### COURT OF APPEALS DECISION DATED AND FILED May 6 , 2020

Sheila T. Reiff 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No s . 2018AP1853

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2018AP1854

- CR Cir. Ct. No s . 2015CF 1004 2016CF44

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN ,
P LAINTIFF - R ESPONDENT ,

V .
L EROY E. J OHNSON ,
D EFENDANT - A PPELLANT .

APPEAL from judgment s of the circuit court for Kenosha County:
MARY KAY WAGNER , Judge. Affirmed

.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).Nos. 2018AP1853

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2 ¶ 1 PER CURIAM. In these consolidated cases, Leroy E. Johnson appeals from judgment s convicting him of numerous crimes. He contends that the
circuit court erred by (1) denying his motion to suppress his statement to police; (2) denying his request to admit evidence of a victim’s prior sexual conduct ; and (3) admitting evidence that he kept a room in his house for viewing sexually explicit
material s . We reject Johnson’ s arguments and affirm.

¶ 2 On April 11, 2013, Johnson approached a young female with the
initials J.L.R., pointed a gun at her, and demanded that she get in to his car. J.L.R. complied. Johnson drove J.L.R. around Kenosha and sexually assault ed her. Eventually, J.L.R. escaped from J ohnson’s car.

¶ 3 On October 22, 2015, Johnson approached another young female with
the initials H.A.B. , pointed a gun at her, and demanded that she get in to his car. H.A.B. ran away and was able to provide police with a vehicle description and partial license plate number of Johnson’s car

. ¶ 4 That same day , Johnson approached another young female with the
initials L.M.B., grabbed her by her shirt collar, pointed a gun at her, and demanded that she get in to his car. L.M.B. tried to give Johnson money , which he took before demanding again that she get in to his car. L.M.B. kicked Johnson and ran away.
¶ 5 From H.A.B.’s vehicle description and partial license plate number, police determined that the suspect vehicle was registered to Joyce Gielas, who lived
with Johnson. Police went to Gielas ’ home and met Johnson, who confessed to approaching L.M.B , pointing a gun at her, and attempting to drag her into his car

. Johnson said that he was “lonely” and explained that he “ wasn’t going to rape [L.M.B.] ” ; rather, he “was just going to make her drive around with him in the
vehicle .” Police placed Johnson under arrest.Nos. 2018AP1853

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3 ¶ 6 After Johnson’s arrest, police continued to investigate J.L.R.’s kidnapping and sexual assault. DNA taken from J.L.R.’s rape kit matched
Johnson ’s profile

. The cases involving the three victims were subsequently
consolidated for trial

. ¶ 7 Pr ior to trial, Johnson moved to suppress his statement to police on the ground that he was not given Miranda 1 warnings. The circuit court held an evidentiary hearing at which only Detective Patrick Patton testified. At the conclusion of the hearing, the c ourt denied the motion, determining that Johnson was not in custody when he gave his statement and therefore not entitled to Miranda warnings

. ¶ 8 On the morning of trial , the parties discussed Johnson’s intent to admit
evidence of J.L. R .’s prior sexual conduct. J.L. R . had engaged in sexual intercourse
with a different adult male approximately an hour before encountering Johnson. 2
S he did not initially disclose that fact to police for fear that her mother would find out. Johnson argued that this evidence was relevant to J.L. R .’s credibility , as it indicated that she might lie to stay out of trouble . The circuit court ruled the
evidence inadmissible under Wisconsin’s rape shield law, W IS

. S TAT

. § 97 2 .1 1 (2017

- 18). 3

¶ 9 During trial , Johnson objected to the State introducing evidence that he kept a room in his house for viewing sexually explicit materials. The room
contained two televisions, a chair, hundreds of X

- rated videos , sex toys, lubricants,

1 Miranda v. Arizona , 384 U.S. 436 (1966).

2 Although J.L.R

. perceived the earlier sexual intercourse to be consensual, she could not legally consent due to her age.

3 All references to the Wisconsin Statutes are to the 2017

- 18 version.Nos. 2018AP1853

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4 and towels. Johnson asserted that th e evidence was irrelevant and unfairly prejudicial. The State argued that it showed Johnson’s intent. The circuit court agreed with the State and concluded that the evidence was admissible.

¶ 10 Ultimately, the jury found J ohnson guilty of kidnapping, first

- degree sexual assault of a child, two counts of attempted kidnapping, theft, attempted abduction of a child, child enticement, and false imprisonment. The circuit court imposed an aggregate sentence of sixty years of ini tial confinement and twenty years of extended supervision. This appeal follows.

¶ 11 On appeal, Johnson first contends that the circuit court erred by denying his motion to suppress his statement to police

. He maintains that the

statement should have been suppressed because he was in custody and not given Miranda warnings.

¶ 12 The warnings prescribed by Miranda are required only when a suspect is in custody. See State v. Morgan , 2002 WI App 124, ¶10, 254 Wis. 2d 602, 648 N.W.2d 23. A suspect is in custody for Miranda purposes when his or her “freedom of action is curtailed to a ‘degree associated with formal
arrest.’” Berkemer v. McCarty , 468 U.S. 420, 440 (1984) (citation omitted).

¶ 13 In determining whe ther a suspect is in custody for Miranda purposes, courts must consider the totality of the circumstances. Morgan , 254 Wis. 2d 602, ¶12

. Relevant factors include the suspect ’ s freedom to leave the scene; “the purpose, place, and length of the interrogati on; and the degree of restraint.” Id. When considering the degree of restraint, courts consider “whether the suspect is handcuffed, whether a weapon is drawn, whether a frisk is performed, the manner in which the suspect is restrained, whether the suspec t is moved toNos. 2018AP1853

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5 another location, whether questioning took place in a police vehicle, and the number of officers involved.” Id.

¶ 14 “The test for custody is an objective one.” State v. Goetz , 2001 WI App 294, ¶11, 249 Wis. 2d 380, 638 N.W.2d 386. Courts ask “whether a reasonable person in the suspect ’ s position would have considered himself or herself to be in custody.” Id.

¶ 15 In reviewing a decision denying a motion to suppress evidence, this court upholds the circui t court ’ s findings of fact unless they are clearly

erroneous. State v. Mosher
, 221 Wis. 2d 203, 211, 584 N.W.2d 553 (Ct. App. 1998). However, whether a person is in custody for Miranda purposes presents a question of law, which we review de novo. Mosher
, 221 Wis. 2d at 211

. ¶ 16 Based on the testimony at the suppression hearing, we conclude that Johnson was not in custody at the time he gave the challenged statement. As noted
above , police were at Johnson’s home to perform a check on a vehicle registered to
the same address. According to Patton, Johnson invited police inside after having a

“ [ c ] ordial” conversation with them in his driveway. Johnson offered them seats in his living r oom. He was never handcuffed, his movements were not restricted, and police never drew their weapons. In all, Patton’s questioning lasted approximately ten minutes before Johnson gave his statement regarding L. M .B. Johnson makes
much of the fact that fo ur officers were present at his home ; however, that factor alone would not lead a reasonable person in his position to have considered himself or herself to be in custody. Johnson could have walked out his front door had he
wanted to or , as the circuit co urt remarked, “just tell the police to get out.” At any rate, g iven the totality of the circumstances , the court properly denied Johnson’s motion to suppress.Nos. 2018AP1853

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6 ¶ 17 Johnson next contends that the circuit court erred by denying his request to admit evidence of J.L. R .’s prior sexual conduct

. Again, the circuit court ruled the evidence inadmissible under Wisconsin’s rape shield law, W IS

. S TAT

. § 972.11.

¶ 18 The admission or exclusion of evidence is a discretionary circuit court
decision and will not be disturbed absent an erroneous exercise of
discretion. See State v. Doerr , 229 Wis. 2d 616, 621, 599 N.W.2d 897 (Ct. App. 1999). W e will uphold the court ’ s decision if discretion was exercised in accordance with accepted legal sta ndards and the facts of record, and if there was a
reasonable basis for the court ’ s determination. State v. Hammer , 2000 WI 92, ¶21 , 236 Wis. 2d 686, 613 N.W.2d 629.

¶ 19 Wisconsin’s rape shield law generally prohibits the introduction of

a ny evidence of the complainant’s prior sexual conduct “regardless of the purpose.”
W IS

. S TAT

. § 972.11(2) (c) ; 4 State v. Ringer , 2010 WI 69, ¶ 25, 326 Wis. 2d 351, 785 N.W.2d 448. At times, however, the statute must yield to the accused’s right to present a defense. See State v. Williams , 2002 WI 58, ¶ 69, 253 Wis. 2d 99, 644 N.W.2d 919. We review de novo whether applying the statute to a particular fact
situation deprive s a defendant of a constitutiona l right. Id.

¶ 20 A defendant’s constitutional right to present evidence is limited to the presentation of “relevant evidence not substantially outweighed by its prejudicial effect.” See State v. Pulizzano , 155 Wis. 2d 633, 646, 456 N.W.2d 325 (1990)

. The

4 T he statute enumerates three narrow exceptions ; however, none of them apply to this
case

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7 defendant must put forth a sufficient offer of proof to establish a constitutional right to present otherwise excluded evidence. Id. at 656.

¶ 21 We agree with the circuit court that the rape shield law barred the
admissio n of evidence of J.L.R.’s prior sexual conduct. We further conclude that the law’s application did not deprive Johnson of his constitutional right to present
evidence. As noted by the State, Johnson failed to show that the excluded evidence

was relevant t o a material issue

. Although J.L.R.’s credibility was a subject at trial, Johnson’s defense was that she misidentified him, not that she intentionally lied about him sexually assaulting her. Accordingly, the evidence was not necessary to the case, and th e circuit court correctly denied Johnson’s request to admit it.

¶ 22 Finally, Johnson contends that the circuit court erred by admitting evidence that he kept a room in his house for viewing sexually explicit material s

. He renews his assertion that the evidence was irrelevant and unfairly prejudicial.

¶ 23 Although a close call, we are satisfied that the circuit court properly
admitted the evidence in question to prove that Johnson’s actions were sexually
motivated. 5 Ag ain, Johnson ’s story to police was that he approached L.M.B., pointed a gun at her, and attempted to drag her into his car just so that he could “make her drive around with him.” The fact that he devoted a substantial amount of living space to the exclusi ve viewing of sexually explicit materials suggest s that he had other things in mind. While th is suggestion may have been prejudicial to Johnson’s case , it was not unfairly so. In any event, the circuit court mitigated the

5 To prevail on charges of kidnapping and attempted kidnapping, the State had to prove that Johnson intended the victims to be “held to service against [their] will. ” See W IS JI

— C RIMINAL 1280. That phrase includes “ sexual acts performe d at the command of another.” Id. , n. 4.Nos. 2018AP1853

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8 danger of unfair prejudice by gi ving the jury a limiting instruction at Johnson’s request. 6

¶ 24 We also conclude that any error in admitting th is evidence was harmless. E ven without th is evidence, the jury still would have heard testimony
from J.L.R. clearly showing that Johnson’s crimes were sexually motivated. Moreover, the other evidence against Johnson was strong

. All three victims identified him as the perpetrator . Their allegations were corroborated by DNA evidence from J.L.R.’s rape kit; video footage showin g Johnson approaching
H.A.B. ; H.A.B.’s description of Johnson’s car, which was registered to a woman he
lived with ; and Johnson’s incriminating statement to police concerning L.M.B.

¶ 25 For these reasons, we affirm.

By the Court.

— Judgments affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.

6 The instruction stated in part, “ evidence has been presented that the defendant was in possession of explicit materials in the upstairs loft. If you find that this did occur, you should consider it only on the issue of intent to cause the victims to be held to service against their wills. ”