State v. Chas, No. 2006AP598-CR (Wis. App. 10/31/2006), 2006AP598-CR.

• Decision Date: 31 October 2006
• Docket Number: No. 2006AP598-CR.,2006AP598-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Chas S., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 1

State of Wisconsin, Plaintiff-Respondent, v. Chas S., Defendant-Appellant.

Court of Appeals of Wisconsin, District III.

No. 2006AP598-CR.

Opinion Filed: October 31, 2006.

APPEAL from a judgment and an order of the circuit court for Dunn County: WILLIAM C. STEWART, JR., Judge. Affirmed.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶1 PER CURIAM.

Chas S. appeals a judgment convicting him of sexually assaulting his six-year-old daughter. He also appeals an order denying postconviction motions in which he requested a new trial or resentencing. He argues that: (1) the trial court denied him his right to present a defense when it disallowed testimony regarding attempts to relieve the victim's constipation, which Chas contends provides an alternative explanation for the child's damaged hymen; (2) the trial court violated Chas's due process rights by bolstering the child's testimony by asking questions after the attorneys completed their questioning and by granting the jury's request to have the victim's testimony read to them during deliberations; (3) an expert's testimony that victims underreport abuse was irrelevant and amounted to expressing an opinion that the victim was telling the truth; (4) the court improperly allowed hearsay testimony from a nurse that the victim told her that "dad had put his privates—his wiener" in her vagina; (5) the court relied on inaccurate information when sentencing Chas; and (6) new factors justify modification of the sentence.¹ We reject these arguments and affirm the judgment and order.

¶2 The victim testified to the effect that her father put his penis in her vagina. The defense attempted to impeach her testimony by the fact that she twice recanted her allegations and she gave inconsistent statements regarding several details regarding timing and location. The child first reported the sexual assault more than one year after it occurred. The defense suggested that the child was induced by her mother to report sexual assault to counter Chas's threat to attempt to gain custody of the children.

¶3 Other State witnesses included Lori Holmes, a social worker, who testified that it was not unusual for a child to delay reporting sexual abuse, to be unable to remember dates, to change details of allegations or to recant allegations. She also stated that children are much more likely to underreport abuse than exaggerate or make up such claims.

¶4 Julie Kennedy-Oehlert, a sexual assault nurse examiner, testified that the victim's hymen was damaged due to the insertion of something into her vagina. Chas sought to present evidence of a possible alternative cause of the damaged hymen. Through the testimony of his ex-wife and later through his own testimony, he sought to show that the child once suffered from constipation that required medial treatment. At the postconviction hearing, Chas testified that he witnessed the child's mother and grandmother attempt to extract a stool "by pressing on the vaginal and rectal areas, like they tried to pop a pimple." He did not witness anyone putting anything in the child's vagina, and he produced no medical records that showed any damage to her hymen at that time. The trial court disallowed any testimony at trial regarding the efforts to relieve the child's constipation because, in the absence of expert testimony, Chas failed to lay a proper foundation to establish that the treatment he described could have resulted in a torn hymen.

¶5 The trial court properly required expert testimony to establish that the actions of the victim's mother and grandmother could have resulted in the damage to her hymen. Even at the postconviction hearing, Chas did not present any expert testimony to establish a link between their actions and the torn hymen. The trial court properly concluded that expert testimony was required because making a causal link between the alleged treatment and the torn hymen is not within the realm of ordinary experience and common sense. See State v. Doerr, 229 Wis. 2d 616, 623, 599 N.W.2d 897 (Ct. App. 1999). The testimony of the examining nurse did not provide an adequate foundation for the testimony. She testified that nothing other than insertion of something into the vagina could cause that type of injury. Chas focuses on her testimony that "unless there is some pressure put directly on that tissue or near that tissue it generally stays intact." That single sentence does not provide an adequate foundation for Chas's alternate theory. The nurse was not asked whether placing thumbs on the exterior of the vagina could result in the damage she found in her examination. The nurse's single reference to damage "near that tissue" would not sufficiently enlighten the jury to allow it to accept Chas's alternate theory.

¶6 Because Chas did not lay a proper foundation for his alternate theory and presenting that theory would have encouraged jury speculation, the proffered evidence was irrelevant. A defendant's constitutional right to present evidence only extends to relevant evidence. See State v. St. George, 2002 WI 50, ¶¶14-15, 252 Wis. 2d 499, 643 N.W.2d 777.

¶7 The trial court did not violate Chas's due process rights when it questioned the victim after the attorneys completed their questioning. The court asked the victim whether she remembered the difference between a truth and a lie and whether her testimony was the truth. The witness nodded affirmatively to each question. This questioning did not reveal the trial court's view of the matters and did not turn the court into a "partisan." See State v. Nutley, 24 Wis. 2d 527, 562, 129 N.W.2d 155 (1964). The questions did not express any opinion whether the court believed the victim was telling the truth. From the non-leading questions, it was just as likely that the court was expressing doubt about her truthfulness. The court's questions did not deny Chas a fair trial.

¶8 The trial court properly exercised its discretion when it granted the jury's request to have the victim's testimony read to it. The jury's note asked for a "copy of [the victim's] court statement." The court reasonably construed the "court statement" as the child's testimony. The jury has a right to have the testimony read to it by the court reporter. See State v. Cooper, 4 Wis. 2d 251, 255-56, 89 N.W.2d 816 (1958). The trial court is vested with discretion as to how much of the testimony should be read. Id. The trial court reasonably chose to have the victim's testimony read back in its entirety. The court noted that the...