State v. Homz, No. 2006AP2337-CR (Wis. App. 12/12/2007), 2006AP2337-CR.
| Decision Date | 12 December 2007 |
| Docket Number | No. 2006AP2337-CR.,2006AP2337-CR. |
| Court | Wisconsin Court of Appeals |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Brian J. Homz, Defendant-Appellant. |
APPEAL from a judgment and an order of the circuit court for Washington County: PATRICK J. FARAGHER, Judge. Affirmed.
Before Brown, C.J., Nettesheim and Snyder, JJ.
Brian Homz appeals from a judgment convicting him of first-degree sexual assault of the child of his former companion and from an order denying his postconviction motion challenging his conviction. On appeal, Homz challenges the circuit court's refusal to suppress evidence, the admission into evidence of the victim's statement via the testimony of a detective and the victim's day care teacher, the sufficiency of the evidence at trial, and the circuit court's exercise of sentencing discretion. We do not reach the challenge to the sentence because Homz died during the pendency of this appeal, and review of the sentence is now moot. DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 591, 445 N.W.2d 676 (Ct. App. 1989) ().1 As to the other issues, we reject Homz's challenges and affirm the judgment and order.
¶ 2 In July 2004, the five-year-old victim told her day care teacher that her grandfather had sexually assaulted her. Later that day, the child described the assault to a detective. At the time of the victim's allegation, the victim's mother was engaged in a sexual relationship with Homz. DNA testing of the victim's underwear and of swabs taken from the victim revealed semen, but the DNA results excluded the grandfather as the source of the semen.
¶ 3 After Homz's sexual relationship with the victim's mother ended in December 2004, the victim's mother gave police a bed sheet Homz had left in her home and upon which she and Homz had had sex. Testing revealed semen on the sheet; the semen's DNA profile matched the semen found on the victim's swabs and underwear. Pursuant to a search warrant, police obtained a swab of Homz's saliva. DNA testing of Homz's swab yielded a match between Homz's DNA and the DNA on the victim's swabs and underwear. Thereafter, Homz was charged with first-degree sexual assault of a child, and a jury convicted him of that charge.
¶ 4 Homz argues that the circuit court should have suppressed the DNA evidence retrieved from swabs of the victim's body. We re-cast Homz's argument as a challenge to the admissibility of the DNA evidence obtained from the victim, not as a request to suppress that evidence. Suppression is the remedy for a violation of the Fourth Amendment right against unreasonable search and seizure. State v. Griffin,126 Wis. 2d 183, 187, 376 N.W.2d 62 (Ct. App. 1985), aff'd, 131 Wis. 2d 41, 388 N.W.2d 535 (1986), aff'd sub nom. Griffin v. Wisconsin, 483 U.S. 868 (1987). Homz does not make a Fourth Amendment claim in relation to the DNA evidence found on the victim. Therefore, we review the circuit court's discretionary decision to admit this evidence. State v. St. George, 2002 WI 50, ¶37, 252 Wis. 2d 499, 643 N.W.2d 777.
¶ 5 Homz argues that the DNA evidence should have been excluded because the nurse examiner did not employ a proper technique when she swabbed the victim for evidence. Homz cross-examined the nurse examiner and challenged the manner in which she collected the DNA evidence from the victim.
¶ 6 Essentially, Homz challenges the credibility and reliability of the nurse examiner and the evidence her examination generated. The admission of scientific evidence is not conditioned upon its reliability. State v. Peters, 192 Wis. 2d 674, 687, 534 N.W.2d 867 (Ct. App. 1995). Rather, such evidence is admissible if the expert witness is qualified, and the evidence is relevant and will assist the trier of fact. Id. at 687-88. Cross-examination is the means to challenge such evidence, and Homz did so. Id. at 690. The weight and credibility of the evidence is for the trier of fact. Id. The court properly admitted this evidence.
¶ 7 Homz next argues that DNA evidence from the victim's underwear should have been excluded because there was a break in the chain of custody relating to the evidence. Homz argues that after the child alleged she had been sexually assaulted, her mother drove her to the hospital for a sexual assault examination while a police officer followed in another vehicle. Homz speculates that this took the underwear out of police custody and rendered the underwear unreliable evidence.
¶ 8 This argument lacks merit. We assume without deciding that the law of chain of custody applies to these circumstances. The law with respect to chain of custody requires proof sufficient "to render it improbable that the original item has been exchanged, contaminated or tampered with." B.A.C. v. T.L.G., 135 Wis. 2d 280, 290, 400 N.W.2d 48 (Ct. App. 1986). WISCONSIN STAT. § 909.01 (2005-06)2 provides: "The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Alleged gaps in a chain of custody normally "go to the weight of the evidence rather than its admissibility." United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988).
¶ 9 Homz does not offer any evidence indicating that the victim's underwear was tampered with, contaminated or exchanged. He simply speculates that this occurred because the child traveled to the hospital with her mother. This speculation "is insufficient to overcome the presumption of regularity" in the handling of the underwear. State v. McCoy, 2007 WI App 15, ¶19, 298 Wis. 2d 523, 728 N.W.2d 54.
¶ 10 Homz next argues that the bed sheet containing his semen and DNA was illegally seized by the police in contravention of his expectation of privacy. Therefore, the DNA evidence obtained from the sheet should have been suppressed. The circuit court declined to suppress evidence obtained from the sheet because the police did not illegally obtain the bed sheet. The court found that Homz abandoned the sheet, the sheet was in the mother's possession, and she found the sheet at the back of a closet in her home after Homz removed many of his personal effects.3 The mother voluntarily turned the sheet over to the police for testing, and she was not acting an as agent of the police. These findings are not clearly erroneous. See State v. Knight, 2000 WI App 16, ¶10, 232 Wis. 2d 305, 606 N.W.2d 291. The court left it for the jury to consider the mother's motivation and bias, if any, relating to her decision to give the sheet to the police.
¶ 11 "The Fourth Amendment applies only to actions of government agents, not to private individuals or actions." State v. Rogers, 148 Wis. 2d 243, 246, 435 N.W.2d 275 (Ct. App. 1988). The mother was not the State's agent such that her conduct could be deemed the conduct of the State for purposes of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971). Even if the Fourth Amendment applied to these circumstances, "a warrantless seizure of property whose owner has abandoned it does not violate the Fourth Amendment." State v. Hart, 2001 WI App 283, ¶22, 249 Wis. 2d 329, 639 N.W.2d 213.
¶ 12 Homz also did not have a reasonable expectation of privacy in the sheet or the semen deposited on the sheet. A reasonable expectation of privacy in property depends, in part, on whether the person exercised dominion over the property. See State v. Whitrock, 161 Wis. 2d 960, 989, 468 N.W.2d 696 (1991). Here, Homz abandoned the sheet and the semen deposited on the sheet. The rest of Homz's argument about the legality of the evidence derived from the sheet is not supported by citation to legal authority. We will not consider it further. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).
¶ 13 Homz challenges the evidence obtained pursuant to a search warrant authorizing a swab of his mouth for DNA testing purposes. Homz premises this challenge on an assertion that the semen and DNA on the sheet was discovered in a warrantless search. We have upheld the legality of the means by which Homz's semen and DNA were found on the sheet produced by the victim's mother. The match between the DNA found on the sheet and the DNA found on the victim was the basis for a search warrant to obtain DNA from Homz directly. Homz's DNA was lawfully gathered.
¶ 14 Homz next challenges the sufficiency of the evidence to convict him of first-degree sexual assault of a child contrary to WIS. STAT. § 948.02(1) (2003-04). In order to be convicted of this crime, the State had to prove that Homz had sexual contact with a child who was under the age of thirteen. "Sexual contact" includes "[i]ntentional penile ejaculation of ejaculate ... by the defendant upon any part of the body clothed or unclothed of the complainant if that ejaculation ... is ... for the purpose of sexually arousing or gratifying the defendant." WIS. STAT. § 948.01(5)(b) (2003-04).
¶ 15 We will not reverse a conviction "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). The credibility of the witnesses was for the trier of fact. Id. at 503. It was for the trier of fact to draw reasonable inferences from the evidence. Id. at 504 (citation omitted).
¶ 16 Viewed most favorably to the State, the evidence shows that the victim first claimed that her grandfather sexually assaulted her. The night of the assault, which occurred at her grandparents' house, the mother bathed the five-year-old victim and put clean underwear on her before putting her to bed. The assault occurred during the night while the victim...
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