COURT OF APPEALS
DATED AND FILED
June 18, 2009
David R. Schanker
Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Jim H. Ringer,
from an order of the circuit court for
¶1 PER CURIAM. The State of
¶2 Ringer was charged with repeatedly sexually assaulting his twelve-year-old adopted daughter between September 2006 and May 2007. The alleged assaults were at least weekly and consisted of Ringer: (1) touching the nipple area of the daughter’s breast outside and underneath her clothing; (2) touching her vaginal area and putting a finger inside her vagina; (3) “humping” against her; (4) pushing her hand onto his penis; and (5) attempting to put his penis into her mouth.
¶3 During the preliminary hearing, the daughter disclosed that she made prior allegations of improper touching against her biological father, which was one of the reasons she was adopted by Ringer. Ringer subsequently filed a motion in limine seeking, among other things, to admit evidence at trial of the allegations as prior untruthful allegations of sexual assault. The motion in limine included documents relating to the prior allegations, including Rusk County Sheriff’s Department incident reports, statements, and a referral form to the Rusk County District Attorney. These documents alleged that for a period of about two weeks in April 2005, when his daughter was ten years old, the biological father touched her breasts, vagina and buttocks area under her clothes. The assaults allegedly occurred when her father lived with his brother. The alleged sexual assaults by her father had been recorded in the daughter’s journal.
¶4 Shortly after the allegations were made by the daughter against her biological father, he was questioned by the police and allegedly admitted: (1) they had been sleeping in the same bed; (2) he “cuddled up” next to her and began to rub her stomach as he commonly did; (3) the tips of his fingers “may have bumped the bottom portion of her breasts”; and (4) he “may” have placed his hand on her breast “as he was drifting off to sleep.” He further stated, “I’m not saying it did happen and I’m not saying it didn’t happen.” In a written statement, the father stated he did not “recall” touching the complainant’s breast or vagina “while rubbing her stomach,” but “may have bumped the bottom of her bra.” He also stated that “if” he did touch her breast it was “not in a sexual way.”
¶5 Although charges concerning the biological father were referred to the district attorney, no charges were filed. The district attorney filed an affidavit averring that she had no reason to believe the child was lying, was unaware of any such finding, and that the allegations were believable. The district attorney declined to prosecute because there were no corroborating facts, circumstances, physical evidence or witnesses, which undermined the ability to rebut an allegation by the defense that the child was falsely accusing him. The affidavit also stated the trial would be a credibility battle between the child and the biological father, who was involved in a custody dispute with the mother regarding the daughter. The district attorney concluded the assaults had happened but could not be proved.
¶6 During the evidentiary hearing on the motion in limine, the biological father’s brother testified he never observed improper sexual contact between the daughter and his brother. He also testified he did not remember seeing them sleeping together in the spring of 2005. The brother further testified that although his “mental capacity” was “not too bad” after a disabling motorcycle accident, he did not clearly remember when the daughter resided at his home or her age at that time.
¶7 The biological father denied at the hearing the allegations of inappropriate sexual contact, but admitted “tickling, wrestling, and basically goofing around.” He did not recall telling the officer “I did touch her breast. It was not in a sexual way,” but added, “I’m sure it’s something to that extent.” The father also claimed to have said, “[I]f I did it, I had done it in my sleep and wasn’t aware of it.” He claimed that they would be in the same bed “[o]nly if she got scared … and climbed in while I was sleeping.”
¶8 On cross-examination, the father was asked whether he told the investigating officer that he had “decided to crawl into bed next to her.” The father testified, “I remember stating something to that effect.” He also admitted telling the officer “something to [the] effect” that he “began to rub her stomach area” “for about ten to 15 minutes.” He claimed not to recall telling the officer his “fingers may have bumped the bottom portion of her breasts,” but admitted telling him he “may have touched her breast, but … did not remember it happening” and that “it would have been an accident.” He also admitted saying “that if it happened it would have been in my sleep.”
¶9 The admission of evidence is left to the discretion of the
circuit court. State v. Dunlap, 2002 WI
19, ¶31, 250
¶10 Before admitting evidence of prior untruthful allegations of
sexual assault, the circuit court must determine whether the proffered
evidence: (1) fits within Wis. Stat. § 972.11(2)(b)3.;
(2) is material to a fact at issue in the case; and (3) is of
sufficient probative value to outweigh its inflammatory and prejudicial
nature. DeSantis, 155
¶11 The first DeSantis consideration is whether
the proffered evidence fits within Wis.
Stat. § 972.11(2)(b)3. The
burden is on the defendant to produce evidence upon which the court could
conclude “that a reasonable person could reasonably infer that the complainant
made prior untruthful allegations of sexual assault.” See DeSantis,
¶12 Ringer argued before the circuit court that evidence of prior untruthful allegations was found in the biological father’s denial of any improper actions, the corroboration by his brother, the lack of physical evidence, the decision not to prosecute, and the evidence from shortly after the alleged assault indicating the daughter denied any sexual activity.
¶13 The circuit court found that during the course of the police interview the biological father admitted “that he may have had incidental or accidental contact with his daughter’s breast or bra.” However, the court also found the father denied touching any other prohibited parts of her body, and he denied touching her breast or bra for any purpose of sexual gratification.
¶14 The court concluded there were competing inferences regarding the prior allegations, and that it could not “find that it was truthful or untruthful with any degree of certainty.” However, the court concluded there was a reasonable inference that the prior allegations were untruthful. The court stated: “I will find that a reasonable person could infer the prior allegations concerning Christopher Hodges were untruthful, and I make that finding based on the record we’ve got, based on the testimony we’ve got.” The court therefore ruled Ringer was entitled to introduce evidence concerning the prior allegations.
¶15 We cannot conclude that the circuit court erroneously exercised
its discretion in allowing evidence of the prior allegations against the
biological father. DeSantis required the
court to determine whether a reasonable person could conclude that the prior allegations
were untruthful. See DeSantis, 155
¶16 The second consideration that must be made before admitting
prior untruthful allegations is whether the evidence is material. See DeSantis, 155
¶17 The third determination is whether the evidence of the prior
untruthful allegations is of sufficient probative value to outweigh its
inflammatory and prejudicial nature.
¶18 We conclude the circuit court could reasonably determine the prior allegations were sufficiently probative. As the circuit court recognized, the jury could only convict Ringer if they believed the current allegations of the daughter. Prior untruthful accusations of a similar nature made a year and a half earlier against her biological father could be a crucial factor in determining credibility and presenting a defense. We are not persuaded that the dispute over the truthfulness of the allegations would, as a matter of law, diminish the probative value below the threshold necessary for admissibility. Similarly, allowing evidence of untruthful allegations regarding the biological father would not necessarily be “horribly confusing” to the jury. On this record, we cannot say that the court erroneously exercised its discretion by concluding the evidence of the prior allegations was sufficiently probative to outweigh the danger that it may be highly inflammatory, unfairly prejudicial or misleading.
¶19 The State insists that, even if Ringer prevails on the three DeSantis
determinations, “there is no justification in the record for allowing the use
of extrinsic evidence, rather than simply cross-examination.” The State argues extrinsic evidence is barred
v. Rognrud, 156
¶20 However, the State provides no citation to the record
demonstrating these issues were preserved below. We do not generally consider issues raised
for the first time on appeal. Wirth
v. Ehly, 93
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 We note the daughter was cross-examined at the preliminary hearing without objection concerning the prior allegations.
 The complainant’s mother and father never married and, at this point in time, the mother had already married Ringer.
 Ringer also argued at the circuit court that the daughter had accused foster children of “sex” with her. However, this claim was abandoned by Ringer and is not an issue in this appeal. (R41:29).
note that in State v. DeSantis, 155