By: WISCONSIN LAW JOURNAL STAFF//September 18, 2013//
Wisconsin Court of Appeals
Criminal
Criminal Procedure — right to present defense — Confrontation Clause
Damen R. Lowe appeals from his conviction for repeated sexual assault of a child, incest, physical abuse of a child, and exposing a child to harmful material, and also from the denial of his motion for postconviction relief. Lowe’s trial counsel sought to introduce messages the victim posted on social media after Lowe’s arrest, which, trial counsel argued, would show that the victim was motivated to fabricate her sexual assault story in order to “get out from underneath the very restrictive and overly protective watch” of Lowe, her strict father. The trial court excluded the after-the-fact social media posts and limited cross-examination of the victim regarding post-allegation activity. We conclude that the trial court’s exclusion of the proffered after-the-fact material did not violate Lowe’s constitutional right to confront his accuser and present a defense because trial counsel was able to fully cross-examine the victim regarding her behavior and motive to fabricate during the relevant period of time—prior to her accusations of sexual assault. Additionally, the court permitted defense counsel to show that the victim’s alleged objective of misbehaving without Lowe’s oversight was borne out. The trial court appropriately exercised its discretion in excluding the specifics of the post-allegation behavior. We reject Lowe’s other arguments and affirm. Not recommended for publication in the official reports.
Dist II, Racine County, Constantine, Torhorst, JJ., Neubauer, P.J.
Attorneys: For Appellant: Richards, Mark D., Racine; Hall, Christy Marie, Racine; For Respondent: Tarver, Sandra L., Madison; Chiapete, W. Richard, Racine