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COURT OF APPEALS
DECISION
                                                                                      DATED AND RELEASED
                                                                                                                                             NOTICE
                                                                                      July  16,  1997
                                                                                      A  party  may  file  with  the  Supreme  Court  a      This opinion is subject to further editing. If
                                                                                      petition  to  review  an  adverse  decision  by  the   published, the official version will appear in
                                                                                      Court of Appeals.   See § 808.10 and RULE 809.62,      the bound volume of the Official Reports.
STATS.
No.                                                                                   96-2742-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JOHNNY L. WHITE,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Sheboygan
County:  TIMOTHY M. VAN AKKEREN, Judge.   Affirmed.
Before Snyder, P.J., Brown and Anderson, JJ.
PER  CURIAM.       Johnny L.  White  appeals  from  a  judgment  of
conviction  of  three counts of  sexual assault by use or  threat of  the use of  a
dangerous weapon.   He argues that the trial court erred in excluding evidence that
the victim had a sexually transmittable condition and that semen collections found
on the victim’s bed sheets were not from White.   We conclude that the trial court




NO. 96-2742-CR
properly  exercised  its  discretion  in  excluding  the  evidence.    We  affirm  the
judgment.
The sexual assault victim identified White, a resident of the same
apartment complex, as having entered her bedroom in the early morning hours.
She indicated that White held a knife to her throat and ordered her to remove her
clothing or he would kill her.   The victim did not report the assault until late in the
afternoon that day.
When  tested  after  the  assault,  the  victim  tested  positive  for  the
presence of chlamydia, a sexually transmittable condition.   Apparently White did
not  test  positive  for  chlamydia.1    Numerous  semen  collections  found  on  the
victim’s bedsheets were tested.   Of the twenty-one spots tested, it was determined
that as to  only two  spots  “[a]ssuming a  single  source  of  semen  …  White  is
included  in  that  portion  of  the  population  which  could  have  contributed  the
semen.”    The remaining stains tested were not caused by either White or the
victim’s bodily fluids.
Before  trial,  the  prosecution  sought  an  order  excluding  from
evidence at trial any mention that the victim had chlamydia at the time of the
assault and that semen stains present in the victim’s apartment did not belong to
White (the bedsheet evidence).   White sought admission of the evidence.   The trial
court excluded the evidence.    White argues that exclusion deprives him of his
constitutional right to present a defense.2
1   The test results for White are not of record.   Neither party disputes that White did not
have chlamydia.
2   The parties agree that the evidence is not admissible under § 972.11, STATS., the rape
shield law.
2




NO. 96-2742-CR
“Evidentiary  rulings  generally  are  reviewed  with  deference  to
determine whether the circuit court properly exercised discretion in accord with
the facts of record and with accepted legal standards.”   In re Michael R.B., 175
Wis.2d 713, 720, 499 N.W.2d 641, 644 (1993).   Whether a defendant’s right to
present a defense has been improperly denied by the trial court is a question of
constitutional fact which we review de novo.   See id.
The  constitutional  right  to  present  evidence  is  limited  to  the
presentation of “relevant evidence not substantially outweighed by its prejudicial
effect.”   State v. Pulizzano, 155 Wis.2d 633, 646, 456 N.W.2d 325, 330 (1990).
Excluding highly prejudicial evidence which has minimal, if any, probative value
does not violate the principles of evidentiary or constitutional law.   See State v.
DeSantis, 155 Wis.2d 774, 793-94, 456 N.W.2d 600, 609 (1990).   Indeed, in order
to  establish  a  constitutional  right  to  present  otherwise  excluded  evidence,  a
defendant’s offer of proof must show that the probative value of the evidence
outweighs its prejudicial effect.   See Pulizzano, 155 Wis.2d at 656, 456 N.W.2d at
335.   Whether evidence should be excluded on the basis of its prejudicial potential
“‘goes to the trial court’s discretion to weigh the probative value of the evidence
against the possibility of prejudice or other factors which might impede the orderly
and expeditious disposition of the issues at trial.’”   State v. Hinz, 121 Wis.2d 282,
285, 360 N.W.2d 56, 59 (Ct. App. 1984) (quoted source omitted).
White  claims  that  the  evidence  that  the  victim  had  chlamydia
supports his testimony that while he previously had consensual intercourse with
the victim, he was not intimate with her since three weeks before the assault
because he was afraid the victim would give him a sexually transmitted disease.
He also argues that the evidence was relevant because the victim told police that in
an effort to dissuade White from assaulting  her, she told White  that she had
3




NO. 96-2742-CR
chlamydia.3   As the trial court noted, whether the victim actually had a sexually
transmittable disease was not relevant or probative.   White’s defense that he would
not engage in intercourse with the victim was dependent only on his subjective
fear of disease and not whether in fact he could have contracted chlamydia.4
Moreover, the trial court recognized that the inference of promiscuity that arises
from the presence of a sexually transmitted disease is highly prejudicial.   The trial
court considered the relevant factors and properly exercised its discretion.
White sought to admit the bed sheet evidence to show that the semen
found could have come from someone else.5   The possibility that the victim had
intercourse  with  another  man  was  irrelevant  to  the  charges  against  White.
“Evidence going to prove one sexual encounter does not assist the trier of fact in
determining whether a separate sexual encounter also occurred—the two events
are not mutually exclusive.”   Michael R.B., 175 Wis.2d at 726, 499 N.W.2d at
647.   That the bed sheet evidence had little probative value is particularly true here
where there was no evidence as to the time when the semen deposits were made.
The evidence could not have established that at the time of the assault the victim
was with another man.   The evidence was inconclusive and had little probative
value.
3  The victim did not testify at trial that she told White that she had chlamydia in order to
prevent the assault.  Upon learning that the probability of chlamydia transmission from one act of
intercourse was only 10 to 20%, White abandoned his claim that the chlamydia evidence was
probative that no intercourse had occurred.
4  White’s theory of defense at trial was that the victim had falsely accused him because
he had a hand in a drug deal that went bad and resulted in the victim losing money.
5  The prosecution did not offer any evidence about semen stains found on the victim’s
bed sheets.
4




NO. 96-2742-CR
As with the chlamydia evidence, the trial court found that the bed
sheet evidence was highly prejudicial in giving rise to an inference of promiscuity.
The “very real danger” of such prejudice is recognized and forms a proper basis
for excluding evidence of little probative value.   See State v. Gulrud, 140 Wis.2d
721,  736,  412  N.W.2d  139,  145  (Ct.  App.  1987).    The  trial  court  properly
determined  that  the  minimal  probative  value  of  the  bed  sheet  evidence  was
outweighed by the potential for prejudice.6
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
6                                                                                                        In  concluding  that  the  trial  court  properly  exercised  its  discretion  in  excluding
evidence, we note that the trial court also denied the prosecution’s motion to introduce other acts
evidence.  The trial court exercised its discretion on both sides of the evidentiary contest to ensure
a fair trial.
5

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