COURT OF APPEALS DECISION DATED AND FILED February 3, 2010 David
R. Schanker Clerk of Court of Appeals |
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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. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Randall S. Shesto,
Defendant-Appellant. |
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APPEAL
from judgments of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. Randall S. Shesto appeals from judgments, entered upon a jury verdict, convicting him of one count of second-degree sexual assault of a child and one count of exposing genitals to a child. He argues that the trial court erroneously exercised its discretion when it allowed the State to present other-acts evidence. We disagree with Shesto and affirm the judgments.
¶2 In late 2006, fifteen-year-old Kayleigh B. met Shesto, then twenty, on MySpace, an online social networking website. Kayleigh knew Shesto as “RJ” and knew he was twenty. They mainly communicated online. Sometime in December, with the permission of Kayleigh’s father, Shesto visited Kayleigh and her girlfriend at Kayleigh’s house. The girlfriend introduced Shesto to Kayleigh’s father as an eighteen-year-old who attended the same high school as she and Kayleigh did. Shesto did not dispute his represented age.
¶3 On or about December 22, 2006, Kayleigh told Shesto her
father denied her request to allow Shesto to visit because neither parent would
be home. Shesto told Kayleigh he would
“come over for a little bit” anyway. He
parked away from the house and came to the back door. Shesto and Kayleigh went to the basement
where they engaged in sexual activity. A
few weeks later, Kayleigh’s father saw on the television news that Shesto was
accused of having sexual contact with a fifteen-year-old in
¶4 The State ultimately charged Shesto with three counts of
sexual contact (hand-to-breast, mouth-to-breast and hand-to-penis), one count
of sexual assault of a child under sixteen (oral intercourse) and one count of
exposing genitals to a child, contrary to Wis.
Stat. §§ 948.02(2) and 948.10(1) (2007-08).[1] The State filed a motion to allow the
¶5 Shortly before the motion hearing, Shesto filed a notice of alibi, stating that on the night Kayleigh identified he was at a restaurant with his parents and later spent time with a friend. The court granted the State’s motion on grounds that the evidence was admissible to show motive, intent, plan and, especially in light of the alibi defense, identity. The court allowed Wendy to testify at trial. The jury found Shesto guilty of count four, oral intercourse, and count five, exposing genitals to a child, and acquitted him of the other counts.
¶6 Shesto now argues that the trial court erroneously admitted
other-acts evidence through Wendy’s testimony.
Other-acts evidence is admissible if offered for an acceptable purpose,
if relevant and if the probative value substantially outweighs the danger of
unfair prejudice.
¶7 Shesto first contends that Whitty v. State, 34
¶8 The remainder of Shesto’s argument mainly focuses on the fact
that the Wendy incident occurred after
the Kayleigh incident. He contends the
trial court failed to consider that the applicable case law involves the
admission of prior other-acts
evidence. We disagree that the question
is one of chronology.
¶9 The trial court undertook a textbook Sullivan analysis and
found that the State offered the evidence for an acceptable purpose: identity, motive, plan and intent. For other-acts evidence to be admitted for
purposes of identity, there should be “such a concurrence of common features
and so many points of similarity” between the other act and the crime charged
that it reasonably can be said that each bears the “imprint of the
defendant.” State v. Fishnick, 127
¶10 The trial court noted that the incidents involving Kayleigh and Wendy shared numerous common features and similarities, as well as a nearness of time, place and circumstance. Shesto initiated and maintained the online contact with both girls on MySpace and knew from their MySpace profiles that they were fifteen. Both girls knew Shesto as “RJ.” In neither case did the alleged sexual encounter simply “happen.” Rather, the meetings were carefully arranged in a manner to avoid their parents’ knowledge and for the purpose of having sex. The incidents occurred twenty days apart. While the locations of the assaults were not identical, the places nonetheless were similar because they were specifically chosen to be away from parental control. The trial court properly exercised its discretion in admitting the evidence for an acceptable purpose.[3]
¶11 We also conclude that the trial court conducted a proper
relevancy analysis. Other-acts evidence is
relevant if it is of consequence to the determination of the action and has
probative value. See Sullivan, 216
¶12 The final step in the Sullivan analysis is determining
whether the probative value of the other-acts evidence was substantially
outweighed by the danger of unfair prejudice.
“The term ‘substantially’ indicates that if the probative value of the
evidence is close or equal to its unfair prejudicial effect, the evidence must
be admitted.” Speer, 176
¶13 Although Shesto bears the burden of showing that the evidence
was unfairly prejudicial, see Hunt,
263
By the Court.—Judgments affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2]
[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.
[3] Shesto
contends the evidence was not admissible to prove plan because in this context
“plan” means a prior design or scheme
to achieve a particular purpose, such that the “other act” must be a step that
leads to the charged offense. See State v. Cofield, 2000 WI App 196,
¶13, 238