COURT OF APPEALS DECISION DATED AND RELEASED January 25, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
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Nos. 94-2757-CR
94-3133-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID W. HENDRICKS,
Defendant-Appellant.
APPEALS from a judgment
and an order of the circuit court for Monroe County: MICHAEL J. McALPINE, Judge.
Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER
CURIAM. A jury found David W. Hendricks guilty of four counts
of first-degree sexual assault of a child and three counts of second-degree
sexual assault of a child. The charges
arise from sexual contact between Hendricks and the two daughters of Cindy E.,
his live-in girlfriend at the time of the assaults.
Hendricks's theory of
defense was that the girls fabricated their stories because they were unhappy
with his presence in the house.
Hendricks's theory also suggested that Cindy was encouraging her
daughters to lie because she wanted Hendricks out of the house.
On appeal, Hendricks
contends that the trial court erroneously limited his cross-examination in two
regards. First, Hendricks wanted to ask
Cindy what she had done with a car, a dog, and a dirt bike. According to an offer of proof at trial and
testimony at the postconviction hearing, Hendricks wanted to show that Cindy
had misappropriated each item of property after he was jailed, and that Cindy
was motivated to lie to keep Hendricks in jail. Hendricks also attempted to question Cindy about her relationship
with Mark Zebell. According to Hendricks,
Zebell was Cindy's new boyfriend, and she wanted to keep Hendricks in jail so
that she could continue her relationship with Zebell. The trial court ruled that both lines of inquiry were not
relevant. Because the trial court
properly exercised its discretion, we affirm.
Unless otherwise
prohibited, relevant evidence is admissible.
Section 904.02, Stats. Evidence is relevant if it has "any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence." Section
904.01, Stats.
In the arena of cross-examination,
the proper test "`is not whether the answer sought will elucidate any of
the main issues in the case but whether it will be useful to the trier of fact
in appraising the credibility of the witness and evaluating the probative value
of the direct testimony.'" State
v. Lindh, 161 Wis.2d 324, 348, 468 N.W.2d 168, 176 (1991) (quoting Rogers
v. State, 93 Wis.2d 682, 689, 287 N.W.2d 774, 777 (1980)). Cross-examination will not be allowed unless
there is a reasonable relation between the evidence sought to be introduced and
the proposition to be proved. Id.
The scope of proper
cross-examination is a question committed to the broad discretion of the trial
court. Id. This court will reverse a trial court's
limitation or prohibition of cross-examination offered to show bias only if the
ruling "represents a prejudicial abuse of discretion." Id. at 348-49, 468 N.W.2d at
176. This court will affirm if a
reasonable basis exists for the trial court's ruling. Id. at 349, 468 N.W.2d at 176.
Hendricks contends that
Cindy's misappropriation of his property "goes directly to [her] motive to
lie and to urge her daughters to do the same.
[It] shows a financial motive ... to keep [him] incarcerated." Hendricks relies on State v. Johnson,
184 Wis.2d 324, 338-39, 516 N.W.2d 463, 467 (Ct. App. 1994), in which this
court ruled that a victim's attempt to gain possession of a defendant's
property following her accusation and the defendant's incarceration was highly
probative to a theory of defense that the victim was falsely accusing the
defendant for financial gain.
Given these facts, Johnson
is not controlling. Unlike Johnson,
Cindy was not the victim of these crimes.
Her daughters were accusing Hendricks, and accusations against Hendricks
were first made several months before his incarceration and Cindy's
actions. Thus, the nexus between the
accusations and Cindy's conduct was largely speculative. See Lindh, 161 Wis.2d
at 350-51, 468 N.W.2d at 176-77.
Additionally, the record
shows that Cindy did not believe her older daughter when she told her mother of
Hendricks's conduct. Rather than urging
her daughter to pursue the matter, Cindy did nothing, and encouraged her
daughter to do the same. There is no
evidence that Cindy urged either of her children to accuse Hendricks of sexual
assault. Therefore, the trial court did
not misuse its discretion when it limited Hendricks's cross-examination on this
point.
Hendricks also contends
that evidence of Cindy's relationship with Mark Zebell was relevant because it
suggested a reason for Cindy to lie in order to keep Hendricks
incarcerated. The trial court's
limitation in this area was a proper discretionary ruling. First, we note that evidence that Zebell was
Cindy's current boyfriend was before the jury.
More importantly, it is undisputed that Hendricks had moved out of the
house before Cindy's daughters talked with a police officer about the
assaults. And, as noted above, the
older daughter told Cindy and a school friend about the assaults many months
before Zebell and Cindy became involved with each other. The nexus between their relationship and the
accusations is simply lacking.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.