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.