COURT OF APPEALS
DATED AND FILED
January 11, 2011
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
Jonathan A. Meenen,
from a judgment of the circuit court for
¶2 Kerri F. reported on June 14, 2008 that her five-year-old daughter Hannah F. had been sexually abused. Shortly thereafter, a specially-trained social worker interviewed Hannah. During the interview, Hannah explained she was home sitting on the couch watching television with Meenen when he “made” her lick his “private.” Hannah did not indicate how he “made” her do so. She stated she licked it with her tongue on his skin and described it as round, pointing, and coming out of a hole in his pants. Hannah said her mother was shopping, but her brothers and sister were home at the time. A video recording of the interview was played at trial.
¶3 At trial, Hannah repeated her allegation. On cross-examination, Hannah admitted she wanted to go shopping with her mother that day and got really mad when told she could not. She testified that while her mother was gone everyone was watching a movie in the living room and that she was never alone with Meenen while watching the movie. However, she also testified she was alone with Meenen in the middle of the movie while the other kids went next door to her aunt’s house, and that was when she licked his penis. Hannah was unable to articulate how Meenen “made” her lick his penis. When her mother returned home, Hannah told her never to go shopping without her again.
¶4 Meenen also testified at trial. He stated he was twenty years old when he moved in with his cousin, Kerri, on approximately June 9, 2008, while he looked for a better job. He testified that on June 14 when Kerri indicated she was going shopping without Hannah, Hannah became very upset, stomped about the house, and told Kerri she hated her. While Kerri was away, the kids watched a movie in the living room. Meenen testified there was never a time when all the children except Hannah left the room. However, he stated that during the movie he left to go to the bathroom. He closed the door, but Hannah came in saying she needed to use the bathroom. Meenen stated she might have seen his groin area at that time. Meenen testified he was never alone with Hannah in the living room while Kerri was away, never intentionally showed his penis to Hannah, and never asked or forced her to lick it.
¶5 Based on a pretrial ruling that other acts evidence was
admissible, the parties entered into a stipulation. Accordingly, the court informed the jury: “On October 21, 2003, Jonathan A. Meenen, then
age [fifteen], was found delinquent in
¶6 The jury found Meenen guilty. He now appeals, arguing the circuit court erroneously admitted evidence of the prior child sexual assault.
¶7 The admissibility of other acts evidence is governed by Wis. Stat. § 904.04(2), which provides:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person 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.
When determining the
admissibility of proffered other acts evidence, a circuit court must address
three questions: (1) whether the other
acts evidence is offered for an acceptable purpose under Wis. Stat. § 904.04(2); (2) whether
the other acts evidence is relevant; and (3) whether the probative value of the
evidence is substantially outweighed by the danger of unfair prejudice,
confusion, or delay. State v.
Davidson, 2000 WI 91, ¶35, 236
¶8 In child sexual assault cases, the entire three-step Sullivan
analysis is subject to the greater latitude rule.
¶9 A circuit court’s admission of other acts evidence is reviewed
for the erroneous exercise of discretion. State
v. Hunt, 2003 WI 81, ¶34, 263
¶10 Here, the State concedes that the circuit court failed to adequately articulate its reasoning. Therefore, we will independently examine the record and determine whether it reasonably supports admission of the evidence.
¶11 Under the first prong of the Sullivan analysis, the State argues the other acts evidence was admissible for four acceptable purposes:
To corroborate [Hannah]’s testimony and to rebut Meenen’s defense that [she] lied because she was angry at her mother for leaving her home ... instead of taking her shopping.
To establish the absence of mistake or accident and to rebut Meenen’s defense that [Hannah] walked in on him in the bathroom and may have accidentally seen his penis.
To establish Meenen’s motive.
To rebut Meenen’s defense that he was never alone with [Hannah].
We agree the evidence was properly offered under Wis. Stat. § 904.04(2) to demonstrate Meenen’s motive. The motive was that he was sexually attracted to, and desired sexual gratification from, prepubescent girls.
¶12 Next, under the second prong of the Sullivan analysis, we
conclude the other acts evidence was relevant.
Other acts evidence is relevant if two criteria are satisfied. First, the evidence must relate to a fact or
proposition that is of consequence to the determination of the action. Sullivan, 216
¶13 Meenen’s motive to seek oral sex from Hannah is of consequence to the determination of the action. Sexual attraction to, and the desire for sexual gratification from, a five-year-old girl is abnormal. Thus, jurors might be unwilling to believe that such an attraction and desire exist in the absence of any evidence to that effect. Indeed, our supreme court has recognized:
To a person of normal, social and moral sensibility, the idea of the sexual exploitation of the young is so repulsive that it’s almost impossible to believe that none but the most depraved and degenerate would commit such an act. The average juror could well find it incomprehensible that one who stands before the court on trial could commit such an act.
State v. Friedrich, 135
¶14 We reject Meenen’s argument that motive was an improper reason
for admitting the other acts evidence because sexual gratification was not an
element of the crime. Motive is
certainly relevant when it is an element of the charged crime. See Friedrich,
¶15 The second component of relevance, probative value, is also
satisfied here. That is, the other acts
evidence tends to make it more likely that Meenen had motive to sexually
assault Hannah. Probative value is typically
demonstrated by a closeness of time and circumstances. See Davidson, 236
¶16 Finally, under the third prong of the Sullivan analysis, we conclude the probative value of the other acts evidence was not substantially outweighed by the danger of unfair prejudice, confusion, or delay. While the State had the burden to demonstrate the first two prongs, the burden switches to Meenen on the final prong. See State v. Payano, 2009 WI 86, ¶¶63, 68 n.14, 80, 320 Wis. 2d 348, 768 N.W.2d 832. Because Meenen argues only that unfair prejudice would result, we do not address the other factors.
¶17 Unfair prejudice can result if the proffered evidence “has a
tendency to influence the outcome by improper means or if it appeals to the jury’s
sympathies, arouses its sense of horror, provokes its instinct to punish or
otherwise causes a jury to base its decision on something other than the
established propositions in the case.” Sullivan,
¶18 Meenen also argues the
danger of unfair prejudice was increased because credibility was the primary
issue in the case, observing that there were no witnesses or physical
evidence. It is precisely these factors,
however, that highlight both the evidence’s probative value and the propriety
of applying the greater latitude rule.
Our supreme court has recognized that “[b]ecause of immaturity, fear and
embarrassment, sexually abused children find it difficult to testify” and that “the
defense may raise the possibility of fantasy, unreliability, or vindictiveness.” Friedrich, 135
¶19 Furthermore, the potential for unfair prejudice was reduced by
the use of both a stipulation and a limiting instruction to the jury informing
them of the acceptable and unacceptable uses of the other acts evidence in
their deliberations. See Davidson,
¶20 Therefore, under the three-step Sullivan analysis, and consistent with the greater latitude rule, the trial court’s decision to admit evidence of Meenen’s prior child sexual assault adjudication did not constitute an erroneous exercise of discretion.
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
other acts evidence need only be admissible for a single permissible purpose,
we need not address the State’s other rationales. See State v. Payano, 2009 WI 86, ¶63,