State v. Joseph A. Bailey

       COURT OF APPEALS
           DECISION                                                NOTICE
        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.
            July 23, 2025
                                                   A party may file with the Supreme Court a
            Samuel A. Christensen                  petition to review an adverse decision by the
           Clerk of Court of Appeals               Court of Appeals. See WIS. STAT. § 808.10
                                                   and RULE 809.62.




Appeal No.        2023AP1485-CR                                                 Cir. Ct. No. 2021CF288

STATE OF WISCONSIN                                             IN COURT OF APPEALS
                                                                    DISTRICT II


STATE OF WISCONSIN,

       PLAINTIFF-RESPONDENT,

  V.

JOSEPH A. BAILEY,

       DEFENDANT-APPELLANT.




                 APPEAL from a judgment of the circuit court for Waukesha County:
BRAD SCHIMEL, Judge. Affirmed.

                 Before Neubauer, Grogan, and Lazar, JJ.

                 Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
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       ¶1        PER CURIAM. Joseph A. Bailey appeals from a judgment of
conviction entered after a jury found him guilty of third-degree sexual assault. He
contends that the trial court erred in allowing a police detective to testify about
common responses of sexual assault victims.                     Because the court did not
erroneously exercise its discretion in allowing the testimony at issue, we affirm.

                                       BACKGROUND

       ¶2        The State charged Bailey with second-degree and third-degree
sexual assault, both as a repeater, contrary to WIS. STAT. § 940.225(2)(d) and
(3)(a) (2023-24).1 The charges arose out of sexual contact that occurred between
Bailey and the victim in a college dorm room after an evening of socializing.
Bailey acknowledged that he had sexual contact with the victim but argued at trial
that it had been consensual.

       ¶3        Before trial, the State filed a notice designating Detective Kenneth
Stucker (Stucker) of the Waukesha Police Department as an expert witness.
Stucker was designated to testify about the “common responses of a sexual assault
victim, including freezing, not fighting back, and not calling out for help” as well
as “the common phenomenon of delayed disclosure of a sexual assault, piecemeal
disclosures, and reluctance to report to law enforcement.” Bailey subsequently
moved to exclude Stucker’s testimony, arguing among other things that his
testimony would not be helpful to the jury, was not “based on sufficient facts and
data[,]” and that the State had not established that his testimony was based on a
reliable application of “principles and methods” to those facts.


       1
           All references to the Wisconsin Statutes are to the 2023-24 version.




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       ¶4        The trial court held a hearing on Bailey’s motion. After hearing
argument from the parties, the court denied the motion and ruled that Stucker
would be permitted to testify. The court reasoned that Stucker’s testimony could
be helpful to “jurors who don’t know anything about sexual violence other than
what they read in the newspaper.” The court stated further that the testimony
could correct misconceptions about a sexual assault victim’s behavior and assist
the jury in evaluating the victim’s credibility. The court also noted its prior
experience with Stucker, having previously allowed him “to testify about a similar
type of issue” in another case. The court indicated it would permit Bailey’s
counsel to question Stucker about his experience outside the jury’s presence prior
to testifying.

       ¶5        At trial, the victim, referred to herein by the pseudonym Holly,
testified about events on the night in question, her encounter with Bailey in the
dorm room, and her reaction to Bailey’s conduct. Holly testified that she went out
drinking with friends at a club on the night of the assault. She felt “tired” and
“tipsy” when the group, which included Bailey, left the club and went back to the
dorm building where she and a few of her friends lived. The group decided to
sleep in the same room and moved an additional mattress into the room.

       ¶6        As the group went to bed, Bailey asked Holly to lay next to him on
the mattress and “cuddle.” Holly laid down on the mattress, describing it as
“completely platonic and innocent.” Some time later, Bailey tried to kiss her, but
she “scootched away and … pulled [her] blanket up” to indicate she did not want
to have any physical contact with Bailey. Later, Holly testified, she woke up to
find her shorts and underwear pulled down while Bailey touched her stomach,
chest, and labia. Holly could hear him breathing but could not move and felt
“frozen at the time.” She “was trying to just stay still because at the time [her]

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mind’s response to that was just if [she] stay[ed] totally completely still and limp,
he will realize that [she was] asleep or … passed out and … unconscious and he
will stop.” Bailey began to aggressively insert his fingers into her vagina, causing
pain, and then inserted his penis into her “a couple of times.” Holly testified that
she continued to pretend to be asleep, “praying that it would stop.” After the
assault ended, Holly went to the bathroom and discovered that she was bleeding.
She texted her friend to get Bailey to leave and went to the hospital the next day
for a sexual assault examination. Three days later, Holly contacted the police
about the assault.

       ¶7     Stucker testified after Holly.     He testified about his 10 years’
experience as a detective, including 8 in the sensitive crimes unit, during which he
had investigated approximately “600 to 1,000” sexual assaults. Stucker estimated
that he meets with or observes interviews of “30 to 40” sexual assault victims per
month. He also testified that he has received training annually on “how to handle
a victim” and “different mindsets of a victim.” Stucker agreed that it is “important
for [him] in [his] work to understand … common responses of a [sexual assault]
victim.”

       ¶8     He described the “fight, flight or freeze” response that victims
experience when their “brain[s] start[] to react to the stress” of an assault and “go[]
into survival mode.” Stucker testified that “[s]tudies show [that] … over 90
percent of … [sexual assault] victims freeze.”                He agreed that this
“overwhelmingly common” response was consistent with his personal “experience
in speaking with sexual assault victims.” Stucker also testified that victims often
delay reporting assaults to law enforcement for a variety of reasons, including fear
of their assailant, fear of being blamed, and fear that they will not be believed. In



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his experience, the four-day period between the assault in this case and Holly’s
report to law enforcement was “[a]bsolutely not” unusual.

       ¶9     On cross-examination, Stucker admitted he could not identify “the
exact name[s] of” any studies on sexual assault that he has read but noted he had a
“binder” of studies about victims at the police department. With respect to the
“flight, fight or freeze” responses, Stucker also testified that he has not “see[n] a
lot of fight in a lot of” the victims he encountered. He also confirmed that the
flight response is rare among victims.        In contrast to these rarely observed
behaviors, Stucker testified that the majority of victims in his cases had frozen and
had not verbally or physically resisted.        The jury found Bailey guilty of
third-degree sexual assault but acquitted him of second-degree sexual assault.

                                  DISCUSSION

       ¶10    On appeal, Bailey contends that the trial court erred in allowing
Stucker to testify about common sexual assault victim behaviors for two reasons.
First, Bailey argues that the trial court did not apply the correct legal standard
because in its oral ruling, it did not address the requirement that expert testimony
be reliable. See Kenyon v. Kenyon, 2004 WI 147, ¶10, 277 Wis. 2d 47, 690
N.W.2d 251 (court erroneously exercises its “discretion when it fails to consider
relevant factors” or “makes an error of law” (citation omitted)).        Second, he
contends that “Stucker’s testimony was not based on reliable facts or data.” We
disagree on both points.

       ¶11    The admissibility of expert testimony is governed by WIS. STAT.
§ 907.02(1), which provides that such testimony is admissible “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue” and “the testimony is based upon

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sufficient facts or data, … the product of reliable principles and methods, and the
witness has applied the principles and methods reliably to the facts of the case.”
We “review a [trial] court’s decision to admit or exclude expert testimony under
an erroneous exercise of discretion standard.” State v. Giese, 2014 WI App 92,
¶16, 356 Wis. 2d 796, 854 N.W.2d 687. “This standard is highly deferential” and
requires us to uphold a ruling “even where we disagree with it, so long as
appropriate discretion was exercised.” State v. Hogan, 2021 WI App 24, ¶26, 397
Wis. 2d 171, 959 N.W.2d 658. A trial court appropriately exercises discretion
where it applies the correct law to the relevant facts and provides a reasoned
explanation for its decision. Id.

       ¶12    A trial court has “considerable leeway in deciding in a particular
case how to go about determining whether … expert testimony is reliable.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). We have recognized
that in some cases, “personal knowledge and experience may form the basis for
expert testimony.” Hogan, 397 Wis. 2d 171, ¶25; see also State v. Smith, 2016
WI App 8, ¶7, 366 Wis. 2d 613, 874 N.W.2d 610 (“Reliability may be based on
the expert’s own observations from his or her ‘extensive and specialized
experience.’” (quoting Kumho Tire, 526 U.S. at 156)). In such cases, the expert’s
methodology “may be nothing more than rigorous participation in ... various
activities, trainings, and experiences available to that individual.” Hogan, 397
Wis. 2d 171, ¶30. To assess reliability in such cases, “the witness must explain
how that experience leads to the conclusion reached, why that experience is a
sufficient basis for the opinion, and how that experience is reliably applied to the
facts.” Seifert v. Balink, 2017 WI 2, ¶73, 372 Wis. 2d 525, 888 N.W.2d 816
(citation omitted).




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      ¶13    Stucker’s testimony is akin to the “experience-based” testimony that
we concluded was properly admitted in Smith, 366 Wis. 2d 613, ¶10 (social
worker testimony about common behaviors in child abuse victims) and Hogan,
397 Wis. 2d 171, ¶¶27-34 (police detective testimony about methods of human
trafficking). The record shows that Stucker had 17 years of experience in law
enforcement, the last 8 of which were spent investigating sensitive crimes. During
those years, Stucker investigated hundreds of sexual assault complaints, interacted
with victims dozens of times per month, reviewed literature about victim behavior,
and received annual training in working with victims and understanding their
mental states.   These aspects of his professional experience constituted the
methodology he used “to reach … generalized conclusion[s] about common
behavior[s]” of assault victims with which Holly’s behavior during and after the
assault was consistent. See id., ¶30. Stucker’s years of experience investigating
sexual assaults gave him “specialized knowledge” about victim behavior that
helped the jury understand Holly’s testimony, evaluate her credibility, and
determine the central fact in dispute at the trial—whether she had consented to
sexual contact with Bailey.         See WIS. STAT. § 907.02(1).          Stucker’s
experience-based testimony was sufficiently reliable.

      ¶14    As to the trial court’s pretrial ruling, though the court focused on
whether Stucker’s testimony would be helpful to the jury, we agree with the State
that the court did not ignore the reliability requirement entirely. The court was
familiar with Stucker’s testimony, having allowed it in a previous case. Moreover,
the court had before it the State’s opposition to Bailey’s motion, which set forth
Stucker’s qualifications to testify about victim behaviors and explained the
methodology Stucker used to acquire knowledge of the behaviors about which he
was to testify. Though the court’s reasons for concluding that Stucker’s testimony


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was admissible could have been more fulsomely stated, we are obliged to look for
reasons to sustain its decision given our standard of review. See Hogan, 397
Wis. 2d 171, ¶26.        Here, the record contains sufficient evidence concerning
Stucker’s experience, which was the basis for the court’s reliability determination.
The circuit court did not erroneously exercise its discretion in denying Bailey’s
motion to exclude it.

              By the Court.—Judgment affirmed.

              This      opinion   will   not       be   published.   See     WIS. STAT.
RULE 809.23(1)(b)5




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