State v. Vonn Yorke

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 1, 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. 2021AP900-CR Cir. Ct. No. 2018CF4692

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

VONN YORKE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed in part, reversed in part, and cause
remanded with directions.

Before Brash, C.J., Donald, P.J., and White, J.

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. 2021AP900-CR

¶1 PER CURIAM. Vonn Yorke appeals his judgment of conviction
entered after a jury convicted him of human trafficking and receiving compensation
for human trafficking. He argues that he is entitled to a new trial based on newly
discovered evidence; that the trial court improperly admitted evidence relating to
Yorke’s Facebook posts and YouTube music videos as other-acts evidence; and that
the trial court erred in denying his motion to require the State to specify with more
certainty the dates for which the charges against him were based.

¶2 Upon review, we conclude that the trial court erroneously exercised
its discretion by not properly reviewing Yorke’s motion regarding newly discovered
evidence, and we therefore remand this matter for a hearing on that issue. With
regard to Yorke’s other claims regarding the admission of the other-acts evidence
and the denial of his motion relating to the specificity of the charges, we affirm.

BACKGROUND

¶3 The charges against Yorke involve M.H., who told police that Yorke
had recruited her to engage in prostitution over the time frame of January 1, 2016
through June 15, 2018.1 According to the criminal complaint, M.H. said that she
met Yorke in 2015; they began dating and were living together in Milwaukee. M.H.
stated that she initially conducted prostitution “dates” voluntarily, and that Yorke
had told her that as soon as she had earned $50,000, they could both “retire.” M.H.
advertised on-line, and Yorke set the pricing for her “dates.”

¶4 However, after about a year, M.H. said this arrangement “changed.”
She had met the $50,000 earnings goal “multiple times,” but Yorke would not let

1
The initial charges against Yorke also involved another victim, T.B. However, a trial
held in March 2019 resulted in a mistrial when the jury was unable to reach a verdict. Subsequently,
the information was amended to include only the charges involving M.H.

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No. 2021AP900-CR

her stop conducting the prostitution dates. She stated that she had monetary quotas
that Yorke set for her, and if she did not meet those quotas he beat her, which
included punching her, throwing her to the ground, and kicking her. Yorke also
threatened M.H. with a gun multiple times, and engaged in anal sex with M.H. as a
“punishment.” M.H. finally fled from Yorke in mid-June 2018 after he had beaten
her “yet again,” punching and choking her. M.H. estimated that she had received
approximately $300,000 from prostitution, all of which she had given to Yorke.

¶5 Additionally, M.H. told police that Yorke was an aspiring rap artist,
and posted videos on YouTube under the name “MM Veto.” The police officer who
interviewed M.H. viewed several of these videos, which showed Yorke rapping
about “pimping.”

¶6 Prior to trial, Yorke filed a motion to “make more certain” the dates
relating to the charges listed in the information. The State argued that it was “as
specific as [it] could be” and that “[t]his was a crime that happened over a length of
time.” The trial court agreed that the State had provided enough information to give
Yorke proper notice, and denied his motion.

¶7 The State in turn filed motions to admit nine Facebook posts and three
YouTube music videos posted by Yorke as other-acts evidence. The Facebook posts
consisted of conversations with women that the State contended were attempts to
recruit them for prostitution, as well as statements by Yorke relating to Backpage—
a website where advertisements for prostitution are posted. The music videos
showed Yorke rapping, with lyrics that the State contended referenced the
commercial sexual exploitation of women “commonly referred to as ‘pimping.’”
Yorke also made references in his Facebook posts to those lyrics, which he stated
were all “true.” The State asserted that the posts and videos demonstrated his

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No. 2021AP900-CR

“motive, intent, plan and scheme to recruit women into the commercial sex
industry.” The trial court agreed that the evidence was being proffered for an
acceptable purpose, and that it was relevant and probative. It therefore granted the
State’s motions.

¶8 As noted above, Yorke’s first trial ended in a mistrial. That trial
included testimony from Adam Comer as a witness for the defense. Comer was a
personal trainer who had met M.H. in 2018 at a fitness club, and they dated during
that summer. Comer testified that M.H. told him she was living with her ex-
boyfriend, Veto. Comer stated that after he and M.H. broke up, he contacted Veto—
Yorke—who told Comer that he was M.H.’s boyfriend, and that Comer was just a
“side piece.”

¶9 On cross-examination, Comer testified that M.H. had told him that
“everything [Yorke] has she gave to him[.]” Comer also stated that he had taken
M.H. to the hospital at one point to be treated for injuries to her ribs. Comer further
testified that he “lost trust” in M.H. because he “didn’t really know what was going
on” between her and Yorke.

¶10 During the second trial, Comer was not available to testify, but his
testimony from the first trial was read into the record.2 Additionally, M.H. testified
with regard to her relationship with Comer. In particular, she stated that Comer
knew Yorke was her pimp, and that she was trying to leave Yorke; that she knew
Comer had feelings for her, but that she did not feel the same way about him; and

2
At the time of the second trial, Comer was in custody in Georgia. Yorke attempted to
procure Comer’s appearance for his second trial, but was unsuccessful. Yorke then moved the trial
court to allow Comer’s testimony from Yorke’s first trial to be admitted at his second trial.

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No. 2021AP900-CR

that Comer “snitched” about her relationship with Comer to a mutual friend of his
and Yorke’s.

¶11 After the jury convicted him in the second trial, Yorke filed a motion
to vacate the verdicts on the grounds that he had obtained newly discovered
evidence demonstrating that he had not trafficked M.H. Yorke asserted that a
private investigator hired by the defense had obtained new information from Comer
that “contradict[ed] the majority of [M.H.’s] trial testimony and ultimately her
credibility.” Yorke obtained an affidavit from Comer which included statements
that M.H. tried to recruit Comer to be her new pimp, that she solicited Comer to rob
Yorke at gunpoint, and that she told Comer she had “literally manufactured lies”
about her previous pimp in order to send him to prison “so that she would never
have to deal with him again.” Comer stated that M.H. never told him she was being
trafficked by Yorke or that she needed to be “helped or rescued from that situation.”
In fact, Comer characterized M.H. as being manipulative, and that she could be
“very aggressive and even violent.”

¶12 The trial court denied Yorke’s motion at sentencing without hearing
arguments from the parties, stating that it was a matter for the “appellate process”
and that it was “not going to interfere with the jury’s verdict.” The court then
sentenced Yorke to a thirteen year prison term for the charge of human trafficking,
bifurcated as eight years of initial confinement and five years of extended
supervision; and a ten year term for the charge of receiving compensation for human
trafficking, bifurcated as five years of initial confinement and five years of extended
supervision, to be served concurrently. This appeal follows.

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No. 2021AP900-CR

DISCUSSION

Claim of Newly Discovered Evidence

¶13 We first address Yorke’s argument that the statements by Comer,
upon which Yorke based his motion to vacate the verdicts in his second trial,
constitute newly discovered evidence warranting a new trial. “The decision to grant
or deny a motion for a new trial based on newly[ ]discovered evidence is committed
to the [trial] court’s discretion.” State v. Plude, 2008 WI 58, ¶31, 310 Wis. 2d 28,
750 N.W.2d 42. “A [trial] court erroneously exercises its discretion when it applies
an incorrect legal standard to newly[ ]discovered evidence.” Id.

¶14 The determination of whether a new trial is warranted based on newly
discovered evidence is a two-step process. State v. Watkins, 2021 WI App 37, ¶42,
398 Wis. 2d 558, 961 N.W.2d 884. First, the defendant must prove, by clear and
convincing evidence, that: “(1) the evidence was discovered after conviction;
(2) the defendant was not negligent in seeking the evidence; (3) the evidence is
material to an issue in the case; and (4) the evidence is not merely cumulative.”
Plude, 310 Wis. 2d 28, ¶32 (citation omitted).

¶15 If the defendant proves these four criteria, the trial court must then
determine “whether a reasonable probability exists that had the jury heard the
newly[ ]discovered evidence, it would have had a reasonable doubt as to the
defendant’s guilt.” Id. This determination is a question of law that we review de
novo. Watkins, 398 Wis. 2d 558, ¶44, 961 N.W.2d 884. Furthermore, “[i]f the
newly discovered evidence fails to satisfy any one of these five requirements, it is
not sufficient to warrant a new trial.” State v. Eckert, 203 Wis. 2d 497, 516, 553
N.W.2d 539 (Ct. App. 1996).

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No. 2021AP900-CR

¶16 Here, the trial court denied Yorke’s motion alleging newly discovered
evidence without engaging in an analysis of the Plude factors, instead declaring it a
matter for this court to consider. This is clearly not the correct legal standard that
should have been applied. See Plude, 310 Wis. 2d 28, ¶31; see also State v.
Malcom, 2001 WI App 291, ¶12, 249 Wis. 2d 403, 638 N.W.2d 918 (whether the
trial court applied the proper legal standard is a question of law). We therefore
conclude that the trial court erroneously exercised its discretion with regard to
Yorke’s motion. See Plude, 310 Wis. 2d 28, ¶31.

¶17 Furthermore, although we “generally look for reasons to sustain the
trial court’s discretionary decisions,” see State v. Lock, 2012 WI App 99, ¶43, 344
Wis. 2d 166, 823 N.W.2d 378, “there should be evidence in the record that
discretion was in fact exercised and the basis of that exercise of discretion should
be set forth” in order for a discretionary decision to be upheld, see State v. Hunt,
2003 WI 81, ¶42, 263 Wis. 2d 1, 666 N.W.2d 771 (citation omitted). On the
contrary, the record in this case indicates that the trial court did not exercise any
discretion in rendering its decision denying Yorke’s motion. The court did not even
discuss the alleged newly discovered evidence submitted by Yorke, let alone make
any findings regarding the same. Weighing evidence and making credibility
determinations are matters for the trial court. See State v. Young, 2009 WI App 22,
¶17, 316 Wis. 2d 114, 762 N.W.2d 736.

¶18 Moreover, the trial court did not engage in either step of the Plude
process for analyzing alleged newly discovered evidence. See id., 310 Wis. 2d 28,
¶32. Additionally, the parties dispute whether the evidence submitted by Yorke
meets the first four Plude factors. The court of appeals does not have the power to
make findings of fact where the evidence is in dispute. See Gottsacker v. Monnier,
2005 WI 69, ¶35, 281 Wis. 2d 361, 697 N.W.2d 436. Therefore, findings by the

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No. 2021AP900-CR

trial court regarding the evidence submitted by Yorke, and an analysis applying all
of the Plude factors to that evidence, are required in order to resolve Yorke’s
motion. See id., 310 Wis. 2d 28, ¶32. Accordingly, we remand this matter to the
trial court for a hearing on Yorke’s motion that includes such an analysis. See
State v. Love, 2005 WI 116, ¶¶54-55, 284 Wis. 2d 111, 700 N.W.2d 62 (where our
supreme court remanded the matter to the trial court for an evidentiary hearing to
make findings regarding alleged newly discovered evidence submitted by the
defendant).

Admission of Facebook Posts and YouTube Videos

¶19 We next turn to Yorke’s claim that the trial court erred in admitting
evidence relating to Yorke’s Facebook posts and YouTube music videos as other-
acts evidence. Other-acts evidence may be proffered for an acceptable purpose
under WIS. STAT. § 904.04(2) (2019-20),3 such as establishing motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
State v. Sullivan, 216 Wis. 2d 768, 772, 576 N.W.2d 30 (1998). The three-step test
adopted in Sullivan for determining the admissibility of other-acts evidence
asks: (1) whether the evidence is being offered for a proper purpose, that is,
establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident; (2) whether the evidence is relevant; and
(3) whether the probative value of the evidence substantially outweighs the danger
of unfair prejudice to the defendant. Id. at 772-73.

¶20 The party seeking to admit the other-acts evidence bears the burden
of proving the first two steps, with the burden then shifting to the party opposing

3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP900-CR

the evidence to meet the third step. State v. Marinez, 2011 WI 12, ¶19, 331 Wis. 2d
568, 797 N.W.2d 399. We review the trial court’s admission of other-acts evidence
under the erroneous exercise of discretion standard, and will uphold that decision if
the court “examined the relevant facts, applied a proper standard of law, used a
demonstrated rational process and reached a conclusion that a reasonable judge
could reach.” Id., ¶17 (citation omitted).

¶21 At the hearing on the State’s motion to admit this evidence, the State
argued that it was seeking to admit the Facebook posts to demonstrate Yorke’s
“intent to exploit women for a commercial purpose for his own financial benefit,”
in particular noting the “conversations” in which Yorke appears to be attempting to
recruit other women for purposes of engaging in commercial sex acts. The posts
also included a photograph of Yorke which trial counsel argued “portray[ed] him as
someone who appears to look like a human trafficker because he’s wearing—I guess
for lack of a better word—bling.” Counsel asserted that this was indicative of racial
bias, as opposed to supporting one of the proper purposes for admission of the
evidence under WIS. STAT. § 904.04(2)(a). Yorke further argued that these
conversations violated his right to confrontation, because the women who were
involved were not on the State’s witness list.

¶22 However, the State countered that the statements were not testimonial
and therefore Yorke’s right to confrontation was not invoked; rather, they were
business records of Facebook, and were admissible under that hearsay exception.
See WIS. STAT. § 908.03(6). Furthermore, regarding the photograph, the State
argued that it was seeking its admission for the comment included with it: “If you
can trick em then you can beat em.”

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No. 2021AP900-CR

¶23 The trial court determined that the Facebook posts met the
requirements of Sullivan: that they were being “offered for an acceptable purpose
such as intent, identity”; that they were “relevant under [WIS. STAT.] § 904.01”; and
that “because they have a tendency to make a consequential fact more probable or
than it would be able—with or without the evidence. So—and it’s probative. And
so that probative value substantially outweighs the danger of unfair prejudice.”
Therefore, the court deemed the Facebook posts admissible.

¶24 Similarly, the State argued that lyrics in Yorke’s music videos “go
towards showing [Yorke’s] motive, [his] intent, and his plan to commercially
sexually exploit women.” Yorke, in contrast, asserted that he was an “entertainer,”
that he did not write the lyrics of the music in the videos, and that they are simply
“what sells in the industry.” The State then pointed out the Facebook post where
Yorke stated that “everything in his rap video is true,” which the State asserted is
Yorke “admitting that what he’s rapping about is real.”

¶25 The trial court again held that the Sullivan test had been met for the
music video evidence: “that evidence is offered for an acceptable purpose. And it’s
relevant and probative.” The court therefore deemed that evidence admissible as
well.

¶26 The trial court did not provide a particularly detailed Sullivan analysis
regarding any of this evidence. However, after our independent review of the
record—which we are required to conduct for challenges to other-acts evidence
under the independent review doctrine, see Hunt, 263 Wis. 2d 1, ¶4—we agree that
there were reasonable bases pursuant to Sullivan described by the State at the
hearing, as we explained above, that justify the trial court’s decision to admit both
the Facebook posts and the music videos. See Sullivan, 216 Wis. 2d at 772-73.

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No. 2021AP900-CR

Therefore, the trial court did not erroneously exercise its discretion in admitting that
evidence. See Marinez, 331 Wis. 2d 568, ¶17.

Denial of Motion for Specificity of the Dates of the Offenses

¶27 Finally, we review Yorke’s claim that the trial court erred in failing to
grant his motion that essentially sought to dismiss the information for failing to
provide specific dates for the charges against Yorke. This challenge of the
sufficiency of the complaint and information implicates Yorke’s constitutional due
process right to be “informed of the nature and cause of the accusation against him.”
See State v. Kempainen, 2015 WI 32, ¶19, 361 Wis. 2d 450, 862 N.W.2d 587
(citation omitted). The resolution of this issue requires the court to consider
“whether the defendant can determine if the complaint and information ‘states an
offense to which he [can] plead and prepare a defense and whether conviction or
acquittal is a bar to another prosecution for the same offense.’” Id. (citation
omitted). Our inquiry focuses on “the facts alleged in the complaint and the
elements of the crimes involved” and whether they “identify the alleged criminal
conduct with reasonable certainty.” Id., ¶¶19-20. We independently review
challenges to constitutional principles. State v. Pinno, 2014 WI 74, ¶36, 356
Wis. 2d 106, 850 N.W.2d 207.

¶28 At the hearing on this motion, the State argued that it had been as
specific as it could be due to the length of time over which these crimes had been
committed. On appeal, the State’s response brief expands on that argument, and
includes a discussion of the applicability of several factors that are considered when

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No. 2021AP900-CR

evaluating the sufficiency of a complaint of child sexual assault, known as the
Fawcett factors.4 See Kempainen, 361 Wis. 2d 450, ¶¶23-24.

¶29 Yorke did not refute the State’s argument in his reply brief. Generally,
arguments not refuted are deemed admitted. See State v. Alexander, 2005 WI App
231, ¶15, 287 Wis. 2d 645, 706 N.W.2d 191. Furthermore, after independently
reviewing the complaint and information, we conclude that the charges against
Yorke alleged facts and criminal conduct with reasonable certainty. See
Kempainen, 361 Wis. 2d 450, ¶¶19-20. Therefore, the trial court did not err in
denying Yorke’s motion.

Conclusion

¶30 In short, we affirm the trial court’s admission of the Facebook posts
and music videos as other-acts evidence, as well as the court’s denial of Yorke’s
motion for more specificity in the information. However, we reverse the trial court’s
denial of Yorke’s motion to vacate the verdicts on the ground of newly discovered
evidence, and remand that matter for a hearing on that motion as described in this
opinion. We note that with this instruction we are not determining whether the
evidence submitted by Yorke constitutes newly discovered evidence.

By the Court.—Judgment affirmed in part, reversed in part, and cause
remanded with directions.

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

4
See State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988).

12