State v. Jensen

Plaintiff-Respondent, Wisconsin, STATE of Defendant-Appellant. JENSEN,† Lew Appeals Court of No. April 86-1915-CR. Submitted on 1987. Decided briefs August 1987. (Also reported 519.) in 415 N.W.2d petition pending. This Petition review was not decided † disposition press. reported the time the volumewent to Its willbe in a later volume.

For defendant-appellant there by were briefs L. Cushing, Glenn public assistant state defender of Madison.

For plaintiff-respondent by there was a brief Donald J. Hanaway, and Sharon attorney general, Ruhly, general assistant attorney Madison. Cane, P.J.,

Before Myse Dykman, and JJ. MYSE, J. appeals Lew Jensen a con- judgment victing assault, him of sexual contrary to sec. 940.225(l)(d), Stats., and an order his denying motion argues postconviction that trial

for relief. Jensen guidance permitted erroneously a to court counselor express testify expert an as complainant’s a behavior was consistent with that of argues sexually He also that the trial abused child. submitting by written to the court his confession erred during jury We their use deliberations. conclude for permitted guidance properly coun- that the court testify as an and that the court’s error selor to permitting express him to that con- complainant’s behavior with that of a nected the sexually was harmless. also abused child We conclude sending to that Jensen’s written confession judgment and are room was harmless error. The order affirmed. assaulting charged sexually

Lew Jensen was with stepdaughter, eleven-year-old L.J. At trial Thomas his guidance counselor, Bosman, L.J.’s testified school "acting following out” behavior school L.J.’s sexual assault was consistent with exhibited abused child. trial, introduced into evidence

At the state also charged Jensen’s written confession assault. Jensen testified that confession it he and that he had made because believed untrue custody by doing only he retain L.J. so could The sent confession for their court Jensen’s during use deliberations. trial

Jensen contends that court erred expert permitting testify to as an in the Bosman by sexually abused children. We behavior exhibited disagree. determining in

A trial court has broad discretion knowledge, skill, whether a witness has sufficient 336 training experience, as qualify expert. Hamp- State, 450, ton v. 92 455-56, Wis. 2d 868, 285 N.W.2d (1979); 907.02, 871-72 sec. Stats. We will uphold the exercise that discretion unless the circumstances demonstrate that the court’s determination was mani- festly wrong and constituted an abuse of discretion. Id.

The trial court could reasonably determine that qualified Bosman was as expert in the behavior exhibited by sexually abused children. Bosman holds a master’s degree guidance in and counseling and a degree bachelor’s in elementary education. He has also earned fourteen beyond credits his master’s degree and has undergone specialized training regard- ing sexual abuse of children. Bosman testified that he had been employed guidance as a counselor for fifteen and that years during last four years he had been involved in investigating one suspected to two cases of sexual child per year. abuse Based upon Bosman’s training prior experience, the trial court did not abuse its discretion by permitting him testify as an in the area of sexual child abuse. See State v. Haseltine, 120 Wis. 2d 95 n. (Ct. 1984).

n. 5 App. Next, Jensen contends that the trial court erred by permitting Bosman to opine that L.J.’s behavior at school following alleged sexual assault was consis- tent with that of a sexually abused child. The prosecu- tor asked Bosman: ... your opinion are the kinds "[i]n acting out behavior the teachers described to you they seeing were consistent with [L.J.] children who were victims of sexual abuse?” Bosman replied "Yes.” Jensen claims this impermissibly bolstered L.J.’s credibility because it telling

implied truth about was that she 97-98, 352 N.W.2d at id. assault. See 906.08, conclude that the admission 676; We Stats. sec. testimony harmless error. was of this expert’s opinion Determining should whether resting is a matter within into evidence be admitted Friedrich, 135 Wis. State v. discretion. the trial court’s (1987). 763, A court 1, 15, 769 trial 2d misapplies however, discretion, when it abuses its City Crosse, 263, 268, 120 2d La Wis. law. State 1984). (Ct. App. N.W.2d 740 Haseltine, 2d at 352 N.W.2d at In permitted expert not be that an should we concluded sexually complainant testify had been that a to upon subsequent conduct the victim’s assaulted based give permitted expert be no "should because physically compe- mentally that another telling An the truth.” tent witness is telling complainant or is was assaulted impermissible. however, noted, Id. We also truth is purpose if would be admissible its that such ambiguous explain be or what otherwise would complainant: contradictory by a conduct case, expert of an Depending on might example, an incest victim jury. aid the For incest, may immediately report may not might reason- accusations of incest. Jurors recant regard an indication that ably such behavior as An could telling the truth. victim was not among explain such behavior common confusion, guilt, and a incest victims as a result of parent. to accuse a reluctance (citation omitted). Id. at 352 N.W.2d at 676 Under exception, this such does not involve an expert’s opinion that a sexual assault had occurred. explaining Rather, such is limited to that product certain conduct is the natural of a victim’s psychological condition. expert’s opinion Haseltine,

Under an that a complainant sexually has been assaulted is inadmissi- complainant’s may prove Able. conduct not be used to may that an assault has occurred but an assault be explain complainant’s ambiguous used to a later contradictory conduct.

The line drawn between the two in considerations perceived always readily and, Haseltine is not under danger regard jury cases, the best of the that the will a complainant’s proof always conduct as of an assault is present. danger keep In order to this minimize the clearly distinguished, Haseltine considerations we suggest opinion testimony that such be elicited the hypothetical question coupled form of a with a cau- tionary jury.1 instruction to the The instruction should jury complainant’s may warn the that the conduct not be used as evidence that an assault has occurred and hypothesis expert’s opinion infirm, that if the is the (1987). equally infirm. See Wis J I—Criminal 205 using hypothetical By coupled the form with a cautionary danger instruction, will regard expert’s opinion as evidence that complainant sexually had been assaulted will be example question hypothetical

1An of such a would be assaulted, "assuming you 'X’ that had been do have why questioned as to she denied assault when first potential danger Although remains a there reduced. complainant’s reason will proves hypothetical assault, subsequent conduct complainant’s focusing question will conduct on the danger only reduce but also this lessen not possibility inadvertently stray will prohibited area. into the admitting expert’s for a foundation

As of an issue, must be introduced on this evidence ambiguous complainant’s or contra- and the assault dictory State, 2d Novitzke v. conduct. See (1979); 904, 906-07 Schulz v. St. 305-07, 284 N.W.2d Mary’s 648-49, Hosp., 2d 260 N.W.2d (1978). inquiry is such an In cases where 785-86 expert’s opinion appropriate, the must focus on complainant’s and counsel Both court conduct. expert’s steps necessary to ensure that the should take purpose. impermissible opinion for an is not used closely testimony Here, between falls Bosman’s Although Bosman in Haseltine. considerations the two acting opined out was consistent with that L.J.’s sexually by child, that was abused exhibited explaining in school L.J.’s unusual conduct directed alleged following Nevertheless, sexual assault. precluded testifying from under Haseltine an following alleged complainant’s behavior that a proof The that an assault occurred. sexual assault question was consistent with of whether conduct way assault victim is but another that of a sexual impermissible attempting conclusion that reach proves conduct the assault. essence, that L.J.’s behavior In Bosman testified following alleged sexual assault demonstrated testimony sexually This that she had been assaulted. impermissibly credibility bolstered L.J.’s and her testimony Accordingly, that Jensen had assaulted her. by permitting express the trial court erred Bosman to conclude, however, on this issue. We this error was harmless.

An error is if harmless there is no reasonable possibility that it contributed to conviction. State Grant, 45, 52-53, 139 Wis. 2d (1987). possibility 747-48, A reasonable is that which undermines a court's in confidence the outcome of the making Id. In determination, case. this a court examines the error in the context of the entire Id. trial.

The in outcome this not case was undermined acting testimony Bosman’s that L.J.’s out behavior sexually was consistent with that of a abused child. light credibility The chief issue at trial was L.J.’s testimony her that Jensen had assaulted The her. emphasis explain of Bosman’s was to L.J.’s following unusual conduct in school prove assault, not that she had been assaulted. Given the context in which this unlikely jury introduced, was it is drew the impermissible that conclusion L.J.’s later conduct was proof that an assault had occurred. importantly,

More a review of the record discloses very that Bosman’s on this issue constituted a part prosecution’s prosecution minor of the case. The ample guilt including introduced evidence of Jensen’s Accordingly, his confession to the crime. no there is possibility reasonable that the error the contributed to conviction. by trial court erred that the next asserts

Jensen the for their jury confession to submitting his written In Payne, State v. during use deliberations. (1929), supreme our 615, 629-30, 227 N.W. to send improper that it was court concluded room into the jury statements written defendant’s be statements would that the danger of the because from testimony given to the relative over-emphasized that we conclude light Payne, In the witness stand. sending confession to Jensen’s trial court erred conclude, however, that this error was We jury. harmless. the issue before that

The record demonstrates not its con- confession was regarding Jensen’s jury it rather, which but, the circumstances under tents he made the confession given. was Jensen testified that so only by doing told him that police had because of L.J. The officers custody able retain would he be denied these taking Jensen’s confession involved Thus, was not the jury the issue before allegations. it but whether of Jensen’s confession substance police pressure. improper or resulted from voluntary that the confession resulted If the believed of that confession police substance pressure, from If, however, be- rejected. have been would made, voluntarily that the confession was lieved during before them the confession was fact they little effect because would have had deliberations consider the contents entitled to know and were trial, of the During the course confession. both referred Jensen’s counsel had prosecutor Under these incriminating of the confession. portions no circumstances, there we are satisfied 342 possibility reasonable the court’s error contrib- uted to Jensen’s conviction.

Several other Wisconsin cases have also ad- dressed this Rutchik, issue. See 61, State v. 116 Wis. 2d (1984); 78-79, 639, 341 N.W.2d 647-48 Franklin v. State, 717, 724-25, 74 Wis. 2d 247 721, N.W.2d 725 (1977); Opanchar, 454, 457, State v. 197 Wis. 222 N.W. (1928); 245, 246 Jaworski, State v. 235, 135 Wis. 2d (Ct. 1986). App. 241-42, 400 N.W.2d 31-32 These Payne, cases, consistently as well as have found such Rutchik, error to be harmless. 79-80, 116 Wis. 2d at Franklin, 341 648; N.W.2d at 74 Wis. 2d at 247 Payne, 725; N.W.2d 199 Wis. at 277 N.W. at Opanchar, (1928); 263; 457, 222, N.W. at 246 Jaworski, 241-42, 135 Wis. 2d at 400 N.W.2d at 29. controversy Because the focus of the centered not on the substance of Jensen’s confession but the circum- given, stances under which it was our conclusion that compelling. the error was harmless is even more cumulatively, Even when viewed the errors in admitting opinion regarding Bosman’s L.J.’s behavior sending Jensen’s confession to room were noted, harmless. As the focus of Bosman’s credibility was not on L.J.’s or whether she had been Rather, assaulted. his centered on explaining following L.J.’s unusual conduct in school Similarly, sexual assault. the issue before regarding Jensen’s confession was not its voluntarily contents but whether it had been made. Irrespective errors, of these the state introduced ample guilt. Consequently, evidence of Jensen’s even together, when viewed we are confident these unduly jury. errors did not mislead or influence the Dyess, 525, 541-43, See State Wis. 2d (1985). 222, 231-32 Judgment

By affirmed. and order the Court.— {concurring). I the ma- concur with CANE, P.J. majority’s disagree jority decision, I with the but reasoning Thomas Bosman’s admission of in a This issue has been raised error. was contradictory jurisdictions variety results.1 with of having guilty of found Lew Jensen A stepdaughter. eleven-year-old with his intercourse stepdaughter primary who witness was The state’s living grand- was with her that while she testified got her, Jensen, into touched he bed with and mother vagina, with her. sexual intercourse and had her Oregon held that such evidence is admissi and have

1Kansas being litigated and to the issues would it is relevant ble because guilt making its jury in determination assist as (Kan. 822, See, McQuillen, P.2d 828 e.g., State v. 689 innocence. (1986); Middleton, 1984), 657 P.2d aff’d, 721 P.2d 740 State v. (Or. 1983). 1221 hand, have held that similar Minnesota and Missouri

On the other because it has not reached a psychiatric is inadmissible evidence reliability necessary to establish foundation level of scientific Saldana, See, admissibility. e.g., State v. for its 1984). (Mo. (Minn. 1982); Taylor, 239 663 S.W.2d State expressed grave as jurisdictions have reservations These complainant’s logical a correlation exists between whether expert’s opinion complain- subsequent that the behavior and the jurisdictions subjected a attack. These have ant had been to sexual bolstering resulting prejudice from also concluded complainant’s testimony dignity credibility with scientific of a outweighed probative psychologist’s psychiatrist’s or a value of such evidence. jurisdictions that none would

It should be noted however of these permit psychiatric direct or other complainant truthfully. testifying having any hand, On the other Jensen denied stepdaughter. sexual contact with his Jensen testified that his former wife had left him for another man and daughter had taken the to California with her. He granting custody then obtained a court order him stepdaughter brought his her back to Wisconsin. stepdaughter Jensen claims that fabricated the charge part plan sexual assault as of a with her might mother in order that she return to California. part against As a Jensen, of its case the state guidance stepdaugh- Bosman, called a counselor the stepdaughter ter’s school. The had first related to days Bosman her accusations of sexual abuse three alleged objection, after the assault had occurred. Over acting Bosman testified that the child’s out behavior subsequent to the incident was consistent with children who were victims of child abuse. He did not directly express telling that she was truth or that she was assaulted. testimony

It is evident that his does bolster her credibility, deny but this not should be a to basis including testimony. testimony, expert Much testimo- ny, tends show that another witness either is is telling by This, itself, not the truth. should not render expert’s testimony, evidence inadmissible. When an if help believed, will understand the evidence or disputed fact, determine a it should be admissible at 907.02, the trial court’s discretion. Section Stats. Nor is otherwise in admissible the form anof objectionable or inference it because embraces an ultimate issue be decided the trier of fact. 907.04, Section Stats. usually

Sexual of child abuse a is committed in a place only by secluded witnessed the victim and the primarily Thus, assailant. the trial involves the vic- presents against This a accused’s. tim’s word expert’s testimony question jury. The for difficult determining whether to aid is relevant It not be inadmissible occurred. should sexual abuse may simply it or make more corroborate because testimony. the victim’s credible expert testimony for the limited use of The showing purpose child’s actions were consis- who are victims of sexual with those of children tent any contact, abuse, is the accused denies where departure from the normal use of a dramatic not expert testimony in The trial court must first trials. expert and is the witness is indeed find testifying subject proper for on a testimony. find that offered The court must also Opposing will is relevant. counsel then have testimony through opportunity to discredit possible any and show bias. The cross-examination weight ultimately jurors what should be determine given testimony. Here, the trial court consid- reasonably exercised its discre- these factors ered admitting testimony. Bosman’s tion

Case Details

Case Name: State v. Jensen

Court Name: Court of Appeals of Wisconsin

Date Published: Aug 11, 1987

Citation: 415 N.W.2d 519

Docket Number: 86-1915-CR

Court Abbreviation: Wis. Ct. App.