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Particular Examples of Misconduct, § 904.04(2) — Prior Sexual Assault of Child — 11 years Earlier — not Remote in Time

State v. Michael L. Veach, 2002 WI 110, reversing 2001 WI App 143
For Veach: Suzanne Hagopian, SPD, Madison Appellate

Issue: Whether, on charges of sexually assaulting a 7-year old girl, evidence that the defendant had sexually assaulted his 9-year old daughter approximately 11 years earlier was properly admissible.

Holding:

  • 1). The evidence was offered for an acceptable purpose, namely intent, motive, and absence of mistake or accident. ¶58.
  • 2a). The evidence was relevant, the court rejecting Veach’s argument that an element must be disputed before extrinsic evidence may be deemed relevant to that element. ¶77. (Note: The court therefore devotes much of the opinion to discussing an irrelevancy — the idea that Veach didn’t really concede intent. ¶¶60-76.)
  • 2b). The incidents were sufficiently similar to have probative value: young girl, father(-like) relationship. ¶¶79-82. Acknowledged dissimilarities, and lengthy passage of time, are overcome by the idea that the prior incidents “obviously had at least some probative value” — to show motive and absence of mistake/accident. ¶¶83-84.
  • 3). The other acts were “graphic, disturbing, and extremely prejudicial,” but the danger of unfair prejudice didn’t outweigh probative value, especially given the greater latitude rule (relaxed admissibility for extrinsic acts in child sexual assault cases).
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