Using Other Acts Evidence in Sex Crime Prosecution

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by Rex Anderegg

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.

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.

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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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