State v. Steven G.B.

Decision Date31 July 1996
Docket NumberNo. 93-1658-CR,93-1658-CR
Citation552 N.W.2d 897,204 Wis.2d 108
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Steven G. B., Defendant-Appellant.
CourtWisconsin Court of Appeals

APPEAL from judgments of the circuit court for Portage County: JAMES EVENSON, Judge. Affirmed.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

GARTZKE, P.J.

Steven G.B. appeals from a judgment convicting him on two counts of first-degree sexual assault of a child, § 948.02(1), Stats. 1 The counts involve defendant's two children and incidents occurring between June 1 and August 1, 1991.

The issues are: (1) whether the trial court erred by giving the jury a supplemental instruction on agreement, Wis J I--Criminal 520 (1985); (2) whether the court erred when refusing to exclude the mother of the children from the courtroom when giving the supplemental instruction to the jury; (3) whether the court erred when refusing to allow defendant to show a pattern of behavior by the mother evidencing her bias; (4) whether the pattern instruction on sexual contact should have been modified; (5) whether sufficient evidence supports the verdicts; and (6) whether defendant's trial counsel was ineffective in the following respects: (a) in the voir dire of jurors; (b) failing to move to exclude or limit evidence of "Child Sexual Abuse Accommodation Syndrome" (CSAAS); (c) failing to object to a witness's "ultimate conclusion" testimony; (d) failing to call defendant's father as a witness; (e) failing to argue burden of proof and presumption of innocence during closing argument; and (f) failing to offer polygraph evidence favorable to defendant. Finding no error requiring reversal, we affirm.

I. EVIDENCE SUBMITTED TO THE JURY

Defendant and, Lauralie, the mother of the children married on December 5, 1987. At that time the mother had one child, Paige, born October 3, 1985, during a previous marriage. In 1988, Paige's father agreed to termination of his parental rights, and defendant adopted her. On October 3, 1988, Kaitlin was born to defendant and the mother. The family was living in Stevens Point. Defendant and the mother separated in January 1990, and in April 1990 he began a divorce action, seeking sole custody of both children. The temporary order awarded custody of Paige to Lauralie and custody of Kaitlin to defendant. The mother claimed defendant had sexually assaulted Paige, and her allegations led to a hearing in September 1990, following which temporary custody of Kaitlin was transferred to the mother and defendant's contact with his daughters was ordered monitored.

In March 1991 the family court awarded defendant and the mother joint custody of both children with primary placement to him. That decision followed a psychological evaluation and custody study. Primary placement with defendant did not go into immediate effect because the court gave the mother permission to take the girls to Ohio to visit relatives.

The mother and children left Wisconsin in March 1991 but she failed to return as ordered, and in April 1991 she was charged with absconding. She and the children returned to Wisconsin in late May 1991. Upon their return the mother was released on bond and the charge against her was later dismissed. The girls were placed temporarily in the custody of defendant's parents, the mother's visitation was supervised, and defendant's visitation was allowed only in the presence of his parents. On July 5, 1991, the family court reinstated unrestricted primary placement with defendant and unsupervised visitation for the mother.

Two weeks later defendant agreed to allow the mother to have the children for a one week vacation beginning July 19, 1991. She did not return the children to him. The children were found to be in need of protection or services and were placed in a foster home.

On February 12, 1992, a criminal complaint issued charging defendant with having sexually assaulted Paige and Kaitlin between June 1 and August 1, 1991, the period immediately after their return to Wisconsin from Ohio.

Paige testified at the jury trial that her father had touched her private parts. She denied ever seeing her father touch Kaitlin between the legs. She denied that her mother had told her to lie about what her father had done. Kaitlin did not testify.

The defense presented evidence that Paige had made prior inconsistent statements. According to defendant's pastor, before the divorce Paige told him her mother was urging her to tell others that her father had touched her private parts, her father had not done so, and her mother was telling her to lie. At a second meeting with the pastor, Paige again denied touching by defendant and accused her mother of urging her to lie. When asked whether her father had told her what to say, Paige denied having been coached.

Dr. Sue Seitz is a psychologist appointed by the family court. Seitz has had extensive experience in treating and evaluating child sexual abuse. She testified that she had sessions with the children before and after the divorce and had interviewed defendant and the mother. Seitz testified she routinely videotapes sessions when there are conflicting allegations of sexual abuse. She had seven hours of videotaped interviews with Paige and had prepared an excerpt tape, portions of which the jury saw. The videotaped excerpts included both pre-divorce and post-absconding sessions with Paige. During both periods Paige said her mother told her to say that her father had touched her. Paige said he had touched her only when he put medicine on her. She complained to Seitz that her mother did not want to share her and her sister with defendant and was going to let the mother's boyfriend be her father. Seitz believes the child was under pressure to maintain her allegations against defendant for purposes of establishing a new family for her mother.

The children's foster-home mother, Ms. Nagorski, testified that in the first weeks following Kaitlin's foster home placement on July 31, 1991, she was masturbating eight to ten times per day. That behavior continued until October 1991, when it began to taper off. Both girls wet their beds, and both made statements about their father's touching them. The foster mother testified she saw Paige masturbate three times.

Dr. Seitz testified that only the children's mother reported masturbation to her as a behavioral problem. Their paternal grandparents, baby sitter, and father did not report masturbation to Seitz.

The State and defense called social worker witnesses. One testified that during her investigation of abuse allegations in November 1990, both children denied that anyone had touched their private parts. A second social worker testified that both children told her their father was touching them. A third social worker, who supervised visits by both parents in the fall of 1991, testified she heard Kaitlin say that mommy "tells me to say that daddy touches my duppie [the child's vagina] but that he doesn't."

A social worker assigned to the case in the summer of 1991, testified she interviewed Paige three times shortly after the mother returned with the children from Ohio, but Paige did not allege abuse until the third interview on July 24, 1991. Although the grandparents or father had brought Paige to the previous interviews, the mother brought Paige to the third interview. At that time Paige said her father pins her down on the floor and touches her private parts and that Kaitlin put Legos where "she goes to the bathroom." Paige said her father touched Kaitlin's private parts, and he threatened to lock Paige in a dark cage if she told anyone. When the social worker asked Paige whether she was lying about her father's telling Kaitlin to put Legos in her vagina and that she would be locked in a dark cage, Paige admitted that those were lies. The social worker did not ask Paige whether she was lying when she said that her father touched her private parts and the private parts of her sister.

The mother's physician, Dr. Bahrke, testified that a child's bed-wetting, being unusually afraid, excessive masturbation and physical evidence like irritation of the vagina, could evidence abuse but could also be symptoms of other problems and do not prove sexual assault. When he examined Kaitlin in light of the allegations about Legos, he saw no physical evidence of abuse.

Dr. Williams, a psychologist, testified he met with Paige sixteen times from June to November 1990. The mother brought Paige to the sessions. Paige told him that her father touched her in the vaginal area. He testified that symptoms of sexual abuse can be symptoms of other problems, and that masturbation does not prove child abuse.

The prosecution retained a psychologist, Dr. Emiley, to testify regarding "child sexual assault accommodation syndrome." An essential feature of the syndrome is that an abused child will recant accusations of abuse. (Later in this opinion we more fully describe his testimony regarding the syndrome.) He testified that although the syndrome was first described in 1983, it is not a recognized disorder in DSM-3R, the standard psychological reference book listing mental disorders and symptoms.

The defense called another psychologist, Dr. Hoorwitz. He testified that the sexual abuse accommodation syndrome is controversial, and no consensus exists that it is accurate. He identified factors that may indicate false accusations, including inconsistencies and facts suggesting pressure on a child to falsify, such as a highly contested custody case. Masturbation could be a reaction to any number of stressors, including sexual assault, and "for children of this age, a very likely reason is for self-soothing purposes in the face of a loss of some kind."

Dr. Matusiak, a psychologist who assessed ...

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