State v. Joel M. Hurley

2015 WI 35
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP558-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Cross-Respondent-
Petitioner,
v.
Joel M. Hurley,
Defendant-Respondent-Cross-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 354 Wis. 2d 622, 848 N.W.2d 903
(Ct. App. 2014 – Unpublished)
OPINION FILED: March 31, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 8, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Marinette
JUDGE: David G. Miron
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., BRADLEY J. dissent. (Opinion
Filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-cross-respondent-petitioner,
the cause was argued by Jacob J. Wittwer, assistant attorney
general, with whom on the briefs was J.B. Van Hollen, attorney
general.
For the defendant-respondent-cross-appellant, the cause was
argued by Craig S. Powell and Kohler & Hart, S.C., Milwaukee.
The briefs were filed by Craig S. Powell.
2015 WI 35
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP558-CR
(L.C. 2011CF90)
No.
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Cross-Respondent-
Petitioner, FILED
v.
MAR 31, 2015
Joel M. Hurley,
Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent-Cross-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded to the circuit court with the instruction to
reinstate the judgment of conviction.
¶1 MICHAEL J. GABLEMAN, J. We review an unpublished per
curiam decision of the court of appeals1 reversing in part two
decisions of the Marinette County circuit court.2 In an amended
1
State v. Hurley, No. 2013AP558-CR, unpublished slip op.,
(Wis. Ct. App. Mar. 18, 2014) OPINION WITHDRAWN AND REISSUED
(May 6, 2014).
2
The Honorable David G. Miron, presiding.
No. 2013AP558-CR
criminal complaint ("amended complaint") filed on July 29, 2011,
the Marinette County District Attorney's Office charged Joel M.
Hurley ("Hurley") with one count of engaging in repeated acts of
sexual assault of the same child under Wis. Stat § 948.025(1).3
The amended complaint detailed how Hurley sexually assaulted his
stepdaughter, M.C.N., 26 times between 2000 and 2005. M.C.N.
was between 6 and 11 years old when the assaults occurred.
¶2 Prior to trial, the State filed a motion to admit
other-acts evidence under Wis. Stat. § 904.04(2)(a) (2011-12).
The State sought to admit evidence that Hurley repeatedly
sexually assaulted his younger sister, J.G., 25 years prior to
trial. J.G. stated that the assaults occurred when Hurley was
between the ages of 12 and 14 years old, and J.G. was between
the ages of 8 and 10 years old. The circuit court granted the
State's motion and admitted the other-acts evidence for the
3
The amended complaint alleged that Hurley assaulted
M.C.N. between 2000 and 2005. While the applicable statutes,
Wis. Stat. §§ 948.02 and 948.025, were amended during this
period, the underlying crime with which Hurley was charged
remained materially the same. Under each version of § 948.025,
any person who committed three of more acts of first degree
sexual assault of a child, against the same child, was guilty of
a class B felony. First degree sexual assault of a child was
defined as sexual contact or sexual intercourse with a person
who has not attained the age of 13 years that did not result in
great bodily harm to the child. M.C.N. was under the age of 13
years during the charging period. Although it is unclear under
which version the Marinette County District Attorney's Office
charged Hurley, the facts alleged in the complaint satisfy each
version. All subsequent references to the Wisconsin Statutes
are to the 2005-06 version unless otherwise indicated.
2
No. 2013AP558-CR
purpose of establishing Hurley's modus operandi (method of
operation) and opportunity.
¶3 At trial, Hurley testified in his own defense and his
attorney asked him twice whether he recalled the assaults
alleged by J.G. Hurley answered that he did not recall the
assaults. During closing argument, the prosecutor stated, "when
the defendant testified, he was asked by his [] attorney
regarding [J.G.] he said well, do you recall any of these
incidents with [J.G.] ever happening? And his answer was no.
The question wasn't did you do this or not, it was do you
recall? That's different than it didn't happen." The jury
found Hurley guilty of one count of engaging in repeated acts of
sexual assault of the same child and the circuit court sentenced
him to 25 years imprisonment consisting of 18 years of initial
confinement and 7 years of extended supervision.
¶4 Subsequently, Hurley filed a post-conviction motion
arguing that his trial counsel was ineffective for failing to
move to dismiss the amended complaint on due process grounds.
Alternatively, Hurley argued that the amended complaint was
deficient and constituted plain error4 requiring reversal.
Hurley also argued trial counsel was ineffective for failing to
object to the remarks made by the prosecutor during closing
argument. Finally, Hurley argued that the prosecutor's remarks
4
Plain error is "'error so fundamental that a new trial or
other relief must be granted even though the action was not
objected to at the time.'" State v. Jorgensen, 2008 WI 60, ¶21,
310 Wis. 2d 138, 754 N.W.2d 77 (citation omitted).
3
No. 2013AP558-CR
during closing argument required a new trial in the interest of
justice.
¶5 The circuit court agreed with Hurley that the
prosecutor's statement was improper and ordered a new trial in
the interest of justice. The circuit court denied Hurley's
other grounds for relief.
¶6 The State and Hurley filed cross-appeals with the
court of appeals. The State argued the circuit court
erroneously exercised its discretion by granting a new trial in
the interest of justice. Hurley argued that his trial counsel
was ineffective for failing to move to dismiss the amended
complaint on due process grounds. Alternatively, Hurley argued
that the amended complaint was deficient and constituted plain
error requiring reversal. Hurley also argued that the circuit
court erroneously exercised its discretion in admitting the
other-acts evidence.
¶7 The court of appeals agreed with Hurley and concluded
that the amended complaint failed to provide adequate notice,
and thus violated Hurley's due process rights, and that the
circuit court erroneously exercised its discretion in admitting
the other-acts evidence. Hurley, No. 2013AP558-CR, ¶¶38, 54.
The court of appeals did not address the remarks made by the
prosecutor during his closing argument.
¶8 Three issues are presented for our consideration: 1)
whether the amended complaint and information charging Hurley
with one count of engaging in repeated acts of sexual assault of
the same child provided adequate notice to satisfy Hurley's due
4
No. 2013AP558-CR
process right to plead and prepare a defense; 2) whether the
circuit court erroneously exercised its discretion in admitting
other-acts evidence that Hurley had repeatedly sexually
assaulted his sister, J.G., when she was between the ages of 8
and 10 years old and he was between the ages of 12 and 14 years
old; and 3) whether the circuit court erroneously exercised its
discretion in ordering a new trial in the interest of justice
because of the prosecutor's remarks during closing argument.
¶9 First, we hold that the amended complaint and
information5 provided adequate notice and thus did not violate
Hurley's due process right to plead and prepare a defense.
Second, we hold that the circuit court did not erroneously
exercise its discretion in admitting the other-acts evidence.
Finally, we hold that the circuit court erroneously exercised
its discretion in granting a new trial in the interest of
justice. We therefore reverse the court of appeals and remand
to the circuit court with the instruction that the judgment of
conviction be reinstated.
5
"The information is the [charging document] . . . to
which [a] defendant must enter a plea." Pillsbury v. State, 31
Wis. 2d 87, 93, 142 N.W.2d 187, 191 (1966). "A defendant has
the benefit of both the factual allegations required in the
complaint and the final statutory charges alleged in the
information." State v. Copening, 103 Wis. 2d 564, 576, 309
N.W.2d 850 (Ct. App. 1981). However, "[t]he factual allegations
relied on by the state which satisfy the elements of the crime
are more likely found in the complaint. The facts recited in
the complaint need not be repeated in the information." Id. at
577. Thus, when discussing the sufficiency of the factual
allegations against Hurley, we refer to the amended complaint.
5
No. 2013AP558-CR
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶10 On July 29, 2011, the Marinette County District
Attorney's Office filed an amended complaint charging Hurley
with one count of engaging in repeated acts of sexual assault of
the same child, contrary to Wis. Stat. § 948.025(1),6 for
assaulting his stepdaughter, M.C.N. on three or more occasions
"on and between" 2000 and 2005.
6
Wisconsin Stat. § 948.025 provides, in relevant part:
(1) Whoever commits 3 or more violations under s.
948.02 (1) or (2) within a specified period of time
involving the same child is guilty of:
. . .
(ar) A Class B felony if fewer than 3 of the
violations were violations of s. 948.02 (1) (a) but at
least 3 of the violations were violations of s. 948.02
(1) (a) or (b).
Wisconsin Stat. § 948.025 does not require proof of an
exact offense date and was
enacted to address the problem that often arises in
cases where a child is the victim of a pattern of
sexual abuse and assault but is unable to provide the
specifics of an individual event of sexual assault.
The purpose of the legislation was to facilitate
prosecution of offenders under such conditions.
State v. Nommensen, 2007 WI App 224, ¶15, 305 Wis. 2d 695, 741
N.W.2d 481. A jury is required to agree unanimously only to the
fact that three separate assaults occurred, not to which three
assaults occurred. State v. Johnson, 2001 WI 52, ¶¶14-15, 243
Wis. 2d 365, 627 N.W.2d 455. "In other words, it is the course
of sexually assaultive conduct that constitutes the primary
element of this offense, about which the jury must be unanimous
(the second and third elements are the age of the victim and the
timing of the acts). . . . Unanimity is explicitly not required
regarding the individual acts of sexual assault." Id., ¶16.
6
 No. 2013AP558-CR
¶11 According to the amended complaint, Hurley and
M.C.N.'s mother were married sometime in 2000 and divorced in
November 2006. The family lived together at a residence in
Peshtigo, Wisconsin. According to M.C.N. the assaults began
shortly after the marriage in 2000, when she was 6 years old,
and lasted until 2005, when she was 11 years old. All the
sexual assaults occurred at the family residence.
¶12 According to the amended complaint, M.C.N. explained
that the assaults began "as the defendant played a type of game
with her." When M.C.N.'s mother was away from the residence,
Hurley chased M.C.N. around the house and removed her clothing
when he caught her. According to the amended complaint, the
chasing game happened one time.
¶13 Hurley then started coming into M.C.N.'s bedroom at
night and would get into bed with her. Hurley then placed his
hand into M.C.N.'s pajama bottoms and inserted his fingers
inside her vagina. The amended complaint relates that M.C.N.
said Hurley did this "approximately five times during the time
she lived with him." The amended complaint also stated that
during these incidents Hurley tried "to get her to touch him,
which M.C.N. stated she did during one of these encounters."
M.C.N. was unsure whether her mother was home during these
assaults.
¶14 Around the same time that the nighttime assaults
began, Hurley began weighing M.C.N. while she was naked when she
got home from school. During this game Hurley "would have her
take her clothing off and would put her on his shoulders to take
7
No. 2013AP558-CR
her into the bathroom" where he would weigh her on a scale.
M.C.N. said that Hurley did this frequently, in excess of 20
times, when she was between the ages of 6 and 11 years old.
M.C.N. stated that during these incidents Hurley "would not go
any further than have her naked on his shoulders and weigh her."
¶15 During one of the "last occasions" Hurley got into the
shower with M.C.N. after school. M.C.N. stated she was naked
but Hurley had on his underwear. Hurley asked her "you're not
going to tell your mother are you?" M.C.N. replied "yes," which
caused Hurley to leave the shower.
¶16 M.C.N. stated these incidents occurred until 2005, one
year prior to the 2006 divorce. M.C.N. estimated Hurley weighed
her naked in excess of 20 times, placed his fingers inside of
her vagina approximately five times, and forced her to touch his
genitals one time while he was touching her genitals.
¶17 M.C.N. stated that she disclosed the assaults to a few
friends in 2010 and decided to disclose the assaults to her
mother in September 2010 when she was 15 years old after Hurley
moved to Indiana.
¶18 Before trial, the State filed a motion to introduce
other-acts evidence that Hurley had repeatedly sexually
assaulted his younger sister, J.G., over the course of two
years, from 1984 to 1986, when she was between the ages of 8 and
10 years old, and he was between the ages of 12 and 14 years
old. At the motion hearing J.G. testified that Hurley
repeatedly sexually assaulted her. J.G. testified that, while
their parents were away, Hurley asked her to remove her clothes,
8
No. 2013AP558-CR
put on a fur coat, and meet him in their parents' bedroom. When
J.G. entered, Hurley was naked under the covers and asked J.G.
to slowly perform a strip tease. J.G. stated that Hurley
fondled himself while watching her, that they performed oral sex
on each other, and that Hurley made J.G. fondle him. J.G.
further testified that Hurley often penetrated her vagina with
his fingers, and there was a lot of "humping," but she could not
recall whether Hurley penetrated her vagina with his penis.
¶19 The circuit court granted the other-acts motion,
concluding that the evidence was admissible to show opportunity
and method of operation. The circuit court also concluded that
the evidence was relevant and that it bolstered M.C.N.'s
credibility. The circuit court explained that there was great
similarity between the assaults because 1) the victims were
similar in age, 2) Hurley played a game with each victim before
the assaults, and 3) each victim was digitally penetrated by
Hurley, a trusted family member, in a private bedroom. Finally,
the circuit court concluded the testimony would not be unfairly
prejudicial if the court gave two limiting instructions.
¶20 At trial, Hurley testified in his own defense. Hurley
denied assaulting M.C.N. and testified that his job required
some travel causing his absence from one day to one week at a
time. Hurley did not present an alibi defense. On direct
examination Hurley was asked by his attorney: "Now, [J.G.]
testified that she was assaulted when she believed she was
around eight years old. Do you recall having an encounter with
[J.G.] when she was around eight?" Hurley answered: "No." He
9
No. 2013AP558-CR
was then asked by his attorney: "Do you recall any of the
allegations [J.G.] brought up here today?" Hurley answered:
"No, I do not." During closing arguments the assistant district
attorney stated: "when the defendant testified, he was asked by
his—by the attorney regarding [J.G.] he said well, do you recall
any of these incidents with [J.G.] ever happening? And his
answer was no. The question wasn't did you do this or not, it
was do you recall? That's different than it didn't happen."
Hurley's trial counsel did not object. The assistant district
attorney had in his possession a police report which explained
that on September 26, 2010, J.G. confronted Hurley over the
phone about the assaults he committed against her. During this
conversation Hurley denied assaulting J.G.
¶21 The jury found Hurley guilty and the circuit court
sentenced Hurley to 25 years imprisonment consisting of 18 years
of initial confinement and 7 years of extended supervision.
¶22 Hurley subsequently filed a post-conviction motion,
arguing the amended complaint violated his right to due process
by failing to provide adequate notice to plead and prepare a
defense, and that his trial counsel was ineffective for failing
to move to dismiss the amended complaint. Alternatively, Hurley
argued that the amended complaint was deficient and constituted
plain error requiring reversal. Hurley also argued that his
counsel was ineffective for failing to object to the
prosecutor's remarks during closing arguments. Hurley also
requested a new trial in the interest of justice because of the
10
No. 2013AP558-CR
prosecutor's purportedly improper remarks during closing
argument.
¶23 At a Machner7 hearing, Hurley's trial counsel testified
that he decided not to file a motion to dismiss after
researching the issue of constitutionally deficient charging
documents and discussing the matter with Hurley. Counsel said
that he concluded a motion to dismiss would likely fail based on
his reading of the case law, and that, even if it had succeeded,
the State would likely re-file with additional details. With
regard to the allegedly improper remarks, trial counsel
testified that he made a strategic decision not to object,
explaining an objection would have drawn "more attention from
the jury" to a statement that the prosecutor "said very quickly
and didn't harp on."
¶24 The circuit court rejected Hurley's notice claim.
However, the court ordered a new trial in the interest of
justice based on the prosecutor's remarks that Hurley did not
recall assaulting J.G. Both parties filed cross-appeals. In an
unpublished per curium decision, the court of appeals reversed
in part concluding that 1) the amended complaint violated
Hurley's right to due process, and 2) the circuit court erred in
admitting J.G.'s other-acts evidence. Hurley, No. 2013AP558-CR,
¶¶38, 54. The court of appeals did not address whether the
closing argument remarks were improper.
7
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).
11
No. 2013AP558-CR
¶25 The State petitioned for review, which this court
granted on September 18, 2014.
II. STANDARD OF REVIEW
¶26 Whether a complaint and information are sufficient to
provide notice to the defendant is a question of constitutional
fact that we review de novo. State v. Fawcett, 145 Wis. 2d 244,
249, 426 N.W.2d 91 (Ct. App. 1988). "The criminal complaint is
a self-contained charge which must set forth facts that are
sufficient, in themselves or together with reasonable inferences
to which they give rise, to allow a reasonable person to
conclude that a crime was probably committed and that the
defendant is probably culpable." Id. at 250 (citing State v.
Hoffman, 106 Wis. 2d 185, 197, 316 N.W.2d 143 (Ct. App. 1982)).
The sufficiency of a pleading is a question of law reviewed
independently. Id. In reviewing a complaint, our analysis is
restricted to the charging document and we do not consider
extrinsic evidence.
¶27 In order to satisfy the requirements of the United
States and Wisconsin Constitutions, the charges in the complaint
and information "must be sufficiently stated to allow the
defendant to plead and prepare a defense." Id. When reviewing
the sufficiency of the complaint and information, we consider
two factors: "whether the accusation is such that the defendant
[can] determine whether it states an offense to which he [can]
plead and prepare a defense and whether conviction or acquittal
is a bar to another prosecution for the same offense." Holesome
v. State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968).
12
No. 2013AP558-CR
¶28 The admission of other-acts evidence is within the
trial court's discretion. State v. Davidson, 2000 WI 91, ¶38,
236 Wis. 2d 537, 613 N.W.2d 606. "We review a circuit court's
admission of other-acts evidence for an erroneous exercise of
discretion." State v. Marinez, 2011 WI 12, ¶17, 331 Wis. 2d
568, 797 N.W.2d 399 (citing State v. Hunt, 2003 WI 81, ¶34, 263
Wis. 2d 1, 666 N.W.2d 771). A reviewing court will uphold a
circuit court's evidentiary ruling if it "'examined the relevant
facts, applied a proper standard of law, used a demonstrated
rational process and reached a conclusion that a reasonable
judge could reach.'" Id. (quoting Hunt, 263 Wis. 2d 1, ¶34).
¶29 "When reviewing a circuit court's determination for
erroneous exercise of discretion an appellate court may consider
acceptable purposes for the admission of evidence other than
those contemplated by the circuit court, and may affirm the
circuit court's decision for reasons not stated by the circuit
court." Hunt, 263 Wis. 2d 1, ¶52. "'Regardless of the extent
of the trial court's reasoning, [a reviewing court] will uphold
a discretionary decision if there are facts in the record which
would support the trial court's decision had it fully exercised
its discretion." Id. (citing State v. Shillcutt, 116
Wis. 2d 227, 238, 341 N.W.2d 716 (Ct. App. 1983), aff'd on other
grounds, 119 Wis. 2d 788, 350 N.W.2d 686 (1984)).
¶30 "A trial court's ruling on a postconviction motion for
a new trial in the interest of justice is within its
discretion." State v. Williams, 2006 WI App 212, ¶13, 296
Wis. 2d 834, 723 N.W.2d 719 (citing State v. Randall, 197
13
No. 2013AP558-CR
Wis. 2d 29, 36, 539 N.W.2d 708 (Ct. App. 1995)). Thus, we
review the circuit court's decision granting of Hurley's motion
for an erroneous exercise of discretion. Id. "A trial court
properly exercises its discretion if it applies accepted legal
standards to the facts in the record." Id. (citation omitted).
III. DISCUSSION
¶31 We first consider whether the amended complaint and
information provided adequate notice to satisfy Hurley's due
process right to plead and prepare a defense, and conclude that
it did. We then address whether the circuit court erroneously
exercised its discretion in admitting other-acts evidence that
Hurley had sexually assaulted his sister, J.G., when they were
children, and conclude that it did not. Finally, we consider
whether the circuit court erroneously exercised its discretion
in granting a new trial in the interest of justice, and conclude
that it did. We therefore reverse the court of appeals and
remand to the circuit court with the instruction to reinstate
the judgment of conviction.
A. Under the Totality of the Circumstances, the Amended
Complaint and Information Provided Hurley with Adequate Notice
to Plead and Prepare a Defense.
¶32 When reviewing the sufficiency of a criminal complaint
and information, a court considers "whether, under the totality
of the circumstances, the complaint and information allege facts
14
No. 2013AP558-CR
such that the defendant can plead and prepare a defense."8 State
v. Kempainen, 2015 WI 32, ¶36, Wis. 2d , N.W.2d .
¶33 Child sexual assaults are difficult crimes to detect
and to prosecute, as typically there are no witnesses except the
victim and the perpetrator. Fawcett, 145 Wis. 2d at 249. Often
the child is assaulted by a trusted relative and does not know
whom to turn to for protection. Id. The child may have been
threatened, or, as is often the case, may harbor a natural
reluctance to come forward. Id. "These circumstances many
times serve to deter a child from coming forth immediately. As
a result, exactness as to the events fades in memory." Id.
Thus, "[y]oung children cannot be held to an adult's ability to
comprehend and recall dates and other specifics." Id. See also
Gail S. Goodman & Vicki S. Helgeson, Child Sexual Assault:
Children's Memory and the Law, 40 U. Miami L. Rev. 181, 185-86
(1985) (explaining that "children often retain and report less
than adults do"). "A person should not be able to escape
punishment for such a . . . crime because he has chosen to take
carnal knowledge of an infant too young to testify clearly as to
the time and details of such . . . activity." State v. Sirisun,
90 Wis. 2d 58, 65-66 n.4, 279 N.W.2d 484 (Ct. App. 1979).
"However, no matter how abhorrent the conduct may be, a
8
Neither Hurley nor the State raise the double jeopardy
factor, whether conviction would be a bar to another
prosecution. Therefore, we do not address it.
15
No. 2013AP558-CR
defendant's due process [rights] . . . may not be ignored or
trivialized." Fawcett, 145 Wis. 2d at 250.
¶34 Because "[t]ime is not of the essence in [child]
sexual assault cases" when the date of the commission of the
crime is not a material element of the offense, it need not be
precisely alleged. Id. at 250; see also Hoffman, 106 Wis. 2d at
198-99 ("'[W]here time of commission of a crime is not a
material element of the offense charged, it need not be
precisely alleged.'"). A "more flexible application of notice
requirements is required and permitted [in child sexual assault
cases]. The vagaries of a child's memory more properly go to
the credibility of the witness and the weight of the testimony,
rather than to the legality of the prosecution in the first
instance." Fawcett, 145 Wis. 2d at 254.
¶35 With these considerations in mind, the Fawcett court
adopted a seven factor test to apply when determining whether a
charge of sexual abuse of a child provides adequate notice.
These factors include:
(1) the age and intelligence of the victim and other
witnesses; (2) the surrounding circumstances; (3) the
nature of the offense, including whether it is likely
to occur at a specific time or is likely to have been
discovered immediately; (4) the length of the alleged
period of time in relation to the number of individual
criminal acts alleged; (5) the passage of time between
the alleged period for the crime and the defendant's
arrest; (6) the duration between the date of the
indictment and the alleged offense; and (7) the
ability of the victim or complaining witness to
particularize the date and time of the alleged
transaction or offense.
Id. at 253.
16
No. 2013AP558-CR
¶36 As we explain in Kempainen, Wis. 2d , ¶4, a
reviewing court may apply the seven Fawcett factors, and may
consider any other relevant factors necessary to determine
whether a criminal complaint and information provide adequate
notice. No single factor is dispositive, and not every Fawcett
factor will necessarily be present.
¶37 Before turning to the Fawcett factors, we must address
the parties' dispute over how many individual assaults are
alleged in the amended complaint because the criminal complaint
places a defendant on notice as to what he may have to defend
against. The State contends that the amended complaint alleged
26 assaults while Hurley claims the amended complaint alleged
five assaults. "A criminal complaint is a self-contained charge
which must set forth facts that are sufficient, in themselves or
together with reasonable inferences to which they give rise, to
allow a reasonable person to conclude that a crime was probably
committed and that the defendant is probably culpable."
Hoffman, 106 Wis. 2d at 197; State ex rel. Evanow v. Seraphim,
40 Wis. 2d 223, 226, 161 N.W.2d 369 (1968). A complaint must
put forth "enough that a fair-minded magistrate could conclude
that the facts and circumstances alleged justify further
criminal proceedings and that the charges are not merely
capricious." Hoffman, 106 Wis. 2d at 200 (citation and
quotation omitted). We have previously explained that a
criminal complaint must answer five questions when stating
probable cause: "1) Who is charged?; 2) What is the person
charged with?; 3) When and where did the alleged offense take
17
No. 2013AP558-CR
place?; 4) Why is this particular person being charged; and 5)
Who says so? or How reliable is the informant?" State v. White,
97 Wis. 2d 193, 203, 295 N.W.2d 346, 350 (1980). In reviewing a
complaint, our analysis is restricted to the charging document
and we do not consider extrinsic evidence.
¶38 The amended complaint alleges six acts that occurred
in M.C.N.'s bed: five acts of digital penetration of the vagina
and one act of forced touching of Hurley's genitals, all
contrary to Wis. Stat. § 948.02(1)(b).9 The amended complaint
reads:
9
Wisconsin Stat. § 948.02(1)(b) states: "Whoever has sexual
contact or sexual intercourse with a person who has not attained
the age of 13 years is guilty of one of the following: If the
sexual contact or sexual intercourse did not result in great
bodily harm to the person, a Class B felony."
The definition of sexual intercourse, which was constant
throughout the charging period, was
vulvar penetration as well as cunnilingus, fellatio or
anal intercourse between persons or any other
intrusion, however slight, of any part of a person's
body or of any object into the genital or anal opening
either by the defendant or upon the defendant's
instruction. The emission of semen is not required.
Wis. Stat. § 948.01(6).
Sexual contact, as applicable here, remained constant
throughout the charging period, and was defined as:
(a) Any of the following types of intentional
touching, whether direct or through clothing, if that
intentional touching is either for the purpose of
sexually degrading or sexually humiliating the
complainant or sexually arousing or gratifying the
defendant:
(continued)
18
No. 2013AP558-CR
[Hurley] would get into bed with [M.C.N.] and place
his hand into her pajama bottoms and put his fingers
inside her vagina. M.C.N. said she thought this
occurred approximately five times during the time she
lived with him. On these occasions, the defendant
would also try to get her to touch him, which M.C.N.
stated she did during one of these encounters.
We agree with the State that the incident of forced touching of
Hurley's genitals is sufficiently alleged because the context——
where M.C.N. had just alleged Hurley committed acts of digital
penetration——indicates that Hurley forced M.C.N. to touch his
genitals while he touched her genitals.
¶39 Additionally, at least twenty acts of sexual contact
with a child under the age of thirteen, contrary to Wis. Stat.
§ 948.02(1)(b)10 are alleged that relate to the after-school
weighing incidents. The amended complaint alleges:
[M.C.N.] stated that after getting home from school,
the defendant would have her take her clothing off and
would put her on his shoulders to take her into the
1. Intentional touching by the defendant or, upon the
defendant's instruction, by another person, by the use
of any body part or object, of the complainant's
intimate parts.
2. Intentional touching by the complainant, by the use
of any body part or object, of the defendant's
intimate parts or, if done upon the defendant's
instructions, the intimate parts of another person.
Wis. Stat. § 948.01(5).
Intimate parts was also consistent throughout the charging
period and was defined as "the breast, buttock, anus, groin,
scrotum, penis, vagina or pubic mound of a human being." Wis.
Stat. § 939.22(19).
10
See supra, note 9.
19
No. 2013AP558-CR
bathroom. He would then put her on the scale. These
incidents occurred on a very frequent basis, M.C.N.
thought a couple of times per week. . . . [The
defendant] weighed her naked in excess of 20 times.
When Hurley had M.C.N. take off her clothes so that he could
carry her naked on his shoulders, her intimate parts (buttocks,
groin, vagina, or pubic mound) would necessarily have been in
contact with Hurley's neck and shoulders. "Intent can [] be
inferred from the circumstances and from one's acts." Hoffman,
106 Wis. 2d at 200. The circumstances here (frequent nude
weighing, nude "rides" on Hurley's shoulders, and the five acts
of digital penetration and one act of forced touching) are
sufficient to draw a reasonable inference that Hurley acted with
sexual intent during these incidents.
¶40 These 26 acts in the amended complaint were
sufficiently alleged to put Hurley on notice that he might have
to defend against these allegations as incidents of sexual
intercourse and sexual contact.11 Therefore, our application of
the Fawcett factors will be grounded in the conclusion that the
amended complaint alleges 26 separate and distinct sexual
assaults.
¶41 Further, before applying the Fawcett factors, it is
important to reiterate our conclusion in Kempainen that State v.
R.A.R., 148 Wis. 2d 408, 408, 435 N.W.2d 315 (Ct. App. 1988),
11
Because we are bound by the four corners of the amended
complaint and do not examine extrinsic evidence, we do not
examine any facts adduced at trial, what the prosecution focused
on, or the court's jury instructions.
20
No. 2013AP558-CR
incorrectly limited a court's consideration of factors one
through three to situations where a defendant alleges that
prosecutors could have obtained a more narrow offense period
through diligent efforts. As we explain in Kempainen, Fawcett
made no such limitation. Kempainen, Wis. 2d , ¶28
("'courts may consider these factors and any other relevant
factors helpful. . . . To the extent that R.A.R. conflicts with
the holding in Fawcett, and thus limits the factors a court may
consider when applying the Holesome test [(whether the
accusation is such that the defendant can determine whether it
states an offense to which he can plead and prepare a defense
and whether conviction or acquittal is a bar to another
prosecution for the same offense)] it is overruled."). Fawcett
concluded that all seven factors can "assist us in determining
whether the Holesome test is satisfied" and proceeded to apply
all seven factors. Id. at 253-54. See also State v. Miller,
2002 WI App 197, 257 Wis. 2d 124, 650 N.W.2d 850 (applying all
seven Fawcett factors despite the absence of any claim of a lack
of prosecutorial diligence). When evaluating whether a
complaint and information give a defendant sufficient notice a
court may examine all the Fawcett factors, and any other factors
it deems relevant.
¶42 Turning to the Fawcett factors, factor one, the age
and intelligence of the victim, weighs in favor of our
conclusion that the amended complaint and information provided
notice. In a prosecution under Wis. Stat. § 948.025, due weight
must be given to the impact of the repeated nature of the sexual
21
No. 2013AP558-CR
assaults on a child's ability to provide details. Contrary to
the court of appeals' conclusion that the assaults may not have
begun until M.C.N. was 11 years old, the amended complaint
plainly states that the assaults began "shortly after the
marriage at the residence" when M.C.N. was six years old. At
age six, M.C.N. was still a young child. At this young age it
is highly unlikely that she could particularize the dates or the
sequences in which the assaults occurred. Even at the age of
ten years old, given her young age and intelligence, M.C.N. was
likely rendered incapable of reporting the incidents or
recalling back to the exact date or time period when the
assaults began.
¶43 Further, as described below, assaults committed by a
stepfather against a young girl constitute a compelling reason
for the delay in reporting. See generally Miller, 257 Wis. 2d
124, ¶31 (describing that where the sexual assault of a child
occurred in a doctor-patient relationship, the trust that a
child would place in a doctor would explain a delay in reporting
and thus such delay would not create a due process issue);
Goodman & Helgeson, supra, Child Sexual Assault, 185-86.
Additionally, the repeated and similar nature of the crimes
could reasonably have led to M.C.N.'s failure to recall the
exact dates and times of the assaults. Goodman & Helgeson,
supra, Child Sexual Assault, 190-91. A child repeatedly
assaulted at such a young age is likely extremely confused and
upset, and it is not surprising that she would not take note of
the specific date on which the assaults occurred.
22
No. 2013AP558-CR
¶44 Factors two and three, the surrounding circumstances
and the nature of the offense, including whether it is likely to
occur at a specific time or is likely to have been discovered
immediately, also weigh in favor of our conclusion that the
amended complaint and information provided notice. Hurley was
M.C.N.'s stepfather and they lived together in the same home.
Hurley allegedly committed the assaults when they were alone,
and the assaults were frequent and similar in nature. "Child
molestation often encompasses a period of time and a pattern of
conduct. As a result, a singular event or date is not likely to
stand out in [a] child's mind." Fawcett, 145 Wis. 2d at 254.
Goodman & Helgeson, supra, Child Sexual Assault, 190 ("Children
can order simple, familiar events quite well, but have
difficulty ordering more complex, less familiar events.").
¶45 The acts occurred in the family home when Hurley may
have been alone with M.C.N., either at night or after school.
The assaults were not likely to happen on any particular day,
and M.C.N. was as specific as could reasonably be expected about
the times at which they took place. Given that M.C.N. was the
only witness, was assaulted in the home during regular
activities, and was dissuaded from reporting by Hurley during
the shower incident, it is unlikely that the crimes would have
been discovered immediately or would have occurred at a specific
time or at a unique location that would have stuck out in a
child's mind. Further, during the shower incident, Hurley
specifically asked if M.C.N. was going to tell her mother, as if
to ward off potential accusations and to dissuade M.C.N. from
23
No. 2013AP558-CR
coming forward to tell her mother, the most likely person that
could have helped. Finally, as Hurley's stepdaughter, M.C.N.
would undoubtedly feel vulnerable as Hurley held a position of
authority over M.C.N. as her stepfather and the sexual acts he
performed on her highlighted his position of dominance.
¶46 The assaults themselves, the statement made by Hurley
to M.C.N., and Hurley's paternal relationship indisputably would
have had a significant impact on M.C.N, and thus it is
reasonable that no single incident stood out in M.C.N.'s memory.
When a parent abuses a child's trust and takes advantage of the
child's vulnerability, it is also understandable that a child
may not immediately come forward. M.C.N.'s age at the time of
the assaults and the circumstances surrounding the assaults
"represent the most compelling factor[s] in explaining
[M.C.N.'s] delay in reporting." Miller, 257 Wis. 2d 124, ¶¶30-
31.
¶47 Factor four, the length of the alleged period of time
in relation to the number of individual criminal acts alleged
further belies Hurley's claim. The amended complaint alleged 26
separate criminal acts spanning six years. The court of appeals
was incorrect in determining that "[a]ll of the acts could have
occurred within a single month in 2000, or within a single month
in 2005." Hurley, No. 2013AP558-CR, ¶29. The amended complaint
was clear that M.C.N. stated that the offenses occurred over
several years and began shortly after the marriage in 2000.
Though M.C.N. could not state the order of the assaults or what
month each assault occurred in, given that the assaults were
24
No. 2013AP558-CR
committed by her stepfather as well as their cumulative nature,
"the vagaries of [M.C.N's] memory more properly go to the
credibility of the witness and the weight of the testimony,
rather than to the legality of the prosecution." Fawcett, 145
Wis. 2d at 254.
¶48 At the time of the assaults Hurley was M.C.N.'s
stepfather, and they lived together in the same house. As a
result, the defenses available to Hurley were limited. Hurley
contends that, with a narrower charging period, it is
conceivable that he could have raised an alibi defense.
However, as the court of appeals explained in Fawcett:
an alibi defense does not change the nature of the
charges against the defendant or suddenly incorporate
time as a necessary element of the offense. . . . If
we required that a complaint be dismissed for lack of
specificity when a defendant indicated a desire to
assert an alibi defense, such a holding would create
potential for an untenable tactic: a defendant would
simply have to interpose an alibi defense in order to
escape prosecution once it became apparent that a
child victim/witness was confused with respect to the
date or other specifics of the alleged criminal
event. . . . We decline to adopt such a rule.
Fawcett, 145 Wis. 2d at 254 n.3. See also People v. Jones, 792
P.2d 643 (Cal. 1990) (concluding that where a defendant has
lived with a victim for an extensive period of time and has thus
had continuous access to the victim, neither alibi nor mistaken
identity are likely defenses). We too decline to adopt such a
rule. Thus, factor four weighs against Hurley's argument
because no indication exists that a narrower charging period
would have changed or aided his defense under the circumstances.
25
No. 2013AP558-CR
¶49 Factors five and six, the passage of time between the
alleged period of the crime and the defendant's arrest, and the
duration between the date of the complaint and the alleged
offense, while at first blush may support Hurley's claim, a
close examination proves they do not.
¶50 These factors address the "problem of dimmed memories
and the possibility that the defendant may not be able to
sufficiently recall or reconstruct the history regarding the
allegations." Miller, 257 Wis. 2d 124, ¶35. The offense period
here ended in 2005, the investigation did not begin until 2010,
and the District Attorney did not charge Hurley until 2011.
Hurley advances a strictly mechanical and mathematical approach
to these factors. Hurley simply points out that the charging
period was from 2000 to 2005, and the District Attorney's Office
did not charge him until June 2011, 5 to 10 years after the
assaults.12 In essence, what Hurley is arguing is that too much
time has passed to allow for a prosecution. However, the
District Attorney's Office filed the amended complaint within
the period prescribed by the applicable statute of limitations.13
12
The court of appeals' discussion of these factors was
just as mechanical, in that it merely examined the length of
time and compared it to the length of time that was rejected in
R.A.R. Hurley, No. 2013AP558-CR, ¶31.
13
The amended complaint alleged a violation of Wis. Stat.
§ 948.025(1). A prosecution under Wis. Stat. § 948.025(1) (a),
(b), (c), or (d) "may be commenced at any time." Wis. Stat.
§ 939.74(2)(a)(1) (2011-12). A prosecution under Wis. Stat.
§ 948.025(1)(e) "shall be commenced before the victim reaches
the age of 45 years or be barred." Wis. Stat. § 939.74(2)(c)
(2011-12).
26
No. 2013AP558-CR
"'The statute of limitations is the principal device . . . to
protect against prejudice arising from a lapse of time between
the date of an alleged offense and an arrest.'" State v.
McGuire, 2010 WI 91, ¶45, 328 Wis. 2d 289, 786 N.W.2d 227
(quoting State v. Wilson, 149 Wis. 2d 878, 903, 440 N.W.2d 534
(1989)). If we were to accept Hurley's argument we would
invalidate the statute of limitations because the amended
complaint was filed within the statute of limitations.
¶51 Thus, a purely mathematical approach is impracticable
when determining the overall reasonableness of the charging
period. The long delay may have hampered Hurley's ability to
provide a defense; however, Hurley has not explained how this
delay actually impacted his ability to plead and prepare a
defense. Nor has Hurley alleged, much less demonstrated, any
improper purpose for the delay. See Kempainen, Wis. 2d ,
¶39. Simply stating that he has been impacted is insufficient.
A defendant arguing that factors five and six weigh in his favor
must articulate how his ability to present a defense has been
impaired. Further, as the State suggests, good reason exists
for the delay; namely, the fact that M.C.N. waited to report the
incidents until 2010 when Hurley moved away to Indiana.
Therefore, factors five and six weigh in favor of our conclusion
that the amended complaint and information provided notice.
¶52 Factor seven, the ability of the victim or complaining
witness to particularize the date and time of the alleged
offense, weighs against Hurley's argument. As we explained when
describing the first three factors, at age six, when the first
27
No. 2013AP558-CR
offense occurred, M.C.N.'s ability to recall details was very
limited and thus she did not have the capacity to particularize
the date of each offense. Despite not being able to
particularize the date of each offense, she was able to
particularize the time of each offense. M.C.N. stated that the
acts of digital penetration and forced touching occurred when
she went to bed at night, and the "weighing" incidents occurred
after school. Also, M.C.N.'s ability to recall the particular
dates on which each assault occurred was hampered by their
repeated and similar nature. We thus disagree with the court of
appeals' conclusion that M.C.N.'s "complete inability" to narrow
down the charging period was not understandable. Hurley, No.
2013AP558-CR, ¶34. Given the repeated and similar nature of the
assaults at the hands of a trusted stepparent in the family
home, it is reasonable and understandable that M.C.N. would be
unable to narrow down the charging period.
¶53 Based on our application of the Fawcett factors, the
amended complaint and information provided sufficient notice to
satisfy Hurley's due process right to plead and prepare a
defense. Hurley alleged that his trial counsel was ineffective
for failing to object to the amended complaint and that the
alleged error in the amended complaint affected a substantial
right, such that the plain error rule mandated dismissal.
However, because the amended complaint did not violate Hurley's
due process rights, counsel's recommendation not to file a
motion to dismiss was reasonable professional advice and was not
28
No. 2013AP558-CR
prejudicial. Put simply, the plain error rule does not apply
here because no error occurred.
B. The Circuit Court Did Not Erroneously Exercise Its Discretion
in Admitting Other-Acts Evidence.
¶54 Next, we consider whether the circuit court
erroneously exercised its discretion in admitting other-acts
evidence that Hurley had repeatedly sexually assaulted his
sister, J.G., when she was between the ages of 8 and 10 years
old and he was between the ages of 12 and 14 years old. We
conclude that the circuit court did not erroneously exercise its
discretion in admitting the other-acts evidence, as "[t]he
circuit court's decision was not a decision that no reasonable
judge could make." State v. Payano, 2009 WI 86, ¶52, 320
Wis. 2d 348, 768 N.W.2d 832.
i. General Principles Regarding the Admissibility of Other-Acts
Evidence
¶55 Under Wis. Stat. § 904.04(2)(a) (2011-12):
evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show that the person acted in conformity therewith.
This subsection does not exclude the evidence when
offered for other purposes, such as proof of motive,
29
No. 2013AP558-CR
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.14
¶56 Wisconsin Stat. § 904.04(2)(a) (2011-12) thus
"prohibits the admission of evidence of a defendant's other bad
acts to show that the defendant has a propensity to commit
crimes."15 Marinez, 331 Wis. 2d 568, ¶18. "However, other-acts
evidence that is offered for a purpose other than the prohibited
propensity purpose is admissible if it is relevant to a
permissible purpose and is not unfairly prejudicial." Id.
¶57 In Sullivan, we developed a three-prong test to guide
courts in determining whether other-acts evidence is admissible
under Wis. Stat. § 904.04(2)(a) (2011-12). Other-acts evidence
is admissible (1) if it is offered for a permissible purpose
pursuant to Wis. Stat. § 904.04(2)(a) (2011-12), (2) if it is
relevant under the two relevancy requirements of Wis. Stat.
14
Wisconsin Stat. § 904.01(2)(a) (2011-12) "contains an
illustrative, and not exhaustive, list of some of the
permissible purposes for which other-acts evidence is
admissible." State v. Marinez, 2011 WI 12, ¶18, 331
Wis. 2d 568, 797 N.W.2d 399. "The rule does not require that
courts pigeonhole . . . the other act evidence into one of these
[enumerated] categories. As long as the evidence is relevant
and otherwise admissible apart from the propensity inference
(act/character/conduct), Wis. Stat. § 904.04(2) does not bar its
use." 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 404.6, at 173 (3d ed. 2008).
15
In other words, other-acts evidence cannot be used to
prove a person's character through circumstantial evidence of
conduct, but instead must be used for a permissible purpose.
30
No. 2013AP558-CR
§ 904.01 (2011-12),16 and (3) if its probative value is not
substantially outweighed by the risk or danger of unfair
prejudice under Wis. Stat. § 904.03 (2011-12). Sullivan, 216
Wis. 2d at 772-73; State v. Jackson, 2014 WI 4, ¶55, 352
Wis. 2d 249, 841 N.W.2d 791.
¶58 "The party seeking to admit the other-acts evidence
bears the burden of establishing that the first two prongs are
met by a preponderance of the evidence." Marinez, 331
Wis. 2d 568, ¶19 (citations omitted). "Once the proponent of
the other-acts evidence establishes the first two prongs of the
test, the burden shifts to the party opposing the admission of
the other-acts evidence to show that the probative value of the
evidence is substantially outweighed by the risk or danger of
unfair prejudice." Id. (citations omitted).
¶59 "Because this is a child sexual assault case with a
young victim, the greater latitude rule permit[s] a more liberal
admission of other crimes evidence."17 Id., ¶20 (citing
16
Wisconsin Stat. § 904.01 (2011-12) defines relevant
evidence as "evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without
the evidence." Evidence is relevant if it (1) "relates to a
fact or proposition that is of consequence to the determination
of the action" and (2) "has a tendency to make a consequential
fact more probable or less probable than it would be without the
evidence." State v. Sullivan, 216 Wis. 2d 768, 785-86, 576
N.W.2d 30 (1998).
17
Despite the greater latitude rule, courts still have the
duty to ensure that other-acts evidence is offered for a proper
purpose. State v. Hunt, 2003 WI 81, ¶87, 263 Wis. 2d 1, 666
N.W.2d 771.
31
No. 2013AP558-CR
Davidson, 236 Wis. 2d 537, ¶44; State v. Hammer, 2000 WI 92,
¶23, 236 Wis. 2d 686, 613 N.W.2d 629) (internal quotation marks
omitted). The greater latitude rule applies to each Sullivan
prong. Davidson, 236 Wis. 2d 537, ¶51. Other-acts evidence is
particularly relevant in child sexual assault cases because an
average juror likely presumes that a defendant is incapable of
such an act.18 Id., ¶42. An additional rationale for the
greater latitude rule "is the need to corroborate the victim's
testimony against credibility challenges."19 Id., ¶40.
ii. The Sullivan Analysis
18
We have explained that the other-acts evidence was
relevant under the greater latitude rule because:
[t]o a person of normal, social and moral sensibility,
the idea of the sexual exploitation of the young is so
repulsive that it's almost impossible to believe that
none but the most depraved and degenerate would commit
such an act. The average juror could well find it
incomprehensible that one who stands before the court
on trial could commit such an act. Juries must have
all the relevant facts before them. A past history of
such a defendant's plans, schemes and motives is
relevant.
State v. Friedrich, 135 Wis. 2d 1, 27-28, 398 N.W.2d 763 (1987).
19
Because of "the difficulty sexually abused children
experience in testifying, and the difficulty prosecutors have in
obtaining admissible evidence in such cases" a more liberal
admissibility standard in child sexual assault cases applies.
State v. Davidson, 2000 WI 91, ¶42, 236 Wis. 2d 537, 613 N.W.2d
606. "The dangers presented by the propensity inference are
thus evenly balanced by the need to corroborate young victims
whose horrific allegations might otherwise be doubted." Blinka,
supra, § 404.7, at 218-19.
32
No. 2013AP558-CR
¶60 With these principles in mind, we turn now to whether
the circuit court erroneously exercised its discretion in
admitting testimony from J.G. that Hurley sexually assaulted her
when she was between the ages of 8 and 10 years old and he was
between the ages of 12 and 14 years old.
1. Was the Evidence Offered for a Permissible Purpose?
¶61 The circuit court admitted the other-acts evidence for
two purposes: method of operation and opportunity.20 After
describing J.G.'s testimony, the circuit court, in explaining
why the evidence was admissible to show method of operation,
stated, "there is a great similarity [in the] descriptions of
what the two alleged victims are claiming occurred
here. There's quite a similarity in this. And again, I think
that go[es] towards the alleged method of operation of Mr.
Hurley and how he goes about this." The circuit court explained
20
Similar to its position at the court of appeals, the
State does not argue that opportunity was a permissible purpose
for the other-acts evidence. Therefore, the argument is
conceded. Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp.,
90 Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979). While it
is axiomatic that we are not bound by a party's concession, we
agree with the court of appeals on this point. Hurley's
assaults against J.G. do not inform whether or not he had the
opportunity to assault M.C.N years later, without overlapping
with the impermissible propensity inference. Therefore, our
analysis will center on the permissible purposes, method of
operation and motive. See Hunt, 263 Wis. 2d 1, ¶52 (explaining
that "[w]hen reviewing a circuit court's determination for
erroneous exercise of discretion an appellate court may consider
acceptable purposes for the admission of evidence other than
those contemplated by the circuit court, and may affirm the
circuit court's decision for reasons not stated by the circuit
court.").
33
No. 2013AP558-CR
that Hurley had a distinct method of operation because he
repeatedly digitally penetrated each victim, incorporated
"games" into each assault, and targeted a specific type of girl:
an elementary school-aged girl, to whom he is related, and over
whom he had a great degree of control. The circuit court noted
that J.G. was Hurley's younger sister and was assaulted between
the ages of 8 and 10 years old, and M.C.N. was Hurley's
stepdaughter and was assaulted between the ages of 6 and 11
years old. The circuit court also noted that Hurley assaulted
each victim when no one else was around. The circuit court
concluded that these similarities bolstered M.C.N.'s credibility
given Hurley's distinct method of operation. The circuit court
also admitted the other-acts evidence for the purpose of
establishing Hurley's opportunity stating it answered the
question: "Did Mr. Hurley have the opportunity to commit these
crimes?"
¶62 Identifying a proper purpose for other-acts evidence
is not difficult and is largely meant to develop the framework
for the relevancy examination. Payano, 320 Wis. 2d 348, ¶63;
see also Marinez, 331 Wis. 2d 568, ¶25 ("The purposes for which
other-acts evidence may be admitted are 'almost infinite' with
the prohibition against drawing the propensity inference being
the main limiting factor."). "The proponent need only identify
a relevant proposition that does not depend upon the forbidden
inference of character as circumstantial evidence of conduct."
7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 404.6, at 180 (3d ed. 2008). As long as one
34
No. 2013AP558-CR
permissible purpose for the other-acts evidence exists, the
first prong of the Sullivan analysis is met. See Hammer, 236
Wis. 2d 686, ¶29 n. 4.
¶63 Applying these principles to our review of the circuit
court's decision, we conclude that, given the greater latitude
rule, the circuit court reasonably concluded that the other-acts
evidence was admissible for the purposes of establishing
Hurley's method of operation. Further, we agree with the State
that the other-acts evidence was admissible to show Hurley's
motive.
¶64 First, the circuit court did not erroneously exercise
its discretion in concluding that the other-acts evidence was
admissible to establish method of operation through which
Hurley's plan may be proved because of the similarity between
the two acts. Id., ¶24; see also Blinka, supra, § 404.7, at 211
("Proof of a distinctive 'modus operandi' does not, however,
lead to automatic admissibility. Rather, the method of
operation must be probative of issues such as intent, plan, or
identity."). As we explained in State v. Fishnick, 127
Wis. 2d 247, 263, 378 N.W.2d 272 (1985):
Where other-acts evidence is used for identity
purposes, similarities must exist between the 'other
act' and the offense for which the defendant is being
tried. Similarities which tend to identify the
defendant as the proponent of an act also tend to
ensure a high level of probativeness in the other-acts
evidence. These similarities may be established, for
example, where there is a discernable method of
operation from one act to the next, [citation omitted]
or where the other act and the crime charged and their
surrounding circumstances are so similar that the
35
No. 2013AP558-CR
incidents and circumstances bear the imprint of the
defendant.
(citations omitted). "The threshold measure for similarity with
regard to identity is nearness of time, place, and circumstance
of the other act to the crime alleged. Whether there is a
concurrence of common features is generally left to the sound
discretion of the trial courts." State v. Kuntz, 160 Wis. 2d
722, 746-47, 467 N.W.2d 531 (1991).
¶65 The circuit court acted within its discretion in
admitting J.G.'s testimony for the purpose of proving method of
operation to prove the plan of Hurley. A great similarity
exists between the two sets of assaults as 1) J.G.'s and
M.C.N.'s allegations were very similar, 2) J.G. and M.C.N. were
similar in age, 3) both sets of assaults involved digital
penetration that were repeated over a number of years, and 4)
Hurley preceded the assaults with games.
¶66 First, the allegations were similar. J.G.'s and
M.C.N.'s testimony showed that Hurley's preferred sexual target
was an elementary-school-aged girl who lived in his home and was
a member of his immediate family. The testimony showed that
Hurley also preferred a young girl over whom he had a great deal
of control and with whom there was a relationship of implied
trust: in J.G.'s case an older brother whom J.G. "always leaned
towards" growing up, and in M.C.N.'s case her stepfather to whom
she was close. In each instance Hurley used this trust to his
advantage by continually assaulting each girl and by attempting
to dissuade them from coming forward. Hurley asked J.G. during
36
No. 2013AP558-CR
one assault "you're not going to tell mom and dad, are you?" and
asked M.C.N. during the shower incident "you're not going to
tell your mother, are you?," language that was virtually
identical.
¶67 Second, the victims were similar in age. J.G. was
assaulted between the ages of 8 and 10 years old, and M.C.N. was
assaulted between the ages of 6 and 11 years old. Third, each
assault involved repeated acts of digital penetration in a
private bedroom. J.G.'s testimony also indicated that, while
Hurley's conduct with her involved a wider variety of sexual
acts, digital penetration was among his preferred acts, and he
engaged in these acts regularly over a period of years. Hurley
also repeatedly digitally penetrated M.C.N. over a number of
years, even though he also committed other sexual acts with
M.C.N.
¶68 Finally, Hurley preceded each set of assaults with a
"game" that involved stripping the victim of her clothes. With
regard to J.G., Hurley had her wear a fur coat and perform a
striptease before the assaults. With regard to M.C.N., Hurley
chased M.C.N. around the house and stripped her naked before the
first assault. Hurley also had M.C.N. remove all her clothes,
placed her on his shoulders, and took her to the bathroom where
he would weigh her.
¶69 Though Hurley was younger when he assaulted J.G., and
he was much closer to J.G. in age, the striking similarities
outweigh these differences. Given both the similarities between
the assaults and greater latitude rule, the circuit court did
37
No. 2013AP558-CR
not erroneously exercise its discretion in admitting the other-
acts evidence to show method of operation through Hurley's plan.
¶70 The State also suggests that the evidence is
admissible to prove motive. As we explained above, a reviewing
court may consider acceptable purposes for the admission of
other-acts evidence other than that contemplated by the circuit
court. Hunt, 263 Wis. 2d 1, ¶52 (citations omitted).
¶71 "'Motive' is defined as the cause or reason that moves
the will and induces action." Blinka, supra, § 404.07, at 202;
State v. Balistreri, 106 Wis. 2d 741, 756, 317 N.W.2d 493 (1982)
("Motive explains the reasons for a person's actions."). The
admissibility of other-acts to prove motive "is purely a
function of relevance: How does the other act help the trier of
fact to understand why the person acted as he did?" Blinka,
supra, § 404.7, at 204.
¶72 "When a defendant's motive for an alleged sexual
assault is an element of the charged crime, we have held that
other crimes evidence may be offered for the purpose of
establishing . . . motive." Hunt, 263 Wis. 2d 1, ¶60 (emphasis
added); see also Davidson, 236 Wis. 2d 537, ¶57 ("Our cases
establish that when the defendant's motive for an alleged sexual
assault is an element of the charged crime, other crimes
evidence may be offered for the purpose of establishing
motive.") (emphasis added).
38
No. 2013AP558-CR
¶73 Here, the District Attorney's Office charged Hurley
with repeated sexual assault of a child under Wis. Stat.
§ 948.025.21 "There is no doubt that sexual assault, involving
either sexual contact or sexual intercourse, requires an
intentional or volitional act by the perpetrator." Hunt, 263
Wis. 2d 1, ¶60. Here, "[t]he other-acts evidence was properly
admitted to prove motive because purpose is an element of sexual
assault, and motive [is] relevant to purpose." Hunt, 263
Wis. 2d 1, ¶60 (citing State v. Plymesser, 172 Wis. 2d 583, 593–
96, 493 N.W.2d 367 (1992)); Davidson, 236 Wis. 2d 537, ¶57.
¶74 The motive to which the other-acts evidence relates is
Hurley's desire to achieve sexual arousal or gratification. As
the State correctly notes: "within its discretion, a circuit
court could conclude that Hurley's repeated acts of incest with
a younger female family member in his formative years was
relevant to show Hurley's desire as an adult to target another
girl of the same age within his immediate family for sexual
gratification." "Thus [Hurley's] purpose or motive for
allegedly touching [M.C.N.] was one element of the charged
crime, and evidence relevant to motive was therefore
admissible." Davidson, 236 Wis. 2d 537, ¶59. Hurley's
21
For the relevant statutory definitions see supra notes 3,
6, & 9. Though the circuit court did not instruct the jury on
"sexual contact," as we explained above a reviewing court "may
consider acceptable purposes for the admission of evidence other
than those contemplated by the circuit court." Hunt, 263
Wis. 2d 1, ¶52.
39
No. 2013AP558-CR
"motive . . . for allegedly touching or having intercourse with
[M.C.N.] was part of the corpus of the crimes charged, and
evidence relevant to the motive . . . was therefore admissible."
Hunt, 263 Wis. 2d 1, ¶60. The court of appeals thus was
incorrect in rejecting motive as a permissible purpose. Hurley,
No. 2013AP558-CR, ¶47. Given the greater latitude rule, we
conclude that the other-acts evidence was admissible to show
Hurley's motive.
2. Were the Assaults Committed by Hurley against J.G. Relevant
to the Admissible Purposes?
¶75 In describing the relevance of the other-acts
evidence, the circuit court explained:
I think that this evidence is relevant and it –
certainly it bolsters the credibility of [M.C.N.]. It
clearly relates to a fact of proposition of whether it
occurred or not. . . . The Hammer case talks about
the measure of probative value in assessing relevance
is a similarity between the charged offense and the
other act. . . . Now I understand that the nearness
of time, we don't have that here. We're talking
perhaps 15 to 20 years prior, but there is case law in
this State and even in this same paragraph here,
paragraph 32 of Hammer it talks about incidences that
occurred years before. They talked also about
evidence being admissible even though the victims were
of different ages. I'm finding here the victims were
very similar in age and that the alleged conduct is
. . . very similar when you talk about digital
penetration, you talk about the games that the
defendant allegedly had each of the victims partake
in. So I do find it to be probative as well. . . .
Also the allegation, of course, is that [they] share
some common characteristics, occurring when there is
nobody else around and it's just the defendant and the
alleged victim. That goes towards his opportunistic
nature of doing this.
40
No. 2013AP558-CR
¶76 "Because other acts evidence is inherently relevant to
prove character and therefore a propensity to behave
accordingly, 'the real issue is whether the other act is
relevant to anything else.'" Payano, 320 Wis. 2d 348, ¶67
(citing Blinka, supra, § 404.6, at 181) (emphasis removed).
"This second prong is significantly more demanding than the
first prong but still does not present a high hurdle for the
proponent of the other-acts evidence." Marinez, 331
Wis. 2d 568, ¶33.
¶77 Evidence is relevant if it has "any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." Wis. Stat. § 904.01 (2011-
12). There are two parts to a relevancy analysis: first,
"whether the evidence relates to a fact or proposition that is
of consequence to the determination of the action," and second,
"whether the evidence has a tendency to make a consequential
fact more probable or less probable than it would be without the
evidence." Sullivan, 216 Wis. 2d at 785–86. "The key is
relevance: What is it being offered to prove, and does it have
any tendency to make that proposition more or less likely?"
Blinka, supra, § 404.6, at 174-75.
¶78 In answering the first question——whether the evidence
is offered in relation to any fact or proposition that is of
consequence to the determination of the action——"the court must
focus its attention on the pleadings and contested issues in the
41
No. 2013AP558-CR
case." Payano, 320 Wis. 2d 348, ¶69 (citing Blinka supra,
§ 404.6, at 181.)
¶79 "The second part of the relevancy analysis illustrates
the evidence's probative value, which is also part of the third
prong of the Sullivan test." Marinez, 331 Wis. 2d 568, ¶33.
"The measure of probative value in assessing relevance is the
similarity between the charged offense and the other act."
Hunt, 263 Wis. 2d 1, ¶64 (citation omitted). Similarity is
demonstrated by showing the "nearness of time, place, and
circumstance" between the other-act and the charged crime.
State v. Scheidell, 227 Wis. 2d 285, 305, 595 N.W.2d 661 (1999).
"The greater the similarity, complexity and distinctiveness of
the events, the stronger is the case for admission of the other
acts evidence." Sullivan, 216 Wis. 2d at 787. It is within a
circuit court's discretion to determine whether other-acts
evidence is too remote. Hough v. State, 70 Wis. 2d 807, 814,
235 N.W.2d 534 (1975).
¶80 However, events that are dissimilar or that do not
occur near in time may still be relevant to one another.
Payano, 320 Wis. 2d 348, ¶70. "There is no precise point at
which a prior act is considered too remote, and remoteness must
be considered on a case-by-case basis." Hunt, 263 Wis. 2d 1,
¶64 (citation omitted). "Even when evidence may be considered
too remote, the evidence is not necessarily rendered irrelevant
if the remoteness is balanced by the similarity of the two
incidents." Id. (citing State v. Mink, 146 Wis. 2d 1, 16, 429
N.W.2d 99 (Ct. App. 1988)).
42
No. 2013AP558-CR
¶81 Turning to the first prong of relevance, each of the
purposes for which the circuit court admitted the other-acts
evidence relates to a proposition that is of consequence to the
determination of the action, namely, whether the jury believed
M.C.N.'s account of sexual abuse by Hurley. Indeed, the central
issue in dispute at trial was credibility. "'A witness's
credibility is always 'consequential' within the meaning of Wis.
Stat. § 904.01.'" Marinez, 331 Wis. 2d 568, ¶34 (quoting
Blinka, supra, § 401.101, at 98). Like many child sexual
assault cases, this case boiled down to a credibility
determination. See Blinka, supra, § 404.7, at 217–18 ("Child
sexual abuse prosecutions often proceed under three major
disabilities: they rely on a single witness who is very young
and whose allegations are frequently unsupported by physical
evidence.").
¶82 These proof issues provide the rationale for the
greater latitude rule. Davidson, 236 Wis. 2d 537, ¶40; State v.
Friedrich, 135 Wis. 2d 1, 25, 398 N.W.2d 763 (1987). "Thus, it
follows that the greater latitude rule allows for the more
liberal admission of other-acts evidence that has a tendency to
assist the jury in assessing a child's allegations of sexual
assault." Marinez, 331 Wis. 2d 568, ¶34. The circuit court
correctly concluded that the assaults committed against J.G.
"clearly relate[d] to a fact of proposition of whether it
occurred or not" and it was reasonable for the circuit court to
conclude that the assaults against J.G. were admissible to allow
43
No. 2013AP558-CR
the jury to better assess M.C.N.'s credibility, which was the
central determination.
¶83 Further, the other-acts evidence was relevant to
establish Hurley's method of operation and motive to assault
M.C.N. See Friedrich, 135 Wis. 2d at 28-29 ("Juries must have
all the relevant facts before them. A past history of such a
defendant's plans, schemes and motives is relevant. . . . It is
this scheme or plan to achieve sexual stimulation or
gratification from the young, the most sexually vulnerable in
our society, that allows trial courts in the exercise of
discretion to admit evidence of past similar acts to show scheme
or plan to exploit children.") (emphasis added). As already
discussed, Hurley's motive for assaulting M.C.N. was directly
related to an element of the charged crime (for the purpose of
sexual arousal or gratification), and the J.G. assaults related
to that consequential fact. See Davidson, 236 Wis. 2d 537, ¶65
(explaining that the defendant's motive for touching the victim
was an element of the crime, and the sexual assault on the prior
victim related to that fact of consequence to the determination
of the action). Plan, and thus method of operation, is a fact
of consequence, and thus is relevant because Hurley denied
assaulting M.C.N. The same can certainly be said for motive.
Whether or not Hurley had the plan or motive to carry out the
assaults against M.C.N. was certainly informed by his assaults
against J.G.
¶84 Turning to the second prong of the relevance
determination, the circuit court correctly stated that the
44
No. 2013AP558-CR
evidence was probative because of its similarity. "The measure
of probative value in assessing relevance is the similarity
between the charged offense and the other act." Id., ¶67
(citation and quotations omitted). The assaults committed
against J.G. and M.C.N. were very similar and it was reasonable
for the circuit court to conclude that the similarity provided
context to Hurley's method of operation. It would have also
been reasonable for the circuit court to conclude that the
similarity provided context for Hurley's motive. Both victims
1) were similar in age; 2) were members of Hurley's immediate
family; 3) lived in the same household as Hurley; 4) were
female; 5) were younger than Hurley; 6) were controlled by
Hurley and trusting of him; 7) were assaulted via digital
penetration; 8) were assaulted in the home and bedroom; 9) were
assaulted repeatedly over a period of years; 10) before being
assaulted, participated in a stripping "game" initiated by
Hurley; and 11) Hurley attempted to dissuade each victim by
saying "you're not going to tell mom, are you?".
¶85 Though Hurley was 25 years younger when he assaulted
J.G., we do not conclude this is a significant distinction given
the many similarities discussed above. Further, even though the
other-acts evidence was removed in time, as the circuit court
noted, courts have upheld the admission of other-acts evidence
that was removed in time due to the similarity between the
incidents. See Plymesser, 172 Wis. 2d 583 (upholding the
admissibility of 13 year old evidence); Kuntz, 160 Wis. 2d 722
(upholding the admissibility of 16 year old evidence). Given
45
No. 2013AP558-CR
the multitude of similarities outlined above, we conclude that
the J.G. assaults were relevant evidence, because they related
to a fact of consequence in the case and had strong probative
value.
3. Was the Probative Value of the Other-Acts Evidence
Substantially Outweighed by the Risk of Unfair Prejudice?
¶86 After discussing the relevance of the other-acts
evidence, the circuit court explained:
[a]nd then with respect to the danger of unfair
prejudice, clearly this is prejudicial information.
If it wasn’t, the State wouldn’t seek to use it. And
I agree that a limiting instruction should be given
both before the testimony and again at the close of
the case. And I think that [] will be a sound way to
make sure that the jury does not conclude that Mr.
Hurley is a bad person simply because of that. And
the purpose of using this is to establish method of
operation and opportunity for doing this.
¶87 Evidence that is relevant "may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice." Wis. Stat. § 904.03 (2011-12). The
probative value of evidence "is a function of its relevance
under Wis. Stat. § 904.01." Blinka, supra, § 403.1, at 135.
The circuit court is to consider the proponent's need to present
this evidence given the context of the entire trial. Id. at
136. "Essentially, probative value reflects the evidence's
degree of relevance. Evidence that is highly relevant has great
probative value, whereas evidence that is only slightly relevant
has low probative value." Payano, 320 Wis. 2d 348, ¶81. If the
probative value is close to or equal to its unfair prejudicial
46
No. 2013AP558-CR
effect, the evidence must be admitted. State v. Speer, 176
Wis. 2d 1101, 1115, 501 N.W.2d 429. Prejudice is not based on
simple harm to the opposing party's case, but rather "whether
the evidence tends to influence the outcome of the case by
improper means." Payano, 320 Wis. 2d 348, ¶87 (quotation
omitted).
¶88 "Unfair prejudice [also] results when the proffered
evidence . . . appeals to the jury's sympathies, arouses its
sense of horror, provokes its instinct to punish or otherwise
causes a jury to base its decision on something other than the
established propositions in the case." Sullivan, 216 Wis. 2d at
789-90. "The circuit court's job is to ensure that the jury
will not 'prejudge a defendant's guilt or innocence in an action
because of his prior bad act.'" Payano, 320 Wis. 2d 348, ¶89
(quoting Fishnick, 127 Wis. 2d at 262).
¶89 To limit the possibility that the jury will convict
based on "improper means" circuit courts may provide limiting
instructions, give cautionary instructions, edit the evidence,
or restrict a party's arguments. Id., ¶99; Hunt, 263 Wis. 2d 1,
¶¶72–73 (explaining that cautionary instructions help to limit
any unfair prejudice that may result from other-acts evidence);
Sullivan, 216 Wis. 2d at 791. Limiting instructions
substantially mitigate any unfair prejudicial effect. Hunt, 263
Wis. 2d 1, ¶¶73-75 (concluding limiting instructions in child
sexual assault cases were proper, limited any prejudicial
effect, and had been approved of in the past). In some cases,
47
No. 2013AP558-CR
limiting instructions eliminate the potential for unfair
prejudice. Hammer, 236 Wis. 2d 686, ¶36.
¶90 A reviewing court "presume[s] that juries comply with
properly given limiting and cautionary instructions, and thus
consider this an effective means to reduce the risk of unfair
prejudice to the party opposing admission of other acts
evidence." Marinez, 331 Wis. 2d 568, ¶41; see also Hunt, 263
Wis. 2d 1, ¶72. "Because [§ 904.04] provides for exclusion only
if the evidence's probative value is substantially outweighed by
the danger of unfair prejudice, '[t]he bias, then, is squarely
on the side of admissibility. Close cases should be resolved in
favor of admission.'" Marinez, 331 Wis. 2d 568, ¶41 (quoting
Blinka, supra, § 403.1, at 139).
¶91 For the reasons discussed above in the relevancy
analysis, the assaults against J.G. were highly probative.
While the evidence was certainly prejudicial, the limiting
instructions given before J.G.'s testimony and again at the
close of the case were a sound way to make sure that the jury
did not use the evidence for an improper purpose. See Marinez,
331 Wis. 2d 568, ¶41. Here, the circuit court gave two limiting
instructions, the first before J.G. testified and the second
after closing arguments.
Evidence will now be presented regarding other conduct
of the defendant for which the defendant is not on
trial, specifically evidence will be presented that
the defendant engaged in sexual intercourse with
[J.G.]. Sexual intercourse means any intrusion
however slight by any part of a person's body or of
any object into the genital or anal opening of
48
No. 2013AP558-CR
another. Emission of semen is not required. If you
find this conduct did occur, you should consider it
only on the issues of opportunity and method of
operation. You may not consider this evidence to
conclude that the defendant has a certain character or
a certain character trait and that the defendant acted
in conformity with that trait or character with
respect to the offense charged in this case. The
evidence is received on the issues of, first,
opportunity, that is whether the defendant had the
opportunity to commit the offense charged; and second,
method of operation. You may consider this evidence
only for the purposes I have described giving it the
weight you determine it deserves. It is not to be
used to conclude that the defendant is a bad person
and for that reason is guilty of the offense charged.22
¶92 Because we presume that juries comply with properly
given limiting and cautionary instructions and because there was
no unfair prejudice, the circuit court could reasonably conclude
that Hurley did not meet his burden23 of establishing that the
probative value of the other-acts evidence was substantially
22
During opening and closing arguments, the prosecutor was
careful to explain that J.G.'s testimony was being admitted only
to show Hurley's opportunity and method of operation.
23
See Marinez, 331 Wis. 2d 568, ¶19 ("Once the proponent of
the other-acts evidence establishes the first two prongs of the
test, the burden shifts to the party opposing the admission of
the other-acts evidence to show that the probative value of the
evidence is substantially outweighed by the risk or danger of
unfair prejudice.").
49
No. 2013AP558-CR
outweighed by the danger of unfair prejudice.24 Simply put, the
circuit court's decision regarding the prejudicial effect was
not a decision that no reasonable judge could make.
¶93 Given that the evidence was admissible for a proper
purpose, was relevant, and its probative value was not
substantially outweighed by the danger of unfair prejudice, the
circuit court did not erroneously exercise its discretion in
admitting the other-acts evidence.
C. The Circuit Court Erroneously Exercised its Discretion in
Granting a New Trial in the Interest of Justice.
¶94 Finally, we consider whether the circuit court
erroneously exercised its discretion in granting a new trial in
24
State v. McGowan, 2006 WI App 80, 291 Wis. 2d 212, 715
N.W.2d 631, which the court of appeals used to reach the
opposite conclusion, is distinguishable. In McGowan, the court
of appeals concluded that McGowan's assault of a 5 year old
female cousin when he was 10 years old did not provide evidence
of McGowan's motive to assault a 10 year old cousin when McGowan
was 18. We agree with the State in distinguishing McGowan as
McGowan was only 10 years old when he committed the other-act,
while Hurley was between the ages of 12 and 14 when he assaulted
J.G. Further, the result in McGowan was driven by the
difference in the nature of the two sets of acts, and the horrid
nature of urinating in a child's mouth. Id., ¶¶20, 23. In
contrast, Hurley was 14 years old when he stopped assaulting
J.G., much older than McGowan who was 10 years old at the time
of the other-act. Further, both sets of assaults committed by
Hurley were repeated in nature, contrasted with the single
other-act in McGowan. As the circuit court explained: "what
distinguishes McGowan from this case, quite frankly, is they
were talking about a single incident that had occurred some time
previously, which is completely different from what we have in
this case where [J.G.] is alleging that these acts occurred for
quite a long time, perhaps a number of years."
50
No. 2013AP558-CR
the interest of justice and conclude that it did. The circuit
court erroneously exercised its discretion because it did not
apply accepted legal principles to the facts in the record in
explaining how the comments "'so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.'" State v. Mayo, 2007 WI 78, ¶43, 301 Wis. 2d 642, 734
N.W.2d 115 (quoting Davidson, 236 Wis. 2d 537, ¶88).
¶95 A "prosecutor may comment on the evidence, detail the
evidence, argue from it to a conclusion and state that the
evidence convinces him and should convince the jurors." State
v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). The
prosecutor should aim to "analyze the evidence and present facts
with a reasonable interpretation to aid the jury in calmly and
reasonably drawing just inferences and arriving at a just
conclusion upon the main or controlling questions." Id.
However, "[c]ounsel is allowed considerable latitude in closing
arguments," and is permitted to draw any reasonable inference
from the evidence. State v. Burns, 2011 WI 22, ¶48, 332
Wis. 2d 730, 798 N.W.2d 166 (citing Draize, 88 Wis. 2d at 454);
State v. Nemoir, 62 Wis. 2d 206, 213 n.9, 214 N.W.2d 297 (1974).
¶96 "When a defendant alleges that a prosecutor's
statements constituted misconduct, the test we apply is whether
the statements so infected the trial with unfairness as to make
the resulting conviction a denial of due process." Davidson,
236 Wis. 2d 537, ¶88. "Even if there are improper statements by
a prosecutor, the statements alone will not be cause to overturn
a conviction. Rather, the statements must be looked at in
51
No. 2013AP558-CR
context of the entire trial." Mayo, 301 Wis. 2d 642, ¶43; see
also United States v. Young, 470 U.S. 1, 11 (1985) ("[A]
criminal conviction is not to be lightly overturned on the basis
of a prosecutor's comments standing alone, for the statements or
conduct must be viewed in context; only by so doing can it be
determined whether the prosecutor's conduct affected the
fairness of the trial.").
¶97 The circuit court in the instant case erroneously
exercised its discretion as it misapplied the holding of State
v. Weiss, 2008 WI App 72, 312 Wis. 2d 382, 752 N.W.2d 372. In
Weiss, the defendant was charged with two counts of sexual
assault of a child under the age of 16. Id., ¶2. Weiss
testified that he verbally told the police that he did not
commit the assaults, but did not include that denial in his
written statements. Id., ¶4. Two police reports stated that
Weiss had verbally denied the accusations. Id., ¶1. During
closing argument, the prosecutor argued that the first and only
time the defendant had denied committing the assaults was during
his oral testimony. Id., ¶5. On ten occasions during closing
and rebuttal the prosecutor remarked that Weiss did not deny
assaulting the victim until trial. Id., ¶¶5-7.
¶98 In granting a new trial in the interest of justice,
the Weiss court explained that the prosecutor "was asking the
jury to disbelieve Weiss's statement that he had verbally denied
the crime to the police." Id., ¶15. The Weiss court explained:
[The prosecutor] knew better. She had the two police
reports saying otherwise. . . . We point out once
52
No. 2013AP558-CR
more, because this is important: the State concedes
that the prosecutor's argument, asserting that Weiss
never denied the crime, implicitly including verbal
denials, was incorrect. The importance of what we are
about to say cannot be underscored enough.
Prosecutors may not ask jurors to draw inferences that
they know or should know are not true. That is what
occurred here and it is improper.
Id.
¶99 At trial, Hurley testified in his own defense. On
direct examination his attorney asked: "Now, [J.G.] testified
that she was assaulted when she believed she was around eight
years old. Do you recall having an encounter with [J.G.] when
she was around eight?" Hurley answered: "No." His attorney
then asked: "Do you recall any of the allegations [J.G.] brought
up here today?" Hurley answered: "No, I do not."
¶100 During his closing argument the assistant district
attorney stated "[w]hen the defendant testified, he was asked by
his—by the attorney regarding [J.G.] he said well, do you recall
any of these incidents with [J.G.] ever happening? And his
answer was no. The question wasn't did you do this or not, it
was do you recall? That's different than 'it didn't happen.'"
The assistant district attorney and the defense attorney had in
their possession a police report which stated that on September
26, 2010, J.G. called Hurley and discussed the assaults he
committed against her, which Hurley denied.
¶101 The circuit court concluded that the application of
Weiss required a new trial. The circuit court found the
prosecutor's comments were designed to have the jury draw the
inference that Hurley had not previously denied that the sexual
53
No. 2013AP558-CR
assaults described by J.G. occurred, and that Hurley could only
not recall whether he engaged in the sexual contact with his
sister. The circuit court further found that this inference was
inaccurate and that the prosecutor knew that Hurley had
previously denied J.G.'s allegations when confronted by her.
The circuit court explained that the case largely boiled down to
a credibility determination and that the prosecutor's remarks
were intended to undermine the credibility of the defendant.
¶102 However, the circuit court did not apply accepted
legal principles in that it misapplied Weiss. In Weiss there
were at least ten separate comments by the prosecutor relating
to the denial during closing and rebuttal. Id., ¶¶5, 7. Here
the prosecutor made two very brief remarks and did not dwell on
the defendant's testimony. Further, the inference that the
circuit court thought the prosecutor was asking the jury to draw
is unfounded. The circuit court thought the prosecutor was
asking the jury to draw the inference that Hurley had never
denied assaulting J.G., and that he only could not recall
whether it had happened. The reasonable inference the
prosecutor was arguing was that Hurley had not been asked by his
trial counsel whether he assaulted J.G. (and Hurley did not
volunteer a denial of J.G.'s allegations) because Hurley
believed it was possible he had assaulted her, but could not
recall having done so. The prosecutor did not say "he has never
denied the assault before today" as the prosecutor did in Weiss,
but instead stated that Hurley could not recall the assault
which is different from "it didn't happen." The prosecutor did
54
No. 2013AP558-CR
not ask the jury to draw an inference that he knew or should
have known was untrue. The prosecutor merely commented on
Hurley's testimony at trial, appropriately held him to that
testimony, and confined his remark to the reasonable inference
discussed above.
¶103 Finally, in Weiss the defendant denied assaulting the
victim, but here Hurley denied assaulting J.G., the other-acts
victim. Because Hurley's denial did not go to the heart of the
case, whether or not he assaulted the victim for which he was on
trial, even if the prosecutor's remarks were improper, which we
do not conclude, they did not so infect the trial with
unfairness as to make the resulting conviction a denial of due
process. "Even if there are improper statements by a
prosecutor, the statements alone will not be cause to overturn a
conviction. Rather, the statements must be looked at in context
of the entire trial." Mayo, 301 Wis. 2d 642, ¶43. Noting that
Hurley could not recall whether the assaults occurred is in fact
different than the assaults did not occur. Had the prosecutor
argued that Hurley had never denied the assaults, then, given
the credibility contest, those remarks may have infected the
trial with unfairness. But that was not the case.
¶104 The prosecutor's comments were brief, fair, and did
not ask the jury to draw an inference that the prosecutor knew
or should have known was false. Therefore, the circuit court
misapplied Weiss in reaching its conclusion and thus the court
erroneously exercised its discretion in granting a new trial.
IV. CONCLUSION
55
No. 2013AP558-CR
¶105 First, we hold that the amended complaint and
information provided adequate notice and thus did not violate
Hurley's due process right to plead and prepare a defense.
Second, we hold that the circuit court did not erroneously
exercise its discretion in admitting the other-acts evidence.
Finally, we hold that the circuit court did erroneously exercise
its discretion in granting a new trial in the interest of
justice. We therefore reverse the court of appeals and remand
to the circuit court with the instruction that the judgment of
conviction be reinstated.
By the Court.—Reversed and cause remanded to the circuit
court with the instruction to reinstate the judgment of
conviction.
56
No. 2013AP558-CR.ssa
¶106 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I agree
with the decision of the court of appeals on the issue of the
other-acts evidence.1 I, like the court of appeals, conclude
that the circuit court erroneously exercised its discretion in
admitting the State's other-acts evidence.
¶107 The admissibility of other-acts evidence is governed
by Wis. Stat. § 904.04(2). Other-acts evidence is not
admissible "to prove the character of a person in order to show
that the person acted in conformity therewith" or to show that
the defendant has a propensity to commit crimes.2 Other-acts
evidence introduced for a different purpose is admissible so
long as the evidence is relevant to a permissible purpose and
its probative value is not substantially outweighed by the
danger of unfair prejudice.3
¶108 I agree with the court of appeals that the other-acts
evidence introduced by the State fails each prong of the three-
prong analysis set forth in State v. Sullivan, 216 Wis. 2d 768,
772, 576 N.W.2d 30 (1998).4 The State offered other-acts
evidence in order to show that the defendant is a bad person
1
State v. Hurley, No. 2013AP558-CR, unpublished slip op.,
at 23-24 (Wis. Ct. App. May 6, 2014).
2
State v. Marinez, 2011 WI 12, ¶18, 331 Wis. 2d 568, 797
N.W.2d 399.
3
Id.
4
The three-prong test set forth in State v. Sullivan, 216
Wis. 2d 768, 772, 576 N.W.2d 30 (1998), is discussed in ¶57 of
the majority opinion.
1
No. 2013AP558-CR.ssa
with a propensity to sexually assault children. The State
sought to persuade the jury, in violation of Wis. Stat.
§ 904.04(2)(a), that the assaults alleged in the State's
complaint were committed by the defendant in conformity with his
criminal character and propensity to sexually assault children.
¶109 If the State's other-acts evidence is relevant to show
more than the defendant's criminal character or propensity to
sexually assault children (and it is not), its probative value
is substantially outweighed by the danger of unfair prejudice.5
Evidence that the defendant "committed repeated acts of incest
against his sister was likely to arouse the jury's sense of
horror and provoke its instinct to punish."6 The limiting
instructions provided by the circuit court did not, in my view,
cure the unfair prejudice and thus "do not sway this
balance . . . ."7
¶110 An erroneous exercise of discretion in admitting the
State's other-acts evidence does not necessarily lead to a new
trial.8 Rather, this court must determine whether the error was
harmless.9
5
See Wis. Stat. § 904.03.
6
Hurley, No. 2013AP558-CR, unpublished slip op., at 23.
7
Marinez, 331 Wis. 2d 568, ¶77.
8
Martindale v. Ripp, 2001 WI 113, ¶30, 246 Wis. 2d 67, 629
N.W.2d 698.
9
Id.
2
No. 2013AP558-CR.ssa
¶111 In the instant case, the State properly conceded at
the court of appeals that if its other-acts evidence was
erroneously admitted, the error was not harmless.10 The State
does not assert harmless error in its brief before this court.11
¶112 I agree with the court of appeals that the error was
not harmless and would therefore grant the defendant a new
trial.
¶113 By denying the defendant relief in the instant case,
the majority opinion adds to the growing body of case law
whittling away at the protections afforded to defendants by Wis.
Stat. § 904.04(2). As Justice Bradley wrote over a decade ago:
Rather than endeavoring to stretch beyond repair the
definitions of the acceptable purposes [for other-acts
evidence under Wis. Stat. § 904.04(2)(a)], the
majority should simply lay all its cards on the table
and acknowledge that it is sanctioning the blanket use
of propensity evidence in child sexual assault cases.
[Instead], the majority maintains its refuge under the
cloak of the very statute it simultaneously
12
erodes. . . .
¶114 For the reasons set forth, I dissent.
¶115 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
10
Brief (in Court of Appeals) of the State as Appellant and
Cross-Respondent at 34.
11
Brief (in Supreme Court) of the State as Plaintiff-
Appellant-Cross-Respondent-Petitioner at 44 n.8.
12
State v. Davidson, 2000 WI 91, ¶109, 236 Wis. 2d 537, 613
N.W.2d 606 (Bradley, J., dissenting).
3
No. 2013AP558-CR.ssa
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