In the

United States Court of Appeals

For the Seventh Circuit

No. 07-4079

CHAS SIMONSON,

Petitioner-Appellant,

v.

RANDALL HEPP,

Respondent-Appellee.

 

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 07 C 397—Barbara B. Crabb, Chief Judge.

 

ARGUED SEPTEMBER 19, 2008—DECIDED DECEMBER 9, 2008

 

Before POSNER, RIPPLE, and EVANS, Circuit Judges.

EVANS, 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. KennedyOehlert 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 extremely 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 constipated 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 presenting 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 homicide 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 recidivism 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 analysis.

Things went similarly in the state appellate court. In

affirming the trial judge’s decision requiring expert

t e s ti m o ny, the appella t e cour t echoe d hi s

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 testimony—“unless there is some pressure put directly on [the

hymen] or near that tissue it generally stays intact”—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 irrelevant. 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. However, 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 recidivism 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 Magistrate 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 contained 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 decision 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 materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,

405-06 (2000). A decision involves an unreasonable application 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 determination 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 convincing. 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 testimony—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 excluding 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 defendant 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 visà-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 Wisconsin 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 witnessed 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 assumption—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 recidivism 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. Recidiv i s m of Se x O f f e n d e r s (M a y 2 001) a t

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 MetaAnalysis 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 pajamas, 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 AFFIRMED.

12-9-08