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Victim’s inconsistent testimony didn’t make testimony inherently or patently incredible

State v. Brandon L. P-D., 2014AP2785, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity

The court of appeals rejects Brandon’s arguments that the evidence was insufficient to support his delinquency adjudication for incest because of the victim’s inconsistent testimony. The court also rejects his arguments that the circuit court erred in denying his motion for in camera review of the victmi’s medical records and in excluding evidence of a previous sexual assault of the victim.

Sufficiency of the evidence

The state concedes that the victim, A.P., testified inconsistently as to whether Brandon penetrated her vagina with his penis; however, “discrepancies in a witness’s testimony do not necessarily render the testimony incredible. ‘Even though there [are] glaring discrepancies in the testimony of a witness at trial, or between his [or her] trial testimony and his [or her] previous statements, that fact in itself does not result in concluding as a matter of law that the witness is wholly incredible.’ Ruiz v. State, 75 Wis. 2d 230, 232, 249 N.W.2d 277 (1977). The issue is ‘whether the fact finder believes one version rather than another or chooses to disbelieve the witness altogether,’ which is a question of credibility for the fact finder. Id.” (¶10).

The circuit court recognized that A.P.’s credibility was a key issue, and found her to be credible in light of her lack of interest in the outcome, her demeanor, the relative clarity of her recollections; her lack of bias; and her lack of motive for testifying falsely. (¶15). An appellate court will not substitute its judgment for that of the fact finder except where the evidence is inherently or patently incredible, Gauthier v. State, 28 Wis. 2d 412, 416, 137 N.W.2d 101 (1965), and A.P.’s testimony doesn’t rise to that level. (¶¶10-16).

In camera review of records

Brandon sought in camera review of A.P.’s medical records under State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, based on information that A.P. had a congenital defect that might make penetration of her vagina impossible. The request was based on discovery material revealing A.P. told police about the defect, and A.P.’s parents confirmed to counsel that A.P. had a condition that prevented penetration. (¶¶20-22). While counsel provided the circuit court with this information in written and oral submissions, at a hearing on the motion counsel called no witnesses and made no formal offer of proof, but did later submit copies of police reports. (¶¶21-22).

The court of appeals holds that the request was not properly supported by a factual basis, saying “[c]ounsel’s mere assertions are insufficient to compel in camera review.” That problem aside, moreover, the police reports show A.P.’s medical condition wouldn’t preclude conviction given the definition of sexual intercourse in § 948.01(6):

¶23      …. [N]othing in the police records counsel provided to the court suggest that A.P. has a congenital defect that prevents vaginal penetration to the extent required by law for a conviction. What the evidence submitted describes is that A.P.’s condition prevents full penetration. But, full penetration is not the statutory standard. Rather, any penetration at all is sufficient and A.P. indicated that partial penetration was both possible and did occur. Accordingly, I conclude that Brandon did not meet his burden for an in camera inspection by the court.

Exclusion of prior sexual assault evidence

The circuit court properly excluded evidence that a foster parent had previously been convicted of sexually assaulting A.P., as the evidence didn’t meet the four of the five requirements established by State v. Pulizzano, 155 Wis. 2d 633, 647, 456 N.W.2d 325 (1990). In a fact-specific discussion, the court concludes the prior assault didn’t closely resemble the alleged assault by Brandon, wasn’t relevant to show A.P. was confusing events or merely repeating prior allegations, and wasn’t necessary to Brandon’s defense, either to cast doubt on A.P.’s credibility or to show an alternative source of sexual knowledge. (¶¶26-33).

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