State v. Jose H. Reynosa

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.
March 9, 2021
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. 2015AP1633 Cir. Ct. No. 2011CF3607

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSE H. REYNOSA,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MARK A. SANDERS, Judge. Affirmed.

Before Brash, P.J., Dugan and White, 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. 2015AP1633

¶1 PER CURIAM. Jose H. Reynosa appeals the order denying his
WIS. STAT. § 974.06 (2017-18) motion seeking postconviction relief.1 We
conclude that Reynosa’s claims lack merit; as such, he has not made a compelling
case that this court should exercise its power of discretionary reversal. Therefore,
we affirm.

I. BACKGROUND

¶2 This is Reynosa’s second appeal related to his 2012 convictions for
first-degree sexual assault of a child under the age of thirteen by sexual contact
and child enticement.

¶3 On direct appeal, Reynosa argued that the circuit court erroneously
admitted other-acts evidence and that trial counsel was ineffective for not
challenging the admission of expert testimony and for not requesting a unanimity
instruction. See State v. Reynosa, No. 2013AP1780-CR, unpublished slip op. ¶1
(WI App July 10, 2014). Some background information relevant to this appeal
was set forth in our decision:

Reynosa was charged with one count of first-degree
sexual assault of a child and one count of child enticement.
The complaint alleged that Reynosa had sexual contact
with the minor victim on five to ten occasions, and that the
victim recounted one specific occasion of Reynosa carrying
her into a bedroom and engaging in penis-to-buttocks
contact.

On the first day of trial, Reynosa moved to exclude
evidence of any uncharged sexual assaults by Reynosa
against the victim outside the one specific allegation
underlying the charges. The State objected, contending that

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2015AP1633

the other assaults were part of the background of the case
and established Reynosa’s intent and planning. The circuit
court determined that the other[-]acts evidence was offered
for an acceptable purpose, that it was relevant, and that its
probative value was not outweighed by the danger of unfair
prejudice.

….

The jury returned guilty verdicts as to both charges.
Reynosa moved for postconviction relief, arguing that he
was denied the effective assistance of counsel at trial.
Reynosa argued that his trial counsel was ineffective by
failing to object to the State’s expert’s testimony as
insufficiently reliable under WIS. STAT. § 907.02 (2011-12)
and as improperly vouching for the credibility of the child
victim. Reynosa argued that, had trial counsel raised those
objections, the circuit court would have been required to
exclude the expert testimony. Reynosa also argued that his
trial counsel was ineffective by failing to demand the
standard jury instruction as to unanimity. He argued that
counsel’s failure to request the unanimity instruction
denied him his constitutional right to a unanimous verdict.

The circuit court denied Reynosa’s postconviction
motion without a hearing. The court explained that the
State’s expert was qualified to provide expert testimony
under WIS. STAT. § 907.02, and that, had Reynosa’s
counsel demanded a Daubert2 hearing, the circuit court still
would have determined that the testimony was
admissible.… The court also rejected Reynosa’s jury
instruction argument, explaining that the focus of the
complaint and the jury trial was the one act of penis-to-
buttocks contact; that the jury was instructed that the term
“sexual contact” in this case meant Reynosa’s intentional
touching of the victim’s buttocks; that the jury was
instructed not to base its verdict on evidence of other
occasions of sexual contact; and that the State clarified in
closing argument that the charged offenses were based on
the single act of penis-to-buttocks contact in the bedroom.
Accordingly, the court denied Reynosa’s claims of
ineffective assistance of counsel.

2
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

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No. 2015AP1633

Reynosa, No. 2013AP1780-CR, ¶¶2-3, 5-6 (footnote numbering altered; one
footnote omitted). We affirmed, see id., and the Wisconsin Supreme Court denied
Reynosa’s petition for review.

¶4 Then, in June 2015, Reynosa, pro se, filed the underlying WIS.
STAT. § 974.06 motion. He argued that postconviction counsel was ineffective for
failing to raise the following claims, which he asserted were clearly stronger than
the ones raised in his direct appeal: (1) the evidence was insufficient to support
his convictions; (2) trial counsel was ineffective for failing to raise a duplicity
challenge to the sexual assault charge because multiple offenses were improperly
combined into a single charge; and (3) trial counsel was ineffective for failing to
object to the prosecutor’s remarks referencing anal rape during her closing
argument. The circuit court denied Reynosa’s motion without a hearing.

¶5 Additional background information is included in the discussion
section of this opinion.

II. DISCUSSION

¶6 Reynosa renews his claims based on postconviction counsel’s
ineffectiveness. Alternatively, Reynosa asserts that discretionary reversal under
WIS. STAT. § 752.35 is warranted because the real controversy has not been fully
tried.

¶7 Absent a sufficient reason, a defendant is procedurally barred from
raising claims in a WIS. STAT. § 974.06 postconviction motion that could have
been raised in a prior postconviction motion or appeal. See § 974.06(4); State v.
Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 184-86, 517 N.W.2d 157 (1994).
Whether a § 974.06 motion alleges the requisite sufficient reason for failing to

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No. 2015AP1633

bring available claims earlier is a question of law that this court independently
reviews. See State v. Romero-Georgana, 2014 WI 83, ¶30, 360 Wis. 2d 522, 849
N.W.2d 668.

¶8 “In some instances, ineffective assistance of postconviction counsel
may be a sufficient reason for failing to raise an available claim in an earlier
motion or on direct appeal.” Id., ¶36. To make such a showing, a WIS. STAT.
§ 974.06 motion must do more than assert a failure to challenge aspects of trial
counsel’s representation; the motion must allege that postconviction counsel was
deficient and that the deficient performance prejudiced the defendant. State v.
Balliette, 2011 WI 79, ¶63, 336 Wis. 2d 358, 805 N.W.2d 334. As part of
showing deficient performance, “a defendant who alleges in a § 974.06 motion
that his postconviction counsel was ineffective for failing to bring certain viable
claims must demonstrate that the claims he wishes to bring are clearly stronger
than the claims postconviction counsel actually brought.” Romero-Georgana, 360
Wis. 2d 522, ¶¶4, 45-46.

¶9 We will address each of Reynosa’s claims in turn.

(1) The evidence was sufficient to support Reynosa’s convictions.

¶10 Reynosa continues to argue that postconviction counsel was
ineffective for not arguing that the evidence was insufficient for a jury to find him
guilty on each of the charges of which he was convicted. Reynosa has a
significant hurdle to overcome given that “our review of the [jury]’s findings is
highly deferential.” See State v. Rowan, 2012 WI 60, ¶26, 341 Wis. 2d 281, 814
N.W.2d 854. We will sustain a conviction unless the evidence is so insufficient
“that it can be said as a matter of law that no trier of fact, acting reasonably, could

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No. 2015AP1633

have found guilt beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d
493, 501, 451 N.W.2d 752 (1990).

¶11 Reynosa’s primary challenge is to his conviction for first-degree
sexual assault of a child by sexual contact. Pursuant to WIS. STAT. § 948.02(1)(e)
(2011-12), “[w]hoever has sexual contact with a person who has not attained the
age of 13 years is guilty of a Class B felony.” WISCONSIN STAT. § 948.01(5)
(2011-12) defined “[s]exual contact,” as relevant here, as “[i]ntentional touching
by the defendant … by the use of any body part … of the complainant’s intimate
parts” for the purpose of sexually arousing or gratifying the defendant.

¶12 Reynosa seems to argue that the victim’s testimony was sufficient to
prove only penis-to-anus intercourse, not sexual contact by Reynosa touching her
buttocks. He contends that the State never proved that he touched the victim’s
buttocks during the assault, which left the jury to speculate that such touching
occurred. In making this argument, Reynosa overlooks that “sexual intercourse
most certainly involves sexual contact.” See State v. Dodson, 219 Wis. 2d 65, 79,
580 N.W.2d 181 (1998).

¶13 The victim, who was eight years old at the time of the assault,
testified that Reynosa placed her face down on the bed, removed her pants and
underwear along with his own, and “la[id] on top” of her. The victim further
testified that Reynosa’s “front privacy” was touching the “middle” of her “butt”
and she felt wetness. From this, a jury could reasonably conclude that Reynosa
intentionally touched the victim’s buttocks for sexual purposes with a part of his
body.

¶14 Reynosa additionally takes issue with the sufficiency of the evidence
to support his conviction for child enticement. As relevant for purposes of this

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No. 2015AP1633

appeal, WIS. STAT. § 948.07(1) (2011-12) provides: “Whoever, with intent to
[have sexual contact], causes or attempts to cause any child … to go into any …
room or secluded place is guilty of a Class D felony[.]”

¶15 According to Reynosa, the evidence at trial was insufficient to
support the charge because it did not establish that he caused the victim to go into
a room. The victim, however, testified that Reynosa put her over his shoulder and
took her into his bedroom where he proceeded to assault her. Reynosa also seems
to argue that the evidence supported a charge that he intended to have sexual
intercourse with the victim, not sexual contact. As previously discussed, however,
the evidence was sufficient to show that Reynosa assaulted the victim by sexual
contact. As such, the evidence was sufficient to support Reynosa’s conviction for
child enticement.

¶16 Reynosa’s sufficiency-of-the-evidence claim is not clearly stronger
than the ones he previously raised.

(2) The charges were not duplicitous.

¶17 Next, Reynosa argues that postconviction counsel was ineffective for
not arguing that trial counsel was ineffective for failing to raise a duplicity
challenge to the sexual assault charge on the basis that multiple offenses were
improperly combined into a single charge resulting in what he describes as “a
patchwork verdict” where the jury was allowed to convict on either touching or
intercourse.

¶18 “Duplicity is the joining in a single count of two or more separate
offenses.” State v. Lomagro, 113 Wis. 2d 582, 586, 335 N.W.2d 583 (1983).
However, “[s]eparately chargeable offenses, ‘when committed by the same person

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No. 2015AP1633

at substantially the same time and relating to one continued transaction, may be
coupled in one count as constituting but one offense’ without violating the rule
against duplicity.” Id. at 587 (citation omitted). Although Reynosa raises a
number of objections to the complaint on grounds of duplicity, we are not
convinced that any of the purposes of the prohibition against duplicity are
implicated here. See id. at 586-87 (explaining that the purposes of the prohibition
are (1) to assure the defendant has sufficient notice of the charge; (2) to protect
against double jeopardy; (3) to avoid prejudice and confusion arising from
evidentiary rulings during trial; (4) to assure the defendant is appropriately
sentenced for the crime charged; and (5) to guarantee jury unanimity).

¶19 First, Reynosa contends that because the complaint described
multiple incidents of sexual conduct, he was denied the right to adequate notice of
the charge to be defended and ultimately “was attacked with allegations of anal
intercourse, with blood and pain.” Here, while the complaint referenced multiple
assaults, it described only one in detail. Specifically, the complaint alleged facts
that Reynosa assaulted the victim by means of sexual contact and sexual
intercourse in a single, continuous incident. Trial counsel understood the
complaint to charge this incident given that he moved the circuit court—prior to
trial—to exclude evidence of the uncharged assaults referenced in the complaint.

¶20 Reynosa additionally argues that “evidentiary rulings favored the
duplicitous complaint” insofar as it allowed for the admission of evidence related
to anal intercourse. However, the jury instructions provided that the jury was to
determine whether Reynosa had sexual contact with the victim by touching her
buttocks. The circuit court additionally instructed the jury that evidence of other
incidents were to be used only for “context or background … to provide a more
complete presentation of the evidence related to the offenses charged.”

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No. 2015AP1633

¶21 Lastly, in terms of sentencing, Reynosa highlights the circuit court’s
remark that what the victim testified to “was more than contact.” The circuit
court, however, went on to state that “it doesn’t matter to me in terms of my
sentencing” whether penetration occurred. Reynosa was not inappropriately
sentenced.

¶22 The charge of sexual assault of a child under the age of thirteen by
sexual contact was not duplicitous. Consequently, this claim is not clearly
stronger than the ones he previously raised.

¶23 Reynosa goes on to assert that even if trial counsel was not
ineffective for failing to challenge the complaint based on duplicity, he should
have requested a unanimity instruction. Reynosa, however, previously argued on
appeal that he was denied the effective assistance of trial counsel because trial
counsel did not request a unanimity instruction. Reynosa, No. 2013AP1780-CR,
¶1. We analyzed the issue and concluded that even assuming trial counsel was
deficient in this regard, Reynosa had not established that he was prejudiced by the
error. Id., ¶22. To the extent he is attempting to do so, Reynosa is foreclosed
from relitigating this matter. See State v. Witkowski, 163 Wis. 2d 985, 990, 473
N.W.2d 512 (Ct. App. 1991) (holding that a matter already litigated cannot be
relitigated in subsequent postconviction proceedings “no matter how artfully the
defendant may rephrase the issue”).

(3) The prosecutor’s closing remarks were not improper.

¶24 Next, Reynosa asserts that postconviction counsel was ineffective
for not arguing that trial counsel was ineffective for failing to object to the
prosecutor’s remarks referencing anal rape during her closing argument. The
prosecutor detailed the victim’s testimony before stating: “Ladies and gentlemen,

9
No. 2015AP1633

what is the reasonable conclusion? The most reasonable, obvious[] and logical
conclusion is that this defendant essentially, for all intents and purposes, raped this
child, and he anally raped her.” Because only one incident of touching was
needed to secure a conviction, Reynosa contends that the prosecutor’s remarks
were “presented to pile on and inflame.”

¶25 “Counsel is allowed considerable latitude in closing arguments[.]”
State v. Burns, 2011 WI 22, ¶48, 332 Wis. 2d 730, 798 N.W.2d 166. For
example, a prosecutor may “comment on the evidence, detail the evidence, argue
from it to a conclusion, and state that the evidence convinces him or her and
should convince the jurors.” State v. Cameron, 2016 WI App 54, ¶19, 370 Wis.
2d 661, 885 N.W.2d 611 (citation omitted). However, “‘where the prosecutor
goes beyond reasoning from the evidence to a conclusion of guilt and instead
suggests that the jury arrive at a verdict by considering factors other than the
evidence,’ the statements are impermissible.” State v. Jorgensen, 2008 WI 60,
¶40, 310 Wis. 2d 138, 754 N.W.2d 77 (citations and one set of quotation marks
omitted).

¶26 The victim testified in detail about feeling something “in the middle
of [her butt],” sensing Reynosa “moving up and down” on her, feeling wetness
“on her butt,” and noticing blood when she cleaned off the wetness. The
prosecutor’s remarks were based on the severity of the victim’s allegations and
were not improper.

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No. 2015AP1633

¶27 This claim, like the ones we have already addressed, has no merit
and is not clearly stronger than the ones previously raised.3 Postconviction
counsel, accordingly, was not ineffective for failing to raise them. It follows that
discretionary reversal pursuant to WIS. STAT. § 752.35, which “should be granted
only in exceptional cases,” is not warranted here. See State v. McKellips, 2016 WI
51, ¶30, 369 Wis. 2d 437, 881 N.W.2d 258 (citation omitted).

By the Court.—Order affirmed.

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

3
While we have considered all of the arguments in the briefs, we only discuss those that
are necessary to our decision. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261
N.W.2d 147 (1978) (“An appellate court is not a performing bear, required to dance to each and
every tune played on an appeal.”).

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