COURT OF APPEALS

DECISION

DATED AND FILED

January 17, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP243-CR Cir. Ct. No. 2019CF967

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

THOMAS J. BUSA,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Kenosha County: 

JASON A. ROSSELL, 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). 
No. 2022AP243-CR

2

¶1 PER CURIAM. Thomas J. Busa appeals a judgment of conviction

for second-degree sexual assault of a child, child enticement, and exposing 

genitals to a child.1 He argues that the circuit court erred by denying his motion 

for access to the victim’s counseling records without performing an in-camera 

review of the records, that the court improperly struck his DNA analyst’s 

testimony as a discovery sanction, that the jury instructions were inadequate, and 

that his total sentence was unduly harsh. We reject these arguments and affirm.

BACKGROUND

¶2 Busa was convicted, following a jury trial, of second-degree sexual 

assault of a child, child enticement, and exposing his genitals to a minor. Pretrial, 

he had sought an in-camera inspection of the victim’s medical records relating to 

some counseling the victim had allegedly received, colloquially known as a 

Shiffra-Green motion.2 The circuit court denied that motion, concluding that the 

defense had failed to satisfy the criteria necessary to obtain an in-camera 

inspection of the records. 

¶3 The victim alleged that the sexual assault occurred in her bed when 

Busa inserted his finger into her vagina. Pretrial, Busa had notified the 

prosecution that he intended to call Dr. Alan Friedman as an expert witness to 

discuss the results of DNA testing on item A1a, a swabbing of Busa’s left-hand 

 

1

 Busa’s appellate arguments are primarily directed to his second-degree sexual assault 

of a child conviction. He raises the other convictions only as they pertain to the length of his 

global sentence. As a result, we address those convictions only as they relate to sentencing, and 

we need not engage in a detailed discussion of the underlying facts. 

2

 See State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), modified by 

State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, and overruled by State v. 

Johnson, 2023 WI 39, 407 Wis. 2d 195, 990 N.W.2d 174. 
No. 2022AP243-CR

3

fingernail obtained a number of hours after the act of penetration. At the final 

pretrial, the State notified the circuit court that it did not intend to present any 

DNA evidence. 

¶4 Friedman was called by the defense at trial. The Wisconsin State 

Crime Laboratory had determined that a low-level minor contributor to the DNA 

found on the A1a sample was not suitable for interpretation. Friedman testified to 

the contrary at trial:

[Friedman:] Well, let me just say that that was the 

language that was used by the Wisconsin 

State Crime Lab analyst and I went back and 

looked at the low level profile and it was 

very low level. To see if [the victim] could 

have been the source of this low level 

profile, and assuming that there were only 

two contributors, I concluded ... that [the 

victim] could not have been the source of 

this low level profile.

 ....

[Defense So ... ultimately the conclusions that you 

counsel:] reached are contained in the report that you

just testified to, is that correct?

[Friedman:] Everything except that final conclusion[]

[that the victim] could not be ... the 

contributor to the A1[a]. 

¶5 The prosecutor objected to that testimony and moved to strike, 

asserting that none of Friedman’s three reports disclosed to the prosecution 

provided notice of his opinion that the victim was not a contributor to the DNA 

found on item A1a. In response, defense counsel stated that Friedman’s 

conclusion was a new one that defense counsel had only learned of the night prior. 

Defense counsel stated he had not disclosed the new opinion because he had not 

intended to raise the matter, but he changed his mind after the prosecutor cross-
No. 2022AP243-CR

4

examined the DNA analyst from the crime laboratory, who had been called as a 

defense witness.

¶6 The circuit court found that the failure to disclose Friedman’s 

conclusion was an “egregious violation” of the discovery statute, WIS. STAT.

§ 971.23 (2021-22).3 It rejected Busa’s argument that Friedman’s conclusion was 

valid rebuttal testimony, noting that the state DNA analyst was called as a defense 

witness. Under those circumstances, “[a] witness called by the defense does not 

open the door to rebuttal.” As a sanction, when the jurors returned to the 

courtroom they were advised that they could consider only Friedman’s testimony 

and opinions contained in his reports; any of his other testimony and opinions

were stricken from the record and not to be considered when reaching a verdict. 

¶7 Busa was ultimately convicted. At sentencing, the circuit court 

acknowledged Busa’s advanced age, medical challenges, and lack of prior 

offenses. However, the court concluded that the presentence investigation report 

(PSI) global sentencing recommendation of approximately eight to nine years’ 

initial confinement with five to seven years’ extended supervision did not 

sufficiently account for the gravity of the offenses or satisfy the deterrent and 

punishment objectives of sentencing. The court imposed twelve years’ initial 

confinement and ten years’ extended supervision on the second-degree sexual 

assault of a child conviction, with a consecutive five years’ initial confinement and 

 

3

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP243-CR

5

five years’ extended supervision on the child enticement conviction.4 Busa now 

appeals.

DISCUSSION

¶8 Busa first argues the circuit court erred by denying an in-camera 

review of the victim’s counseling records. The Shiffra-Green issue in this case

was rendered moot by our supreme court’s decision in State v. Johnson, 2023 

WI 39, 407 Wis. 2d 195, 990 N.W.2d 174, which overruled Shiffra and validated 

a patient’s statutory privilege to refuse to disclose confidential medical 

information. See also WIS. STAT. § 905.04. Because Busa is not entitled to an

in-camera review of the victim’s medical records under Johnson, there is no basis 

to overturn the circuit court’s decision.

5

¶9 Next, Busa argues the circuit court erred by striking Friedman’s 

testimony that the victim was not a contributor to the minor DNA profile found on 

item A1a. He contends the defense did not violate the discovery statute, or, 

alternatively, that Friedman’s testimony was valid rebuttal evidence following the 

State’s cross-examination of the crime laboratory analyst. The interpretation and 

application of WIS. STAT. § 971.23 and whether good cause has been shown for a 

failure to comply with the statute present questions of law that we review de novo. 

State v. DeLeo, 2002 WI 49, ¶¶14-15, 252 Wis. 2d 289, 643 N.W.2d 480.

 

4

 A one-year jail sentence for the exposure conviction was imposed concurrent to the 

sentence for child enticement but consecutive to the sentence for second-degree sexual assault of 

a child.

5

 The parties did not submit a notice of supplemental authority pursuant to WIS. STAT.

RULE 809.19(10) or otherwise address the Johnson case. 
No. 2022AP243-CR

6

¶10 WISCONSIN STAT. § 971.23(2m)(am) requires the defense disclosure 

of “[a]ny relevant written or recorded statements of a witness ... including any 

reports or statements of experts made in connection with the case or, if an expert 

does not prepare a report or statement, a written summary of the expert’s findings 

or the subject matter of his or her testimony.” Busa variously argues that 

Friedman’s opinion that the victim could not have contributed to the minor DNA 

profile was adequately disclosed and that no disclosure was necessary because his 

opinion was “merely an interpretation of a DNA analyst report which was already 

in the State’s possession.” 

¶11 We are not persuaded. It appears undisputed that the three pretrial 

reports the defense filed relating to Friedman’s testimony did not explicitly 

reference Friedman’s finding that the victim could not have been a contributor to

the minor DNA profile. Busa nonetheless argues that such a finding can be 

inferred from other portions of the report, such that the disclosure was adequate 

under State v. Schroeder, 2000 WI App 128, ¶6, 237 Wis. 2d 575, 613 N.W.2d 

911. 

¶12 Friedman’s second amended report reiterated the crime laboratory

analyst’s conclusion that the low-level minor contributor profile was “not suitable 

for interpretation.” Later in the report, Friedman wrote: “If the laboratory analyst 

had concluded that there was evidence that [the victim] was possibly a contributor 

but the level did not meet the laboratory’s criteria for inclusion, the report would 

have read that the possible contribution from [the victim] was inconclusive.” 

¶13 Had Friedman’s testimony been limited to his interpretation of the 

state analyst’s report, we might see the logic in Busa’s argument. At least on its 

face, though, Friedman’s testimony was broader and suggested an independent 
No. 2022AP243-CR

7

conclusion that the victim could not have been a contributor to the low-level minor 

DNA profile. If Friedman’s opinion in that regard was truly a matter of 

interpretation regarding the state analyst’s use of the phrase “not suitable for 

interpretation,” Busa failed to explain that context to the circuit court or to make 

an offer of proof establishing that as the basis for Friedman’s conclusion. 

¶14 Schroeder is easily distinguishable. There, the State expert used the 

Tanner Sexual Maturation Scale to estimate the ages of children depicted in child 

pornography the defendant possessed. Schroeder, 237 Wis. 2d 575, ¶7. The 

State’s expert witness disclosure used the word “Tanner” nine times in a context 

that “made it clear that Tanner had something to do with determining the age of a 

child.” Id., ¶9. The court determined this disclosure was sufficient to satisfy the 

State’s obligations under WIS. STAT. § 971.23. 

¶15 Here, by contrast, at most the State was on notice that Friedman 

might quibble with the meaning of the state analyst’s report. Specifically, Busa’s 

disclosures suggested only that Friedman might testify that the crime laboratory

analyst would have used different language if she had “concluded that there was 

evidence that [the victim] was possibly a contributor.” But the disclosure was not 

adequate to inform the State that Friedman had reached his own conclusion about 

whether the victim could have been a contributor to the minor DNA profile on 

item A1a. 

¶16 Busa also argues that no notice of Friedman’s new conclusion was 

required because his corresponding testimony was intended for rebuttal or 
No. 2022AP243-CR

8

impeachment purposes under WIS. STAT. § 971.23(1)(d).6 The test to determine 

whether testimony is bona-fide rebuttal evidence is whether the “evidence became 

necessary and appropriate” because it controverted the State’s case. See State v. 

Novy, 2013 WI 23, ¶34, 346 Wis. 2d 289, 827 N.W.2d 610. But here, the State 

did not seek to introduce any DNA evidence; Busa called the state crime 

laboratory analyst to testify. The mere fact that the State cross-examined that 

witness does not transform Friedman’s testimony into bona-fide rebuttal evidence. 

¶17 We also reject the argument that Friedman’s new opinion was valid 

impeachment evidence. A party may attack the credibility of any witness, even a 

witness they have called. WIS. STAT. § 906.07. But given the state of the 

appellate record, it is unclear how Friedman’s opinion would have impacted the 

credibility of the crime laboratory analyst. Friedman testified only regarding his 

bare-bones conclusion that the victim could not have been a contributor to the 

minor DNA profile found on Busa’s fingernail. There was no offer of proof 

regarding how he reached that conclusion, nor a critique of the state laboratory 

analyst’s methodology. 

¶18 Moreover, an arguable inconsistency in the conclusions of the two 

expert witnesses Busa called does not relieve him of his obligations under the 

discovery statute. Trials are not shell games. While a party may validly refuse to 

disclose the names and addresses of witnesses intended only for rebuttal and 

impeachment, see WIS. STAT. § 971.23(2m)(a), this does not mean that the parties 

 

6

 Subsection (1) of WIS. STAT. § 971.23 pertains to information the State must disclose 

to the defendant. Instead, the relevant portion of the statute for purposes of Busa’s argument is 

§ 971.23(2m)(a), which states that a defendant must disclose: “A list of all witnesses, other than 

the defendant, whom the defendant intends to call at trial, together with their addresses. This 

paragraph does not apply to rebuttal witnesses or those called for impeachment only.” 
No. 2022AP243-CR

9

may hide the expert conclusions of witnesses already named.7 Section 

971.23(2m)(am) broadly requires the disclosure of “[a]ny relevant written or 

recorded statements” of expert witnesses, and the presence or absence of DNA 

consistent with the victim’s on Busa’s fingernail was certainly a matter that was 

relevant to the question of whether he committed the charged offense. (Emphasis 

added.)

¶19 Busa next argues the circuit court’s instruction to the jury regarding 

the definition of “sexual intercourse” failed to accurately state the law. 

Specifically, he argues that the instruction failed to apprise the jury that sexual 

intercourse did not include an intrusion for a proper non-sexual purpose, as in

State v. Lesik, 2010 WI App 12, ¶13, 322 Wis. 2d 753, 780 N.W.2d 210 (holding 

that “bona fide medical, health care, and hygiene procedures” do not constitute 

“sexual intercourse” for purposes of the statute prohibiting sexual assault of a 

child). Busa asserts this was an important qualification, given his defense that any 

contact with the victim’s vagina was accidental and occurred when he was 

grabbing a blanket. 

¶20 Busa acknowledges this argument was forfeited by his failure to 

request the instruction at trial. See State v. McKellips, 2016 WI 51, ¶47, 369 

Wis. 2d 437, 881 N.W.2d 258. However, he requests that we invoke our WIS.

STAT. § 752.35 discretionary reversal authority, apparently on the basis that the 

real controversy was not fully tried. We use our power of discretionary reversal 

sparingly and only in exceptional cases. McKellips, 369 Wis. 2d 437, ¶30. 

 

7

 In this vein, it is worth noting that Busa does not argue that he need not have disclosed 

Friedman as a witness. His argument is that only a portion of Friedman’s testimony was exempt 

from disclosure. 
No. 2022AP243-CR

10

¶21 We are not persuaded that this is an exceptional case. Busa’s 

argument rests on the assertion that he was entitled to a Lesik instruction, but his 

defense of accidental penetration was fundamentally different from the defense at 

issue in Lesik. There, the defendant argued that any intrusion into the victim’s 

vagina occurred while he was cleaning the victim and medicating the rashes she 

developed as a result of her medical condition. See Lesik, 322 Wis. 2d 753, ¶3. In 

short, Busa has failed to establish that the law mandates an instruction advising 

that “sexual intercourse” does not include penetration for a “proper non-sexual 

purpose” where the defendant’s only claim is that the penetration was accidental. 

¶22 Busa’s final argument is that he was sentenced too harshly for his 

crimes. When a defendant argues that his or her sentence was unduly harsh or 

excessive, we may find an erroneous exercise of discretion only when the sentence 

is so excessive and unusual and so disproportionate to the offense that it shocks 

the public sentiment and violates the judgment of reasonable people concerning 

what is right and proper under the circumstances. State v. Grindemann, 2002 WI 

App 106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507. 

¶23 Busa’s global sentence in this case does not meet these criteria. His 

individual sentences were well within the maximum penalties for his crimes, 

which were forty years’ incarceration for the sexual assault conviction and twentyfive years’ incarceration for child enticement. See WIS. STAT. § 939.50(2)(c), (d). 

His sentence was therefore not presumptively harsh or excessive. 

¶24 We are not persuaded that the sentence was rendered harsh or 

excessive by virtue of Busa’s advanced age or medical condition. Busa was 

seventy years old when sentenced and had recently suffered a stroke. The circuit

court explicitly acknowledged these matters at sentencing, but it found that a 
No. 2022AP243-CR

11

lesser sentence would depreciate the seriousness of the offenses and would not 

adequately serve a deterrent function. Busa committed serious crimes, and it was 

within the court’s discretion to sentence him accordingly.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.