COURT OF APPEALS DECISION DATED AND FILED August 10, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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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. Joshua Daniel Wheeler,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Joshua Wheeler appeals a judgment, entered upon a jury’s verdict, convicting him of repeated first-degree sexual assault of a child contrary to Wis. Stat. § 948.025(1)(ar)[1] and repeated sexual assault of a child (with fewer than three violations of first-degree sexual assault) contrary to Wis. Stat. § 948.025(1)(b).[2] Wheeler argues the trial court erred by denying his motion to admit other crimes, wrong or acts evidence. We reject this argument and affirm the judgment.
Background
¶2 Wheeler was charged with two counts of repeated sexual assault of his stepdaughter, Candace E. The first count alleged offenses occurring when Candace was between seven and twelve years old, and the second count alleged offenses when Candace was between thirteen and fifteen years old. The State alleged Wheeler’s conduct had progressed from acts of fondling Candace’s breasts, to inserting his finger in her vagina, to fellatio and cunnilingus, to penis-to-vagina intercourse, all occurring inside the family home and continuing until some point after Candace turned fifteen years old.
¶3 The trial court denied Wheeler’s pre-trial “motion to admit other crimes, wrongs or acts evidence by the alleged victim.” A jury ultimately found Wheeler guilty of the crimes charged and the court imposed concurrent sentences totaling twenty years’ initial confinement and ten years’ extended supervision. This appeal follows.
Discussion
¶4 Wheeler argues the trial court erred by denying his motion to
admit other crimes, wrong or acts evidence.
Whether to admit evidence is addressed to the trial court’s
discretion. State v.
¶5 Here, Wheeler sought to admit evidence that Candace—eighteen years old at the time of trial—had, at age eleven, made an “unsubstantiated” accusation of sexual assault against her then-thirteen-year-old cousin, Tyler M. Wheeler likewise sought to admit evidence that during an interview with a social worker at the time she made the allegations against her cousin, she did not report that Wheeler was also abusing her. Wheeler sought to admit the evidence in order to challenge Candace’s credibility and establish there was an alternate source for her knowledge of sexual conduct.
¶6 The rape shield law, Wis.
Stat. § 972.11(2)(b), generally limits the admission of evidence of
a complainant’s prior sexual conduct because such evidence “has low probative
value and a highly prejudicial effect.” State
v. DeSantis, 155
¶7 Noting that Candace’s allegations against
¶8 At the pre-trial hearing, however, Wheeler offered insufficient evidence to support a reasonable person’s finding that Candace lied about the allegations involving her cousin and there is nothing in the record to support that conclusion. Wheeler merely attached a copy of the police report to his motion and emphasized the investigator’s conclusion that “[t]he allegations could not be substantiated at this point.” An unsubstantiated finding, however, is nothing more or less than what it purports.
¶9 Further, that Candace failed to contemporaneously accuse
Wheeler does not reasonably suggest she lied regarding the allegations against
her cousin. As an expert explained at
trial, child sexual-assault victims commonly delay reporting such assaults,
especially where the alleged perpetrator is a family member and authority
figure, like a stepfather. See,
e.g., State v. Huntington, 216
¶10 Moreover, the court reasonably determined that the proffered
evidence lacked sufficient probative value to outweigh its inflammatory and
prejudicial nature. DeSantis, 155
¶11 We likewise reject Wheeler’s companion claim that the proffered
evidence was relevant to establish an alternate source for Candace’s knowledge
of sexual conduct. To suggest that
Candace’s sexual knowledge arose from her encounters with
By the Court.—Judgment modified and, as modified, affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the
Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Although not an issue raised
on appeal or that adversely affects Wheeler, we note that the judgment of
conviction does not precisely reflect the jury verdict that found Wheeler
guilty of one count of repeated first-degree sexual assault of a child contrary
to Wis. Stat. § 948.025(1)(ar),
and one count of repeated sexual assault of a child (with fewer than three
violations of first-degree sexual assault) contrary to Wis. Stat. § 948.025(1)(b).
The current judgment indicates Wheeler was convicted of “first-degree sexual assault-intercourse with person under 12” contrary to Wis. Stat. § 948.02(1)(b), and repeated sexual assault of the same child (with fewer than three violations of first-degree sexual assault) contrary to Wis. Stat. § 948.025(1)(b). The judgment further indicates Wheeler was convicted after a trial to the court rather than pursuant to a jury’s verdict. Because these appear to be clerical errors, upon remittitur, the court shall enter an amended judgment of conviction correctly describing Wheeler’s convictions and the means by which he was convicted.
[3] The court having considered
the State’s citation to supplemental authority and Wheeler’s response, we
conclude that further support for omission of the proffered evidence may be
found in State v. Ringer, 2010 WI 69, __
[4] Alternatively, we agree with
the State’s assertion that any error was harmless for the reasons stated in its
brief. Moreover, because Wheeler’s reply
brief does not address the State’s harmless error analysis, he has conceded the
argument. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90