State v. David Gutierrez

2019 WI App 41

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2017AP2364-CR

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,†

V.

DAVID GUTIERREZ,

DEFENDANT-APPELLANT.

Opinion Filed: July 3, 2019
Submitted on Briefs: January 29, 2019
Oral Argument:

JUDGES: Reilly, P.J., Gundrum and Hagedorn, JJ.
Concurred:
Dissented: Hagedorn, J.

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Chris A. Gramstrup of Gramstrup Law Office, Superior.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Daniel J. O’Brien, assistant attorney general, and Brad D.
Schimel, attorney general.
2019 WI App 41

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.
July 3, 2019
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. 2017AP2364-CR Cir. Ct. No. 2012CF115

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAVID GUTIERREZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Green Lake County: W. ANDREW VOIGT, Judge. Reversed and cause
remanded.

Before Reilly, P.J., Gundrum and Hagedorn, JJ.

¶1 REILLY, P.J. David Gutierrez appeals from his conviction for
three counts of first-degree sexual assault of a child under the age of thirteen, three
counts of incest with a child by a stepparent, and three counts of child enticement.
No. 2017AP2364-CR

Gutierrez argues that the circuit court erroneously admitted other acts evidence,
erroneously denied the admission of DNA evidence, denied him an impartial jury,
and that trial counsel was ineffective for failing to call a witness at trial. We
conclude that the circuit court erred in denying the admission of the DNA
evidence and that the error was not harmless. We reverse and remand for a new
trial.

BACKGROUND

¶2 In 2012, twelve-year-old A.R. alleged that she had been sexually
assaulted by Gutierrez, her stepfather, on at least three occasions and forced to
watch pornographic movies. Gutierrez was charged with three counts of first-
degree sexual assault of a child under thirteen, three counts of child enticement,
three counts of incest with a child by a stepparent, and one count of exposing a
child to harmful material.1

¶3 Prior to trial, Gutierrez moved to admit evidence from the Wisconsin
State Crime Lab that the underwear the victim wore during the assault did not
show any evidence of Gutierrez’s DNA, but did have DNA from five male
individuals, and that a swab taken from the outside of A.R.’s mouth the day after
the assault did not include any of Gutierrez’s DNA, but did include the DNA of

1
See WIS. STAT. §§ 948.02(1)(e), 948.06(1m), 948.07(1), 948.11(2)(a) (2011-12). All
subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2017AP2364-CR

three male individuals.2 None of the DNA came from saliva or semen. The State
objected on rape shield grounds, arguing that the results would “imply that [A.R.]
had sexual [contact] with other males. It invites the jury to speculate on the source
of the DNA to the prejudice of the victim.”

¶4 In ruling on the DNA evidence, the circuit court allowed Gutierrez
to introduce evidence that DNA testing was performed and that Gutierrez’s DNA
was not found but refused Gutierrez’s motion to offer evidence that other males’
DNA was found. The court allowed the State, however, to “explore why or why
not [Gutierrez’s DNA] may or may not have been found there.” Gutierrez
objected, arguing that the DNA evidence from the other individuals was

important to counter the State’s argument [that] you
wouldn’t expect to find any [DNA]…. Again, we are not
going to get into how it got there, but it was found to
counter the State’s position that you wouldn’t expect to
find it … and we need to specify what was found.
Otherwise, again, [the] jury doesn’t get the complete story
and [the] State gets to argue for, you know, reasons why his
DNA wasn’t found. We don’t get to counter it.

¶5 At trial, Gutierrez called the crime lab analyst who testified that the
underwear and mouth swabs belonging to A.R. contained no evidence of
2
The crime lab performed tests on multiple items, including a t-shirt, some pajama
pants, some swabs from three locations in the residence, some swabs from A.R., and two pairs of
underwear belonging to A.R. The State claims that one pair of underwear was provided by
Gutierrez’s wife and was retrieved from the washing machine wet. The second pair was retrieved
from the laundry hamper and provided by A.R., who told police this was the pair she was wearing
the night of the assault. Neither pair was the same color as the underwear A.R. reported to
officers she was wearing the evening of the assault in her initial interview. According to the
crime lab report, one pair of underwear did not contain male DNA and one pair of underwear
contained “a mixture of DNA from five or more male individuals.” We cannot establish from the
record which pair of underwear—the pair from the washing machine or the pair from the
hamper—contained the DNA evidence, but we will assume that the underwear that A.R. removed
from the hamper and told police she was wearing the night of the assault tested positive for male
DNA.

3
No. 2017AP2364-CR

Gutierrez’s DNA. On cross-examination, the following exchange occurred
between the State and the analyst:

State: Now, in terms of DNA itself, can it be washed off?

Witness: Yes, it can.

State: Can it be scrubbed off?

Witness: Yes.

State: Can it be wiped off?

Witness: Yes.
….

State: If there was biological material on the person’s body
and that person showered, cleansed themself, wiped
themself off, might you expect something would happen to
the biological or DNA material?

Witness: Yes, I would.

State: What do you think?

Witness: Basically, if you are washing or wiping, the more
this is done, the more likely you are removing any kind of
DNA that was deposited.

¶6 The jury was not allowed to hear that despite showering, cleansing,
wiping, and washing, all DNA was not removed, and, in fact, DNA from other
persons was present on the underwear provided by A.R. and a swab from the
outside of A.R.’s mouth. Gutierrez appropriately argues that the State was
allowed to present favorable evidence, namely that it was reasonable to not find
Gutierrez’s DNA due to A.R. washing and cleansing, while he was denied the
ability to rebut that evidence by showing that what the State was implying was not
true. The State’s response to this “unfairness” argument is perfunctory at best; the
State argues only that the DNA evidence is not relevant to the issue at trial and
“would only prejudice and confuse the jury.”

4
No. 2017AP2364-CR

¶7 After a three-day trial, the jury found Gutierrez not guilty of
exposing a child to harmful materials and guilty on all other counts, and he was
sentenced to a lengthy prison term.3 Gutierrez appeals.

DISCUSSION

¶8 While Gutierrez makes a number of arguments on appeal, we
address in detail only the issue that we find dispositive: the circuit court’s
decision on the admissibility of the DNA evidence. Gutierrez argues that the
circuit court erroneously exercised its discretion when it denied his request to use
the DNA evidence as rebuttal to the State’s testimony as to why DNA evidence
was not found.4 We review a decision to admit or exclude evidence for an
erroneous exercise of discretion. State v. Warbelton, 2009 WI 6, ¶17, 315 Wis. 2d
253, 759 N.W.2d 557. We will uphold the circuit court’s ruling if it “examined
the relevant facts, applied a proper standard of law, and, using a demonstrated

3
The circuit court denied Gutierrez’s motion for postconviction relief seeking a new
trial.
4
Gutierrez frames his argument as erroneous exercise of the circuit court’s discretion.
He does not suggest that his constitutional rights were violated, except for the inclusion of one
sentence about the fundamental right of a criminal defendant to present a defense in his reply
brief. We note, however, that the Confrontation Clause and the Compulsory Process Clause of
the Sixth Amendment protect a defendant’s right to present a defense. U.S. CONST. amend. VI;
WIS. CONST. art. I, § 7; State v. Pulizzano, 155 Wis. 2d 633, 645, 456 N.W.2d 325 (1990). “The
former grants defendants the right to ‘effective’ cross-examination of witnesses whose testimony
is adverse, while the latter grants defendants the right to admit favorable testimony.” Pulizzano,
155 Wis. 2d at 645-46 (citation omitted). This right is not absolute, however, and is subject to a
determination that the evidence is relevant and is not substantially outweighed by its prejudicial
effect. Id. at 646; see also WIS. STAT. § 904.03. Regardless of whether this issue is framed as an
erroneous exercise of the circuit court’s discretion or as a violation of Gutierrez’s constitutional
rights, we conclude that Gutierrez is entitled to a new trial.

5
No. 2017AP2364-CR

rational process, reached a conclusion that a reasonable judge could reach.” Loy v.
Bunderson, 107 Wis. 2d 400, 415, 320 N.W.2d 175 (1982).

DNA Evidence

¶9 We agree with the circuit court that the fact that Gutierrez’s DNA
was not found on the swabs or underwear of A.R. was relevant, “absolutely
important” evidence, and, therefore, admissible.5 We also agree that the court did
not err in allowing the State to offer testimony that washing or cleaning may
remove DNA from clothing or body parts. Where we disagree with the circuit
court is its ruling that allowed testimony pertaining to why Gutierrez’s DNA may
have been absent (washed off) but denied Gutierrez the right to rebut the State’s
evidence by showing that the DNA of several individuals was not washed off. By
allowing the State to present evidence that DNA can be easily washed off but not
allowing Gutierrez to rebut that theory, the jury was incorrectly led to believe that
the underwear and mouth swabs contained no DNA evidence. Testimony at trial
indicated that the evening before A.R. reported the assault, Gutierrez removed
A.R.’s underwear twice, put his mouth on her vagina, and put his penis in her
mouth. Based on this testimony, the presence or lack thereof of Gutierrez’s DNA
on the underwear or mouth swab was clearly relevant, and especially relevant in

5
In order for evidence to be admissible, it must be relevant. Evidence is relevant if it
has “any tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” WIS. STAT.
§ 904.01. The probative value of relevant evidence must also not be “substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
WIS. STAT. § 904.03.

6
No. 2017AP2364-CR

rebuttal, to the State’s offer that Gutierrez’s DNA was not there because it was
washed off.

¶10 The State does not address Gutierrez’s argument that offering this
rebuttal DNA evidence was critical given the testimony from the crime lab expert.
The State argues that the DNA evidence is inadmissible as it “would prejudice the
victim by creating the forbidden inference that she may have had sexual contact or
intercourse with one or more other men (or boys).” 6 We disagree. The offer of
the DNA evidence was to counter the State’s argument that Gutierrez’s DNA was
washed off, rather than evidence concerning her “prior sexual conduct.” 7 The
circuit court erroneously exercised its discretion in refusing to allow the DNA
evidence for rebuttal.

6
WISCONSIN STAT. § 972.11(2)(b), the rape shield law, provides, in relevant part:

(b) If the defendant is accused of a crime under [the enumerated
statutes], any evidence concerning the complaining witness’s
prior sexual conduct or opinions of the witness’s prior sexual
conduct and reputation as to prior sexual conduct shall not be
admitted into evidence during the course of the hearing or trial,
nor shall any reference to such conduct be made in the presence
of the jury, except the following, subject to [WIS. STAT.
§] 971.31(11):

1. Evidence of the complaining witness’s past conduct with
the defendant.

2. Evidence of specific instances of sexual conduct showing
the source or origin of semen, pregnancy or disease, for use in
determining the degree of sexual assault or the extent of injury
suffered.

3. Evidence of prior untruthful allegations of sexual assault
made by the complaining witness.
7
“‘[S]exual conduct’ means any conduct or behavior relating to sexual activities of the
complaining witness, including but not limited to prior experience of sexual intercourse or sexual
contact, use of contraceptives, living arrangement and life-style.” WIS. STAT. § 972.11(2)(a).

7
No. 2017AP2364-CR

¶11 An erroneous ruling on the admission of evidence is subject to a
harmless error analysis. Martindale v. Ripp, 2001 WI 113, ¶30, 246 Wis. 2d 67,
629 N.W.2d 698. “If the error did not affect the substantial rights of the party, the
error is considered harmless.” Id. “An error affects the substantial rights of a
party if there is a reasonable probability of a different outcome, meaning a
‘probability sufficient to undermine confidence in the outcome.’” State v. Kleser,
2010 WI 88, ¶94, 328 Wis. 2d 42, 786 N.W.2d 144 (citation omitted).

We use several non-exclusive factors to aid our
application of the harmless error rule in the evidentiary
context: (1) the frequency of the error; (2) the importance
of the erroneously included or excluded evidence to the
prosecution’s or defense’s case; (3) the presence or absence
of evidence corroborating or contradicting the erroneously
included or excluded evidence; (4) whether erroneously
excluded evidence merely duplicates untainted evidence;
(5) the nature of the defense; (6) the nature of the State’s
case; and (7) the overall strength of the State’s case.

State v. Monahan, 2018 WI 80, ¶35, 383 Wis. 2d 100, 913 N.W.2d 894. The
State made no argument as to whether the exclusion of the evidence was harmless
error. See State v. Harris, 2010 WI 79, ¶32, 326 Wis. 2d 685, 786 N.W.2d 409.
We conclude the error in this case was not harmless.

¶12 In summarizing the applicable factors in Monahan, we recognize
that this case was largely a case involving competing testimony: A.R.’s testimony
versus Gutierrez’s testimony. Without corroboration of A.R.’s allegations, the
DNA evidence, both the presence and lack thereof, was a critical piece of
evidence. As previously discussed, the lack of Gutierrez’s DNA was central to his
defense. The State’s case was improperly bolstered when the jury was indirectly
presented with a fact not in evidence, i.e., that no DNA was present as it had been
washed off. Allowing the State’s proffer that Gutierrez’s DNA had been washed

8
No. 2017AP2364-CR

off while denying Gutierrez his right to rebut that evidence was error and
undermines our confidence in the trial’s outcome.8

Other Acts Evidence

¶13 For purposes of remand, we address Gutierrez’s other acts argument.
Prior to trial, the State sought to admit other acts evidence involving A.R.’s
allegations that when she was six years old Gutierrez had sexual contact with her
in a closet. The circuit court initially refused to allow “any specific acts of alleged
sexual contact,” only allowing “events leading up to the first charge of sexual
contact” to indicate “how those came to pass and for why the reporting happened
when it happened.” The State filed a motion to reconsider, and the court modified
its previous decision and allowed the evidence pertaining to the earlier sexual
assault based on its review of State v. Davidson, 2000 WI 91, 236 Wis. 2d 537,
613 N.W.2d 606, and the greater latitude rule used in child sexual assault cases.

¶14 As we have often repeated, Wisconsin courts apply a three-step
analysis, established in State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998),
to determine whether to admit other acts evidence, and we apply a “greater latitude
rule” in admitting other acts evidence in child sexual assault cases. Davidson, 236
Wis. 2d 537, ¶¶44, 46; see also WIS. STAT. § 904.04(2)(b). The greater latitude
rule allows “a ‘greater latitude of proof as to other like occurrences’” in “sexual

8
Because we conclude that Gutierrez is entitled to a new trial, we do not reach his
arguments regarding his right to an impartial jury and ineffective assistance of counsel as the
record will likely change on retrial. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514
(Ct. App. 1989). We do briefly address Gutierrez’s “other acts” argument as that issue is likely to
reoccur.

9
No. 2017AP2364-CR

assault cases, particularly cases that involve sexual assault of a child.” Davidson,
236 Wis. 2d 537, ¶36 (citation omitted).

¶15 Gutierrez argues that the amorphous nature of the allegations
“precluded Gutierrez from providing a reasonable response” and that the
prejudicial nature of the allegations outweighed the probative value of the
evidence.9 We conclude that the circuit court properly applied an “other acts”
analysis and reached a reasonable conclusion based on the specific facts of this
case. The six-year-old sexual assault is probative because it is similar to the
current charges: it is the same child; the location of the sexual assault, a closet, is
consistent with the current allegations as they were either in the home or in a
secluded location; Gutierrez took actions to conceal his behavior from A.R.’s
mother and said it was a secret; and the sexual conduct was similar in that A.R.’s
allegations are not more or less extreme than the current charges. See id., ¶68; see
also Sullivan, 216 Wis. 2d at 787-88. As the court explained in Davidson, the
“defendant’s past offense need not be identical to the charged offense in order to
be probative.” Davidson, 236 Wis. 2d 537, ¶72. Further, the jury was given a
limiting instruction, which served to counteract the potential for unfair prejudice.
See id., ¶78. Under the circumstances and given the applicability of the greater
latitude rule, we conclude that the circuit court did not erroneously admit the other
acts evidence.

9
The State argues that the evidence was not other acts evidence, but rather “panorama
evidence,” referencing State v. Dukes, 2007 WI App 175, ¶28, 303 Wis. 2d 208, 736 N.W.2d
515, where this court explained that “[e]vidence is not ‘other acts’ evidence if it is part of the
panorama of evidence needed to completely describe the crime that occurred and is thereby
inextricably intertwined with the crime.” We do not agree with the State that a separate sexual
assault that took place six years before the charged offense can be considered part of the
“panorama of evidence needed to completely describe the crime that occurred.” See id.

10
No. 2017AP2364-CR

By the Court.—Judgment and order reversed and cause remanded.

11
No. 2017AP2364-CR(D)

¶16 HAGEDORN, J. (dissenting). A jury of his peers concluded that
David Gutierrez sexually assaulted his stepdaughter. I am sympathetic with the
majority’s conclusion that justice would have been better served had the trial court
allowed Gutierrez to present evidence regarding the presence of unidentified
mixtures of male DNA on two items that were tested. But this case, like so many,
turns on our standard of review. The majority cites the standard of review, but
fails to actually apply it; I respectfully dissent.1

¶17 While Gutierrez makes a one-sentence passing reference to his
constitutional right to present a defense, he develops no argument along these
lines. Therefore, we review this evidentiary decision simply for an erroneous
exercise of discretion. Where there has been no legal or factual error—and none is
alleged here—we are left with the very narrow job of determining whether the trial
court engaged in a rational decision-making process and then arrived at a
rationally defensible position. State v. Dorsey, 2018 WI 10, ¶37, 379 Wis. 2d 386,
906 N.W.2d 158 (“We will uphold a circuit court’s evidentiary ruling if it
‘examined the relevant facts, applied a proper standard of law, used a
demonstrated rational process and reached a conclusion that a reasonable judge
could reach.’” (citation omitted)). It is important to emphasize that we do not, as a
general matter, look to whether the decision was more or less fair to any individual

1
I do not find any of Gutierrez’s other challenges to his conviction persuasive. I will
confine my analysis here to my disagreement with the dispositive issue leading to the majority’s
reversal.
No. 2017AP2364-CR(D)

party. We do not decide whether the evidentiary decision calls into question the
fairness of the underlying trial—at least when the claim before us merely asks
whether the court erroneously exercised its discretion.2 Rather, the question is
this: Is the decision completely off-the-wall, one that was made without any
rational foundation or thought, indeed one that no minimally competent judge
could reach?

¶18 There are sound reasons for this extraordinarily deferential approach.
In the main, our system is structured to leave basic fairness calls to our trial courts,
while granting appellate courts only the limited role of reviewing for legal error.
This reflects the fact that we weren’t at the trial; there’s a lot that goes on in a
courtroom that can’t be discerned from cold words on a paper transcript. This
structure is why, for example, trial courts are entrusted with sentencing decisions,
among the most humbling powers a judge can exercise. And in my nearly four
years on the bench, I cannot recall our court ever second-guessing a sentence
(absent legal error), even when we all would have made a different decision
ourselves. Maybe this is good, maybe it could be improved, but it’s the system we
have and one we must follow.

¶19 And pertinent to this case, it is the trial court that has the awesome
responsibility and duty to make evidentiary decisions in the course of a trial.
Where someone’s life and liberty are at stake, as they are in criminal trials, these
many decisions large and small have massive ramifications on the overall fairness

2
No claim under WIS. STAT. § 752.35 (2017-18) has been made, wherein our decision
would be a gut check on the fundamental fairness of the proceedings. Nor does the majority
invoke this or any other similar legal basis to examine how fair the trial was to the defendant.

2
No. 2017AP2364-CR(D)

of a trial. Yet, our system recognizes the frailty of human judgment, accepts some
measure of imperfection, and limits appellate court review of these incredibly
consequential moment-by-moment judgment calls. Again, it does this in
recognition of the trial court’s better view of what’s really going on, and in the
service of finality and justice for crime victims and a society that asks us to
administer justice on their behalf.

¶20 In this light, I read the majority as more offended by the unfairness
of the trial court’s decision than as a considered effort to apply the standard of
review. Even while paying the standard of review lip service, nowhere does the
majority attempt to show that the decision was the kind of irrational, thoughtless
decision it must be for us to overturn it.

¶21 At the outset, the record is clear that the parties’ arguments were not
given short shrift. This was not a split-second decision that in hindsight is hard to
justify. Rather, it was the subject of a pretrial motion that included briefing and
zealous argument by both sides. The trial court was very engaged, going back and
forth with the attorneys on how best to balance the interests and keep it fair for
both sides. Without question, the trial court engaged in a “demonstrated rational
process.” Dorsey, 379 Wis. 2d 386, ¶37 (citation omitted). Thus, the only real
question is whether a reasonable judge could reach the decision reached here.

¶22 It is important to put the test results here in context. The DNA
analyst conducted testing on multiple items and from multiple areas: in and
around the victim’s vaginal area, inside and outside her mouth, swabs from areas
of the home where the assaults were alleged to have taken place, and multiple
items of clothing from the victim. The analyst found no semen, saliva, or hairs of
note, nor was male DNA detected on most of the items. In particular, no male

3
No. 2017AP2364-CR(D)

DNA was detected in various tests of samples from the vaginal area, nor was male
DNA found in the swabs from inside her mouth. However, the analyst did find a
mixture of DNA from three or more unidentified men on one of the peri-oral
swabs—that is, swabs from outside the mouth. Also, of the various pieces of
clothing analyzed—a t-shirt, pajama pants, and two pairs of underwear—a swab
from the inside of one of the underwear items contained a mixture of male DNA
from five or more individuals. The analyst concluded that Gutierrez was excluded
as a contributor to either DNA mixture.

¶23 This evidence was obviously favorable to Gutierrez, and he sought
to have all of it admitted over the State’s objection. The State sought to exclude
the results from the underwear and peri-oral swab. The State pointed out that
outside of knowing there was no semen or saliva, no one knew where the DNA
came from or even what it was. The State explained that the various swabs were
taken almost twenty-four hours after the alleged assault, and that the victim had in
the meantime “[urinated], defecated, wiped or washed her genital area, took a bath
or shower, drank fluids, gargled or ‘swished’ in her mouth, brushed her teeth and
changed her clothing.”

¶24 The State’s position was that the relevant evidence had likely been
cleaned off due to these activities, and that an effort to introduce evidence
regarding the unidentified mixture of male DNA would invite confusion and
speculation, adding more heat than light to the jury’s deliberations. The jury
might, the State maintained, speculate regarding the source of this DNA in a way
that could suggest other sexual activity, and this would be prejudicial to the
victim.

4
No. 2017AP2364-CR(D)

¶25 Regarding the underwear, the State emphasized the unreliability of
the sample. When the search warrant was being conducted, the house was filled
with the general chaos of young children running around, yelling by the victim’s
mother, and what appeared to be intense efforts to clean the home. In the police
report, the victim had reported the underwear she was wearing the night the
November 1, 2012 assault took place was purple. But no purple underwear was
ever turned over. Instead, the victim’s mother “retrieved a wet yellow and pink
floral pair from the washing machine.” When the victim was asked for the purple
underwear, she produced “another floral pair that were not purple in color, either,”
having “pulled them out of some laundry.” The victim indicated she wore those
on November 2, which was the day after the assault. Thus, the State made a
strong case that the underwear results (it is unclear which pair of underwear
contained the mixture of male DNA) would lead to jury speculation that maybe
she had sexual contact with other men, and that the results were not even reliable
in the first place because of the contaminated nature of the evidence and the doubt
about whether either pair of tested underwear was the pair she was wearing during
the assault.

¶26 The court took all of this very seriously in its oral hearing on the
defendant’s motion. Gutierrez stressed to the court that he should be able to
present the male DNA that was found to rebut the State’s argument that the DNA
had likely been removed through cleaning or other activities. Gutierrez disclaimed
any interest in suggesting the victim had sexual contact with others, only that
DNA was actually found.

¶27 The State responded by reiterating the essentially unknown nature of
the DNA that was found. It pointed out that this was a peri-oral, not oral swab,
and that introducing evidence of multiple other men would surely lead the jury to

5
No. 2017AP2364-CR(D)

speculate that sexual contact with other men was involved; this was, the State
asserted, the inevitable thought process the jury would go down. The State further
maintained that in light of all the cleaning and washing she did, “there just would
be no reason to expect that one would find bodily fluid from the Defendant in her
oral cavity or near her oral cavity.” The State further reiterated its argument that
there were good reasons to think the underwear tested was not the same underwear
that was worn during the November 1 assault, not to mention the risk of
contamination when it was pulled out of a pile of dirty laundry.

¶28 Gutierrez replied that the presence of DNA supported his theory that
DNA “isn’t destroyed easily.” Gutierrez also indicated that the underwear she
pulled out of the laundry pile was in fact the one she said she was wearing during
the assault.

¶29 Taking this all in, the trial court began by accepting Gutierrez’s
arguments regarding the general relevance of the DNA test results. But it
expressed deep concern about going further because no one could really pinpoint
what the mixture of male DNA was:

Apparently, it’s not saliva. It’s not semen so if we don’t
know what it is, it could be a skin cell, it could be a hair
follicle, who knows what, and the relevance of that is
extraordinarily limited, especially when the only likely
inference that could be drawn is directly related to what the
rape shield statue would prohibit otherwise.

….

The problem is that the only reasonable inference that’s
drawn in the Court’s opinion about the source of all this
without wild speculation by both parties that can be
substantiated by no one as to the source of this other
[DNA] really makes that, it just it can’t be relevant because
it can’t be explained in any reasonable fashion that Court
can envision.

6
No. 2017AP2364-CR(D)

¶30 The court then further noted that it might see this differently if the
victim had gone to the nurse right away. But with the “substantial passage of
time” from an evidentiary perspective, this could lead to a “rabbit hole from which
we never escape.” The court was concerned about inundating the jury with
evidence regarding the ordinary ways DNA could show up in random places if
each side gets to try to explain that.

¶31 However, and quite importantly, the court explicitly stated that
Gutierrez could “still explore why or why not [Gutierrez’s DNA] may or may not
have been found there.” In other words, Gutierrez had free rein to discuss the
likelihood that Gutierrez’s DNA would still be found after cleaning, wiping,
passage of time, etc. The court reiterated this multiple times, saying, “And the
Court doesn’t view that limitation as prohibiting you from addressing the issues
directly with the witness about how long [DNA] would be viable, for example,
circumstances under which it could still be found at greater lengths of time than
those that were factually here.”

¶32 In short, the court found the mixture of male DNA not particularly
helpful since it was unclear what it was or where it came from. The court was
concerned that exploring what this unidentified mixture of random male DNA was
could lead the jury to speculate down impermissible paths and might confuse
them. And, wanting to ensure Gutierrez could support his theory that the absence
of his DNA was meaningful, the court gave Gutierrez the liberty to present
evidence of why the jury should take seriously the fact that Gutierrez’s DNA was
not found.

¶33 The trial testimony itself was fairly straightforward. Gutierrez called
the DNA analyst and elicited testimony that DNA can be passed on in these types

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No. 2017AP2364-CR(D)

of assaults, and that none of Gutierrez’s DNA was found on any of the tested items
or samples.

¶34 On cross-examination, the State elicited testimony regarding DNA’s
ability to be removed. The relevant conversation was as follows:

State: Now, in terms of DNA itself, can it be washed off?

Witness: Yes, it can.

State: Can it be scrubbed off?

Witness: Yes.

State: Can it be wiped off?

Witness: Yes.

….

State: If there was biological material on the person’s body
and that person showered, cleansed themself, wiped
themself off, might you expect something would happen to
the biological or DNA material?

Witness: Yes, I would.

State: What do you think?

Witness: Basically, if you are washing or wiping, the more
this is done, the more likely you are removing any kind of
DNA that was deposited.

State: If someone had ejaculate in her mouth and then 24
hours later, her mouth was swabbed, within that intervening
period the person had eaten, drank, brushed teeth, gargled,
washed face, might you expect something would happen to
the ejaculate or biological material in the mouth?

Witness: Yes. I would have expected it basically to be
gone.

State: Why?

Witness: The mouth actually has a lot of enzymes in it,
things that would break down material. Hence, it’s the start

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No. 2017AP2364-CR(D)

of your digestive system. But also you are also producing
saliva so your mouth is always being washed.

¶35 At this point, Gutierrez could have, pursuant to the court’s pretrial
ruling, made the case that following these events DNA would likely remain. But
no efforts along these lines were made.

¶36 In view of the trial court’s careful consideration of the arguments
that were made, I have no trouble affirming its exercise of discretion.3

¶37 A rational judge no doubt could be legitimately wary of jury
speculation in light of the unidentified nature of the DNA found. A rational judge
could certainly have concerns over the reliability of the underwear sample. A
rational judge might very well not want the trial to turn into a never-ending battle
of trying to explain these unidentified mixtures of male DNA, what kinds of
random cells containing DNA are passed along in ordinary life, etc.—a “rabbit
hole from which we never escape” as the trial court described it. A rational judge
might, as did trial court here, find these DNA mixtures fairly unreliable and
uninformative in light of the “substantial passage of time” between assault and
test.

¶38 In short, applying the standard of review that merely looks to the
baseline coherency of the trial court’s decision, I cannot see how we can do
anything but affirm, even granting that a better choice might have been warranted.
The trial court’s decision was well-considered, and one that easily survives our

3
When reviewing an exercise of discretion, we are free to proffer reasons supporting the
trial court’s decision even outside of reasons actually given. State v. Cain, 2012 WI 68, ¶37 n.10,
342 Wis. 2d 1, 816 N.W.2d 177. This makes the State’s case even stronger.

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No. 2017AP2364-CR(D)

extraordinarily deferential review. The trial court did not erroneously exercise its
discretion, and the conviction should be affirmed.

10