COURT OF APPEALS DECISION DATED AND FILED February 26, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Ted L. Day,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Ted Day appeals a judgment of conviction for one count of first-degree sexual assault of a child. He argues the court erroneously exercised its discretion in excluding expert testimony, an exculpatory photo, and evidence of the alleged victim’s reputation for truthfulness. He also argues the court should have declared a mistrial, and asks us to exercise our supervisory power to reverse the judgment because the circuit court did not record sidebar conferences. We conclude the court erroneously exercised its discretion in excluding Day’s expert testimony and the exculpatory photo, and those errors were not harmless. We therefore reverse the judgment and remand for further proceedings.[1]
Background
¶2 In November 2002, Day was charged with five counts of first-degree sexual assault of a child. Two of the counts were dismissed prior to trial, and the three remaining counts were tried to a jury in December 2005.[2] All counts alleged sexual contact with Elise R., a foster child living in Day’s home, while she was between eight and ten years old.
¶3 At trial, Elise testified Day had touched her vagina on three occasions. One incident occurred in the master bathroom of Day’s house and the other two took place in her bedroom. Elise testified that during one of the incidents in her bedroom, Day touched her vagina with his penis and ejaculated on her. The state crime lab identified three stains on Elise’s comforter that contained semen and Day’s DNA.
¶4 Sheryl Day,[3] who was married to Day at the time of the alleged assaults, testified Elise told her about the incidents and said Day “had a lot of hair down there and it was gray.” Sheryl said Day’s pubic hair was in fact gray at the time. A doctor who had performed a sexual assault examination on Elise said Elise also told him Day had gray pubic hair.
¶5 Day’s defense was that Elise had made up the allegations in response to leading questions from Sheryl and one of Sheryl’s daughters, and his semen had ended up on Elise’s comforter when he and Sheryl had sex on it in the family room. To that end, Day offered, among other things, photos of his pubic hair taken by the defense investigator. The photos had been taken the day before, in response to the witness testimony that Day’s pubic hair was gray, and depicted brown pubic hair. The State objected, arguing the photos had not been provided as discovery and were not relevant. The court sustained the objection:
First of all, I think that this evidence should have been disclosed, but I’m also aware that hair color can easily be changed in this day and age, and … the color of his pubic hair today is not the issue, it’s what it was at the time of the alleged offenses, so while this evidence may be relevant, I am excluding it because I find that its probative value is substantially outweighed by the danger of unfair prejudice and confusion of the issues and misleading the jury.
¶6 Day also offered expert testimony on his psychological
profile, commonly referred to as Richard A.P.[4]
testimony. Day’s expert, Dr. Christopher Tyre, was a psychologist
specializing in sex offender risk employed by the Department of
Corrections.
¶7 The court excluded this evidence as well:
[T]his court concludes that Dr. Tyre is qualified as an expert, that his area of testing is suitable for expert opinion and that his opinion is relevant to the issue of guilt or innocence of the defendant.
But I also find quite significant that [Tyre] did not know about or consider the DNA results, that the defendant was not forthcoming as to the reasons for dissolution of his marriage,[[6]] and that the scores on the tests were very open for manipulation because they rely on self-reporting. And it is my determination that although the testimony in this case would be relevant, it is to be excluded because its probative value is substantially outweighed by the danger of unfair prejudice and the clear danger of misleading the jury, and I am not going to permit his testimony.
¶8 Day was convicted on count two—the count supported by the evidence of semen and Day’s DNA on Elise’s comforter—and acquitted on the other two charges.
Discussion
¶9 A circuit court’s decision to exclude evidence is
discretionary and will be upheld unless the court erroneously exercised its
discretion. State v. Ford, 2007
WI 138, ¶30, 742 N.W.2d 61. A court properly exercises its discretion when it
relies on the relevant facts in the record and applies the proper legal
standard to reach a reasonable decision. LeMere
v. LeMere, 2003 WI 67,
¶13, 262
¶10 Under Wis. Stat. § 904.03:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Unfair prejudice exists to the extent that a piece of evidence “appeals
to the jury’s sympathies, arouses its sense of horror, provokes its instinct to
punish or otherwise causes a jury to base its decision on something other than
the established propositions in the case.”
State v. Davidson, 2000 WI 91, ¶73, 236
¶11 In this case, the court concluded the photos of Day’s pubic hair were relevant. However, the court excluded the photos under Wis. Stat. § 904.03 because “hair color can easily be changed in this day and age,” and therefore the photos did not necessarily indicate the color of Day’s pubic hair at the time of the assaults.[7]
¶12 This analysis reflects a misapplication of Wis. Stat. § 904.03. While the possibility that Day had colored
his pubic hair goes to the probative value of the evidence, it does not present
a “danger of unfair prejudice, confusion of the issues, or misleading the jury….” See
id. The court did not identify any risk that the
photos would have inflamed the jury’s sympathies, the jury would have used the
photos for any improper purpose, or the jury would have been confused about the
photos’ significance. See id.; see also Davidson, 236
¶13 The State argues the photos had “no probative value” because they were taken at the time of trial rather than close to the time the assaults took place. However, the court found the photos were relevant, and we agree with its assessment. As Day points out, the jury would have viewed the photos in the context of life experience that brown hair turns gray over time, not the other way around. The photos therefore were relevant to the color of Day’s pubic hair at the time of the assaults, even though they were taken well after the assaults took place. While the State could have undercut this inference by pointing out the possibility that Day had colored his pubic hair, this goes to the weight the jury would have given the photos. It does not mean the photos lacked “any tendency” to show Day’s pubic hair was brown in 2002. See Wis. Stat. § 904.01.
¶14 The court’s decision to exclude Day’s Richard A.P. testimony
suffers from a similar flaw. In his
offer of proof, Day’s expert, Dr. Tyre, testified he had not been aware of the
DNA results and would have found the results to be “very significant,” although
he did not indicate precisely how he would have used that information.
¶15 As with the photos of Day’s pubic hair, all of the reasons
given by the court go to the weight of the testimony, not the risk that the
testimony would result in unfair prejudice or confusion. First, while
¶16 Similarly, at the circuit court the State suggested Day’s
reluctance to discuss his first marriage may have been because of sexual issues
between Day and his first wife, and this would undermine
¶17 Finally, Day’s ability to manipulate the tests was also an
issue of weight, not unfair prejudice or jury confusion.
¶18 The State argues
¶19 It is well settled law that when we review a court’s exercise
of discretion, our focus is on the court’s reasoning process, not the ultimate
result. Johnson v. Johnson,
225
¶20 The State does not argue either of these errors was harmless. See
State
v. Dyess, 124
By the Court.—Judgment reversed and
cause remanded for further proceedings.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Because
the two evidentiary issues require reversal, we need not address the remaining
issues Day raises. See Gross
v. Hoffman, 227
[2] An amended Information with the three remaining counts was filed on the first day of trial.
[3] By the time of the trial, Sheryl Day had changed her last name to Wojnowiak.
[4]
[5] See Wis. Stat. ch. 980. All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[6] This statement referred to Day’s first marriage, not his marriage to Sheryl.
[7] The court also noted that the photos had not been turned over earlier in discovery. The State does not argue the photos were properly excluded based on a discovery violation.
[8] In
its brief, the State appears to argue
[9] The full name of the MMPI-2 is the Minnesota Multiphasic Personal Inventory, second edition. The full name of the PCL-R is the Hare Psychopathy Checklist.
[10] The
supreme court criticized the circuit court’s statements that the expert
testimony was “unreliable” and that a battle of experts would be
confusing. State v. Walters, 2004 WI
18, ¶¶34-35, 269
[11] The State’s DNA expert was not asked whether the semen and DNA sample could have been created by intercourse between Day and Sheryl.