State v. Phillip Dewayne Peters

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.
June 22, 2021
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. 2020AP471-CR Cir. Ct. No. 2017CF3304

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PHILLIP DEWAYNE PETERS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: STEPHANIE ROTHSTEIN, Judge. Affirmed.

Before Brash, P.J., Dugan and Donald, 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. 2020AP471-CR

¶1 PER CURIAM. Phillip Dewayne Peters appeals from a judgment
convicting him of criminal trespass and second-degree sexual assault and an order
of the circuit court denying his motion requesting the court to order additional
DNA testing pursuant to WIS. STAT. § 974.07 (2019-20).1 We conclude that it is
not reasonably probable that Peters would not have been prosecuted or convicted,
or that the outcome of the proceedings would have been more favorable, if the
DNA testing Peters now requests would have been conducted. Accordingly,
Peters has not met the requirements of § 974.07(7) for the court to order either
mandatory or discretionary testing and, therefore, we affirm.

BACKGROUND

¶2 Peters was charged on July 19, 2017, with criminal trespass,
misdemeanor battery, strangulation and suffocation, and second-degree sexual
assault arising from an incident on July 13, 2017, involving his former girlfriend,
A.S. The complaint alleged that Peters entered A.S.’s apartment through a
window without consent, the two fought, and Peters assaulted her by forcefully
inserting his fingers into her anus and then prevented her escape by choking her.

¶3 The case proceeded to a jury trial at which A.S., a neighbor, the
nurse who examined A.S. following the assault, a DNA analyst, and investigating
officers testified. Peters did not testify or present any witnesses.2

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

The Honorable Mark A. Sanders presided over Peters’ trial and sentencing. The
2

Honorable Stephanie Rothstein entered the order denying Peters’ postconviction motion.

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No. 2020AP471-CR

¶4 A.S. testified that she was in a relationship with Peters until the day
before the assault, that she ended the relationship after a heated exchange with
Peters, and she was avoiding Peters’ attempts to contact her. She said that,
immediately prior to the assault, she was having dinner in her apartment with a
neighbor she knew as “Butch,” and “[she] was making food or putting food on
plates and [she] heard someone talkin’ to the – talkin’ through the window and
[she] realized it was [Peters] at [her] window.” When A.S. saw Peters coming
through her window, “[she] was tryin’ to push him out of [her] window to stop
him from comin’ in [her] house but he overpowered [her] so he ended up gettin’ in
[her] house.”

¶5 She testified that Butch left and she and Peters started fighting, with
Peters “throw[ing] the first punch.”3 She further testified that they fell on the
couch and then to the floor and, when Peters had her pinned on her stomach on the
floor, Peters “took both of his fingers and shoved them up [her] anus.”4 A.S.
testified that she was “screaming” and “[o]n a level of one to 10,” the pain was a
“10” and lasted about four days. A.S. described that, once the assault ended, she
grabbed her two-year-old son, escaped Peters’ attempts to block the door and
choke her, and ran out of her apartment to find help.

3
At a prior hearing, A.S. testified that she attacked Peters. During cross-examination,
trial counsel questioned A.S. about the inconsistency between her testimony during trial and her
statement at the prior hearing about who started the fight. Trial counsel also brought out
additional inconsistencies with A.S.’s prior testimony regarding the number of times Peters hit
her and whether Peters used a closed fist. He also questioned A.S. about the inconsistencies
between the statements she gave to the investigating officers and her trial testimony, including the
description in the police report that she was wearing a “thin lounging dress” with her testimony
that she was wearing a nightgown.
4
A.S. was wearing a nightgown with nothing underneath at the time of the assault.

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No. 2020AP471-CR

¶6 A.S.’s neighbor5 testified that A.S. came to her apartment following
the assault and she helped A.S. call the paramedics. She testified, “[A.S.] was all
holding her face and [A.S.] said that she had gotten beaten up” by her ex-
boyfriend. She further testified that “[A.S.] was bleeding a little bit” on the right
side of her face and the blood was running down from somewhere around her right
eye.6

¶7 A.S. went to the hospital that night for treatment and an
examination. Pictures were taken that night, and again a few days later, of the
injuries to her mouth, left side of her face, jaw, neck, and shoulder. A.S. also
underwent an examination by a SANE nurse.7

¶8 The SANE nurse testified that, in addition to bruising and swelling
to A.S.’s face and neck, she “notice[d] visible signs of abnormalities on [and]
around her anus” in the form of redness and an abrasion measuring approximately
five millimeters. As part of the exam, the nurse also questioned A.S. about
whether she had any sexual activity within 120 hours of the assault. A.S. believed
she answered yes when asked this question, but the medical reports and the nurse’s
testimony reflect that A.S. answered no. At trial A.S. testified that she had vaginal
intercourse with a friend four or five days prior to the assault.

5
This neighbor was someone other than Butch.
6
During closing arguments, trial counsel highlighted that the neighbor’s description of
A.S.’s injuries was inconsistent with the other descriptions of A.S.’s injuries.
7
As the nurse explained, “[a] sexual assault nurse examiner, commonly referred to as a
SANE, is a registered nurse that has additional training in both the clinical treatment and
education needed to take care of sexual assault victims and [those] who have been abused.”

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No. 2020AP471-CR

¶9 The DNA analyst testified about the testing done on the swabs taken
during the SANE exam. First, and as particularly relevant here, the analyst
testified that Peters’ DNA was not found on the anal swab. Second, the analyst
testified that testing on the swabs taken from underneath A.S.’s fingernails showed
that Peters was the source of the DNA found under A.S.’s fingernails.

¶10 In relation to the testing done on the anal swab, the analyst described
that she first tested the swab for the presence of semen and the test was positive.
She then described that she isolated the sperm cells (the sperm fraction) and then
tested to develop a DNA profile, and based on this DNA profile, she was able to
exclude Peters as the contributor of the DNA found on the anal swab.8 When
asked where the DNA came from, she testified:

There was no way to indicate if the DNA was found from
touch DNA or semen specifically. It can be presumed that
the DNA was received from the semen simply because
semen was present, but it can’t be definitively identified as
that.

¶11 Based on the testimony and other evidence introduced at trial, during
closing arguments, trial counsel argued that the allegations against Peters were not
credible given the amount of inconsistencies in A.S.’s story and the lack of Peters’
DNA on the anal swab. As an alternative explanation, trial counsel offered that
A.S. had consensual anal sex with someone other than Peters, which lead to
redness, an abrasion, and the presence of another man’s semen in her anus.
8
The DNA report that was admitted into evidence during the analyst’s testimony states
that the anal swab was tested using an extraction technique that separates the cells into two
fractions—non-sperm and sperm fractions. It further states that human DNA was isolated from
the non-sperm and the sperm fractions and the DNA analysis was performed on the sperm
fraction of the anal swab and excluded Peters as a source of the male DNA of the sperm fraction.
The report further states that “[t]he non-sperm fraction from the anal swabs was not selected for
further analysis.”

5
No. 2020AP471-CR

¶12 The jury found Peters guilty of criminal trespass and second-degree
sexual assault but not guilty of misdemeanor battery and strangulation and
suffocation. Peters was subsequently sentenced to a 100-day term of confinement
at the House of Correction on his conviction for criminal trespass and a nine-year
term of initial confinement and eight-year term of extended supervision on his
conviction for second-degree sexual assault, to be served consecutive to each
other.

¶13 Peters filed a postconviction motion asking the court to order DNA
testing pursuant to WIS. STAT. § 974.07. Specifically, Peters sought to have the
court order DNA testing on the non-sperm fraction of the anal swab taken from
A.S. during the SANE exam because this was a case of digital penetration—the
allegations were of Peters’ fingers penetrating A.S.’s anus, which would not result
in the presence of semen.

¶14 The postconviction court denied the motion. In denying the motion,
the postconviction court “agree[d] with the analysis set forth by the State that the
defendant has failed to establish under section 974.07(2), Stats., that the evidence
is relevant or that further scientific testing of the evidence would yield a more
probative result.” Thus, the court “incorporate[d] that portion of the State’s
response into its decision by reference.” The court then provided its own detailed
reasoning why DNA testing on the non-sperm fraction of the swab would not have
changed the outcome in this case or made the proceedings more favorable for
Peters.

DISCUSSION

¶15 On appeal, Peters renews his argument for DNA testing pursuant to
WIS. STAT. § 974.07 of the non-sperm fraction of the anal swab and argues that he

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No. 2020AP471-CR

meets the criteria for both mandatory DNA testing and discretionary DNA testing.
He argues that the results from the sperm fraction were “wholly irrelevant”
because this was a case of digital penetration. We disagree.9

¶16 As relevant here, following a conviction for a crime, a defendant
may move for DNA testing of evidence pursuant to WIS. STAT. § 974.07 if:

(a) The evidence is relevant to the investigation or
prosecution that resulted in the conviction[.]

(b) The evidence is in the actual or constructive possession
of a government agency.

(c) The evidence has not previously been subjected to
forensic [DNA] testing or, if the evidence has previously
been tested, it may now be subjected to another test using a
scientific technique that was not available or was not
utilized at the time of the previous testing and that provides
a reasonable likelihood of more accurate and probative
results.

Sec. 974.07(2).

¶17 The applicable statute then separates the request for DNA testing
into two categories: mandatory DNA testing and discretionary DNA testing.
Pursuant to WIS. STAT. § 974.07(7)(a), the court “shall” order DNA testing when:

1. The movant claims that he or she is innocent of the
offense at issue in the motion under sub. (2).

2. It is reasonably probable that the movant would not have
been prosecuted [or] convicted … for the offense at issue in
the motion under sub. (2), if exculpatory [DNA] testing

9
The parties dispute whether our standard of review is de novo or an erroneous exercise
of discretion. See State v. Denny, 2017 WI 17, ¶¶74-75, 373 Wis. 2d 390, 891 N.W.2d 144
(recognizing the erroneous exercise of discretion standard applied in State v. Hudson, 2004 WI
App 99, 273 Wis. 2d 707, 681 N.W.2d 316, yet declining to address the appropriate standard of
review). We do not decide the applicable standard of review because our conclusion remains the
same whether the standard of review is de novo or an erroneous exercise of discretion.

7
No. 2020AP471-CR

results had been available before the prosecution [or]
conviction[.]

3. The evidence to be tested meets the conditions under
sub. (2)(a) to (c).

4. The chain of custody of the evidence to be tested
establishes that the evidence has not been tampered with,
replaced, or altered in any material respect or, if the chain
of custody does not establish the integrity of the evidence,
the testing itself can establish the integrity of the evidence.

¶18 Additionally, the court “may” order DNA testing under WIS. STAT.
§ 974.07(7)(b) if:

1. It is reasonably probable that the outcome of the
proceedings that resulted in the conviction … for the
offense at issue in the motion under sub. (2), or the terms of
the sentence … would have been more favorable to the
movant if the results of the [DNA] testing had been
available before he or she was prosecuted, [or] convicted[.]

2. The evidence to be tested meets the conditions under
sub. (2)(a) to (c).

3. The chain of custody of the evidence to be tested
establishes that the evidence has not been tampered with,
replaced, or altered in any material respect or, if the chain
of custody does not establish the integrity of the evidence,
the testing itself can establish the integrity of the evidence.

¶19 While the parties address additional elements, the dispute focuses on
whether it is reasonably probable that Peters would have been prosecuted or
convicted or that the proceedings would have been more favorable. See WIS.
STAT. § 974.07(7)(a)2.-3. (elements for mandatory testing); § 974.07(7)(b)1.-2.
(elements for discretionary testing). We conclude that it is not reasonably
probable that the requested DNA testing would have changed the outcome in

8
No. 2020AP471-CR

Peters’ case or made the proceedings more favorable for him.10 Thus, Peters fails
to satisfy the requirements for either mandatory or discretionary testing, and we
need not address the remaining elements as this failure is fatal to his request.

¶20 The jury heard extensive testimony from A.S. describing how Peters
entered her apartment without consent, the two fought, and Peters put his fingers
in her anus while he had her pinned to the floor. She described the pain she felt
and how long that pain lasted. The jury also heard testimony from the neighbor
describing the condition A.S. was in that night, and testimony from the nurse with
more details about the injuries she saw during the exam, including injuries to
A.S.’s face as well as redness and an abrasion into her anus.

¶21 Peters focuses on the DNA analyst’s testimony and the testing done
on the anal swab that split the sample into sperm and non-sperm fractions. He
argues that “a prolonged digital assault involving friction sufficient to cause
lasting redness, pain, and an actual injury” should have left behind touch DNA for
testing on the non-sperm fraction, and a result excluding his DNA from the non-
sperm fraction would tend to establish his innocence.

10
We recognize that the standard used to determine “reasonably probable” as found in
WIS. STAT. § 974.07(7)(a)2. and § 974.07(7)(b)1. is an undecided question. See Denny, 373
Wis. 2d 390, ¶81 n.21. “Reasonably probable” may be determined using the test applied in the
context of newly discovered evidence by looking at the old and new evidence and asking whether
the jury “would have a reasonable doubt as to the defendant’s guilt.” See State v. McCallum, 208
Wis. 2d 463, 475, 561 N.W.2d 707 (1997). It may also be determined using the test applied in
the context of ineffective assistance of counsel wherein we ask whether there is “a probability
sufficient to undermine the confidence in the outcome.” See Strickland v. Washington, 466 U.S.
668, 694 (1984). Whether a reasonable probability is determined using the test applied in the
context of newly discovered evidence or using the test applied in the context of a claim of
ineffective assistance of counsel, the result would be the same in this case.

9
No. 2020AP471-CR

¶22 However, the DNA analyst specifically testified that Peters’ DNA
was not found on the anal swab. She also testified that “[t]here was no way to
indicate if the DNA was found from touch DNA or semen specifically.” Indeed,
trial counsel specifically asked the analyst:

Q: So the evidence—that evidence indicates that the
source of the semen on the anal swabs was not Mr. Peters,
but it was somebody else? Can you say that to a reasonable
degree of scientific certainty?

A: I can say the profile developed from the anal swabs was
not consistent with Mr. Peters.

Trial counsel then explained these results to the jury during closing arguments as
there was “no evidence down there implicating” Peters as the source of A.S.’s anal
injury and pain.

¶23 Thus, it is not reasonably probable that Peters would not have been
prosecuted or convicted, or that the outcome of the proceedings would have been
more favorable, had DNA testing been conducted on the non-sperm fraction of the
swab. See State v. Denny, 2017 WI 17, ¶77, 373 Wis. 2d 390, 891 N.W.2d 144.
DNA testing on the non-sperm fraction showing that Peters’ DNA was not present
“would not be particularly compelling,” see id., ¶78, in light of the testimony from
A.S., the neighbor, and the nurse, as well as the testimony from the DNA analyst
who already testified before the jury that Peters’ DNA was absent from the anal
swab and that there is no way to determine what type of cell the DNA profile came
from.

¶24 Furthermore, the jury was already presented with, and rejected, the
defense theory that A.S. was not credible, that her injury was caused by
consensual anal sex, and found Peters guilty in the absence of any DNA evidence
that Peters contributed to the injury. See id., ¶79 (acknowledging that “the jury

10
No. 2020AP471-CR

was aware of the possibility” of the evidence that the DNA testing could have
provided). We see nothing more that DNA testing on the non-sperm fraction
could have provided in this case.

CONCLUSION

¶25 In sum, Peters is not entitled to DNA testing, either mandatory or
discretionary, under WIS. STAT. § 974.07 because he fails to establish that it is
reasonably probable that he would not have been prosecuted or convicted, or that
the outcome of the proceedings would have been more favorable. Accordingly,
Peters fails to meet the requirements of § 974.07(7) and, thus, we affirm the
judgment and the order denying Peters’ postconviction motion.

By the Court.—Judgment and order affirmed.

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

11