State v. Giacomantonio
| Decision Date | 12 July 2016 |
| Docket Number | No. 2015AP968–CR.,2015AP968–CR. |
| Citation | 885 N.W.2d 394,371 Wis.2d 452 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Giancarlo GIACOMANTONIO,Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael G. Levine, and Matthew S. Pinix of Law Offices of Robert A. Levine, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sarah L. Burgundy, assistant attorney general, and Brad D. Schimel, attorney general.
Before CURLEY, P.J., KESSLER and BRENNAN, JJ.
BRENNAN
, J.
¶ 1 Giancarlo Giacomantonio appeals from a judgment of conviction of sexual exploitation of a child, contrary to WIS. STAT. § 948.05(1)(a)
(2013–14), entered after a jury trial.1 Giacomantonio contends on appeal that: (1) photographs of text messages found on the victim's phone should have been excluded because they were unauthenticated, unoriginal, and hearsay; and (2) his right to present a defense was infringed upon when the trial court refused to conduct an in camerareview of the victim's mental health records.2
¶ 2 We affirm because we conclude: (1) the proper foundation was laid for authentication of the photographs of text messages; and (2) the trial court did not err in refusing to conduct an in camera review of the victim's mental health records because the defendant failed to satisfy his burden of showing materiality to the defense as set forth in State v. Shiffra, 175 Wis.2d 600, 608–09, 499 N.W.2d 719 (Ct.App.1993)
and State v. Green, 2002 WI 68, ¶¶ 32–34, 253 Wis.2d 356, 646 N.W.2d 298. We discuss each issue in turn below.
¶ 3 On October 15, 2014, a jury convicted Giacomantonio of sexual exploitation of a child. He was sentenced to eight years of imprisonment with five years of initial confinement and three years of extended supervision. The acts occurred between November 2, 2012, and September 6, 2013, when the victim was between the ages of fifteen and sixteen years old. He had also been charged with, and found not guilty of, incest with child by step-parent.
¶ 4 For some time, the victim's mother suspected that her husband, Giacomantonio, had been sexually abusing the victim, who had attempted to commit suicide in December 2012.3 The victim then underwent psychiatric and psychological counseling from that time forward. On September 6, 2013, the victim's mother found some “alarming texts” on the victim's cellphone and took the phone to the Whitefish Bay Police Department. The victim's mother had access to the phone's contents because “[t]he phone did not have a lock.” She turned the phone over to police.
¶ 5 A detective searched the victim's phone at the police station. The detective's search located texts from the defendant's cellphone to the victim's cellphone saying “I want my booty” and “I want my boty.” The detective took screen shots of the text messages on the victim's cellphone. The detective looked at the text messages on the victim's phone rather than sending it directly to the Department of Justice crime lab because he had the victim's and her mother's consent to do so and in order to investigate the claims being made. The police attempted to obtain records from the telephone company showing the text messages sent from or received by the victim's phone, but no such records existed.
¶ 6 Giacomantonio filed a pretrial motion seeking to exclude from evidence certain text messages found on the victim's cellphone. The trial court denied that motion. At trial, Giacomantonio again objected to the text message evidence. Seven photographs of the phone's screen showing the text messages were entered into evidence at trial. At trial, the detective who took the photographs read the text messages and identified the phone numbers associated with each message. There was also testimony that the victim, her mother, and her cousin had access to one or both of these phones as well.
¶ 7 The victim identified one phone number as belonging to Giacomantonio's phone and the other phone number as belonging to her phone.4 A summary of those messages is as follows:
Giacomantonio argued that these messages could not be properly authenticated and argued that the rules of evidence required the State to produce the original text messages, not copies thereof. The trial court concluded that authentication was not an issue because the victim was available for cross-examination and Giacomantonio could question her and the other witnesses regarding whether “the victim or another has falsely manufactured these text conversations.” Giacomantonio also objected based on hearsay, and the trial court overruled his objection.
¶ 8 The victim testified that Giacomantonio would “oftentimes” text her “to go to his room late at night,” and that “he sent [text messages] all the time” about her “booty.” She testified that if she refused to provide Giacomantonio with photos of her bare buttocks and vagina, which he referred to as her “booty” or “boty,” he would withhold affection and prevent her from seeing her friends; if she complied with his demands, he would be more supportive and more lenient, and would supply her and her friends with alcohol.
¶ 9 Pretrial, Giacomantonio also moved for an in camera review of the victim's mental health records. The trial court denied the motion. Giacomantonio petitioned this court for leave to appeal, and the petition was denied. See State v. Giacomantonio, No. 2014AP11–CRLV, unpublished slip op. (WI App Jan. 29, 2014).
¶ 10 Giacomantonio argued that the victim's mental health records were likely to show whether she was being truthful about her relationship with Giacomantonio. Further, he argued that if the victim had discussed Giacomantonio's crime, the therapist would have been required, by law, to disclose that information pursuant to Wisconsin's mandatory reporting law, WIS. STAT. § 48.981(2)(a) 11.
¶ 11 The trial court denied Giacomantonio's motion, reasoning that the victim's mental health records would be cumulative. The court stated:
¶ 12 The “other avenues” the court suggested were Giacomantonio's “independent [ ] aware[ness] of [the victim's] suicide attempts” and her “relationship with another minor that apparently [the victim's] mother feels is inappropriate and has apparently, according to [Giacomantonio], been untruthful about the nature of that relationship.” Giacomantonio contends that without the in camera review, he is unable to dispute the victim's claim that she attempted suicide because of him and her claim that she felt controlled and manipulated by him such that he was able to induce her to illicit sexual behavior.
¶ 13 On appeal, Giacomantonio raises two issues: (1) that the photographs of text messages found on the victim's phone should have been excluded because they were unauthenticated, unoriginal, and hearsay; and (2) that Giacomantonio's right to present a defense was infringed upon when the trial court refused to conduct an in camera review of the victim's treatment records.
¶ 14 The State counters, as to the first issue, that it adequately authenticated the text messages through the victim's testimony; that the messages came from a number she recognized as Giacomantonio's; and that the content was consistent with things that he had said to her in the past. Additionally, Giacomantonio's best-evidence argument fails because the screen shots were admissible under the circumstances. Finally, law enforcement's reciting the text messages at trial was not hearsay.
¶ 15 As to the second issue, the State argues that Giacomantonio failed to satisfy his burden to obtain an in camera review of the victim's mental health records under Shiffra, 175 Wis.2d at 608–09, 499 N.W.2d 719
, and Green, 253 Wis.2d 356, ¶¶ 32–34, 646 N.W.2d 298.
¶ 16 On both issues, we agree with the State, as discussed further below. Accordingly, we affirm each of the trial court's rulings.
¶ 17 The trial court has “broad discretion to admit or exclude evidence,” and this court may overturn its decision only if the trial court erroneously exercised its discretion. See State v. Kandutsch, 2011 WI 78, ¶ 23, 336 Wis.2d 478, 799 N.W.2d 865
(citation omitted). This court upholds the trial court's decision to admit evidence “if the [trial] court examined the relevant facts, applied a proper legal standard, and, using a demonstrated rational process, reached a reasonable conclusion.” Martindale v. Ripp, 2001 WI 113, ¶ 28, 246 Wis.2d 67, 629 N.W.2d 698.
¶ 18 Giacomantonio poses three questions regarding the admissibility of the photographs of the text messages: (1) whether the text messages were properly authenticated; (2) whether the photographs of the text messages offended the best evidence rule; and (3) whether a police officer's oral...
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...Wisconsin law, "authentication can be done through circumstantial evidence." See State v. Giacomantonio , 2016 WI App 62, ¶20, 371 Wis. 2d 452, 885 N.W.2d 394.¶36 Griffin argues that there was insufficient evidence to support the authentication of the letters. He asserts that the only evide......
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Roy v. State
...") (quoting Steven Goode, The Admissibility of Electronic Evidence, 29 Rev. Litig. 1, 7 (Fall 2009) ); State v. Giacomantonio, 371 Wis.2d 452, 885 N.W.2d 394 (Wis. Ct. App. 2016). Even in states where authentication of electronic communications is subject to the standard applicable to other......
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State v. Griffin
...Wisconsin law, "authentication can be done through circumstantial evidence." See State v. Giacomantonio, 2016 WI.App. 62, ¶20, 371 Wis.2d 452, 885 N.W.2d 394. Griffin argues that there was insufficient evidence to support the authentication of the letters. He asserts that the only evidence ......
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