State v. Dodson, 96-1306-CR

• Citation: 219 Wis.2d 65,580 N.W.2d 181
• Decision Date: 19 June 1998
• Docket Number: No. 96-1306-CR,96-1306-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Richard DODSON, Defendant-Appellant-Petitioner.
• Court: United States State Supreme Court of Wisconsin

Page 181

580 N.W.2d 181

219 Wis.2d 65

STATE of Wisconsin, Plaintiff-Respondent, v. Richard DODSON, Defendant-Appellant-Petitioner.

No. 96-1306-CR.

Supreme Court of Wisconsin.

Argued Feb. 20, 1998.

Decided June 19, 1998.

For the defendant-appellant-petitioner there were briefs by Michael J. Backes, and Law Offices of Michael J. Backes, Milwaukee and oral argument by Michael J. Backes.

For the plaintiff-respondent the cause was argued by Warren D. Weinstein, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

¶1 WILLIAM A. BABLITCH, Justice

Defendant Richard Dodson (Dodson) seeks review of a court of appeals' decision reversing one conviction and affirming two convictions for first-degree sexual assault of a child. The reversed count was based on sexual intercourse with a child; the two affirmed counts were based on sexual contact with a child. Dodson argues that evidence of a prior sexual assault of the victim, which the court of appeals held was erroneously excluded as to the reversed count, was likewise erroneously excluded on the other two affirmed counts. Thus, Dodson asserts, the two convictions affirmed by the court of appeals should be reversed. We agree. Because we conclude that the exclusion of this evidence violated Dodson's right to a fair trial and that the State of Wisconsin's (State's) interest in excluding the evidence under the rape shield law does not overcome his right, we reverse that part of the court of appeals' opinion which affirmed the two convictions and remand for a new trial. We further conclude that the modified jury instruction given to the jury was misleading.

¶2 The defendant, Richard Dodson, was charged with three counts of intentionally sexually assaulting a child who has not yet attained the age of 13 years, contrary to Wis. Stat. § 948.02(1) (reprinted below). ¹ Counts one and two were based on allegations of sexual contact (defined below) ² with the child, B.W.S. Count three was based on an allegation of sexual intercourse (defined below) ³ with the child, B.W.S. The jury convicted the defendant of all three counts. Dodson was also charged with one count of intentionally exposing a child to harmful materials, contrary to Wis. Stat. § 948.11(2)(a). The jury acquitted him of this charge. The Kenosha County Circuit Court, S. Michael Wilk, Judge, entered judgment on the three convictions for first-degree sexual assault.

¶3 Dodson appealed his convictions, arguing that the circuit court erred in excluding evidence, presented by an offer of proof, that the victim had been previously sexually assaulted by a third party, Bobby M. Defense counsel offered this evidence to provide an alternative source for the child's sexual knowledge and to rebut the State's evidence of physical injury to the child. In an unpublished decision, State v. Dodson, No. 96-1306-CR, unpublished slip op., 1997 WL 265264 (Wis.Ct.App. May 21, 1997), the court of appeals applied the test laid out by this court in State v. Pulizzano, 155 Wis.2d 633, 647-48, 456 N.W.2d 325 (1990), to determine whether application of the rape shield law, Wis. Stat. § 972.11(2), violated the defendant's Sixth Amendment constitutional right to present a defense. The court of appeals reversed count three, first-degree sexual assault based on sexual intercourse, because the court determined that evidence of the prior sexual assault should have been admitted.

¶4 However, the court of appeals declined to reverse counts one and two, both for first-degree sexual assault based on sexual contact. The court determined that those convictions were based on "other discrete incidents" which do not closely resemble the proffered evidence of alleged sexual intercourse by Bobby M. See Dodson, No. 96-1306-CR, unpublished slip op. at 13. Therefore, the court remanded for a new trial only on count three.

¶5 Dodson also argues that the circuit court erred by submitting a modified version of Wis JI--Criminal 255 to the jury regarding the State's obligation to prove when the alleged events took place. The court of appeals determined that the circuit court did not err. The court reasoned that Dodson neither claimed an alibi for the time period alleged in the information nor did the instruction confuse the jury. This court accepted Dodson's petition for review of the court of appeals' decision on these two issues.

¶6 The first question presented in this case, whether the circuit court erred in excluding evidence of a prior sexual assault committed on the victim by a third party, is a question of constitutional proportion. Whether the circuit court's determination denied Dodson his Sixth Amendment right to present a defense is a question of constitutional fact which this court reviews de novo. See In Interest of Michael R.B., 175 Wis.2d 713, 720, 499 N.W.2d 641 (1993) (citing Pulizzano, 155 Wis.2d at 648, 456 N.W.2d 325).

¶7 Wisconsin's rape shield law, Wis. Stat. § 972.11(2) (reprinted below), ⁴ generally prohibits the introduction of evidence regarding the complainant's prior sexual conduct. See § 972.11(2)(b). "[G]enerally evidence of a complainant's prior sexual conduct is irrelevant or, if relevant, substantially outweighed by its prejudicial effect." Pulizzano, 155 Wis.2d at 644, 456 N.W.2d 325. The statute does, however, provide three exceptions which represent "those limited circumstances in which evidence of a complainant's prior sexual conduct is generally viewed as probative of a material issue without being overly prejudicial." Id. The exceptions include evidence of the victim's past sexual conduct with the defendant; evidence of specific instances of sexual contact showing an alternative source of semen, pregnancy or disease; or evidence that the victim made prior untruthful allegations of sexual assault. See § 972.11(2)(b)1, 2, 3. In the present case, we agree with the court of appeals that evidence regarding prior sexual assault perpetrated on the child by a third party does not fall within one of these statutory exceptions.

¶8 This does not, however, end our inquiry. In Pulizzano, this court determined that Wis. Stat. § 972.11(2) is constitutional on its face, but as applied it may unconstitutionally deprive a defendant of his or her rights to a fair trial, confrontation, and compulsory process. See Pulizzano, 155 Wis.2d at 647, 456 N.W.2d 325. "[I]n the circumstances of a particular case evidence of a complainant's prior sexual conduct may be so relevant and probative that the defendant's right to present it is constitutionally protected." Id.

¶9 The concern pervasive throughout the Pulizzano analysis is the defendant's right to a fair trial, guaranteed by Article I, § 7 of the Wisconsin Constitution ⁵ and the Sixth Amendment to the U.S. Constitution. ⁶

The rights guaranteed by the confrontation and compulsory process clauses are fundamental and essential to achieving the constitutional objective of a fair trial. The two rights have been appropriately described as opposite sides of the same coin and together, they grant defendants a constitutional right to present evidence. The former grants defendants the right to 'effective' cross-examination of witnesses whose testimony is adverse, while the latter grants defendants the right to admit favorable testimony. The right to present evidence is not absolute, however. Confrontation and compulsory process only grant defendants the constitutional right to present relevant evidence not substantially outweighed by its prejudicial effect.

Pulizzano, 155 Wis.2d at 645-46, 456 N.W.2d 325 (internal citations omitted).

¶10 To determine whether Wis. Stat. § 972.11(2), as applied, deprives a defendant of his or her constitutional rights and therefore, to admit evidence normally barred by the rape shield statute, the Pulizzano court established a two-part process. First, the defendant must establish his or her constitutional rights to present the proposed evidence through a sufficient offer of proof. See id. at 648-49, 456 N.W.2d 325. A sufficient offer of proof must meet five tests: "(1) that the prior acts clearly occurred; (2) that the acts closely resembled those of the present case; (3) that the prior act is clearly relevant to a material issue; (4) that the evidence is necessary to the defendant's case; and (5) that the probative value of the evidence outweighs its prejudicial effect." Id. at 656, 456 N.W.2d 325.

¶11 Second, if the defendant meets the five-part showing in his or her offer of proof to establish a constitutional right to present evidence, the court must determine whether the defendant's rights to present the proffered evidence are nonetheless outweighed by the State's compelling interest to exclude the evidence. See id. at 653, 456 N.W.2d 325. The court must closely examine and weigh the State's interests against the defendant's constitutional rights to present the evidence, as measured by the five factors listed above. See id. at 654-55, 456 N.W.2d 325.

¶12 The Pulizzano court concluded that, based on the above analysis, Wis. Stat. § 972.11 was unconstitutional as applied in Pulizzano's case. However, "[w]hether the statute is unconstitutional as applied in other instances is to be resolved on a case-by-case basis." Id. at 655, 456 N.W.2d 325.

¶13 Before turning to the five-part Pulizzano test, we must discuss the offer of proof itself. "The offer of proof need not be stated with complete precision or in unnecessary detail but it should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt." Milenkovic v. State, 86 Wis.2d 272, 284, 272 N.W.2d 320 (Ct.App.1978).

¶14 Two purposes are served by an offer of proof: first, provide the circuit court a more adequate basis for an evidentiary ruling and second, establish a meaningful record for appellate review. See State ex rel. Schlehlein v. Duris, 54 Wis.2d 34, 39, ...