State v. DeSantis
| Citation | 151 Wis.2d 504,445 N.W.2d 331 |
| Decision Date | 22 June 1989 |
| Docket Number | No. 88-1744-CR,88-1744-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, d v. John DeSANTIS, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
Michael J. Devanie and Phelps, Thompson & Koby, Ltd., on briefs, La Crosse, for defendant-appellant.
Donald J. Hanaway, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen., on brief, for plaintiff-respondent.
Before GARTZKE, P.J., and DYKMAN and EICH, JJ.
John DeSantis appeals from a judgment convicting him of second-degree sexual assault, contrary to sec. 940.225(2)(a), Stats. At trial, the court allowed a sexual assault counselor to testify as to the general behavior of sexual assault victims. The court did not allow a witness to testify regarding the complainant's allegedly untruthful prior sexual assault allegation, and did not allow DeSantis to cross-examine the complainant on this point.
The issues are whether the trial court abused its discretion by allowing the sexual assault counselor to testify and by not allowing testimony or cross-examination regarding the complainant's allegedly untruthful prior sexual assault allegation. We conclude that the trial court did not abuse its discretion by permitting the counselor's testimony, but did abuse its discretion by not allowing testimony or cross-examination regarding the complainant's allegedly untruthful prior sexual assault allegation. Therefore, we affirm in part and reverse in part.
John DeSantis was charged with second-degree sexual assault. The complainant testified at trial that she was walking home at approximately 2:30 a.m. After she unlocked her apartment door, DeSantis allegedly came up behind her, pushed her into her apartment and onto the floor, disrobed her and himself, and sexually assaulted her. A witness testified that she went to the complainant's apartment after the alleged assault and observed that the complainant was intoxicated and crying. She consoled the complainant. The witness testified that she had observed the complainant many times before in a similar state and that she tended to cry a lot when intoxicated.
Over DeSantis's objection, a sexual assault counselor testified about the general behavior of sexual assault victims. The trial court did not allow DeSantis to submit a witness's testimony that the complainant had made a prior rape allegation which she had later admitted was false. The trial court also refused to allow DeSantis to cross-examine the complainant regarding this incident.
Evidentiary rulings are within a trial court's discretion. State v. Fishnick, 127 Wis.2d 247, 257, 378 N.W.2d 272, 278 (1985). A trial court properly exercises its discretion if it examines the relevant facts, applies a proper view of the law, and, using a demonstrated rational process, reaches a conclusion that a reasonable judge could reach. State v. Schmitt, 145 Wis.2d 724, 729, 429 N.W.2d 518, 520 (Ct.App.1988). A trial court abuses its discretion if it relies upon an erroneous view of the law. Id.
The first issue is whether the trial court abused its discretion by allowing a sexual assault counselor to testify regarding sexual assault victims' general characteristics. 1 The state submitted this evidence to dispel a "common misperception" that the complainant's calm demeanor was inconsistent with being a sexual assault victim. The trial court concluded that evidence on this issue was relevant and that it would "assist the jury in the determination of a fact that they are required to make." 2
The sexual assault counselor's testimony is admissible under State v. Robinson, 146 Wis.2d 315, 333, 431 N.W.2d 165, 171-72 (1988). In that case, the witness testified to her observations of the complainant and other sexual assault victims. Id. She related that she had noted emotional flatness in such victims immediately after an assault and emotional shifts from "relative calmness to agitation in the hours, days, or weeks following the assault." Id. The witness in Robinson, like the witness in this case, offered no opinion evidence. Id. The Robinson court held this evidence "serves a particularly useful role by disabusing the jury of some widely held misconceptions about sexual assault victims." Id. at 335, 431 N.W.2d at 172-73. The supreme court reached similar conclusions in State v. Jensen, 147 Wis.2d 240, 250-52, 432 N.W.2d 913, 918 (1988).
DeSantis' counsel made much of the inference that the complainant was reluctant to press charges. The sexual assault counselor's testimony was relevant because it helped dispel any misconceptions the jury may have had regarding this behavior. DeSantis shows no error on this point. 3
DeSantis made an offer of proof through a witness who testified that, in the fall of 1985, the complainant had returned to her dormitory on a weekend night, intoxicated, crying and very upset and told the witness repeatedly that she had been raped. Then, in the spring of 1986, the complainant told the witness that "it didn't happen the way [I] had said it did." As an additional offer of proof, defense counsel also examined the complainant outside the jury's presence regarding the prior untruthful accusation of sexual assault she allegedly had made. She denied ever telling the witness that she had been raped. Rather, she testified that the incident involved an unfamiliar male putting his arm around her as she walked home one night. She testified she never denied at a later time that the incident had occurred. The court concluded that the evidence did not fit within an exception to the rape shield law, sec. 972.11, Stats., that it would lead to jury confusion, that it had little probative value, and that the prior incident was irrelevant and remote.
We first address whether this evidence was within one of the exceptions to Wisconsin's Rape Shield Law.
Section 972.11(2), Stats., provides in part:
(a) In this subsection, "sexual conduct" means any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangement and life-style.
(b) If the defendant is accused of a crime under s. 940.225 ... any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31(11):
1. Evidence of the complaining witness's past conduct with the defendant.
2. Evidence of specific instances of sexual conduct showing the source or origin of semen, pregnancy or disease, for use in determining the degree of sexual assault or the extent of injury suffered.
3. Evidence of prior untruthful allegations of sexual assault made by the complaining witness.
A witness testified that the complainant had come into the witness's college dormitory room one night, intoxicated, crying and very upset, and told her repeatedly that she had been raped outside their college dormitory. The witness then testified that the complainant later admitted this allegation was untrue. The complainant testified that this incident only involved a man putting his arm around her. We conclude that the witness's testimony constitutes evidence of a prior untruthful allegation 4 of sexual assault by the complainant. The testimony is therefore admissible, with some restrictions. Sec. 972.11(2)(b)3, Stats. The complainant testified she never told the witness she had been raped. That the witness's testimony may be false, however, does not go to the question of admissibility. Witness credibility is a separate determination to be made by the trier of fact. State v. Wyss, 124 Wis.2d 681, 694, 370 N.W.2d 745, 751 (1985).
The dissent concludes that courts should determine whether a prior allegation of sexual assault occurred by examining the emotional condition of the complainant and the status of the person to whom the complaint is made. These considerations are not relevant to the legislative determination that one who has falsely accused others of sexual assault in the past may do so again. A pattern or history of false assertions of any kind is not proven by showing the status of the person receiving the information or the emotional condition of the complainant.
We next determine whether this evidence was admissible under sec. 971.31(11), Stats., which provides in part: "In actions under s. 940.225 ... evidence which is admissible under s. 972.11(2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial."
In State v. Gavigan, 111 Wis.2d 150, 157 n. 3, 330 N.W.2d 571, 576 n. 3 (1983), the supreme court said that the following criteria are in accord with an evaluation of evidence under sec. 971.31(11), Stats. 5 Id. at 157, 330 N.W.2d at 576. The trial court did not discuss these criteria. However, where the trial court fails to set forth its reasoning in exercising its discretion on whether to admit evidence, we independently review the record to determine whether it provides a basis for the trial court's exercise of discretion. State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 502 (1983).
DeSantis claimed that no sexual assault had occurred and that any sexual contact with the complainant was consensual. The complainant contradicted...
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