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COURT OF APPEALS
NOTICE
DECISION
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.
September 30, 1999
                                                                                                                      A  party  may  file  with  the  Supreme  Court  a
                                                                                                                      petition  to  review  an  adverse  decision  by  the
                                                                                            Marilyn L. Graves
                                                                                                                      Court of Appeals.   See § 808.10 and RULE 809.62,
                                                                                            Clerk, Court of Appeals
                                                                                                                      STATS.
                                                                                            of Wisconsin
No.                                                                                         99-0144-CR
STATE OF WISCONSIN                                                                          IN COURT OF APPEALS
                                                                                            DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
MICHAEL L. KEARNEY,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Dane County:
PATRICK J. FIEDLER, Judge.   Affirmed.
Before Vergeront, Roggensack and Deininger, JJ.
ROGGENSACK, J.    Michael L. Kearney appeals from a judgment
of conviction of kidnapping by deceit, contrary to  § 940.31(1)(c), STATS.    He
claims the circuit court committed reversible error by prohibiting certain testimony
of  Dr.  Michael  Spierer,  a  clinical  psychologist  who  testified  for  the  defense.




No. 99-0144-CR
Kearney claims that barring this testimony infringed upon his constitutional right
to present a defense and warrants a new trial because the real controversy was not
fully tried.    Finally,  Kearney claims that his conviction should be overturned
because  there  was  insufficient  evidence  of  deceit,  one  of  the  elements  of
§ 940.31(1)(c).   Although it allowed much of the testimony of Spierer, the circuit
court did not allow him to testify that Kearney’s attack on the motel clerk was not
sexually motivated.    The circuit court also concluded that there was sufficient
evidence of deceit, to warrant conviction.    We conclude that the circuit court
properly excluded Spierer’s testimony relating to the motivation for the attack.
We also conclude that there was sufficient evidence for a trier of fact to find
deceit.   Accordingly, we affirm.
BACKGROUND
Kearney battered and choked the night clerk of a Madison motel
when the clerk came to his room, at his request, to fix the TV.   Kearney pled no
contest to substantial battery and false imprisonment.   He was sentenced to eight
years,  consecutive,  for  each  offense.                                              Kearney  does  not  challenge  these
convictions and sentences on appeal.
Kearney was also charged with kidnapping by deceit pursuant to
§ 940.31(1)(c), STATS.    Kearney pled not guilty to that offense and was tried
before the Dane County Circuit Court.   Kearney stipulated to the existence of the
first element of kidnapping by deceit, namely that he induced the clerk to come to
his room.   Kearney disputed the other two elements:                                   (1) that he deceived the
victim, and (2) that he intended to hold her “to service against … her will.”
The State sought to prove that Kearney held the victim to service
against her will by arguing that Kearney intended to have forced sexual contact
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No. 99-0144-CR
with  her.     It  then  sought  to  prove  that  Kearney  deceived  the  victim  by
demonstrating that in requesting the clerk to come into his room, Kearney’s intent
was not to have the clerk fix the television, but to sexually assault her.
Kearney disputed the State’s contentions by offering the testimony
of Spierer.   The circuit court allowed Spierer to testify that Kearney’s profile was
consistent  with  individuals  who  are  severely  paranoid,  and  that  the  tests  he
performed  on  Kearney  revealed  no  evidence  that  Kearney suffered  from  any
sexual psychopathology.   However, the court refused to permit Spierer to testify
that the attack on the clerk was not sexually motivated.1
At the close of the trial, the circuit court concluded that Kearney did
deceive the clerk and that he was motivated by a desire to sexually assault her.
The court based this conclusion on Kearney’s attempts to tie up the motel clerk
with twine he had brought into the motel room; his statements to the clerk not to
scream because he did not intend to hurt her; his repeated attempts to gag her; the
pornographic videos and materials in Kearney’s possession at the time of the
assault; and the camcorder he brought into the motel room.   The court also noted
the suicide note Kearney wrote to his mother that same day, describing himself as
1  Specifically, the court sustained the State’s objection to the following three questions:
1.                                                                                             “Was it your finding, based upon [Kearney’s] history, the criminal complaint, and
your clinical evaluation, that the attack was not sexually motivated?”
2.                                                                                             “Further on in your report, Doctor, you indicate that there was no evidence to suggest
that he was sexually aroused during the assault or that he … initiated the assaultive
behavior for any sexual purpose.  Was that your finding?”
3.                                                                                             “My  question  is,  did  your  testing  confirm  that  the  attack  was  not  sexually
motivated?”
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No. 99-0144-CR
a sexual pervert and a sexual predator.   Kearney appeals from his conviction of
violating § 940.31(1)(c), STATS.
DISCUSSION
Standard of Review.
Expert  testimony  is  admissible  if  it  helps  the  trier  of  fact  to
understand the evidence or to determine a fact in issue.   See  § 907.02, STATS.
Determining whether expert testimony assists the fact finder is a discretionary
decision of the circuit court.   See State v. Pittman,  174 Wis.2d  255,  268,  496
N.W.2d 74, 79 (1993).   We will uphold a circuit court’s discretionary decision “if
the circuit court logically interpreted the facts, applied the proper legal standard,
and used a demonstrated rational process to reach a conclusion that a reasonable
judge could reach.”   State v. Keith, 216 Wis.2d 61, 69, 573 N.W.2d 888, 892-93
(Ct. App.  1997), review denied,  217 Wis.2d  518,  580 N.W.2d  689  (1998).   In
considering whether the proper legal standard was applied, however, no deference
is due.   This court’s function is to correct legal errors.   See id. at 69, 573 N.W.2d
at 893.
Additionally, whether a defendant’s right to present a defense has
been violated is a question of constitutional fact which we review de novo.   See
State v. Heft, 185 Wis.2d 288, 296, 517 N.W.2d 494, 498 (1994).
And finally, in reviewing the sufficiency of the evidence to support a
criminal conviction, we do not substitute our judgment for that of the trier of fact
unless  the  evidence,  viewed  in  the  light  most  favorable  to  the  State  and  the
conviction, is so lacking in probative value and force that no reasonable trier of
fact could have found guilt beyond a reasonable doubt.   See State v. Steenberg
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No. 99-0144-CR
Homes, Inc., 223 Wis.2d 511, 517, 589 N.W.2d 668, 671 (Ct. App. 1998), review
denied, 225 Wis.2d 489, 594 N.W.2d 384 (1999) (citation omitted).
Expert Testimony.
In  Wisconsin,  the  admissibility  of  expert  opinion  evidence  is
assessed  in  light  of                                                                   § 907.02,  STATS.    See  Pittman,  174  Wis.2d  at  267,  496
N.W.2d at 79.   That section allows expert testimony if it “assist[s] the trier of fact
to understand the evidence or to determine a fact in issue.”    Section  907.02.
Expert testimony does not assist the fact finder if it usurps the fact finder’s role.
See Pittman, 174 Wis.2d at 267-68, 496 N.W.2d at 79.   Whether expert testimony
violates  this  standard  is  determined  by examining  the  purpose  for  which  the
testimony is submitted and the effect of the testimony.   See State v. Richardson,
189 Wis.2d 418, 423, 525 N.W.2d 378, 380-81 (Ct. App. 1994).
Kearney argues it was error for the circuit court to bar Spierer’s
testimony that the attack on the motel clerk was not sexually motivated.   Kearney
claims that expert testimony is prohibited  only when it is offered to show  a
defendant’s  capacity  to  form  the  requisite  intent.    He  claims  that  Spierer’s
testimony does not specifically address Kearney’s capacity to form intent; and
therefore, it is admissible.   We disagree.
In  Richardson,                                                                           189  Wis.2d  at                                                  421-22,   525  N.W.2d  at   380,
Richardson  sought  to  present  testimony  from  a  psychologist  describing  the
battered woman’s syndrome to the jury.   She also sought to present the expert’s
opinion about her state of mind before, during and after she stabbed her boyfriend,
who had physically abused her for years.   See id. at 422, 525 N.W.2d at 380.   We
concluded that it was error for the circuit court to exclude the psychologist’s
testimony about the battered woman’s syndrome.   See id. at 426, 525 N.W.2d at
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No. 99-0144-CR
382.   We determined that an expert may describe the behavior of the complainant
and give an opinion about whether this behavior is consistent with the behavior of
other victims.   See id. at 425-26, 525 N.W.2d at 381.
However, we held that an expert may not testify “about the battered
person’s actual beliefs at the time of the offense, about the reasonableness of those
beliefs or about the person’s state of mind before, during and after the criminal
act.”   Id. at 426, 525 N.W.2d at 382.   We reasoned that it was for the jury, not the
expert, to determine what was going on in a defendant’s mind at the time of the
violent act.   See id. at 429, 525 N.W.2d at 383.   Moreover, the reasonableness of
those beliefs was not a matter within an expert’s scientific knowledge.   See id.   In
disallowing the testimony, we stated “science has not yet produced the technology
which allows experts to put themselves inside the person’s head at the time an
event took place.”   Id. at 430, 525 N.W.2d at 383.   Therefore, we concluded it
“was not competent testimony.”   Id. at 429, 525 N.W.2d at 383 (citing Steele v.
State, 97 Wis.2d 72, 95, 294 N.W.2d 2, 12-13 (1980).
As in Richardson, the testimony of Spierer related to Kearney’s
intent.   The State objected to, and the circuit court excluded, testimony opining
what Kearney’s motivation was for the attack.   Spierer cannot testify about what
was in Kearney’s head before, during or after the attack because that testimony
invades the province of the fact finder and it is outside of scientific expertise.
Stated another way, the fact finder was as competent as Spierer to determine
Kearney’s specific motivation for the attack.   Therefore, it was impermissible for
Spierer to give an opinion about Kearney’s motivation or intent.   See id. at 430,
525 N.W.2d at  383.    Because the testimony did not assist the trier of fact in
understanding  the  evidence,  the  circuit  court  did  not  erroneously  exercise  its
discretion when it excluded the testimony.
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No. 99-0144-CR
Constitutional Right.
Kearney also contends that the circuit court’s exclusion of Spierer’s
testimony  regarding  whether  the  attack  was  sexually  motivated,  violated  his
constitutional right to present a defense.    It is true that a defendant has a due
process right to a fair opportunity to defend against the State’s accusations.   See
State v. Evans, 187 Wis.2d 66, 82, 522 N.W.2d 554, 560 (Ct. App. 1994) (citation
omitted).    The  right  to  present  evidence  “is  rooted  in  the  Confrontation  and
Compulsory Process Clauses of the United States and Wisconsin Constitutions.”
Id. at 82-83, 522 N.W.2d at 560 (citation omitted).   While the rights granted by the
Confrontation and Compulsory Process Clauses are fundamental and essential to
achieving the constitutional objective of a fair trial, see Chambers v. Mississippi,
410 U.S. 284, 294 (1973), there is no constitutional right to present incompetent
evidence.   See State v. Morgan, 195 Wis.2d 388, 430, 536 N.W.2d 425, 441 (Ct.
App. 1995).
We have already determined above that the evidence regarding the
motivation for the attack was incompetent evidence which did not assist the fact
finder in its task.   Therefore, it was properly excluded.   Accordingly, Kearney had
no constitutional right to present the evidence and his contention that he was
denied an opportunity to defend himself by its exclusion is without merit.
Sufficiency of Evidence.
The  essential  elements  of  kidnapping  by  deceit  are  defined  in
§ 940.31(1)(c), STATS., as (1) an exercise of deceit; (2) that causes another person
to be induced by this deceit to go from one place to another; and (3) evinces an
intent to cause that person to be secretly confined or imprisoned, carried out of the
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No. 99-0144-CR
state, or held to service against his or her will.   See State v. Dalton, 98 Wis.2d
725, 737-38, 298 N.W.2d 398, 403 (Ct. App. 1980); § 940.31(1)(c).
Kearney does not challenge the evidence of any of the elements of
the kidnapping charge except deceit.   Kearney claims that his request for the motel
clerk to come into his room to fix a malfunctioning television was not deceitful
because  the  television  was  not  operating  properly  and  it  was                    “perfectly
reasonable” for Kearney to seek assistance from the clerk.   We disagree.
In Dalton, 98 Wis.2d at 740, 298 N.W.2d at 404-05, we declined to
interpret  deceit  under  the  statute  as  requiring  proof  of  express  or  implied
misrepresentations.    That  is,  deceit  could  occur  when  a  defendant  made  a
statement that was factually correct, but was used to further defendant’s illegal
purposes.   In doing so, we reasoned that “[l]imiting proof of deceit to express or
implied  misrepresentations  would  offer  no  protection  to  the  victim  who  was
artfully deceived by a person who lured and trapped his victim without resort to
misrepresentation.”   Id. at 740, 298 N.W.2d at 405.
The evidence demonstrates that Kearney possessed commercial and
private  pornographic  videos,  several  pornographic  magazines,  a  number  of
pornographic photographs he had taken and a camcorder.    He also brought a
quantity of twine into the motel room, with which he tried to tie up the motel
clerk.   He repeatedly told the clerk not to scream because he did not intend to hurt
her, although he struck her head against the floor several times and cut her arm
with a sharp object.   He twice attempted to gag her.   Subsequent to the attack,
Kearney wrote a suicide note to his mother in which he described himself as a
sexual pervert and a sexual predator.
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No. 99-0144-CR
The  combination  of  all  this  evidence,  viewed  in  the  light  most
favorable to the State and the conviction, is not “so lacking in probative value and
force that no reasonable trier of fact could have found guilt beyond a reasonable
doubt.”   See Steenberg Homes, 223 Wis.2d at 517, 589 N.W.2d at 671.   Under
Dalton,  Kearney’s  conduct  was  sufficient  to  constitute  kidnapping  by  deceit,
pursuant to § 940.31(1)(c), STATS., irrespective of whether Kearney’s statements
to the clerk are express or implied misrepresentations.   Therefore, a reasonable
trier of fact could find that the deceit was asking the clerk to come to his room to
fix  the  television,  when  he  actually  wanted  her  there  so  he  would  have  the
opportunity to have sexual contact with her.   Accordingly, we affirm the circuit
court’s  finding  of  deceit  because  the  evidence  was  sufficient  to  satisfy  the
requirements of § 940.31(1)(c).
New Trial.
Kearney also argues that he is entitled to a new trial in the interest of
justice because the real controversy has not been fully tried.   See § 752.35, STATS.
He contends that the trier of fact was not given the opportunity to hear all of
Spierer’s testimony regarding his motivation at the time of the attack, and the
exclusion of such evidence was error.   Therefore, he claims he is entitled to a new
trial with the inclusion of the excluded evidence.
We have already rejected Kearney’s argument that the testimony
was improperly excluded.   Accordingly, we conclude that the real controversy has
been fully tried, and we decline to exercise our power of discretionary reversal.
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No. 99-0144-CR
CONCLUSION
We  conclude  that  the  circuit  court  properly  excluded  Spierer’s
testimony relating to the motivation for the attack.   We also conclude that there
was sufficient evidence for a trier of fact to find deceit.   Accordingly, we affirm.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
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