State v. Muhammad Sarfraz

2014 WI 78

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP337-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Muhammad Sarfraz,
Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 348 Wis. 2d 57, 832 N.W.2d 346
(Ct. App. 2013 – Published)
PDC No.: 2013 WI App 57

OPINION FILED: July 22, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 18, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Dennis R. Cimpl

JUSTICES:
CONCURRED: ZIEGLER, ROGGENSACK, JJ., concur. (Opinion
filed.)
DISSENTED:
NOT PARTICIPATING: PROSSER, J., did not participate.

ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Daniel J. O’Brien, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-respondent, there was a brief by Jason D.
Luczak, Raymond M. Dall’Osto, and Gimbel, Reilly, Guerin & Brown
LLP, Milwaukee, and oral argument by Jason D. Luczak.
 2014 WI 78
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP337-CR
(L.C. No. 10CF2453)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin

Plaintiff-Respondent-Petitioner,
FILED
v. JUL 22, 2014

Muhammad Sarfraz, Diane M. Fremgen
Clerk of Supreme Court

Defendant-Appellant.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 MICHAEL J. GABLEMAN, J. The petitioner, State of

Wisconsin, seeks review of a published court of appeals decision1
that reversed the circuit court's judgment of conviction against

the defendant, Muhammad Sarfraz, and remanded the case for a

new trial. The court of appeals determined that the circuit

court had erred by denying Sarfraz's motion to admit evidence of

a prior sexual relationship with the complainant, I.N., because

1
State v. Sarfraz, 2013 WI App 57, 348 Wis. 2d 57, 832
N.W.2d 346 (reversing order of the circuit court for Milwaukee
County, Dennis R. Cimpl, Judge).
 No. 2012AP337-CR

the evidence fit within a statutory exception to Wisconsin's

rape shield law, Wis. Stat. § 972.11(2)(b)1 (2009-10).2

¶2 We hold that the circuit court's refusal to admit the

proffered evidence of the prior sexual relationship was proper

under Wisconsin's rape shield law, Wis. Stat. § 972.11. Such

evidence is admissible only if the following three criteria are

satisfied: 1) the proffered evidence relates to sexual

activities between the defendant and the complainant; 2) the

evidence is material to a fact at issue in the case; and 3) the

evidence is of sufficient probative value to outweigh its

inflammatory and prejudicial nature. State v. DeSantis, 155

Wis. 2d 774, 785, 456 N.W.2d 600 (1990). Here, while we agree

with the court of appeals that the circuit court improperly

found that the proffered evidence of prior sexual conduct was

not material, we nevertheless conclude the circuit court

correctly excluded the evidence because Sarfraz failed to

establish, under the third DeSantis prong, that the probative

value of the evidence outweighed its inherent prejudice.
¶3 Accordingly, we reverse and remand to the court of

appeals for consideration of the ineffective assistance of

counsel and sentencing arguments raised by Sarfraz but not

previously addressed.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

2
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

2
 No. 2012AP337-CR

¶4 Most of the facts in this case are disputed. The

parties agree on very little. The State and Sarfraz agree that

he knew I.N. prior to the charged assault, that I.N. and her

father lived with Sarfraz when they first emigrated here from

Pakistan, that they later moved to a separate apartment, and

that on May 15, 2010, Sarfraz came to I.N.'s apartment. While

he was there, both Sarfraz and I.N. sustained knife wounds, and

I.N. sustained injuries consistent with strangulation. At some

point on that date, Sarfraz and I.N. engaged in sexual

intercourse, and after Sarfraz left, I.N. was found in the

hallway naked from the waist down, screaming that she had been

raped.

¶5 Apart from these general facts, the parties presented

vastly different versions of the events that occurred on May 15,

2010. The State alleged a forcible rape, while Sarfraz

maintained that any sexual contact was consensual. Sarfraz was

arrested the same day of the alleged attack, after police

stopped his taxicab. The State filed a complaint against
Sarfraz charging him with second degree sexual assault with

force or violence by use of a dangerous weapon, in violation of

Wis. Stat. §§ 940.225(2)(a), 939.63(1)(b). Sarfraz pled not

guilty.

¶6 Prior to the trial, Sarfraz moved to admit evidence of

prior sexual conduct between himself and I.N. In his motion,

Sarfraz asserted that the sexual conduct between himself and

I.N. was consensual. He further alleged, "on numerous occasions
in the days and months preceding the date of the alleged sexual
3
 No. 2012AP337-CR

assault, that he and the victim, I.N., engaged in various forms

of consensual sexual contact." He contended that his wife would

support his allegations by testifying that she caught him in bed

with I.N. He also stated that two other acquaintances would

testify that they observed a flirtatious relationship between

I.N. and Sarfraz.

¶7 The circuit court held an evidentiary hearing

regarding Sarfraz's motion on November 29, 2010. At the

hearing, Sarfraz testified that he had a prior sexual

relationship with I.N. He stated that initially when I.N. lived

with him, he would hug her and "grab" her. As the relationship

progressed, I.N. would lie in bed with him, where they would

fondle and masturbate one another, but never engaged in

intercourse because of their cultural values. Sarfraz explained

that in their culture, individuals did not have intercourse

outside of marriage.

¶8 Sarfraz testified that on one occasion, when he was

lying in bed with I.N., his wife came home and found them
together. I.N. and her father moved out shortly thereafter.

Sarfraz visited I.N. at her apartment on multiple occasions to

continue the relationship.

¶9 Sarfraz's wife, Riffat Sarfraz, also testified at the

evidentiary hearing. She corroborated Sarfraz's testimony about

catching him in bed with I.N. She stated that she came home

early one day when her daughter was sick, and when she arrived

home, she found I.N. in bed with Sarfraz. Neither one was
wearing pants. On another occasion when she came home early due
4
 No. 2012AP337-CR

to a headache, she found Sarfraz and I.N. in the kitchen

lovingly putting food into each others' mouths. These incidents

upset her and she pressured Sarfraz to make I.N. and her father

move out of the house.

¶10 At the evidentiary hearing Sarfraz also presented the

testimony of a co-worker, Azmath Uddin. Uddin testified that on

one occasion when he visited Sarfraz's house, he saw Sarfraz

lying down with I.N. sitting on his lap with his hands around

her waist. On another occasion, he observed I.N. hugging

Sarfraz from behind while he was cooking.

¶11 In response, the State presented I.N. to testify at

the hearing. She stated that she did not have a sexual

relationship with Sarfraz, and that she had viewed him as a

brother. She further stated that she had never touched

Sarfraz's penis while she was living at his house, that she was

never alone with him in his bed, and that his wife did not see

them in bed together. I.N. and her father moved out after her

father got a job. She stated that the only times Sarfraz
visited her apartment was when he helped with the move and on

the date of the incident.

¶12 After receiving the testimony, the circuit court

determined that a jury could believe there was a sexual

relationship, despite I.N.'s denial. It noted that without the

rape shield law, the evidence would be relevant. However, to

fit within an exception to the rape shield law, the defendant

needed to show materiality. The circuit court stated that
masturbation was far different from forcible penis-to-vagina
5
 No. 2012AP337-CR

intercourse, and it reasoned that the defendant had failed to

show that the alleged past relationship was material to each of

the elements of rape. The circuit court also determined that

the evidence would be inadmissible under the third prong of the

DeSantis test. The circuit court concluded that Sarfraz could

present evidence about his relationship with I.N., but could not

present evidence regarding past sexual contact. Thus, the

circuit court denied Sarfraz's motion.

¶13 When the case proceeded to trial, the State again

presented I.N., who testified that she and her father lived with

Sarfraz and his family for a couple of months after they moved

to the United States from Pakistan. She stated that during that

time she did not have a romantic relationship with Sarfraz. She

and her father moved out after her father started working.

¶14 I.N. testified that at around 10:30 a.m. on May 15,

2010, she heard a knock on her door. When she asked who it was,

the individual responded "Jim." I.N. explained that Jim was her

landlord. When she opened the door, the person on the other
side was wearing a mask. He shoved her into the bathroom,

choked her and said "I'll kill you." As the man was pulling a

knife out of his pocket, I.N. managed to push the mask from his

face and saw that it was Sarfraz. Then, Sarfraz held the knife

up to her neck.

¶15 As they continued to struggle, Sarfraz set the knife

on the floor. I.N. pulled the knife toward her, lifted it up,

and slashed Sarfraz on the cheek. I.N. also cut herself on the
finger. She testified that blood filled the bathroom floor.
6
 No. 2012AP337-CR

After Sarfraz took the knife from her, he strangled her harder,

tried to hit her, and pulled at her breasts. I.N. continued to

struggle to get free.

¶16 I.N. testified that Sarfraz then tied a handkerchief

around her mouth and told her he was taking her to the bedroom.

I.N. resisted, trying to pull him toward the front door instead.

They ended up in the living room.

¶17 Once in the living room, Sarfraz threw I.N. onto the

floor, took off her pants and began to fondle her. I.N. kept

trying to get away from him but was unable to do so. Sarfraz

put a pornographic movie into the DVD player and tried to get

I.N. to watch it. She told him she did not want to watch it,

and he seemed surprised. I.N. testified that Sarfraz ultimately

forced her to have vaginal intercourse.

¶18 I.N. testified that she was afraid Sarfraz was going

to kill her, and she tried to leave a note for police by writing

his name in blood on a newspaper. After Sarfraz left, I.N. went

into the hallway and screamed for help.
¶19 The jury then heard testimony about the events of that

day from I.N.'s neighbor, Syed Abdul Bukari. He stated that his

wife had heard loud noises in the hallway and when he went to

investigate, he discovered I.N. standing half-naked and

bloodied, crying and yelling that someone had raped her.

¶20 The State also presented testimony from various

individuals involved in the investigation. This included

Officer Cosgrove, who inventoried a newspaper that had the
letters "S A R" written on it in blood and a pornographic DVD
7
 No. 2012AP337-CR

that was removed from the DVD machine at I.N.'s apartment.

There was also a photograph of a file cabinet in I.N.'s

apartment, which also had the letters "S-a-r" written on it in

blood.

¶21 Detective Stojsavljevic testified about recovering

evidence from Sarfraz's taxicab, including a bloody knife that

was hidden under the front seat. The knife was processed and

analyzed by a forensic scientist from the State Crime Lab who

testified that it contained DNA from both Sarfraz and I.N. The

forensic scientist also analyzed buccal, vaginal, and cervical

swabs from I.N. as well as swabs from Sarfraz. She identified

semen on the swabs from I.N.'s cervix and vagina that matched

Sarfraz's DNA.

¶22 The jury also heard testimony from the sexual assault

nurse who relayed the results of I.N.'s medical exam. I.N. had

tenderness at the front of her throat that was "secondary to

strangulation," a cut on her finger, and a cut on her ankle.

I.N. also had injuries to her vaginal areas consistent with
blunt force contact.

¶23 In addition, the jury was shown photographs taken of

I.N. on May 15, 2010. They revealed a three-to-four inch

scratch on her cheek, injuries to her neck, an injury between

her breasts, an injured finger, bruises on her elbow, and an

injury to her ankle.

¶24 Sarfraz presented a very different version of events

at trial. As background, Sarfraz repeated much of what he
stated at the evidentiary hearing. He testified that he and
8
 No. 2012AP337-CR

I.N. had a romantic relationship. They had previously engaged

in teasing, touching, hugging, and kissing each other. The

hugging and kissing was frequent and intense and had occurred

when his children were sleeping or away and his wife was out of

the house. He testified that he had even brought up marriage

with I.N., and that I.N. moved out after his wife caught them

together.

¶25 Sarfraz testified that he was not wearing a mask when

he went to I.N.'s apartment. He knocked on her door, I.N. asked

who it was, and he responded "me." Then I.N. opened the door.

¶26 After entering, Sarfraz hugged I.N. He went to the

refrigerator, got a few things, and then sat down and started

watching television. I.N. talked to him about her need for

money and insisted he leave his wife and children. When he told

her that he would not leave his wife and children, things "got

heated." I.N. was furious. She grabbed his collar, cried and

yelled, and hit him with her fist. He tried to leave, but she

kept pulling him inside.
¶27 Sarfraz testified that he suddenly had to use the

bathroom. While he was sitting in the bathroom, I.N. entered

and stabbed his face with a knife. A struggle ensued and he put

his hands on her throat to push her away. He took the knife

from I.N. and put it in his pocket. Then they went into the

living room. Sarfraz lay down due to pain caused by either

kidney stones or gall stones. Throughout this time, Sarfraz's

pants remained down.

9
 No. 2012AP337-CR

¶28 Sarfraz then asked I.N. if she knew what kind of

trouble she could get into if he called the police. I.N.

apologized. After Sarfraz recovered from the pain, I.N. started

"love talk" and sat on top of him. She fondled him and told him

she wanted to have intercourse. She rubbed herself against him

and asked him to forgive her. She then started the pornographic

DVD and rubbed his penis with her hand.

¶29 Sarfraz stated that I.N. tried to "make love," but he

pushed her away and said no. She continued rubbing his penis

and asked him to ejaculate on her, which he did. When Sarfraz

got up, he began cleaning up the blood and then left.

¶30 To support his defense, Sarfraz also presented the

testimony of his wife and Uddin. Uddin repeated his statements

from the evidentiary hearing, telling the jury that he had

observed I.N. sitting on Sarfraz's lap with his arms around her

waist. He also told the jury about the time he saw I.N. hug

Sarfraz while Sarfraz was cooking.

¶31 Likewise, Sarfraz's wife repeated much of what she had
stated at the evidentiary hearing. She told the jury that on

one occasion she saw I.N. and Sarfraz putting food in each

others' mouths. She also told the jury that she saw Sarfraz and

I.N. in the bedroom together, that this made her upset, and

afterwards she threw I.N.'s belongings out of the apartment.

Consistent with the court's instruction, his wife did not

elaborate on what exactly she saw.

¶32 The jury returned a guilty verdict and Sarfraz was
sentenced to ten years' incarceration and five years' extended
10
 No. 2012AP337-CR

supervision. Thereafter, Sarfraz moved for post-conviction

relief, alleging ineffective assistance of counsel and

entitlement to a new sentence. The circuit court denied the

motion. Sarfraz appealed, arguing that the circuit court erred

in rejecting his ineffective assistance of counsel claim, and

that the circuit court incorrectly interpreted the rape shield

law and violated his constitutional rights by excluding the

evidence of past sexual conduct between himself and I.N.

¶33 The court of appeals reversed the conviction and

remanded the case for a new trial. State v. Sarfraz, 2013 WI

App 57, ¶1, 348 Wis. 2d 57, 832 N.W.2d 346. The court of

appeals disagreed with the circuit court's conclusion that the

evidence of past sexual conduct was not relevant to a material

fact in the case, and it stated that the law did not require the

prior sexual conduct to be the same as that alleged in the

criminal case. Id., ¶26. It determined that the past sexual

conduct was material to the issue of consent, and the probative

nature of the past sexual contact outweighed any prejudice to
I.N. Id., ¶¶24, 30. Accordingly, the court of appeals

concluded that the circuit court erred by excluding the

evidence. Id., ¶31. The court of appeals did not address

Sarfraz's arguments about ineffective assistance of counsel and

entitlement to a new sentence.

¶34 The dissent did not agree that the excluded evidence

was material. Id., ¶34 (Brennan, J., dissenting). It noted

that testimony regarding the prior consensual masturbation was
the only excluded evidence and that other evidence of the
11
 No. 2012AP337-CR

romantic relationship was admitted at trial. Id. The dissent

also asserted that Sarfraz had not explained how the prior

consensual masturbation would give I.N. a motive to lie about

the incident on May 15. Id., ¶36. Moreover, the omitted

evidence had little probative value, as it did not support

Sarfraz's theory of defense and was too dissimilar to the

conduct charged. Id., ¶39.

II. STANDARD OF REVIEW

¶35 This issue in this case is whether the circuit court

properly excluded evidence of prior consensual sexual conduct

between Sarfraz and I.N. The exclusion of evidence is subject

to the circuit court's discretion. State v. Jackson, 216

Wis. 2d 646, 655, 575 N.W.2d 475 (1998). We will not find an

erroneous exercise of discretion unless the circuit court

"applied the wrong legal standard in the exercise of its

discretion or . . . the facts of record fail to support the

circuit court's decision." State v. Ringer, 2010 WI 69, ¶24,

326 Wis. 2d 351, 785 N.W.2d 448.
III. DISCUSSION

¶36 Sarfraz argues that the circuit court erroneously

exercised its discretion by excluding evidence of his prior

sexual relationship with I.N. to support his version of events

and I.N.'s motive to fabricate the charges. Sarfraz contends

that the circuit court's error deprived him of his

constitutional rights to present a defense and to confront

adverse witnesses.

12
 No. 2012AP337-CR

¶37 Defendants are granted the constitutional rights to

present a defense and confront adverse witnesses under the

confrontation and compulsory process clauses of Article I,

Section 7 of the Wisconsin Constitution3 and the Sixth Amendment

of the United States Constitution.4 State v. Pulizzano, 155

Wis. 2d 633, 645, 456 N.W.2d 325 (1990). These rights, which

have aptly been described as opposite sides of the same coin,

are "fundamental and essential to achieving the constitutional

objective of a fair trial." Id. (citing Chambers v.

Mississippi, 410 U.S. 284, 294 (1973)). Even so, these rights

3
Article I, Section 7 of the Wisconsin Constitution states:

In all criminal prosecutions the accused shall enjoy
the right to be heard by himself and counsel; to
demand the nature and cause of the accusation against
him; to meet the witnesses face to face; to have
compulsory process to compel the attendance of
witnesses in his behalf; and in prosecutions by
indictment, or information, to a speedy public trial
by an impartial jury of the county or district wherein
the offense shall have been committed; which county or
district shall have been previously ascertained by
law.
4
The Sixth Amendment to the United States Constitution
states:

In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed, which district shall
have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his
defense.

13
 No. 2012AP337-CR

are not absolute. "Confrontation and compulsory process only

grant defendants the constitutional right to present relevant

evidence that is 'not substantially outweighed by its

prejudicial effects.'" Jackson, 216 Wis. 2d at 657 (quoting

Pulizzano, 155 Wis. 2d at 646).

¶38 Here, Sarfraz's proffer of past sexual contact with

I.N. implicates Wis. Stat. § 972.11, Wisconsin's rape shield

law.5 Under the rape shield law, introducing any evidence

concerning the complainant's prior sexual history or reputation

is generally barred "regardless of the purpose." Wis. Stat.

§ 972.11(2)(c); Pulizzano, 155 Wis. 2d at 644. "The rape shield

law expresses the legislature's determination that evidence of a

complainant's prior sexual conduct has low probative value and a

highly prejudicial effect." DeSantis, 155 Wis. 2d at 784-85.

However, § 972.11 sets out three statutory exceptions to its

broad evidentiary shield, which "encompass those limited factual

scenarios in which the legislature has determined that evidence

of a complainant's sexual history may be sufficiently probative
of a material issue to overcome the prejudicial nature of such

5
Wisconsin's rape shield law was enacted "'to counteract
outdated beliefs that a complainant's sexual past could shed
light on the truthfulness of the sexual assault allegations.'"
State v. Carter, 2010 WI 40, ¶39, 324 Wis. 2d 640, 782
N.W.2d 695 (quoting State v. Dunlap, 2002 WI 19, ¶19, 250
Wis. 2d 466, 640 N.W.2d 112). The law is rooted in the
legislature's determination that evidence of a complainant's
prior sexual conduct is largely irrelevant "or, if relevant,
substantially outweighed by its prejudicial effect." State v.
Pulizzano, 155 Wis. 2d 633, 644, 456 N.W.2d 325 (1990); see also
Carter, 324 Wis.2d 640, ¶39; State v. DeSantis, 155 Wis. 2d 774,
784-85, 456 N.W.2d 600 (1990).

14
 No. 2012AP337-CR

evidence." Jackson, 216 Wis. 2d at 657-58; see § 972.11(2)(b)1-

3.

¶39 Sarfraz sought to admit evidence under the first

exception, Wis. Stat. § 972.11(2)(b)1, which concerns

"[e]vidence of the complaining witness's past conduct with the

defendant." As this court observed in Jackson, "merely offering

proof of the general type described in a particular exception is

not enough to defeat the rape shield statute." Jackson, 216

Wis. 2d at 658. The statutory exceptions to the rape shield law

are also subject to Wis. Stat. § 971.31(11), which provides that

the circuit court must first determine that the proffered

evidence is "material to a fact at issue in the case and of

sufficient probative value to outweigh its inflammatory and

prejudicial nature before it may be introduced at trial."6 See

Wis. Stat. § 972.11(2)(b).

¶40 Thus, under Wis. Stat. §§ 972.11(2)(b)1 and

971.31(11), evidence of the complainant's alleged past sexual

conduct with the defendant is admissible only if the defendant
makes a three-part showing that: "(i) the proffered evidence

6
Wisconsin Stat. § 971.31(11) operates as an "inverted
balancing test," in that it reverses the approach of Wis. Stat.
§ 904.03 for weighing the admissibility of evidence. 7 Daniel
D. Blinka, Wisconsin Practice Series: Wisconsin Evidence
§ 420.4, at 284 (3d ed. 2008). Unlike Wis. Stat. § 904.03,
which requires that evidence be admitted unless the probative
value is substantially outweighed by the danger of unfair
prejudice, the balancing test in § 971.31(11) is "biased against
admissibility." Id. In other words, the starting assumption is
that the proffered evidence, absent a showing to the contrary,
is more prejudicial than probative. Id.; Jackson, 216
Wis. 2d at 658.

15
 No. 2012AP337-CR

relates to sexual activities between the complainant and the

defendant; (ii) the evidence is material to a fact at issue; and

(iii) the evidence of sexual contact with the complainant is of

'sufficient probative value to outweigh its inflammatory and

prejudicial nature.'" Jackson, 216 Wis. 2d at 658-59 (citing

DeSantis, 155 Wis. 2d at 785).

¶41 Under the first step of the analysis, the circuit

court must be able to conclude from the defendant's proffer that

a reasonable person could find it "more likely than not" that

the prior sexual conduct occurred. See Ringer, 326 Wis. 2d 351,

¶32; Jackson, 216 Wis. 2d at 659. Here, the circuit court

determined that a reasonable jury could find it more likely than

not that prior sexual conduct had occurred between Sarfraz and

I.N. We agree with the circuit court that a reasonable person

could find from the testimony of Sarfraz, Riffat, and Uddin that

it is more likely than not that prior sexual conduct had

occurred between Sarfraz and I.N. Because the evidence related

to I.N.'s prior sexual conduct with Sarfraz, the first prong of
DeSantis is satisfied.

¶42 The second step of the DeSantis test requires the

circuit court to consider whether the proffered evidence is

material to a fact at issue in the case. Under this

"materiality" prong, the court must determine "whether the

evidence is probative of a fact (or proposition) 'of

consequence' to the determination of the action." 7 Daniel D.

Blinka, Wisconsin Practice Series: Wisconsin Evidence § 401.101,

16
 No. 2012AP337-CR

at 98 (3d ed. 2008).7 Put differently, the test under Wis. Stat.

§ 904.01——which sets forth the definition of relevancy in

Wisconsin evidence law——is "simply whether the evidence has any

tendency to make a consequential fact more or less probable."8

Blinka, § 401.102 at 101 (emphasis added). Evidence should be

excluded as "irrelevant" only if it completely lacks probative

value. Id. at 102.

¶43 The substantive law governs the particular elements of

the crime charged and the facts or propositions that are of

consequence to the case. State v. Sullivan, 216 Wis. 2d 768,

785-86, 576 N.W.2d 30 (1998).9 Therefore, the proponent of the

evidence must articulate the fact or proposition the evidence is

7
The common law term "materiality" has been replaced in our
jurisprudence with the concept of consequential facts (or
propositions). State v. Sullivan, 216 Wis. 2d 768, 786 n.15,
576 N.W.2d 30 (1998) (citing Blinka, supra, § 401.101, at 64
(1991)).
8
"[E]vidence is relevant if it has the slightest bit of
probative worth; only evidence that has no value as proof of a
consequential fact is irrelevant." 22 Wright and Graham,
Federal Practice and Procedure: Evidence § 5165 (1978 ed.).
"Any tiny increase or decrease in the probability of a fact of
consequence 'does the trick,' no matter how slightly
incremental." Paul Rothstein, Federal Rules of Evidence r. 401
(3d ed. 1985).
9
Further, "the terms 'fact of consequence' or
'consequential fact' refer not only to the ultimate facts but to
all links in the factual chain necessary to establish the
ultimate facts." Blinka, supra, § 401.101, at 98. This means
that the proffered evidence does not need to bear directly on a
particular element of the crime charged. Holmes v. State, 76
Wis. 2d 259, 268, 251 N.W.2d 56 (1977). Instead, the evidence
may simply "bear upon any one of countless other factors which
are of consequence to the determination of the action." Id.

17
 No. 2012AP337-CR

offered to prove. Id. at 786. This offer of proof does not

need to "'be stated with complete precision or in unnecessary

detail but it should state an evidentiary hypothesis underpinned

by a sufficient statement of facts to warrant the conclusion or

inference that the trier of fact is urged to adopt.'" Jackson,

216 Wis. 2d at 662 (quoting Milenkovic v. State, 86 Wis. 2d 272,

284, 272 N.W.2d 320 (Ct. App. 1978)).

¶44 Here, defense counsel argued at the evidentiary

hearing that the evidence of prior sexual contact was relevant

to Sarfraz's defense to the charge of sexual assault:

The whole nature of that relationship existed is
material to the idea that he would in some way need to
come to that apartment with a mask and a knife to try
to get sex from her, which——is what the nature of
these allegations are.

And it also goes, I think, a——to whether there was
consensual sex along the lines that Mr. Sarfraz would
testify to, that after she attacked him, she——she
enticed him into a——sexual activity along the lines of
what he's described in his testimony today, in order
to placate him.

That type of consent, I think, is relevant to this
type of scenario. It may not be in the traditional
type of situation, but I think it is relevant here. It
explains the sex.

It also, I think, a——is central to attacking the idea
a—that there was forcible entry with a mask and knife.

All of these things are central to the defense. I
think we need to be able to put that into evidence in
order to present a defense for a——Mr. Sarfraz.
The circuit court was unconvinced by defense counsel's argument

and found that, because the prior sexual contact between Sarfraz

18
 No. 2012AP337-CR

and I.N. did not involve violent, non-consensual intercourse, it

was not material for purposes of Wis. Stat. § 971.31(11).

¶45 We agree with the court of appeals that the circuit

court misapplied the second prong of the DeSantis test to the

facts of this case and improperly found the proffered evidence

was immaterial. The circuit court's reasoning suggests that, in

order for evidence of past sexual conduct between Sarfraz and

I.N. to be admissible, it must be of a similar type and nature

to that charged against the defendant.

¶46 This narrow interpretation of the second DeSantis

prong is unsupported by the language of Wis. Stat.

§ 972.11(2)(b) and our case law. The exceptions to Wisconsin's

rape shield law do not require proffered evidence of past sexual

conduct between the accuser and the defendant to be the same as

the criminal conduct alleged against the defendant. If they

did, the only evidence that could be admitted under one of the

exceptions to the rape shield law for "past conduct with the

defendant" would be other instances of forcible sex. Wis. Stat.
§ 972.11(2)(b)1. In fact, to the extent that the rape shield

law exceptions are designed, at least in part, to guarantee a

meaningful defense to the accused, the circuit court's reading

completely defeats such a purpose.

¶47 Nothing in the rape shield law indicates that it

should be so narrowly construed. On the contrary, the exception

for past sexual conduct in subsection (b)1 has traditionally

been applied to all types of sexual contact between the
complainant and the defendant. See, e.g., Blinka, supra,
19
 No. 2012AP337-CR

§ 420.4, at 284-85 (the first exception in the rape shield law

"includes all aspects of the relationship that fall within the

broad definition of 'sexual conduct,' . . . . The most common

scenario involves the defense's proffer of prior consensual

sexual contact in order to prove that the victim also consented

to the charged conduct.").

¶48 The proper inquiry under the second prong of the

DeSantis test is to consider whether the proffered evidence

"relates to a fact or proposition that is of consequence to the

determination of the action." Sullivan, 216 Wis. 2d at 772.

Here, I.N. alleges that Sarfraz sexually assaulted her.

Sarfraz's defense is that the sexual contact was consensual. At

the evidentiary hearing, Sarfraz's counsel articulated that the

evidence of mutual masturbation was offered to: (1) undercut

I.N.'s testimony that Sarfraz gained entry to her apartment by

pretending to be her landlord, thereby casting doubt on her

credibility; (2) support Sarfraz's version of events that I.N.

was angry with him for refusing to leave his wife for her; and
(3) bolster Sarfraz's claim that the alleged sexual assault was

consensual and merely represented a progression in their sexual

relationship. See Blinka, supra, § 420.4, at 285 ("Most often,

evidence of prior consensual contact is used to show that the

victim consented at the time of the assault . . . .") It is

clear Sarfraz's counsel established that the proffered evidence

related to facts consequential to the determination of the case.

As the court of appeals correctly explained, the fact that "I.N.
may have masturbated Sarfraz on numerous occasions, both at
20
 No. 2012AP337-CR

Sarfraz's apartment and at her own, is relevant to the issue of

whether I.N. consented to sexual contact on May 15, 2010."

Sarfraz, 348 Wis. 2d 57, ¶27. Further, "[t]he full scope of

their sexual relationship is relevant to whether it is

believable that Sarfraz attempted to conceal his identity from

someone who knew him so well in a physical sense." Id.

¶49 Moreover, Sarfraz and I.N.'s respective testimony

offered wildly divergent accounts of their relationship and what

transpired on the day of the alleged sexual assault. The

proffered evidence of past sexual conduct weighs directly on

their respective credibility, as well as on Riffat's and

Uddin's, both of whom testified that they witnessed Sarfraz and

I.N. together in intimate situations. Without exception, "[a]

witness's credibility is always 'consequential' within the

meaning of Wis. Stat. § 904.01." Blinka, supra, § 401.101, at

98 (emphasis added).

¶50 The State argues that concluding the proffered

evidence is material would undermine, if not overrule, our
holding in State v. Jackson, 216 Wis. 2d 646. We disagree. In

Jackson, the defendant initially sought admission of evidence of

prior sexual conduct with the complainant to show that the

alleged sexual assault was consensual. Jackson, 216 Wis. 2d at

660. On the first day of trial, however, Jackson changed his

theory of defense and argued that he never had sexual contact

with the complainant. Id. at 652. Despite this last-minute

change to his theory of defense, Jackson's counsel argued the
evidence of past sexual conduct was still material because it
21
 No. 2012AP337-CR

would touch on the complainant's anger and explain "why human

beings in this situation might have disagreement concerning what

happened because of that prior relationship." Id. at 661-62.

The circuit court ruled that the evidence of prior consensual

sexual contact between Jackson and the complainant was not

material. Id. at 660. On appeal, we held that the vague

proffer by Jackson's counsel of "his undeveloped anger or

jealousy theory," even if accepted as true, did not "lead to an

inference that false accusations were leveled in revenge for the

termination of that relationship." Id. at 662. Here, in stark

contrast to Jackson, defense counsel's proffer provided a

detailed factual basis to the circuit court describing the

alleged prior sexual relationship, which included corroboration

from other witnesses.

¶51 Thus, we conclude the circuit court erred in finding

that the proffered evidence of prior sexual conduct was not

"material to a fact at issue in the case." DeSantis, 155

Wis. 2d at 785. Sarfraz proffered sufficient facts to support
his defense of consent against the allegation of sexual assault

and satisfied the materiality requirement of the second DeSantis

prong.

¶52 This brings us to the third step in the analysis,

which asks whether the evidence of sexual contact with the

complainant has sufficient probative value to outweigh its

inflammatory and prejudicial nature. Id. As noted above, this

step operates as an inverted balancing test that "initially
weight[s] the balance in favor of a determination that the
22
 No. 2012AP337-CR

evidence is inherently prejudicial" due to "the legislature's

distrust of evidence of a victim's prior sexual history."

Jackson at 663. Put differently, the starting assumption is

that the evidence is prejudicial. Id. at 658. Satisfying this

burden is far more demanding than the showing required under the

second step of DeSantis. Unlike the second step, which looks to

whether the evidence of prior sexual conduct is material (that

is, whether the evidence has any probative value), the third

prong asks whether the probative value of that evidence is

sufficient to outweigh its inherently inflammatory and

prejudicial nature. Id. at 659. "Evidence is unduly

prejudicial when it threatens the fundamental goals of accuracy

and fairness of the trial by misleading the jury or by

influencing the jury to decide the case upon an improper basis."

DeSantis, 155 Wis. 2d at 791-92.

¶53 Here, the circuit court determined that Sarfraz failed

to meet his burden under the third DeSantis prong, and we agree.

We explained in DeSantis that when the proffered evidence of
prior sexual conduct and the sexual conduct underlying the

criminal charges at issue are "significantly different," the

probative value of the proffered evidence "on the issue of

consent [is] minimal," and "[t]he fact that the prior incident

was remote in time and dissimilar in circumstances further

diminishes the value of comparing the two incidents and drawing

conclusions regarding the complainant's credibility or her

consent." Id. at 791. Indeed, mutual masturbation——which is
the evidence Sarfraz argues was improperly excluded from trial——
23
 No. 2012AP337-CR

is profoundly dissimilar in circumstance from non-consensual

vaginal intercourse following a knife fight.

¶54 Sarfraz's theory of defense was that the intercourse

was consensual, and he maintains that the past sexual conduct

supports this argument. However, his proffered testimony

regarding the past sexual conduct provides little probative

value to support this proposition. The past conduct Sarfraz

alleged did not go beyond consensual masturbation. Sarfraz

explained that he and I.N. had not had intercourse in the past

because in their culture one did not have intercourse outside of

marriage. That they refrained from intercourse in the past, far

from suggesting consent, strongly suggests that I.N. would not

have consented to sexual intercourse on May 15, 2010.

¶55 The strong presumption that this type of evidence is

prejudicial lends additional support to the circuit court's

decision to exclude the evidence. The legislature enacted the

rape shield statute in part to protect complainants from the

embarrassment and humiliation that discouraged victims from
reporting crimes of sexual assault. In determining that

evidence of prior sexual conduct has a highly prejudicial

effect, the legislature crafted into the rape shield law a

"balancing test that [assumes], absent an evidentiary showing to

the contrary, [that] the proferred evidence is more prejudicial

than probative." Jackson, 216 Wis. 2d at 658. The circuit

court concluded that Sarfraz failed to meet his burden of

showing that the probative value of the evidence outweighed its
prejudicial nature, and we agree. Because of the low probative
24
 No. 2012AP337-CR

value of the excluded evidence, and its highly inflammatory and

prejudicial nature, we conclude the circuit court's decision to

exclude the evidence was not an erroneous exercise of

discretion.

IV. CONCLUSION

¶56 We hold that the circuit court's refusal to admit the

proffered evidence of the prior sexual relationship was proper

under Wisconsin's rape shield law, Wis. Stat. § 972.11. While

we conclude the circuit court improperly applied the materiality

prong of the DeSantis test, we nevertheless hold the circuit

court correctly excluded the evidence because Sarfraz failed to

establish, under the third DeSantis prong, that the probative

value of the evidence outweighed its inherent prejudice.

¶57 Accordingly, we reverse and remand to the court of

appeals for consideration of the ineffective assistance of

counsel and sentencing arguments raised by Sarfraz but not

previously addressed.

By the Court.—The decision of the court of appeals is
reversed, and the cause remanded to the court of appeals.

¶58 DAVID T. PROSSER, J., did not participate.

25
 No. 2012AP337-CR.akz

¶59 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I

concur with the majority opinion that the court of appeals

should be reversed. I do not agree, however, with the

majority's conclusions regarding the materiality of the evidence

in the case at issue. I write separately primarily because I

conclude that the evidence at issue was not material, but also

because I agree with the well-stated reasoning of the dissent in

the court of appeals. See State v. Sarfraz, 2013 WI App 57,

¶¶32-40, 348 Wis. 2d 57, 832 N.W.2d 346 (Brennan, J.,

dissenting). Sarfraz's materiality argument turns the rape

shield law inside out. Sarfraz basically argues that because

the victim had previously engaged in consensual masturbation

with Sarfraz, she therefore must have consented to the violent,

vaginal intercourse at knifepoint with Sarfaz on May 15.1

Sarfraz further asserts that this evidence is relevant to the

victim's truthfulness.

¶60 Sarfraz's argument undermines the fundamental purpose
behind the rape shield law: protection of a victim who is

improperly attacked regarding prior sexual activity. The rape

shield law is intended to exclude evidence of prior consensual,

nonviolent sexual activity especially when, as is the case at

issue, such evidence is dissimilar from the violent rape

1
The victim steadfastly denies that she ever engaged in any
sexual activity with Sarfraz because for cultural reasons, she
would not have engaged in such activity. The victim further
denies that she ever had any kind of romantic relationship with
Sarfraz.

1
 No. 2012AP337-CR.akz

charged. Sarfraz's argument goes too far and could be viewed as

unraveling the protections that the rape shield law affords a

victim of sexual assault. In a sexual assault trial it is not

the victim's past that is on trial. Surely the majority cannot

be concluding that a defendant need only allege that a previous

consensual sexual encounter occurred with the victim in order to

render admissible such otherwise prohibited evidence. I write

to confirm that the rape shield law remains intact even after

the majority's fact-specific determinations in the case at

issue.

¶61 In my view, Sarfraz's argument and hence, the majority

opinion, is flawed in three fundamental respects: (1) the trial

court made a discretionary evidentiary determination that is

owed deference; (2) the subject evidence is not material and;

(3) the probative value of the evidence does not outweigh its

prejudicial effect.

¶62 First, we review the circuit court's discretionary

decision regarding the admission of evidence. "'This court will
not disturb a circuit court's decision to admit or exclude

evidence unless the circuit court erroneously exercised its

discretion.'" State v. Jackson, 2014 WI 4, ¶43, 352

Wis. 2d 249, 841 N.W.2d 791 (quoting Weborg v. Jenny, 2012 WI

67, ¶41, 341 Wis. 2d 668, 816 N.W.2d 191). A circuit court

erroneously exercises its discretion only "'if it applies an

improper legal standard or makes a decision not reasonably

supported by the facts of record.'" Id. I conclude that the
trial court did not err in either its factual determinations or

2
 No. 2012AP337-CR.akz

the legal standard applied. I agree with Judge Brennan's

dissent in the court of appeals that "the trial court applied

facts from the record to the correct legal standard from

DeSantis." Sarfraz, 348 Wis. 2d 57, ¶33 (Brennan, J.,

dissenting) (citing State v. DeSantis, 155 Wis. 2d 774, 456

N.W.2d 600 (1990)).

¶63 Second, the evidence that Sarfraz sought to admit was

not material. See id., ¶34. While the trial court excluded

Sarfraz's request to introduce testimony that he and the victim

previously engaged in consensual masturbation, the jury

nonetheless heard testimony that he and the victim had a prior

romantic relationship. Whether acts of mutual masturbation

occurred or not is of little consequence to the crime charged.

If the issue is whether the consensual masturbation evidence was

material, Sarfraz's argument that the evidence is material

because it goes to truthfulness, misses the mark. Sarfraz's

argument that the sexual contact was consensual before,

therefore it must be consensual in the case at issue, likewise
fails to explain why the complainant would now fabricate a story

about an armed and masked entry and forceful vaginal

intercourse. I agree with Judge Brennan's dissent that

Sarfraz's arguments are "'vague arguments and bald assertions'

without any link to the complainant's motive for lying about

sexual assault on trial." Id., ¶36 (quoting State v. Jackson,

216 Wis. 2d 646, 662, 575 N.W.2d 475 (1998)).

¶64 To the extent that Sarfraz did offer a theory as to
the complainant's motive for lying about the forceful rape at

3
 No. 2012AP337-CR.akz

trial, that theory was not supported by the evidence that he

sought to admit. As Judge Brennan's dissent aptly notes,

however, "that defense theory did not require proof that they

engaged in consensual masturbation previously." Sarfraz, 348

Wis. 2d 57, ¶37 (Brennan, J., dissenting). If the existence of

a romantic relationship was what Sarfraz thought to be so

significant to his defense, that evidence was already before the

jury. As Judge Brennan's dissent pointed out, the trial court

did admit other evidence of Sarfraz's prior romantic

relationship with the victim through the testimony of Sarfraz,

his wife, and a friend. Id. In addition, Sarfraz testified

that the complainant wanted him to marry her, but that he did

not want to marry her. Id. It is less than clear why evidence

of consensual masturbation would explain why she was angry that

he would not marry her. If evidence of a relationship was

somehow relevant to his defense, the masturbation evidence was

not required to so establish the fact that they had such a

relationship. Moreover, evidence of a romantic relationship was
already before the jury. At most, the excluded evidence was

cumulative to the evidence already before the jury.

¶65 Finally, as Judge Brennan's dissent stated, "the trial

court properly weighed the prejudicial effect of the excluded

testimony against its probative value." Id., ¶38. The purpose

of the rape shield law is to "protect complainants from the

humiliation and degradation associated with unfounded

allegations regarding sexual history." Id. (quoting DeSantis,
155 Wis. 2d at 793). Thus, testimony relating to past sexual

4
 No. 2012AP337-CR.akz

conduct is admissible only if it is both material and the

probative value outweighs the prejudicial effect, and since the

evidence is not material, its probative value does not outweigh

the prejudicial effect. I agree with Judge Brennan's dissent

that even if one were to conclude that the evidence was of some

marginal materiality, the circuit court was correct to conclude

that the prejudicial effect outweighed its probative value. Not

only does the evidence fail to support the defense theory of the

complainant's motive to lie, it is cumulative to evidence

introduced at trial and the conduct is "too dissimilar" to the

conduct in the charged offense to be probative. As noted in

DeSantis, the prior sexual conduct must not be remote in time or

dissimilar in circumstance. 155 Wis. 2d at 790-91. Here, as

Judge Brennan stated:

[T]he alleged prior consensual masturbation is
completely dissimilar to the masked, armed, home
intrusion and forcible sexual assault at trial. It is
too dissimilar to pass the DeSantis admissibility
test. The prejudice to the complainant from including
the alleged masturbation evidence, especially when
there was such a limited probative value to the
defense theory, is exactly what the rape shield law
was designed to eliminate.
Sarfraz, 348 Wis. 2d 57, ¶39 (Brennan, J., dissenting). I

agree.

¶66 Both Jackson and DeSantis instruct that the rape

shield law presumes both "low probative value and a highly

prejudicial effect" when a defendant wishes to introduce

evidence of prior consensual sex in the past in order to
establish consensual sex with respect to the offense charged.

DeSantis, 155 Wis. 2d at 784-85; Jackson, 216 Wis. 2d at 658;
5
 No. 2012AP337-CR.akz

see also State v. Pulizzano, 155 Wis. 2d 633, 643-44, 456

N.W.2d 325 (1990).2 Sarfraz likewise failed to demonstrate that

his confrontation right or his right to present a defense were

violated. See Nevada v. Jackson, 569 U.S. ___, 133 S. Ct. 1990

(2013); State v. Dunlap, 2002 WI 19, 250 Wis. 2d 466, 640

N.W.2d 112.

¶67 If anything, evidence of a previous loving,

consensual, romantic relationship would more likely predict

future similar conduct rather than the violent, forceful, bloody

events of May 15. Simply stated, Sarfraz did not show how the

prior, nonviolent, consensual relationship would predict a

future violent episode or impact on the victim's truthfulness.

In short, the dissimilarity of the prior acts is at odds with

the materiality or probative value and admissibility of the

subject evidence. The circuit court properly exercised its

discretion in excluding the subject evidence.

¶68 For the foregoing reasons, I concur.

¶69 I am authorized to state that Justice PATIENCE DRAKE
ROGGENSACK joins this concurrence.

2
State v. Pulizzano addresses a different exception under
the rape shield law. 155 Wis. 2d 633, 643-44, 456 N.W.2d 325
(1990). Notably, Sarfraz's offer of proof was insufficient
under that exception as well.

6
 No. 2012AP337-CR.akz

1