francis v. State, 86 Wis. 2d 554,

558, 273 N.W.2d 310 (1979), and repeated in the majority opinion

and other cases without careful analysis is warranted in the

instant case.6

     ¶68       Two    factors       militate       against   "broadly"     interpreting

the joinder statute in the instant case: (1) The text of the

joinder    statute;       and       (2)    empirical    evidence    that    joinder   of

multiple charges prejudices criminal defendants.

     ¶69       The    text     of    Wis.     Stat.    § 971.12(1),       the    criminal

joinder statute, does not state, as the majority opinion does,

that the statute should be given a broad interpretation in favor

of joinder.          The legislature has not instructed, as it sometimes

does,    how    the     text    should       be    construed:    broadly,       narrowly,

liberally, or strictly.7

     ¶70       Rather, the directive of broad interpretation of the

joinder statute stems from a 1979 case, Francis v. State, 86

Wis. 2d 554, 558-59, 273 N.W.2d 310 (1979).                        In Francis, this
court    recognized       that       the    joinder    statute     does    not   require

joinder of two or more charges, and joinder of two or more

     6
       See majority op., ¶¶30-31, 36; see also State v. Prescott,
2012 WI App 136, ¶15, 345 Wis. 2d 313, 825 N.W.2d 515; State v.
Bellows, 218 Wis. 2d 614, 622, 582 N.W.2d 53 (Ct. App. 1998);
State v. Hoffman, 106 Wis. 2d 185, 208, 316 N.W.2d 143 (Ct. App.
1982).
     7
       See, e.g., Wis. DWD v. Wis. DOJ, 2015 WI 114, ¶¶30-34, 365
Wis. 2d 694, 875 N.W.2d 545 (refusing to liberally construe Wis.
Stat. §§ 230.80-.89 despite clear legislative directive in Wis.
Stat. § 230.02 to "construe[ ] [the statutes] liberally in aid
of the purposes declared . . . .").


                                               6
                                                               No.    2013AP2686-CR.ssa


charges does not require a joint trial on the charges.8                              The

Francis court observed that "[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."9              The majority opinion agrees that a

broad       interpretation     of     the       joinder    statute         fits   these

convenience and efficiency goals.10

       ¶71     In support of its "broad interpretation" of Wis. Stat.

§ 971.12, the Francis court relied on a 1961 article by Frank J.

Remington and Allan J. Joseph, titled Charging, Convicting, and

Sentencing      the    Multiple     Criminal      Offender,    1961     Wis. L.    Rev.

528,       538-39.     Remington     and    Joseph    stated     that      joinder    of

multiple charges generally promotes convenience and efficiency

and can be beneficial to defendants.                 The traditional policy in

favor of joinder is one of administrative convenience.11


       8
       Francis        v.   State,   86     Wis. 2d 554,    558,      273    N.W.2d 310
(1979).
       9
       Francis, 86 Wis. 2d at 558-59 (citing Frank J. Remington &
Allan J. Joseph, Charging, Convicting, and Sentencing the
Multiple Criminal Offender, 1961 Wis. L. Rev. 528, 538-39).
       10
       See majority op., ¶36 ("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.") (citing Francis, 86 Wis. 2d at
560; State v. Leach, 124 Wis. 2d 648, 671, 370 N.W.2d 240
(1985)).
       11
       See Note, Criminal Law——Joinder and Severence Under the
New Wisconsin Criminal Procedure Code, 1971 Wis. L. Rev. 604,
606.


                                            7
                                                 No.   2013AP2686-CR.ssa


     ¶72   Although    Francis   was   correct    that      a    broad

interpretation of Wis. Stat. § 971.12(1) is consistent with the

purposes of joinder discussed therein, namely trial convenience,

judicial efficiency, and convenience to a defendant,12 Remington

and Joseph cautioned that "joinder of several offenses in a

single proceeding may, under some circumstances, be prejudicial

to the defendant."13   The defendant in the instant case in effect

objected to the joinder of charges because joinder would enable

the prosecution to introduce evidence irrelevant and unrelated

to the other criminal charges.
     12
        Wisconsin Stat. § 971.12(1) is modeled after Federal Rule
of Criminal Procedure 8.      In interpreting and applying Wis.
Stat. § 971.12(1), federal authorities assist in my analysis.
See State v. Gudenschwager, 191 Wis. 2d 431, 439, 529 N.W.2d 225
(1995).

     In analyzing Federal Rule of Criminal Procedure 8, Wright's
Federal   Practice   and   Procedure   states   that   a   broad
interpretation of the joinder statute will allow joinder
regardless of whether it is just or fair.       1A Charles Alan
Wright et al., Federal Practice And Procedure § 143 (3d ed.
1999); see also Thomas C. Wales, Note, Harmless Error and
Misjoinder Under the Federal Rules of Criminal Procedure: A
Narrowing Division of Opinion, 6 Hofstra L. Rev. 533, 536-37
n.14 (1978):

     For the defendant who goes to trial properly joined
     under [federal] rule 8, the chances of receiving a
     separate trial at a later time are unlikely at the
     trial level and even less likely on appeal . . . . It
     is for this reason that the courts' interpretation of
     [federal] rule 8 and what they first determine to be
     the   bounds   of   proper  joinder  are   of  central
     importance.    A broad interpretation of rule 8 means
     broad joinder.
     13
       Frank   J.  Remington  &  Allen   J.  Joseph,  Charging,
Convicting, and Sentencing the Multiple Criminal Offender, 1961
Wis. L. Rev. 528, 538-39.


                                 8
                                                             No.   2013AP2686-CR.ssa


      ¶73      The emphasis in Francis was on the value of joinder to

the     administration     of   justice.        The    language          in   Francis

regarding a "broad interpretation" of the joinder statute makes

sense when limited to the administrative convenience purposes

stressed therein.        Efficiency is an important value.                Outside of

joinder for pretrial purposes, however, we should not broadly

interpret the joinder statute because the efficiency gained by

joining multiple charges for trial may result in significant

prejudice to the defendant.            Interpreting the joinder statute

according       to   its   text,      without    the        patina       of   "broad

interpretation," avoids undue prejudice——another important value

in criminal law.

      ¶74      We should not broadly interpret and apply the text of

the four bases for joinder because, as recent empirical studies

of joinder have demonstrated, joinder of multiple charges has a

prejudicial effect on criminal defendants.

      ¶75      Empirical research, like other forms of evidence, can

and should inform decision making (as it does elsewhere in the
criminal justice system) in interpreting and applying the four

bases    for    joinder.    Indeed,    Wisconsin      has    been    a    leader   in




                                        9
                                                             No.    2013AP2686-CR.ssa


evidence-based decision making.14             Examples of empirical studies

describing    the    prejudice    to    defendants     who     face     joinder       of

multiple charges are as follows:

          • Edie Greene & Brian H. Bornstein, Nudging the Justice

            System    Toward   Better     Decisions,     103       J.   Crim.    L.    &

            Criminology    1155,       1163   (2013)   (reviewing        Dennis       J.

            Devine, Jury Decision Making: The State of the Science

            (NYU Press 2012)):

                    [J]oinder of criminal charges biases
                    jurors' judgments against a defendant
                    because   jurors   attribute multiple
                    instances    of   wrongdoing  to    a
                    defendant's criminal disposition and
                    confuse evidence relevant to multiple
                    charges.
          • Andrew D. Leipold & Hossein A. Abbasi, The Impact of

            Joinder and Severance on Federal Criminal Cases:                          An

            Empirical    Study,    59    Vand.   L.    Rev.    349,     383     (2006)

            (emphasis added):

                    Joinder of counts has a significant
                    impact on the outcome of trials.  A

     14
       See, e.g., Judge Elliot M. Levine, Evidence-Based
Decision Making: EBDM in Wisconsin: A Primer, Wis. Counties,
Aug. 2015, at 22; Planning & Policy Advisory Committee,
Effective Justice Strategies Subcommittee, Phase II: Progress
and Accomplishments 7 (Nov. 13, 2013) ("In the past 5 years,
evidence-based practices in Wisconsin have gained strides in
their   use  and   understanding  .   .  .   ."),  available   at
https://www.wicourts.gov/courts/programs/docs/finalreport.pdf;
Mary Beth Kirven, National Center for State Courts, The Use of
Evidence-Based Practices in Wisconsin Adult Drug Courts: An
Overview 1 (2011-12) (identifying "court-related evidence-based
strategies that enhance public safety, reduce recidivism, and
address criminal and addictive behaviors . . . .") (quotation
omitted).


                                        10
                                                        No.    2013AP2686-CR.ssa

       defendant who stands trial on a single
       count is roughly 9 percentage points
       less likely to be convicted than
       defendants who face multiple counts.
• Andrew     D.        Leipold,      How        the     Pretrial         Process

  Contributes to Wrongful Convictions, 42 Am. Crim. L.

  Rev. 1123, 1142-43 (2005) (footnotes omitted):

       Joining charges or defendants in a
       single trial is a great resource saver,
       and it helps avoid the "scandal of
       inconsistent verdicts."      The risks of
       joinder for the defense, however, are
       many. A defendant who is guilty of one
       charge but innocent of another may find
       it   difficult    to    present   separate
       defenses     to      separate     charges,
       particularly if he wants to take the
       stand on the second count but not the
       first.    More significantly, a jury
       considering    an    innocent    defendant
       charged with multiple counts may infer
       a   criminal    disposition,     or   "may
       cumulate the evidence of the various
       crimes charged and find guilty, when,
       if considered separately it would not
       so find."
• James Farrin,         Note,     Rethinking Criminal Joinder: An

  Analysis        of     the      Empirical           Research      and     Its

  Implications         for   Justice,      52   Law    &      Contemp.    Probs.
  325, 330-31 (1989) (footnotes omitted):

       [T]he studies are unanimous in finding
       that defendants do face a greater
       likelihood of conviction if offenses
       are    tried    jointly    rather    than
       separately. . . . A            cumulative
       compilation of all the joinder research
       findings shows that the effect of
       joinder of offenses is robust; there is
       a significantly greater likelihood of
       conviction    for    defendants.    These
       findings have been constant despite

                                11
                                                                No.       2013AP2686-CR.ssa

                      varying     methodologies               by           the
                      researchers.
            • Kenneth S. Bordens & Irwin A. Horowitz, Information

              Processing in Joined and Severed Trials, 13 J. Applied

              Soc. Psych. 351, 369 (1983):

                      [J]urors in a joined trial situation
                      cannot keep the two charges separate
                      and arrive at independent verdicts.
       ¶76    These studies identify several reasons why joinder of

multiple      charges    for    trial     leads    to   a    significantly          higher

likelihood of conviction:           Juries may be confused, may struggle

to remember evidence going to numerous charges, may selectively

remember       only    the     evidence     that    confirms          their       ultimate

conclusion, or may infer "that the defendant has a criminal

personality type"15 because of the multiple charges.16

       ¶77    Wisconsin      case   law    echoes       these      concerns.          "The

potential problem as a result of a trial on joint charges is

that    a    defendant    may   suffer     prejudice        since     a    jury    may   be

incapable of separating the evidence relevant to each offense or

because the jury may perceive a defendant accused of several

crimes is predisposed to committing criminal acts."17


       15
             Farrin, supra note 5, at 330.
       16
       Although these writings focus largely on the risks of
jury bias and confusion, at least one study concluded that the
prejudicial effect of joining multiple charges is actually more
substantial in bench trials than jury trials.    See Leipold &
Abbasi, supra note 5, at 383.
       17
       State v. Leach, 124 Wis. 2d 648, 672, 370 N.W.2d 240
(1985) (citing State v. Bettinger, 100 Wis. 2d 691, 696-97, 303
N.W.2d 585 (1981)).


                                           12
                                                                    No.    2013AP2686-CR.ssa


       ¶78    As a result, I conclude that a "broad" interpretation

of the joinder statute is not justified in the instant case.

Rather,      the    joinder     statute      should     be    interpreted        using    the

interpretative              tools         ordinarily         used         in      statutory

interpretation.

                                             III

       ¶79    I     turn      now     to    the     application       of        Wis.    Stat.

§ 971.12(1) in the instant case.                    The majority opinion concludes

that    the       circuit     court      properly    joined    the    multiple         sexual

assault charges and the victim intimidation charges because they

are    "2    or    more     acts    or     transactions      connected         together    or

constituting parts of a common scheme or plan . . . ."18                                  Wis.

Stat. § 971.12(1).             The instant case involves a third set of

charges, not at issue here, that involve domestic abuse.

       ¶80    In     reaching       its     conclusion,       the    majority          opinion

relies on the following:

       • V.G. was the alleged victim of both victim intimidation

            and sexual assault.            See majority op., ¶38.
       • The last sexual assault allegedly took place on the same

            day    as   the    domestic      violence     incident        (to    which     the

            victim intimidation charge is related).                            See majority

            op., ¶38.

       • "Salinas's           domestic      violence     toward      V.G.       immediately

            preceded the [last] sexual assault."                          Namely, Salinas




       18
            See majority op., ¶2.


                                              13
                                                                No.    2013AP2686-CR.ssa


         allegedly      slapped    V.G.     on   the     date    of        the    domestic

         violence incident.         See majority op., ¶38.

    • The       victim       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."                           See majority

         op., ¶38.

    • The majority opinion asserts that "[t]he 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."         Majority op., ¶46.

    ¶81       The majority opinion's recounting of the "connections"

between the sexual assault charges and the victim intimidation

charges is seriously flawed.             I agree with the decision of the

court of appeals.            It carefully applied Wis. Stat. § 971.12(1)
and concluded that joinder of the sexual assault charges and the

victim intimidation charges was improper.

    ¶82       First,   although    the    sexual    assault       charges         and   the

victim intimidation charges do have one victim in common, V.G.,

the majority opinion ignores the fact that M.S. was a victim

only of the victim intimidation.

    ¶83       Second, the majority opinion overstates the facts it

claims    connect      the    sexual     assault    charges          and    the    victim
intimidation charges by relying on a third set of charges——the

                                          14
                                                                No.   2013AP2686-CR.ssa


domestic violence charges——that were not joined and are not at

issue in the instant case.

     ¶84     Although the majority opinion correctly asserts that

the last sexual assault allegedly occurred the same day as the

domestic violence incident (which, in turn, led to the victim

intimidation     charges),        V.G.       alleged    that     Salinas        sexually

assaulted her dozens of times over a period of two and one-half

years.      Even if the last sexual assault incident were connected

to   the     victim     intimidation         charges    (through        the   domestic

violence     incident    that    is    not    at   issue   in    this    case),       that

single incident does not connect 2.5 years of sexual assaults to

the intimidating phone calls.            The intimidating phone calls were

made nearly six months after the last of the sexual assaults

allegedly occurred and one month before the sexual assaults were

reported.

     ¶85     Likewise, the majority opinion overstates the scope of

the alleged victim intimidation.                Although the majority opinion

correctly states that Salinas made hundreds of phone calls from
jail to M.S. and V.G. while awaiting sentencing on the domestic

abuse charges,19 the majority opinion conveniently omits the fact

that only a handful of such calls were actually completed.

     ¶86     Third,     the   sexual     assault       charges    and     the    victim

intimidation     charges        were   not     based     on     the   same      act    or

transaction or on two or more acts or transactions connected




     19
           Majority op., ¶5.


                                         15
                                                                  No.   2013AP2686-CR.ssa


together.       No connection existed between the jail phone calls

and the sexual assault charges.

       ¶87    With     no    factual      support    whatsoever,         the     majority

opinion asserts that "Salinas arguably engaged in one crime to

prevent disclosure and punishment for another."20                         As the court

of appeals put it, "[t]here was no connection between the jail

phone calls and the sexual assault allegations.                           The coercive

phone calls were related                only to sentencing in the domestic

abuse case.       Indeed, the sexual assault allegations and charges

did not arise until after the domestic abuse case sentencing

hearing had concluded."21

       ¶88    Simply        put,    the    only     support      for    the      majority

opinion's      assertion      that      Salinas   made     the   intimidating       phone

calls in an effort to prevent disclosure of and punishment for

the    sexual     assaults         is     the    majority's       speculation      about

Salinas's motives.

       ¶89    Fourth,       the    majority     opinion    makes    the    unsupported

assertion      that     "[t]he     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" M.S. and V.G. "so he could

break the law without risk of getting caught."22


       20
            See majority op., ¶38.
       21
       See State v. Salinas, No. 2013AP2686, unpublished slip
op., ¶24 (Wis. Ct. App. Apr. 21, 2015) (emphasis added).
       22
            See majority op., ¶46.


                                            16
                                                              No.   2013AP2686-CR.ssa


      ¶90    No evidence was presented that Salinas had a common

scheme or plan to intimidate and control M.S. and V.G.                       The only

"evidence" of such a scheme is the offenses themselves and the

majority's unsupported inferences and conjecture.                     As the court

of appeals put it, "[i]t appears the State may believe it was

appropriate to join the cases because the victim intimidation

and sexual assault allegations generally demonstrated Salinas's

character trait of being manipulative.                     If so, that does not

satisfy the joinder requirements of [Wis. Stat.] § 971.12(1)."23

      ¶91    I agree with the court of appeals.                Neither the State

nor this court can justify joinder under Wis. Stat. § 971.12(1)

by speculation and conjecture.

      ¶92    Moreover, I agree with the defendant and the court of

appeals that the circuit court's decision that it was correct as

a matter of law under Wis. Stat. § 971.12(1) to permit joinder

of   the    sexual     assault     charges     and   the    victim        intimidation

charges     against     Salinas     was    prejudicial       to     the     defendant.

Improper     joinder    is   presumptively      prejudicial,        and     the   State
must rebut the presumption of prejudice by proving the error was

harmless.24

      ¶93    The State argues that any error in joining the sexual

assault     charges    and   the    victim     intimidation       charges     against

Salinas was harmless because (1) the evidence of Salinas's guilt


      23
       State v. Salinas, No. 2013AP2686, unpublished slip op.,
¶27 (Wis. Ct. App. Apr. 21, 2015).
      24
           See Leach, 124 Wis. 2d at 672-73.


                                          17
                                                                 No.    2013AP2686-CR.ssa


on the sexual assault charges was overwhelming; and (2) the

evidence of the domestic abuse incident would have been admitted

in a separate trial as contextual "other acts" evidence.25

      ¶94    I disagree with the State's arguments.

      ¶95    First, the evidence of Salinas's guilt of the sexual

assaults was not overwhelming.                As the court of appeals put it,

this was "a classic 'he-said, she-said' case," in which there

was   no    physical       evidence    or    third-party       witness      reinforcing

V.G.'s allegations.26

      ¶96    Second,       in    assessing    "other     acts"    evidence,      we   ask

whether (1) the evidence is offered for a permissible purpose

under      Wis.    Stat.    § (Rule)        904.04(2);    (2)     the     evidence    is

relevant under Wis. Stat. § 904.01; and (3) the probative value

of the evidence outweighs the potential prejudice or risk of

confusion.27

      ¶97    Even    assuming       for     the   sake    of     argument      that   the

evidence      of    the    victim     intimidation       charges        (and    domestic

violence) was relevant and offered for a permissible purpose,
the potential prejudice and risk of confusion far outweigh the


      25
       See State v. Shillcutt, 116 Wis. 2d 227, 236, 341
N.W.2d 716 (Ct. App. 1983) ("[A]n accepted basis for the
admissibility of evidence of other crimes arises when such
evidence furnishes part of the context of the crime or is
necessary to a full presentation of the case.") (internal
quotation marks and quoted source omitted).
      26
       See State v. Salinas, No. 2013AP2686, unpublished slip
op., ¶36 (Wis. Ct. App. Apr. 21, 2015).
      27
       See State            v.     Sullivan,      216    Wis. 2d 768,          783,   576
N.W.2d 30 (1998).


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                                                                No.    2013AP2686-CR.ssa


probative value.           V.G. alleged 40 to 50 sexual assaults over a

period of two and a half years.                         The fact that one of the

alleged sexual assaults occurred on the same day as the domestic

violence incident (which in turn led to the intimidating phone

calls——all of which occurred after the last sexual assault and

before       the    sexual     assaults        were     reported)     is    simply     not

sufficiently         probative      to    outweigh      the   substantial      risk     of

prejudice to Salinas.

       ¶98    In sum, I would affirm the decision of the court of

appeals.

       ¶99    In closing, I note that the court of appeals' decision

in the instant case was an unpublished per curiam decision.

When   the     court      granted     review    in    the   instant    case,    I    wrote

separately, in a comment appended to the order, noting:

       The Wisconsin Court of Appeals Internal Operating
       Procedures explains that per curiam opinions do not
       involve "new or unsettled questions of general
       importance."

               . . . .

            I write to urge the court to keep in mind
       Attorney Michael S. Heffernan's cautionary comment at
       § 23.14 in his book entitled Appellate Practice and
       Procedure in Wisconsin (6th ed. 2014):     "[There is]
       considerable discrepancy in the quality of the
       petitions [the Wisconsin Supreme Court] grants.     To
       control its calendar [in fear of being inundated] the
       court may deny arguably meritorious petitions and then
       may end up granting petitions for little apparent
       reason other than filling its calendar."
       ¶100 This       court's      criteria      for    granting     review    are    set

forth in Wis. Stat. § (Rule) 809.62(1r) and emphasize the law-
developing         role   of   this      court.       Despite   this       court's    law-

                                            19
                                                               No.   2013AP2686-CR.ssa


developing role, 26% of the court's docket this term is expected

to be reviews of per curiam decisions of the court of appeals——

the highest rate in more than 20 years.28

     ¶101 Neither this court nor the court of appeals developed

the law in the instant case.            Without developing the law, this

court is not fulfilling its role and is instead serving as an

error-correcting     court.        Unfortunately,         it    is    the   majority

opinion, not the court of appeals, that errs in the instant

case.

     ¶102 For      the   reasons    set      forth,   I    dissent       and   write

separately.

     ¶103 I   am    authorized     to     state   that     Justice       ANN   WALSH

BRADLEY joins this opinion.




     28
        See Alan Ball, Is the Court of Appeals Responsible for
the Supreme Court's Per Curiam Diet?, SCOWStats, Apr. 26, 2016,
http://www.scowstats.com/2016/04/26/is-the-court-of-appeals-
responsible-for-the-supreme-courts-per-curiam-diet/;    see    also
Alan Ball, Justice Abrahamson's Concerns Over the Docket - An
Update,        SCOWStats,               Mar.       20,        2016,
http://www.scowstats.com/2016/03/20/justice-abrahamsons-
concerns-over-the-docket-an-update/;      Alan    Ball,     Justice
Abrahamson's Concerns Over the 2015-16 Docket, SCOWStats, Oct.
15,       2015,       http://www.scowstats.com/2015/10/15/justice-
abrahamsons-concerns-over-the-2015-16-docket-2/.


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