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Particular Examples of Misconduct, § 904.04(2) — Prior Sexual Assault of Adult — Relevance to Charge of Child Sexual Assault — Dissimilarities, Including Age Disparity of Victims

State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams

Issue: Whether a prior sexual assault of an adult was sufficiently similar to the charged sexual assault of a child to be admissible as other crimes evidence.
Holding:

¶14. The next step is whether the 1992 conviction was relevant; that is, whether under Wis. Stat. § 904.01, it relates to a fact or proposition that is of consequence to the determination of the action and if it has probative value. Id. “`The measure of probative value in assessing relevance is the similarity between the charged offense and the other act.’ Similarity is demonstrated by showing the `nearness of time, place, and circumstance’ between the other act and the alleged crime.” Hammer, 2000 WI 92 at ¶31 (citations omitted). Stated otherwise, the greater the similarity between the two acts, the greater the relevance and probative value. Here is where the State’s argument fails. InHammer, the supreme court found that the adult-child distinction did not impact on probative value because the victims, with one exception, were all near the age of majority. Id. at ¶32. That is not the case here. The victim in the other act was twenty-three years old, well past the age of majority. The victim in the charged act was a fourteen-year-old boy-four years away from the age of majority. This distinction is significant.

¶15. Moreover, unlike the “mirror image” acts in Hammer, the other act here was substantially dissimilar from the charged act. The other act occurred in a private bedroom following an illegal entry, in the middle of the night, while the victim was sleeping; the sexual contact was through the victim’s clothes. The charged act is drastically different: it occurred in a public place, during the day, while the victim was awake; the sexual contact was directly to the skin, and no illegal entry was involved. These differences greatly reduce the probative value of the 1992 conviction, and lean toward making the earlier act propensity evidence. The State suggests that the two acts are similar in several ways; i.e., both victims were young male strangers, both involved isolated victims in places close to the perpetrator’s home, neither incident involved force, and the sexual contact in both was with the victim’s penis. Even with the application of the greater latitude rule, we cannot conclude that this suggested list of similarities overcomes the greater dissimilarities. The State’s list presents factors or similarities that are, for the most part, common to most sexual assaults.

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