State v. Sanchez Wilson

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 25, 2022
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. 2021AP1424-CR Cir. Ct. No. 2019CF1411

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SANCHEZ WILSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.

Before Donald, P.J., Dugan and White, 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. 2021AP1424-CR

¶1 PER CURIAM. Sanchez Wilson appeals a judgment of conviction
entered after a jury found him guilty of first-degree sexual assault of a child, first-
degree reckless injury while using a dangerous weapon, and possessing a firearm
while a felon. D.S.M., a six-year-old girl, was the victim of both the sexual assault
and the reckless injury. On appeal, Wilson argues that the circuit court erred by
permitting the jury to hear evidence that D.S.M.’s oral swab, taken approximately
twelve hours after the alleged sexual assault, revealed the presence of DNA from an
unidentified male. We reject Wilson’s arguments. Therefore, we affirm.

Background

¶2 D.S.M. told her mother on March 29, 2019, that Wilson, an adult
member of the household, had put his penis into D.S.M.’s mouth that morning
during breakfast. While D.S.M. was talking to her mother about the assault, Wilson
began arguing with another person, and during a subsequent exchange of gunfire,
he shot D.S.M.

¶3 D.S.M. was brought to the hospital. Her mouth was swabbed for DNA
approximately twelve hours after the alleged assault. The swab revealed the
presence of male DNA, the source of which could not be identified with any greater
specificity. Wilson moved to exclude that DNA evidence as irrelevant and unfairly
prejudicial, but the circuit court denied the motion.

¶4 At trial, a DNA analyst, Emily Schmitt, testified that she found male
DNA on the oral swab from D.S.M.’s mouth and that foreign DNA can remain in a
mouth for approximately twenty-four hours. Schmitt went on to testify that the
limited amount of DNA present on the swab did not permit her to identify the male
person or persons who sloughed off the DNA, or to determine the biological

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No. 2021AP1424-CR

material that might have carried the DNA, nor was the amount of DNA sufficient to
allow further testing.

¶5 The jury also heard testimony from numerous other witnesses.
D.S.M. described how she was sexually assaulted and then shot. Members of her
family testified about her sexual assault disclosure on March 29, 2019, and the
surrounding events, including the subsequent shooting. Wilson testified on his own
behalf and denied sexually assaulting D.S.M., but he admitted that a gun in his hand
discharged that day, and he conceded that he apparently shot D.S.M. as a result.
Wilson additionally stipulated that he had previously been convicted of a felony and
that the conviction had not been reversed as of the day of the shooting.

¶6 The jury found Wilson guilty of the three charges he faced, namely,
first-degree sexual assault of a child, first-degree reckless injury while using a
dangerous weapon, and possessing a firearm while a felon. He appeals, challenging
the circuit court’s decision to admit the DNA evidence developed from D.S.M.’s
oral swab and asserting that admission of that evidence deprived him of a fair trial.

Discussion

¶7 The decision to admit or exclude evidence rests in the circuit court’s
discretion. See State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). Our
review is highly deferential. See State v. Shomberg, 2006 WI 9, ¶11, 288 Wis. 2d
1, 709 N.W.2d 370. We will uphold a discretionary decision admitting or excluding
evidence if the circuit court “examined the relevant facts, applied a proper legal
standard, and, using a demonstrated rational process, reached a reasonable
conclusion.” State v. Gutierrez, 2020 WI 52, ¶21, 391 Wis. 2d 799, 943 N.W.2d
870 (citation omitted). Conversely, “[w]e will not find an erroneous exercise of

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No. 2021AP1424-CR

discretion if there is a rational basis for a circuit court’s decision.” Shomberg, 288
Wis. 2d 1, ¶11 (citation omitted).

¶8 Well-settled principles guide 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). Relevant
evidence is evidence that tends “to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable[.]”
See WIS. STAT. § 904.01 (2019-20).1 Relevant evidence is generally admissible, see
WIS. STAT. § 904.02, but relevant evidence may be excluded when, inter alia, its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. See WIS. STAT. § 904.03.

¶9 In this case, Wilson asserts that the circuit court erroneously exercised
its discretion by admitting evidence that male DNA from an unidentifiable source
was found in D.S.M.’s mouth. He contends that the evidence was irrelevant and
that any relevance the evidence might arguably have had was “greatly outweighed”
by the risk of unfair prejudice and misleading the jury.

¶10 The circuit court considered Wilson’s claim that the DNA evidence
developed from the oral swab was irrelevant because DNA analysis could not
determine the source of the DNA or exclude Wilson as a contributor. The circuit
court determined, however, that evidence about DNA analysis would address jurors’
expectations that sexual assault investigations will include DNA testing. The circuit
court observed that evidence of such testimony is often presented “even when the
test is negative,” to explain the limits of such evidence and to clarify the reasons

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

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No. 2021AP1424-CR

why definitive DNA evidence was not found. Thus, the circuit court determined
that the DNA evidence was relevant to the jury’s assessment of the police
investigation into D.S.M.’s claim.

¶11 On appeal, Wilson asserts that the circuit court’s analysis of relevancy
lacked a “legal basis.” To the contrary, this court has previously recognized that
investigative steps, including swabbing and testing items of evidence, may be
relevant to an assessment of the criminal investigation. See State v. DelReal, 225
Wis. 2d 565, 575, 593 N.W.2d 461 (Ct. App. 1999). Discussing negative gunshot
residue test results in DelReal, we concluded that the fact of the testing and the fact
that the test results were negative carried “some weight” in regard to the quality of
the investigation and the credibility of its lead investigator. See id. Other courts
have reached a similar conclusion. See Chaparro v. State, 497 P.3d 1187, 1194
(Nev. 2021) (holding that “[i]nconclusive results ... may be relevant to show the jury
the thoroughness of the steps taken by law enforcement in order to investigate the
victim’s account”); Clark v. State, 96 A.3d 901, 907 (Md. Ct. Spec. App. 2014)
(explaining that inconclusive DNA test results may be relevant to show that the State
performed a DNA test because, “without that evidence the defense could argue that
the State had not performed a DNA analysis ... that, if performed, could have ruled
out the [accused]”).

¶12 Indeed, in this case, Wilson’s closing argument urged the jury to
consider whether certain questions gave it pause, including: “why wasn’t
[Wilson’s] DNA found? Why wasn’t there sperm found in [D.S.M.’s] mouth?” The
DNA analysis was evidence that the jury could use to assess those inquiries and to
determine whether the absence of conclusive DNA results reflected an
untrustworthy investigation or merely demonstrated the limits of DNA analysis.

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No. 2021AP1424-CR

Accordingly, we are satisfied that the circuit court properly exercised its discretion
in analyzing the relevance of the DNA evidence.

¶13 Moreover, the record reflects a second basis on which to conclude that
the DNA evidence was relevant. See Gutierrez, 391 Wis. 2d 799, ¶27 (explaining
that a reviewing court will search the record for reasons to uphold a circuit court’s
exercise of discretion). Because D.S.M. alleged that Wilson put his penis in her
mouth, the discovery of male DNA on her oral swab was relevant to an assessment
of whether Wilson sexually assaulted her in the way that she claimed.

¶14 Our conclusion in this regard follows from the application of familiar
rules governing relevancy determinations. Evidence is relevant if it has “any
tendency” to make a fact of consequence more or less probable. See WIS. STAT.
§ 904.01. The threshold is low. See State v. Richardson, 210 Wis. 2d 694, 707,
563 N.W.2d 899 (1997). Thus, “[a]ny tiny increase or decrease in the probability
of a fact of consequence ‘does the trick,’ no matter how slightly incremental.” State
v. Sarfraz, 2014 WI 78, ¶42 n.8, 356 Wis. 2d 460, 851 N.W.2d 235 (citation
omitted). Here, medical personnel swabbed D.S.M.’s mouth for DNA
approximately twelve hours after Wilson allegedly put his penis in D.S.M.’s mouth.
Expert testimony established that foreign DNA may remain in a mouth for up to
twenty-four hours. Discovery of male DNA in D.S.M.’s mouth during the twenty-
four-hour period following the alleged assault is therefore consistent with D.S.M.’s
allegation. We readily conclude that such a discovery tends to make that allegation
more probable, even though scientific testing could not identify the source of the
DNA.

¶15 We observe that the Nebraska Supreme Court recently concluded that
evidence of male DNA on a sexual assault victim’s genital area was relevant even

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No. 2021AP1424-CR

though the DNA analyst could not identify the person who deposited that DNA. See
State v. Wood, 966 N.W.2d 825, 857-58 (Neb. 2021). The Wood court explained
that the male DNA increased the probability that the victim truthfully described a
sexual assault involving her genital area. See id. Similarly here, the presence of
male DNA on D.S.M.’s oral swab contributed to the probability that D.S.M. made
a truthful accusation even though DNA analysis did not show that Wilson was the
source of the male DNA.

¶16 We turn, then, to the question of whether the circuit court reasonably
balanced the probative value of the DNA evidence against the danger of unfair
prejudice. See WIS. STAT. § 904.03; see also Gutierrez, 391 Wis. 2d 799, ¶22. In
resolving that question, we keep in mind that “[t]he standard for unfair prejudice is
not whether the evidence harms the opposing party’s case[.]” See State v. Payano,
2009 WI 86, ¶89, 320 Wis. 2d 348, 768 N.W.2d 832 (citation omitted). Rather:

Unfair prejudice results when the proffered evidence has a
tendency to influence the outcome by improper means or 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.

Id. (citation omitted). A party contending that relevant evidence should be excluded
as unfairly prejudicial must show that the probative value of that evidence was
“substantially outweighed” by the danger of unfair prejudice. See Gutierrez, 391
Wis. 2d 799, ¶22 (citation omitted).

¶17 According to Wilson, the DNA evidence at issue here unfairly
prejudiced him because “the jury could have been misled into thinking that the
unidentified male DNA was Wilson’s and/or infer that the unidentified male DNA

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No. 2021AP1424-CR

could have only been deposited from the alleged sexual assault.” Wilson’s concerns
are not supported by the record.

¶18 The circuit court determined in its pretrial ruling that the probative
value of the DNA evidence would not be outweighed by the danger of unfair
prejudice because the evidence would be limited and the defense would be able to
explore the various innocuous reasons that foreign DNA might be found in D.S.M.’s
mouth. The record shows that, in fact, Schmitt testified at trial that she was “not
able to draw any further conclusions” beyond her determination that a small amount
of male DNA was present on D.S.M.’s oral swab. Schmitt went on to confirm that
she did not know who deposited the male DNA, could not determine the biological
source, and that the amount of DNA present was not suitable for further testing. She
also conceded that male DNA could have transferred into D.S.M.’s mouth during
medical treatment or through contact with D.S.M.’s brothers. Under the facts here,
the circuit court could reasonably conclude that the DNA evidence would not
improperly influence the outcome of the trial because the jury would not
misunderstand the probative value of the evidence.

¶19 Wilson, however, directs our attention to Gutierrez, contending that
the opinion in that case mandates reversal here. In Gutierrez, our supreme court
upheld a circuit court’s discretionary decision to exclude evidence of male DNA
that was found on a sexual assault victim when the source of the DNA was not
otherwise identified. Id., 391 Wis. 2d 799, ¶¶20, 27. Wilson lists various factors
that the circuit court in Gutierrez considered when excluding the DNA evidence.
Wilson views the considerations as similar in his case and concludes that the
outcome in the two cases should be the same.

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No. 2021AP1424-CR

¶20 Wilson misunderstands the thrust of Gutierrez. In that case, like this
one, the circuit court was required to determine whether, under the particular facts
before it, the probative value of DNA evidence was substantially outweighed by
competing considerations. See id., ¶¶21-27. That case, like this one, required a
reviewing court later to examine the circuit court’s analysis and assess whether it
reflected a proper exercise of discretion. See id., ¶20. The standard of review in
that case, like the standard of review here, required the appellate court to defer to
the circuit court’s determination if the circuit court reached a reasonable conclusion
using a demonstrated rational process. See id., ¶21.

¶21 As Gutierrez instructs, this court has examined the circuit court’s
exercise of discretion. We are satisfied that the circuit court properly conducted the
applicable balancing test and reasonably concluded that the DNA evidence offered
here was relevant and should be admitted because its probative value was not
substantially outweighed by competing concerns. While this court might have
exercised discretion differently, this court “may not substitute its discretion for that
of the circuit court.” Id., ¶27 (citation omitted). Accordingly, we affirm the
decision of the circuit court.2

By the Court.—Judgment affirmed.

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

2
The State argues that if the circuit court erred in admitting the DNA evidence, then the
error was harmless. Because we conclude that the circuit court properly exercised its discretion,
we will not consider that argument. See State v. Hughes, 2011 WI App 87, ¶14, 334 Wis. 2d 445,
799 N.W.2d 504 (explaining that we resolve cases on the narrowest possible ground).

9