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State v. Gutierrez

Court of Appeals of Wisconsin, District II

July 3, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
David Gutierrez, Defendant-Appellant.

          APPEAL FROM A JUDGMENT AND AN ORDER OF THE CIRCUIT COURT FOR GREEN LAKE COUNTY, NO. 2012CF115 W. ANDREW VOIGT, JUDGE.

          Before Reilly, P.J., Gundrum and Hagedorn, JJ.

          REILLY, P.J.

         ¶1 David Gutierrez appeals from his conviction for three counts of first-degree sexual assault of a child under the age of thirteen, three counts of incest with a child by a stepparent, and three counts of child enticement. Gutierrez argues that the circuit court erroneously admitted other acts evidence, erroneously denied the admission of DNA evidence, denied him an impartial jury, and that trial counsel was ineffective for failing to call a witness at trial. We conclude that the circuit court erred in denying the admission of the DNA evidence and that the error was not harmless. We reverse and remand for a new trial.

         BACKGROUND

         ¶2 In 2012, twelve-year-old A.R. alleged that she had been sexually assaulted by Gutierrez, her stepfather, on at least three occasions and forced to watch pornographic movies. Gutierrez was charged with three counts of first-degree sexual assault of a child under thirteen, three counts of child enticement, three counts of incest with a child by a stepparent, and one count of exposing a child to harmful material.[1]

         ¶3 Prior to trial, Gutierrez moved to admit evidence from the Wisconsin State Crime Lab that the underwear the victim wore during the assault did not show any evidence of Gutierrez's DNA, but did have DNA from five male individuals, and that a swab taken from the outside of A.R.'s mouth the day after the assault did not include any of Gutierrez's DNA, but did include the DNA of three male individuals.[2] None of the DNA came from saliva or semen. The State objected on rape shield grounds, arguing that the results would "imply that [A.R.] had sexual [contact] with other males. It invites the jury to speculate on the source of the DNA to the prejudice of the victim."

         ¶4 In ruling on the DNA evidence, the circuit court allowed Gutierrez to introduce evidence that DNA testing was performed and that Gutierrez's DNA was not found but refused Gutierrez's motion to offer evidence that other males' DNA was found. The court allowed the State, however, to "explore why or why not [Gutierrez's DNA] may or may not have been found there." Gutierrez objected, arguing that the DNA evidence from the other individuals was

important to counter the State's argument [that] you wouldn't expect to find any [DNA]…. Again, we are not going to get into how it got there, but it was found to counter the State's position that you wouldn't expect to find it … and we need to specify what was found. Otherwise, again, [the] jury doesn't get the complete story and [the] State gets to argue for, you know, reasons why his DNA wasn't found. We don't get to counter it.

         ¶5 At trial, Gutierrez called the crime lab analyst who testified that the underwear and mouth swabs belonging to A.R. contained no evidence of Gutierrez's DNA. On cross-examination, the following exchange occurred between the State and the analyst:

State: Now, in terms of DNA itself, can it be washed off?
Witness: Yes, it can.
State: Can it be scrubbed off?
Witness: Yes.
State: Can it be wiped off?
Witness: Yes.
State: If there was biological material on the person's body and that person showered, cleansed themself, wiped themself off, might you expect something would happen to the biological or DNA material?
Witness: Yes, I would.
State: What do you think?
Witness: Basically, if you are washing or wiping, the more this is done, the more likely you are removing any kind of DNA that was deposited.

         ¶6 The jury was not allowed to hear that despite showering, cleansing, wiping, and washing, all DNA was not removed, and, in fact, DNA from other persons was present on the underwear provided by A.R. and a swab from the outside of A.R.'s mouth. Gutierrez appropriately argues that the State was allowed to present favorable evidence, namely that it was reasonable to not find Gutierrez's DNA due to A.R. washing and cleansing, while he was denied the ability to rebut that evidence by showing that what the State was implying was not true. The State's response to this "unfairness" argument is perfunctory at best; the State argues only that the DNA evidence is not relevant to the issue at trial and "would only prejudice and confuse the jury."

         ¶7 After a three-day trial, the jury found Gutierrez not guilty of exposing a child to harmful materials and guilty on all other counts, and he was sentenced to a lengthy prison term.[3] Gutierrez appeals.

         DISCUSSION

         ¶8 While Gutierrez makes a number of arguments on appeal, we address in detail only the issue that we find dispositive: the circuit court's decision on the admissibility of the DNA evidence. Gutierrez argues that the circuit court erroneously exercised its discretion when it denied his request to use the DNA evidence as rebuttal to the State's testimony as to why DNA evidence was not found.[4] We review a decision to admit or exclude evidence for an erroneous exercise of discretion. State v. Warbelton, 2009 WI 6, ¶17, 315 Wis.2d 253, 759 N.W.2d 557. We will uphold the circuit court's ruling if it "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis.2d 400, 415, 320 N.W.2d 175 (1982).

         DNA Evidence

         ¶9 We agree with the circuit court that the fact that Gutierrez's DNA was not found on the swabs or underwear of A.R. was relevant, "absolutely important" evidence, and, therefore, admissible.[5] We also agree that the court did not err in allowing the State to offer testimony that washing or cleaning may remove DNA from clothing or body parts. Where we disagree with the circuit court is its ruling that allowed testimony pertaining to why Gutierrez's DNA may have been absent (washed off) but denied Gutierrez the right to rebut the State's evidence by showing that the DNA of several individuals was not washed off. By allowing the State to present evidence that DNA can be easily washed off but not allowing Gutierrez to rebut that theory, the jury was incorrectly led to believe that the underwear and mouth swabs contained no DNA evidence. Testimony at trial indicated that the evening before A.R. reported the assault, Gutierrez removed A.R.'s underwear twice, put his mouth on her vagina, and put his penis in her mouth. Based on this testimony, the presence or lack thereof of Gutierrez's DNA on the underwear or mouth swab was clearly relevant, and especially relevant in rebuttal, to the State's offer that Gutierrez's DNA was not there because it was washed off.

         ¶10 The State does not address Gutierrez's argument that offering this rebuttal DNA evidence was critical given the testimony from the crime lab expert. The State argues that the DNA evidence is inadmissible as it "would prejudice the victim by creating the forbidden inference that she may have had sexual contact or intercourse with one or more other men (or boys)."[6] We disagree. The offer of the DNA evidence was to counter the State's argument that Gutierrez's DNA was washed off, rather than evidence concerning her "prior sexual conduct."[7] The circuit court erroneously exercised its discretion in refusing to allow the DNA evidence for rebuttal.

         ¶11 An erroneous ruling on the admission of evidence is subject to a harmless error analysis. Martindale v. Ripp, 2001 WI 113, ¶30, 246 Wis.2d 67, 629 N.W.2d 698. "If the error did not affect the substantial rights of the party, the error is considered harmless." Id. "An error affects the substantial rights of a party if there is a reasonable probability of a different outcome, meaning a 'probability sufficient to undermine confidence in ...


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