State v. James O. Rasmussen

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 5, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP288-CR Cir. Ct. No. 2015CF543

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES O. RASMUSSEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: ROBERT J. WIRTZ, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2021AP288-CR

¶1 PER CURIAM. James O. Rasmussen appeals from a judgment
convicting him of numerous crimes. He contends that the circuit court erred in
denying his motion to exclude certain testimony from child witnesses. He further
contends that the circuit court erroneously exercised its discretion by admitting
other acts evidence against him. We reject Rasmussen’s claims and affirm.

¶2 Rasmussen was convicted following a jury trial of forty-four counts,
which included multiple counts of sexual assault of a child, attempted sexual
assault of a child, child enticement, exposing genitals, and manufacture/delivery of
THC, among others. He was accused of sexually assaulting or attempting to
sexually assault preteen boys after giving them marijuana.

¶3 Prior to trial, Rasmussen moved to exclude testimony from the
State’s child witnesses regarding their identification of marijuana. Citing the
Daubert1 standard for expert witnesses under WIS. STAT. § 907.02(1) (2021-22),2
Rasmussen argued that the testimony was not based upon sufficient facts or data
and was not the product of reliable principles and methods. After a hearing on the
matter, the circuit court denied the motion.

1
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
2
WISCONSIN STAT. § 907.02(1) provides:

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if the testimony is based upon
sufficient facts or data, the testimony is the product of reliable
principles and methods, and the witness has applied the
principles and methods reliably to the facts of the case.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP288-CR

¶4 Also before trial, the State moved for the admission of other acts
evidence against Rasmussen. Specifically, the State sought to introduce internet
search information3 that was found on a cell phone seized from Rasmussen’s
home. The State argued that the information was admissible to show Rasmussen’s
motivation and intent for sexual gratification with young boys. After a hearing on
the matter, the circuit court granted the motion.

¶5 The case proceeded to trial, and the jury found Rasmussen guilty of
the above offenses. The circuit court imposed an aggregate sentence of 203 years
of initial confinement and 62 years of extended supervision. This appeal follows.
Additional facts are set forth below.

¶6 On appeal, Rasmussen first contends that the circuit court erred in
denying his motion to exclude testimony from the State’s child witnesses
regarding their identification of marijuana. Again, he complains that the
testimony did not comport with the Daubert standard for expert witnesses under
WIS. STAT. § 907.02(1).

¶7 The admissibility of opinion evidence rests largely in the circuit
court’s discretion. Simpson v. State, 62 Wis. 2d 605, 609, 215 N.W.2d 435
(1974). We will sustain a discretionary decision if the “court has examined the
relevant facts, applied a proper standard of law, and, using a demonstrated rational
process, reached a conclusion that a reasonable judge could reach.” Schneller v.
St. Mary’s Hosp. Med. Ctr., 162 Wis. 2d 296, 306, 470 N.W.2d 873 (1991).

3
The information consisted of blogs, web searches, video titles, and texts. One of the
blogs was entitled, “Beauty of Boys, a Blog about the Beauty of Youth.” The searches included
such terms as “Young twink boy,” “Pedophile Movies,” “Boys Nude Butt,” “Boy Sex,” and
“Pedo Kids,” among others.

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No. 2021AP288-CR

¶8 Wisconsin law distinguishes between expert opinion testimony,
which is subject to the Daubert standard for expert witnesses under WIS. STAT.
§ 907.02(1), and lay opinion testimony, which is not. Lay opinion testimony is
admissible if it is: (1) “[r]ationally based on the perception of the witness”;
(2) “[h]elpful to a clear understanding of the witness’s testimony or the
determination of a fact in issue”; and (3) “[n]ot based on scientific, technical, or
other specialized knowledge within the scope of a witness under s. 907.02(1).”
WIS. STAT. § 907.01.

¶9 In this case, the circuit court concluded that the testimony at issue
constituted lay opinion testimony, not expert opinion testimony. That is because
the child witnesses’ identification of marijuana—a fact in issue—was rationally
based on their own experiences and observations as opposed to scientific,
technical, or other specialized knowledge. The court explained:

[T]he testimony that’s going to come in through the
children … as to their experience with … using marijuana,
the comments that [Rasmussen] allegedly made to them
about what they were getting, the experience they had with
that, with what they did, with their other experiences
involved in using marijuana not related to [Rasmussen] is --
it’s lay perception.… I understand that the State’s going to
have some experience foundation that they’re going to lay
with these young people, says I used this “X” number of
times, I got this experience, I had this experience. This
person, [Rasmussen], gave me this product, they told me --
told me it was marijuana, I had a similar experience. And
it’s that experience, based on the perception of the witness
and their understanding of what they were doing, which is
acceptable.

… [I]t’s not an expert opinion because they’re not going to
give an opinion that there was -- that there was
tetrahydrocannabinols. They’re not going to go through an
analysis of that .… But I think that it’s sufficient to go to
the jury for these witnesses to give their background and
experience and what their usage of marijuana is and what
happened when they allegedly received what was
represented to them as marijuana from … [Rasmussen], if

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No. 2021AP288-CR

that happened. It’s their observations of their experiences
in life … [s]omewhat similar to people making
observations about the state of someone’s impairment,
drunkenness, or how they feel. It isn’t based on an ethanol
concentration test done by a lab chemist, it’s based on
experiences.

¶10 Reviewing the circuit court’s decision, we are satisfied that it
properly admitted the evidence. The child witnesses’ testimony meets the criteria
for lay opinion testimony under WIS. STAT. § 907.01. Moreover, such testimony
can be used to identify a controlled substance like marijuana. See State v.
Anderson, 176 Wis. 2d 196, 202, 500 N.W.2d 328 (Ct. App. 1993) (recognizing
that identification of a controlled substance can be established by lay experience
based on familiarity through prior use, on-the-scene remarks by another
identifying the substance as a drug, and use, such as peculiar ingestion).
Accordingly, we perceive no error in the denial of Rasmussen’s motion.

¶11 Rasmussen next contends that the circuit court erroneously exercised
its discretion by admitting other acts evidence against him in the form of internet
search information. Rasmussen asserts that the prejudicial effect of the
information substantially outweighed its relevance.

¶12 A circuit court’s decision to admit other acts evidence is a
discretionary one. State v. Gribble, 2001 WI App 227, ¶39, 248 Wis. 2d 409, 636
N.W.2d 488. Again, we will sustain a discretionary decision if the court has
“reviewed the relevant facts, applied a proper standard of law, and using a rational
process, reached a reasonable conclusion.” Id.

¶13 The admissibility of other acts evidence is determined by using a
three-step test: (1) whether the evidence is offered for a permissible purpose

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No. 2021AP288-CR

under WIS. STAT. § 904.04(2);4 (2) whether it is relevant; and (3) whether its
probative value is substantially outweighed by the danger of unfair prejudice.
State v. Sullivan, 216 Wis. 2d 768, 772–73, 576 N.W.2d 30 (1998).

¶14 Here, the circuit court properly applied this test before admitting the
internet search information as other acts evidence. First, the court determined that
the information was offered for the permissible purposes of showing Rasmussen’s
“motivation and intent” regarding young boys.5 Next, the court found that the
information was relevant to the sexual gratification element that the State had to
prove for some of the charged offenses. Finally, the court concluded that, with the
limiting instruction it planned to give the jury, the probative value of the
information outweighed the danger of unfair prejudice.6

¶15 On this Record, we cannot say that the circuit court erroneously
exercised its discretion in admitting the evidence. Any prejudice to Rasmussen
was mitigated by the court’s limiting instruction. See State v. LaCount, 2008 WI
59, ¶23, 310 Wis. 2d 85, 750 N.W.2d 780 (we presume that the jury follows the
court’s instructions). It was further mitigated by the testimony of the State’s
criminal analyst who examined the phone and acknowledged that he could not
“necessarily tell who input th[e] data[.]” Thus, Rasmussen was able to argue to

Permissible purposes include “proof of motive, opportunity, intent, preparation, plan,
4

knowledge, identity, or absence of mistake or accident.” WIS. STAT. § 904.04(2)(a).
5
As the circuit court explained, whatever photos or videos the searches actually
produced was largely irrelevant because, “whether it’s legal or not legal [porn], … it’s the
searching for it that is indicative of one’s motivation and intent.”
6
At trial, the circuit court gave a jury instruction on the other acts evidence. It explained
the limited purpose of the evidence and reminded the jury that the evidence was “not to be used to
conclude that the defendant is a bad person or for that reason is guilty of the offenses or offense
charged.”

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No. 2021AP288-CR

the jury that another person may have entered the searches on his phone. The fact
that the jury still convicted him does not mean that he was improperly prejudiced.

By the Court.—Judgment affirmed.

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

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