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COURT OF APPEALS DECISION DATED AND RELEASED March 6, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0448-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TONY M. TURNER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Sauk County: PATRICK TAGGART, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront and Deininger, JJ.
PER
CURIAM. Tony M. Turner appeals from a judgment of conviction
and an order denying his postconviction motion. The issue is whether the circuit court erred in admitting
evidence of a prior conviction. We
affirm.
Turner was charged in
1991 with three counts of first-degree sexual assault of a child committed in
May 1991. A jury convicted Turner on
all counts. We affirmed the conviction
on count two, but reversed as to counts one and three. Turner now appeals from his conviction on
those counts after a new trial.
Turner argues that the
trial court erred by allowing the State to introduce evidence of his conviction
on count two. That count charged Turner
with sexual assault of S.T. Count one
also charged him with assault of S.T., while count three similarly charged him
with respect to M.M.G. Turner moved in
limine to exclude evidence of the prior conviction. The court denied the motion.
On appeal, Turner does
not argue that the evidence is barred by § 904.04(2), Stats., which limits admission of
evidence of other acts. He argues only
that the evidence should have been excluded under § 904.03, Stats., because its probative value is
substantially outweighed by the danger of unfair prejudice. Specifically, he argues that because the
jury in the first trial would not have been able to consider its decision to
convict on one count when considering other counts, it is unfair to allow the
jury to do so on retrial of counts one and three.
Turner is correct that
the jury in his first trial could not have used guilt on one count to infer
guilt on other counts. See Wis J I—Criminal 484.[1] However, as Turner appears to concede, prior
case law has already established that in a case such as this the jury can
consider, as relevant to his motive or intent, similar acts for which the
defendant was previously convicted.
Following the holding of those cases, it is logical to conclude that a
jury considering a multiple-count information can similarly use its finding of
guilt on one count when considering the other counts, notwithstanding Wis J I—Criminal 484. Turner cites no authority to the
contrary. Therefore, we reject his
argument that the jury at his first trial would have been barred from
considering a conviction on count two in the same way it was considered by the
jury in the second trial. It was not
unfair to allow the earlier conviction to be used in the second trial.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.