Simonson, Chas v. Hepp, Randall

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-4079
C HAS S IMONSON,
Petitioner-Appellant,
v.
R ANDALL H EPP,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07 C 397—Barbara B. Crabb, Chief Judge.
A RGUED S EPTEMBER 19, 2008—D ECIDED D ECEMBER 9, 2008
Before P OSNER, R IPPLE, and E VANS, Circuit Judges.
E VANS, Circuit Judge. Today, we resolve Chas Simonson’s
appeal from a district court judgment denying his petition
for a writ of habeas corpus. As per usual, we start with the
facts, which, despite a few editorial comments along the
way, we set out in the light most favorable to the State of
Wisconsin.
Simonson went to trial in Wisconsin state court in 2002
on charges that he sexually assaulted his seven-year-old
2 No. 07-4079
daughter. The primary evidence against him came from the
alleged victim, who we will call Donna. Donna, who was
nine years old when the trial rolled around, testified that
Simonson placed his penis in her vagina on two separate
occasions, first in the spring of 1999 and again in the spring
of 2000. Simonson’s counsel tried to impeach Donna’s
testimony by pointing out that she recanted (twice) and
had given inconsistent statements regarding the timing
and location of the assaults. Simonson also presented proof
of a motive to lie. He was living on and off with his
wife—Donna’s mother, Kristina Simonson—at the time of
the incidents, and the couple ultimately divorced in July
2000. In the fall of that year, Simonson decided to seek full
custody of Donna and her younger sister. Simonson
testified that he informed Kristina of his intentions on
December 1, 2000. Although Kristina could not recall that
conversation, one of her friends testified that Kristina had
told her Simonson was threatening to take the kids away.
The timing is key. It was on December 3, 2000, just two
days after Simonson disclosed his plan, that Donna first
supposedly told Kristina about the assaults. And three
days later Kristina took Donna to the police station, where
Donna shared her story with the authorities. Simonson’s
take on all this: Kristina coaxed her daughter into making
false statements to block Simonson from gaining custody.
The State offered corroborating evidence from Julie
Kennedy-Oehlert, a nurse specializing in sexual assault
who had examined Donna in January 2001. Kennedy-
Oehlert testified that Donna’s hymenal tissue along the
lower portion of her vagina was “virtually missing.” In her
opinion, the only explanation was insertion of an object,
No. 07-4079 3
such as a man’s penis. Although a girl’s hymen is ex-
tremely sensitive prior to puberty, Kennedy-Oehlert
testified that it generally stays intact “unless there is some
pressure put directly on that tissue or near that tissue . . . .”
When Kennedy-Oehlert asked Donna “if someone had put
anything in her vagina,” Donna said her dad had put “his
wiener in.”
To counter this testimony, Simonson sought to develop
an alternative explanation for the hymenal damage. He
made an offer of proof that Donna was severely consti-
pated when she was one year old, and that Kristina and
Donna’s grandmother attempted to extract the stool by
pressing their thumbs against Donna’s rectal and vaginal
areas as if they were trying to “pop a pimple.” The state
trial judge was not impressed. Without expert testimony to
buttress Simonson’s theory—to prove that these actions
could in fact cause a tear in Donna’s hymen—the judge
believed the jury would be left to speculation. In the
judge’s opinion, “[o]rdinary experience and common
sense” did not reveal the link between the alleged cause
and effect. He therefore prohibited Simonson from present-
ing this theory.
The jury convicted Simonson as charged and the judge
sentenced him to ten years’ imprisonment followed by an
equal period of extended supervision. At the sentencing
hearing, the State asked the judge to consider the fact that
the presentence report showed Simonson’s involvement in
the sexual assault of a 13-year-old girl. Because Simonson
was never charged, however, the court “place[d] little
significance” on that conduct, focusing instead on the
4 No. 07-4079
gravity of the crime, the damage to the victim, and the
need to protect both the victim and the public from future
assaults. With respect to the last consideration, the judge
pointed to, among other things, the high recidivism rates
for offenders like Simonson:
[B]ased on my experience, individuals who undertake
this type of behavior typically do it more than once
with more than one victim, unlike charges like homi-
cide where statistically the likelihood is they’re never
going to do it again. But in these kinds of cases, if it
happened once, it’s very likely going to happen again.
Or at least the temptation to do it again is going to be
there. So I see a very, very high need to protect the
public.
Simonson wanted to appeal both his conviction and
sentence, but his attorney dropped the ball, failing to file
either a timely postconviction motion or a notice of appeal.
Fortunately for Simonson, the Wisconsin Court of Appeals
reinstated his appellate rights in 2005, State ex rel. Chas
Simonson v. Randall Hepp, Case No. 2005AP1354-W (Wis. Ct.
App. Sept. 29, 2005), and Simonson filed a motion for
postconviction relief with the trial court raising two
claims: (1) that the court infringed upon his right to
present a defense when it barred him from offering an
alternative explanation for Donna’s hymen injury; and
(2) that the court relied upon inaccurate information in
sentencing. The trial court rejected both claims. With
respect to the first claim, the judge reiterated his opinion
that “expert testimony would be necessary . . . to explain
how ‘rectal’ or other stimulation applied to dislodge fecal
No. 07-4079 5
matter . . . would, or even could, be the cause of tearing
and disruption of the hymen, without causing the jury to
improperly speculate.” The gist of Simonson’s second
claim—then and now—is that the judge relied on recidi-
vism rates for child molestation, as opposed to incest.
Recidivism by incest offenders is lower, he says, and the
judge should have figured that into his calculus. The trial
judge wasn’t entirely dismissive of this argument, but he
denied relief because the recidivism information (pertinent
or otherwise) occupied only a peripheral role in his analy-
sis.
Things went similarly in the state appellate court. In
affirming the trial judge’s decision requiring expert
testim ony, the appellate court echoed his
sentiments: “[E]xpert testimony was required because
making a causal link between the alleged treatment and the
torn hymen is not within the realm of ordinary experience
and common sense.” State v. Chas S., 297 Wis. 2d 585, 724
N.W.2d 704, *1 (Wis. Ct. App. Oct. 31, 2006). And
Simonson couldn’t just use Kennedy-Oehlert’s testi-
mony—“unless there is some pressure put directly on [the
hymen] or near that tissue it generally stays in-
tact”—because it was at once too general and unique to its
context. As the Wisconsin Court of Appeals put it:
That single sentence does not provide an adequate
foundation for Chas’s alternate theory. The nurse was
not asked whether placing thumbs on the exterior of
the vagina could result in the damage she found in her
examination. The nurse’s single reference to damage
“near that tissue” would not sufficiently enlighten the
jury to allow it to accept Chas’s alternate theory.
6 No. 07-4079
Absent expert testimony, in other words, the appellate
court determined that the proffered evidence was irrele-
vant. And because a defendant has no right to use that sort
of evidence, its exclusion did not abridge Simonson’s right
to present a defense.
Moving on to sentencing, the appellate court found no
error in the trial judge’s post-conviction analysis. The
appellate court assumed for the sake of argument that the
trial judge considered the wrong recidivism data. How-
ever, it determined that the information played no role in
the judge’s analysis, which focused on the particular
circumstances of Simonson’s history and behavior.
Simonson’s contention that the lower rates for incest
should control did not sway the appellate court: “The fact
that perpetrators of incest may have a lower rate of recidi-
vism than other sexual abusers does not establish that he
presents a low risk to his children or others.” Id. at *3.
Simonson’s petition for review in the Supreme Court of
Wisconsin was denied. State v. Chas S., 299 Wis. 2d 328, 731
N.W.2d 638 (Jan. 9, 2007).
With his state remedies exhausted, Simonson filed a
petition for a writ of habeas corpus in federal district court.
Chief Judge Barbara Crabb referred the petition to Magis-
trate Judge Stephen Crocker for preparation of a report and
recommendation and then adopted the latter’s suggestion
to dismiss. The judge approved the state courts’ rationale
on the evidentiary issue—without expert testimony to
bridge the gap between cause (attempted removal of a
stool) and effect (torn hymen), Simonson’s theory “would
have been highly speculative.” Simonson v. Hepp, 07-00397,
No. 07-4079 7
*2 (W.D. Wis. Nov. 21, 2007). With respect to the sentencing
issue, on the other hand, the district court’s review con-
tained a healthy dose of criticism. Considering the record,
the district court could not accept the view that the trial
judge had not factored in recidivism rates at all. However,
the court found the error harmless (the sentence would
have been the same without that information) and the
ultimate conclusion supported by the facts (Simonson was
likely to re-offend), so the petition for relief was denied.
Now on to this appeal.
We review a federal habeas court’s factual findings for
clear error and its legal conclusions de novo. Rizzo v. Smith,
528 F.3d 501, 505 (7th Cir. 2008). Under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), a
petitioner is only entitled to habeas relief when the deci-
sion of the last state court to consider the case is either
“contrary to” or “an unreasonable application of” clearly
established federal law as determined by the United States
Supreme Court. 28 U.S.C. § 2254(d)(1). A decision is
contrary to clearly established federal law if the state court
applies a rule that conflicts with a rule identified by the
Supreme Court, or if the state court reaches a different
conclusion than the Supreme Court in a case with materi-
ally indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
405-06 (2000). A decision involves an unreasonable applica-
tion of clearly established law if the state court “identifies
the correct governing legal principle . . . but unreasonably
applies that principle to the facts of the prisoner’s case.” Id.
at 413. Under both tests, mere error is not sufficient; a state
court’s decision must be “objectively unreasonable.”
Lockyer v. Andrade, 538 U.S. 63, 76 (2003).
8 No. 07-4079
Measured against the rubric of AEDPA, Simonson’s
claims have little chance of success. That’s not to say the
case against him was airtight. It’s simply to say that the
decision of the Wisconsin Court of Appeals was not
objectively unreasonable.
Simonson first argues that the exclusion of his alternative
theory deprived him of the ability to contest the charge
against him. The Sixth Amendment, through its spirit if not
its words, guarantees a criminal defendant the right to
present a defense. Chambers v. Mississippi, 410 U.S. 284, 302
(1973). At a minimum, this means a defendant may “put
before a jury evidence that might influence the determina-
tion of guilt.” Taylor v. Illinois, 484 U.S. 400, 408 (1988). Like
most rights, however, the right to present a defense is not
unlimited and may “bow to accommodate other legitimate
interests in the criminal trial process.” Chambers, 410 U.S.
at 295; United States v. Knox, 540 F.3d 708, 719 (7th Cir.
2008). Among these interests are “fairness and reliability in
the ascertainment of guilt and innocence.” Chambers, 410
U.S. at 302; Horton v. Litscher, 427 F.3d 498, 504 (7th Cir.
2005). To further these interests, states have broad latitude
to adopt rules excluding evidence so long as they are not
“arbitrary or disproportionate to the purpose they are
designed to serve.” Johnson v. Bett, 349 F.3d 1030, 1035 (7th
Cir. 2003). Rules that prohibit irrelevant or speculative
evidence are kosher. Hood v. Uchtman, 414 F.3d 736, 738-39
(7th Cir. 2005); Morgan v. Krenke, 232 F.3d 562, 566 (7th Cir.
2000).
And that’s where Simonson runs into trouble. To repeat,
the state trial court prohibited him from telling the jury
No. 07-4079 9
that the injury to Donna could have been caused by her
mother and grandmother’s efforts to relieve constipation
because it would have required speculation. We tend to
agree. While there is some intuitive merit to the idea that
pressure near the vaginal and rectal areas could result in
tearing of the hymen, it is far from obvious. It is not like
asking a jury to consider, say, the fact that a blow from a
baseball bat can lead to a broken limb. Nevertheless, it is
tempting to buy Simonson’s argument that there was
relevant expert testimony available—Kennedy-Oehlert’s
statement that the hymen generally stays intact “unless
there is some pressure put directly on that tissue or near
that tissue.” It is tempting, we say, but not wholly convinc-
ing. It was reasonable to hold that this testimony did not
suit the purpose because Kennedy-Oehlert announced this
general proposition only as background to her specific
conclusion (that the injury was caused by insertion of an
object). Kennedy-Oehlert probably would have been
surprised to learn Simonson’s application of her testimony.
That’s how the state courts saw it, and we are not prepared
to label that view “objectively unreasonable.”
Under the federal and state rules of evidence alike,
expert testimony is appropriate if “specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue . . . .” Fed. R. Evid. 702; Wis. Stat.
§ 907.02. Although these rules do not require expert testi-
mony—they only say when it is permissible—they point to
a basic truth of trial practice: expert testimony is often
needed to eliminate speculation. See, e.g., Owen v. General
Motors Corp., 533 F.3d 913, 924 (8th Cir. 2008); United States
v. Han, 230 F.3d 560, 564 (2d Cir. 2000). Preventing specula-
10 No. 07-4079
tion is undoubtedly a legitimate state interest, and exclud-
ing evidence in the name of that interest did not abridge
Simonson’s right to present a defense in this case. The state
appellate court’s decision to this effect was neither contrary
to nor an unreasonable application of clearly established
federal law.
On to the next claim, then, where Simonson argues that
his sentence was infected by false information. Due process
demands that a court sentence a defendant upon accurate
information. United States v. Artley, 489 F.3d 813, 821 (7th
Cir. 2007). To obtain the remedy of resentencing, a defen-
dant must establish that the sentencing court relied on
critical inaccurate information when announcing the
sentence. See Lechner v. Frank, 341 F.3d 635, 639 (7th Cir.
2003).
Did the state trial judge rely on inaccurate information
about recidivist rates of run-of-the-mill child molesters vis-
à-vis incestuous child molesters when he imposed the 10-
year sentence in this case? Simonson says yes—and, he
argues, that made a difference here because recidivist rates
are lower for those who assault their own children as
opposed to those who assault other children. The Wiscon-
sin Court of Appeals said no.
The first problem with Simonson’s argument is that the
sentencing judge here did not rely on any hard statistical
data; he did not consult recidivism studies or charts but
rather based his view on his own “experience” in these
sorts of cases. The Supreme Court has rejected the idea that
this is somehow improper. In Barclay v. Florida, 469 U.S. 939(1983), the Court upheld a judge’s decision imposing the
No. 07-4079 11
death penalty where the judge explained his decision by
comparing the defendant’s crimes to what he had wit-
nessed in Nazi camps. The Court observed that “[i]t is
neither possible nor desirable for a person to whom the
State entrusts an important judgment to decide in a
vacuum, as if he had no experiences.” Id. at 950.
But, even assuming the sentencing judge did rely on
undisclosed “statistical” data—and that is a wild assump-
tion—the nature of that data is unclear. Simonson contends
that the sentencing court “confused recidivism rates of
child molesters in general, for which there is a relatively
high rate of re-offense, with the low recidivism rate for
incest offenders . . . .” The sentencing transcript very much
implies that the sentencing judge viewed Simonson not just
as any child molester, but as an incestuous child molester.
Before reaching the recidivism factor, the judge had this to
say about the gravity of the offense: “Frankly, I can’t think
of many more worse offenses than sexually assaulting a
seven-year-old child that is the product of you and your wife.”
That remark was made only a moment before the judge
concluded that “individuals who undertake this type of
behavior typically do it more than once.” So the notion that
the judge was talking about child molesters in general
seems questionable at best.
But, for the sake of argument, let’s assume the sentencing
judge actually considered hard statistics regarding recidi-
vism by molesters of nonfamilial victims. The studies
Simonson presented to the trial court when seeking
postconviction relief, the same studies he cites to us, do
tend to establish that child molesters in general are more
12 No. 07-4079
likely to re-offend (or at least be convicted again) than
incest offenders. However, they do not establish that
conclusively, and, in any event, they also suggest that
perpetrators like Simonson are likely to strike again.
According to a Department of Justice report offered by
Simonson, incest offenders have a reconviction rate of
6 percent, while the rate for child molesters is between 25
and 30 percent depending on the victim’s gender. Recidi-
vism of Sex Offenders (May 2001) at
http://www.csom.org/pubs/recidsexof.html (last visited
October 9, 2008). However, because it uses the term
“incest”—as opposed to “incestuous child molestation” or
the like—the incest data could be read not as a subset of the
child molestation data, but as an entirely separate category
(including incidents with minors and adults), in which case
it might be just as appropriate to apply the higher child
molestation figures to Simonson. Nevertheless, the other
study Simonson cites clears the air a bit, reporting that
“[t]he risk for sexual offense recidivism . . . increase[s] for
those who ha[ve] . . . an extrafamilial victim.” R. Karl
Hanson & Monique T. Bussière, Predicting Relapse: A Meta-
Analysis of Sexual Offender Recidivism Studies, 66 Journal of
Consulting and Clinical Psychology 348, 351 (1998). But
that report also identifies “sexual interest in children” as
the “single strongest predictor” of sexual-offense relapse,
id., and the DOJ study warns that recidivism in the case of
incest is severely underreported because victims fear the
disruption it may cause to their families. Considered in the
aggregate, these studies do little to undermine the trial
court’s conclusion that Simonson was likely to re-offend.
Perhaps the man who has sex with his adult sister is
No. 07-4079 13
unlikely to do it again, but that, of course, is not at all
comparable to the assault here, where Donna testified that
her dad carried her into his bedroom, removed her paja-
mas, put some kind of clear liquid from a bottle on her
crotch area and on his penis, put her on top of him, and put
his penis “inside her crotch.”
In sum, we believe the sentencing judge did rely on
something—his experience revealing that offenders like
Simonson tend to have a high rate of recidivism—but
Simonson has failed to prove that “something” was
inaccurate. The state appellate court’s decision upholding
the sentence, regardless of the rationale, was neither
contrary to nor an unreasonable application of clearly
established federal law.
The district court’s judgment denying Simonson’s
petition for habeas corpus is A FFIRMED.
12-9-08