Baer, Rodney v. Richardson, Reed

District Court, W.D. Wisconsin·Decided July 18, 2022·No. 3:20-cv-00540·Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

RODNEY R. BAER,

Petitioner, OPINION and ORDER v.

20-cv-540-jdp REED RICHARDSON,

Respondent.

Rodney R. Baer, a prisoner at Stanley Correctional Institution, seeks habeas relief under 28 U.S.C. § 2254. The matter is fully briefed and ready for decision. Baer challenges his 2015 Wisconsin state-court conviction for sex offenses against his minor daughters. Baer contends that the state trial court violated his constitutional rights when it excluded evidence that Baer says was relevant to his daughters’ credibility about the sexual assault allegations and that the state court of appeals erred in concluding that the exclusion of that evidence was harmless error. The excluded evidence was that Baer’s daughters repeatedly sang a comedic song, “Get a New Daddy,” around the time they made the sexual assault allegations. The song concerned a boy, unhappy with a strict father, who made false sexual abuse allegations so that his father would be removed from the home. I conclude, as did the trial court, that the girls’ singing of “Get a New Daddy” was at best minimally relevant to the girls’ credibility and the sexual assault allegations against Baer. Because the probative value of that evidence was so low, its exclusion did not violate Baer’s constitutional rights to mount a defense and to cross-examine the witnesses against him. The state court of appeal’s decision that the exclusion of the evidence was harmless error is not factually or legally unreasonable. Baer is not entitled to habeas relief under § 2254. A. Background In June 2014, two of Baer’s daughters, ten-year-old AAB and twelve-year-old KHB, accused him of having sexual contact and intercourse with them on multiple occasions between January and June of 2014. At the time they made the allegations, the daughters were living

with Baer at the home of Baer’s girlfriend, Althea Daleon. Baer was the custodial parent, which caused conflict between Baer and the girls’ mother, Kelly. Both Kelly and the girls wanted the girls to live with Kelly. Baer contends that the girls falsely accused him of the sexual assaults so that he would lose custody and they would be placed with Kelly. Indeed, after Baer’s arrest, the girls went to live with Kelly. 1. Trial court proceedings Baer’s counsel sought to introduce evidence that prior to making the assault allegations the girls repeatedly sang a song entitled “Get a New Daddy,” which they had seen and heard

performed by a comedy group on YouTube.1 The lyrics involve a boy, unhappy with a strict father, who lies about being sexually molested so that he would “get a new daddy.” Baer argued that this evidence was admissible on several grounds: as other-acts evidence to show intent, motive, opportunity, and knowledge to lie; as evidence of character for truthfulness; or, alternatively, as necessary to his defense as a matter of due process. He sought to introduce evidence about the girls singing the song through Daleon’s testimony and through cross- examination of AAB and KHB. Just before trial, the court held a hearing on Baer’s request to introduce evidence of the

song. Dkt. 9-9 (transcript of trial day 1). In an offer of proof, Daleon testified that she had

1 The song is available and easily found on YouTube: https://www.youtube.com/watch?v=iNR- x1net-A. Last visited July 12, 2022. witnessed KHB play the “Get a New Daddy” video in January or February of 2014. She also witnessed KHB playing the video for AAB, and she noticed that KHB had the song’s lyrics memorized. Daleon testified that she remembered the song specifically because she had scolded the girls for singing it. The trial court declined to admit the song as other-acts evidence, but it

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