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Particular Examples of Misconduct, § 904.04(2) — Prior Sexual Assaults — 15-25 Years Earlier, not Remote

State v. Eugene P. Opalewski, 2002 WI App 145, PFR filed 6/6/02
For Opalewski: Lorinne J. Cunningham

Issue/Holding: On charges of first degree sexual assault of a child and incest, evidence of the defendant’s past sexual abuse of his two daughters and the children of a prior girlfriend was admissible under the three-step test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

  • Similarity: The prior acts were similar to the charged act, especially in that “(i)n each instance, a child within a familial or quasi-familial setting was sexually assaulted.” ¶18.
  • Remoteness in time: Though the prior acts occurred 15-25 years earlier, they weren’t remote (court stresses the repetitive nature and similarities of the acts, i.e., “a pattern of consistent activity”). ¶¶21-22.
  • Prejudice: The prior acts weren’t unfairly prejudicial: testimony challenged as unduly prejudicial was either unobjected-to and self-inflicted (i.e., brought out on cross without objection) and therefore waived, ¶25, citing United States v. Ohler, 529 U.S. 753, 755 (2000); or wasn’t of such nature as to “provoke hostility and revulsion.” ¶27.

And, certain other challenges to closing argument as exacerbating prejudicial effect are held waived by lack of objection. ¶29.


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