COURT OF APPEALS
DATED AND FILED
May 20, 2009
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Donald J. McGuire,
from a judgment and an order of the circuit court for
¶1 PER CURIAM. Donald J. McGuire appeals from the judgment of conviction entered against him and the order denying his motion for postconviction relief. He was convicted of five counts of having taken “indecent liberties” with two children in 1967 and 1968. McGuire was a priest and a teacher at the school the two children attended. McGuire argues that: (1) the thirty-six year delay in bringing these charges prejudiced his defense and violated his constitutional rights; (2) he received ineffective assistance of trial counsel; (3) the trial court erroneously admitted unduly prejudicial other acts evidence at trial; and (4) the trial court erroneously allowed unfairly prejudicial rebuttal evidence. McGuire argues as a result of these errors, the charges against him should be dismissed or he is entitled to a new trial in the interests of justice. We conclude that the delay was not unfairly prejudicial, he did not receive ineffective assistance of trial counsel, and the trial court did not erroneously exercise its discretion in its evidentiary rulings. We also conclude that McGuire is not entitled to a new trial in the interests of justice. Consequently, we affirm the judgment and order of the circuit court.
¶2 McGuire was a Jesuit priest who at the relevant times taught
¶3 Sean and Victor reported the abuse to the police many years later in 2003, and a criminal complaint was issued in 2005. A trial was held in February 2006, and the jury convicted McGuire on all five counts. The court sentenced him to concurrent terms of seven years in prison on two counts, and twenty years of probation, to be served concurrently, on the remaining three counts. The court stayed the prison term pending the postconviction proceedings.
¶4 McGuire filed a motion for postconviction relief alleging that the delay in filing charges against him violated the statute of limitations and his constitutional rights. He also argued that he had newly discovered evidence, had received ineffective assistance of trial counsel, and he challenged the court’s decision to admit certain other acts and rebuttal evidence. The court held a hearing and heard testimony from trial counsel, potential witnesses, and others. The court denied the motion, and McGuire appeals.
¶5 McGuire first argues that the more than thirty-six year delay in bringing the criminal charges against him prejudiced his defense, and he is entitled to have the charges dismissed. He argues that many witnesses who would have aided in his defense are dead, and the memories of those who did testify have faded. He argues that the out-of-state tolling provision in the applicable statute of limitations, Wis. Stat. § 939.74(1) (1966-69), is unconstitutional as applied to him, and that because the delay resulted in actual prejudice to him, the charges against him should be barred by due process. In the alternative, he argues that the delay justifies reversal in the interests of justice.
¶6 The applicable statute of limitations contains a provision
that tolls “the time during which the actor was not publicly a resident within
the state.” Wis. Stat. § 939.74(3) (1965-72). The Wisconsin Supreme Court ruled that this
statute of limitations covers offenses, such as these, that occurred during
this time period. See State v. MacArthur, 2008 WI 72, ¶17, 310
¶7 McGuire argues that Sher does not control the outcome in this case because the court there concluded that the statute was facially valid, while he is arguing that the statute’s tolling provision violates the privileges and immunities clause as well as his rights to due process and equal protection as applied to him. McGuire argues that Sher is distinguishable because Sher was denied his statute of limitations defense as a result of a two-year tolling of the statute of limitations. McGuire argues that, in contrast, the more than thirty-year tolling as applied in his case has denied him much of his right to present a defense. Further, he argues that, unlike Sher, the application of the tolling provision to his case does not meet a legitimate state interest. We disagree.
¶8 The question of whether the statute violates the privileges
and immunities clause was decided by the supreme court in Sher. The court applied a three-part test to reach
this determination: whether the statute
disadvantages non-residents, whether the discrimination violates a fundamental
right, and if so, whether the means employed are substantially related to a
legitimate state interest.
¶9 The supreme court in Sher also concluded that there was a
rational basis for the statute.
¶10 McGuire also argues that the statute violates his due process
rights. McGuire acknowledges that the
test for determining whether a delay in bringing a charge violates due process,
even though the charges were brought within the statute of limitations, is
whether the defendant has established actual prejudice resulting from such a
delay, and whether the delay was for the purpose of giving the prosecutor a
tactical advantage. State v. Wilson, 149
¶11 We will not address whether the supreme court’s decision in
¶12 McGuire also argues that the lengthy delay in bringing these
charges against him was so prejudicial that his conviction should be reversed
in the interest of justice under Wis. Stat.
§ 752.35 (2007-08), because the delay resulted in the real
controversy not being tried. See Vollmer
v. Luety, 156
¶13 We are not convinced that McGuire was denied the fundamental right to present a defense. The three main witnesses to the events Sean, Victor, and McGuire, were all available to testify. McGuire cross-examined the two victim-witnesses, was able to present other witnesses to support his defense, and was able to put forth his side of the story. Further, the passage of time also affected the State’s ability to present its case. We decline to reverse the conviction on this basis.
¶14 McGuire next argues that he received ineffective assistance of
trial counsel. He argues that his trial
counsel, Attorney Gerald Boyle, did not investigate two potential witnesses: Elita Bender and Robert Goldberg, and that
Boyle’s failure to investigate these witnesses prejudiced his defense. To establish an ineffective assistance of
counsel claim, a defendant must show both that counsel’s performance was
deficient and that he was prejudiced by the deficient performance. Strickland v.
¶15 We review the denial of an ineffective assistance claim as a
mixed question of fact and law.
¶16 McGuire first argues that his trial counsel was ineffective
when he did not investigate Elita Bender as a possible witness. Bender’s husband owned the cottage in
¶17 At the postconviction hearing, Boyle testified that he did not
believe the key was a real issue in the case.
He stated that he chose to focus instead on Sean’s prior statement that
the assault against him took place in
¶18 The circuit court found that Boyle did not overlook Bender as a witness, but rather made a reasoned decision not to explore her testimony both because her testimony could have been impeached and it would not have helped the defense. We conclude that the decision not to call Bender was reasonable trial strategy. Because we believe that this was a reasonable trial strategy, and nothing in Bender’s postconviction testimony convinces us otherwise, we also conclude that McGuire has not established that he was prejudiced by Boyle’s failure to investigate Bender as a potential witness.
¶19 McGuire also argues that his trial counsel was ineffective for failing to investigate and call at trial, Robert Goldberg, or Goldberg’s sister. McGuire argues that Goldberg’s testimony would have contradicted the two victims’ testimony that they did not know each other before 2003. Goldberg and his sister both testified at the postconviction hearing. Goldberg testified that in 1972, he had seen Sean and Victor at the home of another man, who also claimed to have been sexually assaulted by McGuire. His sister also testified that she had seen the two together. McGuire asserts that this testimony would have shown that Victor and Sean knew each other in the early 1970s.
¶20 Boyle testified that he did not investigate Goldberg because he believed it would be dangerous given the potential his testimony had to corroborate Sean’s story. Boyle also stated that it had the possibility of leading to the admission of other act’s evidence. He stated that he believed it would have seriously harmed McGuire’s defense at trial. We again conclude that the Boyle’s decision not to investigate or call Robert Goldberg or his sister was a reasonable trial strategy. Further, Boyle’s failure to investigate these witnesses does not undermine our confidence in the outcome of the trial. We reject McGuire’s claim that he received ineffective assistance of trial counsel.
¶21 McGuire next argues that the circuit court erred when it
allowed unfairly prejudicial other acts evidence and rebuttal evidence. Prior to trial, the circuit court excluded
the State’s evidence that McGuire sexually assaulted two other boys. The court, however, allowed the State to
introduce evidence that McGuire had sexually assaulted Victor and Sean in
¶22 “A trial court’s decision to admit or exclude evidence is a
discretionary determination that will not be upset on appeal if it has ‘a
reasonable basis’ and was made ‘in accordance with accepted legal standards and
in accordance with the facts of record.’”
State v. Jenkins, 168
¶23 The admission of other acts evidence requires a three-step
analysis. State v. Sullivan, 216
(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?
(2) Is the other acts relevant, considering the two facets of relevance set forth in Wis. Stat. § (Rule) 904.01? The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration in assessing relevance is whether the evidence has probative value, that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence.
(3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence? See Wis. Stat. § (Rule) 904.03.
¶24 The circuit court in this case conducted the Sullivan three-step analysis, and concluded that the evidence was offered for a proper purpose, was relevant, and that the probative value was not outweighed by the danger of unfair prejudice. McGuire challenges only the circuit court’s determination of the third step of the analysis, arguing that the probative value was minimal and the prejudicial effect high. He argues again that the delay in prosecution increases the prejudicial effect of this evidence. We disagree. We conclude that the evidence established motive, that the touching was not a mistake, and showed the existence of a relationship between McGuire and each of the two boys prior to their visits to the cottage. We further conclude that its prejudicial effect did not outweigh its probative value, and that the circuit court did not erroneously exercise its discretion when it admitted this evidence.
¶25 McGuire also argues that the circuit court erroneously
exercised its discretion when it allowed in certain rebuttal evidence because
it was cumulative. The determination of
whether rebuttal evidence should be admitted is within the trial court’s
discretion. Rausch v.
Buisse, 33 Wis. 2d 154, 167, 146 N.W.2d 801
(1966). The victims
testified at trial that McGuire’s bed was next to a wall. The defense then offered evidence the
testimony of Dr. Robert Ryan, McGuire’s doctor who had visited his room
multiple occasions. Dr. Ryan testified
that McGuire’s bed was not up against the wall, and that the furniture was
always in the same place. In rebuttal, the
State offered the testimony of two other men who had attended
¶26 McGuire also challenges the rebuttal evidence of Dr. Douglas Dewire. Both victims had testified that McGuire was circumcised. The defense then had Dr. Ryan testify that McGuire was not circumcised, and offered a photograph as further proof. Dr. Ryan further opined that an uncircumcised penis is “unsightly” and that “[y]ou would know whether a person was circumcised or not.” In rebuttal, the State had Dr. Dewire, a urologist, testify to rebut the statement that it was easy to tell whether a person had been circumcised.
¶27 Dr. Dewire testified that an uncircumcised penis with a retracted foreskin has the same appearance as a circumcised penis. He further testified that he could not tell from Dr. Ryan’s photograph whether McGuire was circumcised. McGuire argues that this testimony was patently irrelevant and highly prejudicial, and it should not have been admitted.
¶28 We conclude that the rebuttal evidence was neither cumulative nor irrelevant. The State offered the evidence about the position of the bed to rebut the evidence offered by Dr. Ryan. Further, the testimony of Dr. Dewire was not irrelevant, but rebutted Dr. Ryan’s testimony that anyone would know whether a man was circumcised. We conclude that the trial court properly exercised its discretion when it allowed this evidence.
¶29 We conclude that the circuit court properly denied McGuire’s motion for postconviction relief. Consequently, and for the reasons stated, we affirm the judgment and order of the circuit court.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
 Victor testified that the incidents occurred at his uncle’s cottage during the fall of 1967 and spring of 1968. Sean testified that the incidents involving him occurred at the cottage between Thanksgiving and Christmas of 1968.
 McGuire did not testify at his trial.
 McGuire initially argued that Goldberg’s testimony was newly discovered evidence. Boyle’s testimony at the postconviction hearing, however, established that Boyle knew about Goldberg prior to trial. This testimony established that Goldberg’s testimony was not newly discovered evidence. Consequently, McGuire argued instead that Boyle was ineffective for failing to investigate and call Goldberg at trial.
 Although we address the issue, we note that while trial counsel objected to these witnesses testifying, he also stated that the testimony about the bed “was the only proper rebuttal.”