(concurring in part, dissenting in part). I agree with the majority's holding that the trial court properly admitted the State's other acts evidence against Tabor. However, I disagree with the majority's further holding that the trial court properly rejected Tabor's evidence offered in response to the State's other acts evidence. Therefore, I would reverse Tabor's conviction and order a new trial.
In the seminal case of Whitty v. State, 34 Wis. 2d 278, 297, 149 N.W.2d 557, 565-66 (1967), cert. denied, 390 U.S. 959 (1968), the Wisconsin Supreme Court cautioned that other acts evidence should be used sparingly, only when reasonably necessary, and that such evidence normally carried a calculated risk. However, as we recently noted in State v. Johnson, 184 Wis. *4982d 324, 341, 516 N.W.2d 463, 468 (Ct. App. 1994), a long and steady line of cases since Whitty has routinely approved the State's use of such evidence. Moreover, this relaxed application of the general rule barring other acts evidence has been further relaxed in child sexual assault cases. See, e.g., State v. Friedrich, 135 Wis. 2d 1, 19-20, 398 N.W.2d 763, 771 (1987). As a result, we have said that "Whitty is not the bastion it once was." Johnson, 184 Wis. 2d at 341, 516 N.W.2d at 468.
This post -Whitty case law has produced a new rule which flouts the other acts statute. Now, other acts evidence is routinely used against defendants for the very purpose the statute excludes it — "to prove the character of a person in order to show that the person acted in conformity therewith." Section 904.04(2), STATS. As a result, the limited exceptions of admissibility have swallowed up the general rule of exclusion. In short, the exceptions are the rule and the rule is the exception.
My separate writing here is not to lobby for or against the wisdom of this de facto dismantling of § 904.04(2), STATS. Rather, my purpose is to again urge, as we did in Johnson, that trial and appellate courts stop paying lip service to the statute and Whitty and, instead, recognize the law for what it really is. As we said in Johnson, "Unless or until our supreme court reverses the direction of the law in this area, we should stop writing appellate opinions which pretend to honor Whitty but actually offend it." Johnson, 184 Wis. 2d at 341, 516 N.W.2d at 468.
I commend the trial court in this case for speaking with the candor I urge. The court acknowledged that the other acts evidence was admitted for nothing more than to show Tabor's character propensity to commit *499sexual assaults against children. However, the court then recognized that it was necessary to hammer the "square peg" of the evidence into the "round hole" of the statute. Armed with the post -Whitty case law, the trial court easily accomplished this task. Our affirmance of the trial court's ruling follows with similar ease.
This dissembling of Whitty and the statute, however, also carries its consequences when a defendant offers evidence in response to the State's other acts evidence. See Johnson, 184 Wis. 2d at 334-42, 516 N.W.2d at 465-68. Here, the State was permitted to introduce evidence of Tabor's character propensity to sexually assault young children. To refute this evidence, Tabor sought to introduce evidence from the victim's brother that Tabor had not made any sexual advances against him. This was not a wholesale attempt by Tabor to establish that all children with whom he came in contact were not accosted by him. Rather, Tabor specifically limited this evidence to the brother, a child who was as readily accessible to Tabor'spedophilicpropensities as the victim during the same time frame as the events involving the victim.
Resisting this evidence, the State successfully invoked the relevancy principles which underpin Whitty and § 904.04(2), Stats.3 Thus, the sum of the critical and damaging evidence which the jury heard in this case was: (1) Tabor's sexual assault of the four-year-old male victim with whom he lived, and (2) Tabor's predisposition to assault young children represented by the character propensity evidence that Tabor *500had committed a sexual assault nine years earlier against his nine-year-old sister. Yet, the jury was not permitted to learn that Tabor's propensities did not prompt him to sexually act out against the victim's brother, a ten-year-old male with whom Tabor also lived during the same time period as the events surrounding the charged event.
In the State's rebuttal closing argument, the prosecutor stressed that Tabor's prior act and conviction demonstrated his sexual attraction to children, particularly those within the family unit: "[H]e likes to do it to family members, children that he has control over. Children that he has authority over. Children are subjected to him."
Given the State's use of the other acts evidence to stress Tabor's propensity to sexually assault children within his household and subject to his dominion and control, Tabor's evidence that he had not sexually assaulted or made sexual advances against the victim's brother was relevant. Like the victim, the brother was also a member of the family unit over whom Tabor exercised control and authority. This evidence, whether analyzed as Tabor's own other acts evidence under § 904.04(2), Stats., or under Tabor's constitutional right to present a defense, was a relevant and critical rejoinder to the State's other acts evidence. The trial court's ruling excluding this evidence produced a markedly uneven playing field in this trial.
If Whitty were still the law, none of this evidence, either from the State or Tabor, would have been admissible. In these times, all of it was admissible. If Whitty is to be restored to its prior stature, the supreme court must do it. I would reverse and order a new trial.
1 recognize that Tabor's other acts evidence regarding the victim's brother was really negative evidence — Tabor's failure to act out sexually against the brother. Regardless, it would seem that such "nonaction" would be the most likely means of refuting propensity evidence.