State v. La Porte

Decision Date23 May 1991
Docket NumberNo. 90-0330-CR,90-0330-CR
Citation472 N.W.2d 247,163 Wis.2d 524
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Wesley LaPORTE, Defendant-Appellant.
CourtWisconsin Court of Appeals

Appeal from a judgment of the circuit court for Sauk county: James E. Evenson, Judge.

Circuit Court, Sauk County

AFFIRMED.

Before EICH, C.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

Wesley LaPorte appeals from a judgment of conviction for two counts of first-degree sexual assault in violation of sec. 940.225(1)(d), Stats. (1985-86). 1 LaPorte contends: (1) that the testimony of a clinical psychologist exceeded the bounds of State v. Jensen, 147 Wis.2d 240, 432 N.W.2d 913 (1988), because the psychologist opined that sexual assaults did in fact occur; (2) that the trial court improperly admitted evidence of other acts; and (3) that the trial court improperly admitted hearsay evidence. We reject each of LaPorte's contentions and affirm.

I. BACKGROUND

On February 22, 1989, T.R.L. reported to her kindergarten teacher, Jeanine Sprecher, that she had been sexually assaulted by her father, LaPorte. T.R.L.'s teacher contacted the school principal who, in turn, contacted Mary Fenske of the Sauk County Department of Human Services. The following day, Fenske and Sauk County Detective Merle Alt interviewed T.R.L. T.R.L. said that she had been sexually assaulted the previous evening. Using anatomically correct male and female dolls, T.R.L. demonstrated to Fenske and Alt how her father had pushed her on her back, taken off her clothes, and had sexual intercourse with her. When asked if she had observed her father engage in similar activity with anyone else in her family, she identified S.A.M., her eleven-year old stepsister.

Fenske and Alt went to S.A.M.'s grade school. They informed S.A.M. that they had talked to her sister, and that they were concerned that she had been a sexual assault victim. S.A.M. told them that, within the last week, her father had touched her vaginal area through her clothes while she was in her bedroom.

LaPorte was charged with two counts of having sexual intercourse or contact with a child under the age of twelve, sec. 940.225(1)(d), Stats. (1985-86). The charging documents stated that the assault of T.R.L. had occurred on February 22, 1989, and the assault of S.A.M. had occurred on February 17, 1989.

At trial, T.R.L. testified regarding her demonstration with the dolls of the sexual assault:

Q. And what did the boy doll do to play sex?

A. Go up and down.

Q. Up and down on what?

A. On the little girl doll.

Q. And was any part of the boy doll touching the girl doll?

A. Yes.

Q. Which part of the boy doll was touching the girl doll?

A. The dick.

Q. And what part of the girl doll was he touching?

A. The pussy.

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Q. And how did [T.R.L.] feel when that was happening?

A. Mad.

Q. And did dad say anything while he was doing that?

A. No.

S.A.M. also testified:

Q. And, when he touched your--your privates, with what did he touch you?

A. With his private.

Q. And where is that?

A. Between my legs.

Q. And where is his private?

A. Between his legs.

Sprecher and Alt testified regarding the complainants' description of the incidents. Donna Rifkin, a clinical psychologist, also testified about the general attributes of sexual assault victims and about her examination of T.R.L. and S.A.M.

LaPorte was found guilty of two counts of first-degree sexual assault. He appeals.

II. PSYCHOLOGICAL TESTIMONY

LaPorte argues that Rifkin's testimony was improperly admitted, over his objections. Rifkin testified that types of behavior linked with sexually abused children fall into three broad categories: emotional (violent mood swings and sleeping difficulties), behavioral (sexualized play), and intellectual (decreased school performance).

Discussing the identification of manifestations of sexual abuse, she stated:

[S]ometimes children will come in and the only place in which they re-enact the abuse is in your office and they don't re-enact it at school.... Then, there are other children--and this case would represent one of those examples--where the re-enactment of the trauma happens in all sorts of places.

Discussing her examination of T.R.L. and S.A.M., Rifkin testified:

[S.A.M.] proceeded to work on the same piece of paper and then drew her two little sisters and her little brother next to her, and they were all in nightgowns, and proceeded to tell me that they were all getting ready for bed and that sometimes they would have bad things happen to them when they were in bed. So, the behavior, the actual drawings from the evaluation also showed evidence of trauma and sexual abuse trauma.

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[T.R.L.] seemed to be compelled to draw her father next to her. She seemed to then be compelled to go on and draw the blanket on top of them.... This sort of behavior is characteristic of someone who has suffered a serious trauma.... That was evidence to me that, not only of the type of trauma, that it was sexual abuse, it was probably, in my opinion, but that it was fairly serious or longstanding, or both.

LaPorte contends that Rifkin's testimony was improperly admitted because Rifkin essentially opined that T.R.L. and S.A.M. were telling the truth. No witness, expert or otherwise, may give an opinion that another mentally and physically competent witness is telling the truth. State v. Romero, 147 Wis.2d 264, 278, 432 N.W.2d 899, 905 (1988). Because the determination of the credibility of a witness is the exclusive province of the jury, opinion testimony as to the witness' credibility is inadmissible. See id.

However, the supreme court has stated that if testimony will assist the trier of fact to understand the evidence or determine a fact in issue, it is proper to allow an expert witness to give "an opinion about the consistency of a complainant's behavior with the behavior of victims of the same type of crime. " State v. Jensen, 147 Wis.2d 240, 256, 432 N.W.2d 913, 920 (1988) (emphasis added). In Jensen, a school guidance counselor described the conduct of the complainant and also testified as an expert on the behavior of sexually abused children. Id. at 244-45, 432 N.W.2d at 915. The defendant objected to the following exchange:

Q. In your opinion, based on your experience, and based upon your training, are the kinds of acting out behavior that the teachers described to you that they were seeing in [complainant] consistent with children who were victims of sexual abuse?

A. Yes.

Id. at 246-47, 432 N.W.2d at 916.

Rifkin's comments did not go beyond comparing the complainants' behavior with that commonly displayed by victims of sexual assault. She nowhere opined regarding the complainants' credibility or the veracity of the complainants' factual description of the assaults. We conclude Rifkin's testimony was not "tantamount to an opinion that the complainant[s] had been assaulted or [were] telling the truth about the assault." Jensen, 147 Wis.2d at 255-56, 432 N.W.2d at 920.

III. EVIDENCE OF OTHER ACTS

LaPorte argues that the trial court erred in admitting, over objection, evidence of other acts. Asked if she had ever touched LaPorte's penis, T.R.L. responded:

A. He took my hand and made me touch it.

Q. And how did [you] touch it?

A. Made me hang onto it.

Q. And then what happened?

A. Made me suck it.

Both Rifkin and Alt also repeated T.R.L.'s description of the incident. In addition, after being asked "[h]ow many times has he done this to you," S.A.M. responded affirmatively to the question "more than once?"

Evidence of other acts is not admissible "to prove the character of a person in order to show that he acted in conformity therewith." Sec. 904.04(2), Stats. Other acts evidence may be admitted, however, to determine "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id.

A greater latitude of proof is generally allowed in the admission of other acts evidence, as falling within one of the 904.04(2), Stats., exceptions, in sex crimes cases. State v. Fishnick, 127 Wis.2d 247, 257, 378 N.W.2d 272, 277-78 (1985). One rationale for allowing greater latitude is to corroborate the victim's testimony against a credibility challenge by the defense. State v. Mink, 146 Wis.2d 1, 14, 429 N.W.2d at 99, 104 (Ct.App.1988). In this case, LaPorte emphasized the unreliability of the complainants and maintained that they had simply fabricated the sexual assault incidents.

Trial courts must apply a two-step test in determining whether to admit other acts evidence. First, the trial court must decide whether the evidence is relevant to one of the statutory exceptions. Mink, 146 Wis.2d at 13, 429 N.W.2d at 103. Second, the court must determine under sec. 904.03, Stats., if the unfair prejudice resulting from the admission of such evidence substantially outweighs its probative value. Mink, 146 Wis.2d at 13, 429 N.W.2d at 103. Because the trial court did not specifically follow this procedure, we independently review the evidence to determine if it supports the trial court's decision to admit the evidence of other acts. See State v. Shillcutt, 116 Wis.2d 227, 235-36, 341 N.W.2d 716, 719-20 (Ct.App.1983), aff'd, 119 Wis.2d 788, 350 N.W.2d 686 (1984).

Under the first prong of the analysis, we conclude the admitted evidence fits within a number of the exceptions provided in sec. 904.04(2), Stats. First, the other acts evidence was relevant, both with respect to the individual claims of S.A.M. and T.R.L., as well as to support the other sister's claim, to establish a general plan or scheme. See Hendrickson v....

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