State v. Jae M. Robinson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 21, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP2055-CR Cir. Ct. No. 2015CF360

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAE M. ROBINSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Sauk
County: MICHAEL P. SCRENOCK, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2055-CR

¶1 PER CURIAM. Jae Robinson appeals a judgment of conviction for
first-degree intentional homicide and for substantial battery as party to a crime.
He also appeals the circuit court’s order denying his motion for post-conviction
relief. Robinson argues that (1) the circuit court erred by admitting other-acts
evidence, (2) his trial counsel was ineffective, and (3) he should receive a new trial
in the interest of justice. We affirm.

Background

¶2 The charges against Robinson arose from an incident occurring
around bar time in Baraboo in which Robinson and two friends, Christopher Nash
and Matthew Harvey, fought two other men, Anthony Inman and A.P. The fight
occurred near a bar known as “Bumps.”

¶3 Robinson’s case was tried to a jury. By the close of trial, many of
the facts were undisputed. Prior to the fight, Inman and A.P. were outside Bumps
while Robinson and his friends were about a block up the street. Inman and A.P.
proceeded toward Robinson’s location, and the fight began almost immediately.
During the fight, Robinson obtained a knife that Inman had been carrying.
Robinson inflicted multiple stab wounds on Inman, and Inman died at the scene.
A.P. suffered serious injuries.

¶4 Who started the fight and why remained in dispute. Robinson
testified and maintained that he wielded the knife against Inman in self-defense
after Inman ran at him with the knife.

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Discussion

A. Circuit Court’s Admission Of Other-Acts Evidence

¶5 We turn first to Robinson’s argument that the circuit court erred by
admitting other-acts evidence. “[T]he decision to admit other-acts evidence is
reviewed for an erroneous exercise of discretion.” State v. Lock, 2012 WI App
99, ¶43, 344 Wis. 2d 166, 823 N.W.2d 378. “‘A [trial] court properly exercises its
discretion when it examines the relevant facts, applies a proper standard of law,
and uses a demonstrably rational process to reach a conclusion that a reasonable
judge could reach.’” Id. (alteration in original) (quoted source omitted). “We
generally look for reasons to sustain the trial court’s discretionary decisions.” Id.

¶6 In addressing the circuit court’s decision to admit other-acts
evidence, we follow the three-prong test from State v. Sullivan, 216 Wis. 2d 768,
576 N.W.2d 30 (1998). First, we ask whether the evidence is “offered for an
acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Sullivan, 216 Wis. 2d at 772. Second, we ask whether the
evidence is relevant. Id. Finally, we consider whether “the probative value of the
other acts evidence [is] substantially outweighed by the danger of unfair prejudice,
confusion of the issues or misleading the jury, or by considerations of undue
delay, waste of time or needless presentation of cumulative evidence[.] See Wis.
Stat. § (Rule) 904.03.” Id. at 772-73.

¶7 The other-acts evidence that Robinson argues that the circuit court
erroneously admitted consisted of: (1) evidence that Robinson verbally harassed a
man at a Kwik Trip during the hours leading up to the fight, (2) evidence that
Robinson punched a man in the jaw during the hours leading up to the fight; and

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No. 2018AP2055-CR

(3) statements by a witness that Robinson was “on a rampage” on the night of the
fight.

¶8 Applying the Sullivan test, we agree with the State that the circuit
court reasonably concluded that this evidence satisfies the first two prongs of the
test because it was offered to prove, and relevant to, Robinson’s motive and intent.
The evidence was confined to events on the night of the fight resulting in Inman’s
death, and it tended to support the State’s theory that Robinson was looking to get
into fights that night and started the fight with Inman and A.P. The evidence
tended to show that Robinson acted with the requisite intent when he killed Inman,
and it also tended to disprove Robinson’s claim that he acted in self-defense.

¶9 Robinson argues that there was “no connection” between the other-
acts evidence and the fight, but Robinson bases this argument on an incomplete
characterization of the State’s theory. Robinson points out that the State claimed
at trial that he and his friends were waiting near Bumps to ambush two men named
Templin and Schleichert, and that Robinson and his friends mistook Inman and
A.P. for Templin and Schleichert. However, as noted above, the State also
asserted more generally that Robinson was looking to get into fights that night.
The other-acts evidence supported the State’s general assertion and, for that
matter, it also supported the State’s more specific ambush theory.

¶10 As to the third prong of the Sullivan test, we conclude that the
circuit court reasonably determined that Robinson failed to demonstrate that the
probative value of the other-acts evidence substantially outweighed the danger of
unfair prejudice. See State v. Hurley, 2015 WI 35, ¶58, 361 Wis. 2d 529, 861
N.W.2d 174. The risk of unfair prejudice was low because the evidence was not
likely to play on the jury’s sympathies when compared to other relevant,

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No. 2018AP2055-CR

admissible evidence that the jury would hear about the details of the homicide.
That evidence included testimony that Robinson inflicted twenty-six knife wounds
on Inman, including stab wounds that injured Inman’s lungs, heart, and liver; that
Robinson suffered no knife wounds other than minor cuts on his fingers; that,
shortly after he killed Inman, Robinson laughed as he stated that he had “stabbed
the shit out of him”; and that Robinson later referred to Inman and A.P. as “trailer
trash” during a conversation with Robinson’s sister in jail.

B. Ineffective Assistance Of Counsel

¶11 We turn to Robison’s argument that his trial counsel was ineffective.
To show ineffective assistance of counsel, the defendant must show both that
counsel’s performance was deficient and that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
deficient performance, “the defendant must show that counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688. To establish
prejudice, “[t]he defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “Whether counsel’s performance satisfies the
constitutional standard for ineffective assistance of counsel is a question of law,
which [appellate courts] review de novo.” State v. Thiel, 2003 WI 111, ¶21, 264
Wis. 2d 571, 665 N.W.2d 305.

¶12 Robinson argues that trial counsel was ineffective by failing to
(1) object to additional other-acts evidence, (2) develop a theory that A.P. had a
motive to fight Robinson, and (3) object to one of the prosecutor’s assertions
during closing arguments. Robinson does not show ineffective assistance on any
of these grounds.

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No. 2018AP2055-CR

1. Ineffective Assistance—Failure To Object To
Other-Acts Evidence

¶13 Robinson argues that counsel was ineffective by failing to object to
additional other-acts evidence, namely, evidence that Robinson harassed two
women at Bumps earlier on the night of the fight while Robinson and Nash were
inside Bumps. We reject this argument because such an objection would not have
had merit. See State v. Swinson, 2003 WI App 45, ¶59, 261 Wis. 2d 633, 660
N.W.2d 12 (“Trial counsel’s failure to bring a meritless motion does not constitute
deficient performance.”).

¶14 Our analysis here is similar to our analysis of the other-acts evidence
we have already discussed. Robinson’s harassing conduct toward the two women
was probative of his plan, motive, and intent. It showed his general level of
belligerence that night. Additionally, along with other contextual evidence the
jury heard, it explained why Robinson and his friends might have waited outside
Bumps to ambush Templin and Schleichert. The jury heard that, on the night of
the fight, around the same time that Robinson was harassing the two women at
Bumps, Templin and Schleichert were also at Bumps and made their displeasure
with Robinson clear. Schleichert, who was dating one of the women, nearly had a
confrontation with Robinson, and Templin repeatedly asked Robinson to leave.

¶15 In short, without the evidence of Robinson’s conduct toward the two
women at Bumps, the jury would have lacked a complete picture of why Robinson
might have returned to Bumps later that night intending to fight Templin and
Schleichert. Thus, the evidence was highly probative. And, for the reasons
already discussed, this evidence was unlikely to be unfairly prejudicial when
considered in the context of other relevant, admissible damaging evidence the jury
would hear.

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No. 2018AP2055-CR

2. Ineffective Assistance—Failure To Develop Theory That
A.P. Had Motive

¶16 Robinson argues that trial counsel was ineffective by failing to
develop the theory that A.P. was motivated to instigate a fight with Robinson out
of jealousy over one of the women Robinson harassed at Bumps. We reject this
argument because Robinson fails to show that it was unreasonable for counsel not
to pursue this theory.

¶17 As far as Robinson’s briefing shows, the jealousy theory had scant
evidentiary support. It is true there was evidence that Robinson and A.P. were
both interested in the woman. However, Robinson does not point to evidence that
A.P. had any interaction with Robinson during the fight, or that A.P. was even
aware of Robinson’s conduct toward the woman. Thus, we agree with the circuit
court that it was reasonable for trial counsel not to pursue the jealousy theory and
to instead pursue a theory that did not depend on ascribing any particular motive to
A.P. Counsel chose to argue instead that the fight was fueled by alcohol and
began with spontaneous “trash talking” when the two sets of men encountered
each other on the street outside Bumps. Robinson does not dispute that there was
evidence to support that argument.

3. Ineffective Assistance—Failure To Object To Prosecutor’s
Assertion During Closing Arguments

¶18 Robinson argues that trial counsel was ineffective by failing to
object to the prosecutor’s assertion during closing arguments that, immediately
prior to the fight, Robinson and Nash parked their vehicle so they could see who
was exiting Bumps. Robinson argues this assertion misrepresented the evidence
as to the vehicle’s actual position, and unfairly fed into the State’s ambush theory.

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No. 2018AP2055-CR

¶19 Regardless of the accuracy of the prosecutor’s assertion, we
conclude that Robinson fails to show prejudice. The car’s positioning was of
comparatively little significance in the State’s ambush theory. No matter the car’s
position, it was undisputed that, immediately prior to the fight, Robinson was not
in the car but on foot in an area close enough to Bumps to see who was in the
general area outside Bumps. Further, the jury heard other damaging evidence that
supported the State’s ambush theory. This included evidence that Robinson and
Nash had contacted Harvey in advance for “back-up”; that Robinson, Nash, and
Harvey brought a BB gun, a tire iron, and a hammer that were used during the
fight; and that, during the fight, Nash exclaimed, “these aren’t the right guys,” or
that these are “the wrong guys.”

C. New Trial In The Interest Of Justice

¶20 Finally, Robinson contends that we should exercise our discretionary
authority to grant a new trial in the interest of justice because the real controversy
was not fully tried. We exercise this authority only in “‘exceptional cases.’” See
State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639, 700 N.W.2d 98 (quoted
source omitted). Robinson does not persuade us that this is an exceptional case.
His arguments for reversal in the interest of justice add nothing new to the
arguments we have already rejected.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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