State v. Davidson

• Decision Date: 11 July 2000
• Docket Number: No. 98-0130-CR.,98-0130-CR.
• Citation: 236 Wis.2d 537,2000 WI 91,613 N.W.2d 606
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Dale H. DAVIDSON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

236 Wis.2d 537

2000 WI 91

613 N.W.2d 606

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Dale H. DAVIDSON, Defendant-Appellant.

No. 98-0130-CR.

Supreme Court of Wisconsin.

Oral argument December 3, 1999.

Decided July 11, 2000.

For the plaintiff-respondent-petitioner the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the defendant-appellant there was a brief by Jerome F. Buting, Pamela Moorshead, and Buting & Williams, S.C., Brookfield, and oral argument by Jerome F. Buting.

Amicus Curiae brief by Dean A. Strang and Fitzgerald & Strang, S.C., Milwaukee, for Wisconsin Association of Criminal Defense Lawyers.

¶ 1. JON P. WILCOX, J.

The State of Wisconsin seeks review of a published decision of the court of appeals, State v. Davidson, 222 Wis. 2d 233, 589 N.W.2d 38 (Ct. App. 1998), which reversed Dale Davidson's conviction for second-degree sexual assault of his thirteen-year-old niece on the grounds that the trial court improperly admitted evidence of the defendant's prior conviction for child sexual assault.

¶ 2. In a jury trial in the Circuit Court for Adams County, Judge Richard O. Wright, Dale Davidson was convicted of assaulting his niece, Tina H. During trial, the circuit court permitted the State to introduce evidence of Davidson's 1986 conviction for sexual assault of a six-year-old girl in its case-in-chief. Upon his conviction, Davidson appealed, arguing that the admission of his prior conviction constituted an erroneous exercise of discretion and that such error was not harmless. Davidson also argued that prosecutorial misconduct during closing statements warranted a new trial.

¶ 3. The court of appeals determined that under Wis. Stat. § (Rule) 904.04(2)(1993-94),¹ the trial court had erroneously exercised its discretion when it admitted evidence of Davidson's prior conviction. Davidson, 222 Wis. 2d at 250-54. Because it reversed his conviction on this ground, the court of appeals did not reach Davidson's prosecutorial misconduct claim.

¶ 4. The State petitioned this court for review. The State articulated several reasons that review was warranted, including: (1) to clarify how courts should apply the three-step test for admissibility of other acts evidence articulated in State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998); (2) to clarify how courts should apply the "greater latitude rule," which permits a greater latitude of proof with regard to other acts evidence in sexual assault cases, while performing the Sullivan analysis; and (3) to clarify what degree of similarity must exist between the uncharged and charged offenses in order for other crimes evidence to be admissible.

¶ 5. We accepted review. We now hold that, applying the three-step Sullivan analysis together with the greater latitude rule that is well established in Wisconsin law, the admission of evidence of Davidson's prior conviction did not constitute an erroneous exercise of discretion. We also conclude that the defendant waived his objection to the prosecutor's statements during closing arguments when he failed to request a mistrial before the jury returned its verdict. We therefore reverse the decision of the court of appeals and reinstate the judgment of the circuit court.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

¶ 6. This case arose after Davidson's niece, Tina H., complained that he had sexually assaulted her during a camping trip in September 1995. Tina, who is the daughter of Davidson's wife's sister, accompanied Davidson, his wife, and their three sons, ages 9, 11, and 13, on a weekend camping trip in the Davidsons' Winnebago camper. On Sunday night, after she returned home from the camping trip, Tina first spoke to a close friend on the phone and disclosed the incident. Tina then told her mother that Davidson had sexually assaulted her.

¶ 7. Tina gave the following account of the assault. She reported that on Saturday evening, Davidson and his wife had allowed Tina and the three boys to drink a small amount of homemade wine while sitting around the campfire. Tina stated that while they were seated around the campfire, Davidson had given her more wine from his own cup until his wife told him to stop. Later, while Davidson and his wife stayed at the campfire, Tina and the boys went to bed. The boys slept in a bed over the cab at the front of the camper, while Tina slept in the middle of the camper on a table that folded down into a bed. When they went to bed, Davidson and his wife slept in a bedroom area at the rear of the camper.

¶ 8. Tina stated that at some time during the night, Davidson woke her and asked her to drink some more wine. She agreed at first but then told Davidson that she felt sick. Tina reported that she then fell back to sleep, but that Davidson again woke her and told her to lie on her back so she would not get sick. At some point, she heard the curtains being drawn around the other sleeping areas. The next time she awoke, Davidson had pulled up her shirt and bra and was licking her breasts. She rolled over, turning away from Davidson. She stated that this same behavior occurred more than once during the night, but that she could not remember exactly when or how often. The last time she awoke, Davidson had unbuttoned and unzipped her pants and was feeling her vagina.² When she awoke and lifted her head, Davidson zipped her pants and left.

¶ 9. After Tina reported this assault, her parents contacted the police. Davidson was subsequently charged with second-degree sexual assault of a child as a repeater.

B. TRIAL COURT PROCEEDINGS

¶ 10. Before Davidson's trial on this charge, the State filed a motion in limine seeking to introduce evidence of Davidson's prior conviction for first-degree sexual assault of a six-year-old girl, Cindy P., in 1986.³ The prior assault occurred while Davidson was attending church in Park Falls, Wisconsin. During the services, Cindy P. went to get a drink of water at the drinking fountain. The drinking fountain was located next to the men's restroom and near a nursery in the lower level of the church. While Cindy P. was standing at the fountain, Davidson approached her, put his hands inside her underwear, and touched her buttocks and front pubic area. Cindy P. told Davidson that she had to go to the bathroom and left the area. She later reported the incident to her mother, and Davidson was charged with first-degree sexual assault of a child. He pled guilty and was sentenced to two years in prison.

¶ 11. The State's motion in limine sought to admit evidence of Davidson's assault of Cindy P. under Wis. Stat. § (Rule) 904.04(2)⁴ to establish intent, motive, plan, and identity, and to fully present the State's case.

¶ 12. Before deciding the motion, the trial court heard extensive arguments on the admissibility of the evidence in the form of memoranda from each side, two pretrial hearings, and a discussion immediately before trial.

¶ 13. In its memorandum opposing the motion, the defense argued that evidence of Davidson's assault of Cindy P. was inadmissible under Wis. Stat. § (Rule) 904.04(2) because it was not material to any fact of consequence in the case. The defense contended that Davidson's guilty plea was not sufficient to put intent, motive, plan, or identity in issue. The defense further argued that the evidence was inadmissible under Wis. Stat. § (Rule) 904.03⁵ because the danger of unfair prejudice posed by the evidence outweighed its probative value.

¶ 14. In its responsive memorandum, the State argued that Wisconsin precedent⁶ established that a "greater latitude of proof" applies in sexual assault cases. The State contended that under these precedents the evidence was relevant and admissible to prove both motive and intent under Wis. Stat. § (Rule) 904.04(2). The State also argued that the probative value of the evidence outweighed any potential for unfair prejudice under Wis. Stat. § (Rule) 904.03.

¶ 15. At the initial hearing on this motion, the trial judge noted that "the similarity in circumstances [between the Cindy P. assault and the charged offense] are [sic] possibly striking," but asked the State to explain what purpose the evidence could serve at trial "other than to show that the defendant, in fact, did it again?" The State responded that the evidence should be admitted "not to show that he did it before, he did it again, but [because] who would believe a person would do something like this. What is their motive; what is their motive to do something like that?" The State also argued that the evidence might be relevant to establish opportunity or plan, to refute Davidson's contention that the alleged assault could not have taken place in the small camper while the rest of the family slept nearby.

¶ 16. The judge indicated that he believed that the evidence might be admissible to establish opportunity, but doubted that it would be admissible to establish motive or plan. In response, the defense argued that the two incidents were not very similar because no one else was present in the basement when Davidson assaulted Cindy P. The judge acknowledged the defense's concern that the evidence would establish propensity rather than opportunity. However, the judge decided to conditionally admit the evidence to establish opportunity, provided that the State was able to establish proof of the similarities between the incidents. The prosecutor subsequently made an offer of proof that described the circumstances of the Cindy P. assault in more detail.

¶ 17. At the final pretrial hearing, the judge again heard arguments on the motion. The State indicated that it sought to introduce the evidence in order to establish the defendant's plan, scheme, and motive, and that "[t]he opportunity [to accomplish the assault] was created through [the defendant's] plan or through his method of sexually assaulting these young girls...."...