State v. Mulhern

• Decision Date: 21 June 2022
• Docket Number: 2019AP1565-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Ryan Hugh MULHERN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

402 Wis.2d 64

975 N.W.2d 209

2022 WI 42

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,

v.Ryan Hugh MULHERN, Defendant-Appellant.

No. 2019AP1565-CR

Supreme Court of Wisconsin.

Oral Argument: March 9, 2022

Opinion Filed: June 21, 2022

For the plaintiff-respondent-petitioner, there were briefs filed by Sarah L. Burgundy, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Sarah L. Burgundy.

For the defendant-appellant, there was a brief filed by Dennis Schertz and Schertz Lase Office, Hudson. There was an oral argument by Dennis Schertz.

ROGGENSACK, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, HAGEDORN, and KAROFSKY, JJ., joined. ZIEGLER, C.J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined.

PATIENCE DRAKE ROGGENSACK, J.

¶1 We review the court of appeals’ decision ¹ reversing the circuit court's² conviction of Ryan Mulhern for one count of second-degree sexual assault and one count of misdemeanor bail jumping. On appeal, the State asks us to reverse the court of appeals, arguing that evidence of the victim's lack of sexual intercourse is not prior "sexual conduct" pursuant to Wis. Stat. § 972.11(2)(a)-(b) (2017-2018)³ (collectively referred to as the "rape shield" statute). Further, the State argues that, even if the victim's testimony was inadmissible, the error was harmless.

¶2 We conclude that the broad language used to define "sexual conduct" in the rape shield statute's prohibition includes evidence concerning the victim's lack of sexual intercourse. Therefore, the victim's testimony in this case regarding her lack of sexual intercourse in the week prior to the sexual assault was improperly admitted. However, we also conclude that, absent the rape shield evidence, a rational jury would have found Ryan Mulhern guilty of second-degree sexual assault beyond a reasonable doubt. Therefore, the circuit court's error in admitting the victim's testimony was harmless.

I. BACKGROUND

¶3 This case arises out of a sexual assault committed by Ryan Mulhern against his friend, "Lisa."⁴ The State charged Mulhern with one count of second-degree sexual assault, one count of strangulation and suffocation, and one count of misdemeanor bail jumping. The case proceeded to trial, during which, Lisa testified to the assault and the events that took place in its aftermath. She testified that in the late hours of November 21, 2016, Mulhern texted her and asked to come over to her house, claiming that he was having personal issues and sounded "upset" and "frantic." Lisa agreed to let Mulhern come over for the night, but told him that he would be sleeping on the futon and that she "would be there for him as a friend, and that would be all it was."

¶4 Mulhern arrived around midnight and, rather than speak to Lisa about the personal issues going on in his life, he continually turned the conversation to Lisa and her life. After a while, Lisa told Mulhern that she needed to go to sleep because she had an exam the next morning. She directed Mulhern to the futon in the living room. Lisa went upstairs to her bedroom, but Mulhern persisted.

¶5 Lisa got into bed and under the covers. Mulhern laid on top of the covers and put his arm around her. While Lisa tolerated this contact, she continued to try to make it "abundantly clear that [she] needed to get to [sleep and that she] was not interested in anything else."

¶6 Mulhern then began to kiss Lisa, who pushed him away, told him to stop, and reminded him that he was in a relationship. Mulhern relented and promised to leave if Lisa would give him a single kiss. Lisa gave him a peck on the lips and told him to leave. Instead, Mulhern became more aggressive. He held Lisa's head and shoulders down as he kissed her mouth, face, and neck. Mulhern got out of bed, removed his clothes, and got under the covers with Lisa. ¶7 Mulhern pressed his erect penis against her bottom and began trying to put his hands up her shirt and down her pants. When Lisa protested and tried to slap his hands away, Mulhern grew angrier and more forceful. He pinned her against the wall and removed her pants. Mulhern maneuvered between her legs and Lisa felt his penis enter her. As he did this, Lisa struggled to breathe. Mulhern pressed his forearm against her throat and her head lay over the edge of the bed. She tried to yell for a roommate, who was not home, but she "could barely get her name out." As she tried to scream, Mulhern covered her mouth and nose with his hand. She bit his hand and attempted to scream again.

¶8 Lisa's next recollection was being curled up on the bed and Mulhern standing at the end of the bed and looking "apologetic and concerned." He asked Lisa why she was so upset and offered to get her something to drink. He left only after Lisa threatened to call the police. As soon as Mulhern left, Lisa called a friend and told her what had happened with Mulhern.

¶9 Later that morning, Lisa called a local sexual assault resources team ("SART") and was told to meet them at the hospital for an examination. At the hospital, Lisa was examined by a SART nurse who testified that she had numerous injuries consistent with an assault. These injuries included tenderness and tightness on her neck, a sore throat, a semicircular wound on her right shoulder, and tenderness on her right chest wall, inner thighs, and inner calves. Additionally, the nurse detailed that Lisa had significant injuries to her genital area, including tenderness on her inner and outer labia, a linear tear to the left inner labia, an abrasion on her right vaginal wall, and redness on the left vaginal wall.

¶10 Shortly after leaving the hospital, Lisa saw a friend and told him about the assault. The friend later testified that Lisa was distraught and cried when she told him about it. Lisa further testified that the next day, she called the River Falls Police Department, interviewed with an officer, and told the officer what had occurred with Mulhern. Later that week, Lisa went home for Thanksgiving and told her mother about the assault.

¶11 Following Lisa's testimony, a DNA analyst from the State Crime Lab testified that he used DNA taken from Lisa's hospital visit and tested it for identification purposes. He tested a sample of saliva-based DNA taken from Lisa's neck and matched it to Mulhern. The analyst also tested a vaginal swab and found the presence of male DNA, but concluded that there was not a large enough sample to determine whose DNA it was. The analyst further testified that a body's natural processes will remove foreign DNA deposited into a vagina after a period of five days following an assault.

¶12 Following this testimony, the State, over defense counsel's objection, attempted to recall Lisa to the stand. It did so to ask Lisa whether she had sexual intercourse in the week prior to November 22, 2016. The circuit court allowed the question because, after reviewing the definition of "sexual conduct" under the rape shield statute, it determined that Wis. Stat. § 972.11(2)(a) was limited to affirmative acts and, therefore, the proposed testimony regarding Lisa's lack of sexual intercourse fell outside the rape shield statute. When Lisa was asked whether she had sexual intercourse in the prior week, she answered that she had not. Mulhern was not given the opportunity to re-cross examine Lisa.

¶13 Finally, Mulhern took the stand and told his version of the events of November 22. He testified that Lisa invited him over that night and he went over to talk and catch up. After he was confronted with his text messages to Lisa, he acknowledged that his testimony was not accurate and that it was he who had asked to come to Lisa's apartment because he was "about to have a nervous breakdown." Next, Mulhern stated that Lisa had never limited the interaction to just speaking "as friends" or that she told him to sleep on the futon downstairs. He was forced to also recant this testimony by his text messages to Lisa.

¶14 Mulhern also testified that, after talking for a while, they began to kiss consensually. He denied that Lisa ever voiced any resistance or told him to stop. Then, they both removed their own clothes and Mulhern began to kiss Lisa on her breasts, neck, collarbones, and hips. When Mulhern was about to insert his penis into Lisa's vagina, she suddenly yelled at him to stop and he left her home. Mulhern testified that Lisa had contacted him twice after the incident. The first time, she asked whether Mulhern had ejaculated inside of her, to which he denied penetrating her. After asking that question, Lisa told Mulhern never to contact her again.

¶15 Following testimony and closing arguments, in which the State referenced the analyst's five-day time period as well as Lisa's testimony regarding her lack of sexual intercourse in the week preceding the assault, the jury convicted Mulhern of second-degree assault. Based on the terms of a plea agreement, because Mulhern was found guilty of the sexual assault charge, he was also found guilty of the misdemeanor bail jumping charge. However, the jury acquitted him of the strangulation charge. Mulhern appealed his convictions.

¶16 The court of appeals reversed. State v. Mulhern, No. 2019AP1565-CR, unpublished slip op., ¶34, 2020 WL 5901727 (Wis. Ct. App. Oct. 6, 2020) (per curiam). At the court of appeals, the State conceded that the circuit court erroneously exercised its discretion by admitting the challenged portion of Lisa's testimony, but asserted that the error was harmless. Id., ¶¶23-24. The court of appeals disagreed and concluded that the State had not met its burden to prove beyond a reasonable doubt that a rational jury would have convicted Mulhern absent the circuit court's error. Id., ¶¶27, 34. Specifically, the court of appeals noted that the State relied heavily on Lisa's testimony and the DNA analyst's five-day window to construct a factual timeline that corroborated...