State v. Plymesser
| Decision Date | 23 December 1992 |
| Docket Number | No. 91-1403-CR,91-1403-CR |
| Citation | 493 N.W.2d 367,172 Wis.2d 583 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Gary L. PLYMESSER, Defendant-Appellant-Petitioner. d |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Glenn L. Cushing, Asst. State Public Defender.
For the plaintiff-respondent the cause was submitted on the brief of William C. Wolford, Asst. Atty. Gen. and James E. Doyle, Atty. Gen.
This case comes before the court on a petition for review by Gary L. Plymesser (the defendant) of an unpublished per curiam court of appeals decision, dated February 13, 1992, 167 Wis.2d 487, 482 N.W.2d 670 (1992) which affirmed a judgment of conviction for second-degree sexual assault of a child entered in the circuit court for Clark County, John G. Bartholomew, Reserve Circuit Judge. The defendant argues that the circuit court's decision to admit evidence concerning the defendant's prior conviction for sexual assault of a child constituted an erroneous exercise of discretion. 1 We disagree and affirm.
The state charged the defendant with one count of second-degree sexual assault of a child, contrary to secs. 948.01(5) and 948.02(2), Stats. The state alleged that in December of 1989, the defendant fondled the breasts and vagina of Kelly D., the 13-year-old daughter of friends of the defendant. The state also alleged that the defendant had Kelly touch his penis.
Before trial, the state filed a motion to admit "other acts" evidence. First, the state sought to introduce evidence concerning the defendant's 1977 conviction for first-degree sexual assault. The act that led to that conviction occurred in 1976 when the defendant put his mouth on the vaginal area of a friend's seven-year-old daughter. While investigating the 1976 act, a Sgt. Rue took the defendant's statement. In that statement, the defendant said he had been drinking with friends and, while drunk, he had sexually assaulted his friends' daughter. The defendant also admitted having assaulted up to twenty other young females, but only two since he had been out of prison. The defendant said that he had committed the other assaults on friends' children and that those other assaults occurred only when he had been drinking.
The second piece of "other acts" evidence the state sought to introduce was evidence concerning allegations that in 1969, the defendant had engaged in sexual intercourse with two females who were under the age of twelve. The state had filed complaints regarding those allegations, but the cases were dismissed because of "witness difficulties."
Finally, the state wanted to introduce statements the defendant made to a psychiatrist after the 1976 sexual assault. In its motion, the state quoted a portion of the psychiatrist's report:
[The defendant] described his sexual involvement with young girls as starting when he was a child which has continued as a source of gratification in his fantasy which he is ashamed of and knows is not right. The involvement with the young girl which occurred on November 26 occurred while he was under the influence of alcohol and he does not actually remember any of the events during that time. He believes what was told of him because it fits with his inner fantasies. He has become very cautious about drinking and has not had one drink since the episode on November 26.
A few months before trial, Judge Michael W. Brennan ruled on the state's motion. Judge Brennan decided to admit evidence of the 1977 conviction because, although he recognized the girls' ages in the two assaults differed, there was a similarity between the assault in 1976 and the assault on Kelly. Both times, the defendant had been drinking and had assaulted friends' daughters. Judge Brennan recognized an issue of whether the prior act was too remote. However, he considered that the defendant had stayed away from alcohol. The judge thought the evidence was "extremely relevant," although it was also "enormously prejudicial."
Judge Brennan decided to exclude evidence about the allegations of sexual intercourse with two young females in 1969 because those acts were too remote. The judge also decided to allow the state to introduce the statement made to the psychiatrist.
On the day of trial, Judge Bartholomew made new rulings on the evidence of the 1977 conviction and the statement made to the psychiatrist. Judge Bartholomew decided to allow the state to introduce evidence of the 1977 conviction for sexual assault. The judge said he would not, however, allow the state to introduce the statement the defendant had made to Sgt. Rue in detail because to do so would be highly prejudicial. The court decided to admit just enough of the statement to show a similarity between the 1976 assault and the assault on Kelly. Judge Bartholomew decided to screen Sgt. Rue's testimony outside the jury's presence to determine that testimony's content and then "to eliminate certain parts of it which ... the prejudicial effects would far outweigh the probative value...."
Judge Bartholomew also decided to exclude the entire statement the defendant made to the psychiatrist, in part because its "prejudicial effect would far outweigh its value."
After Judge Bartholomew's ruling, the state and the defendant stipulated to how much of the statement to Sgt. Rue regarding the 1976 sexual assault could come before the jury. They agreed that during the opening statement the state would say there was a prior conviction for sexual contact with a child under 12. They also agreed that the state could introduce limited evidence about the statement the defendant made to Sgt. Rue: the state could bring out that the defendant had been drinking; that there had been sexual contact with a child of a friend; and that the contact had been made for the purpose of sexual gratification.
During the trial, Kelly testified that the defendant had sexually assaulted her. Kelly said the defendant was a friend of her family and, on the night he assaulted her, he had been drinking. According to Kelly, the defendant was driving her to his home to decorate a Christmas tree when he pulled the car over, "French kissed" her three times, and touched her breasts and vaginal area. Kelly also said the defendant left the car to urinate and on his return made her touch his penis.
The defendant testified. He admitted that he had been drinking that night, that he drove Kelly to his home, and that he left the car to urinate. He denied any sexual contact with Kelly.
Before Sgt. Rue testified concerning the 1977 conviction, Judge Bartholomew screened his testimony outside the jury's presence. Sgt. Rue's testimony on direct examination follows:
Q Now what was the relationship, if any, between this seven year old girl and the defendant?
A [The defendant] was friends with the parents.
Q And during the course of this interview did you determine whether or not any drinking occurred while the sexual act took place?
A Yes.
Q And what was [the defendant's] response?
A He stated that he had been drinking a lot of beer.
Q Could you tell the jury, please, what type of a contact was involved?
A [The defendant] admitted to having put his mouth on the vagina of a seven year old girl.
Q Now as you interviewed him, did he initially and readily admit that he had done that?
A Not at first, no.
Q Did he ultimately admit it though?
A Yes, sir.
Sgt. Rue's testimony on cross-examination follows:
Q As I understand from the statement that you took from [the defendant], you asked this first and then you reduced it down to writing; is that correct?
A Yes, sir.
Q So originally, when you first asked him if he did it, apparently he said he didn't. About two questions later you asked him, 'Are you sure you didn't do it' And he said, 'I did it'.?
A That's correct.
Q And that was in 1976, I believe?
A Yes, sir.
Q About 13 years ago?
A Yeah.
That was the extent of Sgt. Rue's testimony. The court then received into evidence the judgment of conviction for the 1976 assault.
The court later instructed the jury:
[E]vidence has been received that the defendant, after drinking, had sexual contact with the vagina of a 7-year old daughter of a friend. Such evidence was admitted solely on the issues of motive, opportunity, and plan.
You may not consider such evidence to conclude that the defendant has a certain character or a certain character trait and to further conclude that he acted in conformity with that trait or character with respect to the offense charged in this case. If you find that the defendant did such act, you must not conclude that it is proof that he committed the offense with which he is now charged.
The jury found the defendant guilty.
The court of appeals affirmed the judgment of conviction, holding that the circuit court properly exercised its discretion by admitting evidence of the 1976 sexual assault to show motive and plan, although it expressed doubts concerning the merit of the controlling precedent on the use of the "plan" exception to admit evidence of prior sexual assaults. (The state did not attempt to support the circuit court's admission of the other acts to show "opportunity.")
Was admitting evidence regarding the 1977 conviction an erroneous exercise of discretion? The question is "not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." State v. Kuntz, 160 Wis.2d 722, 745, 467 N.W.2d 531 (1991). We will uphold the circuit court's decision if we can find a reasonable basis for it. Id. at 745-46, 467 N.W.2d 531.
To admit evidence of a prior crime, a court must determine that the evidence is admissible under both secs. 904.04(2) and 904.03, Stats. Id. at 746, 467 N.W.2d 531. Section...
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