COURT OF APPEALS DECISION DATED AND RELEASED October 17, 1996 |
NOTICE |
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Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. |
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No. 95-2743-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GREGORY J. CRAPP,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Green County:
WILLIAM D. JOHNSTON, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Gregory J. Crapp appeals from a judgment of conviction
resulting from a jury trial in which he was found guilty of first-degree sexual
assault of a child, contrary to § 948.02(1), Stats., and intentional child abuse, contrary to
§ 948.03(2)(b), Stats. For the reasons set forth below, we affirm.
On Friday, March 12,
1993, R.M.K., then age three, indicated to her mother that she did not want to
go to the day care facility, which Crapp's girlfriend operated, because she
"hate[d] Greg." In the course
of further conversation over the weekend, R.M.K. told her mother that Greg hurt
her "butt." On Monday, March
15, R.M.K. was examined by pediatrician Dr. Amy Johnson, who found her hymen
missing, along with other physical indicia of sexual abuse, including
reddening, a tear and enlargement. On
the basis of the missing hymen, Johnson concluded that R.M.K. had been serially
sexually abused.
Further consultations
with a social worker and a psychologist confirmed R.M.K.'s belief that the
defendant sexually abused her. However,
unlike Dr. Johnson's conclusion of serial sexual abuse, R.M.K. indicated to the
social worker and psychologist that she had been abused once.
In order to clear up any
confusion, this court granted defendant's motion for another physical
examination. State v. Crapp,
No. 94-0922-CR (Wis. Ct. App. Aug. 31, 1994).
In that examination, another expert witness, Dr. Barbara O'Connell,
found a crescentic hymen—that is, R.M.K.'s hymen existed, but had a
crescent-shaped opening in it.
Crapp next argues that
the circuit court erred when it denied his motion to exclude Dr. Johnson's
testimony as incredible and irrelevant.
We disagree.
Generally, the
admissibility of evidence is submitted to the sound discretion of the trial
court, and its rulings will not be overturned unless there was an erroneous
exercise of discretion. Vonch v.
American Standard Ins. Co., 151 Wis.2d 138, 150, 442 N.W.2d 598, 602
(Ct. App. 1989). If there was a
"reasoned and reasonable" rationale for the trial court's decision,
we will uphold it on appeal. Hartung v. Hartung, 102 Wis.2d 58,
66, 306 N.W.2d 16, 20 (1981).
The court here held that
although the expert testimony was not the same, it was a matter open to
"interpretation" as to whether there was
"disagreement." Thus, the
court decided to leave to the jury the issue of which doctor to believe. Dr. Johnson was subjected to extensive
cross-examination at trial, and Crapp was permitted to examine his own experts
out of turn, immediately after Dr. Johnson's testimony. Crapp also elicited from Dr. Johnson that on
her own re-examination, she, too, found a rim of hymenal tissue.
The court did not err in
permitting Dr. Johnson to testify.
First, the court correctly exercised its discretion in determining that
Crapp had not shown an irreconcilable "disagreement." As the State points out, the testimony of
the two experts is not as contradictory as Crapp posits. A crescentic hymen is not
"intact," and Dr. Johnson testified that her own later examination
also revealed a rim of tissue. The
court put its "reasoned and reasonable" rationale on record, and we
must defer to that rationale. Hartung,
102 Wis.2d at 66, 306 N.W.2d at 20.
Second, the court did
not err in permitting Dr. Johnson's testimony because credibility of the
witnesses and the inferences to be drawn from their testimony is a matter for
the fact finder, which here was the jury.
Martin v. State, 87 Wis.2d 155, 163, 274 N.W.2d 609, 612
(1979). A jury's findings of fact must
be treated with deference by a reviewing court. Vonch, 151 Wis.2d
at 151, 442 at 603. The jury could reasonably
rely upon the testimony it found most credible and disregard any contradictory
testimony. Based on the evidence
presented, the jury could have found, beyond a reasonable doubt, that the
defendant assaulted and abused R.M.K.
Crapp also argues that
it was error to permit the social worker and the psychologist to testify.[1] However, Crapp waived all objection and
affirmatively withdrew his motion to exclude the social worker and psychologist
testimony. Having invited the error, if
it is error, he is estopped from now complaining that it occurred. Soo Line R.R. Co. v. Office of the
Comm'r of Transp., 170 Wis.2d 543, 557, 489 N.W.2d 672, 678 (Ct. App.
1992).
Crapp's next argument,
that the evidence was insufficient to convict, is based on his contention that
the testimony of Dr. Johnson, the social worker and the psychologist was
inadmissible. We reject that
contention.
Further, even if Dr.
Johnson was wrong regarding the absence of R.M.K.'s hymen, she was not
contradicted regarding the other physical indicia of sexual abuse, such as
reddening, enlargement and tearing. And
the social worker's and the psychologist's testimony was corroborated by
R.M.K.'s mother's testimony about R.M.K.'s behavior, her fear of Crapp and her
allegations of his harming her.
The circuit court
scheduled an evidentiary hearing on Crapp's postconviction motion regarding
jury improprieties. However, at the
time set for hearing, the court determined that Crapp had not met the threshold
requirement of showing that extraneous information had come before the
jury. Rule
906.06(2), Stats.[2] The court did not permit the hearing to go
forth.
Defendant assails this
change of heart as "absolutely unjust." However, he cites no legal precedent, nor does he discuss the
applicable statute (not even in his reply brief after the State had noted this
deficiency). We will not consider
arguments unsupported by legal authority.
State v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370,
378 (Ct. App. 1980); see also In re Estate of Balkus, 128 Wis.2d
246, 255 n.5, 381 N.W.2d 593, 598 (Ct. App. 1985).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] He also argues that it was plain error to permit Dr. Johnson to testify. In light of our previous analysis, we do not readdress that issue.
[2] Section 906.06, Stats., reads:
(1) A member of the jury may not testify as a
witness before that jury in the trial of the case in which the member is
sitting as a juror. If the juror is
called so to testify, the opposing party shall be afforded an opportunity to
object out of the presence of the jury.
(2) Upon an inquiry into the validity of a
verdict or indictment, a juror may not testify as to any matter or statement
occurring during the course of the jury's deliberations or to the effect of
anything upon the juror's or any other juror's mind or emotions as influencing
the juror to assent to or dissent from the verdict or indictment or concerning
the juror's mental processes in connection therewith, except that a juror may
testify on the question whether extraneous prejudicial information was
improperly brought to the jury's attention or whether any outside influence was
improperly brought to bear upon any juror.
Nor may the juror's affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded from testifying be
received.
(Emphasis supplied.)