State v. Ruzic

1

State of Wisconsin, Plaintiff-Respondent, v. Loren T. Ruzic, Defendant-Appellant.

No. 2021AP1594-CR

Court of Appeals of Wisconsin, District IV

June 22, 2023

This opinion will not be published. See Wis.Stat. Rule 809.23(1)(b)5.

APPEAL from a judgment and an order of the circuit court for Clark County No. 2017CF15, THOMAS T. FLUGAUR, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Nashold, 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).

PER CURIAM

¶1 A jury found Loren Ruzic guilty of third-degree sexual assault of A.B.^[1] Ruzic filed a motion for postconviction relief alleging that his trial counsel was constitutionally ineffective for failing to impeach witnesses, to object to evidence, and to present evidence at trial regarding certain issues. Ruzic filed a supplemental motion for postconviction relief alleging, in addition, that the State failed to preserve and disclose text messages in violation of his right to due process, and that his trial counsel was constitutionally ineffective for inadequately addressing the text message evidence and failing to impeach witnesses and present evidence regarding other issues. The circuit court held an evidentiary hearing after each motion and denied both motions.

¶2 On appeal, Ruzic argues that the State failed to preserve and disclose text messages in violation of his right to due process and that his trial counsel provided constitutionally ineffective assistance in nine respects. We reject Ruzic's arguments and affirm the circuit court.^[2]

BACKGROUND

¶3 In January 2017, A.B. reported to an officer at the City of Greenwood Police Department that her ex-husband, Ruzic sexually assaulted her at their then-residence in December 2014, when they were still married. A.B. told the officer that Ruzic became upset with her when he returned home from work and found that their home's pipes had frozen because she had not kept the wood burner lit. A.B. said that Ruzic hit his head against and punched the wall, which left a hole in the wall. A.B. said that the following day, Ruzic told her he was still upset with her and he "raped her and then ejaculated onto her face." A.B. said that she was too scared to tell Ruzic "no." After Ruzic ejaculated onto A.B.'s face A.B. said that she began to cry, pushed Ruzic off of her, and ran into the shower. A.B. said that only she, Ruzic, a mutual friend of theirs, and Ruzic's brother and sister-in-law were aware of the alleged sexual assaults.

¶4 After A.B. spoke with the officer, the officer interviewed Ruzic's sister-in-law, Ruzic's brother, and A.B. and Ruzic's mutual friend, and then contacted Ruzic and asked to "speak with" him. Ruzic met the officer at the Greenwood Police Department. Ruzic told the officer that he remembered when the pipes froze and that he was very upset and made a hole in the wall of the house. He denied sexually assaulting A.B. He said that A.B. agreed to the sexual conduct that A.B. had described and that she was making these allegations because of an ongoing child custody dispute and "to make herself look better" for the guardian ad litem. Ruzic also said that the incident took place in January 2015, not December 2014.

¶5 The State charged Ruzic with one count of second-degree sexual assault based on the alleged nonconsensual sexual intercourse, and one count of third-degree sexual assault based on the alleged nonconsensual ejaculation, both as domestic abuse.

¶6 During a two-day trial, the following witnesses testified A.B., the officer who investigated A.B.'s allegations Ruzic's sister-in-law, Ruzic's brother, A.B. and Ruzic's mutual friend, A.B.'s father, Ruzic's mother, and Ruzic. Ruzic's defense at trial was that the sexual intercourse and ejaculation and the surrounding circumstances as testified to by A.B. occurred, but that A.B. consented to both the sexual intercourse and ejaculation; that the incident took place in January 2015 not December 2014, which, among other details that A.B. inaccurately recalled, cast doubt on her credibility; and that A.B. reported her allegations to the police two years later only to gain advantage in the ongoing custody disputes at that time. We will present pertinent details of the trial testimony and evidence in the discussion that follows.

¶7 The jury found Ruzic not guilty of the second-degree sexual assault count and guilty of the third-degree sexual assault count.

¶8 Ruzic filed a motion for postconviction relief seeking a new trial based on the alleged ineffective assistance of counsel, and the circuit court held an evidentiary hearing on the motion. Ruzic filed a supplemental motion for postconviction relief asserting additional allegations of ineffective assistance of counsel and a due process claim based on the alleged failure of the State to preserve and disclose text messages, and the court held a separate evidentiary hearing on that motion. The court subsequently issued an order denying both motions "for the reasons stated on the record at the hearings" at which the court issued rulings on the motions.

¶9 Ruzic appeals.

DISCUSSION

I. DUE PROCESS CLAIM

¶10 Ruzic argues that the State failed to obtain, preserve, and disclose relevant text messages between A.B. and Ruzic in violation of his right to due process. After stating the applicable law and standard of review, we present additional pertinent background and relevant parts of the circuit court's oral ruling on this issue. We next explain why we conclude that Ruzic has not shown that the State failed to preserve exculpatory evidence in violation of his right to due process.

¶11 The due process clauses of both the United States Constitution and the Wisconsin Constitution impose a duty on the State to preserve exculpatory evidence. State v. Luedtke, 2015 WI 42, ¶¶39, 41, 45, 53, 362 Wis.2d 1, 851 N.W.2d 592 (citing State v. Greenwold, 181 Wis.2d 881, 885, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I). "The state's duty to preserve exculpatory evidence is limited to evidence that 'might be expected to play a significant role in the suspect's defense.'" State v. Hahn, 132 Wis.2d 351, 358, 392 N.W.2d 464 (Ct. App. 1986) (quoting State v. Oinas, 125 Wis.2d 487, 490, 373 N.W.2d 463 (Ct. App. 1985)) (citing California v. Trombetta, 467 U.S. 479, 488 (1984)).

¶12 The State's failure to preserve evidence violates a defendant's right to due process if the State: "(1) failed to preserve evidence that was apparently exculpatory, or (2) acted in bad faith by failing to preserve evidence that was potentially exculpatory." Luedtke, 362 Wis.2d 1, ¶¶14, 39, 53 (citing State v. Greenwold, 189 Wis.2d 59, 67, 525 N.W.2d 294 (Ct. App. 1994) (Greenwold II), and Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988)).

¶13 The first prong of the due process test addresses apparently exculpatory evidence, and requires that the defendant show both that the evidence had an exculpatory value that was apparent to those who had custody of the evidence before it was lost, and that the defendant cannot obtain comparable evidence by other reasonably available means. State v. Munford, 2010 WI.App. 168, ¶21, 330 Wis.2d 575, 794 N.W.2d 264; Greenwold II, 189 Wis.2d at 67-69 (citing Trombetta, 467 U.S. at 489). The second prong of the due process test addresses potentially exculpatory evidence and requires that the defendant show bad faith; the defendant can show bad faith only if: "'(1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and (2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence.'" Luedtke, 362 Wis.2d 1, ¶46 (quoting Greenwold II, 189 Wis.2d at 69). It is the defendant's burden to prove that the evidence was apparently and not merely potentially exculpatory under the first prong, Munford, 330 Wis.2d 575, ¶21, or that it was potentially exculpatory and not preserved through bad faith conduct under the second prong, see Greenwold II, 189 Wis.2d at 69-70. See also Luedtke, 362 Wis.2d 1, ¶¶7, 46 (stating that "the defendant must show" that one of the prongs is met).

¶14 The remedy for a due process violation based on the State's failure to preserve exculpatory evidence is for the circuit court, in the exercise of its discretion, to "choose between barring further prosecution or suppressing ... the State's most probative evidence." Hahn, 132 Wis.2d at 361 (quoting Trombetta, 467 U.S. at 487).

¶15 We uphold the circuit court's factual findings unless they are clearly erroneous. Luedtke, 362 Wis.2d 1, ¶37. We review de novo whether the State's failure to preserve evidence violated the defendant's right to due process. Id.

A. Additional Background

¶16 During trial, the prosecution offered, and the circuit court admitted into evidence, five exhibits displaying screenshots of text messages between A.B. and Ruzic that law enforcement had photographed on A.B.'s phone. As reproduced below, the text messages regard the alleged sexual assaults that took place in December 2014 or January 2015; the text messages themselves show dates between January and November 2016.

Exhibit 3: January 18, 2016.

Ruzic: I said we were gonna have sex and you may not like it and you said yes. What I did by cumming on you was totally unjust and the most horrendous thing I've ever could[']ve done to you

A.B.: I didn't say a damn thing because you scared the hell out of me. I was more afraid of you then than I was the day before. It was rape, and it was sexual abuse.

Ruzic: You agreed hun and don't give that bs

And I didn't hold you down nor do anything different too you besides cumming on you. And you

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