Colfax man’s trial attorney accused of not soliciting testimony that victim was lying
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By LeAnn R. Ralph
MENOMONIE — The trial attorney for a 46-year-old former Colfax man sentenced to 25 years in prison for the sexual assault of a child is being accused of not doing enough to solicit testimony that the victim was lying.
Jobert L. Molde, along with his attorney, Aaron Nelson, appeared before Judge Rod W. Smeltzer by video conferencing in Dunn County Circuit Court January 14 for a motion hearing to allege ineffectiveness of counsel for the trial attorney’s alleged failure to ask witnesses about their opinions of the victim.
A 12-person jury found Molde guilty on two felony counts related to first-degree sexual assault of a child under the age of 12 following a two-day jury trial in Dunn County Circuit Court in March of 2019.
Molde was represented at trial by attorney Jessie Gwynn Weber.
The sexual assault occurred in the Village of Colfax, and according to the criminal complaint, the victim described Molde having sexual intercourse with her to an interviewer from the Midwest Children’s Resource Center.
Judge Smeltzer sentenced Molde on the first count of the criminal complaint in June of 2019 to 32.5 years in prison, with 25 years of initial confinement and 7.5 years of extended supervision.
On the second count, Judge Smeltzer sentenced Molde to eight years in prison, with five years of initial confinement and three years of extended supervision, to be served concurrently with the sentence on the first count.
As a condition of extended supervision, Judge Smeltzer ordered Molde to register as a lifetime sex offender and also ordered Molde to complete a sex offender evaluation and treatment.
In addition, the judge ordered Molde to have no contact with minors under the age of 18 with the exception of family.
At the January 14 hearing, Nelson said a witness had given an answer at trial that was prejudicial to Molde and that Weber could have asked for a mistrial but did not ask for a mistrial.
Other witnesses did not believe the victim was trustworthy and also did not believe the sexual assault could have happened, Nelson said.
Nelson alleged that Weber failed to ask witnesses the right questions to establish that they did not believe the victim was telling the truth and that they did not believe the assault could have occurred.
Nelson cited state statute 906.08(1) and 906.08(2) pertaining to evidence of character and conduct of a witness.
Under subsection (1): “Opinion and reputation evidence of character” — The credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to the following limitations: (a) The evidence may refer only to character for truthfulness or untruthfulness. (b) Except with respect to an accused who testifies in his or her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Subsection (2) “specific instances of conduct” states that specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime or an adjudication of delinquency, may not be proved by extrinsic evidence. They may, however, if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.
Dunn County District Attorney Andrea Nodolf objected to Nelson’s line of questioning.
While Nelson was talking about subsections (1) and (2), he had not included both subsections in the motion filed with the court, Nodolf said.
One expert witness was unable to testify at the January 14 hearing, and Nelson had sent a letter to the court about rescheduling the testimony.
At the January 14 hearing, Nelson mentioned calling witnesses at a subsequent hearing to review their testimony at trial.
Nodolf objected to the additional witnesses and said she “did not want to do a re-trial.”
Judge Smeltzer agreed Nelson had raised questions in the courtroom that had not been included in his motion and set a deadline of February 19 for Nelson to file a supplemental motion.
Another court hearing is scheduled for April 5 beginning at 8 a.m. The hearing is scheduled to last the rest of the morning.