The full decision in State v Jobert L. Molde, 21AP1346, is here.
A lawyer's failure to object to improper testimony in a sexual assault case led the Court of Appeals this week to order a new trial for the defendant.
Jobert Molde was convicted by a jury of first-degree sexual assault of a child under 12 years old and one count of incest with a child.
Molde argues that his trial counsel was constitutionally ineffective by failing to object to an expert’s testimony at the jury trial regarding the truthfulness of alleged child sexual assault victims. In particular, the circuit court read a juror-submitted question to the expert, which asked, “How frequent is it for children to make up a story of sexual abuse[?]” The expert responded, without an objection from Molde’s trial counsel, 'False disclosures are extraordinarily rare, like in the one percent of all disclosures are false disclosures.' (Emphasis added.)
Molde was arrested after his daughter, identified in by the three-judge District III Court of Appeals panel as Lauren, accused him in 2017 of sexually assaulting her one night when her mother was away, the three-judge District III appellate panel said in an opinion written by Appellate Judge Gregory Gill Jr. He was joined by Appellate Judges Lisa Stark and Thomas Hruz.
The state alleged the assault occurred sometime in between January 2011 and January 2012. When the nurse practitioner who examined Lauren was unavailable to testify, Dunn County Circuit Judge Rod Smeltzer allowed the nurse practitioner's supervisor, Dr. Alice Swenson, to testify instead.
Following Dr. Swenson’s testimony, and consistent with the circuit court’s previous order permitting juror questions, Juror No. 47, who ultimately sat on the twelve-person jury, submitted two written questions for Swenson. Prior to asking the questions of the witness, the court held a sidebar with Molde’s trial counsel and the State. Molde’s trial counsel did not object to the proposed questions.
Molde was represented at trial by attorney Jessie Gwynn Weber, according to online court records.
The circuit court then read the questions to the witness with the jury present: “How frequent is it for children to make up a story of sexual abuse[?] Why would they do that[?]” Doctor Swenson responded to the first question, stating, “False disclosures are extraordinarily rare, like in the one percent of all disclosures are false disclosures.” In response to the second question, Swenson stated, “I don’t think I really have an answer to that.” Molde’s trial counsel did not object to either of Swenson’s answers, but the court permitted trial counsel to ask Swenson a follow-up question. Molde’s trial counsel asked Swenson whether she based her answers to the juror’s questions on particular studies, to which Swenson stated, “There are that I’ve read, yes. I don’t know the names off the top of my head.”
After the verdict, Smeltzer sentenced Molde to 25 years in prison followed by 7½ years of extended supervision.
Jorge, then represented by attorneys Aaron Nelson and Robert Maxey, filed for postconviction relief, which Smeltzer denied.
The court determined that Molde’s trial counsel did not perform deficiently by failing to object to Swenson’s answers because she cross-examined Swenson regarding the basis for her answers.
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Given Dr. Swenson’s testimony that she supervised Lauren’s sexual assault evaluation, her answer to the juror’s question regarding a child’s propensity to tell the truth when reporting a sexual assault “would inevitably be seen by the jury as ‘a personal or particularized’ endorsement of [Lauren’s] credibility.”...
A 99 percent statistic “‘provided a mathematical statement approaching certainty’ that false reporting simply does not occur.”
Moreover, Molde’s trial counsel testified at the Machner hearing that she did not have a strategic reason for failing to object to Dr. Swenson’s answers. Contrary to the circuit court’s reasoning, the fact that Molde’s trial counsel cross-examined Swenson about the basis for her testimony does not alter our conclusion because, without a reasonable trial strategy to the contrary, “[a] reasonably competent lawyer in [Molde’s trial counsel]’s shoes should have known enough to object to this testimony. [Her] failure to do so was deficient performance.”
Weber's failure to object to Swenson's testimony "undermines our confidence in the outcome of the trial," although the issue of prejudice is a "close call," Gill wrote.
There was evidence both supporting Lauren's account of the assault and raising questions about it and her credibility, Gill said.
The state twice in its closing argument used Swenson's statements to buttress its case.
"The state said, “And you also need to take into consideration Dr. Swenson’s testimony that false disclosures are extraordinarily rare. They’re in the one percent of cases that she’s seen.”
In its rebuttal closing argument, the state again argued, “And would [Lauren] have kept this consistent disclosure for two years if this was a false report? And, keep in mind, false reports only occur one percent of the time, according to Swenson.” Therefore, the state essentially argued to the jury that Lauren could not be lying about what occurred because Swenson testified that 99 percent of all child sexual assault reports are true.
The case was prosecuted in circuit court by Dunn County District Attorney Andrea Nodolf. Maxey represented Molde on appeal; the state was represented by Assistant Attorney General Jacob Wittwer.
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