¶ 45. (concurring). I agree with the court's mandate. The instruction given constitutes prejudicial error.
¶ 46. I agree with the State and the court of appeals that the evidence of the sexual assault of the child victim that the defendant sought to introduce is not relevant to the sexual contact counts.
¶ 47. As State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), makes clear, the precise evidence offered and the theory for which it is offered must be carefully articulated and examined. Unless the circuit court closely scrutinizes and analyzes the evidence and its relevance to a material issue, the court will wind up annulling the rape shield statute.
¶ 48. I agree with the State's position, which it sets forth as follows:
At trial, the defendant did not offer the evidence to show an alternative source of sexual knowledge. It is clear from his trial counsel's statements that defendant sought to suggest that Bobby Moore, not the defendant, assaulted the victim. He characterized the evidence as 'probative of who actually committed these offenses against this young man, if anybody did'. . . . His belated claim that he offered the evidence to show sexual knowledge is not supported by the record....
Nothing in the victim's testimony in describing the fondling in this case indicates any need to prove an alternative source of sexual knowledge. The *90description did not contain any detailed anatomy that a nine-year-old would not be expected to know. None of the testimony describes activities which a nine-year-old would know only if the defendant committed these acts.
Without the underlying assumption that the jury would believe a nine-year-old could not describe fondling unless it had occurred, the evidence of the prior sexual assault is not necessary to the defendant's case.
Brief for State at 11-13.
¶ 49. For the foregoing reasons, I concur in the mandate and write separately.