State v. Petersen
| Decision Date | 09 August 2022 |
| Docket Number | 2021AP1097-CR,Appeal No. 2021AP1097-CR |
| Citation | 980 N.W.2d 492 (Table),2022 WI App 52 |
| Court | Wisconsin Court of Appeals |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Gary Robert Petersen, Defendant-Appellant. |
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.
APPEAL from a judgment of the circuit court for Marinette County Cir. Ct. No. 2018CF121, JAMES A. MORRISON, Judge.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
¶1 Following a jury trial, Gary Petersen was convicted of two counts of first-degree sexual assault of a child (sexual contact with a person under age thirteen), as a persistent repeater, and one count of felony intimidation of a victim, as a repeater. Petersen now appeals from his judgment of conviction, arguing that the circuit court erroneously exercised its discretion by: (1) allowing the State to introduce other-acts evidence at trial regarding Petersen's 1991 conviction for second-degree sexual assault of a child; (2) prohibiting Petersen from introducing evidence regarding a prior untruthful allegation of sexual assault allegedly made by the victim; and (3) denying Petersen's request for a mistrial based on a comment a prospective juror made during voir dire. We reject each of Petersen's arguments and affirm.
¶2 In 2017, Petersen's wife, Denise,[1] informed law enforcement that her twelve-year-old daughter, Ann, who was Petersen's stepdaughter, had reported that Petersen had sexually assaulted her. Ann was subsequently interviewed at the Willow Tree Child Advocacy Center in Green Bay.
¶3 During the interview, Ann disclosed that Petersen first had sexual contact with her in August 2015, just before she turned eleven years old. Ann reported that during that incident, Petersen took her clothes off, touched her vagina and used a dildo on her, which Ann stated was painful. Ann also described an incident in May 2016 during which Petersen took her pants and underwear off and inserted his fingers into her vagina. When Ann tried to get away, Petersen grabbed her, pulled her back onto the bed, and began touching her more aggressively. After the May 2016 assault, Petersen told Ann that "he would kill her and hurt her mom" if she told anyone. Ann reported that Petersen had sexual contact with her on at least one or two other occasions between August 2015 and May 2016. Ann also reported that, at some unspecified time, Petersen "made threats of killing her mom and sister."
¶4 Based on Ann's allegations, the State charged Petersen with two counts of first-degree sexual assault of a child (sexual contact with a person under age thirteen), as a persistent repeater, and one count of felony intimidation of a victim, as a repeater. Petersen entered not-guilty pleas to all three of the charges, and the case was set for a jury trial.
¶5 Before trial, the State filed a motion to introduce other-acts evidence regarding Petersen's 1991 conviction for second-degree sexual assault of a child. That conviction stemmed from Petersen's year-long sexual relationship with a fourteen-year-old girl, Sarah,[2] at a time when Petersen was about twenty-nine years old. Petersen was a friend of Sarah's father and got to know her because he repeatedly visited her family's home. Sarah's diary entries showed that she and Petersen had sexual intercourse on eight occasions between March 17, 1990, and February 16, 1991.
¶6 At a friend's urging, Sarah ultimately reported her relationship with Petersen to a school liaison officer. Sarah did not want Petersen to get in trouble, however, because he was her boyfriend and she believed they were in love. When interviewed by law enforcement about Sarah's report Petersen admitted having sexual intercourse with Sarah on six to eight occasions. He subsequently pled no contest to a charge of second-degree sexual assault of a child for his actions with Sarah.
¶7 The State argued that evidence regarding Petersen's 1991 conviction was admissible to show his motive, opportunity, and intent to sexually assault Ann because the evidence tended to show that Petersen had a sexual preference for young girls. The State also argued that the evidence's probative value was not substantially outweighed by the danger of unfair prejudice. The circuit court agreed and granted the State's motion to admit the other-acts evidence.
¶8 Petersen filed a pretrial motion seeking to introduce evidence of a prior untruthful allegation of sexual assault allegedly made by Ann. According to the motion and a Brown County Health and Human Services report submitted by the State, in 2011, Ann's maternal grandmother told authorities that when Ann was five, Ann told the grandmother that Ann's maternal grandfather had put his fingers down her pants and rubbed her. Brown County assigned a case worker to investigate this allegation. The case worker interviewed Denise, who stated that Ann's grandmother was just trying to cause trouble. Denise agreed to bring Ann in for an interview, during which Ann denied that anyone had ever seen or touched her private parts.
¶9 The case worker subsequently spoke with Denise, who stated she "spoke with [Ann] about this and [Ann] denied ever saying any of this." Denise then stated, however, that Ann later changed her story and said she "made this up" because a friend told her that she would "get jewels and presents for saying this." Denise also told the case worker that she had been having "lots of problems with her mom," that her mom had been "threatening to go for Grandparents Rights," and that her mom had been "reporting [Denise] for a lot of things, all which are not true." Denise further stated that she was "very concerned about her mother's influence on the children." The case worker noted that Ann's grandfather-who was alleged to have touched Ann-had obtained a restraining order against Ann's grandmother-who had reported the alleged touching. The case worker ultimately closed the investigation, concluding that the allegation made by Ann's grandmother was unsubstantiated.
¶10 Petersen argued that evidence regarding the 2011 allegation against Ann's grandfather was admissible under WIS. STAT. § 972.11(2)(b)3., an exception to the rape shield statute that allows "[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness" to be admitted in a prosecution for sexual assault of a child. The State opposed Petersen's motion to admit the evidence, arguing a reasonable jury "could not find that [Ann] made any allegation of sexual assault, much less an untruthful one." The State also argued that evidence regarding a possible false accusation made by Ann at age five was not relevant to Ann's credibility at age twelve when she accused Petersen of sexual assault. Additionally, the State asserted that the evidence's probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury, as it had "already been established that the maternal grandmother had motives to fabricate what [Ann] said or suggest such a lie to [Ann]." The circuit court agreed with the State and denied Petersen's motion to admit evidence regarding the 2011 allegation.
¶11 Thereafter, on the first day of trial, the circuit court asked the prospective jurors during voir dire whether any of them could not "fairly and impartially listen to the evidence in this case and judge this case solely on the facts as you find them to be and on the law as I give it to you, putting aside every other reason." A prospective juror responded, "Well, my sister works in foster care." The court asked the prospective juror to stand up and remove her mask[3] so that the court could hear her better. The following exchange then occurred:
¶12 At a sidebar outside of the prospective jurors' presence, Petersen's attorney expressed concern regarding the excused juror's comment. Counsel stated he believed it was possible that the juror's comment had "poison[ed] the entire jury." The State opined that the issue could be rectified through a curative instruction. The circuit court decided to address the issue with the prospective jurors in a general fashion to determine whether the venire panel had been tainted.
¶13 When the prospective jurors returned to the courtroom, the circuit court addressed them as follows:
Now the reason we go through this rather elaborate effort is so we can have a jury that is fair and impartial and it will decide this case only on the evidence that comes in through testimony and exhibits in the courtroom and only based upon the law that is presented to you by the Court, that is me. And you are hearing some people express misgivings, and that's great that they do, but that's not evidence, so none of that is evidence. I appreciate-I applaud them for it. So please do not misunderstand me, but that's not evidence. Evidence is the proof in this case that comes into the case next door and the law that I give you. You all- those of you who serve as jurors must swear that you will find the facts as you as a group agree them-agree them to be. You will apply the very significant burdens of proof which the State has, and the defendant has no burden of proof, and...
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