State v. Jensen
| Decision Date | 16 December 1988 |
| Docket Number | No. 86-1915-CR,86-1915-CR |
| Citation | 432 N.W.2d 913,147 Wis.2d 240 |
| Parties | , 57 USLW 2403 STATE of Wisconsin, Plaintiff-Respondent, v. Lew JENSEN, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
Glenn L. Cushing, Asst. State Public Defender, for defendant-appellant-petitioner.
Sally L. Wellman (argued), Asst. Atty. Gen., Donald J. Hanaway, Atty. Gen., on the brief, for the plaintiff-respondent.
This is a review of a published decision of the court of appeals, State v. Jensen, 141 Wis.2d 333, 415 N.W.2d 519 (Ct.App.1987), affirming a conviction for sexual assault and affirming an order denying a motion for postconviction relief in the circuit court for Marathon county, Ronald Keberle, circuit judge. We affirm the decision of the court of appeals affirming the conviction.
The defendant raises two issues. First, the defendant asserts that the circuit court erred in admitting an expert opinion that the complainant's behavior was "consistent" with the behavior of children who are sexual abuse victims. The defendant asserts this opinion is tantamount to an expert opinion that the assault occurred or that the complainant was telling the truth about the assault. We conclude that the expert opinion cannot be interpreted as the defendant contends and that the circuit court did not err in admitting the expert witness's opinion in this case.
Second, the defendant asserts that the circuit court erred in allowing the defendant's written confession in the jury room during deliberations. We conclude that the circuit court committed no error, and we overrule prior case law that created a per se rule excluding confessions from the jury room.
We discuss first the defendant's assertion that admitting an expert witness's opinion as testimony was error. The complainant in this case is an 11 year-old girl, L.J. She alleges that her stepfather, the defendant, Lew Jensen, sexually assaulted her in March of 1985, while she was living with him and her grandmother. L.J. told a school counselor about the alleged assault three days after it happened, and he notified the police.
At trial, the defendant denied having any sexual contact with L.J. He testified that his former wife had left him for another man and taken L.J. with her to California. The defendant obtained a court order granting him temporary custody of L.J., went to California, and brought L.J. back to Wisconsin. The defense argued at trial that L.J. fabricated the sexual assault charge as part of a plan she concocted with her mother to enable L.J. to return to California.
In her testimony at trial, L.J. denied any such plan and stood by her original accusation. L.J. also testified that the defendant had sexual intercourse with her "a lot" prior to the assault in March of 1985 for which he was standing trial. L.J.'s mother testified that in the fall of 1984, L.J. told her about a prior incident. Another witness testified that L.J. told her privately about the March 1985 sexual assault. During cross-examination of L.J., however, defense counsel established that the child delayed telling some family members about the alleged assault and that she told others nothing at all. L.J.'s grandmother and family friends testified that, when they asked L.J. about the defendant assaulting her, the child denied that anything had happened. Witnesses also testified that L.J. did not appear to be traumatized. This testimony was summarized at closing argument in support of the defense's theory that L.J. was lying about the assault.
Thomas Bosman, L.J.'s school guidance counselor, was the first person L.J. told about the alleged assault. At trial, he testified that he called L.J. into his office after L.J.'s teachers notified him that they had noticed marked changes in her behavior at school: "acting out in class, some noncompliance as far as doing homework, standards [sic] up to the teachers, being a little bit disrespectful and quite a bit of writing notes to boys, and boys writing notes to her." Mr. Bosman testified that L.J. had been wearing tight jeans and v-necked sweaters without an undershirt; had written "I love ______" (her "boyfriend's" name) on the back pocket of her pants; and had on one occasion pinched a boy's buttocks.
The instructor of the school's sex education class had reported to Mr. Bosman that L.J. asked precocious questions, such as whether it was possible to get pregnant by having sexual intercourse in a bathtub. Mr. Bosman himself had also observed that L.J. was noticeably nervous and anxious during the sex education class that dealt with sexual abuse.
Mr. Bosman testified that some "acting out" behavior was common among students in L.J.'s class. Mr. Bosman had determined, however, that, when viewed cumulatively, L.J.'s behavior amounted to a "red flag"--an indication that L.J. was experiencing an emotional or sexual problem.
Because of this "red flag" behavior, Mr. Bosman called L.J. into his office and informed her that he was concerned about the reasons for her recent behavior. He asked L.J. whether she had ever been sexually abused. Mr. Bosman testified that, in response to that question, L.J. slumped back in her chair and responded, "How did you know?"
In addition to describing the events that occurred at the school, Mr. Bosman also testified as an expert on the behavior of sexually abused children. Over the defendant's objections, the circuit court found the witness to be qualified by experience and training to testify as an expert about the behavior exhibited by sexually abused children. We agree with the court of appeals that the circuit court has discretion to determine whether a witness is an expert and that the circuit court in this case did not abuse its discretion. State v. Jensen, 141 Wis.2d 333, 337, 415 N.W.2d 519 (Ct.App.1988). See also State v. Robinson, 146 Wis.2d 315, 431 N.W.2d 165 (1988).
The state asked Mr. Bosman to give his opinion whether L.J.'s behavior was consistent with the behavior of child sexual abuse victims. The defense objected, and the circuit court concluded that the witness could state whether the complainant's behavior was consistent with the behavior of children who were victims of sexual abuse. 1
Whether an expert's opinion should be admitted into evidence is largely a matter of the circuit court's discretion. Valiga v. National Food Co., 58 Wis.2d 232, 251-52, 206 N.W.2d 377 (1973); sec. 907.02, Stats.1985-86. The circuit court apparently reasoned that the reactions and behavior of sexually abused children are not ordinarily matters of common knowledge and experience and that the jury might therefore be aided by the witness's specialized knowledge in this area. Although L.J.'s "acting out" behavior is similar to the "normal" behavior of some adolescents, we agree with the circuit court that the expert witness's knowledge and experience might have assisted the jury in this case. 2
The state proceeded with the direct examination of Mr. Bosman, as follows:
On cross-examination, witness Bosman further testified:
The jury returned a verdict convicting the defendant of first degree sexual assault in violation of sec. 940.225(1)(d), Stats.1985-86, which proscribes sexual contact or sexual intercourse with a person 12 years of age or younger.
The court of appeals affirmed the conviction and the order denying postconviction relief, concluding that the circuit court committed harmless error by admitting expert testimony comparing L.J.'s behavior with the behavior of child sexual abuse victims.
On review the defendant challenges the admissibility of only one part of Mr. Bosman's testimony, namely, Mr. Bosman's comparison of L.J.'s "acting out" behavior with the behavior of child sexual abuse victims. The defendant objects only to the circuit court's decision to admit the question, "In your opinion...
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