State v. Rodney R. Baer ( 2019 )

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.
August 28, 2019
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. 2018AP1469-CR Cir. Ct. No. 2014CF947
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RODNEY R. BAER,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Racine County:
MICHAEL J. PIONTEK, Judge. Affirmed.
Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
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. 2018AP1469-CR
¶1 PER CURIAM. Rodney R. Baer appeals from a judgment
convicting him after a jury trial of two counts of repeated sexual assault of the
same child and two counts of incest. Baer argues that the trial court violated his
constitutional right to present a defense when it disallowed him from presenting
evidence relevant to the children’s motivation to lie. We conclude exclusion of
the evidence was harmless error. We affirm.
¶2 Two of Baer’s daughters, ten-year-old AAB and twelve-year-old
KHB, accused him of having sexual contact and intercourse with them on multiple
occasions. Baer and the girls’ mother, Kelly, are divorced; Baer was the custodial
parent. He contended the girls falsely accused him of the sexual assaults so that he
would lose custody of them and they would be placed with their mother.
¶3 To support that defense, Baer sought to be allowed to question
witnesses, including his former girlfriend, who went by the nickname “Chrissy,”
about the allegation that before the girls made the assault allegations, they
repeatedly sang a song entitled “Get a New Daddy” that they heard a comedy
group perform on YouTube. The lyrical content deals with children lying about
being sexually molested so as to “get a new daddy.” Baer argued that this
evidence was admissible as other-acts evidence to show motive, opportunity, and
knowledge to lie; was admissible as character evidence; or, alternatively, it was
necessary to his defense as a matter of due process.
¶4 At the hearing on the motion, Chrissy testified in making an offer of
proof that KHB and AAB “loved singing,” that they sang a number of songs
“often,” and that she heard them sing “Get a New Daddy” “about three times.”
The court did not consider the song as other-acts evidence but agreed that KHB’s
and AAB’s knowledge of it was a specific instance of conduct admissible as
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No. 2018AP1469-CR
character evidence that could be used to attack their credibility under WIS. STAT.
§ 906.08(2) (2017-18).1 The court cautioned, however, that Baer would be bound
by their answer: “If the kids say they don’t recall or didn’t sing that song, that’s
it.” The court also said it would not allow him to go into the lyrics.
¶5 AAB and KHB testified at trial about the assaults. On cross-
examination, Baer asked AAB: “Did your sister, [KHB], ever show you funny
videos on the computer?” AAB responded: “No.” Baer then asked: “Do you
know a song called ‘Get a New Daddy?’” The court interrupted, stating that, per
its earlier ruling, the issue could not be explored further. It explained that
continued questioning would be unduly prejudicial and of minimal relevance to
Baer’s defense theory, as it focused solely on a single song, when the ten- and
twelve-year-old sisters likely knew and sang many songs. The court did not allow
Baer to question AAB outside the presence of the jury.
¶6 Kelly also testified. She said that before the girls made their
allegations, she had told them she wanted them to live with her, and they said they
wanted to live with her. Other witnesses included two police officers who
investigated the assault reports, the forensic interviewer at the Child Advocacy
Center, the advanced practice nurse practitioner who performed the girls’
postassault physical examinations, and Baer himself.
¶7 The jury found Baer guilty. The court sentenced him to twenty-five
years’ initial confinement (IC) followed by ten years’ extended supervision (ES)
for one count of repeated sexual assault of a child, and concurrent terms of seven
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2018AP1469-CR
years’ IC and three years’ ES for the remaining three counts of repeated sexual
assault of a child and two counts of incest. Baer consistently maintained his
innocence, even through sentencing. This appeal followed.
¶8 Baer argues the trial court erroneously exercised its discretion by
excluding evidence about “Get a New Daddy” and its lyrics. The State responds
that it was well within the court’s discretion to exclude the evidence as irrelevant
and unfairly prejudicial, and, even if relevant, it had minimal probative value. We
agree with Baer that the evidence should not have been excluded. We conclude,
however, that the error was harmless.2
¶9 We will uphold a trial court’s exercise of discretion when the record
shows that the court considered the facts and applicable law and arrived at a
conclusion based on logic and proper legal standards, even if its conclusion is one
this court might not have reached. See Johnson v. Johnson, 225 Wis. 2d 513,
516, 593 N.W.2d 827 (Ct. App. ). The discretionary decision whether to admit
evidence is subject to the harmless error rule. State v. Hunt, 2014 WI 102, ¶21,
360 Wis. 2d 576, 851 N.W.2d 434. The violation of a defendant’s right to present
a defense also is subject to a harmless-error analysis. State v. Kramer, 2006 WI
App 133, ¶26, 294 Wis. 2d 780, 720 N.W.2d 459. Whether an error is harmless
presents a question of law we review de novo. Hunt, 360 Wis. 2d 576, ¶21.
2
The State contends Baer is judicially estopped from arguing that the song was
admissible as other-acts evidence because he convinced the trial court to admit it as character
evidence. Indeed, despite filing what he denominated a “motion to admit ‘other-acts’ evidence,”
Baer stated at the motion hearing, “It’s not other[-]acts evidence…. It is character evidence.”
Given the lack of clarity as to the grounds for the motion, we choose to proceed under a harmless-
error analysis.
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No. 2018AP1469-CR
¶10 For an error to be harmless, the beneficiary of the error—here, the
State—must prove “beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” State v. Stuart, 2005 WI 47, ¶40, 279
Wis. 2d 659, 695 N.W.2d 259 (citation omitted). Error is harmless if it is “clear
beyond a reasonable doubt that a rational jury would have found the defendant
guilty absent the error.” State v. Harvey, 2002 WI 93, ¶49, 254 Wis. 2d 442, 647
N.W.2d 189 (citation omitted). Factors relevant to a harmless-error analysis
include “the importance of the erroneously admitted or excluded evidence; the
presence or absence of evidence corroborating or contradicting the erroneously
admitted or excluded evidence; the nature of the defense; the nature of the State’s
case; and the overall strength of the State’s case.” Hunt, 360 Wis. 2d 576, ¶27.
¶11 Excluding evidence about the song “Get a New Daddy” was
harmless because it would have been cumulative to other evidence showing a
possible motive to falsely accuse their father. Baer and his ex-wife had a
contentious relationship in regard to custody of the children.3 Kelly testified that
she and the girls mutually wanted her to have custody; Baer testified that he knew
the girls wanted to live with Kelly. The jury easily could have deduced without
hearing the particular song lyrics that, even at ten and twelve, the girls would
know sexual assault allegations would result in a change of custody.
¶12 On the flip side, the song evidence also was harmless because it
would not have shored up Baer’s claim that the girls were lying. Chrissy, who
3
For example, Baer testified that when the girls misbehaved, he grounded them and did
not allow them to have visitation with their mother. Kelly testified that she threatened to call the
sheriff if Baer did not let her see her children and filed a court action seeking placement of her
children shortly after the girls made the sexual-abuse allegations.
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No. 2018AP1469-CR
gave an offer of proof on “Get a New Daddy,” said the girls “loved singing,” sang
many different songs, and watched other videos by the same comedy group. It
strains credulity that the girls would sing, in front of their father’s girlfriend, a
song about falsely accusing a parent of sexual abuse if they were planning to do
just that—and then wait months to make the disclosures.
¶13 This was a credibility battle between Baer and his daughters. There
were no witnesses, and, due to the passage of time, no DNA evidence or evidence
of physical injury. Witness credibility and the weight of the evidence is for the
jury, State v. Poellinger, 153 Wis. 2d 493, 504, 451 N.W.2d 752 (1990), just as is
sorting out inconsistencies and contradictions in witnesses’ testimony, see
Kohlhoff v. State, 85 Wis. 2d 148, 154, 270 N.W.2d 63 (1978). In finding Baer
guilty on all counts, the jury necessarily found him less credible. Contradictory
testimony between witnesses does not render the girls’ testimonies incredible as a
matter of law. Evidence that AAB and KHB sang a variety of songs, including
one about falsely accusing a parent four or five months before they finally
disclosed Baer’s abuse, would not have changed the verdict.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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