State v. Alan M. Hoffmann

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 15, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1170-CR Cir. Ct. No. 2018CF334

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ALAN M. HOFFMANN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Portage County:
THOMAS B. EAGON, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1170-CR

¶1 PER CURIAM. Alan Hoffman appeals a judgment of conviction
for multiple counts of child sexual assault and incest committed against his
daughters A.B. and C.D.1 Hoffman argues that the circuit court erred by:
(1) denying Hoffman’s motion for a mistrial after a juror observed Hoffman being
escorted by two sheriff’s deputies outside the courtroom; (2) admitting A.B.’s
videotaped interview into evidence under WIS. STAT. § 908.08 (2019-20);2
(3) admitting only part of C.D.’s videotaped interview into evidence in violation of
the rule of completeness; and (4) allowing the prosecutor to cross-examine two
defense witnesses with evidence of A.B.’s allegations that was needlessly
cumulative and unfairly prejudicial. Hoffman also argues that we should reverse
for a new trial in the interest of justice. We reject each of Hoffman’s arguments,
and, therefore, affirm.

1. Motion for Mistrial

¶2 We turn first to Hoffman’s argument that the circuit court erred in
denying his motion for a mistrial. The relevant facts are not in dispute. During a
break in the trial, one of the jurors observed Hoffmann being escorted by two
sheriff’s deputies outside the courtroom. Hoffmann was wearing street clothes
and not shackled. The two deputies were in close proximity to Hoffman, with one
positioned in front of him and the other positioned behind him.

To protect the identity of the victims, we refer to them as “A.B.” and “C.D.” See WIS.
1

STAT. RULES 809.19(1)(g) and 809.86.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP1170-CR

¶3 Hoffman moved for a mistrial based on these circumstances, arguing
that any curative measures short of a mistrial would be insufficient to protect the
presumption of innocence.3 The circuit court denied the motion, concluding that
the circumstances of the juror’s encounter with Hoffman were not sufficiently
prejudicial to warrant a mistrial. The court instead opted to question the juror in
chambers with Hoffman and counsel present. The juror stated that he “totally
agree[d]” that the encounter should have no impact on his verdict, and that he
understood that a defendant is presumed innocent. The juror also stated that he
could “absolutely” put the encounter out of his mind and focus on the evidence
presented in court. He also stated that he would not discuss the encounter with the
other jurors.

¶4 “The decision whether to grant a mistrial lies within the sound
discretion of the trial court.” State v. Sigarroa, 2004 WI App 16, ¶24, 269
Wis. 2d 234, 674 N.W.2d 894. “The trial court must determine, in light of the
whole proceeding, whether the claimed error was sufficiently prejudicial to
warrant a new trial.” Id. “[N]ot all errors warrant a mistrial and ‘the law prefers
less drastic alternatives, if available and practical.’” State v. Givens, 217 Wis. 2d
180, 191, 580 N.W.2d 340 (Ct. App. 1998) (quoted source omitted).

¶5 In arguing that the circuit court erred in denying his motion for a
mistrial, Hoffman relies on case law supporting the proposition that there is
inherent prejudice when jurors see a defendant in shackles. Hoffman
acknowledges that he was not visibly shackled when the juror observed him

3
There was no alternate juror to replace the juror who had observed Hoffman outside the
courtroom.

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No. 2021AP1170-CR

outside the courtroom. He argues, however, that it would have been apparent to
the juror that he was in custody.

¶6 The State contends that questioning the juror was a reasonable and
less drastic alternative under the circumstances. It further argues that the circuit
court’s approach is supported by State v. Cassel, 48 Wis. 2d 619, 180 N.W.2d 607
(1970).

¶7 We agree with the State and conclude that questioning the juror was
a reasonable and less drastic alternative under the circumstances. As noted above,
Hoffman was in street clothes and not visibly shackled, and the juror agreed that
he could set aside his observations and that he would not discuss the matter with
other jurors. Given the juror’s responses to the court’s questions, it was
reasonable for the circuit court to proceed with the trial.

¶8 We also agree with the State that the circuit court’s approach is
supported by Cassel. In Cassel, multiple jurors observed the defendant in
restraints outside the courtroom but, upon being polled, they stated that their
verdict was not influenced by the encounter. Id. at 623-25. Our supreme court
concluded in Cassel that, under those circumstances, the circuit court was not
required to find prejudice as a matter of law. Id. at 625. The supreme court stated
in Cassel that “when a jury or members thereof see an accused outside the
courtroom in chains or handcuffs the situation is psychologically different and less
likely to create prejudice in the minds of the jurors” than if the jurors had seen the
defendant restrained inside the courtroom. Id. Here, the circumstances are even
less likely to have created prejudice than those in Cassel because Hoffman was not
visibly shackled.

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¶9 Hoffman argues that Cassel does not stand for the proposition that a
juror’s out-of-court observation of a defendant can never be so prejudicial as to
warrant a mistrial. We agree, but we disagree with Hoffman if he is suggesting
that the circuit court here interpreted Cassel as standing for such a hard and fast
rule. Rather, we are satisfied that the court made an individualized determination,
based on all of the circumstances, that a mistrial was not warranted.4

2. A.B.’s Videotaped Interview

¶10 Hoffman next argues that the circuit court erred by admitting A.B.’s
videotaped interview into evidence. A.B. was five years old at the time of the
interview and had been living with Hoffman, Hoffman’s mother (A.B.’s
grandmother), and C.D. During the interview, A.B. made detailed allegations
describing how Hoffman had sexually assaulted her in her grandmother’s home.

¶11 Hoffman contends that A.B.’s interview did not satisfy one of the
statutory requirements for admissibility under WIS. STAT. § 908.08. The
requirement is that a child’s recorded statement be “made upon oath or affirmation
or, if the child’s developmental level is inappropriate for the administration of an
oath or affirmation in the usual form, upon the child’s understanding that false

4
The State appears to suggest that Hoffman might have withdrawn his motion for a
mistrial in favor of the approach of questioning the juror. The record cited by the State refutes
this suggestion. It is true that Hoffman’s counsel eventually agreed that the “most prudent”
approach was for the court to question the juror. However, counsel made that statement after the
circuit court had ruled that it was denying Hoffman’s motion for a mistrial and had returned to an
earlier discussion about possible curative measures. During that earlier discussion, counsel
clearly stated her position that no curative measure would be sufficient. In context, the only
reasonable reading of counsel’s “most prudent” approach statement is that counsel was stating her
backup position once it was clear that the court had denied her motion for a mistrial.

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No. 2021AP1170-CR

statements are punishable and of the importance of telling the truth.”
Sec. 908.08(3)(c).

¶12 There is no dispute that A.B.’s interview was not “made upon oath
or affirmation.” See id. Thus, the focus here is on whether the interview was
“made … upon [A.B.]’s understanding that false statements are punishable and of
the importance of telling the truth.” See id.

¶13 Prior to trial, the circuit court reviewed the transcript of A.B.’s
interview and, based on its review of the transcript, concluded that A.B.’s answers
to the interviewer’s question established that A.B. understood that false statements
are punishable and the importance of telling the truth.

¶14 The parties disagree on our standard of review for this issue.
Hoffman argues that we review de novo whether a child’s videotaped interview
satisfies the statutory requirements for admissibility. The State argues, in contrast,
that the question of whether a child sufficiently understands the difference
between the truth and a lie is an issue of fact for the circuit court.

¶15 We conclude that we would affirm the circuit court’s decision to
admit A.B.’s videotaped interview under either standard of review. We agree with
the circuit court that A.B.’s answers to the interviewer’s questions, taken as a
whole, established that A.B. understood that false statements are punishable and
the importance of telling the truth.

¶16 To be sure, in an early part of her interview, A.B. made several
statements that, when viewed in isolation, indicated that she was unable or
unwilling to tell the truth. Most notably, in an early part of the interview, when
A.B. was asked if she knew the difference between the truth and a lie, she

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No. 2021AP1170-CR

responded “No.” She also stated “I don’t know how to tell the truth” and that it
was “too hard” to tell the truth.

¶17 However, when provided with concrete examples, A.B.
demonstrated that she in fact knew the difference between a truth and a lie. The
interview included the following exchange:

Q …. So if I said that there was a little boy at school
and he took a marker from the teacher’s desk, and the
teacher said: Did you take that marker from my desk, and
he said, no, I didn’t, is he telling a truth or telling a lie?

A Telling a lie.

Q Tell me how you know that he is telling a lie?

A Because he touched the marker.

Q Because he touched the marker. And what if that
same little boy went home and he took a cookie from the
cookie jar, and his mom said, did you take that cookie from
the cookie jar? And he said, yes, I did, is he telling a truth
or telling a lie?

A Telling the truth.

Further, other portions of A.B.’s interview demonstrated that A.B. understood that
false statements are punishable and the importance of telling the truth. When the
interviewer asked A.B. directly, “What happens if kids don’t tell the truth,” A.B.
responded, “You get in trouble.” When the interviewer asked A.B. directly if it
was important to tell the truth, A.B. responded “Yeah.”

¶18 As A.B.’s interview progressed, it became reasonably clear that A.B.
possessed the requisite understandings required by WIS. STAT. § 908.08(3)(c), but
that she had been highly reluctant to tell the truth about any assaults by Hoffman
because she perceived that Hoffman and her grandmother did not want her to tell
the truth about such assaults and because she feared that her grandmother would

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No. 2021AP1170-CR

punish her if she did. On these latter points, A.B.’s interview included the
following relevant exchange, among others:

Q Okay. So tell me about Poppy [Hoffman]. What
are some things you like about Poppy?

A Well, Poppy is in jail now … and he says that we
will have fun …, but it didn’t happen.

Q Tell me why it didn’t happen.

A Because he did bad things.

….

Q Tell me about the bad things.

A I can’t.

Q Tell me why you can’t tell me about the bad things.

A Because my grandma won’t let me.

….

Q Tell me about why Grandma doesn’t want you to
tell.

A Because I will get in trouble.

Q Who will get in trouble?

A Me.

Q You will get in trouble?

A Uh-hum, (Nods head.)

Q Tell me, what kind of trouble will you get in?

A Really big, big in trouble.

¶19 Hoffman argues that the assertion that A.B. feared being punished
by her grandmother for telling the truth is incompatible with a conclusion that
A.B. understood that false statements are punishable. We disagree. A child may
fear punishment by a specific adult for telling the truth about specific matters

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No. 2021AP1170-CR

while at the same time understanding the general concept that “false statements are
punishable.” See WIS. STAT. § 908.08(3)(c). We see nothing about A.B.’s
interview that would show that A.B.’s fear of punishment by her grandmother for
telling the truth about Hoffman caused A.B. to lack a general understanding that
false statements are punishable.

¶20 In sum, A.B.’s interview as a whole established that A.B. understood
that false statements are punishable and the importance of telling the truth.
Accordingly, we reject Hoffman’s argument that the circuit court erred in
admitting the interview under WIS. STAT. § 908.08.

3. C.D.’s Videotaped Interview

¶21 We turn next to Hoffman’s argument pertaining to C.D.’s videotaped
interview. Like A.B., C.D. made sexual assault allegations against Hoffman in her
interview. The portion of the interview containing those allegations was played
for the jury, but the jury did not hear other portions of the interview in which C.D.:
(1) inconsistently denied that she was assaulted by Hoffman; and (2) asserted that
A.B. was lying about being assaulted by Hoffman.

¶22 Hoffman argues that the circuit court erred by admitting only part of
C.D.’s interview in violation of the rule of completeness. On this issue, the parties
agree that we review the court’s ruling for an erroneous exercise of discretion.

¶23 As codified in WIS. STAT. § 901.07, the rule of completeness
provides as follows: “When any part of a writing or statement, whether recorded
or unrecorded, is introduced by a party, an adverse party may require the party at
that time to introduce any other part or any other writing or statement which ought

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No. 2021AP1170-CR

in fairness to be considered contemporaneously with it to provide context or
prevent distortion.” Sec. 901.07.

¶24 “The critical consideration in rule of completeness cases is whether
the part of the statement offered into evidence creates an unfair and misleading
impression without the remaining statements.” State v. Eugenio, 219 Wis. 2d
391, 411, 579 N.W.2d 642 (1998). “The rule of completeness, however, should
not be viewed as an unbridled opportunity to open the door to otherwise
inadmissible evidence.” Id. at 412. “Under the rule of completeness the court has
discretion to admit only those statements which are necessary to provide context
and prevent distortion.” Id. “The circuit court must closely scrutinize the
proffered additional statements to avert abuse of the rule.” Id.

¶25 Here, as we understand it, Hoffman’s argument under the rule of
completeness has two components. We discuss each in turn.

¶26 Hoffman first argues that the rule of completeness required the
circuit court to admit C.D.’s entire interview because excluding the portions of
C.D.’s interview in which she denied being assaulted by Hoffman left the jury
with a misleading and distorted view of the evidence. However, Hoffman did not
raise this argument in the circuit court, at least not in any readily discernable
manner. Rather, when Hoffman sought to admit C.D.’s entire interview, he cited
portions of the interview in which C.D. asserted that A.B. was lying. The circuit
court thus understandably focused on those parts of C.D.’s interview in discussing
the rule of completeness. For these reasons, we decline to address Hoffman’s
argument based on the portions of the interview in which C.D. denied that she was
assaulted. See State v. Prineas, 2009 WI App 28, ¶10, 316 Wis. 2d 414, 766
N.W.2d 206 (“To preserve the right to appeal on admissibility of evidence, a

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No. 2021AP1170-CR

litigant must inform the circuit court of the specific grounds for the objection.”);
State v. Neudorff, 170 Wis. 2d 608, 616, 489 N.W.2d 689 (Ct. App. 1992) (“The
keystone of any [forfeiture] argument is whether a party has registered an
objection with sufficient prominence such that the court understands what it is
asked to rule upon.”); see also State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d
897 (Ct. App. 1995) (stating that the court of appeals will not “blindside trial
courts with reversals based on theories which did not originate in their forum.”).

¶27 The second component of Hoffman’s rule of completeness
argument, by contrast, is preserved, and it pertains to the portions of C.D.’s
interview in which she asserted that A.B. was lying. Specifically, C.D. asserted
that A.B. “copies” her, that A.B. “lies,” and that A.B. lied about being assaulted by
Hoffman. Hoffman argues that the circuit court erred in excluding these portions
of C.D.’s interview because they were critical to support his claim that A.B. lied
about the assaults and had a motive to lie. He argues that, without these portions
of the interview, the evidence was again distorted and the jury again misled. The
State counters that the court properly excluded these portions of C.D.’s interview
because C.D. lacked personal knowledge of whether Hoffman assaulted A.B. and
because a witness may not render an opinion on whether another witness is telling
the truth.

¶28 We agree with the State that the circuit court reasonably exercised its
discretion to exclude the portions of C.D.’s interview in which C.D. asserted that
A.B. was lying and that the rule of completeness does not require a different
result. As a general rule, “[n]o witness, expert or otherwise, should be permitted
to give an opinion that another mentally and physically competent witness is
telling the truth.” State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673
(Ct. App. 1984). Here, it was reasonable for the court to conclude that the jury

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No. 2021AP1170-CR

should not hear the portions of C.D.’s interview in which C.D. was commenting
on A.B.’s truthfulness or credibility. Admitting those parts of C.D.’s interview
would not have cured any distortion and could have instead invited the jury to
improperly rely on C.D.’s opinion of A.B.’s credibility.

4. Cross-examinations of Defense Witnesses

¶29 Hoffman next argues that the circuit court erred by allowing the
prosecutor to cross-examine two defense witnesses with evidence of A.B.’s
allegations. Hoffman contends that this was error because one of the witnesses
was the social worker who conducted A.B.’s videotaped interview, and that on
cross-examination the prosecutor read extensively from the transcript of the
interview. Hoffman further contends that there was error because the other
witness was a doctor who offered an opinion as to potentially innocent
explanations for medical findings from A.B.’s SANE exam, and that on cross-
examination the prosecutor read details of A.B.’s assault allegations as recounted
in the SANE report, A.B.’s therapy notes, and a police report.

¶30 Hoffman argues that the prosecutor’s cross-examinations of these
two defense witnesses with A.B.’s allegations involved unnecessary presentations
of cumulative evidence that the jury had already heard in other forms seven times.
He argues that the probative value of the evidence was diminished each time it
was repeated and that the “[t]he balance of fairness was tipped into prejudice” by
the prosecutor’s use of A.B.’s allegations during his cross-examination of the
defense witnesses.

¶31 The State counters that the circuit court properly exercised its
discretion because the court had a reasonable basis for permitting the prosecutor’s
approach to cross-examinations of these witnesses. We agree with the State.

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No. 2021AP1170-CR

¶32 Circuit courts have broad discretion to control the order and
presentation of evidence at trial. State v. James, 2005 WI App 188, ¶8, 285
Wis. 2d 783, 703 N.W.2d 727. Likewise, circuit courts have broad discretion
under WIS. STAT. § 904.03 to determine whether the probative value of evidence is
or is not outweighed by the risk of unfair prejudice. Nowatske v. Osterloh, 201
Wis. 2d 497, 503, 549 N.W.2d 256 (Ct. App. 1996). Here, we are satisfied that
the circuit court could reasonably conclude that the prosecutor’s approach to
cross-examinations of the social worker and the doctor were proper.

¶33 As to the social worker, the prosecutor used excerpts from A.B.’s
interview to bolster the interview’s credibility and reliability after Hoffman’s
counsel had challenged the social worker’s interview methods and the interview’s
overall reliability and credibility. Notably, Hoffman’s counsel also read excerpts
from the interview to the social worker during her testimony. As to the doctor, the
prosecutor used details of A.B.’s allegations to challenge the weight and
credibility of the doctor’s opinion that there were innocent explanations for
injuries to A.B.’s anus, in particular by demonstrating that the doctor was unaware
of those details. In these circumstances, the circuit court could reasonably
conclude that the prosecutor’s repetition of A.B.’s allegations for purposes of the
cross-examinations was probative and was not outweighed by the risk of unfair
prejudice to Hoffman.

5. Reversal in the Interest of Justice

¶34 Finally, we turn to Hoffman’s argument that we should reverse in
the interest of justice using our discretionary authority under WIS. STAT.

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No. 2021AP1170-CR

§ 752.35.5 Hoffman argues that the cumulative errors at trial misled the jury and
prevented the real controversy from being fully tried. However, we have now
rejected Hoffman’s claims of error, and as a consequence we are not persuaded
that reversal in the interest of justice is warranted based on cumulative errors.
Therefore, we affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

5
WISCONSIN STAT. § 752.35 provides:

In an appeal to the court of appeals, if it appears from the
record that the real controversy has not been fully tried, or that it
is probable that justice has for any reason miscarried, the court
may reverse the judgment or order appealed from, regardless of
whether the proper motion or objection appears in the record and
may direct the entry of the proper judgment or remit the case to
the trial court for entry of the proper judgment or for a new trial,
and direct the making of such amendments in the pleadings and
the adoption of such procedure in that court, not inconsistent
with statutes or rules, as are necessary to accomplish the ends of
justice.

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