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 App. 2014 – Unpublished)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¶1 MICHAEL J. GABLEMAN, J. We review an unpublished per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State v. Hurley, No. 2013AP558-CR, unpublished slip op.,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 Mar. 18, 2014) OPINION WITHDRAWN AND REISSUED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

1