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No safe harbors for “mandatory reporter” of child abuse

State v. Trista J. Ziehr, 2015AP994-CR, 1/13/16, District 2 (one-judge opinion, ineligible for publication); case activity, including briefs

There isn’t much case law on Wisconsin’s “mandatory reporter” requirement, and this opinion makes no attempt to fill the gaps. Ziehr ran a daycare center and thus had a mandatory duty to report child abuse to the proper authorities whenever she had reasonable cause to suspect that such abuse had occurred. Wis. Stat. §48.981(2) & (6). A jury convicted her of failing to report abuse by her son. On appeal she argued primarily that: (1) the trial court erroneously instructed the jury; (2) the State’s complaint was duplicitous, and (3) the trial court erroneously admitted “other acts” evidence. She lost on all issues.

Jury instructions. Ziehr argued that the trial court failed to instruct the jury that she was entitled to a reasonable amount of time to investigate an allegation of abuse. The court of appeals observed that the statute requires a “mandatory reporter” to report abuse immediately.  See Slip op. ¶16 (citing §48.981(3) and Phillips v. Behnke, 192 Wis. 2d 552, 531 N.W.2d 619 (Ct. App. 1995)). This, said Ziehr, places the “mandatory reporter” between a rock and hard place because pausing to conduct an investigation could result in criminal charges for failure to report immediately, and reporting without an investigation could result in civil liability. But the court of appeals noted that a person who makes an immediate report “in good faith,” is immune from liability. Slip op. ¶16 n.6.

Ziehr also argued that the trial court should have instructed the jury that: (1) a “mandatory reporter” may comply with the reporting requirement by causing someone else to notify the appropriate authorities of the alleged abuse, and (2) a “mandatory reporter” need not make a report where she reasonably believes authorities have already been notified of abuse. The court of appeals rejected these arguments because Ziehr had not caused another person to notify the authorities of the alleged abuse, and the statute does not relieve a “mandatory reporter” of the duty to report when she believes someone else has done so. Slip op. ¶¶20, 22.

Duplicitous complaint. At the outset of this case, it appeared that the State was charging Ziehr with failing to report 2 separate incidents of child abuse–one relating to AM and the other to JV. Applying the test in State v. Lomargo, 113 Wis. 2d 582, 335 N.W.2d N.W.2d 583 (1983), the court of appeals could find no duplicity problem:

First, Ziehr had sufficient notice of the conduct being charged. As far back as the April 7, 2014 complaint, Ziehr knew that her failure to report the suspected AM abuse formed at least part of the basis for the charge against her. Ziehr’s assertion that she could not defend herself appropriately due to the State’s late election to pursue only one of the two incidents complained of lacks credibility.11 Second, because the circuit court clarified that Ziehr was on trial for only the AM incident, there is no concern that she will be subject to double jeopardy. Third, although the somewhat vague series of complaints alleged facts concerning both incidents, we see no danger of prejudice or confusion regarding evidentiary issues during trial because it was abundantly clear that Ziehr was on trial for only the AM incident, and all evidentiary issues were decided within this paradigm. Finally, we see no risk that Ziehr’s sentence was affected inappropriately or that she was convicted on a less than unanimous verdict. The jury was clearly instructed to consider whether Ziehr failed to report the suspected AM abuse, not the suspected JV abuse, and all evidence of the suspected JV abuse was guided by a limiting instruction. There is little possibility that the jury was confused or that evidence of the suspected JV abuse unfairly prejudiced Ziehr. The instructions, and trial generally, clearly focused the jury’s inquiry to the AM incident alone. For the above reasons, we reject Ziehr’s argument that her conviction violated the prohibition against duplicity. Slip op. ¶30.

“Other acts” evidence. Because the trial concerned failure to report abuse of AM, Ziehr argued that the trial court erred in admitting evidence of the JV incident. Applying State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the court of appeals again denied relief. First, the evidence was offered for a proper purpose–to prove intent and the absence of mistake in failing to report about AM. Second, the evidence was related to a fact of consequence–again failure to report abuse of AM. Third, the trial court instructed the jury that: (1) Ziehr was only on trial for failing to report the AM incident, and (2) the jury must only consider the evidence for the purpose of deciding intent and absence of mistake. The jury is presumed to have followed the instruction. Slip op. ¶¶31-37.

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