State v. Wooten
| Decision Date | 09 March 1993 |
| Docket Number | No. 91-2824-CR,91-2824-CR |
| Citation | 177 Wis.2d 619,503 N.W.2d 21 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Kenneth J. WOOTEN, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before Wedemeyer, P.J., Fine and Schudson, JJ.
SCHUDSON.
On April 5, 1991, following a three-day trial, a jury found Kenneth J. Wooten guilty of the 1989 second-degree sexual assault of a child, T.M., contrary to sec. 948.02(2), Stats. Wooten appeals his conviction, asserting that the trial court erroneously exercised its discretion when it found that the defense offer of proof regarding an alternative semen source was insufficient to justify presentation of the evidence to the jury. Because we agree with the trial court's conclusion, we affirm.
In November 1989, fifteen year-old T.M. resided with her adult cousin, Gwendolyn Johnson. According to the trial testimony, T.M. went out with two friends on the night of Thanksgiving, and returned to Johnson's residence where Wooten, Johnson's boyfriend, let her in at about 1:00 a.m. T.M. testified that after a brief discussion with Wooten about where to find some alcohol to treat a cut on her foot, "all of a sudden" Wooten pulled her to the floor, held her down, pulled down her pants, muffled her pleas to "stop," and inserted his penis in her vagina. T.M. expressed surprise, crying in disbelief because she had considered Wooten to be like a brother who had always been nice to her. Wooten pleaded with her not to tell, saying that "it was the drugs" that made him assault her.
About ten minutes later, however, T.M.'s boyfriend, Mel, and cousin, Robert, arrived. T.M. told Mel about the assault. He, in turn, told Robert who advised T.M. to tell Johnson later that morning. T.M. then went to sleep, but after being awakened by Johnson, T.M. told her of the assault. Johnson confronted Wooten with the accusation, and called the police. Wooten left before the police arrived.
At about 2:00 P.M., approximately twelve hours after the assault, T.M. was examined at Sinai Samaritan Sexual Assault Treatment Center where cervical and vaginal swabs were taken. Crime laboratory tests established that "intact" sperm were found on the swabs as well as on T.M.'s underwear. The tests did not identify the person who was the source of the semen, but they did indicate its probable deposit within the preceding twenty-four hours, and its certain deposit within the preceding seventy-two hours. The State introduced the evidence of the tests at trial.
On the second day of trial, by written motion under secs. 971.31(11) and 972.11(2)(b), Stats., the defense moved to introduce evidence that "on the day or evening of the alleged assault," T.M. and Mel had intercourse. To establish that alternative semen source, the defense provided an offer of proof through the testimony of Gwendolyn Johnson.
Johnson confirmed that she was T.M.'s cousin and Wooten's girlfriend. She briefly told of her knowledge of the activities of T.M. and Wooten, as well as Robert and Mel the night of Thanksgiving and the next morning. She said she knew Mel "[a]s T[ ]'s boyfriend." Johnson stated that Mel would sometimes stay overnight at her residence and would sleep in the same room with T.M. The offer of proof continued with Wooten's lawyer questioning Johnson:
Q Now, drawing your attention to the time around Thanksgiving of 1989, but it needn't be that exact date, okay, can you indicate whether there were occasions where you had conversations with T[ ] regarding her sexual activities with this Melvin fella?
A Well, me and T[ ] have talked, and she have said that she had sex, but she haven't said that it was with Mel. When I found out that she was having sex with Mel--this was after the case or whatever, like two days after--we talked about that.
Q Okay. In conversation with you and T[ ]?
A Um-hum.
Q Could you just give a brief taste of what the conversation was about?
A Well, it was like he was making jokes.
Q He was there at the time?
A Um-hum.
....
He was making jokes, and I--he was saying that he had sex with her in the bathroom, and I asked her, and she was saying no, she didn't have sex with him in the bathroom or whatever, but she did have sex with him.
THE COURT: What did she say exactly about having sex with him?
A That she had sex with him.
THE COURT: That's all she said, "I had sex with him"?
A No, he was saying it was on the bathroom floor, and she was saying it wasn't like that, but I did have sex with him.
A It was like--yeah.
Q Just to follow it up. Is it true that she would not have indicated the day and hour that she had sex--
A No, no.
Q From the whole conversation, and being detailed if you can, did you gain an impression as to what point in time she was talking about?
A I don't know exactly what day. I don't know what time. I know me and T[ ] talks, we cousins.
The prosecutor then questioned Johnson:
Q A few days after T[ ] reported to you that Ken Wooten had sexually assaulted her, you talked with T[ ] and Melvin; is that right?
A See, Mel was there at all times, so I can't say if a couple of days after 'cuz I talked to the both of them every day, all the time.
Q But the conversation that you say you remember having with Melvin and T[ ] about the two of them having sex, that was after--
A Right.
Q That was after T[ ] told you that Ken Wooten had sexually assaulted her, right?
A Yeah, um-hum.
Q And when you talked to T[ ] and Mel about that, you didn't ask her exactly what day or days it was that she and Mel had supposedly had sex, right?
A The way he put it, he saying last night--
Q ... What did T[ ] say, if anything, about what day or days she had sex with--
A She did not say.
....
Q And of your own personal knowledge, you don't have any way of knowing whether or not T[ ] and Melvin had sex on Thursday night or any day--
A No, only what they told me.
Q And what T[ ] told you had nothing to do with what day or days she may have had sex with Melvin?
A No.
Q And you indicated that you are certain that this conversation that you had with T[ ] and Mel about them having sex was after she told you about what Ken Wooten had done to her, about having supposedly sexually--
A Yes, a couple of days after.
Q And you know it was a couple of days after but you can't be positive exactly what day it was?
A What day, I don't know if it was Tuesday, Wednesday, no, I don't.
Mel did not testify as part of the offer of proof. T.M. testified during the offer of proof that she had not had sexual intercourse with Mel or anyone else during the week prior to the sexual assault.
The trial court considered the offer of proof and excluded "any testimony concerning alleged sexual relations between the victim and any of her boyfriends and ... any questions concerning those matters." The court explained:
There is not a sufficient factual basis on the offer of proofs in my view to justify any of the exceptions under the Rape Shield Law to show the source of the semen. There is testimony that [T.M.] had one or two boyfriends, that one of the boyfriends spent the night from time to time. There is testimony that subsequent to the alleged sexual assault, she admitted having sexual relations with a boyfriend, and there is evidence only that Mel, one of the boyfriends, was in fact in the house at some point the night of the assault, was sleeping in a back bedroom. She was in the living room on the couch, and her testimony is she denied having sexual relations at any relevant time with this boyfriend. There is not a sufficient basis in which the jury ought to consider the issue as to whether she had sexual relations with Mel, whether she admitted having sexual relations with him to Gwen subsequent to the assault....
Explicitly, Wooten states the issue as one of statutory application: Under sec. 972.11(2)(b)2, Stats., did the trial court misuse its discretion in finding the offer of proof to be an insufficient factual basis on which to present alternative semen source evidence to the jury?
Implicitly, Wooten also poses a constitutional question: Under the Sixth amendment, because the State introduced semen evidence to corroborate the victim's allegation of intercourse, did the trial court commit reversible error by denying Wooten the chance to offer evidence from which, he maintains, under State v. DeSantis, 155 Wis.2d 774, 456 N.W.2d 600 (1990), a reasonable person could reasonably infer that the complainant had had intercourse with someone other than the defendant during the relevant time period?
The standard of review may vary according to the way in which we frame the issue. As the State indicates, if the issue is one of evidentiary interpretation and statutory application, this court will defer to the "broad discretion" of the trial court and "[n]o abuse of discretion will be found if a reasonable basis exists for the circuit court's determination." State v. Oberlander, 149 Wis.2d 132, 140-41, 438 N.W.2d 580, 583 (1989). If, however, the issue encompasses the constitutional right of a defendant to present evidence, grounded in the confrontation and compulsory process clauses of the Sixth Amendment and art. I, sec. 7 of the state constitution, no such deference is required. See State v. Pulizzano, 155 Wis.2d 633, 648, 456 N.W.2d 325, 331 (1990).
The standard of review is complicated further by the interplay of the defendant's right to present evidence in his defense, and the legislative effort to protect sexual assault victims from unfair evidence derived from their sexual...
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