Appeals court upholds inmate assault conviction
In a decision released Nov. 16, a Wisconsin appeals court upheld the conviction of a man accused of raping another inmate in the St. Croix County Jail six years ago.
"This is a classic case of zero plus zero equals zero," concluded the District III Court of Appeals in denying Ronald H. Wagner's request that his conviction be reversed.
The court ruled that none of Wagner's arguments have substance and adding them together still equals nothing.
In January 2005, a jury found Wagner, now 45, guilty of second-degree sexual assault/sex organ injury.
He was sentenced to 12 years in prison followed by 10 years of extended supervision. Online court records indicate Wagner is now an inmate at Columbia Correctional institution in Portage.
The St. Croix County sentence was to be served consecutive to sentences for convictions in Outagamie, Waukesha, Ozaukee and Milwaukee counties. Those convictions involve burglary and forgery charges.
According to background in the appeals court decision, Wagner assaulted a 20-year-old male inmate in the jail after other prisoners left the cell block to attend church services.
The alleged victim said when he went into the bathroom at about 7:30 p.m. Aug. 8, 2004 Wagner fondled him and then assaulted him. The victim used an intercom system to call guards and also phoned his girlfriend and told her he had been sexually assaulted. The victim was examined three days later by a sexual assault nurse who testified in court that she found an injury consistent with a days-old assault.
The jury found Wagner guilty of second-degree sexual assault, and Judge Edward Vlack handed down the 22-year sentence.
In July 2005 Wagner, acting as his own attorney, asked Judge Vlack to either dismiss the case or order a new trial.
Wagner claimed his trial attorneys were ineffective, prosecutors hadn't preserved evidence that would have exonerated him, false or perjured testimony had been presented and there was newly discovered evidence.
After a new attorney was appointed for Wagner, his motions were denied. He appealed, withdrew the appeal and went back to county court where his motions were again denied. He then appealed that judgment.
In his appeal, Wagner claims the state failed to collect evidence of sexual assault until three days had passed and destroyed recordings of phone calls. But, said the three-judge appeals panel, he didn't adequately explain why this evidence would have helped him.
"Wagner has not shown that the evidence would have had any bearing on the outcome of the trial," says the appeals court decision. "We agree with (Judge Vlack) that 'Wagner speculates only what the evidence might have shown; a far cry from exculpatory.'"
Also, says the decision, Wagner hasn't shown that the state acted in bad faith by failing to preserve recordings of phone calls made from the jail. Those recordings were lost when the jail switched phone-service providers in October 2006.
Sheriff Dennis Hillstead testified that it was his decision to change the jail's phone service and he hadn't known the change would result in losing recordings.
Wagner argued that all three of the attorneys who represented him during parts of the initial proceedings were ineffective. But the appeals court found he failed to show how the lawyers' actions or decisions prevented him from getting a fair trial.
Wagner claimed attorney Ronald Sonderhouse was ineffective by failing to call inmates who would have testified that the alleged victim made up the sexual assault allegations.
The appeals court noted that Sonderhouse did call one inmate who testified the man fabricated the allegations. At a subsequent hearing, the attorney testified he didn't call others because he didn't think their testimony was needed and because he was concerned that jurors wouldn't believe them.
"Sonderhouse's decision not to call these additional inmates as witnesses was a valid strategic choice and did not constitute deficient performance," said the appeals court.