*1 Wisconsin, State Plaintiff-Respondent,

v. Gary L. Defendant-Appellant-Petitioner.† Plymesser,

Supreme Court 4, No. 91-1403-CR. Submitted on November briefs 1992. Decided December 1992. (Also reported 376.) in 493 N.W.2d denied, February 3, Motion for reconsideration 1993. † *2 For the defendant-appellant-petitioner there were by briefs Glenn L. Cushing, assistant state public defender.

For the plaintiff-respondent the cause was submit- ted on the brief of Wolford, William C. assistant attor- ney general Doyle, and James E. attorney general. *3 CECI,

LOUIS J. J. This case comes before the petition court on a by Gary (the for review Plymesser L. defendant) unpublished of an per curiam court of appeals decision, February dated which affirmed a judgment of second-degree conviction for sex- ual assault of a in child entered the circuit court for County, Bartholomew, Clark John G. Reserve Circuit Judge. The argues defendant that the circuit court's decision to admit concerning evidence the defendant's prior conviction for sexual assault of a child constituted an erroneous exercise of discretion.1 disagree We and affirm. City year, v. Milwaukee Metro Earlier this of Brookfield

politan Sewerage District, 400, 171 Wis. 2d 491 N.W.2d 484 (1992), changed terminology we reviewing we use when a discretionary circuit court's phrase act. Instead of the "abuse of discretion," phrase we now use the "erroneous exercise of discre one of count charged state defendant

The child, contrary secs. assault of a to second-degree 948.02(2), 948.01(5) alleged The state that Stats. 1989, fondled the breasts and of the defendant December D., 13-year-old of of Kelly daughter friends vagina of alleged the defendant The state also that the defendant. penis. Kelly had touch his trial, to admit "other

Before the state filed motion First, sought introduce evi- the state to acts" evidence. conviction for concerning the defendant's 1977 dence to con- The act that led that first-degree sexual assault. his put in 1976 the defendant viction occurred when seven-year-old of a friend's vaginal mouth on the area act, a Rue Sgt. the 1976 daughter. investigating While statement, In statement. that took the defendant's and, drinking said he had been with friends defendant drunk, his friends' sexually had assaulted while he having also admitted assaulted daughter. defendant females, he up twenty young only but two since other of said that he had prison. had been out The defendant on friends' children and committed the other assaults only other when he had those assaults occurred drinking. been acts" the state piece

The second "other concerning allegations sought to introduce was evidence engaged had sexual inter- that in the defendant age females who were under course with two complaints regarding had those twelve. The state filed allegations, but the cases were dismissed because of "wit- *4 ness difficulties."

Finally, the wanted to introduce statements state psychiatrist a after the 1976 sex- the defendant made to Id. of 423-24. The substance of this standard review and tion." at changed. Id. imposed requirements the on circuit courts have not at 424. motion, In its quoted portion

ual assault. the state of psychiatrist's report: the his described sexual involvement

[The defendant] girls starting with young as when he a child was which has gratification continued as a source of in fantasy his which he is ashamed of and is knows not right. young The involvement with the girl which occurred on November 26 occurred while he was under the influence of alcohol and he not does actu- ally any of during remember the events time. He believes was told him what of because it fits his very inner fantasies. He has become cautious about drinking episode and has not had drink one since the on November 26. trial,

A few months before Judge Michael W. Bren- nan ruled on the state's Judge motion. Brennan decided admit because, evidence of the 1977 conviction although recognized girls' ages he the two assaults differed, similarity there awas between the assault times, Kelly. the assault on Both the defendant drinking been had and had daughters. assaulted friends' Judge recognized Brennan issue an of whether the However, was too act remote. he considered that stayed away defendant had from judge alcohol. The relevant," thought "extremely the evidence was although it was also "enormously prejudicial."

Judge Brennan decided to exclude evidence about allegations of two young intercourse with females 1969 because those acts were too remote. The also judge decided to allow the introduce state to statement to the psychiatrist. made trial, day

On the Judge Bartholomew made new rulings on the the 1977 conviction and the psychiatrist. to the Judge statement made Bartholomew decided to allow state to introduce evidence of the *5 said he judge for assault. 1977 conviction sexual however, not, the to introduce the allow state would Sgt. had to Rue detail the defendant made statement The court highly prejudicial. be to do so would because show statement to a just enough to admit the decided on and the assault similarity the 1976 assault between screen Rue's Sgt. decided to Kelly. Judge Bartholomew presence to that testimony jury's the determine outside parts "to testimony's then eliminate certain content and outweigh prejudicial which ... the effects would far of it probative ...." the value to

Judge also decided exclude the Bartholomew psychiatrist, to the the defendant made entire statement outweigh its effect would far part "prejudicial because its value." ruling, the state and the Judge

After Bartholomew's the how much of statement to stipulated to defendant 1976 sexual assault could come Sgt. regarding Rue the during opening They agreed that jury. before the say was a convic- the state would there statement They a child under 12. also tion for sexual contact with agreed that the state could introduce limited made to Rue: the Sgt. about the statement the defendant bring out had been drink- state could defendant child of a ing; that there had been sexual contact a friend; pur- had made that the contact been for gratification. pose tried, Kelly testified that the defendant

During the Kelly sexually her. said the defendant was had assaulted and, her, family on he night friend of her assaulted drinking. According Kelly, the defendant he had been her to home to decorate a Christmas tree driving was his over, he "French kissed" her three pulled car when times, vaginal Kelly her breasts and area. and touched also said the defendant left the car to urinate and on his return made her touch penis. his

The defendant testified. He admitted that he had been drinking that night, Kelly that he drove to his home, and that he left the car to urinate. He any denied Kelly. contact with

Before Sgt. Rue testified concerning the 1977 con- viction, Judge Bartholomew screened his testimony outside jury's presence. Sgt. Rue's testimony on direct examination follows:

Q Now relationship, any, what was the if between year

this seven girl old and the defendant? A parents. was friends [The with the defendant] Q during And the course of you this interview did

determine any whether or drinking not occurred while the place? sexual act took A Yes.

Q And what response? was [the defendant's] A He stated drinking that he had been a lot of beer. Q you jury, please, Could tell the type what of a

contact was involved? A put having admitted to [The his defendant] vagina

mouth on year of a girl. seven old Q you him, Now as initially interviewed did he and

readily admit that he had done that? first,

A Not at no. Q ultimately Did though? he admit it Yes, A sir.

Sgt. Rue's testimony on cross-examination follows: you the statement

Q I from As understand defendant], you this first asked took from [the writing; is that you it down then reduced correct? Yes, sir.

A him if he did you first asked Q originally, when So ques- it, About two apparently he said he didn't. him, you you sure you 'Are asked tions later said, T he did it'.? didn't do it' And A correct. That's 1976,1 believe?

Q And that was Yes, A sir. years ago?

Q About 13 *7 A Yeah. court testimony. The Sgt. Rue's the extent of

That was of conviction judgment into evidence the then received 1976 assault. for the jury:

The court later instructed defendant, been received that has [E]vidence vagina drinking, sexual contact with after had was friend. Such evidence 7-year daughter of a old motive, opportunity, solely issues of on the admitted plan. and to conclude may not consider such evidence

You or a cer- certain character the defendant has a that he to further conclude character trait and tain conformity or character with with that trait acted you If find charged in this case. respect to the offense act, you must not con- such that the defendant did the offense proof that he committed that it is clude charged. he is now with which guilty. found the defendant jury appeals judgment The court of affirmed the of con- holding properly viction, that the circuit court exercised by admitting its discretion evidence of the 1976 sexual plan, although expressed assault to show motive and it concerning precedent controlling doubts the merit of the "plan" exception on the use of the to admit evidence of (The attempt sup- sexual assaults. state did not port the circuit court's admission of the other acts to "opportunity.") show admitting regarding

Was the 1977 convic- question tion an erroneous exercise of discretion? The is ruling initially court, "not whether this on the admissi- bility permitted evidence, of the would have it to come in, but whether the trial court exercised its discretion accepted legal accordance with standards and accor- dance with the Kuntz, facts of record." State v. 160 Wis. (1991). uphold 2d 467 N.W.2d 531 We will circuit court's decision if we can find a reasonable basis for it. Id. at 745-46. prior crime,

To admit evidence of a a court must determine that the evidence is admissible under both 904.04(2) 904.03, secs. Stats. Id. at 746. Section 904.04(2) provides:

904.04 Character evidence not admissible to prove conduct; exceptions; other crimes....

(2) crimes, wrongs, Other or acts. Evidence of *8 crimes, wrongs, other or acts is not admissible to prove person the character of a in order to show that conformity he acted in therewith. This subsection does not exclude the evidence when offered for other purposes, proof motive, such as of opportunity, intent, preparation, plan, knowledge, identity, or absence of or mistake accident.

591 904.04(2) permit use of other acts not Section does can be drawn only inference that evidence when the commit "because a defendant from that evidence is that X, a character and is therefore such prior act he ted State v. Y . . present to commit act disposition 254, (1985). 247, 272 378 N.W.2d 127 Wis. 2d 904.04(2) of other acts evi permit use Section does X be drawn from act when an inference can dence motive, or else of plan, anything con defendant's about crime. Id. at to commit a sequence except disposition — proper is for a If other offered 254. acts general subject only is purpose, "the evidence admissibility 904.02 and limiting such as strictures [secs. States, 681, 688 Huddleston v. United U.S. 485 904.03]." (1988). 904.04(2) not exceptions in sec. are mutu- listed Tarrell, State v. 74 247 Wis. 2d

ally exclusive. ("The J., (1976) (Abrahamson, dissenting) N.W.2d 696 other; impossible to they slide each are exceptions into .."). they . are . Nor categorical precision state Shillcutt, 227, State v. 2d Wis. exhaustive. (Ct. 1983); 2 & B. Weinstein App. Jack N.W.2d 716 Evidence, para. Weinstein's Berger, A. Margaret 404[08] rule (1992). in the such exceptions of the at 404-47 Some facts, while others knowledge and intent are ultimate as phrased in of immedi- plan motive and are terms such as al., et McCormick Broun, inferences. See Kenneth S. ate Evidence, (John ed., On Strong sec. 799 n.10 W. 190 at 1992) (citation omitted). 4th ed. is

If a court determines that evidence admissible 904.04(2), it must next determine whether the under sec. substantially out- probative value of the evidence is unfair under sec. by danger prejudice weighed Kuntz, 160 Wis. 2d at 746. 904.03, Stats. *9 question

The first we must address is whether the properly by allowing circuit court its exercised discretion the state to introduce evidence of the 1977 conviction as question relevant to motive. We addressed a similar Friedrich, State v. 135 Wis. 2d 398 N.W.2d 763 (1987). Friedrich, In we concluded that a circuit court properly by admitting exercised its discretion uncharged Id. assaults. at 25. We determined prior that evidence of the assaults was relevant to motive purpose "[b]ecause the of the sexual contact is an ele crime, ment of the and because the Defendant's motive purpose committing is related to his for the crime with charged which he is . . .." Id. at 22. See also 260-61; Mink, 127 Wis. 2d at State v. 146 Wis. 2d (Ct. 1988). App. 429 N.W.2d 99 purpose case, Friedrich, In this as the for com- mitting the sexual assault is an element of the crime charged. with which the defendant is One of the ele- second-degree ments of sexual assault is "sexual con- 948.01(5), 948.02, Stats., tact." Section Stats. Section "any touching by defines "sexual contact" as intentional complainant purpose or defendant . . . the for sexually sexually complain- degrading humiliating or sexually arousing gratifying ant or or defendant" added). (emphasis The inference can be drawn that defendant sexually gratify committed the sexual assault to gratification, himself. If the motive 1976was sexual it likely gratification in is more that it was sexual 1989 as "purpose" well. This motive is related to the element of 948.01(5), sec. Stats. use defendant asserts that this is an incorrect exception, relying heavily

of the motive on the dissents question However, from Tarrell and Friedrich. when precedent reviewing the court's use of when exer- circuit correctly this court is not whether cising its discretion *10 cases, court the circuit but whether decided earlier Judge standard. Bartholomew applied legal the correct holdings applied their appropriate cases and cited the Friedrich only years ago, five and correctly. We decided Therefore, and issues. similar facts presents this case request, we shall not con- contrary to the defendant's Friedrich, briefly address the but will overruling sider arguments. defendant's of other approve of the use

The defendant would in in which a defen- motive a case acts evidence to show robbery. The fleeing a policeman while dant shoots a to show a robbery be admissible would evidence of The evidence of the shooting policeman. motive for Our motive for the later act. prior supply act would motive, we not take such a narrow view cases do in The use of motive argument. reject thus defendant's in Friedrich: a motive an parallels case its use this for both cause crime is used to show common earlier The same motive caused a later crime. the earlier and Friedrich, See charged and the act. both the act 260-61; 22; 127 Wis. 2d at 135 Wis. 2d at Mink, also at 15. See J. Edward 146 Wis. 2d Evidence, sec. Imwinkelried, Uncharged Misconduct (1992). 3:18 at 3-45 an that motive is not

The defendant next contends sexually denied case because defendant issue this therefore, should not Kelly; the other evidence assaulting our have been admitted as Again, relevant to motive. prove The state must this contention. cases contradict doubt, beyond crime a reasonable all the elements of a dispute all of the ele if the defendant does not even "purpose" element is relevant to the ments. Motive 948.01(5), Stats. Evidence case. See secs. 948.02 and this admissible, whether or is therefore relevant to motive 594 Friedrich, disputes not defendant motive. See 135 Wis. 22; Fishnick, 260-61; Mink, 2d at 127 Wis. 2d at Hadley, See also United v. Wis. 2d at 15. States 918 F.2d (9th 1990), improvi Cir. cert. dismissed as (U.S. 16, 1992) dently granted 61 U.S.L.W. 4006 Nov. (No. 91-6646). Mazzanti, United States v. F.2d Cf. 1165, 1171 (7th 1989), Cir. cert. denied sub nom. Born v. States, (1990). United 495 U.S. 930 Finally, the defendant claims that the evidence was unnecessary if jury Kelly, because believed it would required not have additional evidence to infer defen- dant's motive for the assault. Other acts evidence should be used sparingly potential prejudice. because of its for *11 89, State Spraggin, v. 77 Wis. 2d 252 N.W.2d 94 (1977). However, a there was need for this evidence: to Fishnick, testimony, corroborate the victim's Wis. n.4; State, Proper 2d at 257 v. 85 Wis. (1893). satisfied,

N.W.2d 1035 We are also as we shall explain later, the court ensured that no unfair prejudice admitting would result from this evidence. The properly circuit court exercised its discretion when it in admitted the evidence of the 1977 conviction order to 904.04(2). show defendant's motive under sec. We now turn to sec. 904.03. gives

Section 904.03 discretion exclude judge to probative if is substantially its value out- weighed by danger the prejudice. Judge of unfair Bar- tholomew admitted evidence of the 1977 conviction after probative concluding outweighed preju- that its value its probative "The dicial nature. value of other-acts evi- time, depends partially upon place, dence its in nearness and circumstance to the or alleged sought crime element proved." to be 127 Wis. 2d at 261. were assaults of the two sexual

The circumstances simply quite two similar than similar —more both, defendant drank In the of minors. assaults daugh- sexually Mends' the assaulted Mends and then apart, years but, thirteen two assaults occurred ters. The part gap noted, could be caused that time as the court stayed apparently by had the defendant fact that the away the two similarities between alcohol. The from thirteen-year gap in time much to offset the do assaults ages the and the differences the assaults between (Evi- generally girls. Kuntz, 2d at 749 160 Wis. See the years before and sixteen acts eleven dence of charged probative great value due to deal of act "had a case."); striking Mink, 146 Wis. each similarities twenty-two (evidence of sexual acts thirteen 2d at 16 admitted). Additionally, years prior charged act Therefore, evi- in a conviction. 1976 assault resulted reliability concerning had more the 1976 assault dence uncharged in Friedrich. acts than the evidence of probative great had of the 1977 conviction Evidence value. danger may of unfair have increased

The state prejudice 1977 conviction of the from the introduction during opening following its statement: when it said man, about, year old is is a 45 What this case ordinarily young girls. when thing for And who has a thing that drinking he is able to control this he is not However, he imbibes young girls. when he has for *12 beer, were, alcohol, inhibitions are broken as it these young thing for this that he has and he acts on down girls. troubling, not defendant did is but the

This statement jury object it; the on the the court instructed to testimony proper of and the the 1977 conviction use of any helped Sgt. unfair to limit Those instructions Rue. might prejudice have resulted. 127 Wis. that Mink, 262; 2d at 146 Wis. 2d at 17.

The circuit court also refused to allowthe statement Sgt. in that the defendant made to Rue to come uned- importantly, ited. Most the court did not allow the state years to that thirteen earlier the mention defendant sexually assaulting up twenty young admitted to to other daugh- females and that those assaults were on friends' drinking. ters and he had been occurred when Addition- ally, the court did not allow the state to use the defen- slang may dant's words which references that contained jury. only have Not to offended did the court decide prejudicial parts statement, exclude the most of the testimony Sgt. court also screened Rue's ensure that prejudice prop- unfair would not result. The circuit court erly 904.03, exercised its discretion under sec. Stats. properly exercised its

We hold that circuit court proper legal discretion accordance with the standards admitting and the facts of record evidence of the 1977 Having conclusion, reached this we need not conviction. erroneously of the circuit court reach the issue whether by admitting exercised its discretion exception. "plan under the or scheme" 1977 conviction Friedrich, note, however, See 2d at 23. We Wis. examining the record we find the circuit court exer- after properly when it concluded that evi- cised its discretion admissible to show dence of the 1977conviction was also "plan See id. or scheme." Finally, briefly address the defendant's we will "greater request reject latitude" that we the use 'greater Friedrich, said, latitude of In we "a standard. proof is evident Wiscon- other like occurrences' as to *13 crimes, especially those deal- sex dealing

sin cases liberties with a child." and indecent ing with incest Friedrich, (citation omitted). 2d at 19 135 Wis. greater latitude the use of defendant asserts effectively displaced the use of secs. has standard Stats., 904.04(2) 904.03, We sex crime cases. We have unwarranted assertion. reject this said.before not relieve a court latitude standard does greater that the evidence is duty to ensure that the other acts of the 904.04(2). See purpose under sec. proper offered for a State, Hendrickson v. 257; 61 127 Wis. 2d at (1973); Mink, 146 Wis. 2d N.W.2d duty a court of the at 14. Nor does it relieve Wis. 2d under sec. acts evidence is admissible ensure the other Friedrich did the other rules of evidence. 904.03 and principles. basic nothing to alter these By appeals Court. —The of the court of decision is affirmed. (dissenting). BABLITCH, J. For A.

WILLIAM in State v. Fried stated the dissent filed the reasons rich, (1987), I dissent. 2d 398 N.W.2d 763 135 Wis. error than that egregious even more presents This case Friedrich, in Friedrich. In the defendant was found his fourteen having sexual contact with charged with held that it was year majority niece. The of this court old unsubstantiated proper uncharged, to admit evidence of prior by against assaults the defendant allegations two year purportedly old females that ten and thirteen years prior to the defendant's occurred five and seven prior that the unsubstanti majority trial. The concluded admissible to show a "com allegation evidence was ated case, In this plan" or of the defendant. mon scheme dissimilarity charged between the act and the gap time Friedrich. In than greater acts is even and the charged case, the defendant was with sexual assault this *14 fondling vaginal thirteen for the breasts and area of a year prior admitted old female. The assault which was for an that occurred thirteen into evidence was incident vaginal years previously involving with the oral contact Characterizing year these two area of a seven old female. part plan being of a common scheme or incidents as beyond recognition. words As stated twists those defendant's brief: opened

This the doors to the introduction court has virtually crimes evidence so wide that noth- excluded, thereby substantially ing is or be can increasing convicting the innocent. the risk of agree. Accordingly, I I dissent. Chief Justice NATHAN am authorized to state that I join and Justice Shirley S. Abrahamson S. Heffernan

in this dissent.