State v. Kaleb D. Ross

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.
September 7, 2022
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. 2020AP1818 Cir. Ct. No. 2011CF505

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KALEB D. ROSS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County:
GREGORY B. HUBER, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Kaleb Ross, pro se, appeals from an order denying
his postconviction motion for plea withdrawal based upon newly discovered
No. 2020AP1818

evidence. We conclude that Ross is not entitled to relief because the recantation
upon which Ross relies was not corroborated by other newly discovered evidence.
Accordingly, we affirm.

BACKGROUND

¶2 The State charged Ross with two counts of sexual assault of a child
under sixteen, one count of attempted sexual assault of a child under sixteen, one
count of false imprisonment, two counts of disorderly conduct, one count of
misdemeanor theft, and one count of being party to the crime of criminal damage to
property. The charges arose from substantially similar allegations made by two
fourteen-year-old girls, whom we will call “Karen” and “Sarah.”1

¶3 Karen and Sarah alleged that they met Kaleb Ross, his brother Kyle
Ross, and Dustin Widder2 in a parking lot late at night to retrieve a T-shirt belonging
to Karen that was in Kaleb’s possession. They asserted that Kaleb forcibly kissed
and groped Karen in the parking lot and attempted to remove her clothing and make
her touch his penis, while Dustin grabbed Sarah’s hips and forcibly sucked on her
neck. When the girls broke free and ran away, the three males chased them to the
apartment where Sarah lived with her family. Karen was able to get into the
apartment first, leaving Sarah alone with the three males in the hallway. Kaleb then
groped Sarah’s “[c]rotch and boobs” in the hallway while she tried to push him away
and told the three males to leave. After Sarah also managed to get inside the
apartment and lock the door, someone kicked the door until it cracked and also

1
This matter involves the victims of crimes. Pursuant to WIS. STAT. RULE 809.86(4)
(2019-20), we use pseudonyms instead of the victims’ names.
2
Kaleb Ross was seventeen years old at the time of the incident. The complaint does not
specify the ages of Kyle or Dustin. For consistency and to avoid confusion between the brothers,
we will refer to each of the three males by their first names throughout the remainder of this opinion.

2
No. 2020AP1818

somehow knocked over a microwave that had been stored in the hallway. The three
males then fled.

¶4 Karen and Sarah’s allegations were partially corroborated by police
documentation of the damage to the door; by the statement of Sarah’s sister that,
when Karen opened the door to let Sarah in, the sister saw Sarah telling Kaleb to
“stop” and pushing him away; by the observations of the police that both girls were
crying shortly following the incident; by Dustin’s statement to police that
“[s]omething did happen” but that Dustin was “not gonna snitch on anybody, no
matter what”; and by Kaleb’s own statements to the presentence investigation report
(PSI) author that he, Kyle, and Dustin had met the girls in the parking lot to
exchange T-shirts before “hanging out” in the hallway outside Sarah’s apartment
and that Dustin “was being dumb and kicked the door as they were leaving and they
ran out of the building.”

¶5 Pursuant to a plea agreement,3 Kaleb pled no contest to both the sexual
assault count involving Sarah and to the party to the crime of criminal damage to
property count, and he pled guilty to the disorderly conduct counts. In exchange,
the State agreed to defer entry of judgment on the sexual assault count involving
Sarah, to recommend the circuit court dismiss the theft count outright, and to dismiss
and read in the other three counts, including the sexual assault and attempted sexual
assault charges involving Karen. The deferred entry of judgment agreement was
later revoked, and the court imposed and stayed a sentence consisting of eight years’

3
The plea agreement also involved another case that is not at issue in this appeal.

3
No. 2020AP1818

initial confinement followed by five years’ extended supervision on the sexual
assault count and it placed Kaleb on probation for five years.4

¶6 Nearly five years after the incident, and three years after the initial
plea hearing, Karen went to the Wausau Police Department and recanted her
statement. Kaleb moved to withdraw his plea to the sexual assault count involving
Sarah based upon Karen’s recantation.5

¶7 At a hearing on Kaleb’s plea withdrawal motion, Karen testified that
she and Sarah were in a parking lot with Kaleb, Kyle, and Dustin at about midnight
on the night in question, but Karen denied having experienced or witnessed any type
of “unwanted” or “assaultive” contact there. Karen also denied that Kaleb had taken
her shirt earlier in the day. Karen further testified that the group had gone from the
parking lot to the hallway outside the apartment where Sarah was living, where
Karen again saw nothing of an “assaultive” nature occur. At some point after Karen
went into the apartment while the others remained in the hallway, Karen heard Sarah
yelling “stop” through the closed door. Karen said the boys were persistent about
coming inside to hang out, but they could not because Sarah’s dad was sleeping.

¶8 Karen further testified that after both girls were in the apartment, the
microwave being “thrown down the stairs” made a loud noise that awoke Sarah’s
father. Sarah’s father was very upset about the microwave, and Sarah started crying
and related a “story” to her father about what Dustin had done to her in the parking

4
Kaleb had served his sentences on the disorderly conduct and property damage counts
by that time, and they are not at issue in this appeal.
5
This was Kaleb’s seventh plea withdrawal motion. We discussed the prior six motions
in State v. Ross, No. 2014AP2509-CRNM, unpublished op. and order (WI App Apr. 14, 2015),
and we need not repeat the extensive procedural history related to those motions and Kaleb’s
no-merit appeal here.

4
No. 2020AP1818

lot. Karen sat in a corner and cried while Sarah was talking to her father, and Karen
then “went along” and lied to both Sarah’s father and the police about Kaleb
“molesting” her. Karen claimed that she created her own detailed lies about Kaleb
beyond anything Sarah had alleged because Sarah was her best friend and she did
not want to make Sarah “look like a fool or a liar.” Karen stated that she did not
recant earlier because she was afraid she would get in trouble for lying, but that she
finally came forward because her lies had been “haunting” her.

¶9 The circuit court denied the plea withdrawal motion. It concluded that
Karen’s recantation was not corroborated by a feasible motive for having made a
prior false statement or by substantial guarantees of trustworthiness and that it was
not material to the count involving Sarah, which had occurred outside of Karen’s
sight. Kaleb appeals.

DISCUSSION

¶10 A defendant seeking to withdraw a plea after sentencing on grounds
other than a defective plea colloquy must demonstrate by clear and convincing
evidence that refusal to allow plea withdrawal would result in a “manifest injustice,”
raising “serious questions affecting the fundamental integrity of the plea.” State v.
Dillard, 2014 WI 123, ¶83, 358 Wis. 2d 543, 859 N.W.2d 44 (citation omitted).
Newly discovered evidence may provide a basis for a manifest injustice claim. State
v. Ferguson, 2014 WI App 48, ¶24, 354 Wis. 2d 253, 847 N.W.2d 900. A defendant
seeking to withdraw a plea after sentencing based upon newly discovered evidence
first must demonstrate by clear and convincing evidence that: “(1) the evidence was
discovered after conviction; (2) the defendant was not negligent in seeking
evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is
not merely cumulative.” Id.

5
No. 2020AP1818

¶11 When newly discovered evidence consists of a recantation, the
defendant must additionally show that the recantation is corroborated by other
newly discovered evidence—such as a feasible motive for the initial false statement
combined with circumstantial guarantees of the trustworthiness of the recantation.
Id., ¶¶24-25; see also State v. McAlister, 2018 WI 34, ¶33, 380 Wis. 2d 684, 911
N.W.2d 77 (recognizing that recantations are inherently unreliable). Circumstantial
guarantees of trustworthiness in turn may include whether the recantation is
internally consistent; whether the recantation is consistent with other facts; and
whether the recanting witness is aware of potential criminal consequences stemming
from making a false accusation. Ferguson, 354 Wis. 2d 253, ¶25.

¶12 If a defendant establishes each of the above factors, the circuit court
must then determine whether a reasonable probability exists that a jury, looking at
both the initial accusation and subsequent recantation, “would have a reasonable
doubt as to the defendant’s guilt.” State v. McCallum, 208 Wis. 2d 463, 474,
561 N.W.2d 707 (1997). A determination that a recantation is incredible as a matter
of law necessarily leads to the conclusion that it would not lead to reasonable doubt
in the minds of the jury. Id. at 474-75.

¶13 There are several overlapping but potentially conflicting lines of
authority regarding what standard(s) of review apply to plea withdrawal claims

6
No. 2020AP1818

based upon newly discovered evidence.6 We need not resolve any such conflicts
here because we would reach the same result under an independent standard of
review as we would under a deferential standard of review. Specifically, we
conclude that Ross has failed to establish corroboration for the recantation. Because
that failing alone is dispositive of the newly discovered evidence claim, we need not
address the first four criteria of the newly discovered evidence test or whether a jury
looking at both the initial accusation and subsequent recantation would have a
reasonable doubt as to the defendant’s guilt. See McCallum, 208 Wis. 2d at 474;
see also State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989)
(courts decide cases on the narrowest possible grounds).

¶14 We first conclude that Karen’s asserted motive for falsely accusing
Kaleb is not feasible. Karen claimed that she lied to Sarah’s father, the police, and
a forensic interviewer because she did not want to make Sarah “look like a fool or
a liar.” But Sarah had not alleged that Kaleb assaulted Karen in the parking lot.
Rather, Sarah had alleged that Dustin assaulted her there. Karen did not need to

6
For example, State v. Plude, 2008 WI 58, ¶¶31, 33, 310 Wis. 2d 28, 750 N.W.2d 42,
states that the decision whether to grant a motion for a new trial based upon newly discovered
evidence is a discretionary determination that involves a question of law regarding whether the
newly discovered evidence would lead a jury to have reasonable doubt about the defendant’s guilt.
State v. Taylor, 2013 WI 34, ¶25, 347 Wis. 2d 30, 829 N.W.2d 482, states that whether a manifest
injustice warranting plea withdrawal has occurred presents a “question of constitutional fact,” under
which we accept the circuit court’s findings of historical or evidentiary fact unless they are clearly
erroneous, but independently determine whether those facts are sufficient to establish a
constitutional violation. State v. Ferguson, 2014 WI App 48, ¶¶26-29, 354 Wis. 2d 253, 847
N.W.2d 900, cites a concurrence by Justice Shirley Abrahamson in State v. McCallum, 208 Wis. 2d
463, 481-83, 561 N.W.2d 707 (1997), for the propositions that: (1) questions regarding when the
evidence was discovered and the defendant’s diligence in doing so are subject to the “clearly
erroneous” standard of review applicable to factual determinations; (2) questions regarding whether
the evidence was material and not cumulative are reviewed under the “erroneous exercise” standard
applicable to discretionary determinations; and (3) whether a recantation is incredible as matter of
law is integral to the circuit court’s ultimate discretionary determination as to whether the
recantation would lead to a different result at trial.

7
No. 2020AP1818

invent additional allegations against Kaleb regarding what occurred in the parking
lot in order to support Sarah’s account or avoid calling her a liar.

¶15 Kaleb asserts that Karen was also motivated to invent false allegations
against him because she was mad that he was ignoring her. There is no evidentiary
basis for that assertion, however, because Karen did not testify to that motivation
and Kaleb did not introduce any sworn statement from Karen to that effect.

¶16 Kaleb further asserts that text messages Karen sent to Dustin on the
night of the incident reveal inconsistencies in her original story and that she had
“rape” on her mind. The text messages were referenced in the original complaint,
however, and are not newly discovered. They therefore have no place in the analysis
of whether the recantation was supported by other newly discovered evidence.

¶17 Next, we conclude that Karen’s recantation lacked internal
consistency. In particular, Karen’s testimony did not explain what the group had
been doing together in the parking lot; when or why Karen entered Sarah’s
apartment so as to leave Sarah in the hallway with Kaleb, Kyle, and Dustin; why
Karen was standing on one side of the door listening to what was going on in the
hallway; how the apartment door became cracked; or why any of the three males
would throw the microwave down the stairs. Karen’s assertion that she lied to
protect Sarah because Sarah was her best friend was undermined by the fact that
Karen and Sarah did not have any further contact with one another once Sarah
moved away a few weeks after the assaults. Moreover, Karen’s assertions that Sarah
was crying merely because she was afraid of getting in trouble and that Karen was
crying because she was scared and confused make little sense.

¶18 Karen’s recantation was also inconsistent with other facts that
supported her prior statements. Most significantly, Karen’s assertion that nothing

8
No. 2020AP1818

“assaultive” occurred in the hallway was directly contradicted by Sarah’s statement
that Kaleb assaulted her in the hallway and by the observation of Sarah’s sister that
Sarah was saying “stop” and pushing Kaleb away when Karen opened the door to
let in Sarah. Neither Sarah nor her sister recanted their statements in circuit court.
In addition, Karen’s denial that Kaleb took her shirt contradicted Kaleb’s own
statement that the group had met in the parking lot to trade shirts.

¶19 Finally, as the circuit court noted, Karen’s extensive criminal history
made it less likely that she would be concerned about potential criminal penalties
for perjury. Without showing a feasible motive for Karen to have falsely accused
Kaleb in the first place, or any substantial guarantees of trustworthiness for Karen’s
recantation, Kaleb failed to satisfy his burden of demonstrating by clear and
convincing evidence that the recantation was corroborated. It follows that he was
not entitled to relief on his claim of newly discovered evidence. See State v. Eckert,
203 Wis. 2d 497, 516, 553 N.W.2d 539 (Ct. App. 1996) (holding that all five
elements are required).

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).

9