State v. Luther A. Kellogg

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 6, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1105-CR Cir. Ct. No. 2018CF685

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LUTHER A. KELLOGG,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for
Outagamie County: EMILY I. LONERGAN, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, 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).

¶1 PER CURIAM. Luther A. Kellogg appeals from a judgment,
entered pursuant to a jury verdict, convicting him of repeated sexual assault of the
No. 2024AP1105-CR

same child. Kellogg requests a new trial based on what he identifies as circuit
court error with regard to both the exclusion of testimony from two expert
witnesses and evidence of a witness’s prior convictions. For the reasons that
follow, we reject all of Kellogg’s arguments and affirm.

BACKGROUND

¶2 Kellogg’s conviction was based on the allegations of Nicola,1 a
relative of Kellogg’s, who disclosed during a forensic interview at the Fox Valley
Child Advocacy Center (CAC) that Kellogg sexually assaulted her when she was
between four and five years old at his home in New London, Wisconsin. During
the CAC interview, conducted by Nina Maroszek-Brennan in May 2018, Nicola
described several different incidents where Kellogg had sexual contact with her.
Based on Nicola’s interview, the State charged Kellogg with one count of repeated
sexual assault of the same child.

¶3 Before trial, Kellogg sought to admit testimony from two expert
witnesses: Dr. Richard Frederick and Tristan Wristen. Frederick, a clinical
psychologist, would have offered an opinion regarding problems he saw in
Nicola’s forensic interview. The circuit court held a Daubert hearing to assess
Frederick’s qualifications under WIS. STAT. § 907.02(1).2 The court ultimately

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2023-24), the State uses
the pseudonyms “Nicola” for the victim and “Esther” for the victim’s mother in its brief, and we
will do the same.

All references to the Wisconsin Statutes are to the 2023-24 version.
2
WISCONSIN STAT. § 907.02(1) adopts the federal “reliability” standard developed in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). State v. Giese, 2014 WI
App 92, ¶17, 356 Wis. 2d 796, 854 N.W.2d 687.

2
No. 2024AP1105-CR

excluded Frederick as an expert witness after determining that he was not qualified
to critique the forensic interview and that his opinion was unreliable.

¶4 Wristen, a forensic nurse and sexual assault nurse examiner (SANE),
would have offered her opinion about the sexual assault exam conducted on
Nicola (the SANE exam), the quality of Nicola’s forensic interview, and the
therapy that Nicola participated in after the forensic interview.3 The circuit court
also held a Daubert hearing on the admissibility of Wristen’s expert testimony and
later issued an oral ruling partially excluding her testimony. The court determined
that Wristen could testify regarding Nicola’s SANE exam and the best practices
for asking child victims questions about the assault during a SANE exam.
However, the court limited Wristen’s testimony by precluding her from testifying
regarding Nicola’s forensic interview or offering her opinions on the impact that
therapy may have on memory or recall.

¶5 The circuit court held a four-day jury trial in March 2022. On the
first day of trial, the parties discussed Esther’s prior convictions for impeachment
purposes under WIS. STAT. § 906.09. Of Esther’s eight total convictions, the State
argued that the jury should be informed that Esther had only one conviction, while
Kellogg asked for the jury to be told she had seven convictions. The court allowed
the jury to hear that Esther had one conviction, noting that all of her remaining
convictions were at least ten years old.

3
Previously, the State had requested, and the circuit court granted, a request for in
camera inspection of Nicola’s therapy records. The court released the records under seal to only
the prosecutor in the case and Kellogg’s defense counsel. Kellogg then sought release of Nicola’s
therapy records for Wristen’s review, and the State objected to this request. The court eventually
denied Wristen access to Nicola’s therapy records.

3
No. 2024AP1105-CR

¶6 At trial, Esther testified that she was incarcerated in November 2011
when Nicola was born and that she made arrangements for Nicola to stay with
Kellogg and Esther’s mother until Nicola wished to live with Esther. In late
January 2018, Nicola stated that she “wished to come live” with Esther and her
husband. According to Esther, the move was “somewhat difficult on [her] mom.”
It caused tension, leading Esther and Nicola not to see either Kellogg or Esther’s
mother between late January and April 2018.

¶7 On April 30, 2018, Esther received a phone call from a social worker
informing her that Nicola had reported “that something had happened” with
Kellogg. Thereafter, Esther took Nicola to the CAC. Esther testified that she did
not observe the CAC interview, watch the video, or otherwise learn any details
about the allegations. She testified that she had been convicted of a crime once.

¶8 Kylie Hayes, a counselor at Nicola’s elementary school, testified that
the children at the elementary school, including Nicola, attended a presentation
about “good touch” and “bad touch.” The presentation included discussions of
“private parts,” explaining when it is appropriate for someone to touch private
parts, distinguishing between “good secrets” and “bad secrets,” and encouraging
the children to tell a trusted adult if they have a “bad secret.” According to Hayes’
testimony, immediately after that presentation, Nicola approached her and
reported information about Kellogg. As a mandatory reporter, Hayes reported the
disclosure to Child Protective Services.

¶9 Kristin Radue, a social worker with Winnebago County Human
Services, testified that she was the “initial assessment social worker” assigned to
investigate Nicola’s disclosure. Radue had an initial meeting with Nicola, Esther,
and Esther’s husband, during which Radue “learned that [Nicola] had reported that

4
No. 2024AP1105-CR

she was having bad dreams that were waking her up at night and that [Nicola] had
also made a disclosure to her mom” “that she was being touched in her private
parts by” Kellogg. After Radue reviewed Nicola’s CAC interview, she spoke with
Kellogg, who stated that he and his wife were Nicola’s primary caretakers since
she was a newborn. Radue also explained, however, that Kellogg “made a
statement that he was never alone with [Nicola], which was a little bit confusing”
because he told Radue that he spent an “equal amount of time raising [Nicola].”
On cross-examination, Radue confirmed that Esther made the statement to her that
Kellogg had touched Nicola.

¶10 Maroszek-Brennan next testified that she conducted the CAC
interview with Nicola when Nicola was six years old. Maroszek-Brennan
authenticated the recording of that interview, and it was played for the jury in its
entirety. During the interview, Nicola specifically described three of several
different incidents—in Nicola’s uncle’s bedroom, in the bathroom, and on the
couch—where Kellogg touched her privates with either his penis or his fingers and
put his penis in Nicola’s mouth. She also described “watery stuff” that came out
of Kellogg’s penis, and the watery stuff looked like “white lasagna syrup” and had
“black spots” in it. Nicola said that Kellogg told her not to tell anyone about what
he did. Nicola explained that she was four years old when Kellogg first assaulted
her and that the other assaults occurred when she was five. She also told
Maroszek-Brennan that the assault in her uncle’s bedroom occurred once, but the
other incidents occurred more than once.

¶11 Nicola, who was ten years old at the time of the trial, also testified.
Nicola testified that she remembered the CAC interview, that she went to the CAC
because she “was sexually abused” by Kellogg, and that everything she told
Maroszek-Brennan that day was the truth. On cross-examination, Nicola agreed

5
No. 2024AP1105-CR

that in 2019 she told her therapist that she was not sexually abused and that Esther
thinks she was abused. On redirect, Nicola agreed, when asked, that Kellogg put
his penis in her mouth and in her bottom, but she could not remember Kellogg
putting his penis in her vagina or digitally penetrating her.

¶12 The State then presented testimony from Dr. Gregory Hunter, an
emergency room doctor with 30 years’ experience, who testified that he has
encountered patients who complained of “black spots in their semen.” According
to Hunter, the condition is called “hematospermia,” and “the black spots can be
very dark red or black and is in most cases thought to be blood present in the
ejaculate or sperm.” He further explained the various causes of hematospermia
and stated that the condition usually resolves without treatment. Hunter was not
aware how common hematospermia is, and he admitted that emergency room
visits for hematospermia are “not very common.”

¶13 Jennifer Yates, the SANE who conducted Nicola’s SANE exam, also
testified. According to Yates, Nicola “had a normal anogenital examination.”
Yates explained, however, that “[i]t’s commonly known in the field of child sexual
abuse that the majority of the children that we see”—up to 90 to 95 percent—“will
have normal genital, anal examinations,” even in those children “reporting
penetration.”

¶14 Ashley Strunk, Nicola’s therapist for the past three years, testified
that therapy was helping Nicola work through and understand the trauma she
experienced. According to Strunk, although Esther relayed the sexual abuse
allegation to her at the beginning of Nicola’s treatment, Nicola did not disclose the
sexual abuse to Strunk right away; it took multiple sessions for Nicola to be able

6
No. 2024AP1105-CR

to talk about the details. Strunk testified that Nicola first denied that she had been
sexually assaulted because Nicola said that thinking about it gave her nightmares.

¶15 After the State rested, Kellogg called several witnesses, including
Kimberly Brown, a nurse practitioner who treated Kellogg on January 17, 2018.
Brown testified that she treated Kellogg that day for high cholesterol, GERD, and
diabetes. She explained that none of Kellogg’s medical records reflected a
diagnosis of hematospermia or included Kellogg’s complaints of dark spots in his
semen, but she also admitted that she had never “heard of hematospermia.”
Brown acknowledged that Kellogg’s records may not have been “an exhaustive
list … of everything he’s ever been seen for,” and she relayed that Kellogg had
been treated in the past both for high blood pressure and recurring infections.

¶16 Wristen was then called to testify regarding her review of the SANE
exam. According to Wristen, “[i]n children specifically, especially in younger
child[ren], age 4 and 5, there are certain findings that we see after the fact that are
related to sexual assault,” especially in cases where the allegations are of an adult
male with a very young female victim. Wristen testified that Nicola’s exam
showed no such injuries or scars and that there were not any “findings that would
confirm a sexual assault.”

¶17 Esther’s mother testified that when Nicola lived with her, Nicola
never claimed that Kellogg was sexually abusing her. She also stated that she
never saw, heard, or suspected any such abuse. On cross-examination, Esther’s
mother acknowledged that she had health issues at the time of the alleged assaults
and was frequently not in the same room or area of the house as Nicola and
Kellogg. She also stated that she “was heavily on a lot of narcotics” during that

7
No. 2024AP1105-CR

period and not in her “right state of mind,” so it is “possible” that Nicola told her
about Kellogg’s inappropriate touching but that she did not realize it.

¶18 Finally, Nicola’s uncle testified that he lived with Nicola at the time
of the alleged assaults when he was a teenager. He denied seeing any
inappropriate contact between Nicola and Kellogg and testified that Nicola never
told him about any sexual contact. Nicola’s uncle did admit, however, that he was
often hanging out with friends or playing games in his room.

¶19 The jury returned a guilty verdict against Kellogg on the charge of
repeated sexual assault of the same child. The circuit court later sentenced
Kellogg to 37 years’ incarceration, comprised of 22 years’ initial confinement
followed by 15 years’ extended supervision. Kellogg appeals.

DISCUSSION

¶20 On appeal, Kellogg seeks a new trial on three bases. First, he
challenges the circuit court’s decision to exclude Frederick’s testimony. Second,
he argues that the court erroneously exercised its discretion by limiting Wristen’s
testimony and precluding her from reviewing Nicola’s therapy records. Finally,
he asserts that the court erred by excluding some of Esther’s prior conviction
evidence that was offered for impeachment purposes. For the reasons that follow,
we reject all of Kellogg’s arguments and conclude that the circuit court did not
erroneously exercise its discretion with regard to any of these issues.

I. Expert Testimony

¶21 Kellogg argues that the circuit court erred by excluding Frederick’s
expert testimony and limiting Wristen’s expert testimony “despite both experts
meeting the requirements for admissibility under WIS. STAT. § 907.02.”

8
No. 2024AP1105-CR

According to Kellogg, “[b]ecause the case hinged on the credibility of an
allegation elicited through a forensic interview, expert testimony about the
reliability of that interview was vital to an effective defense of Mr. Kellogg,” and
the court’s alleged error “unreasonably and arbitrarily precluded Mr. Kellogg from
presenting vital expert testimony.”

¶22 WISCONSIN STAT. § 907.02 governs the admission of expert
testimony. State v. Hogan, 2021 WI App 24, ¶18, 397 Wis. 2d 171, 959 N.W.2d
658.

[E]mbodied in § 907.02(1) are three threshold requirements
for admitting expert witness testimony: the witness must be
qualified (“a witness qualified as an expert by knowledge,
skill, experience, training, or education”); the witness’s
testimony must be relevant (“[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue”);
and, per the 2011 amendment adopting the Daubert
standard, the witness’s testimony must be reliable (“if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and methods,
and the witness has applied the principles and methods
reliably to the facts of the case”).

Hogan, 397 Wis. 2d 171, ¶19 (alteration in original; quoting § 907.02(1)). Thus,
the circuit court is required to “stand[] as a gatekeeper to prevent irrelevant or
unreliable testimony from being admitted.” State v. Dobbs, 2020 WI 64, ¶43, 392
Wis. 2d 505, 945 N.W.2d 609 (citations omitted); see also State v. Giese, 2014 WI
App 92, ¶18, 356 Wis. 2d 796, 854 N.W.2d 687 (“The court’s gate-keeper
function under the Daubert standard is to ensure that the expert’s opinion is based
on a reliable foundation and is relevant to the material issues.”). “The goal is to
prevent the jury from hearing conjecture dressed up in the guise of expert
opinion.” Giese, 356 Wis. 2d 796, ¶19.

9
No. 2024AP1105-CR

¶23 “The admissibility of expert opinion testimony lies in the discretion
of the circuit court,” which we review for an erroneous exercise of discretion.4
State v. Shomberg, 2006 WI 9, ¶10, 288 Wis. 2d 1, 709 N.W.2d 370 (citation
omitted). Therefore, “we will not reverse a circuit court’s decision if the decision
‘had a reasonable basis,’ and ‘was made in accordance with accepted legal
standards and in accordance with the facts of record.’” Dobbs, 392 Wis. 2d 505,
¶27 (citation omitted). “The test is not whether this court agrees with the ruling of
the [circuit] court, but whether appropriate discretion was in fact exercised.”
Shomberg, 288 Wis. 2d 1, ¶11 (citation omitted). We may “search the record for
reasons to sustain [a] circuit court’s exercise of discretion.” State v. Pico, 2018
WI 66, ¶15, 382 Wis. 2d 273, 914 N.W.2d 95 (citation omitted). Moreover, “[w]e
accept [a] circuit court’s findings of fact unless they are clearly erroneous.”
Dobbs, 392 Wis. 2d 505, ¶32.

A. Dr. Richard Frederick

¶24 As noted above, Kellogg sought to call Frederick to offer expert
testimony concerning problems Frederick noted with Nicola’s forensic interview.
At the Daubert hearing, Frederick testified that he is a psychologist licensed in
Wisconsin and board certified in forensic psychology and assessment psychology
with an expertise in forensic interviewing protocols, memory, and forensic
psychology. Importantly, however, Frederick also testified that he is not a child
psychologist, is not a child forensic examiner, and would not act as a child

4
Although the circuit court’s decision to admit testimony is reviewed for an erroneous
exercise of discretion, Kellogg argues that “[a]n appellate court reviews a [circuit] court’s
application of WIS. STAT. § 907.02(1) de novo while benefiting from its analysis.” See Seifert v.
Balink, 2017 WI 2, ¶89, 372 Wis. 2d 525, 888 N.W.2d 816.

10
No. 2024AP1105-CR

psychologist in this case. Frederick testified that he had never conducted a
forensic interview of a child; none of the previous workshops he presented, papers
he wrote, or presentations he gave “specifically pertained to the subject of forensic
interviewing of children”; none of the books he authored or coauthored “pertain to
the issue of conducting a forensic interview with a child”; and he had not
completed trainings or certifications that are required for child forensic
examinations in Wisconsin.

¶25 When asked about the “specialized or scientific basis for the
opinions that [Frederick] formed in this case,” he explained, “I’m not a researcher
in this field, but I’m a consumer of research at the professional level and I’m able
to read and digest research and apply it to this case, which is what I’ve done.”
According to Frederick, “[t]here are hundreds of published papers that deal with
best practices that relate to child forensic interviewing.” Therefore, his role in the
case, “as a scientist practitioner who is familiar with how to apply scientific
knowledge,” is the “simple matter” of “review[ing] the child forensic interview
and … evaluat[ing] whether or not [it] conform[ed] to the best practices.”

¶26 Frederick further noted that he had “consult[ed]” in “about
50 … cases over the past … three or four years” and that he had testified not more
than “a few times,” but he had “never testified in a jury trial to give [his] opinion
regarding a forensic interview.” He explained that he was recently “qualified as
an expert in the area of how memory works and the best practices for forensic
interviewing” at a Daubert hearing in a Marathon County criminal case, but that
case had not yet gone to trial. Frederick also testified that he was excluded as an
expert, without a Daubert hearing, in a Portage County case after “the judge ruled
that [he] wasn’t qualified because [he is] not a child psychologist or a child
forensic interviewer.”

11
No. 2024AP1105-CR

¶27 We conclude that the circuit court did not erroneously exercise its
discretion by excluding Frederick’s expert testimony because he was not qualified
to testify regarding child forensic interview techniques. On the record, the court
correctly identified that it was applying WIS. STAT. § 907.02(1) and the Daubert
standard. The court then noted each of the requirements under § 907.02(1) and
applied Frederick’s testimony and qualifications to those requirements.

¶28 As an initial matter, the circuit court first found that this “type of
testimony”—i.e., testimony that would help jurors critically review Nicola’s
forensic interview—“would assist the trier of fact.” See WIS. STAT. § 907.02(1).
In other words, it found the “type of testimony” to be relevant. 5 See Hogan, 397
Wis. 2d 171, ¶19; see also State v. Maday, 2017 WI 28, ¶33, 374 Wis. 2d 164, 892
N.W.2d 611 (“[A] jury could benefit from an expert’s assistance when interpreting
and identifying the indications bearing on the independence of a child’s
allegations of abuse when such situations arise.”).

¶29 Nevertheless, while the circuit court determined that the “type” of
testimony was relevant, it found that Frederick’s specific testimony failed to meet
the other two WIS. STAT. § 907.02(1) requirements, as Frederick was not
“qualified as an expert by knowledge, skill, experience, training, or education,”
and his testimony was not “based upon sufficient facts or data, [was not] the
product of reliable principles and methods, and [he had not] applied the principles
and methods reliably to the facts of the case.” The court explained that while

5
Although Kellogg notes on appeal that “the circuit court agreed that Dr. Frederick’s
testimony on child forensic interviewing and memory was relevant and would assist the trier of
fact,” as the State correctly observes, the court actually said “[t]hat type of testimony” was
relevant, and the court’s finding “was based on hypothetical testimony, not Frederick’s, mainly
because Frederick was unqualified and did not offer a reliable opinion.”

12
No. 2024AP1105-CR

Frederick certainly had experience in the area of forensic interviewing, which was
a “large field,” his expertise was limited to adults, and, based on Frederick’s
testimony, he had absolutely no experience personally “in the area of forensic
interviewing of children.” Furthermore, the court noted that Frederick did not
complete the training or certifications that are required for child forensic
examinations in Wisconsin, was not certified in Wisconsin to conduct forensic
interviews of children, and “was not aware during cross-examination really of
what the standards in Wisconsin [are] with respect to forensic interviews of
children.” Based on this evidence, the circuit court determined that Frederick was
not qualified to offer his opinion on the propriety of Maroszek-Brennan’s
technique or questions during Nicola’s forensic interview.

¶30 As to reliability, the circuit court found certain portions of
Frederick’s testimony to be “concerning” and “problematic.” The court observed
that Frederick’s “experience as it relates to children and forensic interviews of
children really comes primarily from having read … various reports
and … different research that he’s relied upon to come to these conclusions.”
Further, the court noted that Frederick had not “reliably applied the principles and
methods to the facts of the case” because “he was basing his knowledge of what
was probable or improbable on common sense.”

¶31 For example, the circuit court noted two areas of Frederick’s hearing
testimony that specifically demonstrated unreliability. First, Frederick said that
Nicola’s description of seeing black spots in Kellogg’s semen after one of the
assaults was “confabulation,” “obviously false,” and “does not ring true” and that
Maroszek-Brennan should have explored “alternative explanations.” He based
this belief on his personal knowledge of semen; an internet search; and the
knowledge of his colleague, Dr. David Thompson, who is also a psychologist.

13
No. 2024AP1105-CR

After the prosecutor brought up hematospermia, which Frederick was not aware
of, he said he “would be willing to walk [his comment] back,” and he instead
called this detail of Nicola’s sexual assault allegation “improbable.” The court
found his testimony “problematic” because “[a]nybody can conduct an internet
search, anybody can ask someone else who may or may not be an expert,” but
“these just aren’t things that are used by experts.”

¶32 Second, the circuit court referenced Frederick’s testimony that
Nicola’s allegation that one of the assaults occurred while her grandmother and
uncle were also in the home was a “strong indicator of unreliability” that
Maroszek-Brennan should have explored further, based on the unlikelihood that
someone would rape a child while others were in earshot. When asked what
research he relied on to reach that opinion, and when confronted with an article
stating that such assaults frequently occur while others are nearby, Frederick stated
that his opinion was based on “common sense” and that he had no contrary
research on the subject. The court found that this testimony was not a reliable
application of scientific principles or methods, and “[t]here wasn’t any research or
scientific basis for the belief that [Nicola’s report] was unreliable” on that basis.

¶33 Given our review of the above evidence, the circuit court
appropriately considered the relevant facts, applied the proper standard, and
articulated a reasonable basis for its determination that Frederick’s opinions did
not satisfy WIS. STAT. § 907.02(1)’s qualification and reliability standards. We
agree with the State that “it was reasonable for the circuit court, in its gatekeeper
role, to reject testimony from a psychologist untrained and inexperienced in child
forensic interviewing critiquing a trained and experienced interviewer based on a
handful of articles on general topics related to child interviews.”

14
No. 2024AP1105-CR

¶34 Kellogg’s preeminent argument on appeal focuses on his comparison
between the circuit court’s consideration of Frederick’s qualifications versus
Hunter’s qualifications, stating that “the court arbitrarily applied different legal
standards” to the two experts and, specifically, applied a broader and more liberal
standard when admitting Hunter’s testimony.6 Thus, Kellogg claims, the legal
standard applied to Frederick was improper under WIS. STAT. § 907.02.

¶35 We are not persuaded by Kellogg’s arguments comparing the circuit
court’s reviews of Frederick’s and Hunter’s qualifications. This is an
apples-to-oranges comparison. As the State explains, it “introduced Dr. Hunter to
testify on a very limited point: to explain that hematospermia [is] a medical
condition that occur[s] when flecks of blood, often appearing as dark spots,
appear[] in semen.” Essentially, the purpose of Hunter’s testimony was simply to
establish for the jury that black spots in semen could occur. Hunter was clearly
qualified to testify on that limited point given his 30 years of experience as an
emergency room doctor, during which he had seen patients who presented with
this complaint. Under this limited circumstance, it was not necessary for the State
to have found a urologist or other such specialist to testify because the jury did not
need to understand the details of the condition for the purpose of this case, nor did
Hunter offer an opinion as to whether Kellogg had the condition; it was sufficient
for the jury to know that the condition exists.

¶36 In contrast, Kellogg offered testimony from Frederick as an expert in
forensic interviewing, memory, and forensic psychology. His testimony was

6
Kellogg states that “[b]ecause the court applied the proper legal standard when
qualifying Dr. Hunter as an expert, Mr. Kellogg does not challenge the circuit court’s ruling on
the admissibility of Dr. Hunter’s testimony.”

15
No. 2024AP1105-CR

offered for the purpose of explaining to the jury the best practices that relate to
child forensic interviewing and whether the forensic interview in this case
conformed to those best practices. However, Frederick was not a forensic
interviewer, he otherwise had not worked with children, he had no training in
conducting forensic interviews of children, and he had not written or presented on
the subject. The basis for Frederick’s knowledge on the subject was his review of
the literature of others and common sense, which the circuit court concluded did
not make him an expert regarding child forensic interviewing. Thus, the court’s
decision to admit Hunter’s testimony did not contradict its decision to exclude
Frederick’s testimony.

¶37 Kellogg argues that “[a]n expert need not ‘have personally
performed the activities at issue in order for him or her to give an opinion
thereon.’” See Hennig v. Ahearn, 230 Wis. 2d 149, 181, 601 N.W.2d 14 (Ct.
App. 1999). Kellogg, however, fails to include the second part of the Hennig
quote, which states, “provided that the expert is ‘qualified as an expert by
knowledge, skill, experience, training, or education’ regarding the matters at
issue.” Id. (citation omitted). Additionally, the Hennig court was referring to an
attorney testifying on the customs of business executives. Id. The Hennig court
then gave the example that “an automobile mechanic should be permitted to testify
regarding the adequacy of warnings on automobile batteries” even though “the
mechanic had not been involved in designing or writing warnings for automobile
batteries” because “he had ‘disassembled thousands of batteries’ and understood
‘the chemical and electrical processes’ and ‘what causes batteries to explode.’”
Id. (quoting Tanner v. Shoupe, 228 Wis. 2d 357, 814, 596 N.W.2d 805 (Ct. App.
1999)).

16
No. 2024AP1105-CR

¶38 We are not persuaded that the circuit court erroneously exercised its
discretion by finding that Frederick was not qualified in the field of child forensic
interviewing “by knowledge, skill, experience, training, or education” because the
circumstances described in Hennig and Tanner are markedly different from the
circumstances here. See Hennig, 230 Wis. 2d at 181. As the State aptly explains,

It is plainly appropriate for a court to consider whether the
proposed expert is qualified within the specific discipline
they are critiquing. It is not “arbitrary” to weigh against
admission that proposed expert’s lack of training,
qualifications, or experience in performing the task they are
critiquing.
And the fact that Frederick lacked relevant experience
was only part of the problem. As the circuit court noted,
child forensic interviewing is markedly different from adult
interviewing, requiring specialized training in
Wisconsin-specific protocols to be certified to do the job.
Dr. Frederick has not only never done a forensic interview
of a child, he also has no training on it (either based on
national best practices or Wisconsin-specific protocols),
and he was by his own admission unqualified to conduct
such an interview.

¶39 In summary, under the circumstances of this case, it was not an
erroneous exercise of discretion for the circuit court to determine that Frederick’s
testimony was not admissible under WIS. STAT. § 907.02(1). The court soundly
concluded that Frederick lacked the “knowledge, skill, experience, training, or
education” related to Wisconsin’s child forensic interview protocols, which differ
from the protocols for adult forensic interviews. Thus, the court’s decision was a
reasonable exercise of its gatekeeping function under § 907.02(1).

B. Tristan Wristen

¶40 Kellogg next argues that the circuit court erroneously exercised its
discretion by limiting Wristen’s expert testimony to Nicola’s SANE exam and the
best practices for asking child victims questions about alleged assaults in the

17
No. 2024AP1105-CR

context of a SANE exam. When discussing Wristen’s testimony, the circuit court
divided her proposed testimony into three categories: (1) the forensic interview,
(2) the SANE exam, and (3) the counseling that Nicola received. The circuit court
determined that Wristen was well qualified to provide expert testimony and opine
with respect to the SANE exam. Wristen is a SANE, she teaches undergraduate
students, she trains graduate nursing students pursuing master’s degrees in
forensic nursing, she trains other SANEs, she knows the protocols for SANE
exams and has applied those protocols, and she is licensed to practice as a forensic
nurse in Wisconsin and other states. Thus, the court determined that Wristen’s
testimony satisfied the requirements of WIS. STAT. § 907.02(1) to provide expert
testimony regarding the SANE exam.

¶41 In contrast, the circuit court limited Wristen’s testimony based on
her lack of expertise, like Frederick, to opine on or critique Nicola’s forensic
interview or Nicola’s counseling. Based on Wristen’s own testimony, she had no
licenses, training, or experience as a therapist, and she had no advanced
counseling, therapy, or psychology degrees. At best, she explained that
“psychiatric care of patients” was a “piece of our curriculum.” Wristen had also
never conducted a child forensic interview. She had not undergone training to
become a forensic interviewer and acknowledged that she lacked the credentials to
conduct a forensic interview in Wisconsin or at any accredited child advocacy
center in the country. Finally, she was not “aware” of the accreditation standards
for a forensic interviewer. While Wristen, like Frederick, was aware of national
best practices for child forensic interviews, she was not familiar with the
curriculum for forensic interviewers in Wisconsin or the Wisconsin-specific
protocols or statute, and she admitted that she would not “know whether
[Nicola’s] interviewer followed the protocol that’s established in Wisconsin.”

18
No. 2024AP1105-CR

¶42 We conclude that the circuit court’s well-reasoned decision to limit
Wristen’s testimony evidences a proper exercise of discretion. The court correctly
considered the threshold requirements in WIS. STAT. § 907.02(1) based on
Wristen’s testimony. It found that Wristen was not qualified “to testify to the best
practices for forensic interviews or critique the interview conducted in this case,”
“looking at her specific qualifications with respect to this area,” because she was
not “certified as a child forensic interviewer,” “her training in this area primarily
consisted of watching videos of interviews and reading literature on best
practices,” and “she was not aware of the specific training or protocols adopted in
Wisconsin.” The court also found that Wristen was not qualified to “testify
regarding best practices or opinions about the impact of counseling on sexual
assault victims,” “particularly with respect to its impact on memory,” because
“[s]he does not have specialized education or experience in psychology,” and her
limited experience “relevant to psychology” was “[in]sufficient to qualify her to
offer expert testimony” on this subject.

¶43 In terms of relevancy, the circuit court did not agree that Wristen’s
testimony would “assist the trier of fact” because it was concerned that “the
defense’s most salient points were” being “dressed up in the guise of expert
opinion.” See Giese, 356 Wis. 2d 796, ¶19. For example, the court noted that
Wristen “wanted to provide some critiques or some differences between what was
said … at the SANE examination, as compared to in the forensic interview, as
compared to anywhere else that it might have shown up,” but the court explained
that this testimony could be elicited through cross-examination of other witnesses
and addressed in closing argument.

¶44 As to reliability, the circuit court observed that Wristen had “a
tendency to speculate or assume facts that were not in the record when she was

19
No. 2024AP1105-CR

forming her opinions about the forensic interview.” In support of its finding, the
court provided the example that Wristen had concluded that Nicola “had been
exposed to pornography because she talked about seeing part of a movie and
deciding that she should not keep watching it,” but the court explained that
Nicola’s “answer, frankly, in no way supported the conclusion that she was
referring to pornography.” The court was “troubled” that Wristen “was jumping
to conclusions … without any supporting information.”

¶45 As with Frederick, Kellogg challenges the circuit court’s exercise of
discretion based on his disagreement with the standard the court applied, calling it
“an artificially narrow legal standard.” In particular, Kellogg highlights Wristen’s
“training and experience in psychiatric nursing and how [psychiatric nursing]
overlaps with forensic nursing,” her “practical experience with child sexual assault
evaluations and investigations,” and her testimony “about the importance of
making sure that both physical and verbal evidence is obtained appropriately so as
to not taint the evidence collection process.” Without outlining each of the
contrary facts Kellogg highlights about Wristen, the bottom line is that his
arguments fail to overcome our standard of review.

¶46 The circuit court’s decision to limit Wristen’s testimony had a
reasonable basis, it followed the precepts of WIS. STAT. § 907.02(1), and it was
based on testimony and other evidence in the record. See Shomberg, 288 Wis. 2d
1, ¶27. We must therefore affirm the court’s decision.

II. Esther’s Prior Convictions

¶47 We next consider Kellogg’s challenge to the circuit court’s
evidentiary ruling that allowed Esther to admit to only one of her eight criminal
convictions before the jury. As noted above, on the first day of trial, the parties

20
No. 2024AP1105-CR

discussed how many of Esther’s prior convictions could be used to impeach her
credibility under WIS. STAT. § 906.09(1), based on the “presum[ption] that the
number of convictions is relevant to a witness’s credibility.” See State v. Smith,
203 Wis. 2d 288, 297, 553 N.W.2d 824 (Ct. App. 1996). Pursuant to § 906.09(1),
“a witness may be asked whether the witness has ever been convicted of a crime
or adjudicated delinquent and the number of such convictions or adjudications”
“[f]or the purpose of attacking character for truthfulness.” Generally, “[i]f the
witness’s answers are consistent with” the number of convictions as determined to
be admissible by the circuit court, “then no further inquiry may be made.” See
§ 906.09(1), (3).

¶48 Significantly, prior conviction evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice.”
WIS. STAT. § 906.09(2). Whether to admit or exclude evidence of a prior
conviction for impeachment purposes rests in the circuit court’s discretion. State
v. Gary M.B., 2004 WI 33, ¶19, 270 Wis. 2d 62, 676 N.W.2d 475. “This court
will affirm a circuit court decision to admit evidence of prior convictions if the
circuit court properly exercised its discretion, regardless of whether we would
have made the same ruling.” Id.

¶49 “[N]ot all of a witness’s convictions are admissible to attack his or
her credibility. Rather, the [circuit] court has significant discretion to balance the
various interests set out in” WIS. STAT. § 906.09. State v. Lobermeier, 2012 WI
App 77, ¶17, 343 Wis. 2d 456, 821 N.W.2d 400.7 The factors that a court may
7
In his reply brief, Kellogg notes that the State cites State v. Lobermeier, 2012 WI App
77, 343 Wis. 2d 456, 821 N.W.2d 400, but he argues that the “case is easily distinguishable.” As
we have done here, the State cites Lobermeier for a general proposition related to our standard of
review, which is entirely unrelated to, and not based on, the specific facts of the case.

21
No. 2024AP1105-CR

consider to determine whether to admit or exclude prior conviction evidence
include the following: (1) “[t]he lapse of time since the conviction”; (2) “[t]he
rehabilitation or pardon of the person convicted”; (3) “[t]he gravity of the crime”;
(4) “[t]he involvement of dishonesty or false statement in the crime”; (5) “[t]he
frequency of the convictions”; and (6) “[a]ny other relevant factors.”
Sec. 906.09(2)(a)-(f). “These factors are weighed in a balancing test to determine
whether the probative value of the prior conviction evidence ‘is substantially
outweighed by the danger of unfair prejudice.’” Smith, 203 Wis. 2d at 296
(quoting § 906.09(2)).

¶50 Kellogg challenges the circuit court’s decision on the grounds that
the court “did not fully evaluate the factors set out in WIS. STAT. § 906.09 and did
not weigh probative value versus prejudice as it should have.” According to
Kellogg, the court erred by “relying just on the age of the convictions” because
“Wisconsin does not bar prior convictions just because they are old like federal
courts do.” See Gary M.B., 270 Wis. 2d 62, ¶23 (discussing federal rule barring
convictions more than ten years old). Further, Kellogg notes that “[t]he case for
counting the convictions is made even stronger because some of the more recent
prior convictions were for crimes of dishonesty,” which is a factor under § 906.09.
Finally, Kellogg asserts that the court “never stated it was excluding seven of
[Esther’s] eight prior convictions because it worried about their prejudicial effect.”

¶51 Our resolution of this issue rests entirely on the application of our
standard of review, and we conclude that the circuit court appropriately exercised
its discretion by limiting mention of Esther’s prior convictions to one. Kellogg’s
arguments on appeal are entirely based on the fact that all of Esther’s prior
convictions were presumed admissible under WIS. STAT. § 906.09, which is
correct, see Gary M.B., 270 Wis. 2d 62, ¶22, but his arguments appear to suggest

22
No. 2024AP1105-CR

that the court was then required to admit all of Esther’s prior convictions, which is
not correct. Kellogg presents no legal authority to the contrary. We conclude that
Kellogg merely disagrees with the weight the court gave to the factors it
considered and its application of the balancing test, which cannot serve as a basis
for us to overturn the court’s discretionary decision.

¶52 This trial occurred in 2022. At that time, Esther had eight
misdemeanor and felony convictions and juvenile adjudications, which occurred
from 2003 to 2012. Kellogg’s defense counsel argued that all of Esther’s
convictions should be counted, except for the 2003 juvenile adjudication. Counsel
did not offer any argument before the circuit court to support that request.

¶53 In contrast, the State argued that because most of Esther’s
convictions were over 10 years old, only the most recent 2012 conviction should
be counted. The State also noted that the jury would hear that Esther was
incarcerated when Nicola was born, so it was reasonable for the jury to be told
about that conviction. Further, the State argued to the circuit court that Esther was
“very young” when she committed her other offenses—explaining in its brief that
Esther was 12 and 16 years old at the time of her juvenile adjudications, her 2012
conviction was when she was 20 or 21 years old, and she was 31 years old at the
time of the trial in this case. The State also informed the court that Esther was
preparing paperwork to seek a pardon for her prior convictions.

¶54 The circuit court ultimately agreed with the State, concluding that
Esther could be asked about prior convictions and that she should answer “one,” in
reference to the 2012 conviction for misappropriation of identification because the
remaining offenses were too remote in time. In reaching this conclusion, the court
also considered the prior convictions of the other witnesses, including Kellogg,

23
No. 2024AP1105-CR

and sought to reach consistent rulings, ultimately refusing to allow any other
witness to be questioned about prior convictions because those convictions were
also too remote. The court weighed the lapse of time since Esther’s convictions
and her rehabilitation the most heavily, though it also appeared to consider the
frequency of Esther’s convictions at the time she was committing them. Thus, the
court considered proper factors under WIS. STAT. § 906.09(2) and used a rational
process to reach a reasonable conclusion. Although the court’s decision was not
the one advocated by Kellogg, that fact does not demonstrate an erroneous
exercise of discretion. See Gary M.B., 270 Wis. 2d 62, ¶19.

¶55 Kellogg argues that a circuit court is required to address or evaluate
all the factors in WIS. STAT. § 906.09, but he presents no authority in support of
that proposition. Instead, case law explains that “we will not find error predicated
upon the circuit court’s failure to address factors not brought to its attention by
defense counsel.” Gary M.B., 270 Wis. 2d 62, ¶30. Before the circuit court,
Kellogg’s defense counsel generally referenced “the factors in [§] 906.09,” but he
failed to make an argument regarding any specific factor, mentioning only that the
2003 juvenile case “would not have to [be] include[d].” Kellogg cannot now
assert circuit court error based on arguments defense counsel failed to offer. See
Gary M.B., 270 Wis. 2d 62, ¶30 (“[T]he onus is on defense counsel to articulate
the relevant balancing test factors and discuss why the probative value of the
particular convictions is substantially outweighed by the danger of unfair
prejudice.”).8

8
For this reason, the State notes that Kellogg’s arguments are only reviewable under a
claim of ineffective assistance of counsel, which he has not preserved. See State v. Gary M.B.,
2004 WI 33, ¶27, 270 Wis. 2d 62, 676 N.W.2d 475.

24
No. 2024AP1105-CR

¶56 Kellogg nevertheless complains that “the record is so lacking in
terms of the required analysis.” While the circuit court’s reasoning was brief, we
need not accept that fact as a failure to exercise its discretion. See id., ¶26.
Instead, “if a circuit court does not explicitly engage in balancing on the record, an
appellate court can nevertheless affirm, if the record indicates that balancing is
implicit from the circuit court’s determination.” Id.

¶57 Here, the circuit court’s “decision exhibits implicit agreement” with
the State’s reasoning that 7 of the convictions should be excluded because they
occurred over 10 years before trial, Esther was under 21 when she committed
those crimes, she had not reoffended in the past decade, and she was preparing to
seek a pardon for her prior convictions. See id., ¶27. The court need not use
“magic words” to demonstrate that it engaged in a balancing of the probative value
of the prior convictions against the danger of unfair prejudice. See id., ¶26
(citation omitted). The court’s decision further demonstrates that it employed
balancing because it considered whether its ruling on Esther’s prior convictions
was consistent with its rulings on the other witnesses’ prior convictions.
Therefore, Kellogg cannot demonstrate that the circuit court’s ruling limiting
Esther’s past convictions under WIS. STAT. § 906.09 was an erroneous exercise of
discretion.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

25