State v. Meehan

• Decision Date: 17 April 2001
• Docket Number: No. 97-3807-CR.,97-3807-CR.
• Citation: 2001 WI App 119,630 N.W.2d 722,244 Wis.2d 121
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kevin S. MEEHAN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

244 Wis.2d 121

2001 WI App 119

630 N.W.2d 722

STATE of Wisconsin, Plaintiff-Respondent, v. Kevin S. MEEHAN, Defendant-Appellant.

No. 97-3807-CR.

Court of Appeals of Wisconsin.

Oral argument February 6, 2001.

Decided April 17, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Pamela Moorshead of Buting & Williams, S.C. of Brookfield. There was oral argument by Pamela Moorshead.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general by William C. Wolford, assistant attorney general. There was oral argument by William C. Wolford.

Before Wedemeyer, P.J., Schudson and Curley, JJ.

¶ 1. WEDEMEYER, P.J.

Kevin S. Meehan appeals from a judgment entered after a jury found him guilty of one count of second-degree sexual assault of a child and one count of attempted second-degree sexual assault of a child, contrary to WIS. STAT. §§ 948.02(2) and 939.32 (1995-96).¹ Meehan also appeals from an order denying his postconviction motion. He claims: (1) the trial court erroneously exercised discretion in allowing other acts evidence of a 1992 conviction for sexual assault of an adult; (2) the trial court erroneously exercised discretion in allowing the State to elicit testimony from a defense alibi witness about the details of the prior conviction; (3) the trial court erroneously exercised discretion when it allowed the State to read into the record the transcripts of the victim's testimony from two earlier proceedings three days after the victim's live testimony during the trial; and (4) the second count was multiplicitous to the first count and should be dismissed.

¶ 2. Because the trial court erroneously exercised its discretion in admitting the other acts evidence, because that error was compounded when the trial court allowed the cross-examination of a defense alibi witness to delve further into the details of the other acts evidence, and because the trial court erroneously exercised its discretion when it allowed the State to introduce the victim's testimony from two earlier proceedings, we reverse the judgment and the order in part. We do conclude, however, that the two counts were not multiplicitous, and we affirm that part of the order.

BACKGROUND

¶ 3. On January 1, 1996, fourteen-year-old Nickolas Z. was in the steam room of the West Allis Athletic Club. Nickolas testified that a young man approached him and grabbed his penis. Nickolas pushed the man's hand away and told him "no." The man again reached out to grab Nickolas's penis, but was unable to do so. Nickolas identified the perpetrator as Meehan.

¶ 4. Meehan was charged with one count of second-degree sexual assault of a child and one count of attempted second-degree sexual assault of a child. Prior to trial, the State moved in limine to introduce Meehan's 1992 sexual assault conviction, which involved Meehan entering the bedroom of a twenty-three-year-old man, and rubbing the man's penis while he was sleeping. The trial court allowed the admission of this evidence over defense objection.

¶ 5. Meehan presented an alibi defense. He claimed to be home with his parents at the time of the assault. As a part of his alibi defense, Joseph Holmes, Meehan's significant other, testified about a twenty-minute phone call they had during the relevant time period. Cross-examining Holmes, the State asked about his knowledge of the facts relating to the 1992 sexual assault conviction. The defense objected, but the trial court permitted it. ¶ 6. In addition to Nickolas's trial testimony, the State moved to introduce the prior testimony of Nickolas during two earlier legal proceedings. Initially, the trial court indicated that the State would only be allowed to introduce certain portions of the earlier transcripts, but later reversed the ruling, and allowed the introduction of the entire testimony of Nickolas from the earlier proceedings to be dramatically read to the jury.²

¶ 7. The jury convicted Meehan of both counts. Meehan's postconviction motions were denied. He appealed to this court. We summarily reversed his conviction on the basis that the 1992 conviction had been erroneously admitted. The supreme court granted the petition seeking review of our decision, and then summarily vacated our decision, remanding the matter to this court with instructions to reconsider the case in light of its recent decision, State v. Hammer, 2000 WI 92, 236 Wis. 2d 686, 613 N.W.2d 629. We have followed those instructions.

DISCUSSION

A. Admission of 1992 Conviction.

[1, 2]

¶ 8. Meehan first contends that the trial court erroneously exercised its discretion when it allowed the State to introduce the evidence of his 1992 sexual assault conviction involving an adult. Decisions affecting whether to admit or exclude evidence are left to the discretion of the trial court. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). We will uphold a trial court's evidentiary decision if the court "exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." State v. Wollman, 86 Wis. 2d 459, 464, 273 N.W.2d 225 (1979).

¶ 9. After considering WIS. STAT. § 904.04(2),³ the trial court ruled that the prior conviction would be admitted. The State and Meehan reached an agreement that the following stipulation could be read to the jury:

"The parties hereby stipulate that on January 22nd, 1992, at approximately three-thirty in the morning, the West Allis Police Department was dispatched to 8009 West Greenfield Avenue to investigate a report of a sexual assault.

"Upon arrival there, the police spoke to Francis Schmidt, a man age twenty-three, who reported he had awakened in his home at that location to discover a man in his room rubbing his penis through his clothing and that the man had fled and Schmidt then called the police.

"Schmidt stated that he has never seen that man before in his life.

"The investigating officer reported that he found the defendant lying down in the front seat of a car at the scene and it appeared to the officer that the defendant was hiding. The defendant was positively identified by Schmidt as the man who sexually assaulted him.

"The defendant was questioned about the above incident and he admitted that on the above date he did enter the residence at that location and observed the occupant there asleep and went into the room and rubbed the guy's penis. The guy told him to leave so he did.

"The defendant further stated that he has a bad cocaine and alcohol abuse problem and had had a lot to drink and had used cocaine on the night in question. The defendant further stated that he has been depressed for much of his life and he knows that he really needs help and doesn't know why he did this particular act.

"On May 8th, 1992, the defendant was convicted of second degree sexual assault for this offense."

[3]

¶ 10. In reviewing whether the trial court erroneously exercised its discretion in allowing in the other acts evidence, we apply a three-step test. Hammer, 2000 WI 92 at ¶ 22. The first step is whether the other acts evidence is offered for an accepted purpose under WIS. STAT. § 904.04(2), such as motive, intent, plan, etc. Id. The second step is whether the other acts evidence is relevant under WIS. STAT. § 904.01. Id. The third step is whether the probative value is "substantially outweighed by the danger of unfair prejudice." Id. In addition, we examine each of the three steps under the "greater latitude rule," which permits "the more liberal admission of other crimes evidence in sex crime cases in which the victim is a child." State v. Davidson, 2000 WI 91, ¶ 51, 236 Wis. 2d 537, 613 N.W.2d 606. ¶ 11. Here, the State argued that the prior conviction was relevant to Meehan's intent and motive to obtain non-consensual sexual arousal or gratification from young boys and men as part of his common plan or scheme to do so. Meehan contends that the other act was not relevant for that or any other acceptable purpose. He directs us to case law emphasizing the difference between assaults on adults as compared to preying upon children. See, e.g., State v. Sonnenberg, 117 Wis. 2d 159, 173, 344 N.W.2d 95 (1984) ("It would appear to be a dangerous analogy to conclude that, because a person sought to buy sexual favors from a twenty-five-year-old woman that there is, therefore, a greater likelihood that that person had the intent, motive, or plan of assaulting a fourteen-year-old child."). He also suggests that the other factual distinctions between the two cases support exclusion of the other acts evidence. He points out that the 1992 conviction case occurred in the middle of the night, in a private residence, while the victim was sleeping. Here, the instant act occurred during the day, in a public place, while the victim was in a steam room. These differences, Meehan contends, demonstrate the lack of time, place and circumstance, which are considerations in admitting this type of evidence. See State v. Hall, 103 Wis. 2d 125, 142-43, 307 N.W.2d 289 (1981).

[4]

¶ 12. We originally agreed with Meehan's argument when this case first came before us for review. Our supreme court, however, vacated that decision and directed us to reconsider this case in light of Hammer. In Hammer, our supreme court affirmed the admission of other acts evidence in a sexual assault case, ruling that it could be admitted for proving identity, mode or method of operation, motive, and absence of mistake. Hammer, 2000 WI 92 at ¶ ¶ 24-26. The trial court so ruled on the basis that in "sex crime case[s], the admissibility of other acts evidence must be viewed in light of the greater latitude rule." Id. at ¶ 23. The court found that the other acts evidence and the crime charged in Hammer were similar because each involved touching victims while they were sleeping, all the victims were males around the age of majority, and all occurred during overnight...