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Particular Examples of Misconduct, § 904.04(2) – “Opportunity and Motive”

State v. John P. Hunt, 2003 WI 81, reversing unpublished order of court of appeals
For Hunt: Rex R. Anderegg


¶60. Next, the circuit court could reasonably have concluded that the other-acts evidence was admissible for the purpose of establishing opportunity and motive. 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 opportunity and motive. State v. Davidson, 2000 WI 91, ¶57, 236 Wis. 2d 537, 616 N.W.2d 606 (citations omitted). As noted before, Hunt was charged with two counts of first-degree sexual assault of a child (Wis. Stat. § 948.02(1)), one count of repeated sexual assault of the same child (Wis. Stat. § 948.025(1)), one count of first-degree sexual assault resulting in the pregnancy of a child (Wis. Stat. § 940.225(1)(a)), one count of exposing a child to harmful materials (Wis. Stat. § 948.11(2)(a)), and one count of second-degree sexual assault by use of force (Wis. Stat. § 940.225(2)(a)). As such, five out of the six crimes Hunt was charged with related to sexual assault. There is no doubt that sexual assault, involving either sexual contact or sexual intercourse, requires an intentional or volitional act by the perpetrator. See State v. Olson, 2000 WI App 158, ¶6-12, 238 Wis. 2d 74, 616 N.W.2d 144. As an example, under Wis. Stat. § 948.01(5)(a), sexual contact is defined as:

Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant’s or defendant’s intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.

The other-acts evidence was properly admitted to prove motive because purpose is an element of sexual assault, and motive and opportunity are relevant to purpose. State v. Plymesser, 172 Wis. 2d 583, 593-96, 493 N.W.2d 376 (1992). Thus, Hunt’s motive or opportunity for allegedly touching or having intercourse with Tiffany J. was part of the corpus of the crimes charged, and evidence relevant to the motive or opportunity was therefore admissible. Id.


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