State v. Jesus M. Medina Fernandez

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.
August 31, 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 Nos.
2020AP351-CR Cir. Ct. Nos. 2016CF1837
2016CF3024
2020AP352-CR 2016CF4617
2020AP353-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JESUS M. MEDINA FERNANDEZ,

DEFENDANT-APPELLANT.

APPEALS from judgments of the circuit court for Milwaukee
County: CAROLINA STARK, Judge. Affirmed.

Before Brash, C.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).
Nos. 2020AP351-CR
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¶1 PER CURIAM. Jesus M. Medina Fernandez appeals judgments of
conviction entered after a jury found him guilty of three counts of first-degree
sexual assault by use of a dangerous weapon and two counts of second-degree
sexual assault. Medina1 claims that the counts were wrongly joined for trial and
that the evidence as to one of the counts was insufficient because the State failed
to corroborate his confession. We reject his claims and affirm.

Background

¶2 In Milwaukee County Circuit Court case No. 2016CF1837, which
underlies appeal No. 2020AP351-CR, the State filed a complaint on April 29,
2016, charging Medina with two counts of first-degree sexual assault by use of a
dangerous weapon and one count of second degree sexual assault. A.D.G. and
A.L.E. were the alleged victims of the first-degree sexual assaults, and C.J.M. was
the alleged victim of the second-degree sexual assault. In Milwaukee County
Circuit Court case No. 2016CF3024, which underlies appeal No. 2020AP352-CR,
the State filed a criminal complaint on July 7, 2016, charging Medina with one
count of first-degree sexual assault by use of a dangerous weapon. K.M.G. was
the alleged victim. In Milwaukee County Circuit Court case No. 2016CF4617,
which underlies appeal No. 2020AP353-CR, the State filed a criminal complaint
on October 14, 2016, charging Medina with one count of second-degree sexual
assault. A.E.R. was the alleged victim. The following facts regarding the charges
are relevant to our discussion of the issues raised on appeal.

1
The appellant refers to himself as “Medina” in his appellate briefs. We therefore do so
as well.

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¶3 A.D.G.: According to the criminal complaint in case
No. 2016CF1837, A.D.G. told police that on December 11, 2015, a man driving a
Honda approached her in the 1600 block of South 25th Street in Milwaukee.
A.D.G. agreed to an act of oral sex with the man in exchange for $50.00. She got
into his car, and he drove into an alley and displayed his penis. A.D.G. asked for
payment first, but he ordered her to “suck it,” and she engaged in mouth-to-penis
intercourse after he reached for a screwdriver that she thought he might use to stab
her. The man then forced her to remove her pants and have penis-to-vagina sexual
intercourse with him. He used a condom that he discarded in the alley when he
was finished. A.D.G. told police that the assailant was a Puerto Rican male with a
thin build and a tattoo on his face. She also recalled the car’s license plate
number, which police determined had been issued to Medina. Medina
subsequently gave a statement to police admitting that he paid A.D.G. for sex.
Police found a condom in the alley, and at trial, a DNA analyst testified that
Medina was the source of the sperm fraction on the inside of the condom and that
A.D.G. was the source of the DNA on the exterior of the condom.

¶4 C.J.M.: According to the criminal complaint in case
No. 2016CF1837, C.J.M. told police that on the night of April 17, 2016, a man
approached her in a tavern’s parking lot where she was arguing with a friend. The
man identified himself as “Jesus Medina” and directed her to get into his car for
her safety. Medina gave C.J.M. his telephone number before they separated. She
called him at approximately 3:30 a.m. that same night, when she became
concerned that she might face a threat from the person with whom she had argued
earlier. Medina offered to sit with her at her home, and C.J.M. agreed. She met
Medina and drove him to her home in the 1100 block of South 38th Street, where
he accosted her and threatened to kill her and her children unless she had sex with

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him. He then forcibly engaged in penis-to-vagina intercourse with her. When he
was finished, she drove him to an area near the 3500 block of Lincoln Avenue,
where he got out of the car. At trial, C.J.M. testified with the assistance of a
Spanish-language interpreter, and the State showed that C.J.M. and Medina had
communicated in Spanish. Additionally, the State presented testimony from a
DNA analyst who said that Medina could not be excluded as the source of male
DNA found in C.J.M.’s vagina several days after the incident.

¶5 A.L.E.: According to the criminal complaint in case
No. 2016CF1837, A.L.E. told police that on April 21, 2016, she was in the area of
South 15th Street and Greenfield Avenue when a man lured her into his vehicle by
offering her marijuana. He then drove with her into an alley, hit her on the head,
and forced her to perform oral sex. Next, the man produced a sharp object, held it
to her neck, and performed an act of penis-to-vagina intercourse. Medina
subsequently gave a statement to police acknowledging that he “picked A.L.E. up
for a prostitution date.” He said that she wanted to leave because he was “taking
too long” so he grabbed her and forced her to stay in the car. At trial, the State
played the 911 call that A.L.E. placed after the incident reporting that she was
raped by a skinny Hispanic male who could not speak English very well; and the
State presented testimony from a DNA analyst who said that Medina was a
possible contributor to the DNA collected from A.L.E. later on April 21, 2016.

¶6 K.M.G.: According to the criminal complaint in case
No. 2016CF3024, K.M.G. told police that in March 2016, she was in the 1300
block of South 23rd Street working as a prostitute. A Puerto Rican man with a
thick accent and a teardrop tattoo on his face drove up to her in a car and offered
her $50.00 for a “date.” When she was in the car, the man produced a

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screwdriver, held it against her neck, and forcibly engaged in penis-to-vagina
intercourse with her before she escaped from the vehicle. Police showed K.M.G. a
photo array, and she identified Medina as the assailant. Medina subsequently gave
a statement to police and admitted to the incident with K.M.G.

¶7 A.E.R.: According to the criminal complaint in case
No. 2016CF4617, A.E.R. told police that at approximately 2:30 a.m. on October
17, 2015, she was walking near the 2500 block of South 10th Street after spending
the evening at various taverns. A man pulled up in a car that had a Puerto Rican
flag hanging from the rear view mirror. The man spoke English that “was broken
with Spanish,” and he offered her a ride. She got into his car, and he drove her
into an alley, applied pressure to her neck, and forced her to have penis-to-vagina
intercourse. DNA testing revealed that Medina was a possible major contributor
to the DNA mixtures collected from her body later that day.

¶8 Over Medina’s objection, the circuit court joined the five sexual
assault charges for trial. While the trial was underway, the State determined that it
could not produce K.M.G. to testify. The State advised, however, that it intended
to continue with the prosecution of the charge involving her and would rely on
Medina’s confession and physical evidence found in Medina’s car to prove the
allegation that Medina sexually assaulted K.M.G. After hearing argument and
considering the State’s offer of proof, the circuit court denied Medina’s motion to
dismiss the charge involving K.M.G. and permitted the State to proceed without
her. The jury found Medina guilty of all five charges. He appeals.

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Discussion

¶9 Medina first claims that the five charges were improperly joined for
trial. Joinder is governed by WIS. STAT. § 971.12 (2019-20).2 The “statute is to be
broadly construed in favor of initial joinder.” State v. Prescott, 2012 WI App 136,
¶15, 345 Wis. 2d 313, 825 N.W.2d 515 (citation omitted). Such broad
construction is warranted to serve the statute’s goals and purposes, namely, to
promote trial economy and judicial efficiency, and “to eliminate multiple trials
against the same defendant, which promotes fiscal responsibility.” See State v.
Salinas, 2016 WI 44, ¶36, 369 Wis. 2d 9, 879 N.W.2d 609. Whether crimes are
properly joined is a question of law that we review de novo. See id., ¶30.

¶10 Pursuant to WIS. STAT. § 971.12(4), two or more complaints or
informations may be tried together if the crimes alleged could have been joined in
a single charging document. Pursuant to § 971.12(1), crimes may be charged
together in the same complaint or information if, as relevant here, they “are of the
same or similar character.” To be of the same or similar character, “[i]t is not
sufficient that the offenses involve merely the same type of criminal charge.”
State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584 (Ct. App. 1988). Rather,
the “crimes must be the same type of offenses occurring over a relatively short
period of time and the evidence as to each must overlap.” See id.

¶11 The five crimes here were all violent sexual assaults involving penis-
to-vagina intercourse and were therefore the same type of offense. Further, the
crimes occurred over a relatively short period of time, specifically, the seven-
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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month period from October 2015 through April 2016. We have recognized that
“acts two years apart can be considered as ‘occurring over a relatively short period
of time’” See State v. Locke, 177 Wis. 2d 590, 596, 502 N.W.2d 891 (Ct. App.
1993).

¶12 The evidence supporting the five crimes also overlapped. Medina
asserts that the overlap was minor, but a minor overlap of evidence is sufficient
“[i]n light of the broad construction we afford the joinder statute in favor of
joinder.” See State v. Linton, 2010 WI App 129, ¶¶16-17, 329 Wis. 2d 687, 791
N.W.2d 222. In this case, Detective Jonathan Mejias-Rivera testified that he
questioned Medina about all of the victims’ allegations over the course of three
custodial interviews. Mejias-Rivera also collected DNA from Medina that was
tested in connection with the DNA samples collected from four of the five victims.

¶13 Moreover, when assessing whether evidence overlaps, we have
considered whether “[t]he similarities between the acts in each incident tended to
establish the identity of the criminal.” See Hamm, 146 Wis. 2d at 138. We
concluded that modus operandi, time frame, and geographic area were relevant to
that evaluation. See id. at 138-39. Here, each of the five charges involved a
woman who was isolated and then attacked by a Puerto Rican or Spanish-speaking
male. In each attack, the assailant applied force, usually to the victim’s neck and
often with a sharp object, and in every case the assailant ultimately engaged in
violent penis-to-vagina intercourse. Further, all of the crimes occurred on the
south side of Milwaukee County, a geographic area sufficient to support joinder.
See State v. Hall, 103 Wis. 2d 125, 139, 307 N.W.2d 289 (1981) (observing that
crimes were closely connected geographically when they occurred “within the
confines of the north metropolitan Milwaukee County area”).

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¶14 We therefore reject Medina’s challenge to the joinder decision. We
conclude that, as a matter of law, the circuit court properly joined the five counts
for trial.

¶15 We turn to the question of severance. See Locke, 177 Wis. 2d at
596-97. Pursuant to WIS. STAT. § 971.12(3), the circuit court may sever crimes
that are properly joined if a party is prejudiced by the joinder. The proper joinder
of criminal offenses, however, is presumptively non-prejudicial, see Linton,
329 Wis. 2d 687, ¶20, and to rebut that presumption, a defendant seeking
severance must show “substantial prejudice to his defense; some prejudice is
insufficient,” see Prescott, 345 Wis. 2d 313, ¶13. The decision to sever matters
that are properly joined rests in the circuit court’s discretion. See Salinas, 369
Wis. 2d 9, ¶30.

¶16 Accordingly, we must examine whether the circuit court erroneously
exercised its discretion by not severing the charges against Medina on the ground
that he faced substantial prejudice from joinder. “In evaluating the potential for
prejudice, courts have recognized that, when evidence of the counts sought to be
severed would be admissible in separate trials, the risk of prejudice arising
because of joinder is generally not significant.” Locke, 177 Wis. 2d at 597.

¶17 Admissibility of a person’s other crimes, wrongs, or acts is
determined under WIS. STAT. § 904.04(2), and involves a three-step test. See State
v. Sullivan, 216 Wis. 2d 768, 771, 576 N.W.2d 30 (1998). First, the evidence
must be offered for an acceptable purpose. See id. at 772. Second, the evidence
must be relevant within the meaning of WIS. STAT. § 904.01. See Sullivan, 216
Wis. 2d at 772. If the evidence satisfies those first two steps, the circuit court
must determine whether the evidence should nonetheless be excluded because its

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probative value is substantially outweighed by unfair prejudice or other concerns
enumerated in WIS. STAT. § 904.03. See Sullivan, 216 Wis. 2d at 772-73.

¶18 The first step of the Sullivan analysis requires only that the
proponent of the evidence identify an acceptable purpose for admission to prove
something other than propensity. See State v. Payano, 2009 WI 86, ¶63, 320
Wis. 2d 348, 768 N.W.2d 832. This step is “hardly demanding.” See id. (citation
and emphasis omitted). Here, the circuit court determined that the State’s
purposes in admitting each charge at a trial of the other charges would be to prove
identity and a common scheme or plan. These are acceptable purposes for other
the admission of other acts evidence. See id. & n.12. The evidence therefore
satisfied the first step of the Sullivan analysis.

¶19 The other-acts evidence was also relevant.3 Where, as here, the
purpose of other-acts evidence includes proof of identity, “ʻ[t]he measure of
probative value in assessing relevance is the similarity between the charged
offense and the other act.’ Similarity is demonstrated by showing the ‘nearness of
time, place, and circumstance’ between the other act and the alleged crime.” See
State v. Hammer, 2000 WI 92, ¶¶30-31, 236 Wis. 2d 686, 613 N.W.2d 629
(citations omitted). As we have discussed, each of the acts in this case was near in
time to the others, and each occurred within the same general geographic area.

3
The State supports its argument in regard to relevance with a citation to an unpublished
opinion that the State asserts was recommended for publication. The State’s citation, however, is
to a per curiam opinion that is ineligible for publication. See WIS. STAT. RULE 809.23(4)(b).
The opinion includes a notification that the “opinion will not be published” pursuant to RULE
809.23(1)(b)5., and the opinion includes a standard warning that “per curiam opinions may not be
cited except for the limited purposes specified in [] RULE 809.23(3),” that is, to support claims of
issue or claim preclusion or law of the case. We remind the State that citation to unpublished
opinions may subject the citing party to a penalty. See WIS. STAT. RULES 809.23(3), 809.83(2).

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Each act was also similar to the others, involving a vulnerable woman—a
prostitute, a person in fear, a person alone on the street late at night—lured by a
Hispanic male into a secluded place where he perpetrated a violent penis-to-vagina
assault. To be sure, some differences among the acts also existed. Nonetheless,
because the incidents “share[d] common characteristics,” the evidence was
relevant and had probative value. See id., ¶34.

¶20 As to the third step of the Sullivan analysis, Medina argues that he
was prejudiced because the other-acts evidence had “too much” probative value.
He asserts that “there is the overstrong tendency for the jury to find [him] guilty
because he is apparently some sort of sex fiend who goes around assaulting
prostitutes.” We are not persuaded by this argument. To show prejudice, Medina
must demonstrate that “the proffered evidence has a tendency to influence the
outcome by improper means or ... causes a jury to base its decision on something
other than the established propositions in the case.” See Sullivan, 216 Wis. 2d at
789-90. Medina has not identified an improper factor that caused the jury to
convict him. Rather, he has acknowledged a substantial amount of probative
evidence that he committed a series of violent sexual assaults.

¶21 Accordingly, we conclude that the evidence of each assault would
have been admissible at a trial of the others. Therefore, the decision not to sever
the five charges constituted a proper exercise of the circuit court’s discretion.

¶22 Medina next argues that the State failed to offer any evidence that
corroborated his confession to sexually assaulting K.M.G., and his conviction for
that crime must therefore be reversed. We disagree.

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¶23 A defendant’s confession alone is insufficient to sustain a criminal
conviction. See State v. Bannister, 2007 WI 86, ¶23, 302 Wis. 2d 158, 734
N.W.2d 892. Rather, “‘there must be some corroboration of the confession ... to
produce a confidence in the truth of the confession.’” Id., ¶26 (citation omitted).
The State’s obligation to offer corroborating evidence is mandatory but not
onerous. “‘If there is corroboration of any significant fact, that is sufficient.’” Id.
(citation omitted). A claim that a confession was not corroborated is a challenge
to the sufficiency of the evidence. See id., ¶32. Therefore, we assess the claim by
considering the evidence “in a light most favorable to the verdict.” Id.

¶24 The State’s evidence in regard to the assault of K.M.G. included
testimony from Mejias-Rivera, who described Medina’s confession to the crime.
According to Mejias-Rivera, Medina said that K.M.G. was a prostitute that he
encountered near 23rd Street and Greenfield Avenue, and that she agreed to have
sex with him in his car for a fee. She got in his car and he drove into an alley with
her, where they had penis-to-vagina intercourse. However, she “wanted to leave
because he was taking too long.... He became upset. That’s when he grabbed a
screwdriver, put it against her neck.” Medina said that he then completed the
sexual act.

¶25 As corroboration for the confession, the State presented evidence
that police found a screwdriver under the seat of Medina’s car during a search
following Medina’s arrest. Further, Mejias-Rivera testified that he showed
Medina a picture of that screwdriver, and Medina identified it as the one that he
used when he sexually assaulted K.M.G.

¶26 Medina argues in his brief-in-chief that the corroboration in this case
is insufficient to show that a crime occurred. As the State correctly responds,

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however, the corroboration rule does not require the State to “independently
establish the specific elements of the crime.” See id., ¶31. Indeed,
“‘corroboration ... can be far less than is necessary to establish the crime
independently of the confession.’” See Schultz v. State, 82 Wis. 2d 737, 753, 264
N.W.2d 245 (1978) (citations omitted). Thus, in Bannister, where the defendant
faced a charge of delivery of a controlled substance, evidence of morphine in a
decedent’s body was sufficient to corroborate the defendant’s confession to
delivering morphine to the decedent. See id., 302 Wis. 2d 158, ¶34. Although the
corroborating evidence offered by the State in Bannister did not, standing alone,
show that the defendant committed a crime, the corroboration constituted a
significant fact that permitted confidence in the confession. See id. Similarly
here, the discovery of a screwdriver in Medina’s car is a significant fact that
permitted confidence in his confession to sexually assaulting K.M.G. while armed
with a screwdriver.

¶27 Medina also argues in his brief-in-chief that a screwdriver is too
common an item for its discovery to serve as corroboration. He states that
“probably a majority of persons who own a car keep a screwdriver and other tools
in the car.” Medina makes these claims without an accompanying citation either
to any supporting facts in the record or to any legal authority. We normally do not
consider unsupported propositions. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992). Moreover, Medina’s reply brief fails to respond to
the State’s arguments regarding corroboration and instead ignores the
corroboration question. Accordingly, we conclude that he concedes this issue.
See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750,
738 N.W.2d 578. For all the foregoing reasons, we affirm.

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By the Court.—Judgments affirmed.

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

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