State v. Dunlap, 99-2189-CR.

• Decision Date: 04 October 2000
• Docket Number: No. 99-2189-CR.,99-2189-CR.
• Citation: 2000 WI App 251,239 Wis.2d 423,620 N.W.2d 398
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Charles A. DUNLAP, a/k/a Char Lee Dancing Eagle, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

239 Wis.2d 423

2000 WI App 251

620 N.W.2d 398

STATE of Wisconsin, Plaintiff-Respondent,¹ v. Charles A. DUNLAP, a/k/a Char Lee Dancing Eagle, Defendant-Appellant.

No. 99-2189-CR.

Court of Appeals of Wisconsin.

Submitted on briefs May 4, 2000.

Decided October 4, 2000.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Marguerite M. Moeller, assistant attorney general, and James E. Doyle, attorney general.

Before Nettesheim, Anderson and Snyder, JJ.

¶ 1. ANDERSON, J.

Charles A. Dunlap appeals from a judgment of conviction for first-degree sexual assault of a child contrary to WIS. STAT. § 948.02(1) (1987-88)² and an order denying his postconviction motion requesting a new trial. Dunlap argues that the State opened the door to cross-examination of its expert witness about complainant Jamie F.'s sexual behavior prior to the alleged assault when the expert testified that Jamie's behavior was consistent with that of child sexual assault victims. Because the information about Jamie's behavior was in a report made by the expert using statements from an individual who is now deceased, the circuit court ruled that the evidence was inadmissible as hearsay and that the State had not opened the door to such evidence through the expert's testimony. Dunlap asserts that this evidentiary decision was erroneous and prejudicial.

¶ 2. Dunlap also posits an alternative argument. He claims that his trial counsel was ineffective for failing to request a pretrial hearing as required by WIS. STAT. § 972.11, the rape shield law, to attempt to get the evidence of Jamie's prior sexual behavior admitted.

¶ 3. Because we conclude that Dunlap was erroneously precluded from cross-examining the expert about Jamie's sexual behavior prior to Dunlap's alleged assault, we do not consider his alternative argument. We reverse the conviction and order a new trial.

BACKGROUND

¶ 4. On November 7, 1989, Dunlap babysat six-year-old Jamie at the home of Susan Smith and Gary Cox. Two days later, Jamie informed her father that Dunlap had touched her private parts when he babysat her, and her father notified the police. When reporting the incident to the police, Jamie's mother stated that her daughter further revealed that Dunlap "had taken her to bed, laid on the [bed] with her, and placed his hand inside her underwear and played with her private parts." Jamie also told her mother that Dunlap told her that this was a secret just between the two of them and that she should not tell anyone about it.

¶ 5. At the time of the incident, Dunlap, a friend of Cox's from out of state, had been staying at Smith and Cox's home for two weeks. After Cox confronted Dunlap about Jamie's allegation, Dunlap moved out of Smith and Cox's house. Eight years later, Dunlap was arrested in California and returned to Wisconsin to be tried on the charge. At his arraignment, Dunlap pled not guilty. ¶ 6. Prior to trial, Dunlap moved the court to permit an in camera inspection of Jamie's medical and therapy records. Dunlap argued that these records might contain exculpatory evidence. Supporting his claim, he referenced an interview the police conducted with Cox on March 10, 1998. In that interview, Cox stated that he had observed Jamie behave inappropriately for her age. Cox claimed, "She would rub up against people and when she sat on your lap she would rub against or move around on your private parts...." Cox also stated that he had advised his son, Shawn, to stay clear of her. Additionally, Cox informed the officer that Jamie had made untrue allegations against him while she was in therapy, which she later recanted and revealed that she had invented because she was mad at Cox. After a hearing, the court granted the motion. Once it had reviewed Jamie's records, the court determined that they contained no exculpatory evidence.

¶ 7. A three-day jury trial began. The State called Jamie, now fifteen years old, to testify about the incident. On the night of November 7, 1989, she remembered being dropped off at Smith and Cox's house while her mother attended a meeting. Smith left with Jamie's mother, and Jamie was left at the house with Dunlap and Shawn. Jamie claimed that the assault occurred after she went into Smith's bedroom to sleep. She said that a little while later Dunlap came into the bedroom. Jamie described what happened next:

He laid down beside me, and he started to rub my back, and he started to move down lower, and ... he touched my ass, and then moved to the front and touched my vagina.

She stated that Dunlap rubbed but did not penetrate her vagina with his finger and that he told her not to tell anyone about the incident or he would kill her parents. The incident stopped when her mother returned to the house. Jamie testified that on the way home from Smith and Cox's house she told her mother that "Charlie Dunlap sexually assaulted me." Two days later, she told her father about the incident.

¶ 8. On cross-examination, defense counsel questioned Jamie about inconsistencies in the details of the testimony that she gave to social worker Theresa Hanson shortly after the incident compared to the statements she made eight years later at the preliminary hearing and at the trial. At the preliminary hearing, Jamie had testified that Shawn was not present at Smith and Cox's home on the night of the assault and that she was alone with Dunlap. This statement was inconsistent with the statement she made to Hanson in 1989 and with her testimony at trial. Defense counsel also pointed out that in 1989 Jamie stated that Dunlap did not penetrate her vagina with his finger, but at the preliminary hearing she claimed that he did. When asked on cross-examination which statement was true, Jamie replied that Dunlap did insert his finger into her vagina. Jamie was asked about another discrepancy in her testimonies. In 1989, she claimed that Dunlap told her never to tell anyone about the incident but did not say what would happen to her if she did. At the preliminary hearing and at the trial, Jamie averred that Dunlap threatened to kill her parents if she revealed what had happened.

¶ 9. In attempting to explain the inconsistencies in Jamie's testimony, the State called Hanson as an expert witness on child sexual assault victims. Hanson informed the court that six-year-old children do not usually have a concept of "in and out" in reference to something being inserted into their genitalia. This concept is better understood once a child reaches puberty. She further testified that based on her twenty-four years of experience, six-year-old children often do not reveal the complete story to her the first time they meet with her. She stated that it is not uncommon for children to focus only on the central activity that happened to them rather than on the details of the peripheral information. She said that Jamie's disclosure of the alleged assault was consistent with child sexual assault victims because it occurred away from the scene of the assault and because she revealed the information to someone whom she trusted.

¶ 10. During defense counsel's cross-examination of Hanson, counsel attempted to ask her whether a six-year-old child with detailed sexual knowledge was consistent with the child being a victim of sexual assault. The prosecutor objected to the question's relevancy. The court held a sidebar discussion, where the prosecutor explained that defense counsel's line of questioning was impermissible due to the rape shield law's prohibition on questioning about the victim's sexual conduct. Such evidence may only be admissible through a pretrial motion in limine, he argued. Defense counsel countered that the State had opened the door by questioning Hanson about whether Jamie's behavior was consistent with a child sexual assault victim. He continued arguing that he should be able to introduce evidence that suggested Jamie may have also exhibited such behavior prior to the incident with Dunlap. He sought to elicit Hanson's opinion with regard to a report she made in 1989. In this report, Hanson referred to a conversation with Smith in which Smith revealed to Hanson that she was very concerned about Jamie because of Jamie's unusual behavior. Smith told Hanson that Jamie "touch[ed] men in the genital area," attempted to stimulate herself by writhing around on men's laps, "hump[ed] the family dog" and masturbated frequently. Smith said that she observed this behavior prior to Dunlap's alleged assault. Defense counsel argued that the evidence in Hanson's report was admissible because it was a report conducted in the regular course of business and the declarant, Smith, was now deceased. He asserted that it was imperative for the jury to be made aware that Jamie displayed conduct consistent with being a sexual assault victim before the incident with Dunlap happened. The court sustained the prosecution's objection.

¶ 11. The final witness to testify was Dunlap. He denied having any physical contact with Jamie. The jury returned a guilty verdict. Dunlap was sentenced to twenty years in prison.

¶ 12. Dunlap filed a motion for postconviction relief and requested a new trial. In the motion, he asserted, among other things, that Hanson should have been allowed to testify about the contents of her report and that his trial counsel was ineffective for failing to comply with the provisions of the rape shield law. In support of the motion, a report from Dr. Tom Daniels was submitted. Daniels, a psychologist, reviewed Hanson's 1989 report and Jamie's trial testimony. Using a rating scale, the Child Sexual Behavior Inventory, Daniels examined Jamie's unusual behaviors by analyzing the frequency of such behaviors occurring in abused and nonabused children according to the rating scale. Because each of the unusual behaviors...