State v. Tashard Javon Black

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.
January 25, 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. 2020AP1066-CR Cir. Ct. No. 2017CF2842

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TASHARD JAVON BLACK,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. KREMERS and JEAN M. KIES, Judges.
Affirmed.

Before Donald, 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. 2020AP1066-CR

¶1 PER CURIAM. Tashard Javon Black appeals a judgment of
conviction and an order denying postconviction relief.1 A jury found him guilty of
two counts of physical abuse of a child and one count of child neglect. He claims
that the State presented insufficient evidence to support the conviction for child
neglect and that a new factor warrants a modification of his three sentences. We
reject his claims and affirm.

Background

¶2 On June 10, 2017, K.P. brought her eight-week-old son, Z.B., to the
hospital several hours after he was scalded by hot water. A physician diagnosed
Z.B. with burns over his entire face, extending into his ears and onto his scalp. He
also had burns on his lower abdomen, penis, and scrotum. A further examination
revealed that he had multiple fractured ribs and a fractured clavicle that were all in
the process of healing.

¶3 Black, K.P.’s live-in boyfriend, gave several statements to police
regarding Z.B.’s injuries. As relevant here, Black acknowledged that he was not
Z.B.’s biological father but he felt that K.P. and her infant were his family and his
responsibility. He admitted that on June 10, 2017, he gave Z.B. a bath and held
his face and genitals under hot water because he was crying. Black also admitted
that he and K.P. delayed seeking any medical treatment for Z.B. after the scalding

1
The Honorable Jeffrey A. Kremers presided over the trial and sentencing proceedings
in this matter and entered the judgment of conviction. We refer to Judge Kremers both as the trial
court and as the sentencing court. The Honorable Jean Marie Kies presided over the
postconviction proceedings and entered the order denying postconviction relief. We refer to
Judge Kies as the circuit court.

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No. 2020AP1066-CR

although the infant had visible injuries. Black further admitted that in early May
2017, he became frustrated with Z.B. and squeezed him too hard.

¶4 The State charged Black with two counts of physical abuse of a
child, one based on the bone fractures that Z.B. sustained in May 2017, and the
other based on the burns that Z.B. sustained on June 10, 2017. The State also
charged Black, as a party to a crime, with one count of child neglect based on the
alleged delay in seeking medical treatment for Z.B.’s burns on June 10, 2017.

¶5 The case proceeded to a jury trial. The jury heard testimony from a
physician regarding the nature of Z.B.’s injuries, and the jury heard Black’s
recorded statements to police. Black did not testify or present any evidence. His
theory of defense was that Z.B.’s injuries occurred accidently. The jury found
Black guilty on all counts.

¶6 At sentencing, the State sought a seventeen-year term of
imprisonment and in support emphasized the gravity of Z.B.’s injuries, Black’s
delay in seeking treatment for those injuries, and Black’s refusal to fully embrace
his responsibility for the harm that Z.B. suffered. Black sought a term of
probation, citing his remorse and horrific childhood. He explained that he had
suffered at the hands of an abusive and neglectful mother and then was placed in
foster care. He said that his childhood trauma had led to a variety of mental health
problems, including psychoses and post-traumatic stress disorder, and that he had
been prescribed medication that ultimately proved insufficient to control his
conditions. Black reminded the trial court that he had no prior criminal record,
and he urged the trial court to view him primarily as a person in need of treatment
for mental health disorders.

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No. 2020AP1066-CR

¶7 In response to the parties’ sentencing arguments, the trial court
acknowledged Black’s difficult childhood and his lack of a criminal record. The
trial court found, however, that “all those really terrible things that happened in
[Black’s] life, the way [he] grew up, the foster family [he] went through, and
everything else done to [him,] ... all of those things have, in [the trial court’s] view
actually nothing to do with what [Black] did to [Z.B].” The trial court went on to
recognize that Black had treatment needs, but it found that “the seriousness of the
offense[s] just really overwhelms everything else.” The trial court imposed an
aggregate term of fourteen years and six months of imprisonment bifurcated as
eight years and six months of initial confinement and six years of extended
supervision.

¶8 Black moved for postconviction relief, alleging that a new factor
warranted sentence modification. In support of the claim, he submitted a report
from a psychologist summarizing psychological research regarding the effects of
exposure to traumatic childhood experiences. The report reflected that such
exposure increases the risk of juvenile and adult psychopathology, and that “those
who have experienced childhood physical trauma, sexual abuse, and neglect are
significantly more likely to be perpetrators of criminal violence, child physical and
sexual abuse and intimate partner violence.”

¶9 The circuit court denied postconviction relief, concluding that the
psychologist’s report did not constitute a new factor and, even assuming that the
report could be deemed a new factor, the report did not demonstrate that sentence
modification was warranted. Black appeals, renewing his claim for sentence
modification and additionally challenging the sufficiency of the evidence to
support his conviction for neglecting a child.

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No. 2020AP1066-CR

Discussion

¶10 We begin with Black’s challenge to the sufficiency of the evidence
supporting his conviction for child neglect.2 Whether evidence was sufficient to
support a verdict is a question of law that we review de novo. See State v. Smith,
2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. In conducting that review,
“we give deference to the jury’s determination and view the evidence in the light
most favorable to the State.” State v. Long, 2009 WI 36, ¶19, 317 Wis. 2d 92, 765
N.W.2d 557. We reverse only if the evidence is so lacking in probative value and
force that no jury acting reasonably could have concluded, beyond a reasonable
doubt, that the defendant was guilty. See State v. Poellinger, 153 Wis. 2d 493,
507, 451 N.W.2d 752 (1990). “If more than one inference can be drawn from the
evidence, we must adopt the inference that supports the conviction,” see Long,
317 Wis. 2d 92, ¶19, and we may not overturn the verdict if there is any possibility
that the jury could have drawn the appropriate inferences from the evidence
adduced at trial to find the requisite guilt, see Poellinger, 153 Wis. 2d at 507.

¶11 Our standard of review is the same whether the evidence is direct or
circumstantial. See id. at 501. Convictions may be supported solely by
circumstantial evidence, and we recognize that circumstantial evidence may be as
strong if not “stronger and more satisfactory than direct evidence.” See id.

2
The judgment of conviction reflects that Black stands convicted of child neglect as a
party to a crime. The jury, however, was not instructed on party to a crime liability, and the
jury’s verdict did not include a finding that Black was guilty as a party to a crime. Accordingly,
the jury found that Black committed the crime of child neglect as a direct actor. See State v.
Brown, 2012 WI App 139, ¶14, 345 Wis. 2d 333, 824 N.W.2d 916. Neither Black nor the State,
however, has suggested that the judgment of conviction should be amended. We observe that a
person who directly commits a crime is a party to the crime. See WIS. STAT. § 939.05(1)-(2)(a)
(2019-20). All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1066-CR

¶12 In this case, Black claims that the evidence was insufficient to prove
that he was guilty of neglecting a child in violation of WIS. STAT. § 948.21(1)(b)
(2015-16). Before the jury could find him guilty of that offense, the State was
required to prove beyond a reasonable doubt that: (1) Z.B. was younger than
eighteen years of age; (2) Black was a person responsible for Z.B.’s welfare; (3)
Black intentionally contributed to the neglect of Z.B.; and (4) Z.B. suffered bodily
harm as a consequence of Black’s intentionally contributing to Z.B.’s neglect. See
id.; see also WIS JI—CRIMINAL 2150A (May 2009).3 On appeal, Black disputes
only whether the State proved that he was a person responsible for Z.B.’s welfare.
Accordingly, we do not further discuss the other three elements. See Schlieper v.
DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (explaining that a
party cannot complain if we take an undisputed proposition as conceded).

¶13 A person is responsible for a child’s welfare within the meaning of
WIS. STAT. § 948.21(1)(b) (2015-16), if, as relevant here, the person is either
legally responsible for the child’s welfare or “employed by one legally responsible
for the child’s welfare to exercise temporary control or care for the child.” See
WIS. STAT. § 948.01(3). The parties agree that Z.B.’s mother, K.P., was legally
responsible for Z.B., and that Black’s status as K.P.’s live-in boyfriend did not
invest Black with legal responsibility for Z.B.’s welfare. The parties further agree
that the State was therefore required to prove that Black was “employed by” K.P.
to care for Z.B. See id.

3
The State’s response brief describes the elements of child neglect as they are set forth
in WIS JI—CRIMINAL 2150 (July 2019). That instruction was approved by the Criminal Jury
Instructions Committee in December 2018, to reflect amendments to WIS. STAT. § 948.21 that
took effect on April 18, 2018. See WIS JI—CRIMINAL 2150 cmt (July 2019). Neither the
amended statute nor the 2019 jury instruction was in effect in 2017 when Black was charged with
and tried for child neglect.

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No. 2020AP1066-CR

¶14 The purpose of WIS. STAT. § 948.01(3) is to “combat[] the evils of
child abuse.” See State v. Sostre, 198 Wis. 2d 409, 415, 542 N.W.2d 774 (1996).
In Sostre, our supreme court determined that it must liberally construe the
statutory phrase “employed by” to effect the legislature’s implicit intent “to
‘broadly define the category of persons responsible for a child’s welfare.’” Id.
(citation omitted). The Sostre court therefore held that a “live-in boyfriend, who
is a volunteer caretaker of a child, is a ‘person responsible for the welfare of a
child’ ... if he was used by the legal guardian of the child as a caretaker for the
child.” Id. at 411 (brackets and ellipsis omitted).

¶15 In this case, the State largely relied on Black’s custodial statements
to prove that Black was “employed by” K.P. as a caretaker for Z.B. In those
statements, Black admitted that he felt responsible for Z.B., and Black repeatedly
described Z.B. as a member of Black’s family. Black further admitted that he
helped K.P. to care for Z.B. He said that on June 10, 2017, he told K.P. that he
was going to give Z.B. a bath to cool him down after K.P. said that she was “going
to sleep [and was] not trying to hear this crying.”

¶16 Black argues that his admissions are insufficient to demonstrate his
responsibility for Z.B.’s welfare because K.P. was in the home at the time that
Black carried out caretaking activities. According to Black, if K.P. had been
absent from the home at that time, then “Black’s statements to police about his
relationship with Z.B. combined with the fact that [Black] was caring for Z.B.
exclusively would likely have been sufficient circumstantial evidence to prove that
[] Black was a person employed by K.P. to exercise temporary care or control of
Z.B.” We do not agree that K.P.’s presence or absence is determinative, or even
particularly significant.

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No. 2020AP1066-CR

¶17 In Sostre, the defendant lived with his girlfriend and her young son.
Id. at 412. The child’s mother—his legal guardian—“left [the child] in the
defendant’s exclusive care” for several hours. See id. Our supreme court
concluded that “[u]nder these facts, it seems clear that the mother made use of the
services of the defendant ... in order to take care of her child when it was
necessary for her to be away.” Id. at 415. Thus, Sostre describes the
circumstances under which the legal guardian in that case employed a live-in
boyfriend to provide child care. Those circumstances included the legal
guardian’s absence from the home. Nothing in Sostre, however, limits its
applicability to circumstances where the legal guardian is absent. Rather, Sostre
applies if a live-in boyfriend was a volunteer caretaker who “was used by the legal
guardian of the child as a caretaker for the child.” See id. at 411.

¶18 Here, Black admitted to police that he helped K.P. to care for Z.B.
and felt responsible for doing so. He also admitted telling K.P. that he was going
to give Z.B. a bath to cool him down after K.P. said that she was going to sleep.
The jury could reasonably infer from Black’s admissions that Black was a
volunteer caretaker that K.P. used to fulfill her caretaker duties. The evidence was
therefore sufficient to prove that Black was responsible for Z.B.’s welfare within
the meaning of WIS. STAT. § 948.21(1)(b) (2015-16). We reject Black’s contrary
contentions.

¶19 We turn to the claim that a new factor warrants modification of
Black’s sentences. A new factor for purposes of sentence modification is “a fact
or set of facts highly relevant to the imposition of sentence, but not known to the
trial judge at the time of original sentencing, either because it was not then in
existence or because ... it was unknowingly overlooked by all of the parties.” See
State v. Harbor, 2011 WI 28, ¶40, 333 Wis. 2d 53, 797 N.W.2d 828 (citation

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No. 2020AP1066-CR

omitted). A circuit court has inherent authority to modify a defendant’s sentence
upon a showing of a new factor. See id., ¶35. To prevail, the defendant must
satisfy a two-prong test. See id., ¶36. First, the defendant must demonstrate by
clear and convincing evidence that a new factor exists. See id. This presents a
question of law for our de novo review. See id., ¶¶33, 36. Second, the defendant
must demonstrate that the new factor justifies sentence modification. See id., ¶37.
This determination rests in the circuit court’s discretion. See id. If a defendant
fails to satisfy one prong of the test, a court need not address the other. See id.,
¶38.

¶20 Black asserts that a report from a psychologist, Dr. Nancy Elliott, is
a new factor here. The report summarizes current psychological research, which
shows that adverse childhood experiences are linked to adverse physical and
mental health outcomes and increase the rate of criminal justice involvement.
Black contends that the report is highly relevant because he had a traumatic
childhood that included parental abuse and neglect. Further, he says, the “research
suggests that ‘consideration of the developmental context of those involved in the
criminal justice system is necessary before evaluating culpability.’” In his view,
the sentencing court overlooked this information and wrongly discounted the
impact of his childhood experiences when fashioning his sentences.

¶21 The circuit court correctly concluded that Black did not present a
new factor. As the circuit court explained, the psychologist’s report “offers a
general link between childhood trauma and adult criminality. [Dr. Elliott] does
not render an opinion that the defendant’s childhood experiences precipitated the
crimes for which he was sentenced in this case.” Black therefore did not show that
the report was “highly relevant” to the sentencing decision; to the contrary, he
failed to show that the information in the report necessarily applied to him.

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No. 2020AP1066-CR

Moreover, the report offers only an opinion regarding the possible significance of
Black’s childhood trauma and hardships, which were discussed at sentencing. An
expert’s opinion based on previously known or knowable facts is not a new factor
because such an opinion is not itself a “fact or set of facts” that the sentencing
court overlooked. See State v. Sobonya, 2015 WI App 86, ¶7, 365 Wis. 2d 559,
872 N.W.2d 134; see also State v. Longmire, 2004 WI App 90, ¶46, 272 Wis. 2d
759, 681 N.W.2d 534 (concluding that an opinion about correctional policy is not
a fact or set of facts relevant to sentencing).

¶22 Moreover, assuming for the sake of argument that Dr. Elliott’s report
was a “new factor,” the circuit court properly exercised its discretion in
concluding that the report did not warrant a sentence modification. The
sentencing court was fully aware that Black had survived a miserable childhood
but found that the horrific crimes he committed against an eight-week-old infant
“outweighed everything else” and required the eight-and-one-half years of initial
confinement and six years of extended supervision imposed. In the postconviction
proceedings, the circuit court similarly rejected the suggestion that Black’s
background counterbalanced the gravity of his criminal conduct. Moreover, the
circuit court concluded that Dr. Elliott’s report spotlighted the ongoing risk that
Black poses and further demonstrated the need for a sentence that would “protect
the community and break the cycle of abuse.” Therefore, the circuit court
reasonably concluded that “modifying [Black’s] sentence[s] ... would unduly
depreciate the seriousness of the offenses and undermine the sentencing goals of
punishment, deterrence and community protection.”

¶23 The postconviction order reflects a proper exercise of discretion.
The circuit court assessed Black’s claim for sentence modification in light of
proper factors and made no errors of law. See Harbor, 333 Wis. 2d 53, ¶63.

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No. 2020AP1066-CR

Accordingly, we reject Black’s challenge to the decision denying sentence
modification based on an alleged new factor. For all the foregoing reasons, we
affirm.

By the Court.—Judgment and order affirmed.

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

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