State v. Robert C. Stryker ( 2021 )

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.
December 29, 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. 2020AP1482-CR Cir. Ct. No. 2015CF985
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ROBERT C. STRYKER,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Waukesha County: RALPH M. RAMIREZ and JENNIFER R. DOROW, Judges.
Affirmed.
Before Gundrum, P.J., Neubauer and Reilly, 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. 2020AP1482-CR
¶1 PER CURIAM. Robert C. Stryker, pro se, appeals a judgment of
conviction for first-degree sexual assault of a child and an order denying his
motion for postconviction relief.1 Stryker argues the circuit court erroneously
denied his motion to admit at trial prior untruthful allegations of sexual assault by
the victim and her mother. He also argues the court erroneously denied his motion
for a mistrial after “Guardians of the Children” motorcycle club members
accompanied the victim through public areas of the courthouse during the trial.
We reject his arguments and affirm.
BACKGROUND
¶2 Stryker was charged in August 2015 with one count of first-degree
sexual assault of a child. In July 2015, Jennifer reported to her adoptive mother,
Melanie, that approximately one year earlier—when Jennifer was six years old—
Stryker had put his hand in her pants and touched her private area. 2 Jennifer told
Melanie that the assault occurred while she was at Stryker’s residence watching a
movie with his children. Melanie took Jennifer to the Waukesha Police
Department, where Jennifer was interviewed by police. A forensic interview with
a social worker was conducted the following day. Jennifer repeated her
allegations during the interview and at trial.
1
By order dated October 21, 2020, this court granted a motion to withdraw filed by
Stryker’s appointed appellate counsel. The Honorable Ralph M. Ramirez presided over the trial
proceedings. The Honorable Jennifer R. Dorow presided over proceedings related to Stryker’s
postconviction motion.
2
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2019-20), we refer to the
victim and her family using pseudonyms. All references to the Wisconsin Statutes are to the
2019-20 version unless otherwise noted.
2
No. 2020AP1482-CR
¶3 Stryker filed two pretrial evidentiary motions at issue here. The first
sought to admit three instances of other-acts evidence on the theory that Melanie
was, in the words of a child protective services (CPS) case worker, “hyper vigilant
regarding sexual abuse.” The first incident, known as the “bus driver incident,”
involved an unsubstantiated report by Melanie to CPS in January of 2013 that
Jennifer had been sexually assaulted by a bus driver on the way home from
school.3 The second incident, known as the “neighborhood boy incident,”
occurred four months prior to Jennifer’s accusation against Stryker, when Melanie
reported that a male juvenile had sexually assaulted a neighborhood child. The
third incident, also from 2013, involved a police report by Melanie that a man
from Africa was engaging in the internet solicitation of one of her other children.
Police did not pursue charges relating to any of those reported incidents.
¶4 Additionally, Stryker filed a motion seeking to admit at trial prior
untruthful allegations of sexual assault by Jennifer. In addition to again seeking
the admission of evidence regarding the bus driver incident, Stryker sought to
admit evidence that, during that investigation, Jennifer had told a social worker
that her brother had touched her private parts. Melanie declined to have police
investigate that allegation and offered a nonsexual explanation for Jennifer’s
statement. The circuit court concluded none of the proffered evidence was
admissible and denied both motions.
¶5 At the beginning of Stryker’s trial, his attorney raised an issue
regarding members of the “Guardians of the Children” motorcycle club sitting in
the public gallery behind the prosecutor’s table. The group members wore
3
Additional details regarding this incident will be provided below.
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No. 2020AP1482-CR
sleeveless leather vests displaying a large circular emblem with the group name
and logo, which includes a winged shield with an unbalanced scale. The circuit
court stated any patches or emblems were not visible from the bench, and it
declined to exclude members of the public or require anyone to change clothing at
that time.
¶6 Upon returning from the first day’s lunch recess, Stryker’s attorney
requested a mistrial. He represented to the circuit court that he had witnessed
Guardians of the Children members escorting Jennifer through the cafeteria to the
front of the food line, in front of some jurors. He further represented that his
research into the group revealed that they advocate for children and “serve in an
intimidation role.”
¶7 The prosecutor, too, stated that he had witnessed some of the
interaction between Jennifer and the advocacy group and was “a little troubled” by
what he saw. However, he responded that a mistrial was not warranted because he
had advised Melanie that Jennifer should not be interacting with the group in the
presence of the jury and escorted Jennifer out of the cafeteria and back to the
prosecutor’s office. The court denied the mistrial motion but stated it would
remain “keenly aware and watchful of any problems or concerns.”
¶8 The jury found Stryker guilty of first-degree sexual assault of a child
by sexual contact. After sentencing and the appointment of postconviction
counsel, Stryker filed a postconviction motion seeking a new trial. As relevant
here, the motion argued the circuit court had erroneously exercised its discretion
when denying Stryker’s motion to admit evidence of the bus driver incident and
when denying his mistrial motion. The court denied the motion. Stryker now
appeals.
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No. 2020AP1482-CR
DISCUSSION
I. Admissibility of Prior Allegations of Sexual Misconduct
¶9 As an initial matter, the parties dispute what instances of alleged
prior misconduct may be considered on appeal. Stryker argues evidence regarding
the bus driver and neighborhood boy incidents were admissible as other-acts
evidence “to provide context and motive for [Jennifer]’s accusation” against
Stryker and to “show [Melanie]’s plan and intent in making the report.” He also
argues Jennifer’s allegation against her brother during the investigation of the bus
driver incident should have been allowed at trial as evidence of a prior untruthful
allegation of sexual assault under WIS. STAT. § 972.11(2)(b)3. Finally, he asserts
evidence of all three prior allegations should have been allowed at trial based on
his constitutional right to present a defense.
¶10 The State responds that Stryker has forfeited his arguments
regarding all prior allegations except the bus driver incident by failing to raise
them in his postconviction motion. The paragraph of the case the State relies on,
Townsend v. Massey, 2011 WI App 160, ¶25, 338 Wis. 2d 114, 808 N.W.2d 155,
does not establish that a defendant must re-raise previously filed evidentiary
motions in a postconviction motion to obtain appellate review. Rather, the
forfeiture inquiry is “whether a legal argument or theory was raised before the
circuit court, as opposed to being raised for the first time on appeal in a way that
would ‘blindside’ the circuit court.” Id. (citation omitted).
¶11 Stryker adequately raised his arguments in the circuit court. We
agree with the State, however, that his postconviction counsel conceded that
evidence concerning the neighborhood boy incident was properly deemed
inadmissible. In the course of advancing arguments regarding the bus driver
5
No. 2020AP1482-CR
incident, counsel stated: “[I]t’s an interesting sort of … dilemma that a victim’s
mother who had made multiple prior false accusations, which I think and I agree
that the Court was correct in denying those but they informed … his decision
regarding this bus driver allegation ….” As a result, even if the court’s evidentiary
ruling regarding the neighborhood boy incident was erroneous—a matter on which
we reach no conclusion—we decline to review the invited error. See State v.
Freymiller, 2007 WI App 6, ¶15, 298 Wis. 2d 333, 727 N.W.2d 334.4
¶12 We turn, then, to the bus driver incident. According to Stryker’s
motion, on January 23, 2013, Melanie reported to police that Jennifer, then four
years old, arrived home approximately twenty minutes late from school and said
the “bus teacher” had her play “pockets.” Melanie reported that when asked to
play “pockets,” Jennifer started taking off her pants. Melanie later concluded that
“pocket” meant “penis,” and a forensic interview was conducted with Jennifer.
According to police records, during the interview it was clear that Jennifer did not
understand the questioning, and the only information Jennifer provided regarding
any type of sexual behavior was that her brother had seen her private parts and had
touched her there.
¶13 Police interviewed the bus driver, who adamantly denied any sort of
sexual contact with Jennifer, reported that there was another student on the bus at
the time, and suggested that police check the bus GPS records. GPS records
disproved Melanie’s claim that Jennifer had been dropped off twenty minutes late
4
The State frames the forfeiture argument in terms of judicial estoppel. We reach no
conclusion regarding the applicability of that doctrine, which applies when a litigant takes
inconsistent positions in judicial proceedings. See State v. Michels, 141 Wis. 2d 81, 414 N.W.2d
311 (Ct. App. 1987).
6
No. 2020AP1482-CR
or that the bus had been parked off-course. Police then closed their investigation,
finding the allegations unsubstantiated. In the interim, Melanie had taken Jennifer
for a sexual assault examination, and she made another report about the incident
approximately one month after the investigation had been closed.
¶14 Presented with this evidence, the circuit court applied the
admissibility criteria for other-acts evidence set forth in State v. Sullivan, 216
Wis. 2d 768, 576 N.W.2d 30 (1998). The court observed the evidence was being
proffered to demonstrate that Jennifer was making a report of sexual assault
against Stryker that was incited by Melanie’s actions on previous occasions and to
demonstrate that Melanie had a propensity for reporting sexual assaults. The court
found this purpose was not acceptable, nor was the evidence relevant, given that
Jennifer had confirmed Melanie’s accusation against Stryker, unlike Melanie’s
report about the bus driver.
¶15 The circuit court determined, however, that the bus driver incident
could become admissible during trial if facts developed that showed Jennifer had
been prompted by her mother to make the allegation against Stryker, or if there
was “some suggestion that the child was … making the report in order to please …
or to placate her mother or in some way to obey or do something at the suggestion
of her mother.” The court also expressed concern that, even if the evidence was
proffered for an acceptable purpose and relevant, the matter could become a “mini
trial” unless the questioning or witnesses could be limited in some fashion.
¶16 We review a circuit court’s determination regarding the admissibility
of other-acts evidence for an erroneous exercise of discretion. State v. Marinez,
2011 WI 12, ¶17, 331 Wis. 2d 568, 797 N.W.2d 399. Under that standard, we will
uphold the court’s evidentiary ruling if the court examined the relevant facts,
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No. 2020AP1482-CR
applied the proper legal standard, and used a demonstrated rational process to
reach a reasonable conclusion. Id.¶17 We conclude the circuit court did not erroneously exercise its
discretion when refusing to admit evidence regarding the bus driver incident.
Even if, as Stryker contends, the evidence was proffered for an acceptable purpose
under WIS. STAT. § 904.04(2), to be relevant, the evidence would have to have had
some tendency to make any fact of consequence to the determination of the action
more probable or less probable. See WIS. STAT. § 904.01. Stryker contends that
“fact” here was whether Jennifer was lying about Stryker sexually assaulting her,
and he contends the relevance of the bus driver incident to Jennifer’s credibility
was in showing that Jennifer had a motive to “make this false accusation … to
satisfy her hypervigilant mother.”
¶18 To establish relevance, Stryker assumes the bus driver evidence
would have made Jennifer’s allegation against him less credible, even though in
the prior instance Jennifer had refused to corroborate her mother’s supposedly
contrived allegations. Stryker merely offers the conclusory assertion that “[g]iven
[Jennifer]’s young age, it is unreasonable to believe her report wasn’t influenced
by her mother.” We decline to conclude the circuit court erroneously exercised its
discretion on such a speculative basis.
¶19 Moreover, even if we assume the bus driver evidence had some
marginal relevance to an assessment of Jennifer’s credibility, the circuit court’s
concerns regarding a trial within a trial are well taken. Presenting the bus driver
evidence would have required a diversion from the issue at trial—whether Stryker
had inappropriately touched Jennifer—into a lengthy inquiry into the
circumstances of the bus driver incident, including what Melanie reported to
8
No. 2020AP1482-CR
police, social workers, medical personnel, and others; whether Jennifer had in fact
made the statements that Melanie reported; why Jennifer did not make similar
statements during her forensic interview in that case; and what the police
investigation revealed. The court reasonably concluded that whatever marginal
probative value the evidence had regarding Jennifer’s credibility was outweighed
by the considerations specified in WIS. STAT. § 904.03.
¶20 Stryker next argues the circuit court erred by refusing to admit the
evidence that, during Jennifer’s forensic interview in connection with the bus
driver incident, she had said that her brother had seen her private parts and
touched her there, and she had seen her brother’s “pocket.” Police declined to
follow up on Jennifer’s report after Melanie said she had no concerns because the
brother used the bathroom with the door open and had helped change Jennifer’s
diapers. Analyzing the admissibility of the evidence under WIS. STAT. § 972.11,
the court concluded that because Melanie had no concerns, “it could have very
well meant that it occurred in a relationship between siblings, and that she didn’t
feel that it was a problem or false, but rather something that could have been
handled within the family.”
¶21 Again, we cannot conclude the circuit court erroneously exercised its
discretion. Although Stryker contends the court’s analysis was insufficient, we are
obliged to search the record to determine whether the exercise of discretion can be
sustained. See McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971).
Before admitting evidence of a complainant’s prior untruthful allegation of sexual
assault, the circuit court must first determine whether the evidence fits within WIS.
STAT. § 972.11(2)(b)3. State v. Ringer, 2010 WI 69, ¶29, 326 Wis. 2d 351, 785
N.W.2d 448. This requires the court to determine that a jury could reasonably find
that the complainant made prior untruthful allegations of sexual assault. Id., ¶31.
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No. 2020AP1482-CR
¶22 Here, the circuit court clearly did not believe that a jury could
conclude the four-year-old Jennifer’s statement about her brother touching her
private parts during the January 25, 2013 forensic interview constituted a false
report of a sexual assault. The police record of the interview states that it “was
quite apparent” that Jennifer did not understand the questions posed to her.
Melanie offered plausible explanations for why Jennifer said her brother had seen
and touched her private parts (i.e., changing her diaper), as well as why Jennifer
said she had seen her brother’s private parts (i.e., his using the bathroom with the
door open). It is not even clear from Stryker’s motion that Jennifer suggested the
touching was of a sexual nature; she was simply asked whether anyone had
touched her vagina.
¶23 Finally, Stryker argues the circuit court’s refusal to admit evidence
regarding the bus driver incident or Jennifer’s allegations about her brother
deprived him of his constitutional right to present a defense. We determine as a
matter of constitutional fact whether the exclusion of evidence offered by a
defendant violated the constitutional right to present a defense. State v.
Muckerheide, 2007 WI 5, ¶18, 298 Wis. 2d 553, 725 N.W.2d 930. Under that
standard, we accept the circuit court’s findings of historical fact unless they are
clearly erroneous, but we independently apply constitutional principles to those
facts. Id.¶24 A defendant’s right to present a defense is not unlimited and may be
abridged by rules of evidence, as long as those rules are not arbitrary or
disproportionate to the purposes they are designed to serve. United States v.
Scheffer, 523 U.S. 303, 308 (1998). Stryker does not present any argument that
the application of the rules of evidence in this case produced arbitrary results or
that they operated in a fashion that was disproportionate to their purpose. Rather,
10
No. 2020AP1482-CR
he suggests that without introducing evidence of the bus driver incident and
Jennifer’s statement about her brother, he could not advance his theory of
defense—that Jennifer had fabricated the allegations to please her hypervigilant
mother.
¶25 The appellate record shows that, despite being precluded from
introducing that evidence, Stryker had the opportunity to present his defense. See
Muckerheide, 298 Wis. 2d 553, ¶42. Most importantly, he was able to
successfully introduce at trial the social worker’s opinion that Melanie, who
reported the assault to CPS, was “hypervigilant regarding sexual abuse.”5
Additionally, Stryker established through cross-examination that Melanie was the
person to call the police and CPS, a point Stryker emphasized during his closing
argument when he also noted certain inconsistencies in Jennifer’s descriptions of
the sexual assault. In all, the evidence at trial allowed Stryker to argue that the
circumstances of the alleged assault were implausible, the allegations lacked the
substantiation of a high-quality forensic interview, and that Jennifer’s description
of the assault had been “tainted by her mother’s influence.” We agree with the
State that Stryker’s constitutional right to present a defense was not violated
merely because he was unable to marshal all the evidence he hoped in favor of his
defense theory.
II. Mistrial Motion
¶26 Stryker next argues the circuit court erred by denying his motion for
a mistrial. Typically, a motion for a mistrial lies in the circuit court’s discretion.
5
Notably, the circuit court relied on Stryker’s constitutional right to present a defense to
justify the admission of that evidence.
11
No. 2020AP1482-CR
State v. Hampton, 217 Wis. 2d 614, 621, 579 N.W.2d 260 (Ct. App. 1998).
However, Stryker also argues that the attire and conduct of the members of the
Guardians of the Children deprived him of his right to a fair trial. We
independently determine whether Stryker’s constitutional right to a fair trial was
violated. See id.¶27 Stryker relies primarily on Norris v. Risley, 918 F.2d 828 (9th Cir.
1990). The United States Supreme Court subsequently cast doubt on Norris when
it noted that “the effect on a defendant’s fair-trial rights of … spectator conduct …
is an open question in our jurisprudence.” Carey v. Musladin, 549 U.S. 70, 76
(2006). But even assuming that state-actor cases like Holbrook v. Flynn, 475 U.S.
560 (1986) are applicable, the question is whether the attire and conduct of the
spectators created an unacceptable risk of impermissible factors coming into play.
Carey, 549 U.S. at 75.
¶28 Here, the appellate record includes too little information for Stryker
to meet this standard. Although it appears that some members of the jury may
have been present in the cafeteria at the time Jennifer was escorted by members of
the Guardians of the Children, it is unclear how many of them were there, what
they might have seen before the prosecutor escorted Jennifer to his office, and
whether any of the group’s patches or emblems were visible from where the jurors
were standing (or sitting in the courtroom).6 On the morning of the trial, the
6
Stryker’s postconviction counsel posited that such information was unnecessary to
determine whether there was an unacceptable risk of improper influence. Under the
circumstances of this case, which apparently did not involve plainly and obviously improper attire
visible to everyone in the courtroom, we disagree.
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No. 2020AP1482-CR
circuit court stated that it could not read what any of the patches said from a
distance of approximately thirty feet away.
¶29 Moreover, the prosecutor was amenable to a jury instruction and
offered to work with defense counsel to craft a “tailored instruction” that told the
jury the public had the right to express their views but emphasized the
presumption of innocence that attaches to a defendant. Stryker’s defense counsel
did not request an instruction, thereby depriving the circuit court of an opportunity
to consider whether alternatives to a mistrial would be appropriate. See State v.
Moeck, 2005 WI 57, ¶43, 280 Wis. 2d 277, 695 N.W.2d 783. Accordingly, we
cannot conclude on this record that the court erred by denying Stryker’s request
for a mistrial or that Stryker was deprived of a fair trial as a result.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
13