State v. Cullen Joel Horne

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.
March 21, 2023
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. 2021AP2219-CR Cir. Ct. No. 2018CF187

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CULLEN JOEL HORNE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Douglas County:
KELLY J. THIMM, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).

¶1 PER CURIAM. Cullen Joel Horne appeals from a judgment
convicting him, following a jury trial, of third-degree sexual assault, intentionally
No. 2021AP2219-CR

subjecting an individual at risk to abuse likely to cause great bodily harm,
aggravated battery, and obstructing an officer. The State alleged that Horne raped
an eighty-seven-year-old woman with Alzheimer’s disease at a senior living
facility where Horne worked as a certified nursing assistant (CNA). On appeal,
Horne challenges the sufficiency of the evidence to maintain his convictions on
two of the charges: intentionally subjecting an individual at risk to abuse likely to
cause great bodily harm and aggravated battery. He also argues that the circuit
court erred by admitting evidence detailing the specific pornography search terms
found on Horne’s cell phone. For the reasons that follow, we affirm Horne’s
convictions.

BACKGROUND

¶2 According to the criminal complaint, on April 8, 2018,
Officer Charles Mahlen of the Superior Police Department was dispatched to the
emergency room for a report of a sexual assault. The victim, May,1 reported that
she had been sexually assaulted the day before by Horne, whom she knew as a
“maintenance worker” at her senior living facility (the facility). May told officers
that Horne gave her a back massage and then went into the bathroom and returned
naked below the waist. Horne then “got on top of [May],” “‘mounted’ her,” and
used his “penis [to] penetrate [May’s] vagina.”

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use
pseudonyms when referring to the victim and her daughter. All references to the Wisconsin
Statutes are to the 2021-22 version unless otherwise noted.

2
No. 2021AP2219-CR

¶3 At the time of the incident, May was eighty-seven years old and had
been diagnosed with Alzheimer’s disease.2 May was accompanied to the hospital
by her adult daughter, Lilly, who reported to the police and at trial that she had
picked up May the previous evening to have dinner at Lilly’s home. After dinner,
while they were watching television together, May told Lilly about the assault.
Lilly then brought May to the hospital, where she received a sexual assault nurse
examination (SANE examination).

¶4 Later in the day on April 8, 2018, Officers Mark Letendre and
Mahlen went to Horne’s home. Horne told the officers that he had worked as a
CNA at the facility, but he had resigned in January or February 2018. According
to Horne, he returned to the facility on April 7 to “visit people.” While there,
Horne encountered May in the hall, and they went to her apartment “where they
had biscuits and talked.” Horne denied being romantically involved with anyone
at the facility or having physical contact with anyone at the facility. However,
when Letendre asked if Horne had given anyone a back rub at the facility, Horne
admitted that he had given May a back rub, but he denied that anything else
happened.

2
May’s physician, Dr. Michael Sterns, testified that Alzheimer’s disease is “a
progressive neurodegenerative disease that over the course of years causes significant loss in a
patient’s memory and their mental faculties in order to care for themselves.” According to
Sterns, Alzheimer’s disease is a type of dementia that

typically starts off as patients having trouble with short-term
memory. Oftentimes, it can sometimes be misconstrued for
some normal aging issues that are initially seen by people in the
family and then, as it progresses, more behavioral characteristics
are obviously evident. Inability to care for oneself, do activities
of daily living in the house, take care of the finances, bathe, even
communicate, at some point.

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¶5 Letendre then told Horne that semen had been “recovered at the
facility, and that a DNA test of it would reveal that it was from” Horne. In
response, Horne informed the officers that he had taken a Cialis that day “for the
purpose of having [sexual] relations with his partner later that night when he got
home,” but he “had gotten erect while at [May’s] apartment, and went to the
bathroom to ‘relieve’ himself.” Horne explained that “he used a towel and
‘probably her underwear,’ referring to [May], to clean up, and that was where they
would probably find his DNA.” Horne continued to deny that he had sexual
contact or intercourse with May. The officers placed Horne under arrest.

¶6 On April 9, 2018, while in police custody, Detective Michelle Lear
interviewed Horne again. During that interview, for the first time, Horne admitted
that he did have sex with May, but he claimed that it was consensual.

¶7 The State charged Horne with third-degree sexual assault,
intentionally subjecting an individual at risk to abuse likely to cause great bodily
harm, aggravated battery, and obstructing an officer. Pretrial, Horne moved in
limine to exclude all evidence of pornography found as a result of the execution of
a search warrant on Horne’s cell phone. He argued that his defense was that he
had consensual sex with May, not that sexual intercourse did not occur.
Therefore, Horne’s “sexual attraction to older women is not disputed and any
attempt to use his private pornographic searches or views [is] not relevant and
overly prejudicial.” Horne’s counsel claimed that evidence of the specific search
terms Horne used was “unnecessary, salacious information.”

¶8 The State argued that the pornography evidence was relevant
because it went to Horne’s credibility. According to the State, Horne alleged to
Lear that he had a past pornography addiction and that he no longer looked at

4
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pornography; thus, evidence that Horne had recently viewed pornography
demonstrated that Horne lied to Lear and “implicate[d] credibility concerns.” The
circuit court agreed, observing that “the probative value is high. Obviously,
there’s some prejudice, but it does not outweigh the probative value, in my
opinion, because it’s going to credibility which is a huge factor in this case.”

¶9 At trial on October 29 and October 30, 2019, the State presented
testimony from Mahlen, Letendre, Lear, Dr. Sterns, SANE nurse
Jennifer Baumann, Lilly, and May. May was not available to testify in person at
trial—Sterns’ testimony revealed that ten days previously May had suffered a
“profound stroke that … left her paralyzed on the right side of her body”—but her
deposition testimony was read into the record based on the parties’ stipulation.
See WIS. STAT. §§ 908.04(1)(d), 908.045(1), 967.04(5).

¶10 May testified that although she had been retired for a while, she
previously taught in countries around the world, could speak multiple languages,
and has a master’s degree in teaching English. During her deposition, May
referred to Horne as “a bad guy that came into my apartment and raped me,” but
she could not identify him by name. At the deposition, May was also asked to
visually identify the man who came into her apartment; however, she was unable
to see clearly enough to identify anyone in the room—including Horne, who was
present. May stated that she had seen Horne only three times while living at the
facility: the first time he was “in [her] apartment he was on his knees in front of
the pull-out waste basket” and she “forgot about it and [had] no contact”; the
“[s]econd time there was more contact”; and the “[t]hird time was the bad one.”

¶11 On that day, May stated she heard “rustlings and things” in the living
room, and then Horne came into her bedroom “naked from the waist down and

5
No. 2021AP2219-CR

climbed onto [her] bed on his knees” and “raped [her]” by “[p]ushing his penis in
and out … [of her] vagina.” May could not remember whether she was under the
covers when Horne entered the room or how her clothes were removed. She
testified that although she did not yell or fight as she did not believe it would do
any good, she did not consent to Horne putting his penis in her vagina. May
explained that when it was over, Horne immediately went back into the living
room, and she heard him getting dressed and leaving her apartment.

¶12 Baumann testified that May’s SANE examination revealed
“abrasions and some redness, particularly to her periurethral area, so vaginally,
basically,” “injury to and red abrasions to her labia majora as well as on her
cervix,” and “petechiae present on the cervix, which are small, circular red dots
that indicate bleeding under the tissue.” According to Baumann, May reported
“tenderness” both “prior to the exam” and “with the exam.” Baumann explained
that based on her training and experience, May’s injuries were consistent with
sexual intercourse.

¶13 Horne testified in his own defense. According to Horne, he and May
talked on many occasions about May’s life and world travels and maintained a
friendship during the time that he worked at the facility. Eventually, he explained,
their relationship turned intimate. Horne testified that their first sexual encounter
was in January 2018, after May invited him to her room when he offered to give
May a back rub. His testimony provided a detailed account of their sexual
encounter, during which he alleged he asked May multiple times “if she was okay”
and she responded affirmatively.

¶14 Their next sexual encounter, according to Horne, was on April 7,
2018, when he was no longer working at the facility. Horne testified that he came

6
No. 2021AP2219-CR

back to the facility “to see [May]” and “some other people there.” According to
Horne, he asked May if she would like “another back rub like the last time,” and
eventually they had sexual intercourse, during which Horne stated he again asked
May multiple times “if everything was okay.”3 Horne denied ever using force
against May or doing anything without her consent. Horne also admitted at trial
that he was not forthcoming with officers about his relationship with May at first
and that he “did lie.”4 He explained that he was not honest with police because his
daughter and a romantic partner were present.

¶15 The jury found Horne guilty of all counts, and he was sentenced to a
total of ten years’ initial confinement, followed by ten years’ extended
supervision.5 Horne appeals.

DISCUSSION

¶16 On appeal, Horne challenges the sufficiency of the evidence. He
claims that the evidence did not establish that he was guilty of intentional abuse of
an individual at risk—Count 2—because there was no evidence that he knew that
May was an individual at risk. Further, Horne argues that the evidence did not

3
On cross-examination, May denied having any relationship with Horne. When
questioned about Horne’s versions of events, May responded by denying that the events occurred
and by calling Horne a “liar” and stating that “he was making up a lot of stuff.”
4
Horne was charged with obstructing an officer based on his failure to provide honest
answers to Mahlen and Letendre. On appeal, Horne explains that “he did not strongly contest”
this charge at trial, and he is “not challenging” his conviction for that offense on appeal.
5
The circuit court sentenced Horne to five years’ initial confinement and five years’
extended supervision on Count 1; five years’ initial confinement and five years’ extended
supervision on Count 2, consecutive to Count 1; and three years’ initial confinement and three
years’ extended supervision on Count 3, concurrent with Counts 1 and 2. On Count 4, the court
sentenced Horne to nine months in jail, consecutive to all other counts.

7
No. 2021AP2219-CR

establish that he was guilty of aggravated battery—Count 3—because “there was
no evidence that he knew his conduct created a substantial risk of great bodily
harm.” Finally, Horne also argues that the circuit court erred by admitting
evidence of the specific pornography search terms found on his cell phone.

I. Sufficiency of the Evidence

¶17 Whether the evidence was sufficient to sustain a guilty verdict in a
criminal prosecution is a question of law that we review independently. State v.
Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. A defendant “bears a
heavy burden in attempting to convince a reviewing court to set aside a jury’s
verdict on insufficiency of the evidence grounds.” State v. Booker, 2006 WI 79,
¶22, 292 Wis. 2d 43, 717 N.W.2d 676. When reviewing a sufficiency of the
evidence challenge, we “may not substitute [our] judgment for that of the trier of
fact unless the evidence, viewed most favorably to the state and the conviction, is
so lacking in probative value and force that no trier of fact, acting reasonably,
could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153
Wis. 2d 493, 507, 451 N.W.2d 752 (1990).

¶18 “It is the function of the trier of fact, and not of an appellate court, to
fairly resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Id. at 506. “Thus, when
faced with a record of historical facts which supports more than one inference, an
appellate court must accept and follow the inference drawn by the trier of fact
unless the evidence on which that inference is based is incredible as a matter of
law.” Id. at 506-07. If any possibility exists that the jury could have drawn the
appropriate inferences from the evidence adduced at trial to find the defendant
guilty, then we may not overturn the jury’s verdict, even if we believe the jury

8
No. 2021AP2219-CR

should not have found guilt based on the evidence before it. Id. at 507. Notably,
circumstantial evidence is sufficient to support a conviction, even on the intent
element of a crime. See State v. Perkins, 2004 WI App 213, ¶24, 277 Wis. 2d
243, 689 N.W.2d 684; see also Poellinger, 153 Wis. 2d at 501-02.

a. Count 2: WIS. STAT. § 940.285(2)(a)1.

¶19 Regarding the sufficiency of the evidence on Count 2, WIS. STAT.
§ 940.285 makes it a crime to “[i]ntentionally subject[] an individual at risk to
abuse.” See § 940.285(2)(a)1. An “individual at risk” is defined by statute as
“any adult who has a physical or mental condition that substantially impairs his or
her ability to care for his or her needs and who has experienced, is currently
experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial
exploitation.” Sec. 940.285(1)(am); WIS. STAT. § 55.01(1e). As the jury was
informed, the intent element of the crime required that the State prove that Horne
knew that May was an individual at risk. See WIS JI—CRIMINAL 1268 (2007).

¶20 On appeal, Horne challenges the determination that this intent
element was met. He argues that the evidence was insufficient to prove that he
actually knew May was “at risk.” According to Horne, “[a]lthough the State
presented evidence that [May] had been diagnosed with Alzheimer’s disease, the
common testimony from witnesses who interacted with [May] was that she was
able to hold a conversation, appropriately answer questions and that the only sign
of memory issues was that she repeated stories.”

¶21 We conclude that the evidence was sufficient to support the jury’s
conclusion that Horne knew May was “at risk.” May’s deposition testimony
clearly revealed that she had a cognitive impairment. At her deposition, May
could not remember what city she lived in or her address. Further, Dr. Sterns

9
No. 2021AP2219-CR

testified that, at the time of the sexual assault, May’s Alzheimer’s disease was “a
mild to moderate case.” He explained that when interacting with May, he noticed
that her Alzheimer’s disease presented as May often repeating herself. In addition,
Stearns’ testimony also revealed that May’s physical condition placed her at
risk: May had arthritis; used a walker; was being treated for macular
degeneration, which caused vision problems; and was on medications for blood
pressure and heart disease, including a blood thinner.

¶22 Lilly testified that while May was not receiving assisted living
services from the facility,6 she was not able to care for herself. Lilly explained
that in April 2018, May could not cook, drive, or manage her finances. Lilly
overwhelmingly provided care for her mother, along with another individual Lilly
hired, which involved daily visits to ensure May was eating and taking her
medications. According to Lilly, May would often get confused, repeat herself,
and forget things. Lilly also explained that May had difficulty seeing, “walking
very far without assistance,” and she used a walker.

¶23 Baumann testified that during the SANE examination, which
occurred “over a matter of hours,” May “would repeat some things,” “she talked
about her profession in her life repeatedly and that she traveled repeatedly,” and
“she repeated what had happened earlier in that day, multiple times.” Further, the
testimony from Letendre and Lear also demonstrated that May’s impairments were
noticeable even during short conversations. For example, Letendre testified that

6
Residents at May’s facility received different levels of care. Some residents would
receive nursing and living assistance from the staff, such as help with medications and personal
care, while other residents, like May, were considered “independent living” and did not receive
assistance from staff.

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No. 2021AP2219-CR

he spoke with May for “[a]pproximately a half hour” and noticed that she was
repetitive in her answers, which he explained, based on his “training and
experience, … was consistent with what [he] know[s] of that disease process,”
meaning Alzheimer’s disease. Lear also testified that she met with May two
times, and it was “clear to [her] that [May] had limitations as far as remembering
things and repeating things.”

¶24 Horne’s own testimony also provides support for the jury’s verdict.
It is clear, based on the record, that Horne knew May’s age, he knew that “she
walk[ed] slow,” that “she fell one time,” and that she used a walker. He stated,
however, that he did not know of her Alzheimer’s diagnosis. According to Horne,
he had many conversations with May; yet, he testified that he never recognized
any general signs of dementia in May, only that she “told a lot of the same
stories,” but he asserted that he repeats himself as well. Horne also testified,
however, that as a licensed CNA, he had completed five weeks of training, which
included instruction on recognizing general behaviors of people with dementia.

¶25 On appeal, Horne focuses on the fact that he was not specifically
trained to diagnose Alzheimer’s disease and that he did not have access to May’s
medical records. He also argues that the State “relies on evidence of [May’s]
physical and mental health from witnesses who were privy to that
information …. What is missing is any evidence that Mr. Horne knew any of
these facts on the date in question.”

¶26 As the State recognizes, however, “Horne fails to appreciate that
circumstantial evidence is all you need to prove intent.” See Perkins, 277 Wis. 2d
243, ¶24. In Perkins, the issue was whether the state presented sufficient evidence
to permit an inference that Perkins knew that the seventy-eight-year-old victim of

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No. 2021AP2219-CR

a sexual assault was suffering either from a mental illness or incapacity. Id., ¶1.
This court concluded that under the facts of that case, “there was ample
circumstantial evidence presented to allow the jury to reasonably draw the”
conclusion that Perkins was aware of the victim’s mental illness, despite Perkins’
assertion that he had not spoken to the victim and did not know why she was
living in the residential facility for the elderly. Id., ¶¶24-25. While we
acknowledge, as Horne argues, that there are significant factual differences
between Perkins and this case, the point is that we accepted the inference the jury
made based on circumstantial evidence, explaining that the case “boiled down to a
credibility determination, and the jury chose not to believe Perkins.” Id., ¶25.

¶27 Here, too, given Horne’s testimony that he had multiple interactions
with May over time and prior to the assault, and given his training as a CNA, the
jury could reasonably infer that Horne would know that May had memory issues
and was suffering from cognitive impairment—in addition to her physical issues—
and was therefore an adult at risk. The fact that May had some mental limitations
was clear to both Baumann and law enforcement officers with much less contact
with May than Horne stated he had. The jury was not required to accept Horne’s
testimony that he did not know about May’s cognitive impairment. We therefore
conclude the State presented sufficient evidence for the jury to find that Horne
knew that May was an individual at risk for purposes of WIS. STAT.
§ 940.285(2)(a)1.

b. Count 3: WIS. STAT. § 904.19(6)

¶28 Horne was also convicted of aggravated battery pursuant to WIS.
STAT. § 940.19(6) (2017-18), which prohibited “intentionally caus[ing] bodily
harm to another by conduct that creates a substantial risk of great bodily harm.”

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No. 2021AP2219-CR

To prove battery with substantial risk of great bodily harm, the State was required
to show that Horne: (1) caused bodily harm to May; (2) intended to cause bodily
harm; (3) created a substantial risk of great bodily harm; and (4) knew his conduct
created a substantial risk of great bodily harm. See WIS JI—CRIMINAL 1226
(2015). The definition provided to the jury for “[g]reat bodily harm” was “serious
bodily injury.”7 See id. The jury was instructed that at the time of this case,
§ 940.19(6) (2017-18) contained a rebuttable presumption that “conduct creating a
substantial risk of great bodily harm arises” “[i]f the person harmed is 62 years of
age or older.” Sec. 940.19(6)(a).8 Thus, as Horne concedes, because May was
eighty-seven years old, it is presumed that Horne’s conduct created a substantial
risk of great bodily harm.

¶29 On appeal, Horne argues that “the State was required to prove that
Mr. Horne both intended to cause harm to [May] and knew that his conduct
created a substantial risk of great bodily harm,” and he claims that the evidence
was insufficient to establish either element. While Horne admits that May had
significant health problems, he asserts “there was no evidence at trial that
Mr. Horne was aware of anything other than her age and that [May] had fallen
once in the hallway” such that he would have “the requisite intent and knowledge
that his conduct created a substantial risk of great bodily harm.”

7
During deliberations, the jury asked the circuit court: “Is there more of a definition of
great bodily harm than just meaning serious bodily injury? Is there a definition for serious bodily
injury?” In response, and upon agreement of the parties, the court provided the jury with the
definition of “great bodily harm” found in WIS. STAT. § 939.22(14) (2017-18): “‘Great bodily
harm’ means bodily injury which creates a substantial risk of death, or which causes serious
permanent disfigurement, or which causes a permanent or protracted loss or impairment of the
function of any bodily member or organ or other serious bodily injury.”
8
WISCONSIN STAT. § 940.19(6)(a) (2017-18) was later repealed by 2021 Wis. Act 76,
§ 29.

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No. 2021AP2219-CR

¶30 All that is required to uphold this conviction is credible evidence that
Horne knew his conduct created a substantial risk of great bodily harm. See WIS
JI—CRIMINAL 1226 (2015). Again, Horne does not acknowledge that
circumstantial evidence presented to the jury may provide support for the jury’s
verdict. See Perkins, 277 Wis. 2d 243, ¶24. While Horne continues to maintain
that his conduct was consensual, he “acknowledges that on appeal this court views
the evidence in the light most favorable to the State and the conviction,” meaning
that we consider Horne’s arguments from the posture that a sexual assault
occurred.

¶31 We conclude that the evidence presented at trial provided a basis for
the jury to infer that Horne knew his conduct created a substantial risk of great
bodily harm to May. As noted above, Horne knew May’s age, the fact that she
used a walker, and that she had fallen at least once in the past. Testimony revealed
that May was on blood thinners and heart medication. As the State argues, while
Horne might not have known the exact medications May was taking, it was
reasonable based on his training as a CNA and his work at the facility that he
would have been aware of the likelihood that a woman of her age was at risk for
strokes and heart attacks. It suspends credulity to suggest that anyone would not
be aware that raping an eighty-seven-year-old woman created a substantial risk of
great bodily harm. Even Horne’s own testimony revealed that he repeatedly asked
if May was all right during the sexual intercourse, which is a further indication
that Horne was concerned he could be or was hurting her. The issue is whether
Horne understood that his conduct created a substantial risk of great bodily harm,
and the jury was not required to—and, in fact, did not—believe Horne.

¶32 Horne also argues that the evidence was insufficient because May
did not actually suffer great bodily harm; however, that is not the standard under

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No. 2021AP2219-CR

the statute. All that is required is that Horne “intended to cause bodily harm to”
May. See WIS JI—CRIMINAL 1226 (2015). Horne acknowledges that his
intentional conduct—sexually assaulting May—caused her bodily harm.

¶33 Baumann testified that May suffered some abrasions and injury on
her vaginal area; that there were petechiae—indicating bleeding under the tissue—
on her cervix; and that May reported tenderness prior to and during the SANE
examination. Baumann then testified that these findings could be consistent with
both sexual assault and with consensual sexual activity. On cross-examination,
the prosecutor asked Horne whether he heard Baumann’s testimony about
“multiple injuries.” Horne responded, “I didn’t hear … anything about multiple
injuries…. Sounded like they were just talking about normal things that happened
during sex.” We agree with the State’s argument that this comment demonstrated
Horne’s acknowledgement of the risk of harm to May from sexual intercourse and
that bodily harm to May was a likely outcome. Further, as discussed above, given
May’s fragile condition, a reasonable jury could conclude that Horne was aware of
the risk his conduct posed, and, thus, could infer that he intended to cause bodily
harm based on his intentional conduct.

II. Pornography Evidence

¶34 Finally, Horne argues that the “circuit court erred by admitting
evidence detailing the specific pornography search terms found on Mr. Horne’s
cell phone, as this evidence was not relevant to Mr. Horne’s credibility and was

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No. 2021AP2219-CR

highly prejudicial.”9 (Formatting altered.) At trial, Lear testified that forensic
data from Horne’s cell phone revealed “a number of searches for pornography
sites and even more searches … referencing elderly pornography sites.”
According to Lear, these search terms included “80 Plus, Cream Pie Granny, Fuck,
Cum. I know that was one specific one. There was another 76-year old—like
skinny granny something. A lot of … the use of the word ‘granny’ and 80-plus
were in a lot of them.” Lear told the jury that most of the searches were between
February 5, 2018, and March 27, 2018. The prosecutor then asked Lear “why was
this significant in your investigation,” and Lear responded, “Because Mr. Horne
had told me that he was over his porn addiction and had not looked at it, I think he
said in a couple years. And it was also relevant because [May] is 87 years old—or
was at the time.”10

¶35 We follow well-settled guidelines in our review of a circuit court’s
discretionary decision to admit or exclude evidence. “To be admissible at trial,
evidence must be relevant.” State v. Petrovic, 224 Wis. 2d 477, 493, 592 N.W.2d
238 (Ct. App. 1999); see also WIS. STAT. § 904.02. “Relevant evidence” is
9
We note first that the State argues that Horne has forfeited this argument. The State
explains that what Horne appears to be arguing on appeal is that Lear’s testimony “went beyond
the scope of what the [circuit] court allowed,” and Horne failed to object to this testimony at trial.
In response, Horne argues that his motion in limine “preserved his objection to this evidence,”
and, in the alternative, we should address his claim because “the State had a full and fair
opportunity to respond.” For the sake of finality, we will address Horne’s claim. See State v.
Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (“[T]he [forfeiture] rule is one of
judicial administration and ... appellate courts have authority to ignore the [forfeiture].”).
10
During his interview with Lear, Horne suggested that his past pornography addiction
was the reason he was not able to turn down May’s sexual advances toward him. Horne
explained, “I’m sure that my past pornography addiction, it … probably added to the problem. I
stopped it a while ago. I haven’t even messed with it. But I’m sure it took its toll on my brain.”
He went on to explain that “[i]t has been tough for [him] to put [pornography] down, but that’s a
really great success in the last couple years of—of, uh, just really putting it aside. Actually, more
than a couple years ‘cause the … worst time I had with it was years ago.”

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No. 2021AP2219-CR

“evidence having 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. Relevant evidence
is generally admissible, see § 904.02; however, relevant evidence “may be
excluded if its probative value is 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. “The admission of evidence is subject to the circuit court’s
discretion.” State v. Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448.
This court “will not disturb the circuit court’s decision to admit evidence unless
the court erroneously exercised its discretion.” Id.

¶36 We conclude that the circuit court did not err by allowing testimony
regarding the pornographic searches on Horne’s cell phone, including the specific
search terms. The record demonstrates that the circuit court found Lear’s
testimony to be highly relevant and probative because it impeached Horne’s
credibility by revealing that Horne had lied during the investigation. As noted,
Horne told Lear that he had stopped viewing pornography years prior to the
assault. Further, during cross-examination at trial, Horne acknowledged his search
history included pornography with mature women. He testified, however, that he
was not “highly sexually stimulated by elderly women,” generally. Instead, he
was attracted to May, specifically.

¶37 Given that Horne testified at trial, his credibility was very relevant to
the State’s case. See State v. Sonnenberg, 117 Wis. 2d 159, 183, 344 N.W.2d 95
(1984) (Callow, J., concurring) (“Because the defendant’s credibility is an
important issue when he testifies that he did not commit an offense, evidence of
his credibility is important to a determination of the truth.”). Lear’s testimony,

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No. 2021AP2219-CR

including the names of the websites and search terms, salacious or not, was very
relevant to question the truthfulness of Horne’s statements to police and his
testimony at trial.

¶38 Further, we agree with the circuit court that the pornography
evidence was certainly prejudicial to Horne, but it was not unfairly so. Evidence
is unfairly prejudicial “if it appeals to the jury’s sympathies, arouses its sense of
horror, provokes its instinct to punish or otherwise causes a jury to base its
decision on something other than the established propositions in the case.” State
v. Davidson, 2000 WI 91, ¶73, 236 Wis. 2d 537, 613 N.W.2d 606 (citation
omitted). There was no danger of the jury finding Horne guilty of the charged
offenses simply because the jury was disturbed by the type of pornography he
viewed. Horne was charged with raping an eighty-seven-year-old woman with
Alzheimer’s disease. “Thus, it is unlikely that the jury would punish [Horne] for
the pornography rather than for the conduct he was charged with.” See State v.
Normington, 2008 WI App 8, ¶35, 306 Wis. 2d 727, 744 N.W.2d 867 (2007)
(citing State v. Volk, 2002 WI App 274, ¶24, 258 Wis. 2d 584, 654 N.W.2d 24).
The circuit court did not err by admitting the pornography evidence.

By the Court.—Judgment affirmed.

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

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