State v. Rosche, No. 2008AP1037-CR (Wis. App. 3/25/2010)

• Decision Date: 25 March 2010
• Docket Number: No. 2008AP1037-CR.,2008AP1037-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Kristopher C. Rosche, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

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State of Wisconsin, Plaintiff-Respondent, v. Kristopher C. Rosche, Defendant-Appellant.

No. 2008AP1037-CR.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: March 25, 2010.

APPEAL from a judgment of the circuit court for Monroe County: TODD L. ZIEGLER, Judge. Affirmed.

Before Dykman, P.J., Vergeront and Higginbotham, JJ.

¶ 1 PER CURIAM.

Kristopher Rosche appeals a judgment convicting him of second-degree sexual assault of a child as a repeat offender.¹ He challenges an evidentiary decision, a comment made by the prosecutor during closing argument, and a jury instruction. We affirm the conviction for the reasons discussed below.

BACKGROUND

¶ 2 The victim alleged that Rosche had sexually assaulted her in the back of his semi-truck when she was fourteen years old. She did not tell anyone about the assault until a year and a half later, however, when she finally disclosed the incident to a friend, a teacher and her mother. She said she had waited for so long to tell anyone because she felt like she had done something wrong, and she was afraid of hurting her mother, who was Rosche's ex-wife. The victim said she finally told because it was bothering her and she realized she wasn't to blame and wasn't the only one it had happened to.

¶ 3 The victim admitted that she had other problems in her life that made her feel suicidal, and that she had recorded many of those problems, but not the sexual assault, in her journal. She also acknowledged that she had been in counseling for some time before disclosing the assault to her teacher, even though she felt safe with her therapist.

¶ 4 Prior to trial, Rosche had sought to view the victim's therapy records. The trial court denied the motion after conducting an in camera inspection. Rosche moved for reconsideration, arguing that he should at least be allowed to delve into what the victim had not disclosed in therapy—that is, that she had not made allegations of sexual assault even in a friendly and safe environment. The court refused again at trial to allow Rosche to directly question the witness about the details of anything that was or was not said during therapy. The court noted, however, that since Rosche could ask whether the victim was going to counseling and yet had first disclosed the incident to her teacher, Rosche could still argue to the jury the obvious inference that the victim had not disclosed the incident to her therapist.

¶ 5 The State presented expert testimony from a child psychotherapist who stated that it is typical for child victims to delay reporting sexual assaults. He explained that the four most common reasons for delayed reporting are that the child feels helpless due to a power imbalance; that the child fears being blamed or not believed; that the child feels a sense of shame or secretness; or that the perpetrator has made actual threats to the child.

¶ 6 Rosche took the stand and acknowledged that the trip the victim had described had occurred, but disputed her timeframe and denied that he had sexually assaulted the victim in any way.

¶ 7 During closing argument, the prosecutor told the jury:

You represent the morals and the values of our community. You have the ability to protect our children. Send a message to our community that our kids will be protected and find the defendant guilty on all counts.

The prosecutor reiterated that sentiment in her rebuttal, over the objection of the defense, saying, "Be representatives of our community, represent the values and morals of our community."

¶ 8 After about four hours of deliberation, the jury informed the court they were having trouble reaching a unanimous consensus. Over the objection of the defense, the court gave the pattern instruction, set forth in WIS JI—CRIMINAL 520.

DISCUSSION

Evidentiary Ruling

¶ 9 The admissibility of evidence is subject to multiple layers of analysis. First, evidence is not admissible unless it is relevant—meaning that it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." WIS. STAT. §§ 904.01 and 904.02 (2007-08).² Evidence which has some relevance may still be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." WIS. STAT. § 904.03.

¶ 10 Next, certain types of evidence may be excluded even if their probative value exceeds their potential prejudice, based on a number of specific statutory rules. Such exclusionary rules include a privilege of confidentiality for communications made by a patient to a therapist. WIS. STAT. § 905.04. However, a criminal defendant's constitutional right to present a defense may in some cases require the admission of testimony which would otherwise be excluded under applicable evidentiary rules. State v. Jackson, 216 Wis. 2d 646, 663, 575 N.W.2d 475 (1998).

¶ 11 The right to present a defense through the testimony of favorable witnesses and the effective cross-examination of adverse witnesses is grounded in the confrontation and compulsory process clauses of the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. See State v. Pulizzano, 155 Wis. 2d 633, 645, 456 N.W.2d 325 (1990). In order to warrant a new trial, a defendant must show that a violation of the confrontation clause or compulsory due process clause "completely" prohibited him from exposing a witness's bias or motive for testifying falsely, or deprived him of material evidence so favorable to his defense as to "necessarily" prevent him from having a fair trial. United States v. Manske, 186 F.3d 770, 778 (7th Cir. 1999).

¶ 12 Trial courts generally have broad discretion to admit or exclude evidence and to control the order and presentation of evidence at trial. State v. James, 2005 WI App 188, ¶8, 285 Wis. 2d 783, 703 N.W.2d 727. We will only set aside such discretionary determinations if the trial court has failed to apply a relevant statute or consider legally relevant factors, or has acted based upon mistaken facts or an erroneous view of the law. Id.; Duffy v. Duffy, 132 Wis. 2d 340, 343, 392 N.W.2d 115 (Ct. App. 1986). However, we will independently determine the legal question of whether a privilege exists in a particular set of circumstances. See Churchill v. WFA Econometrics Corp., 2002 WI App 305, ¶8, 258 Wis. 2d 926, 655 N.W.2d 505. We will also review de novo the question whether an evidentiary decision deprives a defendant of the constitutional right to present a defense. See State v. Heft, 185 Wis. 2d 288, 296, 517 N.W.2d 494 (1994).

¶ 13 Here, Rosche sought to elicit testimony from the victim that she had not told a therapist about her assault, even though the therapist was a good listener and the victim felt safe with her. Rosche contends this testimony was relevant because it undermined some of the reasons the State's expert gave for why child victims might delay reporting. We agree that the victim's failure to report the sexual assault to a trusted therapist was relevant and, given that this was a credibility case, that its probative value exceeded its prejudicial effect.

¶ 14 Rosche further contends that the trial court erred in applying the patient/therapist privilege to the victim's failure to report her assault during therapy, and that the error deprived him of his right to a fair trial by limiting his ability to present a defense through cross-examination of the victim. He argues that the nondisclosure of something does not qualify as a "communication" within the meaning of WIS. STAT. § 905.04.

¶ 15 For the sake of argument, we will accept Rosche's assertion that the nondisclosure of certain information to a therapist is not itself a statutorily privileged communication. We do not agree, however, that prohibiting direct testimony from the victim about her failure to report the sexual assault to her therapist deprived Rosche of a fair trial or his right to present a defense in this case.

¶ 16 The basis for our conclusion that Rosche was not deprived of his constitutional right to present a defense or fair trial is that the absence of direct testimony from the victim that she did not tell her therapist about the sexual assault did not "completely prohibit" Rosche from getting that same information before the jury. As the trial court correctly noted, given testimony that the victim was in therapy and...