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Plain Error, § 901.03(4) – “Haseltine / Jensen” Issue

State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
For Prineas: Raymond M. Dall’osto, Kathryn A. Keppel

Issue/Holding: Unpreserved challenge to sexual assault nurse examiner’s testimony (that abrasions were consistent with forcible intercourse and that no complainant had ever provided her with an inaccurate history) didn’t rise to plain error:

¶12      As the circuit court noted, Stephan did not offer an opinion about the cause of Keri’s abrasion, she stated that the abrasion was “consistent” with an injury that resulted from “penetration.”  In fact, Stephan acknowledged that she did not know what caused the abrasion.  We have allowed such testimony in the past.  See, e.g., State v. Ross, 203 Wis. 2d 66, 79-81, 552 N.W.2d 428 (Ct. App. 1996) (allowing testimony because the nurse did not testify that the victim’s physical condition was the result of sexual assault).  Furthermore, we observe that Stephan’s objectionable statement regarding patient histories was elicited by defense counsel during cross-examination.  Counsel likely expected Stephan to testify that some complainants are not forthcoming but, surprisingly, she did not.  Our review of the record, particularly the whole of Stephan’s testimony, convinces us that the exercise of our discretionary reversal power is not required here.

She’d never been given “an inaccurate history during an exam” (¶5)? Sounds like powerfully damaging testimony where the case hinges on credibility, but at least the court distinctly labels it “objectionable,” and the fact that it came out on cross might blunt the impact by making the result fact-specific.


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