COURT OF APPEALS DECISION DATED AND FILED July 29, 2009 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 WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Ricky H. Jones, Defendant-Appellant. |
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APPEAL from an order of the
circuit court for
Before
¶1 SNYDER, J. Ricky H. Jones appeals from an order denying his motion to admit two video recordings of police interviews with the alleged victims. Jones is charged with two counts of first-degree sexual assault of a child under the age of thirteen. Each of the two counts involve a different child. The video recordings show each of the girls being interviewed about unrelated charges they made against other men. Jones believes the videos are admissible to show that each victim has made prior untruthful allegations of sexual assault or, in the alternative, that he has a constitutional right to present this evidence to the jury. We reject Jones’ argument that he has a constitutional right to present the video evidence to the jury. However, we agree with Jones that the evidence may be admissible as a prior untruthful allegation under Wis. Stat. § 972.11(2)(b)3 (2007-08).[1] That determination requires further analysis by the circuit court. Accordingly, we reverse and remand the matter with directions.
BACKGROUND
¶2 Jones is charged with two counts of sexual assault, both involving children under the age of thirteen. He is alleged to have had sexual contact with six-year-old C.B. and to have engaged in sexual conduct with seven-year-old M.W. Both alleged assaults took place in 2006.
¶3 Prior to trial, Jones moved the court to admit two video recordings (DVDs) in which C.B. and M.W. describe how other men had assaulted them. In the first DVD, C.B. describes inappropriate touching by Robert S. during summer 2006. Robert had been in a relationship with C.B.’s mother. In his trial brief, Jones argued that C.B. makes false allegations against real or perceived suitors of her mother. No charges were brought against Robert as a result of C.B.’s allegations.
¶4 In the second DVD, M.W. describes sexual conduct initiated by David G., who was M.W.’s babysitter. The investigation revealed that M.W. had lied about visiting a pond while David was watching her, and David reported it to her parents. M.W. subsequently made the allegations of assault against David. In the child protective service report, the investigator notes that M.W.’s “[p]arents report [M.W.] has a history of lying about ‘important things.’” David was never charged.
¶5 Jones sought permission to present the DVDs as evidence, arguing that they demonstrated the girls’ prior false accusations and showed “motive, plan, and opportunity” to falsely accuse him of sexual assault. The circuit court held a hearing on June 13, 2008, where it concluded that the evidence should be excluded. In its rationale, the court stated:
[I]t’s acknowledged that neither of these two incidents, the one relating to [Robert], nor the one relating to [David], were charged as crimes by—either the district attorney’s office or any other agency.
From that, the defense concludes that [C.B’s and M.W.’s] allegations must have been untruthful. I think the defense … also points to the fact that [M.W.’s] mother says that she tells lies on big things or something similar to that.
The Court in reviewing this record can’t come to the conclusion that these young women lied. What the Court has concluded is that their version of an incident was unsubstantiated, which I find to be very much different than an untruthful allegation, and the unsubstantiated allegation, as those who practice in the area … of alleged sex offenses know, occurs not from time to time but very often ….
And in this case … based on my watching the interviews … [and] reading what I could find in the record either from the Department of Human Services or the police department, my reading is that nobody concluded that [the girls] were lying. There simply wasn’t enough, based on what they were able to transmit by way of an allegation, to charge these persons with crimes.
[T]he Court, therefore, doesn’t believe that these allegations can fairly be said to be untruthful allegations.
¶6 The court then went on to analyze whether, regardless of the
rape shield law exclusion, Jones had a constitutional right to present the
evidence in his defense. Applying the rationale
in State
v. Pulizzano, 155
DISCUSSION
¶7 Jones’ sole issue on appeal is whether the circuit court improperly
excluded the two DVD interviews, one of C.B. and one of M.W., each making
allegations of sexual assault by other men.
He presents three arguments to establish his right to use the DVDs in
his defense. He asserts the DVDs are
(1) admissible other acts evidence, (2) admissible demonstrations of prior
untruthful allegations of sexual assault, and (3) admissible components of his
constitutional right to present a defense.
Evidentiary rulings are discretionary, and therefore we review them
under an erroneous exercise of discretion standard. State v. Hammer, 2000 WI 92, ¶43,
236
¶8 We
begin with
¶9 To be deemed admissible under Wis. Stat. § 972.11(2)(b)3., evidence must meet three
criteria: (1) it must fit within the
language of the statute, (2) it must be material to a fact at issue in the
case, and (3) it must be of sufficient probative value to outweigh its
inflammatory and prejudicial nature. State
v. DeSantis, 155
¶10 The Moats court did indeed state that the defendant must “prove”
the prior allegations to be false, but it explained that the burden of proof is
met when a defendant demonstrates “that a reasonable person could reasonably
infer that the complainant made prior untruthful allegations of sexual assault.”
¶11 However, it is for the fact finder to determine credibility;
the circuit court’s inquiry should have been limited to whether a reasonable jury could reasonably infer
that the girls had been untruthful. In
its rationale, the circuit court commented that it “may be” that the police and
social workers who investigated the prior allegations “didn’t think crimes had
been committed” or possibly “they thought they were committed but that the
evidence simply didn’t rise to the level that would have merited a charge.” The court’s comment suggests that competing
but reasonable inferences may be drawn from the evidence. By ruling on the ultimate issue of
credibility, the court usurped the role of the jury. See
State
v. Norman, 2003 WI 72, ¶68, 262
¶12 When a circuit court applies the incorrect legal standard, it erroneously
exercises its discretion. State
v. Carlson, 2003 WI 40, ¶24, 261
¶13 If, on remand, the circuit court concludes that the DVDs are
not admissible under Wis. Stat. §
972.11(2)(b)3., the question of Jones’ constitutional right to present the
evidence will remain. For that reason,
in the interest of judicial efficiency, we address the issue here.
¶14 There
is a natural tension between the state’s interest in the integrity of its
evidentiary rules and a defendant’s constitutional right to present evidence.[3] In Pulizzano, 155
¶15 The State argues that Jones has not made any of the five
required showings. The circuit court
agreed, holding that the first element was not met because it did not believe that
prior untruthful allegations clearly occurred.
Without the first element, Jones failed to demonstrate a constitutional
right under Pulizzano to present the DVD evidence to the jury. The first factor under Pulizzano sets a
different standard than that in DeSantis. Jones’ burden under Pulizzano is to
demonstrate that prior untruthful allegations “clearly occurred”; however,
under DeSantis, Jones is required only to raise a reasonable
inference. See Pulizzano, 155
CONCLUSION
¶16 We reverse and remand to the circuit court to determine whether a reasonable person could reasonably infer that C.B. or M.W. was untruthful when making the prior allegations. We direct the circuit court to measure the offer of proof against the DeSantis factors to ascertain whether the DVDs are admissible under Wis. Stat. § 972.11(2)(b)3.
By the Court.—Order reversed and cause remanded with directions.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] When
two statutes addressing the same subject matter conflict, the specific controls
the general unless it appears the legislature indicated that the general
statute should prevail. State
v. Galvan, 2007 WI App 173, ¶7, 304
[3] State v. Pulizzano, 155 Wis. 2d 633, 643-48, 653-55, 456 N.W.2d 325 (1990), provides an overview of the conflict between the state’s interests in its evidentiary rules and the defendant’s constitutional right to present evidence in his or her defense.