COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 27, 1996 |
NOTICE |
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. 96-1028-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DAVID D. BREITENFELD,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Ashland County:
NORMAN L. YACKEL, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. David Breitenfeld appeals his conviction for repeated
sexual assault of the same child in violation of § 948.025(1), Stats., after a trial by jury. At trial, the victim
recanted her charges and denied that Breitenfeld had committed any
sexual acts. Over Breitenfeld's
objection, the trial court admitted Breitenfeld's 1989 written statement
admitting sexual activities with children six-years before the charged
offense. On appeal, Breitenfeld argues
that the 1989 written statement constituted inadmissible other bad acts
evidence and that the jury used this inadmissible character evidence to find
Breitenfeld committed the offense. We
reject this argument and affirm Breitenfeld's conviction.
We first conclude that
Breitenfeld's 1989 written statement was admissible on the issues of intent and
motive. The trial court made a
discretionary decision. State v.
Plymesser, 172 Wis.2d 583, 591, 493 N.W.2d 367, 371 (1992). Unless Breitenfeld affirmatively conceded
intent, the State had to prove it as an element of the crime. Breitenfeld did not concede intent, and the
State therefore had the right to introduce the written statement for this
purpose under Plymesser. See
id. at 593-95, 493 N.W.2d at 372-73. In addition, we have no power to overrule the Wisconsin Supreme
Court's decision in Plymesser, and we therefore decline to
address Breitenfeld's claim that Plymesser misapplies the rules
of evidence.
Having established the
relevance of the statement, we must review the court's determination that the
statement's probativeness substantially outweighs any unfair prejudice. See State v. Peters,
192 Wis.2d 674, 695, 534 N.W.2d 867, 875 (Ct. App. 1995). This determination is within the trial
court's discretion and will be affirmed as long as the record discloses a
reasonable basis for the court's decision.
Id. Here, the
court weighed the relative probativeness against the potential prejudice of
Breitenfield's 1989 statement and determined the statement's probativeness
substantially outweighed any prejudice.
The record discloses the court had a reasonable basis for admitting this
statement. Therefore, we conclude that
the trial court was within its discretion in admitting the statement.
Because there is
sufficient evidence in the record to support the court's finding that the 1989
statement was relevant and we must deferentially review the trial court's
weighing of the probative value of the evidence against its prejudicial nature,
we conclude the court did not err in admitting Breitenfield's statement.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.