State v. David Gutierrez, 933 N.W.2d 133

Background

In 2012 A.R., then 12, accused her stepfather, David Gutierrez, of multiple sexual assaults and of being forced to watch pornography; Gutierrez was charged with multiple counts including first-degree sexual assault of a child, incest by a stepparent, and child enticement.
Crime-lab testing on A.R.’s clothing and oral/peri-oral swabs detected no DNA attributable to Gutierrez; some items contained mixtures of male DNA from unidentified individuals (one underwear item showed a mixture from five or more males; a peri-oral swab showed a mixture from three males); no semen or saliva was identified.
The State moved to exclude evidence of the unidentified male DNA under Wisconsin’s rape-shield and relevance rules; the circuit court allowed Gutierrez to introduce that his DNA was not found but barred him from saying other males’ DNA was present; the court allowed the State to elicit testimony that washing/cleansing can remove DNA.
At trial the defense elicited that Gutierrez’s DNA was not found; on cross the State elicited testimony that DNA can be washed away; the jury did not hear that other male DNA was present on some tested items.
The jury convicted Gutierrez on all counts except the harmful-materials charge; Gutierrez appealed challenging evidentiary rulings (particularly exclusion of the other-male DNA), juror impartiality, and counsel effectiveness.
The Court of Appeals reversed and remanded for a new trial, concluding the exclusion of the other-male DNA as rebuttal evidence was an erroneous exercise of discretion and not harmless.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of unidentified male DNA found on victim’s items	The rape-shield rule and risk of prejudice/confusion made the unidentified DNA inadmissible; results would invite speculation about other sexual contacts.	The DNA mixtures were relevant rebuttal to the State’s theory that cleaning/washing explained absence of Gutierrez’s DNA; defendant should be allowed to say other male DNA was present.	Court: Exclusion was erroneous; defendant entitled to present the other-male DNA as rebuttal.
Permitting State testimony that DNA can be washed away without allowing rebuttal	Not directly argued beyond exclusion rationale; State permitted to explain absence of defendant’s DNA.	Allowing State to argue DNA could be washed but preventing defense from showing other DNA was present produced an unfair, one-sided impression.	Court: Allowing State’s wash-off theory while barring rebuttal undermined fairness; reversible error.
Harmless error from excluding other-male DNA	Error was harmless or insufficiently prejudicial to require new trial (State did not develop harmless-error argument on appeal).	Exclusion was critical: case turned on competing witness credibility and DNA evidence both ways was highly probative; reasonable probability of different outcome.	Court: Error was not harmless under Monahan factors; reversal and remand for new trial.
Admission of "other acts" (prior sexual contact when victim was 6)	Admission would be prejudicial and not sufficiently probative.	Prior similar conduct was admissible under the greater-latitude rule for child sexual-assault cases to show pattern, context, and why reporting occurred.	Court: Circuit court did not err; other-acts evidence admissible under Sullivan/Davidson and greater-latitude rule (with limiting instruction).

Key Cases Cited

State v. Warbelton, 315 Wis. 2d 253 (Wis. 2009) (standard of review for evidentiary rulings)
State v. Monahan, 383 Wis. 2d 100 (Wis. 2018) (harmless-error framework and factors for evidentiary error)
Martindale v. Ripp, 246 Wis. 2d 67 (Wis. 2001) (harmless error: error affects substantial rights if reasonable probability of different outcome)
State v. Sullivan, 216 Wis. 2d 768 (Wis. 1998) (three-step test for admitting other-acts evidence)
State v. Davidson, 236 Wis. 2d 537 (Wis. 2000) (greater-latitude rule for other-acts evidence in child sexual-assault cases)
State v. Pulizzano, 155 Wis. 2d 633 (Wis. 1990) (defendant’s right to present favorable evidence and limits under relevance/prejudice rules)