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2009AP1249-CR State v. Gonzalez

By: dmc-admin//July 12, 2010//

2009AP1249-CR State v. Gonzalez

By: dmc-admin//July 12, 2010//

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Evidence
Psychological profile evidence

After the state amended a defendant's charge from first-degree sexual assault of a child to exposing a child to harmful material, the defendant could no longer present expert testimony regarding his psychological profile.

"Despite Gonzalez's efforts to cast the charges against him as charges of sexual abuse of a child because they fall within Wis. Stat. ch. 948 (2005-06) ('Crimes Against Children') and because convictions require Wisconsin Sex Offender Registration, see Wis. Stat. §§ 973.048(2m), 301.45 (2005-06), we are not convinced. Instead, we agree with the State: It is not a crime's presence in Chapter 948 of the Criminal Code that is determinative. What is important is the evidentiary connection between the proffered evidence and the elements of the crime charged…. The harmful exposure count did not require proof of the fact that Gonzalez had any sexual interest in children, or that he was likely to assault or molest them for his own pleasure. Therefore Dr. Matthews' [sic] testimony that he lacked such characteristics was not relevant to the harmful exposure count, because there was no fact at issue that the testimony would have made more or less probable. (Citations omitted.)"

"We agree with the trial court that Dr. Matthew's testimony became irrelevant once the first-degree sexual assault of a child charge was dismissed. The trial court identified the correct standard and reached reasonable conclusions on the probative value of the evidence and the potential for jury confusion. See Walters, 269 Wis. 2d 142, ¶¶38-40. Accordingly, the record supports the trial court's exercise of discretion in excluding Dr. Matthew's testimony."

Affirmed.

Recommended for publication in the official reports.

2009AP1249-CR State v. Gonzalez

Dist. I, Milwaukee County, McMahon, J., Curley, J.

Attorneys: For Appellant: Schiro, Frank J., Milwaukee; Hodorowski, Kristin Anne, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Whelan, Maura F.J., Madison

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