from a judgment of the circuit court for Milwaukee County,
Cir. Ct. No. 2013CF4178, JEFFREY A. WAGNER, Judge.
Curley, P.J., Kessler and Brennan, JJ.
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. 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.
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.
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.
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. 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.
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.
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.
The victim identified one phone number as belonging to
Giacomantonio's phone and the other phone number as
belonging to her phone.A summary of those messages is as
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
August 8 2:08 p.m. to victim's phone from
Giacomantonio's phone: "Can I have my booty?"
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.
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.
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).
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.
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