State v. Patricia A.M.

• Decision Date: 03 June 1993
• Docket Number: No. 91-0105-CR,91-0105-CR
• Citation: 500 N.W.2d 289,176 Wis.2d 542
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. PATRICIA A.M., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 289

500 N.W.2d 289

176 Wis.2d 542

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. PATRICIA A.M., Defendant-Appellant.

No. 91-0105-CR.

Supreme Court of Wisconsin.

Argued Dec. 1, 1992.

Decided June 3, 1993.

For the defendant-appellant there were briefs by Michael W. Tobin, Douglas J. Rebholz and Law Offices of Michael W. Tobin, Milwaukee and oral argument by Michael Tobin.

BABLITCH, Justice.

The State of Wisconsin (State) seeks review of a court of appeals' decision which reversed the conviction of Patricia M. (Patricia). At their joint trial, a jury found Patricia and her husband David M. (David) guilty of ten counts of sexual assault and one count of incest with a child, all as party to a crime. The charges involved Jeremiah M. (Jeremiah), Patricia's and David's eight-year-old son and Tony R. (Tony), Jeremiah's eleven-year-old friend. Twice pretrial, Patricia moved for a severance of her trial. Patricia objected to the introduction of certain evidence which she contended was admissible only against David claiming that it would prejudice her right to a fair trial. Her motions were denied. The court of appeals concluded that the joint trial was prejudicial because evidence concerning uncharged instances of David's anal contact with Jeremiah was irrelevant as to Patricia and was admitted without a limiting instruction from the court cautioning the jury to disregard the evidence as to Patricia.

We conclude that the evidence concerning uncharged instances of anal contact between David and Jeremiah was relevant with respect to Patricia. The evidence enhanced the credibility of Jeremiah's testimony against both David and Patricia and helped explain to the jury how the charged acts could have occurred in the manner Jeremiah described. We further conclude that the probative value of the anal contact evidence was not substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, and thus the evidence was not required to be excluded pursuant to sec. 904.03, Stats. Lastly, we hold that even if the introduction of the anal contact evidence was error due to other evidentiary statutes, any error was nonetheless harmless. Accordingly, we reverse the decision of the court of appeals.

As summarized by the court of appeals, testimony at trial elicited the following facts which for purposes of this review are not in dispute.

On August 25, 1989, Tony spent the night at Jeremiah's. The two boys were showering together when Patricia entered the bathroom, reached past the shower curtain, and fondled both boys' genitals for several minutes.

After their shower, the boys entered the living room on their way to their bedroom. The living room also served as Patricia's and David's bedroom. Patricia was sitting naked on an opened sofa bed; David was on a cot a few feet away. Patricia directed each boy to take turns engaging in various sex acts with her, both individually and simultaneously while David watched. David did not get physically involved but occasionally verbally encouraged the boys' actions. The entire episode, bathroom to living room, took place over approximately one hour. State v. Patricia A.M., 168 Wis.2d 724, 729-30, 484 N.W.2d 380 (Ct.App.1992).

In October of 1989, Patricia and her husband David were charged with ten counts of sexual assault of a child under 13 and one count of incest, all as party to the crime. At trial, Jeremiah and Tony gave similar accounts as to all of the acts alleged against Patricia. However, Jeremiah was reluctant to testify about any behavior involving David. As the court of appeals noted, Jeremiah was particularly noncommittal when questioned about David's role--active or passive--in any sexual activity with him. As to anal contact or intercourse, Jeremiah at one point stated in his testimony that he did not remember and at another point flatly denied that he and David ever engaged in that activity. Both David's and Patricia's theory of defense was that the boys had fabricated the entire story.

The State then called as a witness, Dr. Paul Gochis, a physician on the Sexual Assault Program team in the emergency department at a local hospital. Dr. Gochis had examined Jeremiah when the investigation first began. Over both defense counsels' objections, Dr. Gochis testified that Jeremiah had related to him the conduct alleged in the criminal complaint, as well as uncharged incidents of sodomy with David. Dr. Gochis explained that by using an anatomically correct doll, Jeremiah was able to demonstrate both the uncharged and charged sexual conduct. Dr. Gochis also testified that a physical exam of Jeremiah indicated anal scarring and loss of anal sphincter tone, and that such findings suggested repeated anal penetration. Dr. Gochis opined that the physical evidence was consistent with Jeremiah's statement that David had sodomized him. The medical report describing the physical evidence was admitted as "other acts" evidence under sec. 904.04(2), Stats. Jeremiah's alleged statements to Dr. Gochis concerning David's acts were admitted as a prior inconsistent statement under sec. 908.01(4)(a)1. Jeremiah had testified at trial that he remembered making statements to Dr. Gochis but claimed not to remember what he told the doctor. His alleged statements about Patricia's acts were admitted as a prior consistent statement under sec. 908.01(4)(a)2.

Twice pretrial, Patricia moved to sever her trial from that of her husband's. Patricia objected to Dr. Gochis' testimony about evidence pertaining to the uncharged sexual abuse, claiming that it was relevant only to David and its admittance at the joint trial would prejudice her right to a fair trial. Both of Patricia's motions were unsuccessful, as were her subsequent motions for a mistrial. Likewise, her sec. 809.30, Stats., motion seeking postconviction relief on the issue of severance and admission of "other acts" evidence was denied.

Patricia appealed to the court of appeals arguing that the circuit court erred by refusing to sever her trial from her husband's or, in the alternative, by failing to give the jury a limiting instruction, thus prejudicing her separate interest. In a 2-1 decision the court of appeals overturned Patricia's conviction concluding that the "joint trial was prejudicial because damaging evidence, irrelevant as to Patricia, was admitted and the limiting instruction [that is] required ... once severance is denied was not given." State v. Patricia A.M., 168 Wis.2d at 729, 484 N.W.2d 380. We accepted the State's petition for review.

We first address whether the anal contact evidence was relevant with respect to Patricia. The circuit court admitted the evidence in question concluding that it was admissible under sec. 904.04(2), Stats. Section 904.04(2) allows the introduction of evidence of other crimes, wrongs, or acts when offered to prove the "motive, opportunity, intent, ..." of the person. Both the State and Patricia agree that the circuit court's application of sec. 904.04(2) to the admission of evidence indicating anal injury to Jeremiah was incorrect with respect to Patricia in that the anal penetration evidence did not encompass "other acts" committed by Patricia. However, the State contends that the anal contact evidence was nonetheless admissible because it was relevant evidence as to Patricia and was not otherwise excluded by sec. 904.03. ¹ See State v. Holt, 128 Wis.2d 110, 124, 382 N.W.2d 679 (Ct.App.1985) ("[i]t is well-established that if a trial court reaches the proper result for the wrong reason, it will be affirmed."); Liberty Trucking Co. v. Department, 57 Wis.2d 331, 342, 204 N.W.2d 457 (1973) (An appellate court may sustain a lower court's holding on a theory or on reasoning not presented to the lower court). We agree that the anal contact evidence was relevant as to Patricia.

The first step in any question concerning the admissibility of evidence is whether the evidence is relevant. Chapter 904, Stats., of the Wisconsin Statutes provides the rules concerning relevant evidence and its admissibility. Chapter 904 indicates that evidence which is not relevant is not admissible. Section 904.02. Section 904.01 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." If evidence is relevant, as defined by sec. 904.01, it is admissible, unless its introduction would be prohibited by another rule or the constitution of the United States or Wisconsin. Section 904.02. ² Even if relevant, evidence may be excluded if its probative value is substantially outweighed by other factors, including the risk of unfair prejudice. Section 904.03. ³

"The criterion of relevancy is whether the evidence sought to be introduced would shed any light on the subject of inquiry." State v. Lindh, 161 Wis.2d 324, 348, 468 N.W.2d 168 (1991) (quoting Rogers v. State, 93 Wis.2d 682, 688, 287 N.W.2d 774 (1980)). In Berg v. State, 41 Wis.2d 729, 739, 165 N.W.2d 189 (1969), this court stated, quoting with approval from 1 Wharton's, Anderson, Criminal Evidence (12th ed, p. 284-87, sec. 148:

'Evidence is relevant when it is persuasive or indicative that a fact in controversy did or did not exist because the conclusion in question may be logically inferred from the evidence. The criterion of relevancy is whether or not the evidence adduced tends to cast any light upon the subject of the inquiry. Evidence of any fact is admissible as relevant which might establish the hypothesis of innocence, or show the defendant's guilt. Any evidence that assists in getting at the truth of the issue is relevant; in other words, any fact which tends to prove a material issue is relevant, even though it is only a link in the chain of facts which must be proved to make the proposition at issue appear more or less probable. Relevancy is not...