State v. Ryan R. Turk

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.
October 11, 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. 2022AP1372-CR Cir. Ct. No. 2020CF59

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RYAN R. TURK,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Washington
County: JAMES G. POUROS, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2022AP1372-CR

¶1 PER CURIAM. Ryan R. Turk appeals a judgment of conviction,
following a jury trial, of first-degree sexual assault of a child under the age of
thirteen. Turk argues that the circuit court erroneously exercised its discretion when
it admitted a TikTok video into evidence and that the evidence was insufficient to
support his conviction. We affirm.

¶2 Turk’s twelve-year-old niece “Veronica”1 reported that he had
sexually assaulted her numerous times during a five-year period that started when
she was six years old and ended when she was eleven years old. As relevant to this
appeal, the State charged Turk with first-degree sexual assault of a child under the
age of thirteen.

¶3 At trial, Veronica, who was thirteen at the time of the trial, testified
Turk would ask her for favors, which meant putting her hand on his penis and
moving her hand around. Veronica said that sometimes her mouth would go on his
penis, and once he tried to put his mouth on her vagina. Veronica testified the
incidents happened at her grandmother’s house, starting when she was six or seven
years old, “whenever I would go over there. And I was over there pretty often.”
Veronica explained that once while she was in elementary school, Turk put blankets
over her head and tried to insert his fingers into her vagina, and it hurt her. She said
that another time he propped her up on the bathroom sink and tried to put his penis
into her vagina and that it hurt her. On another occasion, Turk tried again to put his
penis into her vagina, and it hurt even more.

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use a
pseudonym when referring to the victim in this case.

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

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No. 2022AP1372-CR

¶4 Shortly thereafter, Veronica told her grandmother (Turk’s mother)
about what Turk had been doing to her, but her grandmother just prayed and cried
and told her not to tell her school counselor. Veronica said that her grandmother
told her uncle, Eric Turk (Turk’s brother), and that Eric asked her about Turk
sexually assaulting her. She told Eric about the sexual favors. Veronica also asked
her cousin if Turk had done anything similar to her, and she told Turk’s girlfriend
Meghan and his friend J.J. about what Turk had done.

¶5 Eventually, Veronica told Turk’s friend, Elena, about Turk sexually
assaulting her. Elena told Veronica she needed to tell someone and drove Veronica
to Veronica’s father’s house. Her father’s fiancé immediately called police, and
they took Veronica to the police station, where Veronica disclosed the assaults to
police.

¶6 Veronica testified she made a TikTok video to share her story with
other people who had gone through a similar experience. She later deleted the video.
On cross-examination, Veronica admitted she told a police officer that she posted
the TikTok video online because “it was the trendy thing to do.” Detective
Lichtensteiger described the TikTok video. He said Veronica is the only person in
the video, is wearing dark clothes, has white powder on her hands, and is placing
handprints on her clothes as text appears on the screen. The State moved to play the
TikTok video at trial, and Turk objected.

¶7 Outside the presence of the jury, the State played the video for the
court. Turk objected to the video on the basis that the video was hearsay,
cumulative, and unfairly prejudicial. The State argued the video was admissible as
a prior consistent statement and was offered to rebut the defense’s fabrication
allegations. The State also pointed out that defense counsel had referred to the

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No. 2022AP1372-CR

TikTok video in his opening statement and that it was discussed at length during
Veronica’s and Lichtensteiger’s testimony. The State asserted that the video was
admissible under the best evidence rule and the rule of completeness.

¶8 The circuit court admitted the video. The court concluded that the
video was “clearly” admissible “under [WIS. STAT. §] 908.01(4)(a) as a prior
statement of a witness.” The court said that Veronica “has testified. She is subject
to cross examination. She’s been cross examined.” The court also noted “[t]he
whole subject of TikTok was brought up by” defense counsel, who “opened the door
so that this is permissible.” Finally, the court determined the video was “clearly
relevant under [WIS. STAT. §] 904.03.” The court conducted the balancing test and
reasoned that the video’s relevance was not “outweighed by any of those factors
within [§] 904.03.”

¶9 The video was played for the jury. Lichtensteiger testified that some
of the words that appeared on the screen were “So … my uncle would sexually
assault/rape me every[ time] I saw … him, which was at least once a week…. He
told me not to tell anyone or he would do the same thing to my two little sisters. So
I kept QU.”

¶10 Turk elected not to testify. Veronica’s grandmother (Turk’s mother),
Turk’s friend J.J., Veronica’s cousin, and Veronica’s uncle Eric (Turk’s brother)
testified for the defense, and all denied that Veronica told them about Turk sexually
assaulting her. On cross-examination, Eric admitted he told Lichtensteiger that:
Turk and Veronica would often lock themselves in a room together; that Eric did
not know what they were doing; and that maybe they “did inappropriate things.”
Eric also acknowledged he had been convicted of a crime for lifting up Veronica’s
nightgown while she was sleeping and taking nine photographs of her groin area,

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No. 2022AP1372-CR

which was covered by only a swimsuit bottom. As relevant, the jury found Turk
guilty of first-degree sexual assault of a child under the age of thirteen.

¶11 On appeal, Turk first argues the circuit court erroneously admitted the
TikTok video into evidence. Whether to admit evidence is subject to a circuit
court’s discretion. State v. Dobbs, 2020 WI 64, ¶27, 392 Wis. 2d 505, 945 N.W.2d
609. Turk argues the video was unduly prejudicial and should have been excluded
pursuant to WIS. STAT. § 904.03. He contends the video was very dramatic because
Veronica appeared to be crying in the video and the accompanying music added “a
haunting sound.” He also argues that no one testified about one of the statements
that flashed across the screen during the video—specifically that Veronica suffered
from but was getting help for her depression. Turk contends there was no reason to
play the video for the jury—Veronica and police had already testified, the video was
cumulative, and the only reason the State wanted to play the video was to elicit
sympathy for Veronica.

¶12 We disagree and conclude the circuit court appropriately exercised its
discretion when it admitted the video into evidence. As the circuit court observed,
the defense questioned Veronica’s credibility and brought up the video first in his
opening statement. Veronica testified at trial and was subject to cross-examination.
See WIS. STAT. § 908.01(4)(a)2.2 The video was consistent with Veronica’s
testimony, and the State offered the video to rebut the defense’s allegations of
fabrication. See id. The video was properly admitted into evidence pursuant to
§ 908.01(4)(a) as a prior consistent statement of a witness. Additionally, the circuit

2
WISCONSIN STAT. § 908.01(4) provides, in relevant part, that a statement is not hearsay
if “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is: … Consistent with the declarant’s testimony and is offered to rebut
an express or implied charge against the declarant of recent fabrication or improper influence or
motive[.]” Sec. 908.01(4)(a)2.

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No. 2022AP1372-CR

court appropriately exercised its discretion when, after viewing the video and
considering the State’s offer for the video, it determined the video’s probative value
was not outweighed by the danger of unfair prejudice. See WIS. STAT. § 904.03.

¶13 Turk next argues the evidence was insufficient to support his sexual
assault conviction. He contends the entire case hinged on Veronica’s credibility.
Turk points out that before she disclosed the assaults to police, Veronica testified
that she discussed Turk’s actions with her grandmother, her uncle Eric, her cousin,
and Turk’s friend J.J. Turk emphasizes that all these witnesses testified they were
unaware of the alleged sexual assaults and Veronica never disclosed any sexual
abuse to them. Veronica’s grandmother (Turk’s mother) also testified Veronica had
a reputation for being untruthful. Turk argues this evidence casts serious doubt on
Veronica’s testimony, and therefore the evidence was insufficient to sustain his
conviction.

¶14 When reviewing the sufficiency of the evidence to support a
conviction, 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). The trier of fact is the sole arbiter of the credibility of witnesses
and alone is charged with the duty of weighing the evidence. Id. at 506. “When
more than one inference can reasonably be drawn from the evidence, the inference
which supports the trier of fact’s verdict must be the one followed on review unless
the evidence is incredible as a matter of law.” See State v. Below, 2011 WI App 64,
¶4, 333 Wis. 2d 690, 799 N.W.2d 95. “It is exclusively within the trier of fact’s
province to decide which evidence is worthy of belief, which is not, and to resolve
any conflicts in the evidence.” Id.

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No. 2022AP1372-CR

¶15 Here, it was the province of the jury to determine whether to believe
Veronica’s testimony or not. As evidenced by the guilty verdict, the jury determined
Veronica was credible. The jury chose not to believe the testimony from Turk’s
other family members and his friend. Turk has not established that Veronica’s
testimony was inherently incredible. See Below, 333 Wis. 2d 690, ¶4. We conclude
the evidence was sufficient to support Turk’s conviction for first-degree sexual
assault of a child under the age of thirteen.

By the Court.—Judgment affirmed.

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

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