State v. Hammer

Plaintiff-Respondent, Wisconsin, State

v. Dеfendant-Appellant. A. Edward Hammer, Supreme Court 7, argument March 2000. Decided Oral No. 98-2900-CR. July (On appeals.) certification from the court of

2000 WI 92 629.) (Also reported in 613 N.W.2d defendant-appellant there briefs For were Anderegg Anderegg Mutschler, LLP, Mil- & R. Rex argument by Anderegg. Rex R. waukee, and oral argued plaintiff-respondent cause was For attorney general, assistant Wolford, William C. attorney Doyle, E. whom on the brief was James with general. ¶1. CROOKS, J. case comes N. PATRICK This II Court of us on from the District before Appeals. certification appellant, Hammer, A. seeks The Edward decision, which other of a circuit court allowed review pertaining past conduct to acts evidence to his sexual against admitted current assault case in a sexual be seeks of the circuit court's him. Hammer also ruling review prohibit testimony regarding alleged vic- to arguing past that his Sixth conduct, tims' sexual compel right and Amendment to confront witnesses testimony outweighed the interest on his behalf state's argues applying rape Hammer statute. shield rulings on these issues denied circuit court's right to a trial. his fair

¶ court of sec- The circuit convicted Hammer ond-degree assault a child under Wis. Stat. sexual of 948.02(2) (1995-96),1 fourth-degree § sexual and 940.225(3m). § The court assault under Wis. Stat. against acts Hammer ruled that the other because the evidence demonstrated a would be allowed motive, opportunity, operation, of and mode or method (Rule) 904.04(2), § of mistake under Wis. Stat. absence purposes proper under the which the court found were The court the other statute. circuit also decided that are to subsequent All references to the Wisconsin Statutes unless noted. the 1995-96 text otherwise relevant, acts evidence was in accordance with Wis. (Rule) (Rule) § 904.01, Stat. and that under Wis. Stat. probative 904.03, the value of the evidence substan- tially outweighed danger prejudice of unfair against prohibited However, Hammer. the circuit court testimony regarding past conduct, victims' sexual rape in accordance with the statute, shield Wis. Stat. despite argument §972.11, Hammer's this vio- right against lated his to confront witnesses him and compel testimony on his behalf under the Sixth Amendment.

¶ 3. We affirm the decision the circuit court. past We hold that the evidence of Hammer's sexual three-step conduct is admissible under the test set forth in v. Sullivan, 768, 772-73, State 216 Wis. 2d (1998). past N.W.2d 30 evidence Hammer's sex- prove properly admitted ual conduct was mode or operation, therefore, method of tity. iden- establish probative Further, the evidence is relevant and its substantially outweighed by danger is value not of prejudice, misleading jury, confusion, unfair the or delay. undue

¶ 4. We hold that of also the evidence the victims' prior properly kept jury sexual conduct was from the in rape with accordance the shield statute. The state's applying rape outweighed interest in shield statute right Amendment the defendant's Sixth to confront compel testimony. Finally, witnesses and we hold that prior the circuit court's admission of Hammer's sexual excluding conduct, while the victims' sexual con- right duct, did not fair violate Hammer's to a trial. I. early ¶ 5. The in morn- record indicates that fourteen-year-old ing 1997, D., hours of June Mark seventeen-year-old friend, six- D., their Steven staying teen-year-old C., at the home of Josh were parents Waterford, A. Hammer's defendant Edward Allegedly, the Wisconsin, Hammer resided. where boys during sexually all three assaulted defendant stay parents' at his home. their boys ¶ had arrived at the home 6. The three day accompanied brother, the defendant's earlier stepfather is the of Steven Hammer. Steven Hammer D. Steven Hammer and three Mark D. and Steven boys pick up Hammer's from Ohio to Steven had driven visiting younger children, had at their two who been grandparents' home. (R.

¶ a The defendant is homosexual. 40:43-44.) day arrival, before the On the their but boys allegedly derogatory alleged incident, made homosexuals, remarks to the defendant about though they even Steven knew of his sexual orientation. intensely disapproved his Hammer brother's also family homosexuality, but the rest of the Hammer apparently it. was comfortable with boys as 8. All three testified at trial to their staying experiences while at the Hammer residence.2 early morning boys 29, 1997, In of June were asleep of the defendant's residence. the basement slept a bed, Steven D. on the bottom tier of bunk while hideaway D. shared Mark and Josh C. bed. night, returning wedding defendant had been at a approximately time, home at 3:00 a.m. Around that touching D. he felt his Steven awoke because someone genital his area cold hands under underwear and him, boxer shorts. He did not know who had touched rely testimony at in primarily 2 We on the victims' trial case, establishing supplement facts this their testi but mony police repоrts. with information from the penis. but the did not hands touch his He also noticed pulled slapped that the had covers been off of him. He push away. at the hands to them experiencing ¶ 9. After sensation, this D. Steven got up go way to to the restroom. On his to the rest- lying room, he found the defendant on the floor next to slept, the bed where C. and Josh Mark D. but gone. bed, time he returned to the defendant was He boys originally also noticed that when the bed, went to night-lights up, two night-lights had been left on. heWhen woke Upon returning bed,

were turned off. night-lights he Shortly turned the thereafter, back on. Steven D. recalled that the defendant came back down- got again, telling stairs. Steven D. out of bed sleepless thirsty. defendant that he was and The defen- hideaway dant sat a chair to the down next bed and why sleep. replied asked Steven D. he was unable to He why sleep. that did he not he know unable to was procured refrig- Steven D. a soda from the downstairs drinking it, eratоr and after back to went bed. As he falling asleep, talking was he heard the defendant wedding. Mark D. about His next recollection was getting saying C. of Josh into Steven D.'s and bed something Ed had done to Mark and him and he wanted to kill Ed. Josh C. also said that he Mark had awakened Steven Hammer to tell him what happened. Mark D. testified that the defendant awoke by tapping

him him on his forehead. The defendant allegedly said that he and wondered if Mark was cold get D. so would move over that the defendant could into According D., bed. to Mark while the defendant was talking wrestling, bed to Mark D. about football and reached the defendant over and touched Josh C. in the (R. 36:205,219-222.) hip and Mark D. buttocks. then restroom, returned, he he found to and when went the lying the next to in the middle of bed the defendant got to the C. D. into the bed next Josh Mark back asleep. and fell defendant long got ¶ bed, D. into 11. Not after Mark back "slap "quit" Mark D. heard C. C. it and Josh Josh said (R. 36:206.) something away." at Josh C. testified that time, see had touched him at that but he did not who the defendant was bed with later confirmed his that the individual touched him. He also testified legs and his buttocks and over under his t-shirt back slapping face and shorts. After the individual's his throwing body, away Josh C. his from Josh C.'s hands got top and then into the bunk went the restroom bed. According D., Mark the defendant then Mark D.'s him. The defendant touched

turned toward penis grabbed his The defendant also Mark hand. penis put and it on his while he sucked Mark D.'s hand asking "kept penis. D. testified that he D.'s Mark also (R. morning." going I the me if am to remember this in 36:206.) respond pre- At D. did not and at first Mark asleep, hoping that the defendant would tended to be began alone, when defendant to suck leave him but got up penis, Josh C. he out of bed. Mark D. woke his together. boys upstairs went While Mark and two upstairs, they conversing D. and C. saw Josh were go crawling up the basement stairs to to his defendant boys up The then woke Steven Hammer and bedroom. just transpired. had Stеven D. and told them what parents ¶ 13. The defendant's were also awak- boys' Mrs. Hammer ened and told of accusations. asleep bedroom, in his own found the defendant boys touching improperly. the defendant denied boys prepare Nonetheless, had Steven Hammer police, written statements and summoned the where- upon the defendant was arrested. Mrs. Hammer told police that her son had confided that when he urges upon becomes he intoxicated, has homosexual which he acts. defendant's blood alcohol level 7:21 .13. a.m. was

¶ 14. The amended information reflects that the (1) charged attempted defendant was second- (Steven degree an sexual assault of unconscious victim D.) 2) 940.225(2)(d); fourth-degree § under Wis. Stat. (of D.) person sexual assault the same under —Steven (3) 940.225(3m); second-degree § Wis. Stat. sexual (Mark D.) assault of a child under Wis. Stat. (4) (of 948.02(2); fourth-degree § sexual assault C.) 940.225(3m). Josh under requested permis- trial, 15. Prior to the state priоr to sion use acts evidence. The state wanted to bring supposedly into an incident that had years occurred five seven earlier when the defendant guest was a at the Ohio home of Jason B. The defen- by fondling penis. dant awoke Jason B. Jason B.'s report police B. Jason did not the incident to the at that place time. He recalled that event took more than years ago. twenty years four B. Jason would have been eighteen. old and the However, defendant the defen- presented photographs sister dant's and a letter to actually place show the incident in took age minor, when defendant was a at sixteen. ¶ 16. court, The circuit Gerald P. Honorable presiding, Ptacek allowed in evidence of this objections despite assault, sexual defendant's hearing. Judge motion Ptacek reasoned that the facts of the two incidents similar were and opportunity, the evidence motive, wаs admissible to show mode or operation, method of and absence of mistake: charges of these obviously that the facts It's clear Whitty evidence are and the offered pending now they be in terms of image mirror as could as about similarity. alleged are are males. The assaults

The victims sleep nighttime during when have occurred at asleep or not are either unconscious or victims awakened to be happening. They aware of what's very is similar touching manner of touched. The in some of the is touched at least penis where the charges clearly and that's pending counts in the in the offered alleged to have occurred what's Whitty evidence. in

Now, sleeping its similar terms of again, [sic] is arrangements, sleeping the defendant where his victims either the same environment as by. or close ... same room Whitty law that describes what is evidence case greater latitude rule when it referred to as the weighed per- I to juveniles comes think has be to ],[ I the cases the as understand spective because victim, is that applicable the more younger concept. case, still technically the victims are

In this they teenagers are older and not juveniles but teenage years.... are young children who below latitude bearing greater That some on the has application. mistake,

I it relates to the issue of am satisfied as respond . . . This would to absence of mistake. Whitty is an obviously in that it's clear this evidence act,. of the purpose . in the intentional .motive motivation, a method of touching would be sexual victim, taking sleeping approaching a operation they're in a to sleep position them in their when not certainly . respond. opportunity defend or .and opportunity where is used with a sleeping victim in sleep an environment of in a bedroom in the privacy of a home. again Thеse are all relating opportu- to nity, they're clearly so relevant on the issue of . relevance... prejudicial

[I]t would be unfairly to the defendant certainly any it's harmful .but I defendant. . am light satisfied in this case in .jury of the. . instruc- tions. . protect .[that] a defendant against. . .improper use of evidence. it

I'm satisfied .unfairly would not be. . prejudicial to the therefore, defendant and I ‍‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​‌​​‍will allow the evi- dence, so Whitty I'll rule the offered evidence can be presented.

(R. 33:20-23.) ruling

¶ 17. The circuit court revisited his on day Jason B. acts evidence on the first of trial and reiterated that the evidence was admissible to show operation, opportunity, motive, mode of and absence pointed mistake. The defense counsel out that theory defense's would not be based on accident or explanation," theory "innocent rather the but that the engaged any defendant had never contact with the boys. argued disqualified The defense this admitting court's earlier reasons for evi- other acts dence because the state wanted to use the theory contest the defense would not raise. cir- rejected argument cuit court the defendant's testimony admitted However, Jason B. before B. trial, Jason testified and at the of the end the court jury read instruction, the standard WI-JI Criminal "Cautionary Instruction: Evidence of Other Wrongs, [Required Crimes, Acts if Requested] jury. § 904.02," to the — referred, prosecution

¶ to the 18. The also Jason closing. prosecution B. The referred to evidence in homosexuality that the defendant to show defendant's boys, stating opportunity to assault had the opportunity he's is "a situation where in a residence asleep he individuals who are and then with other proceed impulses to to on of his and act these decides (R. 40:152.) sexual contact." have permit ¶ not, however, 19. The court did circuit question D. cross-examination the defense to Steven on any D., C., contact Mark Josh about sexual between sought he to himself. The defendant establish and boys engaging three his had witnessed the and mother day sexually defendant related acts the before the presented allegedly his acts. He would have committed attempted put penis his into evidence that Josh C. to taking nap D. was D.'s mouth while Steven Steven his into Steven D.'s and that Mark D. stuck buttocks boys his mother told the face. Both the defendant and Additionally, stop the defendant's to this behavior. that she would have testified witnessed mother boys pulling up pants quickly when she their went evidence, the defendant to the basement. This down pattern argued, to and a would show a motive fabricate charged proximately his of related in time to conduct rape objected, arguing that the shield acts. state applied preclude The circuit statute to evidence. rape against balanced the shield statute court rights, Sixth Amеndment and refused defendant's testimony. permit February 13, 1998, the defendant On was guilty second-degree assault of a child

found sexual 948.02(2), fourth-degree § under Wis. Stat. sexual 940.225(3m) charges under Wis. Stat. assault —the relating acquitted Mark D. and Josh C. He was charges relating attempted to Steven second- D.— degree sexual assault of an unconscious victim under 940.225(2)(d), fourth-degree § sexual assault 940.225(3m). under

I—I HH ¶ 21. The first issue we address is whether the properly circuit court admitted evidence of the defen- prior dant's sexual assault of Jason B. We must erroneously determine whether the circuit court exer- cised its discretion when it admitted the evidence. Pharr, State v. 334, 342, 115 Wis. 2d 340 N.W.2d 498 (1983). uphold We a circuit discretion if the court's court "exercised its in discretion accordance with accepted legal standards and in accordance with the facts of Wollman, 459, 464, record." State v. 86 Wis. 2d (1979). If 273 N.W.2d 225 there was a reasonable basis determination, for the court's then we will not find an Pharr, erroneous exercise of discretion. 115 2dWis. Boodry (citing Byrne, 585, 589, v. 2d 426 Wis. (1964)). N.W.2d 503

¶ 22. We conclude that the evidence of the defen- dant's sexual assault was admissible under the three-step analytical Sullivan, framework set forth in 216 Wis. 2d at 772-73. In Sullivan stated that we we following questions assessing ask the three admissibility of other acts evidence:

(1) Is the other an acts evidence offered for (Rule) acceptable purpose under Wis. Stat. § 904.04(2), motive, establishing such as opportunity, intent, knowledge, identity, preparation, plan, or of mistake absence or accident?

(2) relevant, Is the other acts evidence consid- forth in ering two facets of relevance set Wis. (Rule) The first consideration in 904.01? Stat. § the other acts evi- assessing relevance is whether is of proposition relates to a fact or dence of the action. to the determination consequence is assessing relevance consideration second value, is, probativе has whether the evidence tendency to has a the other acts evidence whether more consequential proposition the fact or make than it would be without probable or less probable the evidence.

(3) the other acts probative value of Is danger of substantially outweighed by the evidence mislead- confusion of the issues or prejudice, unfair delay, of undue ing jury, or considerations cumula- presentation time or needless of waste of (Rule) See Wis. Stat. 904.03. § tive evidence? Id. case, admissibility In of a sex crime

¶ in of the light other acts evidence must be viewed was rule. The latitude rule greater greater latitude State, v. 615, in 85 Proper first stated in 1893 Wis. (1893). crime 628-30, 1035 It a sex applies 55 N.W. evidence, when a particularly case to admit other acts Friedrich, State v. 135 Wis. 2d child victim is involved. (1987) the rule is 1, 25, (stating 398 N.W.2d 763 cases involv useful "in both incest cases and especially children.") The helps indecent rule ing liberties in under the exceptions other acts evidence to come 904.04(2). (Rule) State v. stated in Wis. Stat. § (1985). Fishnick, 256, 247, 127 Wis. 2d 378 N.W.2d 272 the rule in the We have the rationale behind explained following manner: like occur- 'greater proof

"A latitude of as to other clearly dealing rences' is evident in Wisconsin cases crimes, with sex particularly involving those incest and indecent liberties with a minor child. This is not so much of relaxing general a matter rule that it is not in a competent prosecution for one crime to of introduce evidence other offenses as it is a matter testimony of placing concerning other acts or inci- dents of within one the well exceptions established State, to such rule. . . ." Hendrickson v. Wis. 2d (1973). (Footnote 275, 279, 212 N.W.2d 481 omitted). greater

Id. We reaffirm our earlier decisions admissibility latitude rule facilitates the of the other (Rule) exceptions acts evidence under set forth 904.04(2). In v. Davidson, 91, 51, State 2000 WI 2d 60,. Wis. 613 N.W.2d we concluded that "in involving especially cases, sexual assault those against greater children, assaults latitude rule analysis applies to the entire whether properly other crimes defendant's was admitted at greater Here, trial." the latitude rule facilitates the testimony. B.'s admission of Jason ¶ 24. We first consider the whether evidence of pur- the Jason B. is incident offered for an admissible (Rule) 904.04(2).3 pose § under Wis. Stat. The evidence alleged perpetrator's was admissible to show the operandi, operation, mode modus or or method through identity person which of the the who assaulted

3 (Rule) § Wisconsin Stat. 904.04 Character evidence not (2) conduct; prove exceptions; other admissible to crimes. crimes, crimes, wrongs, wrongs, Other or acts. Evidence of other person prove or acts is not to the character of a admissible person conformity order to show that acted in therewith. This subsection does not exclude the evidence when offered for othеr purposes, motive, intent, proof opportunity, prepara- such as tion, identity, plan knowledge, or mistake or absence of accident.

703 may proved. D., D., and Josh C. be Iden Steven Mark (Rule) exceptions tity under is one of the enumerated 904.04(2). specifically operation, Method of while not (Rule) 904.04(2), §in one of ‍‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​‌​​‍the factors enumerated is " identity perpetra of the 'that tends to establish " Hall, 125, n.6, 2d 307 tor.' State v. Wis. (1981) (quoting Francis State, 2d v. 86 Wis. N.W.2d (1979)). 554, 560, 273 N.W.2d 310 identity among The of the defendant was prove. had to the other elements that state essentially at least defendant concedes because perpetrator, did not see their "iden some of the victims satisfy step tity provided a facial basis to three-step analytical framework." the first of the

(Hammer's Br. at 29.) argues, however, He that since the circuit court testimony relating boys' prohibited to the sexual con identity duct, case; therefore, is not an issue greatly probаtive value of the evidence is reduced and (Hammer's should excluded. Br. at evidence be 29-30.) Plymesser, 583, 95, In State v. 172 Wis. 2d 594 - (1992), rejected argument. 493 N.W.2d 376 we such an prove crime, If the must an element of a then state admissible, if evidence relevant to that element is even dispute a defendant does not the element. Id. prove ¶ 26. The was also admissible operation similarity mode or method of because of the between the Jason B. incident and the case at hand. (comparing Hall, See 103 Wis. 2d at 144-45 crimes). similarity operation in method of between two night trial, At Jason B. testified that he late at awoke (R. 40:15.) masturbating him. find the defendant testimony case, In this there was that the defendant also entered into the area where the victims were sleeping up by trying improperly and woke them (R. 33.) them. touch acceptable purpose

¶ 27. While the tinder Wis. (Rule) 904.04(2) § Stat. that is the clearest —mode or operation establishing identity certainly method of — justifies admissibility of the other acts evidence, applying greater court, circuit rule, latitude did admitting not err in the evidence to show motive and absence of mistake. Each of the four crimes the defen- charged dant was under Wis. Stat. 948.02(2) 940.225(2)(d), 940.225(3m), §§ related to purpose "sexual contact." "Sexual contact" for the of this case is defined as by

Intentional touching the complainant or defen- dant, directly either or through clothing by the use any body object, or part complainant's of the or defendant's intimate if parts that intentional touch- ing is either purpose sexually for the degrading or sexually humiliating the complainant sexually or arousing or gratifying the defendant. 948.01(5)(a). testimony §

Wis. Stat. properly Jason B.'s was prove purpose admitted to motive because is an contact, element of sexual and motive is relevant to Plymesser, purpose. 172 Wis. 2d at 595-96. Similarly, according meaning

¶ 28. to the of "sex- 948.01(5)(a), § ual contact" under Wis. Stat. intentionally defendant hаd to touch the victims. The testimony Jason B. therefore was relevant to show that the defendant did not touch the victims accident or mistake. argue opportunity

¶ 29. The state did not permissible purpose was a for which the circuit court testimony, could admit such, the Jason B. and as we do not address it.4 evidence, We note that to admit other acts not all of the (Rule) 904.04(2)

exceptions under Wis. Stat. must be met. relevancy ¶ next address the of the Jason 30. We considering testimony, greater B. latitude rule as permits Davidson us to do. Evidence is relevant under (Rule) pro- § 904.01 if it relates to a fact or Wis. Stat. position consequence that is of to the determination of probative Identity and if has the action it value.5 was consequence fact of to this case because Steven D. did Identity him. an issue not see who touched was also consequence in the case the defendant denied because being night. Further, in ever the basement he brought up in evidence thаt his mother woke him in his own bedroom. testimony probative

¶ 31. The Jason B. also has probative assessing value. "The measure of value similarity charged relevance is between the offense Gray, 58, and the v. other act." State 225 Wis. 2d (1999). Similarity 590 N.W.2d 918 is demonstrated showing place, time, the "nearness of and circum- alleged stance" between the other act and the crime. Scheidell, 285, 305, State v. 227 2d 595 Wis. N.W.2d (1999). during Here, incident, 661 each the defendant night by awakened the victims the middle of the (Rule) 904.04(2)] exceptions "The listed in the statute are not [§ mutually other; exceptions they exclusive. The slide into each impossible categorical precision are to state with and the same may exception." evidence fall more than one State v. Tar into (1976) rell, 647, 662, (Abrahamson, 74 Wis. 2d 696 N.W.2d J., dissenting). required acceptable is purpose. What is "one" Sullivan, 768, 772, (1998); State v. 216 Wis. 2d 576 N.W.2d 30 (1982). Alsteen, 723, 729, v. State 108 Wis. 2d 324 N.W.2d 426 (Rule) Wisconsin Stat. 904.01 Definition of "relevant evi having any dence". "Relevant evidence" means tendеncy any consequence to make the existence of fact that is of probable probable determination of the action more or less than it would be without evidence. touching improperly males, them. The victims were all fourteen-year-old exception victim, and with the age. approximately the same were argues B. The defendant Jason evi- probative B. was an adult dence is not because Jason incident and the defendant was a child when the argues, contrast, In in this he the victims occurred. an adult. We case were children and the defendant was significant since, in do find to be a distinction not this young ages people involved were cases, the of the both majority. age Jason B. was near the of somewhat years old the incident 18 and 20 when between 16 Ohio, in and the defendant was between occurred years in mid- Here, the defendant was his and 18 old. occurred, the incident and the victims twenties when Moreover, teens. other in their middle to late were jurisdictions found other acts evidence admissible have ages. though different State v. even the victims were of (Idaho 1998); Rary State, 11 v. Cardell, 10, P.2d 970 (Ga. 1997); App. Crocker, State v. 861, 491 S.E.2d 863 (Minn. 1987). 840, 843 409 N.W.2d argues also that the other 33. The defendant it was too remote acts is inadmissible because evidence place It is within a circuit time, in and circumstances. other acts evi to determine whether court's discretion Hough State, 807, 2d See v. 70 Wis. dence is too remote. (1975). precise point There is no 534 235 N.W.2d remote, too and act is considered which case-by-case basis. on a remoteness must be considered may Even Friedrich, 135 Wis. 2d at 25. when is not necessa remote, the evidence considered too be rily if the remoteness is balanced rendered irrelevant similarity by v. incidents. See State the two 1988) (Ct. App. 99 Mink, 1, 16, Wis. 2d 429 N.W.2d 146 707 (citing State, 72, 81, v. 76 Wis. 2d 250 N.W.2d Sanford (1977)). upheld This court has in other cases admission of other acts еvidence that was more remote year span in time than the five to seven time in this Plymesser, (upholding case. admissibility 2d at 172 Wis. evidence); thirteen-year-old State v. (1991) Kuntz, 722, 749, 2dWis. 467 N.W.2d 531 (upholding admissibility sixteen-year-old evi- dence). We conclude that the other acts evidence was certainly remote, not too is balanced the simi- larity between the two events. place

¶ 34. note that We the circumstances and of the two incidents also share common characteristics. place While one incident took in Ohio and the other in during Wisconsin, night both occurred a home an over- In visit. both instances the defendant knew the sum, victim. In we conclude that the Jason B. incident evidence, was relevant because it related to a fact of consequence probative in this case and it had value. Finally, probative

¶ 35. we address whether the outweighed by value of the other acts evidence is the (Rule) danger prejudice § of unfair under Wis. Stat. Again, keеp greater 904.03.6 we mind the latitude balancing probative against rule when value unfair prejudice. probative value of evidence must not be outweighed by prejudice, "potential unfair which is the jury reaching harm of a the conclusion that because the past, defendant committed a bad act the the defen- (Rule) Wisconsin Stat. 904.03 Exclusion of relevant evi grounds prejudice, confusion, dence on of or waste of relevant, Although may proba time. be excluded if its substantially outweighed by danger tive value is the of unfair prejudice, issues, misleading jury, confusion of or or delay, time, presen considerations of undue waste of or needless tation of cumulative evidence. Mink, necessarily dant committed the current crime." Fishnick, 2d at 17 (citing Wis. 127 Wis. 2d at 261-62). 36. The circuit court recognized danger case, in this

prejudice but concluded that the evidence (R. 33:22-23.) See Gray, was not unfairly prejudicial. that, 225 Wis. 2d at 64 (requiring prevent admissi- bility, probative value of the evidence must be outweighed by prejudice, unfair and not be merely prej- udicial). Here, court offered a cautionary instruction ‍‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​‌​​‍B. both before Jason testified and at the close of the case.7 Cautionary instructions eliminate or minimize the prejudice. Plymesser, for unfair potential testified,

7 Before following Jason B. the court offered the cautionary jury: instruction to the regarding Evidence will be received other conduct ofthe defen- Specifically, dant for he which is not on trial. evidence will be engaged

received that the defendant in sexual on contact another occur, you you date. If find that this conduct did should consider it only motive, opportunity, on the issues absence of mistake or accident, operation. and mode of may You not consider this evidence to conclude that the defen- dant has a certain character or a certain character trait and that conformity the defendant acted in that trait or character with respect charged to the offenses in this case. only The evidence was received—or will be received on the motive, accident, opportunity, issues of of mistake or absence is, motive, operation. mode of That that means whether the defen- crime; opportunity, dant had reason to desire the result of a that is, opportunity whether the defendant had the to commit the charged; accident, is, offense absence of mistake or whether offense; required the defendant mind acted with state of for this operation, and mode of the manner in which the defendant commit- charged. ted the offense with which he is may only purposes You consider this evidence for the I've described, giving weight you it It is not it the determine deserves. person is a or be used to conclude defendant bad guilty charged. that —or for that reason is of the offenses

709 Landrum, also State v. 191 172 2d at 596-97. See Wis. (Ct. 1995). App. Here, 36 107, 122, 2d 528 N.W.2d Wis. cautionary specifically stated that the instruction the jury conclude from the evidence that the should not type person." This is the of cau defendant was a "bad tionary Fishnick, in 127 that was affirmed instruction Gray, 2d at and 225 Wis. 2d at 65.8 Wis. ¶ sum, deci- In we affirm the circuit court's testimony it admit Jason B.'s because satisfies sion to admissibility three-part prior Sullivan test for acts evidence.

I . I I rape shield 38. We next consider whether the applies statute, 972.11,9 case to Wis. Stat. this 40:9-10.) (R. gave at The circuit court also a similar instruction (R. 40:130-31.) at the close of the trial. Sullivan, cautionary points that in The defendant out However, prejudice. Sullivan instruction did not cure the unfair case, cautionary distinguishable is because in that instruc broadly prosecutor frequently and the referred tion was stated Sullivan, prior opening closing. and to the acts evidence both case, however, prosecutor 216 Wis. 2d at 791. In this did not during opening B. incident his statement refer to Jason (36:131-38), only minimally during closing and referred to it his (40:132-55.) Moreover, cautionary statement. instructions prevent prejudice. in this case were tailored to unfair practice; §972.11 Wisconsin Stat. Evidence and civil (2)(a): subsection, applicable. rules In this "sexual conduct" any relating means conduct or behavior to sexual activities of the witness, including prior experi complaining but not limited to contact, ence of sexual intercourse or sexual use of living arrangement life-style. contraceptives, (b) 940.225..., If the defendant is accused of a under § crime any concerning prior complaining witness's sexual prior opinions repu- conduct or of the witness's sexual conduct and tation as sexual conduct shall not be admitted into evidence of the exclude victims' testimony alleged prior sexual conduct. We conclude that it does. 39. There are four primаry interests fur- policy

¶ by thered the shield statute: rape First, [the shield rape statute] fair promotes trials because it excludes evidence is generally which irrelevant, relevant, substantially if outweighed or by Second, its effect. prejudicial it a defen- prevents dant harassing humiliating from and the .Third, complainant. . prevents . the statute the trier of being by fact from misled or confused collat- deciding eral issues an improper and case on Fourth, basis. promotes it effective law enforcement readily report because victims will more such testify they crimes and for the if prosecution do not fear that their sexual prior conduct will be made public. v. Pulizzano,

State 633, 155 Wis. 2d 456 N.W.2d (1990). 40. The defendant present wanted to ¶ that on the day before defendant's sexual alleged assaults, while Steven D. was Josh C. tried to napping, his penis mouth, Steven D.'s and Mark D. put his attempted to buttocks in Steven D.'s face. The put defense would alleged boys have were told to during hearing trial, any the course or nor shall reference to presence jury, except such conduct in the be made of the the follow- 971.31(11):

ing, subject §to complaining past 1. Evidence of the conduct witness's the defendant. specific showing 2. conduct Evidence of instances of sexual semen, disease, origin pregnancy the source or for use in or determining degree injury of sexual assault the extent of or suffered. allegations untruthful of sexual assault Evidence of by complaining made witness. stop The defen- and his mother. the defendant both testimony sought present from the dant also caught boys in mother that she defendant's pants up. quickly pulling The defen- their basement boys did that the not further claimed dant would have trying presence in their about refute a statement made generally penises put in Steven D.'s mouth their (R. 37:6.) acting inappropriately. argued this evidence 41. The defendant his claim that the victims needed to substantiate

was virtually engаged to for which he in acts identical those demonstrating charged, to fabricate thus motive was by ruled the The circuit court and bias the victims. taking account the six- inadmissible after into part 91, 122-23, Herndon, in 145 Wis. 2d test State v. (Ct. 1988), App. overruled on other 426 347 N.W.2d grounds, Pulizzano, 633, 644, 2d 456 State v. 155 Wis. (1990), to a five- 325 was later modified N.W.2d which part test this court in Pulizzano. 10 right confrontation, cross-examina- 42. The insuring compulsory process an tion, is vital to Mississippi, objective trial. v. 410 and fair Chambers (1973). gives 284, 294 The confrontation clause U.S. right of defendants the to "effective cross-examination" testimony. presenting v. adverse Davis witnesses (1974). compulsory pro- The Alaska, 308, 415 U.S. 318 right present gives cess clause defendants testimony. Chambers, 410 U.S. at 302. How- favorable present evidence. ever, defendants cannot irrelevant 10 argued application defendant that the circuit court's part the Herndon test amounted to abuse of sixth of discretion; however, did not because the defеndant's evidence factors, rights not vio meet all five of the Pulizzano his were despite lated consideration of the sixth factor.

712 Robinson, State v. 146 315, 332, Wis. 2d 431 N.W.2d (1988). 165

¶ 43. "A circuit court has broad discretion determining admissibility prefer the relevance and red evidence." State v. Oberlander, 132, 149 Wis. 2d (1989) (citing 140, 438 N.W.2d 580 Brecht, State v. (1988)). Wis. 2d 320, 421 N.W.2d 96 In determin ing admissibility of evidence, the standard of erroneously review is whether the circuit court exer cised its question Pharr, discretion. 115 Wis. 2d at 342. "The appeal ruling

on is not court, whether this initially admissibility on the of the evidence, would permitted have it in, to come but whether the trial court exercised its discretion accordance with accepted legal standards and in accordance facts of Wollman, record." An Wis. 2d errone ous exercise of discretion not will be found if there is a Boodry reasonable basis for a circuit court's decision. v. (1964). Byrne, 585, 589, 126 22 Wis. 2d N.W. How questions significance, ever, of constitutional such aas rights compulsory defendant's to confrontation and рrocess, may be reviewed without deference to the cir cuit court. See Pulizzano, 155 Wis. 2d at 648. rape impermissibly

¶ 44. The shield statute rights a denies defendant's to confrontation and com- pulsory process if the evidence the defendant seeks to present satisfies the five-factor test of Pulizzano. In R.B., 713, 736, Interest Michael 175 Wis. 2d 499 (1993). satisfy test, N.W.2d 641 To the five-factor a following through defendant must all show of the an proof: offer of

1) prior clearly The act occurred.

713 2) present in the closely act resembles The case.

3) to a material clearly act is relevant prior The issue.

4) the defendant's necessary is The evidence case.

5) outweighs prejudicial value probative ‍‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​‌​​‍effect. proof should 2d at 656. The offer of

Pulizzano, 155 Wis. by evidentiary hypothesis bolstered state an state justify or the conclusion ment of fact sufficient accept. Milenkovic v. is asked to inference the court (Ct. App. 272, 284, 272 N.W.2d 320 State, 86 Wis. 2d 1978). evidentiary reviewing rul In the circuit court's ings, correctness of the on the this court concentrates expressed circuit ratiоnale of the decisions, not the rulings supported upholds the record. court, it 854 Horn, 473, 490-91, 407 139 2d N.W.2d State v. Wis. (1987). give for its If circuit court does not reasons independently discretion, this court will review if the circuit determine there is a basis for record to Lindh, v. 161 Wis. 2d court's decision. State (1991) (citing Pharr, 2d n.14, Wis. 468 N.W.2d 343). court determined case, In this the circuit satisfy proof did not four of that the defendant's offer of factor, factors. As to the first the five Pulizzano proof the offer of was insuf- circuit court concluded that occurred, it that the acts because ficient to show say would about the alle- unclear what the victims was relying only gations, was on and the defendant testimony mother, and his who would be of himself in the matter. biased

¶ 46. The circuit court found that the second fac- alleged tor was satisfied because the acts were similar charged to those to the defendant. However, the court determined that the factor, third that the act is clearly relevant tо a issue, material satisfied, was not reasoning engaged that the fact that someone in a sex- ual act at some earlier time, hours, even within four did any not relate to issue, material such as intent. ¶ 47. As to the factor, fourth the circuit court con- necessary cluded that the evidence was not to the reasoning already defense, there was boys stepfather strong and their had a bias against regarding Also, homosexuals. the issue of iden- tity, people since there were other in the dark basement, the evidence was not needed to show that may someone other than the defendant have touched the victims. Finally,

¶ 48. the circuit court decided that the prejudicial evidence would be to the state because it during giv- was raised for the first time trial, thus not ing prosecution investigate a chance to allegations. appropriately 49. The circuit court exercised evidentiary acceptеd

its discretion accordance legal standards and the facts of the record. Therefore, rape deprive we conclude that the shield statute did not rights the defendant of his to confrontation and com- pulsory process, satisfy because he failed to all of the Pulizzano criteria.

IV. ¶ 50. affirm We the decision of the circuit court. We find that the evidence of Hammer's other sexual three-step conduct is admissible under the test set 73, 768, 576 216 2d Sullivan, Wis. in State v. forth 772 - (1998). past sex of Hammer's The evidence 30 N.W.2d prove of mode or method to is admissible ual conduct identity operation, in accord with and thus establish 904.04(2). (Rule) § The exceptions evi in Wis. Stat. the (Rule) § 904.01, and Stat. under Wis. is relevant dence outweighed by substantially probative value is not its misleading prejudice, danger confusion, the unfair of delay jury, Stat. under Wis. considerations or undue (Rule) § 904.03. of the that the evidence also conclude 51. We properly kept prior from cоnduct was sexual

victims' rape jury The shield statute. the in accordance with the applying rape shield statute out- the interest state's right weighed Amendment defendant's Sixth the testimony. compel such, As the confront witnesses prior sexual con- of Hammer's court's admission circuit prior excluding conduct, sexual the victims' duct, while right a fair trial. did not Hammer's violate judgment By circuit court is of the the Court.—The affirmed. (dissenting). BRADLEY, J.

¶ 52. ANN WALSH greater majority's application latitude rule of the The identity proof is inconsistent of Hammer's to establish identity through proof other acts of the law that stringent requires admis- standard of a more evidence acknowledge majority, sibility. fails even to identity. proof heightened Instead, it standard for raising inconsistency analytical ignores the stan- lowering standard, at the same time dard while concluding predictably is that the other acts evidence admissible. Originally, application greater

¶ 53. of the narrowly latitude rule сhild sexual assault cases was directly tailored to admit evidence of sexual acts involving alleged Proper See State, victim. v. (1893). majority 629, Wis. Here, N.W. 1035 recognizes greater that the latitude rule "facilitates the admissibility of the other acts under (Rule) 904.04(2)." exceptions Majority op. set forth in majority ¶at 23. Yet the then extends the rule to "the analysis entire of whether evidence of a defendant's properly other was crimes admitted at in a trial" child (citing sexual Davidson, assault case. Id. State v. 2000 606). ¶WI 91, 537, 236 51, Wis. 2d 613 N.W.2d majority's application greater ¶ 54. The of the admitting prior prove in latitude rule Hammer's act to identity his proof conflicts an with elevated standard for identity recognized that has been in Wisconsin e.g., See, Anderson, 121, law. State v. 230 Wis. 2d 131 (Ct. 1999). App. n.6, 600 N.W.2d 913 acts Other evi- may identity dence be admitted to show if this evidence has "such concurrence of common and a features so many points similarity charged the crime that reasonably it 'сan present be said that the other acts the imprint

act constitute the of the defendant.'" Gray, 39, 51, State v. 225 Wis. 2d 590 N.W.2d 918 (1999) omitted). (quotations See also Fishnick, State v. (1985). 247, 263-64, 127 Wis. 2d 378 N.W.2d 272 imprint present Hough ¶ an 55. Such was in v. (1975). State, 807, 2d 235 N.W.2d 534 In Wis. that prosecution case, the other offered acts evidence the form of a threat made a the defendant to fifteen- year-old girl stating planned rape that he her virgin. During was a commission because she of the sexual for trial, assault which the defendant on he was terminated had his act of sexual intercourse with the point not a he believed she was at that because victim prior virgin. admis- that the threat was court held This (Rule) under Wis. Stat. evidence other acts sible 904.04(2) identity predilection for because to show "particular virgins represented a intercourse with makeup." quirk Id. at 814. in the assailant's State, 2d ¶ v. 76 Wis. Likewise, Sanford (1977), prior of a sexual 250 N.W.2d prove the defendant's admissible to assault was held "[sjtriking identity existence of seven of the because prior charged and the the offense between similarities" that in both assaults included act. These similarities jacket garage a lie on a on defendant had the victim initially approached each victim at a bus floor, that he stop, use of each victim with the and that he threatened gun. that the This court determined Id. at 80-81. charged prior act and the between similarities unique nature." Id. at 81. of "a like or offense were majority the similarities sets forth 57. Here charged offense to act and Hammer's between 1) the victims at Hammer awakened include: 2) touching by improperly night them; that the victims 3) they sex; were between of the same were 4) twenty; ages incidents that both of fourteen and 5) that Hammer knew the home; at a and occurred acknowledging higher the standard victims. Without by identity, applying admissibility prove instead and to majority greater rule, concludes that latitude the the of Ham- suffice for thе admission these similarities prior act. mer's surrounding prior

¶ the act in this The facts 58. unfortunately in sexual all too common case are unique not demonstrate Hammer's assaults and do higher required imprint the standard of admissi- as night, identity. bility it be the time of on Whether based place private involving residence, or circumstance age range, familiarity victims ofthe sex, same Hammer, these facts fail to reveal a nearness that particular "quirk" imprint would constitute a or of the prove identity. defendant to his ¶ steps 59. In each of the three of its other acts analysis, majority explains applying that it is greater citing rule, latitude to Davidson, 2000 WI Engaging approach in such a nuanced to the greater unnecessary latitude rule seems because the step that, bottom line is whether for one or for three, all majority acts, will admit other evidence in child apply sexual separately assault cases. To the rule step simply lengthens majority's each discussion to predictable prior arrive at the conclusion that acts (Rule) properly have been § admitted under Wis. Stat. 904.04(2).

¶ 60. There are times when the admission of appropriate. other acts evidence is However, these acts specific particular purpose must be as to the for which they proponent offered, are and the of such evidence clearly purposes must articulate the for which it is delivering cautionary intended. In its instruction, jury specific court should be careful to advise the of the statutory purpose for which the other act has been reciting laundry pur- introduced rather than list of (Rule) 904.04(2). poses set forth in Wis. Stat. dangers underlying

¶ 61. The the admission of Whitty other acts evidence are well established. In v. (1967), State, 278, 292, 149 34 Wis. 2d N.W.2d 557 this dangers court noted the that result from the inade quate balancing probative of the value of acts against including: defendant, harm to the 1) overwhelming tendency presume the defen guilty person likely dant because he is a to commit such 2) tendency condemn of the not because acts; may guilt he have defendant's actual but because 3) injustice punishment previous escaped acts; for attacking person prepared is not to show that who 4) fabricated; is for attack the evidence used may of result from the introduc- confusion issues that Id. tion of other crimes. majority's

¶ The result it 62. underscores greater seemingly latitude matters little whether prong, prong, applies to the first second third rule analysis. prongs prong, to all of the acts or three other greater rule matters little it is a latitude It whether longitude, any higher other altitude or enhanced or or ‍‌​​​​‌‌​‌‌‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌​​​​‌​‌‌‌‌‌‌‌‌‌​‌​​‍another rule. Even when the rule is inconsistent with evidentiary requirement, principle or act is greater application into of the allowed evidence. seemingly rule in nullifies a more latitude this case Accordingly, proof identity. stringent I standard for dissent. I am JUS- authorized state that CHIEF and JUSTICE

TICE SHIRLEY S. ABRAHAMSON join A. BABLITCH this WILLIAM dissent.

Case Details

Case Name: State v. Hammer

Court Name: Wisconsin Supreme Court

Date Published: Jul 11, 2000

Citation: 613 N.W.2d 629

Docket Number: 98-2900-CR

Court Abbreviation: Wis.