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State v. Giacomantonio

Court of Appeals of Wisconsin, District I

July 12, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Giancarlo Giacomantonio, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Milwaukee County, Cir. Ct. No. 2013CF4178, JEFFREY A. WAGNER, Judge.

          Before Curley, P.J., Kessler and Brennan, JJ.

          BRENNAN, J.

         ¶1 Giancarlo Giacomantonio appeals from a judgment of conviction of sexual exploitation of a child, contrary to WIS. STAT. § 948.05(1)(a) (2013-14), entered after a jury trial.[1] Giacomantonio contends on appeal that: (1) photographs of text messages found on the victim's phone should have been excluded because they were unauthenticated, unoriginal, and hearsay; and (2) his right to present a defense was infringed upon when the trial court refused to conduct an in camera review of the victim's mental health records.[2]

         ¶2 We affirm because we conclude: (1) the proper foundation was laid for authentication of the photographs of text messages; and (2) the trial court did not err in refusing to conduct an in camera review of the victim's mental health records because the defendant failed to satisfy his burden of showing materiality to the defense as set forth in State v. Shiffra, 175 Wis.2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993) and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis.2d 356, 646 N.W.2d 298. We discuss each issue in turn below.

         BACKGROUND

         ¶3 On October 15, 2014, a jury convicted Giancomantonio of sexual exploitation of a child. He was sentenced to eight years of imprisonment with five years of initial confinement and three years of extended supervision. The acts occurred between November 2, 2012, and September 6, 2013, when the victim was between the ages of fifteen and sixteen years old. He had also been charged with, and found not guilty of, incest with child by step-parent.

         ¶4 For some time, the victim's mother suspected that her husband, Giacomantonio, had been sexually abusing the victim, who had attempted to commit suicide in December 2012.[3] The victim then underwent psychiatric and psychological counseling from that time forward. On September 6, 2013, the victim's mother found some "alarming texts" on the victim's cellphone and took the phone to the Whitefish Bay Police Department. The victim's mother had access to the phone's contents because "[t]he phone did not have a lock." She turned the phone over to police.

         ¶5 A detective searched the victim's phone at the police station. The detective's search located texts from the defendant's cellphone to the victim's cellphone, saying "I want my booty" and "I want my boty." The detective took screen shots of the text messages on the victim's cellphone. The detective looked at the text messages on the victim's phone rather than sending it directly to the Department of Justice crime lab because he had the victim's and her mother's consent to do so and in order to investigate the claims being made. The police attempted to obtain records from the telephone company showing the text messages sent from or received by the victim's phone, but no such records existed.

         ¶6 Giacomantonio filed a pretrial motion seeking to exclude from evidence certain text messages found on the victim's cellphone. The trial court denied that motion. At trial, Giacomantonio again objected to the text message evidence. Seven photographs of the phone's screen showing the text messages were entered into evidence at trial. At trial, the detective who took the photographs read the text messages and identified the phone numbers associated with each message. There was also testimony that the victim, her mother, and her cousin had access to one or both of these phones as well.

         ¶7 The victim identified one phone number as belonging to Giacomantonio's phone and the other phone number as belonging to her phone.[4]A summary of those messages is as follows:

August 7 1:45 a.m. to victim's phone from Giacomantonio's phone: "Come to my room."
August 7 1:46 a.m. to Giacomantonio's phone from victim's phone: "No. Im about to go to sleep."
August 8 1:27 a.m. to victim's phone from Giacomantonio's phone: "I want my boty[.]"
August 8 12:53 p.m. to victim's phone from Giacomantonio's phone: "I want my booty today."
August 8 12:54 p.m. to Giacomantonio's phone from victim's phone: "Why."
August 8 12:58 p.m. to victim's phone from Giacomantonio's phone: "Why not? I got plans for you and [P.]."[5]
August 8 2:08 p.m. to victim's phone from Giacomantonio's phone: "Can I have my booty?"

         Giacomantonio argued that these messages could not be properly authenticated and argued that the rules of evidence required the State to produce the original text messages, not copies thereof. The trial court concluded that authentication was not an issue because the victim was available for cross-examination and Giacomantonio could question her and the other witnesses regarding whether "the victim or another has falsely manufactured these text conversations." Giacomantonio also objected based on hearsay, and the trial court overruled his objection.

         ¶8 The victim testified that Giacomantonio would "oftentimes" text her "to go to his room late at night, " and that "he sent [text messages] all the time" about her "booty." She testified that if she refused to provide Giacomantonio with photos of her bare buttocks and vagina, which he referred to as her "booty" or "boty, " he would withhold affection and prevent her from seeing her friends; if she complied with his demands, he would be more supportive, more lenient, and would supply her and her friends with alcohol.

         ¶9 Pretrial, Giacomantonio also moved for an in camera review of the victim's mental health records. The trial court denied the motion. Giacomantonio petitioned this court for leave to appeal, and the petition was denied. See State v. Giacomantonio, No. 2014AP11-CRLV, unpublished slip op. (WI App Jan. 29, 2014).

         ¶10 Giacomantonio argued that the victim's mental health records were likely to show whether she was being truthful about her relationship with Giacomantonio. Further, he argued that if the victim had discussed Giacomantonio's crime, the therapist would have been required, by law, to disclose that information pursuant to Wisconsin's mandatory reporting law, WIS. STAT. § 48.981(2)(a)11.

         ¶11 The trial court denied Giacomantonio's motion, reasoning that the victim's mental health records would be cumulative. The court stated:

[T]his defendant does have additional other avenues by which to pursue the facts, as he alleges them to be, that might impugn this victim's credibility. And for this Court to even find that there is a sufficient showing here to merit an ...

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