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State v. Hammer7/11/2000
ON CERTIFICATION FROM THE COURT OF APPEALS
Oral Argument: March 7, 2000
Racine JUDGE: Gerald P. Ptacek
JUSTICES:
Dissented: BRADLEY, J., dissents (opinion filed). ABRAHAMSON, C.J., and BABLITCH, J., join dissent.
APPEAL from a judgment of the Circuit Court of Racine County, Gerald P. Ptacek, Circuit Court Judge. Affirmed.
This case comes before us on certification from the District II Court of Appeals. The appellant, Edward A. Hammer, seeks review of a circuit court decision, which allowed other acts evidence pertaining to his past sexual conduct to be admitted in a current sexual assault case against him. Hammer also seeks review of the circuit court's ruling to prohibit testimony regarding the alleged victims' past sexual conduct, arguing that his Sixth Amendment right to confront witnesses and compel testimony on his behalf outweighed the state's interest in applying the rape shield statute. Hammer argues that the circuit court's rulings on these issues denied his right to a fair trial.
. The circuit court convicted Hammer of second-degree sexual assault of a child under Wis. Stat. § 948.02(2) (1995-96), and fourth-degree sexual assault under Wis. Stat. § 940.225(3m). The court ruled that the other acts evidence against Hammer would be allowed because the evidence demonstrated a motive, opportunity, mode or method of operation, and absence of mistake under Wis. Stat. § (Rule) 904.04(2), which the court found were proper purposes under the statute. The circuit court also decided that the other acts evidence was relevant, in accordance with Wis. Stat. § (Rule) 904.01, and that under Wis. Stat. § (Rule) 904.03, the probative value of the evidence substantially outweighed the danger of unfair prejudice against Hammer. However, the circuit court prohibited testimony regarding the victims' past sexual conduct, in accordance with the rape shield statute, Wis. Stat. § 972.11, despite Hammer's argument that this violated his right to confront witnesses against him and compel testimony on his behalf under the Sixth Amendment.
. We affirm the decision of the circuit court. We hold that the evidence of Hammer's past sexual conduct is admissible under the three-step test set forth in State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998). The evidence of Hammer's past sexual conduct was properly admitted to prove mode or method of operation, and therefore, to establish identity. Further, the evidence is relevant and its probative value is not substantially outweighed by danger of unfair prejudice, confusion, misleading the jury, or undue delay.
. We also hold that the evidence of the victims' prior sexual conduct was properly kept from the jury in accordance with the rape shield statute. The state's interest in applying the rape shield statute outweighed the defendant's Sixth Amendment right to confront witnesses and compel testimony. Finally, we hold that the circuit court's admission of Hammer's prior sexual conduct, while excluding the victims' prior sexual conduct, did not violate Hammer's right to a fair trial.
I.
. The record indicates that in the early morning hours of June 29, 1997, fourteen-year-old Mark D., seventeen-year-old Steven D., and their friend, sixteen-year-old Josh C., were staying at the home of defendant Edward A. Hammer's parents in Waterford, Wisconsin, where Hammer resided. Allegedly, the defendant sexually assaulted all three boys during their stay at his parents' home.
. The three boys had arrived at the home the day earlier accompanied by the defendant's brother, Steven Hammer. Steven Hammer is the stepfather of Mark
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