Using Other Acts Evidence in Sex Crime Prosecution
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by Rex Anderegg
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New evidentiary rules have spawned as much litigation as that which
allows the
prosecution to use, under certain circumstances, other bad acts of a
criminal
defendant. The use of such evidence has generated controversy not
because it
has no appreciable probative value, but instead, as Wigmore once mused,
because "it
has too much."
1 Indeed, in
the state's quest to erase
reasonable doubt from the jurors' minds, proof the defendant committed
similar
acts on previous occasions is singularly powerful, and prosecutors have
been
using such proof, when available, for more than a century. There is a
particularly
strong tradition of allowing other acts evidence when a defendant is
charged
with sexual misconduct with children. Over time, this tradition has
solidified
to form the so-called "greater latitude rule," which holds that a
greater latitude
of proof of like occurrences is allowed in sex crimes, particularly
those involving
children or incest.
The greater latitude rule has always had its share of detractors. In
a 1987 dissenting opinion, Chief Justice Heffernan lamented that
whenever employed, "the 'greater latitude' concept is merely stated as a
conclusion fitting the predilection of the court."2 More recently, the court of appeals
complained that supreme court decisions appeared to sanction the use of
other acts to prove the defendant acted in conformity therewith, noting
that such an inference is precisely the reason section 904.04(2)
of the Wisconsin Statutes generally excludes such evidence.3 Accordingly, when the Wisconsin Supreme Court
picked up the gauntlet during its last term by taking up four cases
presenting various aspects of the other acts rule, all involving sex
crimes against children, there was speculation the court might trim back
a few degrees of latitude from the rule, or perhaps withdraw it
entirely.
It can now be said such speculation was not well-founded. Not only
has the greater latitude rule emerged from the most recent supreme court
term fully intact, it is more robust than ever. In a society where the
sexual misuse of children has become a growing (or at least more
visible) problem, a thin majority of the court would apparently disagree
with Wigmore that there is such a thing as proving "too much" in cases
of this nature.
Origins of the Other Acts Rule in Wisconsin
The other acts rule first appeared in Wisconsin law in 1893 and
fittingly, the case involved sexual misconduct with a child. In
Proper v. State,4 Mr. Proper was
convicted of sexually assaulting a 10-year-old girl. At trial, key
testimony was provided by another 10-year-old who claimed the defendant
also had intercourse with her. When Proper appealed, arguing it was
error to allow the second girl to testify, the Wisconsin Supreme Court
acknowledged the question was a difficult one given the general rule
prohibiting the use of a criminal defendant's prior offenses.
Nonetheless, the high court hastened to craft an exception to the rule,
perhaps spurred on by the shocking nature of the case. Ruling that "[a]
greater latitude of proof as to other like occurrences is allowed in
cases of sexual crimes," the court held the other assault admissible not
only to corroborate the victim's testimony, but also to show the quo
animo of the accused.
The rule announced by Proper reappeared sporadically in Wisconsin
jurisprudence over the next 80 years, though it oftentimes was limited
to evidence of prior assaults upon the same person.5 By 1967, however, the year the Wisconsin
Supreme Court issued its landmark decision in Whitty v.
State,6 the rule had grown to encompass
sexual acts perpetrated upon third parties as well. Thomas Whitty had
taken indecent liberties with a 10-year-old after luring her to a
basement with the ruse that he needed help finding a little black and
white rabbit. When Whitty made "identity" an issue at trial by mounting
an alibi defense, the phantom black and white rabbit reappeared when
another child testified that Whitty also had enlisted her assistance to
search for the rabbit before taking indecent liberties with her.
Following conviction, Whitty appealed, contending the second girl's
testimony was so prejudicial it deprived him of a fair trial and
violated the Due Process Clause of the Fourteenth Amendment.
The Wisconsin Supreme Court was mindful of the historic concerns
underlying the character rule excluding prior crimes evidence: 1) an
over-strong tendency to believe a defendant guilty merely because he is
a person likely to commit such acts; 2) a tendency to condemn not
because of guilt on the present charge but because a defendant escaped
punishment from other offenses; 3) the injustice of attacking one not
prepared to demonstrate the attacking evidence is fabricated; and 4) the
confusion of issues the prior acts evidence could cause. The court
noted, however, that despite these concerns, it had permitted such
evidence to show intent, an element of the crime, identity, or a system
of activity. The court further observed that such evidence need not be
in the form of a conviction. Then, reasoning the second girl's testimony
did not create undue prejudice, confuse the issues, mislead the jury, or
unfairly surprise the defendant, the court held the evidence admissible
to prove identity.
Despite allowing the evidence on the facts before it, Whitty
cautioned that other acts should be used sparingly, only when reasonably
necessary, and that such evidence normally carries a calculated risk.7 The court then ruled that when confronted
with such evidence, trial courts should balance its relevance against
the danger of prejudice to ensure a procedurally and evidentially fair
trial without unfairly limiting the state's ability to prosecute.
Interestingly, while greatly standardizing the application of the other
acts rule, Whitty neither relied upon nor even mentioned the greater
latitude rule.
In 1973, the Wisconsin Supreme Court largely codified its ruling in
Whitty by adopting section 904.04(2)
of the Wisconsin Statutes:
"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."
Once again, the court omitted any reference to the greater latitude
rule when crafting the new statutory language. However, any illusion
that the greater latitude rule had fallen by the wayside soon vanished
when that same year, the supreme court's opening salvo in
Hendrickson v. State8 echoed a
familiar refrain: "[a] greater latitude of proof as to other like
occurrences is allowed in cases of sexual crimes."9 In a prosecution for incest, Hendrickson
approved the use of prior acts of incest to demonstrate both "plan" and
"motive."
Whittling Away at Whitty
The next quarter century witnessed a great proliferation in the use
of other acts in criminal litigation, perhaps not coincidentally because
of the concomitant increase in prosecutions for sex crimes against
children. As one decision after another broadened the landscape upon
which other acts were deemed permissible, the limited set of
circumstances in which Whitty suggested other acts would be permitted
methodically expanded and began to dramatically encroach upon the
general rule excluding their use. While too numerous to allow for a
comprehensive examination, three of these decisions are especially
illustrative of this trend.
In 1987, the Wisconsin Supreme Court agreed to examine the propriety
of other acts evidence used to convict a defendant for sexually
assaulting his 14-year-old niece while she babysat his children. In
State v. Friedrich,10 the state
was allowed to present testimony from two women, both of whom claimed
the defendant had inappropriate sexual contact with them years earlier
when they were 10 and 13 years old, respectively. Forcefully reaffirming
the greater latitude rule, Friedrich held the evidence admissible to
show the defendant's scheme or plan and reasoned that such evidence is
needed to overcome the average juror's reluctance to imagine a person
motivated by a sexual appetite for children. Following Friedrich, it
seemed that in any case presenting the sexual assault of a child, the
prosecution would be free to use any prior sex acts with children to
show the defendant's "plan" to sexually gratify himself with
children.
A second milestone in the march toward liberalizing the use of other
acts in sex cases was reached in 1992 following Gary Plymesser's
conviction for fondling his friend's 13-year-old daughter. In State
v. Plymesser,11 the state introduced
testimony from two women who claimed that nearly 13 years earlier, when
both were under age 12, Plymesser had engaged in sexual intercourse with
them. The state also was allowed to present testimony from a
psychiatrist who testified that during a 1976 session, Plymesser
confessed a long history of sexual involvement with young girls.
Plymesser vigorously argued these other acts should not be allowed to
show motive because his defense was not that an innocuous motive
underlaid his sexual contact with the complainant, but instead, that
there had been no sexual contact at all. Therefore, Plymesser reasoned,
"motive" was not an issue in dispute at trial.
The Wisconsin Supreme Court rejected Plymesser's argument,
characterizing as "too narrow" his contention that a proper use of other
acts to prove motive would be, for example, evidence that a defendant
committed a robbery to prove his motive for subsequently shooting a
policeman. Most significantly, Plymesser ruled that because the state
must prove all the elements of a crime beyond a reasonable doubt, even
if the defendant does not dispute them all, evidence relevant to motive
is admissible, even if the defendant does not dispute motive.
Following Plymesser, it appeared that in all sexual assault
prosecutions where motive or intent constituted an element of the crime,
the prosecution had been granted carte blanche to introduce any other
acts of a similar nature. Indeed, in an article that offers an excellent
national perspective of the etiology and evolution of the greater
latitude rule, Plymesser is cited as exemplary of how courts often use
"motive" to justify admission of other sex acts when the real purpose is
to show the defendant's lustful disposition and therefore, his
proclivity to commit such acts.12
The following year, the Wisconsin Supreme Court decided State v.
Speer.13 While the holding in Speer
was rather unremarkable - that a prior burglary was properly admitted to
show "identity" in the prosecution for a subsequent burglary - its
discussion of balancing prejudice and probativeness sent out shock
waves. In a declaration seemingly contrary to Whitty's statement that
other acts evidence carries a calculated risk and should be used
sparingly, Speer announced there existed no presumption against
admission of other acts evidence. Then, by ruling that other acts
evidence is inadmissible only if its prejudicial effect substantially
outweighs its probative value, Speer further established that if the
balancing process is a close call, the evidence must be admitted.
Finally, by declaring the balancing act squarely within the trial
court's exercise of discretion under well-established rules of evidence,
Speer placed this facet of a lower court's ruling virtually beyond
appellate review.
By 1994, Whitty's pronouncement that other acts evidence should be
used only sparingly seemed to ring hollow, especially in sexual assault
cases. In addition to Friedrich, Plymesser, and Speer, other decisions
further relaxed the rule by pointing out that section 904.04(2)
did not set forth an exhaustive list of permissible purposes;14 that in gauging the prejudicial effect of
other acts, it must be remembered such evidence will always be
prejudicial;15 and that a well-formulated
jury instruction will largely cure any prejudice to the defendant.16 Eventually, the number of decisions
diluting the general rule excluding such evidence reached something of a
critical mass and the court of appeals began to express dissatisfaction
with how the rule had evolved.
In 1994, for example, one appellate court judge observed that courts
routinely had been using such evidence "while mouthing Whitty's
principles" and suggested his brethren cease writing appellate opinions
that pretended to honor Whitty while actually offending it.17 In 1995, another appellate court opined
that post-Whitty case law actually had produced a new rule that flouted
section 904.04(2)
by sanctioning the routine use of other acts evidence for the very
purpose the statute excludes it - to prove a person's character to show
the person acted in conformity therewith.
Then in 1996, in perhaps the boldest of these cases, another
appellate court ruled that a defendant, who insists an alleged sex act
never occurred but nonetheless offers to stipulate that if it had
occurred, it would have been intentional and for the purpose of sexual
gratification, can shift the calculus of relevance, probativeness, and
prejudice in favor of exclusion. This approach, described in State
v. Wallerman,18 came to be known as a
Wallerman stipulation.
In 1998 the Wisconsin Supreme Court finally responded to the repeated
requests to resurrect the rigor of Whitty. In State v.
Sullivan,19 the court found a case
that exemplified how far afield the prevailing view on other acts
evidence had strayed from its original intent. Kevin Sullivan was
charged with false imprisonment, battery, disorderly conduct, and
intimidation of a victim, all arising out of a single domestic dispute
with his girlfriend. At trial, the state was allowed to introduce
evidence of an incident more than two years previous in which an
intoxicated Sullivan verbally abused and threatened another woman and
refused to leave her home. This other act did not really fit within any
of the statutory exceptions. Nonetheless, by 1997 the other acts rule
had become so antithetical to the principles enunciated by Whitty that
the prosecutor seemed to argue, the trial court seemed to agree, and the
court of appeals felt constrained to affirm, that the prior acts could
be admitted to prove Sullivan's propensity to commit the crimes with
which he was charged.
In a unanimous opinion, Sullivan reversed the ruling and reaffirmed
the three-step analytical framework at the core of determining
admissibility of other acts evidence:
1) Is the other acts evidence offered for an acceptable purpose under
section 904.04(2)?
2) Is the other acts evidence relevant? and
3) Is the probative value of the other acts evidence substantially
outweighed by the danger of unfair prejudice?20
Then, to correct the superficial analysis under which prosecutorial
requests to use "other acts" evidence seemed little more than a fait
accompli, the court redirected prosecutors and trial courts to use great
care when examining and explaining how the proposed other acts fit
within this framework. As if to accentuate the dangers inherent in such
evidence, Sullivan further expressed considerably less faith in the
ability of a curative instruction to undo the prejudice to the
defendant.
Over the following two years, the impact of Sullivan on sexual
assault cases remained something of a mystery. One supreme court
decision, State v. Gray,21
revealed that in a proper case, other acts evidence would continue to
play a vital prosecutorial role. Nevertheless, like Sullivan, Gray did
not involve a prosecution for sexual assault. Then, in State v.
Scheidell,22 which did involve a
prosecution for sexual assault, the supreme court ruled that the
Sullivan test also controls when it is the defendant who seeks admission
of other acts evidence. Still left unresolved, however, was the nagging
question of what effect Sullivan would have, if any, on the
prosecutorial use of other acts in crimes of sexual assault.
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Rex R. Anderegg, U.W. 1989, is a partner in Anderegg &
Mutschler LLP, Milwaukee, practicing in appellate practice and
procedure, criminal and traffic defense, and family law. He briefed and
argued the Hammer case before the Wisconsin Supreme Court. The author
thanks legal assistant Julie E. Guvernator, whose hard work and
commitment made this article possible. |
Latitude is Everything
It was against this
backdrop that during the 1999-2000 term, the Wisconsin
Supreme Court examined four cases which collectively promised to shed
great
light on this question. Unfortunately, one of these cases, State
v. Strong,23 failed to deliver when
Justice Bradley did not participate and the remainder of the court was
equally divided over whether the court of appeals should be affirmed or
reversed. Nevertheless, the remaining three cases provided a more than
adequate opportunity to determine what course the court would chart
regarding the use of other acts in sexual assault cases. One of these
cases in particular, State v. Davidson,24 constituted an excellent litmus test for
how the court would view the greater latitude rule post-Sullivan because
it presented a factual scenario typical of the court's past
decisions.
Dale Davidson was charged with sexually assaulting his niece in a
camping trailer while his wife and children slept in close proximity. At
trial, the state was permitted to introduce evidence that 10 years
earlier, Davidson had been convicted of improperly touching a 6-year-old
girl while she stood at a drinking fountain in a church basement during
church services. In a published opinion, the court of appeals
reversed.25 Reasoning the greater latitude
rule was applicable only to the first prong of the Sullivan three-step
test, the appellate court concluded that under the relevance inquiry of
step two, the dissimilarities between the two incidents outweighed the
similarities and therefore, the prior act was not probative of
Davidson's motive, opportunity, or plan.
The Wisconsin Supreme Court granted the state's petition for review.
When the heavily divided court issued its opinion reversing the
appellate court, it immediately became apparent that Sullivan would have
no meaningful impact on the use of other acts in sexual assault cases
and that the greater latitude rule would continue to be the ultimate
prosecutorial trump card. Indeed, the most far-reaching aspect of the
opinion actually expanded the scope of the greater latitude concept by
ruling it applicable to all three prongs of the Sullivan test. On the
facts before it, application of the rule to the second step of the
analysis made all the difference, as it allowed the court to find
sufficient similarities between the camping and church incidents to
conclude the prior act was very relevant. Davidson demonstrates the raw
power of the greater latitude rule because, as the dissent observed,
many of the "similarities" cited by the majority (victim touched between
legs, victim vulnerable) would likely be found in any sexual assault
upon a child.
The next of these decisions, State v. Hammer,26 is instructive because it presents the use
of a prior sex act to establish identity, a purpose under section 904.04(2)
that historically has demanded a greater convergence of similarity
between past and present acts. Edward Hammer was convicted of having
inappropriate sexual contact with three teenage boys who were spending
the night in his parents' basement. Hammer was alleged to have touched
the buttocks area of one of the boys and the pubic area of another.
Because each of these boys was sleeping and did not see his assailant,
identity was an issue at trial. For this reason, the state was permitted
to introduce testimony from an individual who claimed that six years
earlier, he awoke in the middle of the night to find Hammer (a minor at
the time) masturbating him.
The court of appeals certified the case to the Wisconsin Supreme
Court, which accepted review. Hammer argued that the prior act he was
alleged to have committed was not sufficiently similar to the present
charges to meet the higher threshold for proving identity. Arguing that
a greater degree of similarity between the prior act and the present
charge is required when the purpose for using the prior act is to prove
identity,27 Hammer highlighted numerous
dissimilarities between the two incidents. Most remarkably, Hammer noted
that while he was facing charges for an adult-upon-child offense, the
prior act involved a child-upon-adult offense. The supreme court was
unmoved, however, and without even acknowledging a higher threshold of
similarity for cases involving identity, invoked the greater latitude
rule and again relied upon similarities, many of which would be true of
all such cases (for example, defendant knew victim, assault occurred in
a home, victims were of the same gender). Thus, Hammer suggests that the
greater latitude rule may neutralize the need for an enhanced level of
similarity when the proposed purpose for the other acts is to prove
identity.
Hammer also sheds light on how the courts will handle a defendant's
request to introduce other acts evidence to establish a defense. Through
his own testimony and that of a third party, Hammer sought to show that
on the very day of the incident, two of the teenage boys were seen
placing their private parts directly adjacent to the mouth of the third
boy, who was taking a nap. This evidence, Hammer argued, would tend to
prove the identity of the perpetrator (that is, that the two sleeping
complainants had been the objects of adolescent horseplay). In rejecting
the other acts evidence offered by Hammer, the court answered the
question of whether section 904.04(2)
(the other acts rule) or section 972.11(2)(b)
(the rape shield statute) controls when a defendant seeks to introduce
prior acts of a complainant. Although Scheidell had ruled the same
three-step test in Sullivan applicable, Scheidell did not involve prior
acts of the complainant while Hammer presented such a scenario.
Recognizing this distinction, Hammer proposed an analytical approach
that constituted an amalgam of the three-step test set forth in Sullivan
and the five-step test established in State v. Herndon28 for balancing a defendant's interest in
presenting a defense and the state's interest in protecting complainants
from embarrassing inquiry into their sexual past. Without elaboration,
the court implicitly rejected that approach by engaging in a strict
Herndon analysis.
In the final decision, State v. Derango,29 Gabriel Derango was charged with child
enticement and attempted sexual exploitation after telephoning a
15-year-old and offering her $300 to perform a striptease and other
sexual acts on video. At trial, the state was permitted to introduce
videotapes found when the police interviewed Derango at his home. The
videotapes were amateur productions depicting girls who appeared to be
in their middle to late teens performing stripteases and other sexual
acts. On appeal, Derango agreed intent and motive were permissible
purposes for admitting the videotapes, but maintained they were not
relevant or sufficiently probative because the age of the girls on the
videotapes could not be established. However, because the videotapes
depicted some girls who pretended to be minors, the supreme court
concluded they were not only relevant but highly probative. After all,
the court reasoned, the videotapes depicted exactly what Derango
propositioned the complainant to do.
The most intriguing aspect of Derango is that it never invoked the
greater latitude rule. One explanation for this peculiarity may be that
since Derango did admit talking to the victim about sexual favors (he
claimed she propositioned him), his "motive" when talking to her was a
bona fide purpose for using the evidence, and the greater latitude rule
was not needed to justify admission of the prior acts. This view would
suggest the greater latitude rule is little more than a catch phrase to
be uttered when the prior act otherwise would not survive the Sullivan
test. Another explanation may be that because Derango did not involve a
sex crime per se, but instead, mere enticement for that purpose, it fell
outside the parameters of the greater latitude rule. The Wisconsin
Supreme Court has never addressed this issue, and the three published
court of appeals decisions that have examined the use of other acts in
prosecutions for child enticement reveal very little. While one decision
makes reference to the greater latitude rule in the most conclusory of
fashions,30 another does not mention it at
all,31while the third applies it, but only
to a companion sexual assault charge.32
Whatever the reason, in future cases of this nature, prosecutors may
wish to argue that Derango omitted reference to the rule simply because
it was not necessary to the holding, while defense attorneys may contend
the rule is not applicable to such charges.
Dealing With Other Acts in the 21st Century
In the wake of the supreme court's most recent term, it is apparent
that juries across the state will continue to have access to the
criminal history of sex offenders, despite the character evidence rule
that bans convicting a defendant because of his or her predisposition to
commit crimes. What makes this situation so interesting is that there is
nothing particularly unique about sex offenses that requires a special
rule relaxing the admissibility of other acts. Indeed, the only
justification ever advanced for special treatment - that prior acts are
needed to overcome a juror's reluctance to believe a defendant could
sexually desire a child - no longer rings true in today's world. Thus,
the greater latitude rule, rather than being rooted in any independent
legal principle, merely reflects the public's moral outrage at sex
offenses, particularly those committed against children.
While the philosophical debate over the true raison d'être
behind the greater latitude rule will undoubtedly wage on for years to
come, the criminal bar must deal with the practical impact of Davidson,
Hammer, and Derango in the present. There is little question the status
quo favors the prosecution, which now has a trio of new decisions to
rebut the defense bar's efforts to characterize Sullivan as scaling back
the expansion of other acts evidence. Particularly helpful to
prosecutors will be Davidson's extension of the greater latitude rule to
all three steps of the Sullivan test and Hammer's tacit nullification of
a more stringent standard for proof in cases of identity.
For their part, defense attorneys, now more than ever, must set their
sights on the unreliability of the other acts evidence. If defense
counsel can establish that the other act is too remote in time, too
dissimilar to the crime charged, or too short of the quantum of proof
necessary to establish it actually occurred, a trial court may be
persuaded to exclude the prior act as more prejudicial than probative.
It also would behoove defense counsel to seriously consider a Wallerman
stipulation when the defendant claims the act did not occur,
particularly since the court of appeals has held that failing to do so
constitutes ineffective assistance of counsel.33 When these efforts fail to keep the other
acts out of the record, defense attorneys should ensure the cautionary
instruction is limited to the specific purpose for which the other act
is introduced rather than the laundry list of purposes set forth in
section 904.04(2).
This is the landscape upon which other acts litigation will unfold as
we head into the next century. The geography bears little resemblance to
that which existed at the time of Proper or even Whitty but then again,
so too has societal awareness of sexual offenses against children
undergone a radical change. Davidson, Hammer, and Derango reaffirm the
Wisconsin Supreme Court's commitment to allowing this type of evidence
to play a role in prosecutions for sexual offenses. Although Hammer and
Scheidell illustrate the court's willingness to exclude prior sexual
acts offered by the defendant, only once in the post-Whitty era has it
excluded prior sexual acts offered by the state.34 Unless and until the high court reexamines
its historical approach to this issue (a step the dissenters in Davidson
were prepared to take35), the presentation
of prior sex acts will continue to be a tour de force during the
prosecution of present-day sex offenses.
Endnotes
1 1 Wigmore,
Evidence (3d ed.), sec. 194, p. 646.
2 State v.
Friedrich, 135 Wis. 2d 1, 38, 398 N.W.2d 763 (1987).
3 State v. Tabor,
191 Wis. 2d 482, 498, 529 N.W.2d 915 (Ct. App. 1995) (Nettesheim, J.,
concurring in part, dissenting in part).
4 Proper v. State,
85 Wis. 615, 55 N.W. 1035 (1893).
5 McAllister v.
State, 112 Wis. 496, 499, 88 N.W. 212 (1901).
6 Whitty v. State,
34 Wis. 2d 278, 149 N.W.2d 557 (1967).
7 Id. at 297.
8 Hendrickson v.
State, 61 Wis. 2d 275, 212 N.W.2d 481 (1973).
9 Id. at 277.
10 State v.
Friedrich, 135 Wis. 2d 1, 398 N.W.2d 763 (1987).
11 State v.
Plymesser, 172 Wis. 2d 583, 493 N.W.2d 367 (1992).
12 Thomas J. Reed, 21 Am.
J. Crim. L. 127, Reading Gaol Revisited: Admission of Un-charged
Misconduct Evidence in Sex Offender Cases (1993).
13 State v. Speer,
176 Wis. 2d 1101, 501 N.W.2d 429 (1993).
14 State v.
Shillcutt, 116 Wis. 2d 227, 236, 341 N.W.2d 716 (Ct. App. 1983),
aff'd, 119 Wis. 2d 788, 350 N.W.2d 686 (1984).
15 State v.
Murphy, 188 Wis. 2d 508, 521, 524 N.W.2d 924 (Ct. App. 1994).
16 State v. Mink,
146 Wis. 2d 1, 17, 429 N.W.2d 99 (Ct. App. 1988); State v. Fishnick, 127
Wis. 2d 247, 262, 378 N.W.2d 272 (1985).
17 State v.
Johnson, 184 Wis. 2d 324, 341, 516 N.W.2d 463 (Ct. App. 1994).
18 State v. Wallerman, 203 Wis.
2d 158, 552 N.W.2d 128 (Ct. App. 1996).
19 State v. Sullivan, 216 Wis. 2d
768, 576 N.W.2d 30 (1998).
20 Id. at
772-73.
21 State v. Gray,225 Wis. 2d 39,
590 N.W.2d 918 (1999).
22 State v. Scheidell, 227 Wis. 2d
285, 595 N.W.2d 661 (1999).
23 State v. Strong, 235 Wis. 2d 379,
611 N.W.2d 457, 2000 WI 50.
24 State v. Davidson, ___ Wis. 2d ___,
613 N.W.2d 606, 2000 WI 91.
25 State v. Davidson, 222
Wis. 2d 233, 589 N.W.2d 38 (Ct. App. 1998).
26 State v. Hammer, ___ Wis. 2d ___,
613 N.W.2d 629, 2000 WI 92.
27 See, e.g., State v. Anderson, 230 Wis.
2d 121, 131 n.6, 600 N.W.2d 913 (Ct. App. 1999).
28 State v.
Herndon, 145 Wis. 2d 91, 426 N.W.2d 347 (Ct. App. 1988).
29 State v. Derango, ___ Wis. 2d ___, 613
N.W.2d 833, 2000 WI 89.
30 State v. Kourtidias, 206 Wis. 2d
574, 557 N.W.2d 858 (Ct. App. 1996).
31 State v. Derango, 229 Wis.
2d 1, 599 N.W.2d 27 (Ct. App. 1999).
32 State v. Parr,
182 Wis. 2d 349, 513 N.W.2d 647 (Ct. App. 1994).
33 State v. DeKeyser, 221 Wis.
2d 435, 451, 585 N.W.2d 668 (Ct. App. 1998).
34 See State v.
Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982).
35 Davidson, 2000 WI at 99.
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