Ex-teacher appeals child sexual assault convictions

Former Green Bay School District teacher David Villareal is appealing his child sexual assault convictions, arguing that the four charges he faced should not have been joined in one trial, according to court documents filed Jan. 26.

On April 26, 2023, a Brown County jury found Villareal, now 50, guilty of three counts of first-degree child sexual assault and one count of repeated sexual assault of the same child. Those counts each referred to a female Baird Elementary School student Villareal sexually touched between 2015 and 2016; the girls were 7 to 8 years old at the time.

Villareal was sentenced to 50 years in prison.

Two of the first-degree sexual assault charges and the repeated sexual assault charge were filed against Villareal in April 2021, according to his appeal brief. One of those charges was dropped the day of Villareal’s trial due to the inability of a victim to be present for the trial, Brown County Deputy District Attorney Wendy Lemkuil said at the time.

In February 2022, two additional first-degree child sexual assault charges were filed against Villareal in a second case, the appeal brief said.

At a July 12, 2022, hearing, Brown County Circuit Court Judge Donald Zuidmulder joined all of the charges into one case, the brief said. The court did this sua sponte, which means Zuidmulder ruled on the issue of joining the charges without either party filing a motion.

Because the charges were joined, Villareal was tried on all of them at one trial.

Attorney Kirk Obear, who represented Villareal at his trial and is representing his appeal, argued in the appeal brief that the charges legally should not have been joined, that joining them “substantially prejudiced” Villareal’s defense and that his due process rights were violated by the order being made sua sponte.

Based on those arguments, the appeal seeks to have Villareal’s convictions reversed, to have the matter remanded to the circuit court with a direction to sever the charges and for Villareal to be permitted a new trial on all counts.

Offenses were too different to try together

The Wisconsin statute that allows a court to join two or more cases outlines four provisions under which the decision is considered proper:

• The charges are “of the same or similar character.”
• The charges are “based on the same act or transaction.”
• The charges are based on two or more acts or transactions that are “connected together.”
• The charges are based on two or more acts or transactions that constitute “a common scheme or plan.”

Obear argues in the appeal brief that none of those provisions apply to all four of the charges Villareal stood trial on.

Two of the victims accused Villareal of touching them on a regular basis in class or at an after-school running club; a third victim accused Villareal of touching her over her pants when she went up to ask him a question at his desk. The fourth victim accused Villareal of cornering her in a classroom closet, pushing her up against a wall and rubbing his groin against her; conduct Obear said was “significantly different” than the conduct alleged by the other victims.

The charges against the fourth victim were not “of the same or similar character” as the other three charges, Obear said in the brief.

The charges should not be considered “connected together” or part of a “common scheme or plan,” Obear said, because “there is no proof” a scheme or plan existed. Villareal never created situations or opportunities to engage in his charged conduct, Obear wrote.

“The evidence proffered by the State makes it appear that these were crimes of opportunity rather than plan,” Obear wrote.

The charges were also not based on “the same act or transaction” because they occurred over a period of more than a year, a period that “can hardly be characterized as a single transaction,” Obear wrote.

Because none of the provisions applied to Villareal’s case, Obear argued, there was not sufficient legal justification for the charges to be joined. “If anything,” Obear wrote, the charge related to the fourth victim should have been severed.

The charge arising from the fourth victim was “the most serious” because it involved confinement, physical pushing and “grinding,” and verbal abuse in Villareal telling the victim to “shut up,” Obear wrote. None of those factors were present in any of the other victims’ cases.

Part of the analysis required in determining whether charges should be joined is whether the defendant will be prejudiced. Joining the fourth victim’s charge with the other three charges “substantially prejudiced” Villareal, Obear argued.

A jury would be much more likely to believe Villareal assaulted the other three victims if it believes the fourth victim was assaulted in the way that was alleged, Obear wrote.

“Jurors might reckon that if Mr. Villareal was such a bad actor that he treated [the fourth victim] the way he did, he surely must have done these lesser things against the other girls,” Obear argued.

That reasoning deprives Villareal of his constitutional right to have each charge proven beyond a reasonable doubt, the brief said. At least the fourth victim’s charge should have been severed to prevent this possible prejudice, Obear argued.

The joint charges also prejudiced Villareal by impacting his right to present a defense that should be largely unfettered, the brief said. If the fourth victim’s charge had been tried separately, the defense “would have been able to treat her cross-examination more probingly.”

Even if there was a legal basis to join the charges, Obear argues that the way the decision was made deprived Villareal of his due process rights to notice and a meaningful hearing.

The court did not afford Villareal a “fair opportunity to challenge” the joining of charges or an opportunity to present evidence, Obear wrote. Villareal was also not provided any notice of the court’s decision and therefore was denied the chance to prepare an argument.

“By acting sua sponte to join the charges in these matters without offering Mr. Villareal’s counsel time to research and prepare his counter-arguments as they relate to joinder, he was, to some extent, the victim of ‘litigation by ambush,’” Obear wrote.

It is “fundamentally unfair” for the court to rule on joining the charges without giving Villareal a meaningful opportunity to be heard, Obear argued.

A response to Villareal’s appeal has not yet been filed. Court records show an anticipated due date of Feb. 26 for a response.