State v. Kevin A. Lee

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.
February 10, 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. 2021AP26-CR Cir. Ct. No. 2019CF145

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEVIN A. LEE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: WILLIAM HANRAHAN and MARIO WHITE, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Kloppenburg, 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. 2021AP26-CR

¶1 PER CURIAM. Kevin Lee appeals a judgment of conviction and an
order denying his postconviction motion.1 We affirm.

¶2 At a jury trial, Lee was convicted of one count of first-degree sexual
assault of a child and one count of child enticement. He filed a postconviction
motion that the circuit court denied without an evidentiary hearing.

¶3 On appeal, Lee argues that the circuit court erred by overruling
objections he made to two different portions of the prosecutor’s closing
arguments. Lee argues in the alternative that, if we should conclude that these
objections were not sufficiently preserved, his trial counsel was ineffective in
failing to raise sufficient objections.

¶4 The State does not argue that Lee’s objections at trial were
inadequate to preserve the issues, and we accept that implicit concession.
Accordingly, we need not address Lee’s alternative ineffective of assistance
argument. Therefore, we exclusively address the substance of the argument that
the circuit court should have sustained the two objections to the prosecution’s
closing arguments at trial. We conclude that, even if Lee is correct that the circuit
court erred in these rulings, the State has shown that the errors were harmless. We
first describe the two objections.

¶5 The State’s case was based on the testimony of the victim, who was
ten years old at the time of trial. The State also introduced a transcript of a
forensic interview with the child. In the interview, the child stated that she had

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The Honorable William Hanrahan presided over the jury trial and entered judgment.
The Honorable Mario White denied the postconviction motion.

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No. 2021AP26-CR

placed a bloody paper towel behind her bed when she did not have a menstrual
pad. The child’s mother testified that she found the paper towel and asked the
child whether someone had been touching her, and the child said Lee had. As we
set out further below, the State later appeared to use the paper towel testimony in
argument to claim that the victim was embarrassed by the blood, and also that the
victim incorrectly believed the blood was related to Lee’s assaults, and that she hid
the paper towels because she thought her mother would be hurt by knowing that
Lee was assaulting her.

¶6 The first objection occurred when the prosecutor argued that the jury
should believe testimony that the victim placed a bloody paper towel between her
bed and the wall. The prosecutor asserted that the blood was menstrual blood, and
argued:

For the ladies on the jury, you can use your
common sense and your life experiences. And for those of
you that might have daughters or you know a young child,
when they first get their period, that’s something that’s very
private. They don’t want to share that. It’s scary. They
don’t know what’s going on. So does it make sense that
she would take a bloody paper towel and squish it between
her bed and her wall? Would you do that? Would anybody
do that? I don’t know.

¶7 Lee objected on “golden rule” grounds. The parties agree that it is
improper for a party to ask the jury to place itself in the victim’s shoes, because it
appeals to the jurors’ sympathy for victims. See State v. DeLain, 2004 WI App
79, ¶23, 272 Wis. 2d 356, 679 N.W.2d 562.

¶8 At least on its face, the prosecutor’s argument here was not an
attempt to elicit sympathy for the victim but, instead, asked the jury to judge the
credibility of testimony based on its own “common sense” and “life experiences.”
The prosecutor further asked whether the jurors themselves would have done the

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No. 2021AP26-CR

act that the witness testified about, when the prosecutor said: “So does it make
sense that she would take a bloody paper towel and squish it between her bed and
her wall? Would you do that? Would anybody do that? I don’t know.” We
assume, without deciding, that incidental prejudice arose from this brief statement
in the form of sympathy for the victim.

¶9 Lee’s second objection occurred during the prosecutor’s rebuttal
argument. The prosecutor argued: “Counsel says that … the state has set out
basically to frame poor mister defendant here. That’s offensive. I have an ethical
obligation to not bring a case if I do not believe that I can prove a case beyond a
reasonable doubt.” Lee then objected (without stating a ground), and the circuit
court overruled the objection.

¶10 On appeal, Lee describes the prosecutor as having argued that the
jury should convict because she was doing her ethical duty, and was thus
personally vouching for his guilt. The argument was presented as a response to a
defense argument that the prosecution had framed the defendant, with the
prosecutor responding that it would be unethical for a prosecutor to do that.
However, we assume, without deciding, that it was error for the prosecutor to
mention her ethical obligation or imply her own personal opinion.

¶11 Nevertheless, we are satisfied that these two claimed errors, in the
context of the entire trial including the jury instructions, were harmless. In
criminal cases, if the defendant shows that an error occurred, the State has the
burden of proving that the error was harmless. State v. Sherman, 2008 WI App
57, ¶8, 310 Wis. 2d 248, 750 N.W.2d 500. Whether an error is harmless is a
question of law that we review independently. State v. Beamon, 2013 WI 47, ¶19,
347 Wis. 2d 559, 830 N.W.2d 681. “[T]he standard for evaluating an error’s

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No. 2021AP26-CR

harmlessness is the same whether the error is constitutional, statutory, or
otherwise.” State v. Harvey, 2002 WI 93, ¶40, 254 Wis. 2d 442, 647 N.W.2d 189.

¶12 An error is harmless if the State proves beyond a reasonable doubt
that the error complained of did not contribute to the verdict. State v. Martin,
2012 WI 96, ¶45, 343 Wis. 2d 278, 816 N.W.2d 270. In other words, this court
“must be satisfied, beyond a reasonable doubt, not that the jury could have
convicted the defendant (i.e., sufficient evidence existed to convict the defendant),
but rather that the jury would have arrived at the same verdict had the error not
occurred.” Id., ¶45 (emphasis in original; citations omitted).

¶13 Several non-exhaustive factors assist in our analysis of whether an
error is harmless: (1) “the frequency of the error”; (2) “the importance of the
erroneously admitted evidence”; (3) “the presence or absence of evidence
corroborating or contradicting the erroneously admitted evidence”; (4) “whether
the erroneously admitted evidence duplicates untainted evidence”; (5) “the nature
of the defense”; (6) “the nature of the State’s case”; and (7) “the overall strength
of the State’s case.” Id., ¶46. The above factors were formulated for determining
whether the erroneous admission of evidence was harmless, while here we have
improper argument, but we analyze the factors that are applicable here, adapting
them as necessary.

¶14 The frequency of the errors was low, taking up just a few sentences
of a complete trial. In that context, the importance of the brief moment that we
have assumed produced some degree of jury sympathy is fairly low, as is the brief
mention of the prosecutor’s ethical obligations or personal opinion. The nature of
the defense was that the child falsely told her mother that Lee was assaulting her

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No. 2021AP26-CR

because it diverted her mother’s attention away from the child possibly being in
trouble for putting the paper towels behind the bed.

¶15 As discussed, the nature of the State’s case was based on testimony
by the victim and her mother, together with DNA evidence that was consistent
with, but did not conclusively show, Lee’s DNA being present in the child’s
underpants. Based on that evidence, the State’s case was moderately strong.

¶16 Weighing these factors together, we conclude that the claimed errors
were harmless beyond a reasonable doubt. They consisted of brief moments in a
complete trial in which the jury had an opportunity to judge the credibility of the
child witness for itself. The jury was presented with a moderately strong case by
the State, and the offered defense was not particularly compelling or well
supported by the evidence. We are satisfied that, whatever sympathy for the
victim may have occurred, or prejudice from the prosecutor’s opinions, the jury
would have reached the same result in their absence.2

¶17 The State makes one perplexing argument. It argues that Lee
“improperly invites this Court to review the substance of the trial court’s rulings
on [trial counsel’s] objections …, rather than the postconviction court’s decision
that Lee was not entitled to a hearing on Lee’s ineffective assistance claims.” The
State does not cite any law or otherwise attempt to explain why it would be

2
We also agree with the State’s argument in this appeal that, even assuming that the
arguments were improper, Lee was not prejudiced because the court properly instructed the jury
that the verdict should be based on the evidence and the jury instructions and not on the
attorneys’ arguments. Juries are presumed to follow instructions, see State v. Delgado, 2002 WI
App 38, ¶¶16-18, 250 Wis. 2d 689, 641 N.W.2d 490, and taken in the context of the entire trial,
the instructions rendered harmless any prejudice arising from the assumed improper statements in
the prosecutor’s closing argument.

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No. 2021AP26-CR

improper for us to review the substance of rulings on objections made during trial.
If the closing argument issues were preserved by objection at the time, they may
properly be raised on appeal without first being raised again by postconviction
motion. See WIS. STAT. § 974.02(2) (2019-20);3 State v. Monje, 109 Wis. 2d 138,
153-53a, 327 N.W.2d 641 (1982) (on reconsideration). The alternative form of
argument that Lee uses here is an ordinary one and proper to raise in this court.

¶18 At the same time, however, one of Lee’s arguments is also
perplexing. Lee asserts that the postconviction court erred by not reviewing the
correctness of the rulings that the court made on his objections during the trial.
Lee cites no law for this proposition. A circuit court may well be permitted to
review this type of ruling on a postconviction basis, but we are not aware of any
law that requires the court to do that. As we stated, no postconviction motion was
necessary to preserve an issue already decided by the court, and therefore we have
difficulty seeing error in a circuit court’s decision not to resolve a postconviction
argument that the court was not required to resolve.

By the Court.—Judgment and order affirmed.

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

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

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