State v. John R. Angelici

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 17, 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. 2019AP2105-CR Cir. Ct. No. 2016CF1086

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN R. ANGELICI,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: JODI L. MEIER, Judge. Affirmed.

Before Reilly, P.J., Gundrum and Davis, 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. 2019AP2105-CR

¶1 PER CURIAM. John R. Angelici appeals from a judgment of
conviction and an order denying his postconviction motion. He contends that the
prosecutor’s use of a complaining witness’s religious beliefs during closing
argument warrants a new trial either because of plain error or in the interests of
justice or, alternatively, that he received ineffective assistance of counsel such that
we should remand for a Machner1 hearing. We disagree and affirm.

¶2 In August 2016, a woman named Dawn drove her 10-year-old
grandson, C.S., to Michigan to visit a relative. During the drive, C.S. asked her “if
gay people go to hell.” Dawn assured him that they did not. C.S. then said he was
not gay but bisexual. When Dawn questioned C.S. about that, C.S. said that
Angelici, who was a family friend, had told him he was gay.

¶3 Alarmed that Angelici was telling her young grandson that he was
gay, Dawn asked C.S. if Angelici ever touched him or “did anything.” She had
previously asked C.S. if anyone had touched him inappropriately, and he had said
no. This time, however, Dawn asked C.S. to swear to God that he would tell her
the truth. C.S. subsequently admitted that Angelici had touched his penis and that
he had touched Angelici’s.

¶4 After returning home from the trip, Dawn reported C.S.’s disclosure
to law enforcement, who arranged a Child Advocacy Center (CAC) interview with
C.S. and began an investigation. During the investigation, another member of
C.S.’s family, R.M., came forward to report that he, too, had been sexually

1
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2019AP2105-CR

assaulted by Angelici when he was younger. According to R.M., the assaults
occurred approximately fifteen years earlier when he was a teenager.

¶5 The State charged Angelici with one count of repeated sexual assault
of a child and one count of first-degree sexual assault of a child with respect to
C.S. It also charged Angelici with one count of repeated sexual assault of a child
with respect to R.M. The matter proceeded to trial.

¶6 At trial, the jury heard from a number of witnesses, including C.S.
and R.M., who detailed the alleged assaults. During C.S.’s testimony, he
recounted his disclosure of the assaults to his grandmother. In response to defense
counsel’s questioning, C.S. acknowledged a fear of Hell if he swore to God and
lied:

[Defense counsel]: Okay. And do you remember you had
a conversation with [your grandmother] on the way up
really pretty early in the morning and there was—that she
was asking you things?

[C.S.]: Yeah, she was asking—well, she was like talking—
well, we were talking about like God and like if you swear
to God and you break that then you go to hell or stuff like
that because I’m terrified to go to hell. And then—

[Defense counsel]: Okay.

[C.S.]: —that’s about it.

¶7 When defense counsel asked C.S. whether he and his grandmother
had discussed Angelici, C.S. explained, “[a]nd then that’s when I—well, she asked
me like is [Angelici] molesting you and I said no. And she’s like do you swear to
God and I’m like I can’t do that so I told her the truth.” Defense counsel did not
object to this testimony.

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No. 2019AP2105-CR

¶8 In her closing argument, the prosecutor revisited the subject of
C.S.’s disclosure via the CAC interview, which had been entered into evidence.
The prosecutor stated:

Remember the CAC interview, the very first one that [C.S.]
did? [C.S.] explained in that interview that Dawn asked if
[Angelici] was touching him, and [C.S.] said that he told
her no. And then [C.S.] said that his grandma said, swear
to God? And then [C.S.] says on that CAC interview, I
can’t do that, so I finally spilled the beans.

The truth is important to [C.S.]. Swear to God changes
everything for him when his grandma said that. He knows
what a lie is. He knows how important it is to tell the truth.
He knows that lies have consequences, that they can change
everything. And now his grandma was asking him to swear
to God.

And for a 10 year-old child keeping a secret of sexual
abuse, that made all the difference.

¶9 Later on in closing argument, the prosecutor discussed the concepts
of reasonable doubt and witness credibility, referencing C.S.’s testimony about his
fear of Hell:

And so beyond a reasonable doubt isn’t a hundred percent
sure. There has to be a reason for the doubt. It is a doubt
for which a reason can be given. And critically, that reason
has to be based on the evidence. We know why the
defendant would lie. Why is [R.M.] lying? And not just
[R.M.], there’s two victims here. Why are [R.M.] and
[C.S.] both lying? When people lie, there is a reason. The
bigger the lie, typically the bigger the reason, and this
would be a huge lie, the kind of lie that [C.S.] would be
afraid of going to hell for.

Remember, he testified he’s terrified of going to hell.

Again, defense counsel did not object.

¶10 Ultimately, the jury returned guilty verdicts to the charges of first-
degree sexual assault of C.S. and repeated sexual assault of R.M. It returned a not

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No. 2019AP2105-CR

guilty verdict to the charge of repeated sexual assault of C.S. The circuit court
imposed an aggregate sentence of 36 years of initial confinement and 20 years of
extended supervision.

¶11 Angelici filed a postconviction motion for relief. In it, he accused
the prosecutor of improperly using C.S.’s religious beliefs during closing
argument to bolster credibility, contrary to WIS. STAT. RULE 906.10 (2019-20).2
The circuit court denied the motion without an evidentiary hearing. This appeal
follows.

¶12 On appeal, Angelici renews his complaint regarding the statements
made in the prosecutor’s closing argument. Because he forfeited the right to raise
the issue directly, he seeks relief under any of three grounds: plain error,
ineffective assistance of counsel, or interests of justice. We consider each one in
turn.

¶13 Plain error is “‘error so fundamental that a new trial or other relief
must be granted even though the action was not objected to at the time.’” State v.
Lammers, 2009 WI App 136, ¶12, 321 Wis. 2d 376, 773 N.W.2d 463 (citation
omitted). The error must be “‘obvious and substantial,’” and courts should use the
doctrine sparingly. Id. The existence of plain error will turn on the facts of a
particular case. Id., ¶13.

2
WISCONSIN STAT. RULE 906.10 provides, “Evidence of the beliefs or opinions of a
witness on matters of religion is not admissible for the purpose of showing that by reason of their
nature the witness’s credibility is impaired or enhanced.” All references to the Wisconsin
Statutes are to the 2019-20 version.

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No. 2019AP2105-CR

¶14 Here, we are not persuaded that the prosecutor’s statements
amounted to plain error. To begin, the statements were a negligible part of the
prosecutor’s closing argument, which spanned 32 pages of trial transcript.
Moreover, they concerned evidence that was properly admitted to show how C.S.
went from denying that he had been touched inappropriately to then claiming that
Angelici had done so. The prosecutor was entitled to detail and comment on
evidence presented at trial. State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784
(1979).

¶15 On these facts, we view the prosecutor’s statements as too attenuated
to constitute a violation of WIS. STAT. RULE 906.10. This was not a case like
State v. Bolen, 219 W. Va. 236, 632 S.E.2d 922 (2006) where the prosecution
offered evidence of the complaining witness’s religious beliefs and repeatedly
referenced them in order to bolster his credibility.3 Indeed, C.S.’s religious beliefs
3
In State v. Bolen, 219 W. Va. 236, 632 S.E.2d 922 (2006), which also involved the
alleged sexual assault of a child, the prosecutor presented evidence of the complaining witness’s
church attendance and missionary activities. Id. at 240. In opening statement, the prosecutor
repeatedly referred to the witness’ “spiritual commitment” and desire to “get himself right with
Christ.” Id. at 239. Meanwhile, in closing argument, the prosecutor made such statements as:

The verdict really shouldn’t be guilty or not guilty. It should be,
“We believe [the complaining witness], seven or eight years
old,” or “[The complaining witness] is a liar,” and under the
principles of his church, a person who said, “I wanted to take up
my cross for Christ” would bear the responsibility of lying to
God and to man. That’s your decision.

And then:

He is not telling the truth because he wants to come in here and
tell twelve people of a perverse act performed on him by a
perverse person ten years ago. He is telling it because it’s
God’s commandment and the consequences of that brings it
here.

And finally:
(continued)

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No. 2019AP2105-CR

were only disclosed during defense counsel’s questioning. The prosecutor’s
subsequent reference to them in closing argument did not improperly enhance
C.S.’s credibility. The jury’s split verdicts on the charges relating to C.S. reflect
that reality.

¶16 Absent a violation of WIS. STAT. RULE 906.10, trial counsel cannot
be faulted for failing to object to the prosecutor’s statements. See State v. Wheat,
2002 WI App 153, ¶30, 256 Wis. 2d 270, 647 N.W.2d 441 (defense counsel not
ineffective for failing to bring meritless motion). Accordingly, we reject
Angelici’s request to remand the matter for a Machner hearing on his claim of
ineffective assistance of counsel.

¶17 Finally, we exercise our discretionary power to grant a new trial in
the interests of justice infrequently and judiciously. State v. Ray, 166 Wis. 2d
855, 874, 481 N.W.2d 288 (Ct. App. 1992). We have already determined that the
prosecutor’s statements did not amount to plain error or support a claim of
ineffective assistance of counsel. We similarly conclude that they did not prevent
the real controversy from being tried. See WIS. STAT. § 752.35.

Your duty is to find out in your mind as a body to deliberate, is
[the complaining witness] telling the truth or is [the complaining
witness] a liar who is going to Hell? And I tell you, Ladies and
Gentlemen of the Jury, he is carrying his cross every day and he
will for the rest of his life.

Id. at 240 (emphasis in original). The reviewing court found that the circuit court had committed
plain error by allowing such evidence/comments. Id. at 242.

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No. 2019AP2105-CR

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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