State v. David Gutierrez, 943 N.W.2d 870

Background

Victim A.R., then 12, alleged multiple sexual assaults by stepfather David Gutierrez between 2011–2012, including recent oral sex and earlier assaults beginning at age six.
Forensic testing of a perioral swab and two pairs of underwear detected mixed male DNA (multiple unidentified males); testing excluded Gutierrez and found no semen or saliva.
Before trial the circuit court allowed proof that Gutierrez's DNA was not found but excluded evidence identifying or admitting the unidentified male DNA as having limited probative value and risked confusing the jury.
The State obtained admission of one prior assault (when A.R. was ~6) as other‑acts evidence for motive, context, and background under the greater‑latitude rule for child sexual‑assault cases.
During voir dire one juror (R.G.) equivocated about impartiality; defense did not further question, challenge for cause, or use a peremptory strike. Defense also chose not to call the defendant’s mother as a witness. Jury convicted Gutierrez on nine counts.
The court of appeals reversed, finding exclusion of the unidentified DNA erroneous and prejudicial, and remanded for a new trial; the Wisconsin Supreme Court reversed that part, affirmed admission of other‑acts evidence, and rejected claims of juror bias and ineffective assistance.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether exclusion of unidentified male DNA from perioral/underwear swabs was erroneous under Wis. Stat. § 904.03	State: exclusion proper—unidentified DNA had very limited probative value, timing/contamination questions, risk of confusion, waste of time, and rape‑shield concerns	Gutierrez: evidence was highly probative to rebut State’s theory that his DNA was washed off; exclusion misled jury into thinking no DNA existed	Court: affirmed circuit court—exclusion was reasonable under § 904.03 given unknown source/timing, contamination risk, and danger of a speculative ‘‘rabbit hole’’
Whether admission of prior assault (victim age ~6) as other‑acts evidence was erroneous	State: admissible for motive, context, and background under the greater‑latitude rule for child sexual assaults	Gutierrez: prejudicial; improper propensity use	Court: admission proper—other act was highly similar, probative of motive and credibility, and probative value not substantially outweighed by prejudice given cautionary instruction
Whether seating juror R.G. who equivocated during voir dire violated the right to an impartial jury	State: juror presumed impartial; equivocation alone insufficient without further proof of bias	Gutierrez: juror’s statement that she might not be impartial required follow‑up and excusal	Court: no error—record insufficient to overcome presumption of impartiality; speculation about answers to unasked questions is inadequate
Whether defense counsel provided ineffective assistance by not striking/juror or calling defendant’s mother	State: decisions were reasonable trial strategy; no prejudice shown	Gutierrez: failures were deficient and prejudiced defense	Court: no ineffective assistance—no prejudice from juror decision; counsel’s choice not to call mother was a reasonable strategic decision

Key Cases Cited

State v. Chamblis, 362 Wis. 2d 370, 864 N.W.2d 806 (2015) (appellate review standard for discretionary evidentiary rulings)
State v. Warbelton, 315 Wis. 2d 253, 759 N.W.2d 557 (2009) (admission/exclusion of evidence is within circuit court discretion)
State v. Rhodes, 336 Wis. 2d 64, 799 N.W.2d 850 (2011) (appellate courts must not substitute their discretion for the trial court's)
State v. Wiskerchen, 385 Wis. 2d 120, 921 N.W.2d 730 (2019) (seek reasons to sustain trial court discretionary decisions)
State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998) (three‑part framework for admitting other‑acts evidence)
State v. Davidson, 236 Wis. 2d 537, 613 N.W.2d 606 (2000) (greater‑latitude rule in child sexual‑assault cases)
State v. Hurley, 361 Wis. 2d 529, 861 N.W.2d 174 (2015) (motive as acceptable purpose for other‑acts evidence)
State v. Lepsch, 374 Wis. 2d 98, 892 N.W.2d 682 (2017) (standard for reviewing juror‑bias claims)
State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999) (voir dire may elicit equivocal answers; trial court best positioned to probe bias)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance of counsel)