*1 Plaintiff-Respondent,† Wisconsin, State
v. Defendant-Appellant. Dale H. Davidson, Appeals Court of No. 98-0130-CR. Submitted August on briefs 1, 1998.
1998. Decided October (Also 38.) reported in 589 N.W.2d granted. to review †Petition *3 defendant-appellant, the cause Buting of the
On behalf F. of Jerome on the briefs was submitted Buting Williams, of Brookfield. & S.C. plaintiff-respondent, the cause
On behalf Doyle, attorney E. oí James on the brief was submitted attorney general. Ruhly, general, assistant and Sharon Deininger, Roggensack Dykman, P.J., Before JJ. appeals H. from a
DYKMAN,P.J. Dale Davidson second-degree judgment sexual for of conviction contrary thirteen-year-old niece, assault of his 948.02(2), argues repeater. § Davidson as Stats., admitting his in into evidence the trial court erred prior six-year-old sexually assaulting
conviction girl in He the dissimilarities 1985. contends seriously proba- cases undermine between two establishing in motive or tive value of argues opportunity if the also that even this case. He probative value, it would be sub- has conviction stantially outweighed by prejudice created. the unfair probative agree has no that the conviction We the trial court erro- and, therefore, conclude that value neously admitting this exercised its discretion Accordingly, remand for a reverse and evidence. we *4 basis, need on this we new trial. Because we reverse remaining issues that Davidson raises not address the regarding testimony prose- or the witness's rebuttal closing arguments. during remarks cutor's
Background During September the weekend of 24, 1995, Dale (Davidson), Davidson teen-year-old his wife, sons, three and thir- camping
niece, M., Tina went in Adams County Winnebago camper in the Davidson's van. On Saturday evening, M. Tina stated that the Davidsons they her allowed to drink some wine while all sat campfire. falling asleep night, around a After later that M. Tina stated that she was awakened Dale David- allegedly son, who wanted her to drink some more attempted lay wine. She stated that she back down kept picking up get but that Davidson her her to allegedly drink. After wine, she drank the Davidson lay get told Tina M. to on her back so she would not up sick. Tina M. stated that she then felt Davidson lift away asleep her shirt. She turned and fell but awoke to pulled up find that Davidson had her shirt and bra and licking again was her breasts. She stated that she away turned from Davidson but later awoke to find zipping up pants. Davidson her reported parents, Tina M. this incident to her who police. police then contacted the arrested Davidson charged second-degree him sexual assault of a child. sought
In a limine, motion in the State to introduce sexually evidence of Davidson's conviction for assaulting six-year-old girl. This assault occurred on December the basement area of the Peace Falls, Lutheran Church in Park Wiscon- Cindy victim, sin. The P., stated that when she went to go get during a drink of water services, church David- approached put son her and his hands down underneath her underwear and felt her buttocks pubic first-degree area. Davidson was later convicted of years prison. sexual assault and sentenced to two *5 requested conviction be that this The State plan help intent, establish admitted Quoting identity. Fishnick, 127 Wis. 2d from State v. (1985), 272, the district 260-61, 378 N.W.2d purpose "[b]ecause attorney of the sexual that said crime, of the and because purpose is an element contact impacts upon for com- his motive defendant's charged, mitting he is the other the crime with which [the defendant's] tends to show evidence which acts properly He stated that it was admissible." motive is Cindy assaulted to conclude that Davidson reasonable purpose of sexual arousal P. in December for gratification, for this assault and that his conviction same that he had the should admissible to establish be allegedly assaulting Tina M. The district motive for by arguing any attorney that unfair concluded by prejudice of this the introduction caused only instructing jury use could be eliminated purposes, propensity. permissible not the evidence hearings regarding held admission Two were hearing, initial conviction. At the Davidson's not used to ruled that the conviction could trial court prejudice it would of the unfair show motive because conditionally it admit evidence create, that would but opportunity, plan or scheme. to show conviction attorney hearing, the district stated At the second "plan, thought to show the evidence was relevant he He scheme, as motive." elaborated: as well plan his through was created opportunity assaulting these sexually his method of through offered, I think the cir- and as I have young girls, I the defense are similar. know cumstances that, I used the certainly agree doesn't but itself, camping trip, camper comparison of the itself, of the and to the structure the structure church, people present the fact that were both of them....
The court reiterated it would initially not *6 admit motive, the conviction establish to but that it would it to prove allow scheme or plan, opportunity. warned, The however, court there a fine line between this evidence to establish using plan oppor- tunity, it using and to establish It propensity. the to suggested parties come an as to agreement how this evidence should be jury to the and presented what given instructions should be to or elimi- reduce it any prejudice nate unfair that may create.
After the trial court determined that the convic- admissible, tion parties would be the indicated that they to the might agree by introduce means of as stipulation. parties Both to what the agreed stipula- include, tion should and it read to the jury.1 was stipulation The read as follows: case, attorney attorney In this district and the defendant's stipulated following 22,1985, have to the On facts: December Col- [P.], 9-15-54, attending gathering leen A. was in date birth a Wisconsin, County, family. Cindy [P.], Price with her of birth date 10-28-79, six, age daughter, present family. her was with the building entrance, allowing entry floor, top has a main to the where gathering stairways was held. There are that allow access two level, to the where room lower the rest rooms another are steps. located at the bottom ofthe The water next bubbler is located entry men['s] to the room. rest Another service door allows directly Approxi- lower level where the bubbler is water located. mately gathering upper people on the There attended the level. gathered were adults in on the additional and children the room lower level. During gathering, Cindy family get [P.] left her a drink bubbler, level, of water at the located in the lower next to the water, getting men['s] drink of defendant rest room. While approached Cindy. Cindy's put The defendant his hands inside underwear, Cindy's pubic and touched buttocks and front area. Cindy goto left said she had to the bathroom and the area. reading stipula- Following prosecutor's of the following cautionary then read the tion, the court instruction: jury, of the the evidence gentlemen
Ladies crime committed regarding has been received the defendant is not on the defendant which evidence has been received that Specifically, trial. defendant, sexual contact in did have with [P.], If find that conduct did Cindy age you six. this occur, only should consider it on the issues of you may You not consider this plan, or scheme. conclude that the defendant has a cer- evidence to trait, character and that tain character or a certain conformity that trait or the defendant acted with character, charged to the offense respect case. this *7 the issue of
The evidence was received on defendant has reason to as whether scheme, plan desire the result of the crime in or is, such other conduct of the defendant was whether design scheme that led to the commis- part of a charged. sion of the offense may only You consider this evidence described, you I deter- purposes giving weight mine it deserves. It is not to be used to conclude that that he has a person pro- the defendant is a bad and for that reason pensity to commit such offenses you And indicated guilty charged. offense to rest? going State was second-degree Davidson was convicted of sexual repeater a child as and was sentenced to assault of years prison. appeals. in twelve He conduct, plead[ed] guilty As a result of this defendant degree Cindy [P.] [of] was convicted first sexual assault of on Feb- 7,1986. ruary Standard of Review primary The issue this case is whether the trial court erred when it admitted into evidence Davidson's sexually assaulting six-year-old conviction for a girl. proper reviewing standard for a trial court's admission of other crimes evidence is whether appropriate court exercised discretion. State v. Sulli (1998). van, 768, 216 Wis. 2d 780, 576 N.W.2d appellate "An evidentiary ruling court will sustain an if it finds that the circuit court examined the relevant applied proper using facts; law; standard of process, demonstrative rational reached a conclusion judge that a reasonable could reach." It Id. is an errone ous exercise of discretion for the circuit court to fail to delineate the factors that influenced its decision. See id. at at 36. If the circuit court fails to reasoning, independently set forth its we will review provides the record to determine whether it a basis for the circuit court's exercise of discretion. See id.
Discussion To allow the introduction of evidence of a prior conviction, a court must determine whether the evi- 904.04(2), dence is admissible under Stats., Rule which reads as follows: crimes,
Evidence of other wrongs, or acts is not admissible to prove the character person of a *8 order to person show that the in conformity acted therewith. This subsection does not exclude the evi- dence when offered for purposes, other such as proof intent, opportunity, preparation, plan, knowledge, identity, or absence of mistake accident.
241 general of other is to exclude evidence rule "The prove person's in order to show character acts to bad according person in com- to his character the acted that mitting present Fishnick, 2d 127 Wis. v. act." State the (1985). 272, 253, 276 247, 378 N.W.2d Whitty 278, 149 557 State, 2d v. 34 Wis. In (1968), supreme (1967), the denied, 390 U.S. cert. admitting recognized other the risk involved court why following its reasons and listed acts evidence strictly limited: use should (1) tendency to believe defen- overstrong he is charge merely because guilty of the dant (2) acts; tendency to do such likely to person of the guilty he is believed not because condemn punish- escaped he has charge but because present (3) offenses; injustice from other ment to demonstrate prepared one is not attacking who (4) fabricated; con- evidence is attacking bringing in result from might which fusion of issues crimes. evidence of other at 563. 292, 149 N.W.2d Id. at Whitty acts that other court cautioned While the only sparingly rea- when should be used necessary, sonably since lines of cases there have been routinely approved Whitty have in which courts noting Whitty's only while use of such evidence State's principles. 2d Johnson, 184 Wis. State v. See (Ct. 1994). App. The Johnson 463, 516 N.W.2d that, court concluded not, thing trend or one agree with this
Whether we it it once was and Whitty is not the bastion is clear: or until our say so. Unless time for the courts of the law the direction court reverses supreme *9 stop writing appellate opinions area, this which we should pretend Whitty actually to honor but offend it.
Id. See also
Tabor,
State v.
other acts evidence has been further
in sex
particularly
involving
ual assault cases,
those
minor
Plymesser,
children. See State v.
172
583,
Wis. 2d
(1992);
597-98,
367,
493 N.W.2d
574
State v. Freder
(1987).
ick,
We stated that
latitude rule' is not
relaxing
general
so much a matter of
rule that
competent
other acts evidence is not
as it is a matter of
placing the other acts evidence within one of the well-
exceptions
904.04(2),
established
of [Rule]
Stats."
Mink,
State v.
1, 13,
146 Wis. 2d
99, 104;
429 N.W.2d
See also Fishnick,
exceptions still in Rule we listed Stats., evidentiary apply in deter- standards traditional probative mining of a material the evidence whether *10 proba- consequential and, so, if that fact whether substantially outweighed by the unfair tive value prejudice 904.01-904.03, Stats. it creates. Rules Recently, Sullivan, v. 2d in State Wis. (1998), supreme the the court reaffirmed N.W.2d 30 vitality Whitty. Sullivan, In the defendant was of battery attacking girlfriend. charged At his with to tes- trial, the allowed the defendant's ex-wife court relationship tify past the about her abusive jury the that defendant. The trial court instructed the pur- testimony considered for ex-wife's could be knowledge, poses intent, mistake motive, of absence of that it not be used to conclude accident, or but could person therefore that the was a and was defendant bad guilty charged. convicted of the offense Sullivan was supreme appealed. court We affirmed but reversed. supreme decision,
In its court reiterated three-step analytical courts framework circuit admissibility determining of must follow when 904.04(2), acts under Rule other evidence Stats.: (1) for an the other acts evidence offered Is 904.04(2), Stats.], [Rule acceptable purpose under intent, establishing opportunity, such as identity, plan, knowledge, or absence preparation, or accident? mistake (2) relevant, the other acts evidence consid- Is [Rule facets of relevance set forth in ering the two 904.01, assessing The STATS.]? first consideration acts relates relevance is whether the other consequence to the to a fact that is of proposition or determination of the action. The second considera- in assessing tion relevance is whether the evidence probative value, is, has whether the other acts evidence has a tendency to make the consequential fact or proposition probable more probable less than it would be without the evidence.
(3)
probative
Is the
value of the other acts
evidence substantially outweighed by
danger
prejudice,
unfair
confusion of the issues or mislead-
ing
jury,
considerations of
delay,
undue
waste of time or
presentation
needless
of cumula-
904.03,
[See
tive evidence?
Rule
Stats.]
Sullivan,
772-73,
The proponent and the opponent of the other
clearly
acts evidence must
articulate their reason-
*11
n
ing for seeking admission or exclusion of the
evidence and must apply the facts of the case to the
analytical framework. The circuit court must simi-
larly articulate
its reasoning
admitting
evidence,
excluding the
applying the facts of the
case to
analytical
the
framework..
.. Without care-
ful
by
proponent
statements
the
and
opponent
the
of the evidence
and
the circuit
regarding
court
the rationale for admitting
excluding
other acts
evidence, the
of
likelihood
error at trial is substan-
tially increased and appellate review becomes more
evidence,
difficult. The proponent of the
in this case
State,
the
bears the burden
persuading
of
the cir-
cuit court
three-step inquiry
that the
is satisfied.
ultimately
Id. at
We find the court's comments regarding Whitty, subsequent in Sullivan and cases to permitted Whitty, use of other acts evidence. which appeals Sullivan, we of considered the court When expressed that: concern from the court of decisions both
[T]he Wisconsin away chipped have supreme and the court appeals few, Whitty principle. Except for an isolated at the the use consistently approved those decisions have done so while mouth- of such evidence. Some have not Whitty simply have rule. Others ing Whitty.... addressed result, to fol- many pretend of these decisions
As a are Whitty actually do violence to it. These low but they "square force the awkward decisions because Whitty. hole" of the evidence into the "round peg" of Plymesser as By holdings [such these Friedrich], signaled court has supreme offense charged motive to commit defendant's demonstrate by prior acts which can be established such acts. propensity defendant's to commit unpublished slip 96-2244-CR, Sullivan, No. State v. (Wis. 26, 1997). op. App. March at 5-7 Ct. supreme
Responding comments, court these to light and comments of court said: "In of the decision opportunity appeals, reaffirm the this we take 904.04(2) (Rule) Whitty, vitality § as Stat. Wis. urged the defendant have us do." the State and both at 34. Sullivan, 2d at 576 N.W.2d Wis. *12 was unneces- do not believe that this comment We sary verbiage conclude that we should or dicta. We principles governing again Whitty the look to for the not to the cases evidence, admission of other acts Plymesser, following Whitty, to determine such as should be admitted other acts evidence whether the primary principle Whitty individual cases. And of that: prior
Evidence of crimes or occurrences should be sparingly prosecution only used when necessary. reasonably Piling on such evidence as a final "kick at the cat" when sufficient evidence is already in the runs the if danger, record such evi- admitted, dence is of violating right the defendant's to a fair trial prejudicial because its needless guilt effect on the issue of or innocence. The use of such evidence will adopted normally under rule be a calculated risk.
Whitty, 297, 149 34 Wis. 2d at at 565-66.
We analysis believe that dissent's of the facts of this case is a pre-Sullivan 904.04(2), view of Rule We Sullivan conclude we should apply Stats. analytical framework the facts of this case to deter- if mine the trial court erroneously exercised its in admitting discretion Davidson's conviction into evidence.
The first in the is to step analysis determine the other whether acts is offered a permis- Stats., sible under Rule purpose 904.04(2), such as to motive, intent, establish opportunity, preparation, knowledge, identity absence mistake or plan, accident. 9,1996
At the December motion the trial hearing, rejected request court State's to use con- motive, viction to establish but stated that it would conditionally admit the evidence to show opportunity or plan.2 response In request to the State's the conviction be following:
admitted to establish the court stated *13 attorney- arguing against admission, Davidson's In similarity pointed little between that there was out opportunity alleged to that He stated assaults. six-year-old, alone the two were when assault opportunity together, thirteen- to assault a family year-old girl, four or his entire within when distinguished particular, In he feet, dissimilar. five are girls, focusing on the dif- of the two the characteristics willingness regarding to trust and abilities ferences attor- level, Davidson's assault. On a broader resist an ney questioned would the use of the conviction how opportunity. He stated that establish incident, if in the thing, one guess I it would be because of his advantage opportunity of an he took whatever, him to that would allow work situation or is] in again, [he and then get six-year-olds, access to and uses the years ten later a similar situation of his situation to do a advantages same benefits .... thing kind of a similar responded as follows: to this concern The court in the situation opportunity element of There is that camping trip with taking organized a kid on an of my buy part it. The Court I THE COURT: don't would— may opportunity. That it that it be relevant to outlook on would be cases, you just argument appears in the wouldn't circumstances, types be an that there would believe that in these exceptions, opportunity? opportunity. that one of the Is Yes, Honor, [prosecutor]: it is. Your MR. THIBODEAU thought THE COURT: I it was. Yes, Honor.
MR. THIBODEAU: Your say, plan I the defendant far as like THE COURT: As Quite you get simply, good point that if to the on that. has a all, longer happening plan a serious or motive is no incident at case, point. way I see the at this issue. That's family, that had some similarities to at the school or function, kind of a that's —there at a church or some *14 similarity, the differences general is that as well as you out. point that attorney responded by pointing out a
Davidson's reasoning: in this flaw argu- if Court the State's
Basically, accepts context, then opportunity, ments of Mr. life, Davidson, of his never be able for the rest would child, any he is any present situation where him or not. Because under people where are around circumstances, opportu- he would have the those arranged it or someone nity, whether he whether it, opportu- have an arranged always else he would a child. And I think the statute nity, if he is around in a much more narrow contemplates opportunities very specific takes a reading, someone whether to, isolate themselves opportunity perhaps, they might of a situation where advantage take the child. alone with any not saying than there is
This is no different church, function, any at another at time anywhere, subjected he could be go church, if he would ever to any thing. say opportu- You could that's to the same 15,16 year-old six-year-old. or a nity, whether it is Now, fact, in another church and he is if in he is ten-year-old or six-year-old with a alone whatever, basement, that's the kind of in the then I that the statutes perhaps, that think opportunity, or inter- contemplate, not so broad a definition but arguing, State's here. pretation as the acknowledged and dis- The court the similarities ultimately cases, but these two similarities between conditionally The court admit evidence. decided parties going up to the as it to leave it stated that was jury. presented to the this will be to how evidence subsequent hearing A was held on this issue on February hearing, began by 18,1997. At that the court reiterating not to its decision admit the conviction to it establish opportunity but that would allow it to show plan adequate showing if there was "an similarity" between the two situations. attorney again opposed Davidson's the use this He stated that State evidence. wanted to introduce this that in evidence show both situations there was potential getting caught, risk of and that Davidson got possibly getting caught. some sort of thrill out of He argued, expert however, that there was no argument, support that would this and the conviction support improper should not be admitted to argument. an responded by stating The court to this concern *15 permitted argue propensity, plan, the State not was However, or scheme. the court did from retreat its statement that the conviction could not be used to show previously The court stated that it motive. going was not only going to admit the if it was to be used to going motive, establish but now that the evidence was opportunity plan,
to be admitted to establish or it it would allow to be used to establish motive as well. again up parties stipu-
The court left it to the to draft a regarding lation the admission of conviction, and it parties jury also stated that the should draft instruc- they limiting tions that read wanted the use of the evidence. pur-
The trial court admitted the evidence for the pose establishing opportunity, plan, permissible purposes which are all under Rule 904.04(2), question Stats. While we how the conviction opportunity plan, establishes or we conclude "greater-latitude under the rule" we must be more leni-
250 deciding the evidence falls within one of ent whether 904.04(2). permissible exceptions in Rule listed supreme specifically Moreover, the court has held that may prior convictions for sexual assault be used to Plymesser, See 172 Wis. 2d at establish motive. Fishnick, 260-1, 378 127 2d at 372; at Wis. N.W.2d result, at 279. As a we conclude that the convic N.W.2d analytical step in the tion satisfies the first Sullivan framework. "greater latitude rule" influences our
While
step
analysis,
to the first
in the
it is not to
decision as
regarding
influence our decision
whether the evidence
unfairly
Plymesser,
probative
prejudicial.
or
See
inquiry is
Wis. 2d at
Since it is the of a probative chance that carries repeated by mere similarity lies in the weight, probative value *16 The charged act and the offense. between the other the other acts and stronger similarity the between offense, will the charged greater the the repeated by not the like result was probability .. mere chance or coincidence.. similarity degree of between required required charged offense and
other act and
number of similar acts cannot be formulated as a
general
greater
similarity,
rule. The
complexity,
events,
and distinctiveness
of the
stronger
case for admission of the other acts evidence. How
many similar
are enough depends
events
on the
complexity and relative
frequency
of the event
rather
than on the total number or occurrences.
(citations omitted).
786-87,
Id. at
In case, this there are two incidents at issue: the six-year-old incident with the at the church and alleged thirteen-year-old incident with the in the camper. points following The State out the similarities (1) between the cases: the defendant touched the vic- (2) legs; tims between the the defendant found (3) victims; vulnerable the defendant selected an envi- discovery ronment in which of the act was not possibility. inevitable, but was more than a mere persuaded by We are not these last two similári- undoubtedly ties. While both victims were vulnerable age, because of their size there are distinctions regarding vulnerability. six-year- the extent of that A by stranger relatively old confronted in a isolated arguably area of a church much more vulnerable thirteen-year-old than a confronted her uncle with family away. her members four to five feet As far as discovery, likelihood of there is a considerable differ- *17 family in four members a situation which ence between away, dog and a in feet situation are four or five and a upstairs people in church ser- are number which separate conclude in a room. We the hall vices or down the similarities out-number that the dissimilarities cases. these two only comparison one other involves
The State's years earlier, not a series incident, occurred ten which 788, 576 Sullivan, 216 Wis. 2d at of incidents. Cf. (fact only prior one inci- that there was at 39 that other acts evidence to decision dent contributed only similarity probative). between The not was allegedly girls touched is that both were two incidents unfortunately legs, occur- common their an between required find are to cases. We rence in sexual assault support the trial court's decision similarities may however, not create conviction; we admit non- are tenuous or similarities substantiate prior conviction that Davidson's existent. We conclude plan, opportunity, probative of his not was erroneously its dis- exercised that the trial court Having admitting other acts evidence. cretion probative or mate- not that the evidence is concluded unnecessary to address whether for us rial, it is outweighs proba- prejudicial its effect of the evidence value. tive argues decision that the trial court's also
Davidson was not harm- of his conviction to admit highly the error was He contends less error. possibly prejudicial in his conviction. resulted respon- respond If a assertion. to this does not State by the made an assertion not refute dent does appellant, acquiesced to to have she is considered he or Breeding Ranches, it. See Charolais v. Ltd. FPC Securi (Ct. Corp., 97, 109, ties 90 Wis. 2d 279 N.W.2d *18 1979). App.
Conclusion "greater guides While the latitude rule" our deci- sion as to whether Davidson's conviction falls exception against using an within to the rule other acts require non-probative evidence, it does not that we find probative. only- evidence to In case, this there was years incident, one and it occurred ten earlier. Furthermore, there were few similarities between the result, two incidents. As a we conclude that Davidson's step analyt- failed the conviction second in the Sullivan ical Therefore, framework. we reverse and remand this cause for a new trial.
By Judgment reversed and cause Court. — remanded with directions. (dissenting).
ROGGENSACK, J.
The admission of
discretionary
other acts evidence is a
determination.
Pharr,
334,
See State v.
Wis. 2d
340 (1983).
reviewing
498, 501
When
a circuit court's exer-
applied
discretion,
cise of
we decide
whether
court
proper legal
in
standard
accord
facts of
record. We do not
reverse
circuit court's exercise of
applies
proper legal
discretion if it
standard and
reaches a conclusion that a
court could
reasonable
reach,
if it
even
is not one which we would have
Plymesser,
reached. See State v.
583, 591,
172 Wis. 2d
(1992).
493 N.W.2d
Because I conclude that
applied
appropriate
this court has not
standard of
to the
decision,
review
circuit court's
standard,
which
if
require
correctly applied,
an affirmance of the
would
respectfully
I
dissent.
decision,
circuit court's
second-degree sexual
was convicted
Davidson
948.02(2),
contrary
§
which
child,
of a
assault
STATS.,
. . . with a
has sexual contact
establishes, "Whoever
years
age
person
is
of 16
has not attained
who
felony."
guilty
contact is defined
BC
Sexual
of a Class
948.01(5)(a),
"[i]ntentional
§
include,
Stats.,
parts
complainant's
touching
if
.. . intimate
of the
...
purpose
touching
. .
. . . for the
of.
that intentional
gratifying
sexually arousing
the defendant."
position,
the 1985
both
It is the State's
acts
incident, Davidson's
were
and the 1995
incident
gratification.
purpose
All
sexual arousal or
for the
young,
children, who,
female
vulnerable
occurred with
assaults,
located in an environ-
time of the
were
at the
*19
risky
them were
contacts with
ment where Davidson's
discovery.
potential
court,
The circuit
of the
for
because
ruling
motion to exclude evidence
on Davidson's
for
it was offered
incident, examined whether
the 1985
904.04(2),
proper purpose
§
and con-
a
under
Stats.,
sexual contact
1985 unlawful
cluded that Davidson's
opportu-
properly
motive,1
received to show
could
majority
agrees
nity
plan.
this
or
Sullivan, 216
I.
State v.
Wis.
determination, as do See
(1998).2
majority
However, the
768,
In this the circuit court reasoned that the type touching of sexual contacts occurred, which legs; vulnerability victims between their of the vic- tims; and the defendant's selection of an environment risky potential where his contact was because of the discovery, prove were similar and tended to opportunity plan gratification to achieve sexual contrary majority opinion arousal to law. The con- cludes that the last two similarities identified sufficiently circuit court are not similar to be relevant. disagree analysis I and conclude that this court's simply discretionary a substitution of its decision mak- ing contrary for that of court, the circuit to our discretionary established standard of review for determinations. example, majority opinion analyzes
For
comparative vulnerability
six-year-old
of the
victim
thirteen-year-old
largely
with that of victim,
based
age
Certainly,
ages
on their
differences.
their
are a
agree
six-year-old girl
factor to
And,
consider.
I
that a
by stranger
confronted
in the lower area of a church,
*20
meetings taking place
with
level,
on that
as well as
upstairs, was vulnerable because no adults she knew
drinking
were
her
fountain;
at the
however, a
thirteen-year-old girl
being prayed upon by
iswho
a
family
given
trusted
after
member
he has
her four to
glasses
asleep,
six
of wine and she has fallen
an
Additionally,
equally
in
circum-
vulnerable child.
both
by yell
stances,
summoned
or
others could have been
Surely,
from the victim.
Davidson must have
a scream
possibility. Therefore,
of this
it was not
been aware
unreasonable for the circuit court to conclude that
unusual choices of locations for both
Davidson's
plan
opportu-
assaults were relevant to his
gratification.
nity
to achieve sexual arousal
Furthermore,
the circumstances of Davidson's
any
assault are not
more dissimilar from
1985 sexual
those of the 1995 sexual assault
than the
acts
supreme
admission was affirmed
court
whose
Plymesser. There, a sexual assault which occurred
years
years earlier,
who was
twelve
with victim
seven
under
old,
admitted. The victim of the conviction
was
Plymesser
years
thirteen
old. The
review
was
following
supreme
concluded that the
similarities
court
(1)
to admit the
acts
were sufficient
evidence:
drinking prior
occurrence;
defendant had
to each
been
(3)
(2)
children;
were female
both victims
perpetrated
of friends.
assaults were
on the children
though age
may
Therefore,
and remoteness of time
be
determining
factors to consider in
if the evidence is
weight
given
a deter-
relevant, the
those factors is
courts
could
mination
about which reasonable
disagree;
therefore,
that decision is well within
Plymesser, 2d
circuit court's discretion. See
Wis.
583,
circuit
prejudice. However, all evidence that
that of unfair
against
prejudicial
to his
defense is
cuts
Davidson's
proffered
argue
Indeed one could
that if the
interests.
prejudicial,
not
it would not be relevant
evidence were
904.04(2), Stats.,
as
to the State's case. Section
*21
explained by
require
Sullivan,
of
does not
the exclusion
only
unfairly
prejudicial evidence,
that which is
all
prejudicial.
prejudice
the evidence
Unfair
occurs when
jury by improper
or to
tends to influence the
means
passions.
Sullivan,
their
216
2d at
inflame
Wis.
1985 sexual contact was
Because conclude that circuit legal proper standard and that it did not unreason- ably conclude sexual that Davidson's unlawful required contact satisfied all three elements Sulli- evidence, acts I van for admission respectfully dissent.