State v. Davidson

ROGGENSACK, J.

(dissenting). The admission of other acts evidence is a discretionary determination. See State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498, 501 (1983). When reviewing a circuit court's exercise of discretion, we decide whether the court applied the proper legal standard in accord with the facts of record. We do not reverse a circuit court's exercise of discretion if it applies the proper legal standard and reaches a conclusion that a reasonable court could reach, even if it is not one which we would have reached. See State v. Plymesser, 172 Wis. 2d 583, 591, 493 N.W.2d 367, 371 (1992). Because I conclude that this court has not applied the appropriate standard of review to the circuit court's decision, which standard, if *255correctly applied, would require an affirmance of the circuit court's decision, I respectfully dissent.

Davidson was convicted of second-degree sexual assault of a child, contrary to § 948.02(2), STATS., which establishes, "Whoever has sexual contact . . . with a person who has not attained the age of 16 years is guilty of a Class BC felony." Sexual contact is defined in § 948.01(5)(a), Stats., to include, "[i]ntentional touching ... of the complainant's .. . intimate parts if that intentional touching is . . . for the purpose of. . . sexually arousing or gratifying the defendant."

It is the State's position, that in both the 1985 incident and the 1995 incident, Davidson's acts were for the purpose of sexual arousal or gratification. All occurred with young, vulnerable female children, who, at the time of the assaults, were located in an environment where Davidson's contacts with them were risky because of the potential for discovery. The circuit court, in ruling on Davidson's motion to exclude evidence of the 1985 incident, examined whether it was offered for a proper purpose under § 904.04(2), Stats., and concluded that Davidson's 1985 unlawful sexual contact could properly be received to show motive,1 opportunity or plan. The majority agrees with this determination, as do I. See State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).2 However, the majority *256then concludes that evidence of the 1985 sexual contact does not meet the second part of the Sullivan test because the 1985 contact is not relevant to an issue the State must prove. It so concludes based on its reasoning that "Davidson's prior conviction was not probative of his motive, opportunity, or plan," to commit the 1995 sexual assault because the two assaults are not similar enough.

In this regard, the circuit court reasoned that the type of sexual contacts which occurred, touching the victims between their legs; the vulnerability of the victims; and the defendant's selection of an environment where his contact was risky because of the potential for discovery, were similar and tended to prove a motive, opportunity or plan to achieve sexual gratification or arousal contrary to law. The majority opinion concludes that the last two similarities identified by the circuit court are not sufficiently similar to be relevant. I disagree and conclude that this court's analysis is simply a substitution of its discretionary decision making for that of the circuit court, contrary to our established standard of review for discretionary determinations.

For example, the majority opinion analyzes the comparative vulnerability of the six-year-old victim with that of the thirteen-year-old victim, largely based on their age differences. Certainly, their ages are a factor to consider. And, I agree that a six-year-old girl confronted by a stranger in the lower area of a church, with meetings taking place on that level, as well as upstairs, was vulnerable because no adults she knew were with her at the drinking fountain; however, a thirteen-year-old girl who is being prayed upon by a trusted family member after he has given her four to six glasses of wine and she has fallen asleep, is an *257equally vulnerable child. Additionally, in both circumstances, others could have been summoned by a yell or a scream from the victim. Surely, Davidson must have been aware of this possibility. Therefore, it was not unreasonable for the circuit court to conclude that Davidson's unusual choices of locations for both assaults were relevant to his motive, plan or opportunity to achieve sexual arousal or gratification.

Furthermore, the circumstances of Davidson's 1985 sexual assault are not any more dissimilar from those of the 1995 sexual assault than the prior acts whose admission was affirmed by the supreme court in Plymesser. There, a sexual assault which occurred twelve years earlier, with a victim who was seven years old, was admitted. The victim of the conviction under review in Plymesser was thirteen years old. The supreme court concluded that the following similarities were sufficient to admit the prior acts evidence: (1) the defendant had been drinking prior to each occurrence; (2) both victims were female children; and (3) the assaults were perpetrated on the children of friends. Therefore, though age and remoteness of time may be factors to consider in determining if the evidence is relevant, the weight to be given those factors is a determination about which reasonable courts could disagree; and therefore, that decision is well within the circuit court's discretion. See Plymesser, 172 Wis. 2d 583, 493 N.W.2d 367.

The majority opinion does not address whether the circuit court properly applied the third Sullivan factor, that of unfair prejudice. However, all evidence that cuts against Davidson's defense is prejudicial to his interests. Indeed one could argue that if the proffered evidence were not prejudicial, it would not be relevant to the State's case. Section 904.04(2), Stats., as *258explained by Sullivan, does not require the exclusion of all prejudicial evidence, only that which is unfairly prejudicial. Unfair prejudice occurs when the evidence tends to influence the jury by improper means or to inflame their passions. Sullivan, 216 Wis. 2d at 789, 576 N.W.2d at 40. Davidson's 1985 sexual contact was not the type of sexual contact that would inflame a jury, and the jury was informed of his prior act by a written stipulation, to assure it was not presented in an inflammatory manner. Furthermore, as the State correctly points out, the circuit court gave a cautionary instruction that limited the jury's use of this prior acts evidence. Cautionary instructions that are narrowly tailored to the purposes for which the evidence may be considered are favored when a circuit court admits prior acts evidence. Id. at 791, 576 N.W.2d at 40 (quoting State v. Mink, 146 Wis. 2d 1, 17, 429 N.W.2d 99, 105 (Ct. App.1988) (further citations omitted).

Because I conclude that the circuit court applied the proper legal standard and that it did not unreasonably conclude that Davidson's 1985 unlawful sexual contact satisfied all three elements required by Sullivan for the admission of prior acts evidence, I respectfully dissent.

Motive is related to a "purpose" to obtain sexual arousal or gratification, an element of the crime which the State must prove. State v. Plymesser, 172 Wis. 2d 583, 593-94, 493 N.W.2d 367, 372 (1992).

The evidence must be: (1) offered for a purpose that is acceptable under § 904.04(2), Stats.; (2) relevant to an issue in dispute; and (3) of probative value that is not outweighed by unfair prejudice. State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30, 32-33 (1998).