State v. Clifton V. Elmer

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 1, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2023AP46-CR Cir. Ct. No. 2018CF849

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CLIFTON V. ELMER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Rock County:
JOHN M. WOOD, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP46-CR

¶1 PER CURIAM. Clifton Elmer appeals a judgment of conviction for
second-degree sexual assault of a child. He argues that the circuit court erroneously
exercised its discretion in admitting other acts evidence. We affirm.

¶2 The charge against Elmer in this case was based on an incident in
which the victim, A.B.,1 alleged that Elmer grabbed her butt. A.B. also alleged that
in previous months or years Elmer had sexually assaulted her in other instances,
including an incident in which he removed her pants and put his mouth on her
vagina, and a separate incident in which he removed his penis from his pants, put
her hand on it, and moved her hand back and forth while it was erect.

¶3 In statements that Elmer made to law enforcement, he initially denied
ever being alone with A.B. but then admitted that he had been alone with her. When
asked if he had ever “slapped” her butt, he did not deny that he had, and went on to
talk about how he would playfully slap the butt of another child in the same
household. Elmer also stated that he had once accidently grabbed A.B.’s mother’s
butt, mistakenly thinking that A.B.’s mother was A.B.’s grandmother.2

¶4 Prior to trial, the State moved to admit evidence of the uncharged
alleged assaults, including the two alleged incidents that are discussed above. The
State argued that these other alleged assaults were relevant to prove Elmer’s motive,

1
To protect her privacy, we refer to the victim using initials that do not correspond with
her own. See WIS. STAT. RULE 809.86(4) (2021-22). All references to the Wisconsin Statutes are
to the 2021-22 version unless otherwise noted.
2
According to testimony at trial, Elmer was A.B.’s grandmother’s boyfriend.

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No. 2023AP46-CR

intent, opportunity, or plan in grabbing A.B.’s butt, as well to prove the absence of
mistake or accident.3 Elmer opposed the motion.

¶5 The circuit court granted the motion, concluding that the evidence
satisfied the three-prong test for the admission of other acts evidence under State v.
Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998). The case proceeded to
a jury trial, and the jury found Elmer guilty.

¶6 The sole issue on appeal is whether the circuit court erred in admitting
the other acts evidence. We review a circuit court’s decision to admit other acts
evidence for an erroneous exercise of discretion. State v. Lock, 2012 WI App 99,
¶43, 344 Wis. 2d 166, 823 N.W.2d 378. We will uphold the court’s exercise of
discretion as long as the court “examines the relevant facts, applies a proper standard
of law, and uses a demonstrably rational process to reach a conclusion that a
reasonable judge could reach.” Id. “We generally look for reasons to sustain the
[circuit] court’s discretionary decisions.” Id.

¶7 We review the circuit court’s decision to admit other acts evidence
with reference to the three-prong test set forth in Sullivan. The first prong is
whether the evidence is “offered for an acceptable purpose … such as establishing
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Sullivan, 216 Wis. 2d at 772. The second prong is whether
the evidence is relevant. Id. This requires an assessment of the probative value of
the evidence. Id. The third prong is whether “the probative value of the other acts

3
Consistent with the complaint, the State’s motion describes the charged incident as Elmer
grabbing A.B.’s butt. At trial, there was evidence that Elmer also touched part of A.B.’s vagina
when he grabbed her butt. The precise nature of the incident is not material to our analysis.

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No. 2023AP46-CR

evidence [is] substantially outweighed by the danger of unfair prejudice” or other
countervailing considerations. Id. at 772-73.

¶8 Additionally, because this is a child sexual assault case, the greater
latitude rule applies. State v. Hurley, 2015 WI 35, ¶59, 361 Wis. 2d 529, 861
N.W.2d 174. The greater latitude rule allows more liberal admission of other acts
evidence, and the rule applies to each Sullivan prong. Id.

¶9 As to the first Sullivan prong, Elmer concedes that it is satisfied.
Specifically, he concedes that the State properly sought to admit evidence of the
other alleged assaults to show that he acted intentionally and for the purpose of
sexual gratification in allegedly grabbing A.B.’s butt. We agree with this
concession, and we also conclude that the State properly offered the evidence to
show absence of mistake or accident. Given Elmer’s statements to law enforcement,
it was reasonable to assume that he might claim at trial either that he grabbed A.B.
intentionally but without the purpose of sexual gratification, or that he grabbed her
by mistake or accident.

¶10 As to the second Sullivan prong, Elmer concedes that the other
alleged assaults were relevant, although he asserts that they were only “marginally”
relevant and only to show that, if he grabbed A.B.’s butt, he had a sexual motive for
doing so. We agree that the evidence was relevant, but disagree that the relevance
was only marginal. The evidence was highly relevant to prove that Elmer grabbed
A.B.’s butt with the purpose of sexual gratification, and also relevant to show that
he grabbed her butt intentionally, not as a mistake or accident. If Elmer had engaged
in unambiguously sexual conduct with A.B. on the other occasions as alleged, then
it stood to reason that he had a sexual motive when he grabbed her butt, and that he
did not grab her butt my mistake or accident.

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No. 2023AP46-CR

¶11 This leaves the third Sullivan prong. According to Elmer, the circuit
court could not reasonably conclude that the probative value of the other alleged
assaults outweighed the danger of unfair prejudice. For the reasons we now explain,
we disagree.

¶12 Elmer contends that there are three main reasons why the other alleged
assaults carried too great a risk of unfair prejudice. First, he argues that the other
alleged assaults were far more serious than the alleged assault for which he was
charged. Second, he argues that the State’s heavy reliance on the other assaults at
trial amplified the danger of prejudice. Third, he argues that the cautionary
instruction the jury received on the other acts evidence was overly broad and
insufficient.

¶13 We begin with Elmer’s second and third arguments. Each of these
arguments focuses on events at trial that occurred after the circuit court’s pretrial
ruling to admit the other acts evidence. Elmer does not persuade us that these
subsequent events show that the court erred in its pretrial ruling. The events at trial
might raise other issues, such as whether there was preserved error relating to
evidentiary rulings at trial or the cautionary instruction, but Elmer does not develop
arguments on those issues.4

¶14 What remains for discussion is Elmer’s argument that the other
alleged assaults carried too great a risk of unfair prejudice because they were far
more serious than the charged incident. Elmer argues that admitting evidence of
other acts that are far more serious than the charged act poses a special danger of

4
The wording of the cautionary instruction was not addressed until the close of the trial
evidence, and Elmer did not object to the parts of the instruction that he now criticizes. As a general
rule, “[t]he failure to object to a proposed jury instruction constitutes waiver of any error.” State
v. Glenn, 199 Wis. 2d 575, 589, 545 N.W.2d 230 (1996).

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No. 2023AP46-CR

prejudice that substantially outweighs the probative value of the more serious acts.
Elmer relies on State v. McGowan, 2006 WI App 80, 291 Wis. 2d 212, 715 N.W.2d
631, in which we overturned a circuit court decision to admit other acts evidence.
The State counters that Elmer’s reliance on McGowan is misplaced and that other
case law supports the circuit court’s decision here.

¶15 We agree with the State, and we conclude that the circuit court’s
decision is consistent with and supported by State v. Veach, 2002 WI 110, 255
Wis. 2d 390, 648 N.W.2d 447, one of the cases cited in the State’s brief. We discuss
Veach first, then turn to McGowan.

¶16 In Veach, the defendant was charged with two counts of sexual assault
of a child based on two separate incidents. Veach, 255 Wis. 2d 390, ¶¶1-2. In each
incident, the defendant was alleged to have touched the child’s vagina or butt. Id.,
¶2. The defendant in Veach claimed that one of the incidents never happened at all
and that in the other incident he had only rubbed the child through a sleeping bag to
warm her up. Id., ¶12.

¶17 The circuit court in Veach admitted other acts evidence involving
more serious allegations of child sexual assault. See id., ¶¶15, 20. The other acts
included evidence of incidents in which the defendant attempted to insert his penis
into a different child’s vagina, ejaculated on her stomach, stuck his penis in her
mouth, and ejaculated in her mouth. Id., ¶15.

¶18 The defendant in Veach argued that this other acts evidence was
unfairly prejudicial because it was so egregious and graphic. Id., ¶90. The supreme
court in Veach was not persuaded by this argument. Id., ¶91.

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No. 2023AP46-CR

¶19 The supreme court in Veach determined that the other acts evidence
was probative on the questions of whether the charged conduct had occurred,
whether the conduct was for the purpose of sexual gratification, and whether it was
done by mistake or accident. Id., ¶84. The supreme court acknowledged that the
evidence was “graphic, disturbing, and extremely prejudicial,” but the court
nonetheless concluded that the circuit court’s exercise of discretion to admit the
evidence was reasonable given the high probative value of the evidence and the
greater latitude rule. Id., ¶91.

¶20 A similar analysis applies here. As in Veach, the other acts evidence
was highly probative. In particular, it was highly probative on the question of
whether Elmer acted intentionally and with the purpose of sexual gratification in
grabbing A.B.’s butt. As in Veach, the other acts evidence here was more serious
than the charged incident, thus posing a considerable risk of prejudice. However,
following the logic of Veach, it was nonetheless reasonable for the circuit court here
to conclude that the prejudicial nature of the other acts evidence did not outweigh
its probative value, particularly given the greater latitude rule.

¶21 We turn to McGowan, the principal case on which Elmer relies. As
we now explain, we conclude that McGowan is factually distinguishable.

¶22 In McGowan, an eighteen-year-old defendant was charged with
multiple counts of sexual assault of a child based on allegations that he repeatedly
and forcibly assaulted the child over a two-and-a-half-year period, starting when the
child was eight years old. McGowan, 291 Wis. 2d 212, ¶¶1-8. The allegations
included oral sex on the victim, sexual intercourse with the victim, covering the
victim’s mouth when she screamed, and threatening to kill her. Id., ¶¶4-8. The

7
No. 2023AP46-CR

defendant in McGowan claimed that the victim’s story was not credible because her
screams would have awakened her brother sleeping nearby. Id., ¶¶3, 11.

¶23 The circuit court in McGowan admitted other acts evidence consisting
of an incident that occurred when the defendant was ten years old in which he was
alleged to have forced a five-year-old child to perform oral sex on him and urinated
in her mouth. Id., ¶9. We concluded in McGowan that the circuit court erroneously
exercised its discretion by admitting this evidence. Id., ¶24.

¶24 More specifically, we concluded in McGowan that the other acts
evidence lacked probative value because “a single assault, by one young child on
another young child, eight years before repeated assaults by an adult on a different
child who was three years older than the first victim, together with significant
differences in the nature and quality of the assaults, does not tend to make the latter
frequent and more complex assaults of [the current victim] more probable.” Id.,
¶20. We also concluded that “the offered evidence (testimony of forced fellatio,
performed by a five-year-old child victim, followed by urination in the victim’s
mouth) undoubtedly aroused the jury’s ‘sense of horror’ and ‘provoke[d] its instinct
to punish.’” Id., ¶23 (quoted source omitted). We stated that “[r]evulsion as to this
conduct is not significantly mitigated by the fact that McGowan was only ten years
old at the time and the event was an isolated incident.” Id.

¶25 Elmer argues that McGowan is factually similar to his case and that,
if anything, the facts in McGowan were more favorable to the admission of other
acts evidence. According to Elmer, the circuit court’s decision to admit other acts
evidence here was as unreasonable as the admission of the other acts evidence in
McGowan. We disagree and conclude that Elmer’s reliance on McGowan is

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No. 2023AP46-CR

misplaced for two reasons that relate to each side of the balancing test under the
third Sullivan prong.

¶26 First, the probative value of the other acts evidence in McGowan was
not as apparent or high as it is here. In McGowan, not only did the other acts occur
years before the charged conduct when the defendant was a young child, but also,
and at least as importantly, the defendant in McGowan could not seriously dispute
that his charged conduct was intentional and for the purpose of sexual gratification.
As noted above, the charged conduct in McGowan included oral sex and sexual
intercourse. See McGowan, 291 Wis. 2d 212, ¶¶4-8. Here, in contrast, the other
acts evidence was clearly relevant to assist the jury in resolving the question of
whether Elmer acted intentionally and with the purpose of sexual gratification in
grabbing A.B.’s butt.

¶27 Second, this court’s decision in McGowan appears tied to the unusual
nature of one of the other acts at issue in that case, namely, the defendant’s act of
urinating in another child’s mouth, and the perception that this act would be
especially likely to shock and horrify a jury, resulting in unfair prejudice. There
was no similar alleged act here.5

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

5
In State v. Hurley, 2015 WI 35, 361 Wis. 2d 529, 861 N.W.2d 174, our supreme court
characterized the result in State v. McGowan, 2006 WI App 80, 291 Wis. 2d 212, 715 N.W.2d 631,
as “driven by the difference in the nature of the two sets of acts, and the horrid nature of urinating
in a child’s mouth.” Hurley, 361 Wis. 2d 529, ¶92 n. 24.

9