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State v. Falk6/29/2000
APPEAL from a judgment and an order of the circuit court for Marquette County: RICHARD O. WRIGHT, Judge. Affirmed.
Richard Falk was convicted of two counts of child abuse in violation of Wis. Stat. § 948.03(2)(a) (1997-98). Richard appeals his conviction and the order denying his motion for post-conviction relief, arguing both trial court error and ineffective assistance of counsel. He contends the trial court erred by: (1) allowing the State to present other acts evidence, which, Richard argues, was highly prejudicial and not admissible under Wis. Stat. § 904.04(2); (2) allowing the State to show the jury photographs of the injured child when the injuries were not disputed; and (3) precluding him from introducing evidence supporting the theory that his wife, not he, committed the crime against their daughter. We conclude the trial court did not erroneously exercise its discretion on the first point and, to the extent it did on the second point, the admission of photographs was harmless error. With respect to the evidence of other acts by Richard's wife, we hold the "legitimate tendency" test we adopted in State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984), affirmed, 163 Wis. 2d 352, 471 N.W.2d 606 (Wis. App. May 15, 1991) (No. 90-2019-CR), does not apply when the charged offense is child abuse, and the correct standard is the one for other acts evidence set forth in State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998), although applied less stringently than when the State seeks to introduce other acts evidence against a defendant, see State v. Scheidell, 227 Wis. 2d 285, 304-05, 595 N.W.2d 661. Applying that standard, we conclude the trial court did not exclude relevant evidence and therefore did not violate Richard's constitutional right to present a defense.
. Richard also contends his trial counsel was ineffective on a number of grounds, several of which relate to the failure to gather and present evidence of Richard's wife's behavior, attitudes and psychological make-up. We conclude that Richard has not shown both deficient performance and prejudice for any ground. In particular, we conclude that the other acts evidence concerning his wife is not admissible under Wis. Stat. § 904.04(2); the character evidence, including the psychological evaluation and expert testimony is inadmissible under § 904.04(1)(c); and we decline to decide whether the character evidence is admissible under another, constitutionally required theory because the argument was not sufficiently developed. Finally, we decline to reverse and remand for a new trial in the interests of justice.
BACKGROUND
. Laura Falk, the two-month-old daughter of Richard and his wife Shannon, was brought to the hospital on Friday, February 13, 1997. She had seventeen fractures in her arms, legs and ribs; she suffered from a life threatening infection resulting from those injuries; and a large blood clot had formed near her heart. The doctors who treated Laura determined the injuries had been intentionally inflicted within ten days prior to that Friday.
. The police investigation focused on four suspects: Richard, Shannon, and Richard's brothers, Russell and David. Richard and Shannon lived in a trailer home with Laura and their three-year-old son Cody. Russell and David were living with them for several days prior to February 13, 1997, and stayed with the children when Richard and Shannon were out. The police questioned these four individuals and others. On March 5 Richard made a confession to Detective Thomas Schrank of the Marquette County Sheriff's Department, stating that he had caused the injuries to his daughter on two separate occasions-a confession Richard later s
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