Review of unpublished per curium court of appeals decision; case activity
Issue (from state’s petition for review)
Whether, if it was error for the trial court to prevent a defense witness from testifying about particular facts relevant to the defense, the error was harmless.
Hunt was charged with child sexual assault and causing a child to view a depiction of sexual activity, the latter charge based on an alleged video on Hunt’s cell phone showing a man and woman having intercourse. (¶2). The trial was a credibility battle, as Hunt testified and denied the allegations. (¶3). Hunt also called a witness named Venske to testify that he sent Hunt two images the victim had seen that were not sexually explicit conduct, and to deny that he ever sent Hunt a sexually explicit video. The trial court excluded Venske’s testimony that he’d never sent the video on the grounds that the source of the video was irrelevant. (¶4). The jury acquitted him of the sexual assault but convicted on the sexual activity charge. (¶5).
In the court of appeals the state did not dispute that the trial court’s ruling was erroneous, but argued it was harmless, primarily because a detective testified that he talked to Venske, who told him he had not sent a video to Hunt. (¶¶10-11). That argument prominently ignores the fact that the judge instructed the jury it could not consider the police officer’s testimony about Venske’s statements for the truth of what Venske was saying, but only for understanding the conversation between the police and Venske–which, the court of appeals noted, only served to highlight the lack of Venske’s testimony on the matter. (¶13). Thus, the court of appeals held the error wasn’t harmless and ordered a new trial.
So, the court of appeals finds a concededly erroneous exclusion of relevant defense evidence was not harmless. In reaching its decision it applied well-established standards for deciding harmless error. No novel issues of statewide concern appear to be raised in the case. Yet the state petitions for review–and its petition is granted. One might ask, Why? Not because the case meets any of the usual criteria for granting review under § 809.62(1r), for the state concedes it doesn’t. Not because it presents an issue appropriate for the court’s law development function, State v. Mosley, 102 Wis. 2d 636, 665-66, 307 N.W.2d 200 (1980), for again the state concedes that is not the case. What’s left? “[A] substantial question” about the correctness of the court of appeals decision provides a “substantial and compelling reason” for review, the state claims, citing § 809.62(2)(c), and suggesting that review will provide guidance for applying harmless error standards–though the petition doesn’t (and can’t) point to any particular way in which the court of appeals went off the rails in applying the longstanding test. And, of course, this is a case involving “exploiting a child by causing the child to view sexual activity,” and the court of appeals decision “resulted in the reversal of a serious felony conviction.” In short, the supreme court is acting as an error-correcting court because the state believes the court of appeals reached the wrong result; consequently, the supreme court’s decision is likely to have little, if any, effect on the law, though it could have an enormous impact on Hunt.