FROM A JUDGMENT AND AN ORDER OF THE CIRCUIT COURT FOR GREEN
LAKE COUNTY, NO. 2012CF115 W. ANDREW VOIGT, JUDGE.
Reilly, P.J., Gundrum and Hagedorn, JJ.
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.
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
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. 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."
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
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.
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?
State: Can it be wiped off?
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.
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
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. Gutierrez appeals.
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. 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).
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. 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
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)." 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." The circuit court
erroneously exercised its discretion in refusing to allow the
DNA evidence for rebuttal.
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 ...