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§ 904.04 – Greater Latitude Rule in Sexual Assaults — Admissibility of Assault by One Child on Another Child 8 Years Before Charged Offense

State v. Randy Mcgowan, 2006 WI App 80
For Mcgowan: Dianne M. Erickson


¶20      We cannot conclude that the allegations are sufficiently factually similar to justify admission of Janis’s testimony as other acts evidence. Assuming the truthfulness of both Sasha and Janis for purposes of this analysis, we conclude that a single assault, by one young child on another young child, eight years before repeated assaults by an adult on a different child who was three years older than the first victim, together with significant differences in the nature and quality of the assaults, does not tend to make the latter frequent and more complex assaults of Sasha more probable. Nor does such testimony make Sasha’s testimony about the later events more credible because of the significant differences in the details involving the earlier event and the later events. Nor does the conduct of a ten-year-old child give “context” to, or provide evidence of the motive or intent of, an adult some eight or more years later. See Barreau, 257 Wis. 2d 203, ¶38 (“Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult.”).

The Court separately holds the evidence unfairly prejudicial, ¶21.


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