State v. Aaron S. Lawrence

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.
July 14, 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. 2019AP1935-CR Cir. Ct. No. 2017CF724

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

AARON S. LAWRENCE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: FAYE M. FLANCHER, 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. 2019AP1935-CR

¶1 PER CURIAM. Aaron S. Lawrence appeals from a judgment
convicting him of one count of second-degree sexual assault of child and an order
denying his postconviction motion. He contends that (1) his right to confront his
accuser was violated by the introduction of a video recording of the victim’s
forensic interview, (2) his due process rights were violated at sentencing, (3) he
was deprived of his right to present a defense at trial, and (4) trial counsel
provided ineffective assistance at various stages of the proceedings. For the
reasons that follow, we reject each of Lawrence’s claims and affirm the judgment
and order.

BACKGROUND

¶2 Lawrence was charged with three counts of second-degree sexual
assault of a child for sexually assaulting C.M., the fifteen-year-old daughter of his
live-in girlfriend, S.M. The complaint alleged that Lawrence assaulted C.M. in
their backyard on May 27, 2017 (count one), and again in their living room on
May 29, 2017, where he directed her to perform oral sex on him (count two) and
then performed oral sex on her (count three).

¶3 On the day of trial, the State extended a settlement offer that would
require Lawrence to plead guilty to any one count in exchange for a
recommendation of fifteen years of initial confinement followed by ten years of
extended supervision. Following a Ludwig1 colloquy, Lawrence rejected the
offer.

1
State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985).

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No. 2019AP1935-CR

¶4 The case proceeded to trial, and the State called five witnesses. A
school social worker testified that C.M. came to her office on the morning of
May 31, 2017, and told her that Lawrence had sexually assaulted her by telling her
to perform oral sex on him and then “took off her underwear and performed oral
sex on her.” Police were notified of C.M.’s report.

¶5 Heather Jensen testified that she conducted a forensic interview of
C.M. at the Child Advocacy Center (CAC). A video recording of the interview
was played for the jury without objection.

¶6 After the CAC video was played for the jury, C.M. took the stand.
In pertinent part, she testified that she and Lawrence had oral sex and that she
could identify a scar on his penis. After the assault was over, she “kind of
collapsed” and “tossed the wipe” that Lawrence had given her to “clean [herself]
up with in the corner.” She testified that her mother and grandmother had
pressured her to change her testimony and called her a liar. C.M. identified items
of clothing that the police had collected from the family bathroom as the clothes
she wore during the May 29 assaults.

¶7 Trial counsel cross-examined C.M. in detail about the alleged
assaults and about her relationship with Lawrence. C.M. admitted that Lawrence
was the “disciplinarian,” that he had “smacked [her] and made [her] lip bleed”
about two weeks before the sexual assaults and that she was “angry” with him
before she reported the assaults because he had banned her from having a
boyfriend who “was the only person that I found a connection with at the time.”
She acknowledged that she did not tell her mother about the assaults and that she
knew her school social worker was required to report the assaults to police.

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¶8 A state crime lab analyst testified that she found DNA consistent
with Lawrence on a baby wipe, on C.M.’s underwear, and on C.M.’s jeans.
Amalyse was detected on the wipe, the underwear, and the jeans “indicating the
possible presence of saliva.” Amalyse “is presumptively saliva” “until somebody
proves that it’s something other than saliva.”

¶9 Sergeant Joseph Spaulding testified that he investigated C.M.’s
sexual assault complaint and arrested Lawrence. After waiving his Miranda2
rights, Lawrence admitted that he had been alone with C.M. on the days the
assaults allegedly occurred, but he denied having any sexual contact with C.M.

¶10 The State rested and the jury was excused for the day. Trial counsel
told the circuit court that he expected to call S.M. (C.M.’s mother) as a witness.
The prosecutor responded that she had “concern about [S.M.] testifying” because
S.M. had previously shown up at her office “and regaled for 45 minutes” on a
“character assassination” of C.M. The prosecutor noted that S.M. “was not
present at any of the sexual assaults” and asked the court “to warn [S.M.] she’s not
allowed to call [C.M.] a liar.” The prosecutor stated that if S.M. inappropriately
attacked C.M.’s character, she would “definitely ask[ ] for a mistrial.”

¶11 Trial counsel made an offer of proof that S.M.’s testimony would
include her “recollections” about the days of the alleged assaults and that C.M.
made “no disclosures to her.” Counsel admitted that he was concerned that he
could not “control her” testimony. He said that he had contemplated having S.M.
testify about the scar on Lawrence’s genitals, but was “really leery” because he

2
Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2019AP1935-CR

was aware “she wants to go into a lot more detail about the scar than I would
necessarily want.” Counsel explained that he was “trying to take everybody’s
concerns into” consideration and was “trying not to (a) mistry the case and (b) not
have a problem later like why didn’t I call her.” The circuit court said it would
conduct a colloquy with S.M. before she testified to “let her know that any
character assassination upon her daughter will absolutely not be tolerated” and
could result in her being found in contempt and “taken into custody immediately.”

¶12 The next day, trial counsel informed the circuit court that, after
discussing with Lawrence “every possible benefit” of having S.M. testify, “and
weigh[ing] that against any detriments” and “problems that it could cause, as well
as with opening doors or things along that line,” the defense had decided not to
call S.M. as a witness. Lawrence waived his right to testify and the defense rested.

¶13 The jury found Lawrence not guilty of counts one and two, but
guilty of count three. At sentencing, the prosecutor recommended the maximum,
noting that the jury’s verdict on count three was supported by DNA evidence, that
C.M. had “stood up” to “pressure” from her mother and grandmother to “recant,”
that Lawrence had a long criminal history, and that he failed to take responsibility
for his actions, instead blaming C.M. Lawrence requested that the circuit court
withhold sentence and order probation. The court imposed the maximum sentence
of forty years, with twenty-five years of initial confinement followed by fifteen
years of extended supervision, explaining that “anything else” would unduly
minimize this “horrific crime.”

¶14 Lawrence filed a motion for postconviction relief, alleging in
relevant part four claims: (1) he was denied his right to confront witnesses when
the court allowed the CAC video into evidence “without having conducted the

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No. 2019AP1935-CR

statutorily required admissibility hearing or providing timely notice,” (2) he was
denied due process “when the State requested and the Court imposed an
unreasonable trial penalty” at sentencing, (3) he was denied his right to present a
defense when the court and the State “intimidated [S.M.] into not testifying at
trial,” and (4) he was denied the effective assistance of counsel. Following an
evidentiary Machner3 hearing, the circuit court denied the postconviction motion.
Lawrence appeals.

DISCUSSION

The circuit court properly admitted the video recorded interview of C.M. at trial.

¶15 The State filed a notice of intent to introduce the video of C.M.’s
forensic interview under WIS. STAT. § 908.08. It is undisputed that the notice was
filed late, after the statutory deadline. At a hearing before the circuit court, the
State presented its offer of proof. Trial counsel did not object to the video’s
admissibility and the court ruled that the video could be shown to the jury so long
as C.M. was “available for cross-examination.” Lawrence argues that allowing the
jury to view the video violated his constitutional right to confront his accuser. We
reject his claim for two reasons.

¶16 First, as argued in the State’s brief, Lawrence forfeited this claim by
failing to object at trial. State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761
N.W.2d 612. Though forfeiture is a doctrine of judicial administration, we have
no inclination to overlook it where, as here, trial counsel made a strategic decision

3
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979) (where a
defendant claims he or she received the ineffective assistance of trial counsel, a postconviction
hearing “is a prerequisite … on appeal to preserve the testimony of trial counsel”).

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No. 2019AP1935-CR

not to object. See State v. Gary M.B., 2004 WI 33, ¶11, 270 Wis. 2d 62, 676
N.W.2d 475 (“A defendant cannot create his own error by deliberate choice of
strategy and then ask to receive benefit from that error on appeal.”) (citation
omitted). As counsel explained at the postconviction hearing, he affirmatively
decided not to object to the video’s admission because it furthered the defense’s
strategy of portraying C.M. as “promiscuous,” allowed him to more effectively
cross-examine C.M., and opened the door to otherwise unavailable areas of
questioning.

¶17 Second, Lawrence’s confrontation argument fails on the merits. It is
well established that the admission of a child’s statement under WIS. STAT.
§ 908.08 does not violate a defendant’s right to confrontation so long as the child-
victim is available for cross-examination. State v. James, 2005 WI App 188, ¶¶9-
11, 285 Wis. 2d 783, 703 N.W.2d 727. There is no dispute that C.M. testified at
trial and, as stated by the postconviction court, “was subjected to a very rigorous
cross-examination” by trial counsel. As such, the admission of the video does not
implicate the confrontation clause.

¶18 We reject Lawrence’s efforts to cast as a constitutional confrontation
violation the circuit court’s alleged failure to strictly comply with the provisions of
WIS. STAT. § 908.08. His complaints about untimely notice and the sufficiency of
the court’s findings at the admissibility hearing do not alter the fact that C.M.
testified in person at trial.

Lawrence’s due process rights were not violated at sentencing.

¶19 Lawrence contends that he was denied due process because the
circuit court sentenced him more harshly for exercising his right to a jury trial.
Kubart v. State, 70 Wis. 2d 94, 97, 233 N.W.2d 404 (1975) (“A defendant cannot

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No. 2019AP1935-CR

receive a harsher sentence solely because he has availed himself of the important
constitutional right of trial by jury.”).

¶20 Sentencing decisions are within the circuit court’s discretion and this
Court’s review of that sentence is limited to whether the court erroneously
exercised that discretion. State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678
N.W.2d 197. A circuit court erroneously exercises its discretion if it actually
relies on irrelevant or improper factors. State v. Harris, 2010 WI 79, ¶66, 326
Wis. 2d 685, 786 N.W.2d 409. To establish error, it is the defendant’s burden to
prove by clear and convincing evidence that the sentencing court relied on an
improper factor. Id.

¶21 We find no merit to Lawrence’s argument. There is no evidence in
the record that the circuit court imposed a harsher sentence solely because
Lawrence exercised his constitutional right to a jury trial. Indeed, the sentencing
court never even mentioned Lawrence’s decision to proceed to trial. Rather, the
court properly focused on the primary sentencing factors including the severity of
the crime, Lawrence’s character, and the need to protect the community. Id., ¶28.
See also Gallion, 270 Wis. 2d 535, ¶¶39-46. The court described the crime as
severe, noting the horrific effect on C.M., who had considered Lawrence a “father
figure.” In terms of character, the court considered that despite inculpatory DNA
evidence, the PSI writer reported that Lawrence “denied the offense completely,”
and blamed C.M. for “trying to separate him and his fiance” and for being “overly
mature and overly sexualized for her age.” The court found Lawrence’s attitude
toward the offense particularly troubling in light of his long criminal history,
which included an adjudication for first-degree sexual assault of a child who
Lawrence referred to as “a crock of shit.” Because the conviction for assaulting
C.M. was Lawrence’s “second involvement in the criminal justice system for a

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No. 2019AP1935-CR

sexually deviant offense” involving a child, the court found that he was “in clear
need of sex offender treatment,” and posed “a threat to the community.” Taking
into consideration all of the sentencing factors, the court determined that the
maximum sentence was warranted to avoid minimizing this “horrific crime.” This
constitutes a proper exercise of discretion.

¶22 Lawrence acknowledges that the circuit court considered the Gallion
factors at sentencing and does not allege that the sentencing court referenced his
decision to go to trial. Instead, he makes the somewhat convoluted argument that
the State recommended the maximum penalty because Lawrence elected to
proceed to trial, and that because the court actually imposed the maximum, “the
only reasonable explanation” for its sentence is that it “also chose to punish
Lawrence for exercising the right to jury trial.” We are not persuaded.

¶23 First, the transcript indicates that the State’s sentencing
recommendation was based on the severity of the crime, not on punishing
Lawrence for his exercise of a constitutional right. The prosecutor emphasized the
evidence of Lawrence’s DNA on C.M.’s clothes and the wipes that C.M. testified
he told her to use to clean up after performing oral sex, and described the
detrimental effects of the assault on C.M., including her estrangement from her
family. As the prosecutor further explained at the postconviction hearing, she also
considered the maximum sentence appropriate based on details that came out in
C.M.’s trial testimony and because having to testify and relive the events was
difficult for C.M. This is entirely proper and distinguishable from the concept of
punishing Lawrence for exercising a constitutional right.

¶24 Second, as noted by the postconviction court, the sentencing
transcript “speaks for itself” and reveals that the court considered the trial

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No. 2019AP1935-CR

testimony, PSI and arguments of counsel, and addressed all of the required
Gallion factors. To the extent the sentencing court discussed Lawrence’s refusal
to admit guilt or accept responsibility, the comments were made in the context of
discussing the proper sentencing factors and did not suggest that the court was
imposing a harsher penalty to punish Lawrence for exercising a constitutional
right.

Lawrence was not deprived of his right to present a defense.

¶25 Lawrence argues that his right to present a defense was violated
because the circuit court “improperly restricted” S.M.’s testimony and the
prosecutor “intimidated Lawrence into not calling her as a witness.” We disagree.

¶26 Lawrence forfeited this claim by not objecting at trial. See Ndina,
315 Wis. 2d 653, ¶30. Rather, trial counsel informed the circuit court that in
consultation with Lawrence, the defense had decided not to call S.M. as a witness
because of concerns that she would not testify within the bounds of the rules of
evidence and because her testimony was unnecessary. As a result, the circuit court
never actually ruled on the permissible scope of S.M.’s testimony.

¶27 For similar reasons, Lawrence’s arguments fail on the merits.
Again, the circuit court never actually restricted the scope of S.M.’s testimony
because trial counsel decided not to call her as a witness. To the extent the
prosecutor argued and the court implicitly ruled that S.M. could not permissibly
assault C.M.’s character, this was a proper evidentiary ruling.

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No. 2019AP1935-CR

Trial counsel did not provide ineffective assistance of counsel.

¶28 As he argued postconviction, Lawrence maintains that trial counsel
provided ineffective assistance in three areas: pretrial, during trial, and posttrial.
The test for ineffective assistance of counsel has two prongs: (1) a demonstration
that counsel’s performance was deficient and (2) a demonstration that the deficient
performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,
687 (1984). To establish deficient performance, a defendant must show specific
acts or omissions of counsel that were “outside the wide range of professionally
competent assistance.” Id. at 690. To satisfy the prejudice prong, the defendant
must demonstrate that there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.

¶29 Whether counsel’s actions were deficient or prejudicial is a mixed
question of law and fact. Id. at 698. The circuit court’s findings of fact will not
be reversed unless they are clearly erroneous. State v. Pitsch, 124 Wis. 2d 628,
634, 369 N.W.2d 711 (1985). However, whether counsel’s conduct violated the
defendant’s right to effective assistance of counsel is a legal determination, which
this court decides de novo. Id. We need not address both prongs of the test if the
defendant fails to make a sufficient showing on either one. Strickland, 466 U.S. at
697.

¶30 Lawrence claims that counsel performed deficiently before trial by
failing to adequately communicate with him concerning trial strategy and
preparation, including whether to object to the CAC video. He also suggests that,
had trial counsel spent more time with Lawrence and S.M., he would have realized

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No. 2019AP1935-CR

S.M.’s value as an impeachment witness and made a different offer of proof that
“rebutted the State’s intimidation tactics.”

¶31 We decide this claim on the prejudice prong and conclude that
Lawrence has not shown a reasonable likelihood that the jury would have
acquitted him on count three absent these alleged deficiencies. As found by the
postconviction court, the video enabled trial counsel to vigorously cross-examine
C.M. “about things that would have been prohibited had the [video] not been
introduced.” Trial counsel testified that he wanted the jury to see the video and
was pleasantly surprised when the State sought its admission. Counsel explained
that the video supported the “entire defense” with C.M.’s admissions of “multiple,
multiple bad acts,” as well as “prior sexual acts” and “promiscuousness,” and that
without the video, “the majority of [his] cross[-]examination would have been
rendered moot.” As to the claim that further investigation would have led trial
counsel to call S.M. as a witness and resulted in an acquittal on count three,
Lawrence’s arguments are speculative and conclusory. The issue of S.M.’s
testimony was thoroughly hashed out on the record at Lawrence’s trial and his
postconviction hearing. Counsel explained that the low probative value of S.M.’s
testimony along with her credibility problems and stake in the case led him to
conclude that any benefits of her testimony were outweighed by “the potential bad
things that could happen.” Postconviction, Lawrence did not present any evidence
that would have changed this calculation. He certainly has not shown a reasonable
probability that her testimony would have made a difference in the outcome of the
trial, particularly in light of the DNA evidence supporting count three.

¶32 Next, Lawrence claims that counsel was deficient at trial for “failing
to document the State’s final plea offer on the record” and request a hearing on
this purported offer. Postconviction, Lawrence testified to his belief that after he

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rejected the State’s final plea offer pursuant to the Ludwig colloquy, the State
extended an offer calling for ten years of initial confinement that was not put on
the record. However, both trial counsel and the prosecutor testified that the on-
the-record offer for fifteen years of initial confinement was indeed the State’s final
offer. As such, Lawrence’s claim is directly contradicted by trial counsel, the
prosecutor, and the trial transcript, and trial counsel was not deficient for failing to
place a nonexistent offer on the record.

¶33 Lawrence also asserts that trial counsel provided ineffective
assistance after trial, by not discussing with him the PSI or the defense’s
sentencing recommendation for probation. Lawrence has not shown deficient
performance because the testimony at the postconviction hearing refutes his claim.
Lawrence testified that he received a copy of the PSI a day or two before
sentencing and discussed the PSI’s contents and his sentencing request for
probation with trial counsel. Trial counsel testified that: he met with Lawrence
before sentencing to go over the PSI, Lawrence “maintained his innocence” and
did not want to postpone sentencing, Lawrence told him he had no additions or
corrections to the PSI, counsel told Lawrence “many times” that recommending
probation and time served was “preposterous,” and Lawrence “ordered” him to
request probation.

¶34 Finally, we reject Lawrence’s argument that the cumulative effect of
trial counsel’s alleged errors entitles him to a new trial. We have concluded that
none of Lawrence’s ineffective assistance claims are viable. Whether viewed
separately or together, the acts and omissions complained of do not undermine our
confidence in the outcome of Lawrence’s trial. “Zero plus zero equals zero.”
Mentek v. State, 71 Wis. 2d 799, 809, 238 N.W.2d 752 (1976).

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No. 2019AP1935-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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