State v. Fishnick

Citation127 Wis.2d 247,378 N.W.2d 272
Decision Date29 January 1986
Docket NumberNo. 84-1132-CR,84-1132-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Paul J. FISHNICK, Defendant-Appellant-Petitioner.
CourtUnited States State Supreme Court of Wisconsin

Jack E. Schairer, Asst. State Public Defender, for defendant-appellant-petitioner.

David J. Becker, Asst. Atty. Gen., with whom on brief was Bronson C. LaFollette, Atty. Gen., for plaintiff-respondent.

CECI, Justice.

This is a review of an unpublished per curiam decision of the court of appeals, 124 Wis.2d 777, 370 N.W.2d 294, dated April 25, 1985, affirming a judgment for conviction and an order of the circuit court for Grant county, John R. Wagner, circuit judge, denying defendant postconviction relief.

There are two issues in this case. First, did the trial court err in admitting evidence of Paul J. Fishnick's (Fishnick) alleged prior act of enticement involving a thirteen-year-old girl in the present action in which Fishnick is charged with one count of first-degree sexual assault involving a three-year-old girl? Second, was the error of admitting into evidence Fishnick's alleged prior act of exposure involving a twelve-year-old girl harmless to his defense in the present action? We affirm the decision of the court of appeals that the alleged prior act of enticement was properly admitted into evidence pursuant to Section 904.04(2), Stats., 1 and that the alleged prior act of exposure was erroneously admitted but harmless to Fishnick.

On June 18, 1983, at 11:30 a.m., three-year-old C.S. left her family's trailer home for about fifteen minutes. Upon her return, her parents noticed that she had a piece of red cinnamon candy. C.S.'s father testified that the candy was the same as the kind kept by Fishnick in his trailer home. Fishnick and C.S.'s family lived in the same trailer court.

C.S.'s father twice asked C.S. where she had gotten the candy, but C.S. did not respond. C.S.'s mother then asked her if she had received it from "Paul"; C.S. answered, "Yes." Her parents did not immediately pursue the matter. About one minute after this exchange, C.S. volunteered to her father that "that man licked my booboops." "Booboops" is a family term for the vaginal area. At noon that day, C.S. repeated the statement to a Lancaster police officer, and held herself in the crotch area. Her mother again asked, "Was it Paul?"; C.S. answered, "Yes," but would not state his name. Her father again asked her where she had gotten the candy. She responded by pointing in the direction of Fishnick's trailer and stating, "At that man's trailer." At no time did C.S. state the name Paul Fishnick as a means of identifying the defendant.

On June 20, 1983, a criminal complaint was filed, charging Fishnick with first-degree sexual assault, pursuant to Section 940.225(1)(d), Stats. 2 An information filed on June 24, 1983, accused Fishnick of "feloniously intentionally hav[ing] sexual contact with a person twelve years of age or younger, to-wit: the defendant intentionally touched the vagina of [C.S.] ... with intent to become sexually aroused or gratified."

At trial, Fishnick denied giving C.S. candy, asking her to enter his trailer, or touching her vagina, although he did admit to having seen and briefly conversed with C.S. at approximately 11:20 a.m. on the day of the incident.

On cross-examination, Fishnick denied having enticed thirteen-year-old D.F. to show him her vaginal area or having exposed himself to twelve-year-old E.F., D.F.'s sister. During the state's rebuttal, D.F. testified that on June 11, 1983, she was hanging the wash on a clothesline located near Fishnick's trailer. She stated that she heard Fishnick talking to her from his trailer and that he offered her $20 to go into his trailer and show him her vaginal area. She stated that Fishnick said, "I can't see too clearly, but it looks pretty good from here." She further testified that she then returned to her family's trailer and informed her mother of the incident.

Also on rebuttal, E.F. testified that around 10:00 p.m. on June 10, 1983, she glanced into the window of Fishnick's trailer and saw him standing nude in front of his window such that she could see his penis.

The trial judge, citing Whitty v. State, 34 Wis.2d 278, 149 N.W.2d 557 (1967), and State v. Tarrell, 74 Wis.2d 647, 247 N.W.2d 696 (1976), admitted the "other acts" testimony of both girls as probative of motive, intent, preparation, or plan. The court gave a limiting instruction to the jury immediately after the other-acts evidence: "[Such evidence] regarding other incidents involving the defendant for which he is not on trial ... was admitted solely on the issues of motive, intent, preparation, or plan." Further, the jury was not allowed to consider such evidence to conclude that the defendant has a certain character trait or that he acted in conformity with that trait with respect to the offense charged in this case. The court essentially repeated this instruction in its general instructions to the jury after the closing arguments of counsel. Neither the state nor Fishnick objected to the court's jury instructions.

On January 11, 1984, a jury found Fishnick guilty as charged. He was sentenced to a prison term not to exceed five years. The trial court denied a postconviction motion regarding the admission of the other-acts testimony of D.F. and E.F.

On review, the court of appeals determined that D.F.'s testimony was relevant to show the identity of C.S.'s assaulter, but not to show motive, intent, preparation, or plan. It also held that E.F.'s testimony regarding the exposure incident was irrelevant and, therefore, was erroneously admitted by the trial court. It determined, however, that the error was harmless to Fishnick. The court of appeals thus affirmed the trial court's judgment convicting Fishnick of first-degree sexual assault.

In our order granting Fishnick's petition for review, we limited the issues on review to the validity of the admission of other-acts evidence and to the application of the harmless error analysis.


Section 904.04(2), Stats., states:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The general rule is to exclude evidence of other bad acts to prove a person's character in order to show that the person acted according to his character in committing the present act. Whitty, 34 Wis.2d at 291-92, 149 N.W.2d 557. The purpose of the other-acts rule "is to exclude evidence which is relevant only for showing a disposition to commit a crime." State v. Spraggin, 77 Wis.2d 89, 100, 252 N.W.2d 94 (1977). The rationale for the general rule was set forth in Whitty v. State:

"The character rule excluding prior-crimes evidence as it relates to the guilt issue rests on four bases: (1) The overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present charge but because he has escaped punishment from other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated; and (4) the confusion of issues which might result from bringing in evidence of other crimes." Whitty, 34 Wis.2d at 292, 149 N.W.2d 557.

Section 904.04(2), Stats., allows for uses of other-acts evidence when it is not used to show character conformity. Such evidence may be used to demonstrate a person's motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in committing the act with which he or she is charged. Thus, while we do not permit a jury to infer that because a defendant committed prior act X, he is therefore of such a character and disposition to commit present act Y, the law does allow, under the proper circumstances, a jury to infer from act X a defendant's motive, intent, etc. with respect to act Y.

Trial courts must apply a two-prong test in determining whether other-acts evidence is admissible. State v. Alsteen, 108 Wis.2d 723, 729, 324 N.W.2d 426 (1982). First, the trial court must find whether the evidence of other acts fits within one of the Section 904.04(2) exceptions. It must then determine whether any prejudice resulting from the admission of such evidence substantially outweighs its probative value. Section 904.03, Stats. 3 Of course, a threshold question implicit within the two-prong analysis is whether the other-acts evidence is relevant to the case. Alsteen, 108 Wis.2d at 729, 324 N.W.2d 426.

An underlying issue to the determination whether the trial court erred in admitting the D.F. and E.F. other-acts evidence is the significance of a certain passage in Tarrell, 74 Wis.2d 647, 247 N.W.2d 696.

In Tarrell, the defendant was charged with sexually assaulting an eleven-year-old girl on August 25, 1974. Over defense counsel's objections, the trial court allowed the prosecution to introduce evidence that the defendant,

"[h]ad in 1969 been convicted of enticing a child for immoral purposes; had in February, 1973, unzipped his pants and masturbated in the presence of two young female hitchhikers ...; and had in the summer of 1974 made an inappropriate or obscene remark to a girl." Id. at 657, 247 N.W.2d 696.

After considering the danger of admitting other-acts evidence, we upheld the trial court's admission of the evidence. We stated that,

".... the separate acts, ranging from inappropriate comments to a girl, to enticing a minor for immoral purposes, demonstrated [defendant's] propensity to act out his sexual desires with young girls and had a...

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