State v. Kenneth W. Hill

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 6, 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. 2022AP1718-CR Cir. Ct. No. 2021CF83

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

KENNETH W. HILL,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Douglas County:
GEORGE L. GLONEK, Judge. Reversed and cause remanded with directions.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 STARK, P.J. The State appeals from an order of the circuit court
denying the State’s motion to admit evidence of Kenneth W. Hill’s
1984 conviction in Minnesota for criminal sexual conduct in the first degree—due
to Hill’s sexual assault of an approximately eleven-year-old girl (hereinafter, the
No. 2022AP1718-CR

1984 conviction)—at Hill’s trials in this case for two counts of first-degree sexual
assault of a child. The State sought to admit the 1984 conviction as character
evidence under WIS. STAT. § 904.04(2)(b)2. (2021-22),1 which permits admission
of prior conviction evidence for first-degree sexual assault, first-degree sexual
assault of a child, or a comparable offense in another jurisdiction in a subsequent
criminal proceeding also alleging a first-degree sexual assault crime.2 Id. The
court denied the State’s motion because it found that the “significant and
compelling factual dissimilarities” between the 1984 conviction and the current
charges “strongly outweigh the similarities between the incidents.” In the
alternative, the court also concluded, after conducting a Sullivan3 analysis, that the
1984 conviction was not admissible as other-acts evidence under § 904.04(2)(a).

¶2 Our interpretation of the prior-conviction statute leads us to the
following conclusions. First, in order to determine whether an offense in another
jurisdiction is “comparable” to first-degree sexual assault of an adult or a child in
Wisconsin, the circuit court conducts a comparison of the criminal statutes at
issue, including the titles of the statutes and elements of the offenses, subject to the
greater latitude rule. Second, prior conviction evidence permitted under WIS.
STAT. § 904.04(2)(b)2. encompasses only the fact of the conviction, not the
underlying details of the prior case. Thus, if the court determines that prior
conviction evidence is admissible, the jury should be informed only that the

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
For ease of reading, we will refer to WIS. STAT. § 904.04(2)(b)2. as “the
prior-conviction statute,” and, from time to time, we will refer to evidence under this statute as
“prior conviction evidence” or “prior-conviction statute evidence.”
3
State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

2
No. 2022AP1718-CR

individual has been previously convicted of first-degree sexual assault or
first-degree sexual assault of a child in Wisconsin, whichever is applicable, or a
comparable offense in another jurisdiction. Third, to determine whether the prior
conviction is “similar to the alleged violation,” the court reviews the underlying
circumstances of the current charge(s) and those of the prior conviction to
determine whether they are similar, also subject to the greater latitude rule.
Fourth, and finally, the other-acts evidence analysis, as developed under Sullivan
and its progeny for § 904.04(2)(a) evidence, is inapplicable to the prior-conviction
statute. Instead, the admission of prior conviction evidence is subject to WIS.
STAT. § 904.01 and WIS. STAT. § 904.03.

¶3 Applying our interpretation of the prior-conviction statute in the
present case, we agree with the circuit court’s determination that the
1984 conviction is a “comparable offense” to first-degree sexual assault of an
adult or a child under Wisconsin law. We conclude, however, that the court
erroneously exercised its discretion by determining that the circumstances of the
1984 conviction are not “similar to” the allegations in the current case. Finally,
because the court determined the admissibility of the prior conviction evidence
under WIS. STAT. § 904.03 by assuming that the jury would hear the underlying
facts of the 1984 conviction, we conclude that the court erred as a matter of law.
Accordingly, we reverse and remand with directions for the court to consider the
1984 conviction under the proper standard of admissibility.

3
No. 2022AP1718-CR

BACKGROUND

¶4 In this case, the State charged Hill with two counts of first-degree
sexual assault of a child.4 The first charge pertains to Hope,5 who informed law
enforcement that Hill digitally penetrated her vagina “pretty much every time” she
visited Hill’s house over approximately a one year period beginning in 2020—
when she was twelve years old—until 2021. The second charge pertains to Linda,
who reported that Hill inserted his finger into her vagina on several occasions
when she was a child. The complaint specified one event that allegedly occurred
on Halloween in 1999, when Linda was also twelve years old. According to
Linda, Hill was carrying her from the car to the house when Hill, believing that
Linda was asleep, inserted his finger into her vagina. Hope and Linda are related,
and both share a familial connection with Hill.

¶5 During a pretrial hearing, the State moved to admit proof of Hill’s
1984 conviction under the prior-conviction statute. According to the criminal
complaint filed in the 1984 case, Melody—who was ten or eleven years old at the
time—awoke at approximately 4:15 a.m. to find Hill naked and in bed with her.
Hill asked Melody if she knew him, but Melody “told him that she did not,”
although “she recognized him as someone she had seen at frequent parties at the
house next to hers.” Hill called Melody by her name. According to Melody, Hill

4
Hill moved the circuit court to sever these counts for trial, arguing that a trial on both
charges would “unfairly prejudice the jury in its consideration of each separate, and different,
allegation.” The court granted Hill’s motion, but it also ruled that evidence regarding the other
alleged sexual assault would be admissible as other-acts evidence at each separate trial. That
decision is not at issue in this appeal.
5
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), we refer to the alleged
victims in the current case and the victim of the 1984 conviction using pseudonyms.

4
No. 2022AP1718-CR

began “kissing her on the arms and legs and tried to kiss her on her face,” and
when she tried to push Hill away, “he just pulled her closer.” Hill continued
touching Melody all over her body, including her chest and crotch area, and then
Hill removed her clothes. The complaint stated that Hill “put both his finger and
his penis inside [Melody’s] vagina” and then “forced his penis into her mouth.”
Hill then “ejaculated on [Melody’s] chin, neck, and upper chest area.”

¶6 During the sexual assault, Hill threatened Melody “that she had
better not tell anybody because, ‘If you do, I’ll kidnap or kill you,’” and “[w]hen
[Hill] left, he told her to ‘[r]emember what I said.’” Melody reported the assault
to her mother, and they contacted law enforcement. During the resulting
investigation, Melody identified Hill in a lineup.

¶7 The circuit court denied the State’s motion to admit the
1984 conviction in a written decision. The court first found that the
1984 conviction was “comparable” to WIS. STAT. § 948.02(1), as required by the
prior-conviction statute. The court then relied on this court’s unpublished decision
in State v. Mitchell, No. 2021AP606-CR, unpublished slip op. (WI App July 6,
2022),6 for the proposition that “the Sullivan analysis is applicable to [WIS. STAT.
§] 904.04(2)(b)2.” After analyzing the factual similarities and differences at

6
Under WIS. STAT. RULE 809.23(3)(a), “[a]n unpublished opinion may not be cited in
any court of this state as precedent or authority, except to support a claim of claim preclusion,
issue preclusion, or the law of the case, and except as provided in par. (b),” which pertains to
authored opinions. RULE 809.23(3)(a), (b) (emphasis added). State v. Mitchell,
No. 2021AP606-CR, unpublished slip op. (WI App July 6, 2022), is a per curiam opinion and, as
such, “is not an authored opinion.” See RULE 809.23(3)(b). Therefore, the circuit court erred by
relying on Mitchell. We cite Mitchell simply for this background information on the circuit
court’s ruling, and we will not further address the case. See RULE 809.23(3)(b); see also City of
Sheboygan v. Nytsch, 2008 WI 64, ¶¶4-5, 310 Wis. 2d 337, 750 N.W.2d 475 (admonishing this
court for implicitly suggesting that a previous unpublished decision has persuasive authority by
concluding that the decision was “wrongly decided”).

5
No. 2022AP1718-CR

length, the court determined that the “significant and compelling factual
dissimilarities between the 1984 incident as compared to the incidents alleged in
the case at bar strongly outweigh the similarities between the incidents.”
Consequently, the court concluded that “the State ha[d] not met its burden of
establishing the admission of [Hill’s] 1984 Minnesota conviction as character
evidence that satisfies both the requirements of [§] 904.04(2)(b)2. and the first
prong of the Sullivan analysis.”

¶8 According to the circuit court, the similarities between the
1984 conviction and the current charges included: the victims were approximately
the same age, the allegations involved Hill’s digital penetration of the victims’
vaginas, and Hill allegedly told Melody and Hope not to tell anyone about the
incidents. The court, however, found that the “dissimilarities” were more
numerous and “clearly significant, compelling, and strong.” According to the
court, the dissimilarities included: Hill was twenty-one years old when he
assaulted Melody, and he was approximately thirty-six and fifty-seven years old,
respectively, when he allegedly assaulted Linda and Hope; Melody was not Hill’s
relative, while Linda and Hope had a family relation to Hill; Hill assaulted Melody
in her home, and Hill allegedly assaulted Linda and Hope at his home; Hill
removed Melody’s clothes, but he allegedly assaulted Linda and Hope with their
clothes on; Hill kissed Melody all over her body, but there were no allegations that
Hill kissed or attempted to kiss Linda or Hope; Hill put his penis in Melody’s
vagina and ejaculated on her face and body, but it is not alleged that he did so with
either Linda or Hope; and Hill told Melody not to tell anyone about the assault or
he would kill her, but Hill did not directly threaten Hope when he told her not to
tell anyone about the assault.

6
No. 2022AP1718-CR

¶9 After the pretrial hearing, the State had submitted a supplemental
memorandum in support of its oral motion, in which it argued, seemingly in the
alternative, that Hill’s 1984 conviction would also be admissible as other-acts
evidence under WIS. STAT. § 904.04(2)(a). In addressing the State’s motion, the
circuit court applied the Sullivan three-prong test, and the court concluded that
Hill’s 1984 conviction was not relevant and that its probative value was
outweighed by the danger of unfair prejudice. With respect to relevance, the court
reasoned that the probative value of the 1984 conviction was “low” given “the
significant and compelling factual dissimilarities of the incidents … (as well as the
remoteness in time of the 1984 incident).” The court then concluded that the
evidence’s “low” probative value was substantially outweighed by the risk of
unfair prejudice. In particular, the court determined that because the facts of the
1984 conviction were more egregious than the allegations here, the details of the
1984 conviction “would undoubtedly result in the [jury’s] sympathies for the
alleged victims in the case at bar being inflamed and the [jury’s] sense of horror
and punishment towards [Hill] being aroused.” See Sullivan, 216 Wis. 2d at
789-90. The State appealed pursuant to WIS. STAT. § 974.05(1)(d).7

DISCUSSION

¶10 This appeal presents three issues for our consideration. The first
issue involves the proper interpretation of the prior-conviction statute. The second
issue tasks us with determining what standard for the admission of evidence
applies to the prior-conviction statute. To date, no published or citable Wisconsin
court decision has addressed the operation and application of the prior-conviction

7
We held oral argument in this case on June 12, 2024, in Superior, Wisconsin.

7
No. 2022AP1718-CR

statute to sexual assault trials in this state, although we previously upheld the
statute against a facial and as-applied constitutional challenge. See State v. Gee,
2019 WI App 31, ¶¶37, 41, 388 Wis. 2d 68, 931 N.W.2d 287. Given our
conclusions on the first two issues, the third, and final, issue is whether the circuit
court properly excluded evidence of the 1984 conviction.

I. Interpreting WIS. STAT. § 904.04(2)(b)2.

¶11 Generally, “[e]vidence of a person’s character or a trait of the
person’s character is not admissible for the purpose of proving that the person
acted in conformity therewith on a particular occasion” and “evidence 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.” WIS. STAT.
§ 904.04(1), (2)(a). However, evidence of other crimes, wrongs, or acts may be
admitted “when offered for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Sec. 904.04(2)(a). We apply the Sullivan three-prong test to determine the
admissibility of other-acts evidence under § 904.04(2)(a). Sullivan, 216 Wis. 2d
at 771-72. Under that test, “other-acts evidence is admissible if (1) it is offered for
a permissible purpose under … § 904.04(2)(a); (2) it is relevant under WIS. STAT.
§ 904.01; and (3) its probative value is not substantially outweighed by the risk of
unfair prejudice under WIS. STAT. § 904.03.” State v. Dorsey, 2018 WI 10, ¶39,
379 Wis. 2d 386, 906 N.W.2d 158.

¶12 The prior-conviction statute, in contrast, has been called “an
exception to the rule that prohibits other-acts evidence from being offered to prove
conduct.” Gee, 388 Wis. 2d 68, ¶22. The statute provides as follows:

In a criminal proceeding alleging a violation of [WIS.
STAT. §§] 940.225(1) or 948.02(1), sub. (1) and par. (a) do

8
No. 2022AP1718-CR

not prohibit admitting evidence that a person was convicted
of a violation of [§§] 940.225(1) or 948.02(1) or a
comparable offense in another jurisdiction, that is similar to
the alleged violation, as evidence of the person’s character
in order to show that the person acted in conformity
therewith.

WIS. STAT. § 904.04(2)(b)2. The Wisconsin Legislature first enacted WIS. STAT.
§ 904.04(2)(b) (2005-06), the former § 904.04(2)(b)2., in 2005 to augment the rule
regarding other-acts evidence. See 2005 Wis. Act 310, § 2; see also § 904.04(2)
(2005-06). Later, the legislature renumbered the statute and inserted what is now
§ 904.04(2)(b)1.8 and added the titles “General admissibility” and “Greater
latitude” to the statute. See 2013 Wis. Act 362, §§ 20-22, 38. Both subds. (2)(b)1.
and (2)(b)2. fall under the “Greater latitude” title. Sec. 904.04(2)(b).

¶13 Whether the circuit court properly exercised its discretion by
excluding the 1984 conviction is contingent upon a proper understanding of the
prior-conviction statute. Therefore, to resolve this case, we must first determine
under what circumstances the statute applies and what evidence may be
admissible. Our review begins with the language of the statute. See State ex rel.
Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. “Statutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given
their technical or special definitional meaning.” Id. We interpret statutory
language “in the context in which it is used; not in isolation but as part of a whole;

8
Under WIS. STAT. § 904.04(2)(b)1., for certain serious sex offenses or domestic abuse
offenses, “evidence of any similar acts by the accused is admissible, and is admissible without
regard to whether the victim of the crime that is the subject of the proceeding is the same as the
victim of the similar act.” Id. In State v. Dorsey, 2018 WI 10, ¶35, 379 Wis. 2d 386, 906
N.W.2d 158, our supreme court determined that the Sullivan three-prong test also applies to
§ 904.04(2)(b)1.

9
No. 2022AP1718-CR

in relation to the language of surrounding or closely related statutes; and
reasonably, to avoid absurd or unreasonable results.” Id., ¶46.

¶14 “If this process of analysis yields a plain, clear statutory meaning,
then there is no ambiguity, and the statute is applied according to this
ascertainment of its meaning.” Id. (citation omitted). If, however, the statute “is
capable of being understood by reasonably well-informed persons in two or more
senses,” then the statute is ambiguous. Id., ¶47. If the plain language of a statute
is ambiguous, we consider the scope, context, and purpose of the statute. Id.,
¶¶48-49. We review questions of statutory interpretation de novo. State v.
Forrett, 2022 WI 37, ¶5, 401 Wis. 2d 678, 974 N.W.2d 422.

¶15 Based on its clear statutory meaning, there are several aspects of the
prior-conviction statute that are not subject to debate. First, it applies only to
“criminal proceeding[s]” where the State has charged the defendant with
first-degree sexual assault of an adult or first-degree sexual assault of a child.
WIS. STAT. § 904.04(2)(b)2.; see also WIS. STAT. §§ 940.225(1) (first-degree
sexual assault), 948.02(1) (first-degree sexual assault of a child). Second, the
evidence sought to be admitted must be a conviction for a prior “violation of
[§§] 940.225(1) or 948.02(1) or a comparable offense in another jurisdiction.”
Sec. 904.04(2)(b)2.; see also Gee, 388 Wis. 2d 68, ¶36 (“[Section] 904.04(2)(b)2.
is limited to only the most serious sexual assault cases … and the … evidence
must be for a conviction of the same crime, as opposed to a conviction for a lesser
degree of sexual assault, or charges for sexual assault that did not result in a
conviction.”). Third, § 904.04(1) and (2)(a) do not prohibit admitting prior
conviction evidence under this statute.

10
No. 2022AP1718-CR

¶16 Fourth, and finally, prior conviction evidence is admissible “as
evidence of the person’s character in order to show that the person acted in
conformity therewith,” meaning that the evidence is admissible as propensity
evidence. See WIS. STAT. § 904.04(2)(b)2.; see also State v. Stroik, 2022 WI App
11, ¶38, 401 Wis. 2d 150, 972 N.W.2d 640 (“A ‘propensity inference’ is the
inference that a person acted ‘in conformity with a particular character trait’ on a
specific occasion.” (citation omitted)); United States v. Rogers, 587 F.3d 816, 821
(7th Cir. 2009) (“[T]he simple fact that [the defendant] had done it before makes it
more likely that [the defendant] did it again. This so called ‘propensity evidence’
is relevant because common sense suggests that someone with a propensity to do
something is more likely to have done the same thing again.”).

¶17 As to the remaining parts of the statute, by their briefing and their
assertions during oral argument, the parties present this court with three main
questions: (1) how do courts determine whether a conviction is “a comparable
offense in another jurisdiction”; (2) what information is admitted into evidence
based on the phrase “evidence that a person was convicted”; and (3) what does it
mean for a prior conviction to be “similar to the alleged violation”? See WIS.
STAT. § 904.04(2)(b)2. We address each of these questions below.

a. Comparable Offense in Another Jurisdiction

¶18 The prior-conviction statute allows a circuit court to admit “evidence
that a person was convicted of a violation of [WIS. STAT. §§] 940.225(1) or
948.02(1) or a comparable offense in another jurisdiction.” At oral argument, both
parties agreed that the most appropriate interpretation of the phrase “comparable
offense” is an elements-based analysis, meaning that the court should compare the
elements of the criminal statutes at issue. We agree.

11
No. 2022AP1718-CR

¶19 The language of the statute supports the use of an elements-based
analysis. For example, the legislature used the word “comparable” within a list
containing two Wisconsin criminal statutes. Given this context, then, the most
reasonable reading is that the circuit court is to compare WIS. STAT. §§ 940.225(1)
or 948.02(1) with the criminal statute in the applicable jurisdiction. This
comparison would include the elements of the crimes as well as the titles of the
statutes. See Dorsey, 379 Wis. 2d 386, ¶30 (observing that statute titles are
“helpful in interpretation” and “permissible indicators of meaning … for the
purpose of … relieving [] ambiguity” (alteration in original; citations omitted)).
Further, because the prior-conviction statute refers to §§ 940.225(1) and 948.02(1)
generally, and not the individual statutory paragraphs addressing specific criminal
elements, we conclude that the comparison is based on Wisconsin’s first-degree
sexual assault statutes and the other jurisdiction’s statute generally. In other
words, when comparing the entirety of both statutes at issue, if the title and
elements of the statutes are generally comparable, regardless of the specific facts
or charge underlying the prior non-Wisconsin offense, the required comparison is
satisfied.

¶20 As to what it means for these crimes to be “comparable,” we look to
the common, ordinary, and accepted meaning of the word. See Door Cnty.
Highway Dep’t v. DILHR, 137 Wis. 2d 280, 293-94, 404 N.W.2d 548 (Ct. App.
1987) (“Absent statutory definition, the ordinary and accepted meaning of a word
can be established by reference to a recognized dictionary.”). The definition of
“comparable” is “([o]f two or more things) like in quality and quantity, though not
identical; worthy of being considered equivalent or categorically similar because
any differences are insignificant.” Comparable, BLACK’S LAW DICTIONARY
(12th ed. 2024) (emphasis added); see also Comparable, MERRIAM-WEBSTER

12
No. 2022AP1718-CR

DICTIONARY, https://www.merriam-webster.com/dictionary/comparable (last
visited August 3, 2024) (“suitable for comparison” and “similar, like”);
Comparison, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/comparison (last visited August 3,
2024) (“identity of features: similarity” and “an examination of two or more items
to establish similarities and dissimilarities”).

¶21 Given these definitions, we agree with the State that “comparable,”
as that term is used in the prior-conviction statute, does not mean the criminal
statutes must be identical. Under a plain language interpretation, the circuit court
reviews the other jurisdiction’s criminal statute and compares it to WIS. STAT.
§§ 940.225(1) or 948.02(1) to determine if the statutes are “worthy of being
considered equivalent or categorically similar” but “not identical.”

b. Evidence That a Person Was Convicted

¶22 Next, the State’s position on appeal is that the prior-conviction
statute does not permit admitting all of the underlying details of the
1984 conviction at the trials in this case; therefore, the State argues that it was not
seeking to present that evidence to the jury. The State claims that “the circuit
court misapprehended what evidence [WIS. STAT. § 904.04](2)(b)2. makes
admissible, namely ‘evidence that [Hill] was convicted.’” The State asserts,
instead, that the court “wrongly considered ‘the offered evidence’ to be ‘forced
vaginal intercourse with and forced fellatio performed by an 11-year-old girl on
[an] adult stranger, followed by [Hill] ejaculating on the victim’s chin, neck and
upper chest area.’”

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No. 2022AP1718-CR

¶23 Although Hill did not address this argument in his appellate briefing,
at oral argument Hill argued that this portion of the statute is ambiguous.9 He
further claimed that it would not be helpful for the jury to hear only the title of the
Minnesota statute, or something similar; therefore, according to Hill, the facts of
the prior conviction are the “only thing that is helpful” and should come in.

¶24 Given the plain language of the statute, we agree with the State that
the prior-conviction statute unambiguously allows evidence of the fact of the prior
conviction to be presented to the jury, but the statute does not require that the jury
hear the underlying factual circumstances of the prior case. The prior-conviction
statute utilizes the phrase “evidence that a person was convicted” to describe the
type of evidence that is admissible, demonstrating to this court that the admissible
“evidence” is proof that the person was previously found guilty of one of the listed
crimes.10

¶25 In comparison, WIS. STAT. § 904.04(2)(a) uses the phrase “evidence
of other crimes, wrongs, or acts.” See also § 904.04(2)(b)1. (“evidence of any
similar acts by the accused”). This phrase includes evidence of “occurrences that
are separated in time, place, or manner from the event alleged in” a criminal

9
“[A] statute is ambiguous if it is capable of being understood by reasonably
well-informed persons in two or more senses.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty.,
2004 WI 58, ¶47, 271 Wis. 2d 633, 681 N.W.2d 110. “It is not enough that there is a
disagreement about the statutory meaning; the test for ambiguity examines the language of the
statute ‘to determine whether well-informed persons should have become confused, that is,
whether the statutory … language reasonably gives rise to different meanings.’” Id. (citation
omitted). “Statutory interpretation involves the ascertainment of meaning, not a search for
ambiguity.” Id. (citation omitted).
10
We pause to observe that the statute uses the word “person,” rather than “defendant,”
suggesting the possibility that the prior-conviction statute could apply to other individuals
involved in the case, i.e., another suspect. That issue, however, is not before us on appeal, and we
will not further address it.

14
No. 2022AP1718-CR

complaint and “embrace[s] a wide variety of human conduct.” See 7 DANIEL D.
BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE § 404.602 (4th ed.
2023) (collecting cases). Based on the legislature’s choice to employ different
language in these statutes, § 904.04(2)(a) and the prior-conviction statute clearly
do not refer to the same quantum of evidence, and we conclude that the
prior-conviction statute is entirely more restrictive.

¶26 Instead, the language in the prior-conviction statute more closely
resembles the description of evidence admissible under WIS. STAT. § 906.09,
which provides that

[f]or the purpose of attacking character for truthfulness, a
witness may be asked whether the witness has ever been
convicted of a crime or adjudicated delinquent and the
number of such convictions or adjudications. If the
witness’s answers are consistent with the previous
determination of the court [subject to WIS. STAT. § 901.04],
then no further inquiry may be made unless it is for the
purpose of rehabilitating the witness’s character for
truthfulness.

Sec. 906.09(1). Significant for our purposes, the evidence presented to the jury,
which the statute refers to as “[e]vidence of a conviction of a crime,” “evidence of
prior convictions,” and “evidence of a conviction,” § 906.09(2), (5), includes only
the fact that “the witness has … been convicted of a crime” and how many times
(absent “further inquiry”), but “evidence of a conviction” is not defined to include
the factual details underlying the conviction, see § 906.09(1), (2).

¶27 Considering the phrase “evidence that a person was convicted”
contained in the prior-conviction statute “in relation to the language of
surrounding or closely-related statutes,” see Kalal, 271 Wis. 2d 633, ¶46, we
observe that WIS. STAT. § 906.09 is instructive. “Statutes are closely related when
they are in the same chapter, reference one another, or use similar terms.” State v.

15
No. 2022AP1718-CR

Rector, 2023 WI 41, ¶35, 407 Wis. 2d 321, 990 N.W.2d 213. Here, WIS. STAT.
§§ 904.04(2)(b)2. and 906.09 fit that definition. Both statutes are in chapters
governing the same subject matter—rules for the admissibility of evidence.
See WIS. STAT. ch. 904 (“Evidence—Relevancy and its Limits”); WIS. STAT.
ch. 906 (“Evidence—Witnesses”). More specifically, both statutes address the
admissibility of prior conviction evidence. And finally, both statutes provide a
method for the admission of prior conviction evidence outside the confines of
§ 904.04(2)(a). As noted above, under § 906.09, the factual details underlying the
witness’s prior conviction(s) are not submitted to the jury. Thus, the language
used in § 906.09(2)—“[e]vidence of a conviction”—supports a similar conclusion
concerning the type of evidence admitted under the prior-conviction statute.

¶28 Thus, we conclude that only evidence of a prior conviction under
WIS. STAT. §§ 940.225(1), 948.02(1), or a comparable offense in another
jurisdiction may be admitted under the prior-conviction statute, not the factual
details of the prior case.11 Therefore, if the circuit court determines that
prior-conviction statute evidence is admissible, the jury should be informed simply
that the individual has been previously convicted of first-degree sexual assault of
an adult or first-degree sexual assault of a child in Wisconsin, whichever is
applicable, or a comparable offense in another jurisdiction.

11
We pause here to note that our conclusion on this point does not mean that the factual
details of the prior conviction can never be admitted at trial. There may be a circumstance where,
pursuant to his or her trial strategy, the defendant could request that those details be shared with
the jury. The prior-conviction statute does not, by its plain language, preclude the introduction of
that evidence upon the defendant’s request. Further, the prior-conviction statute also does not
prohibit the State from offering the defendant’s prior conviction, including the factual details of
the crime, as other-acts evidence under WIS. STAT. § 904.04(2)(a), subject to the Sullivan
analysis.

16
No. 2022AP1718-CR

c. Similar To the Alleged Violation

¶29 Next, we consider the meaning of the phrase “similar to the alleged
violation.” Here, we note the legislature’s use of both “comparable”—as
discussed above, see supra ¶¶18-21—and “similar” within the prior-conviction
statute. These two terms ostensibly have the same meaning. The rules of statutory
construction tell us, however, that because the legislature used different words, we
are to presume that the words are intended to have two different meanings.
See Pawlowski v. American Fam. Mut. Ins. Co., 2009 WI 105, ¶22, 322 Wis. 2d
21, 777 N.W.2d 67 (“When the legislature chooses to use two different words, we
generally consider each separately and presume that different words have different
meanings.”).

¶30 At oral argument, the State agreed that the terms have two different
meanings. According to the State, “comparable,” as it is used in the statute, is
“law based” and requires a court to compare the elements of the crimes, while
“similar” is “fact based.” Hill concurred with the State that “similar” should
indeed encompass a fact-based analysis of the underlying circumstances of the
crimes, but he claimed that given that the 1984 conviction was not a comparable
offense, we need not address whether it was similar.12

12
Although Hill failed to argue in his appellate briefing that the prior-conviction statute
is ambiguous, he claimed at oral argument that the phrase “similar to the alleged violation” is
ambiguous because “we are here discussing it” and that is sufficient to find that the language “is
capable of being interpreted in two or more senses.” Hill did not, however, develop his argument
beyond this statement or cite any legal authority at oral argument in support of this proposition.
We need not address undeveloped arguments. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992). Under the circumstances, and given that the parties appear to agree
that “similar to the alleged violation” encompasses a fact-based comparison between the current
charge(s) and the prior conviction, we do not agree that the language reasonably gives rise to
different meanings.

17
No. 2022AP1718-CR

¶31 We agree with the parties that a reasonable reading of “similar to the
alleged violation” is that the circuit court must conduct a fact-based analysis to
determine whether the conduct underlying the prior conviction is similar to the
conduct underlying the current charge.13 We first note that given the
prior-conviction statute’s strict requirement that the statute applies only to charges
of first-degree sexual assault of an adult or a child, it would be nonsensical for the
court’s similarity analysis to, like the comparable analysis, consider only the
elements of the criminal statutes. We already know that the elements of the
crimes are the same because they must either be the same crime under Wisconsin
law or a comparable crime in another jurisdiction. Further, we cannot conduct the
same analysis under both parts of the statute, as that interpretation would
impermissibly render either the word “comparable” or “similar” superfluous

13
We do note, for the record, that we questioned whether the so-called “rule of the last
antecedent” would be applicable here. See Stoker v. Milwaukee County, 2014 WI 130, ¶23, 359
Wis. 2d 347, 857 N.W.2d 102. “Under that rule, ‘a limiting clause or phrase … should ordinarily
be read as modifying only the noun or phrase that it immediately follows.’” Facebook, Inc. v.
Duguid, 592 U.S. 395, 404 (2021) (citation omitted). In this situation, then, a possible reading of
the prior-conviction statute is that the phrase “that is similar to the alleged violation” applies only
to “a comparable offense in another jurisdiction” and not to Wisconsin sexual assault cases.
See WIS. STAT. § 904.04(2)(b)2.

We determine, however, that this interpretation is not the most reasonable reading of the
statute given the context of the “similar to” phrase within the statute. First, the language before
that phrase is an integrated list—“[WIS. STAT. §§] 940.225(1) or 948.02(1) or a comparable
offense in another jurisdiction”—and we believe the phrase is properly read to modify each of
those items in the list. See Facebook, 592 U.S. at 404 (“This Court has declined to apply the rule
where, like here, the modifying clause appears after an integrated list.”). Second, we conclude it
is not reasonable to assume that the legislature intended to treat prior convictions in other
jurisdictions differently when, under the statute, the charges must also be comparable. See WIS.
STAT. § 904.04(2)(b)2. Finally, our reading is consistent with the corresponding pattern jury
instruction and the Wisconsin Criminal Jury Instruction Committee’s statement that “the
Committee concluded that the ‘similar to’ requirement applies not only to prior convictions in
Wisconsin but also to prior convictions of a comparable offense in another jurisdiction.” See WIS
JI—CRIMINAL 276 (2016); State v. Olson, 175 Wis. 2d 628, 642 n.10, 498 N.W.2d 661 (1993)
(“[W]hile jury instructions are not precedential, they are of persuasive authority.”).

18
No. 2022AP1718-CR

within the statute. See Kalal, 271 Wis. 2d 633, ¶46; Dorsey, 379 Wis. 2d 386,
¶34. In essence, the legislature’s use of the phrase “similar to the alleged
violation” must mean something different than “a comparable offense.”

¶32 That difference requires a review of the charged criminal conduct to
determine its factual similarity to the facts of the defendant’s prior conviction.
Accordingly, the circuit court reviews how the offenses at issue—the prior
conviction and the current charge(s)—were perpetrated to determine whether the
circumstances are “similar.” See WIS. STAT. § 904.04(2)(b)2. The accepted
meaning of “similar” is “having characteristics in common” and “alike in
substance or essentials.” Similar, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/similar (last visited August 3,
2024). “Similar” also means “having a likeness or resemblance, especially in a
general way.” Similar, DICTIONARY.COM,
https://www.dictionary.com/browse/similar (last visited August 3, 2024). The
statute does not, by its plain language, require that the factual circumstances of the
prior conviction and the current charge(s) be identical, strictly similar, exactly
similar, or more similar than not. Instead, the court need only consider whether
the facts of the cases are similar, which, as the accepted meaning of the word
demonstrates, is a low bar.

¶33 Further, the statutory requirement that a prior conviction be
“similar” to the current charges(s) demonstrates to this court the legislature’s
intent that prior-conviction statute evidence still comply with other rules of
evidence. Similarity goes to the question of relevancy. As our supreme court has
explained in the context of other-acts evidence, “[t]he measure of probative value
in assessing relevance is the similarity between the charged offense and the other
act.” State v. Hurley, 2015 WI 35, ¶79, 361 Wis. 2d 529, 861 N.W.2d 174

19
No. 2022AP1718-CR

(citation omitted). “Similarity [may be] demonstrated by showing the ‘nearness of
time, place, and circumstance’ between the other-act and the charged crime.” Id.
(citation omitted). “However, events that are dissimilar or that do not occur near
in time may still be relevant to one another,” and “[e]ven when evidence may be
considered too remote, the evidence is not necessarily rendered irrelevant if the
remoteness is balanced by the similarity of the two incidents.” Id., ¶80 (citation
omitted). Accordingly, determining similarity is, like determining probative
value, “a common sense determination based less on legal precedent than life
experiences.” See State v. Payano, 2009 WI 86, ¶70, 320 Wis. 2d 348, 768
N.W.2d 832 (citation omitted).

II. Standard for the Admission of Evidence Under WIS. STAT.
§ 904.04(2)(b)2.

¶34 We next turn to the question of what standard for admission applies
to prior conviction evidence, specifically whether the Sullivan analysis for
other-acts evidence and the greater latitude rule apply. In Gee, we noted that the
circuit court in that case determined that the evidence sought to be admitted under
the prior-conviction statute was subject to the Sullivan test, but we observed that
the court “provided no legal authority for this proposition, and we have found
none.” Gee, 388 Wis. 2d 68, ¶43. We concluded, however, that the question of
whether the Sullivan test applied to the prior-conviction statute was not before us
at that time. Gee, 388 Wis. 2d 68, ¶43 n.3.

¶35 Here, the issue on appeal requires us to determine what standard for
the admission of the prior conviction evidence applies. This determination also
requires us to interpret and apply the statute, which, as noted above, are questions

20
No. 2022AP1718-CR

of law that we review de novo. See Quick Charge Kiosk LLC v. Kaul, 2020 WI
54, ¶9, 392 Wis. 2d 35, 944 N.W.2d 598.

¶36 On appeal, the State argues that Sullivan is not applicable to prior
conviction evidence. According to the State, “Sullivan is a test for other[-]act[s]
evidence offered for a permissible non-propensity purpose under [WIS. STAT.
§] 904.04(2)(a)”; therefore, applying the Sullivan analysis to prior conviction
evidence is “wrong” because the statute permits admitting evidence to show
propensity and is “plainly incompatible with an analysis premised on identifying a
non-propensity purpose for evidence offered under a different section of the
statute.”

¶37 At oral argument, the State clarified that labeling this a Sullivan
analysis is “calling it the wrong thing” because the prior-conviction statute
addresses prongs one and two of the Sullivan analysis within the statute itself.
The State was adamant, however, that the circuit court must still conduct a WIS.
STAT. § 904.03 analysis. For his part, Hill noted during oral argument that he was
not asking us to “abandon application of Sullivan to” the prior-conviction statute,
but he appeared to agree that under the circumstances, the Sullivan analysis is not
“necessary” or “helpful.”

¶38 We conclude that prior-conviction statute evidence is not subject to a
traditional Sullivan analysis as that test has developed under Sullivan and its
progeny. Instead, the admission of evidence under this statute is, like all proffered
evidence, subject to the requirements that the evidence be relevant, see WIS. STAT.
§ 904.01, and that it overcomes the WIS. STAT. § 904.03 balancing test, see State
v. Davidson, 2000 WI 91, ¶34, 236 Wis. 2d 537, 613 N.W.2d 606.

21
No. 2022AP1718-CR

¶39 We reach the conclusion that the Sullivan analysis is inapplicable
based on the legislature’s clear intent to lower obstacles to the admission of
propensity evidence in a very narrow class of cases. As the State observes,
evidence of a prior conviction could always have been introduced under WIS.
STAT. § 904.04(2)(a), subject to the Sullivan analysis; therefore, there had to be a
purpose for the legislature to create a narrow exception to § 904.04(2)(a)’s
requirements for specific crimes. Under these circumstances, and given this
court’s prior conclusion that the prior-conviction statute is constitutional, see Gee,
388 Wis. 2d 68, ¶¶37, 41, we refuse to burden the admission of prior conviction
evidence under this statute by applying an inapplicable evidentiary standard.

¶40 The Sullivan three-prong test was developed to address the
admission of WIS. STAT. § 904.04(2)(a) evidence, but subd. (2)(b)2. is an
exception to para. (2)(a)’s “general prohibition on the use of other acts ‘to prove
the character of a person in order to show that the person acted in conformity
therewith.’” See Dorsey, 379 Wis. 2d 386, ¶29 (citation omitted). Thus, the first
prong of the Sullivan analysis—requiring that the evidence is offered for a
permissible purpose—clearly does not apply because subd. (2)(b)2. supersedes
para. (2)(a)’s restriction on character evidence. Under subd. (2)(b)2., the State
may offer evidence of a defendant’s prior conviction for the purpose of
demonstrating a defendant’s propensity to commit the charged offense. See Gee,
388 Wis. 2d 68, ¶28. The concept of an impermissible purpose is irrelevant under
subd. (2)(b)2.

¶41 As to Sullivan’s second prong, we agree that prior-conviction statute
evidence must be relevant, but we conclude that this prong is subsumed both by
the evidence’s use as character evidence and by the statute’s “similar to the
alleged violation” requirement, neither of which are present under WIS. STAT.

22
No. 2022AP1718-CR

§ 904.04(2)(a). “‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
WIS. STAT. § 904.01.

¶42 Initially, we agree with the State’s assertion that propensity evidence
is, by its nature, relevant evidence. See United States v. Guardia, 135 F.3d 1326,
1328 (10th Cir. 1998) (“Propensity evidence is relevant.” (citation omitted)).
Beyond that assertion, however, case law tells us that, under Sullivan’s second
prong, for evidence to be relevant it must be both “of consequence to the
determination of the action” and “have probative value when offered for that
purpose.” See Payano, 320 Wis. 2d 348, ¶68 (citation omitted). These questions
are inapplicable to the prior-conviction statute.

¶43 Evidence of other acts “is inherently relevant to prove character and
therefore a propensity to behave accordingly,” and so, under Sullivan and WIS.
STAT. § 904.04(2)(a), “the real issue is whether the other act is relevant to
anything else.” Payano, 320 Wis. 2d 348, ¶67 (quoting BLINKA, supra,
§ 404.604). Prior-conviction statute evidence is admissible to prove propensity;
thus, the “real issue” under Sullivan is itself not relevant. See BLINKA, supra,
§ 404.604. Evidence of a conviction for the same crime (or a comparable crime in
another jurisdiction) is clearly probative of “the proposition that because the
person did prior act X, he or she is of such a character and disposition to have
committed present act Y.” See State v. Johnson, 184 Wis. 2d 324, 336-37, 516
N.W.2d 463 (Ct. App. 1994); Guardia, 135 F.3d at 1328 (“A defendant with a
propensity to commit acts similar to the charged crime is more likely to have
committed the charged crime than another. Evidence of such a propensity is
therefore relevant.”).

23
No. 2022AP1718-CR

¶44 The second component of the Sullivan relevancy determination—
concerned with probative value—is not necessarily inapplicable, but it is entirely
superfluous. As explained above, “[t]he measure of probative value in assessing
relevance is the similarity between the charged offense and the other act.”
See Hurley, 361 Wis. 2d 529, ¶79 (citation omitted). Under the prior-conviction
statute, the circuit court is required to determine whether the prior conviction and
the current charge(s) are similar. It would be unproductive to require the court to
conduct the same analysis twice. See Dorsey, 379 Wis. 2d 386, ¶34. If the court
concludes that the prior conviction for the same or a comparable crime in another
jurisdiction is similar to the current charge, then the prior conviction has probative
value and is relevant under WIS. STAT. § 904.01. Cf. Guardia, 135 F.3d at
1330-31 (observing that “[p]ropensity evidence … has indisputable probative
value” and that “propensity evidence has a unique probative value in sexual
assault trials [as those] trials often suffer from a lack of any relevant evidence
beyond the testimony of the alleged victim and the defendant”); United States v.
Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998) (same); Michelson v. United States,
335 U.S. 469, 476 (1948) (noting the “admitted probative value” of propensity
evidence).

¶45 Finally, we come to the third prong of the Sullivan analysis: the
balancing test under WIS. STAT. § 904.03.14 Given the statutory differences in the
14
WISCONSIN STAT. § 904.03 provides: “Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” “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.” State v. Payano, 2009 WI 86, ¶80, 320 Wis. 2d 348, 768 N.W.2d 832 (citation
omitted; formatting altered). “[P]robative value reflects the evidence’s degree of relevance.
Evidence that is highly relevant has great probative value, whereas evidence that is only slightly
relevant has low probative value.” Id., ¶81.

24
No. 2022AP1718-CR

language and required analysis between WIS. STAT. § 904.04(2)(a) and (2)(b)2.,
we conclude that the traditional analysis under Sullivan’s third prong is simply not
a workable test to apply to prior-conviction statute evidence. As the § 904.03
unfair prejudice analysis has developed for other-acts evidence under Sullivan’s
third prong, our supreme court has explained that “[p]rejudice is not based on
simple harm to the opposing party’s case, but rather ‘whether the evidence tends to
influence the outcome of the case by improper means.’” Hurley, 361 Wis. 2d 529,
¶87 (citation omitted). Where other-acts evidence is concerned, “improper means”
would involve the evidence being presented as propensity evidence rather than for
a permitted purpose under § 904.04(2)(a). Put another way, the danger of unfair
prejudice in the context of Sullivan’s third prong is the risk that the jury will draw
an improper propensity inference against the defendant based on the other-acts
evidence. See State v. Fishnick, 127 Wis. 2d 247, 261-62, 378 N.W.2d 272
(1985) (stating that the danger of unfair prejudice when using other-acts evidence
“is the potential harm in a jury’s concluding that because an actor committed one
bad act, he [or she] necessarily committed the crime with which he [or she] is now
charged”). But, again, it is proper under the prior-conviction statute to present
prior conviction evidence to demonstrate propensity.

¶46 Accordingly, rather than assert that Sullivan’s third prong applies to
the prior-conviction statute, it is more appropriate to simply state that the
admission of this evidence is subject to WIS. STAT. § 904.03’s balancing test.15

15
We reach our conclusion that WIS. STAT. § 904.03 applies to the prior-conviction
statute based on State v. Gee, 2019 WI App 31, 388 Wis. 2d 68, 931 N.W.2d 287. In Gee, we
explained that “[i]n drafting WIS. STAT. § 904.04(2)(b)2., the legislature looked to FED. R.
EVID. 413(a).” Gee, 388 Wis. 2d 68, ¶29. FEDERAL R. EVID. 413(a) provides: “Permitted Uses.
In a criminal case in which a defendant is accused of a sexual assault, the court may admit
evidence that the defendant committed any other sexual assault. The evidence may be considered
on any matter to which it is relevant.” See also FED. R. EVID. 414(a) (allowing evidence that the
(continued)

25
No. 2022AP1718-CR

Section 904.03 states that “evidence may be excluded” based on the weighing of
“its”—meaning the evidence’s—probative value against that statute’s enumerated
concerns. Given that the prior-conviction statute admits evidence of the fact of the
conviction, rather than evidence of the underlying conduct, the § 904.03 analysis
would apply to only the fact of the conviction.

¶47 In other words, the question before the circuit court would be
whether the probative value of evidence that a person was previously convicted of
first-degree sexual assault of an adult or child or a comparable offense in another
jurisdiction, absent any details of the case, is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of

defendant “committed any other child molestation”). We observed that FED. R. EVID. 413(a) “is
broader than … § 904.04(2)(b)2., in that it allows other[-]acts evidence to be admitted for any
purpose in the prosecution of any degree of sexual assault,” but we noted that “[n]evertheless,
FED. R. EVID. 413(a) has been held to comport with due process requirements.” Gee, 388
Wis. 2d 68, ¶30. Thus, in part, we based our conclusion that the prior-conviction statute complies
with the requirements of due process on the constitutionality of FED. R. EVID. 413(a). Gee, 388
Wis. 2d 68, ¶37.

In doing so, we relied on United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998).
There, the United States Court of Appeals for the Tenth Circuit considered the constitutionality of
FED. R. EVID. 413(a) and determined that the federal rule was not unconstitutional under the Due
Process Clause of the Fourteenth Amendment because of the safeguards of FED. R. EVID. 403 but
that “without the safeguards embodied in RULE 403,” the rule would be unconstitutional.
See Enjady, 134 F.3d at 1433; Gee, 388 Wis. 2d 68, ¶¶30-31; see also United States v. Mound,
149 F.3d 799, 800-01 (8th Cir. 1998) (same). FEDERAL R. EVID. 403 parallels WIS. STAT.
§ 904.03. Thus, because our holding in Gee was based, in part, on Enjady’s reasoning, we
understand Gee’s holding to be that the prior-conviction statute is also constitutional only when
combined with § 904.03’s evidentiary safeguards. We cannot overrule or modify Gee’s holding
in that regard, see Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997), and we agree
that the admission of prior-conviction statute evidence is subject to § 904.03’s balancing test, see
also State v. Davidson, 2000 WI 91, ¶34, 236 Wis. 2d 537, 613 N.W.2d 606 (noting that all
evidence must clear the balancing test set forth in § 904.03).

26
No. 2022AP1718-CR

cumulative evidence. See WIS. STAT. § 904.03. The court should consider all of
these § 904.03 factors in its analysis.

¶48 As it pertains specifically to unfair prejudice under WIS. STAT.
§ 904.03, we acknowledge that there is clearly still a concern that a jury, presented
with prior conviction evidence, may convict the defendant on the basis that he or
she is a “bad” person. However, as the court in Enjady explained with regard to
FED. R. EVID. 413, the evidentiary rule “is based on the premise that evidence of
other sexual assaults is highly relevant to prove propensity to commit like crimes,
and often justifies the risk of unfair prejudice.” Enjady, 134 F.3d at 1431.
Additionally, a cautionary instruction to the jury may mitigate the possibility of
unfair prejudice. See Hurley, 361 Wis. 2d 529, ¶89 (“Limiting instructions
substantially mitigate any unfair prejudicial effect.”); WIS JI—CRIMINAL 276
(2016).

¶49 Finally, we address the greater latitude rule in the context of the
prior-conviction statute. “Wisconsin has a long common law tradition of applying
more relaxed standards to the admissibility of other[-]acts evidence of similar
crimes in sexual assault cases,” which is known as the greater latitude rule. Gee,
388 Wis. 2d 68, ¶26 (citing Dorsey, 379 Wis. 2d 386, ¶32). In Dorsey, our
supreme court interpreted the meaning of WIS. STAT. § 904.04(2)(b)1. and
determined that it “allows admission of other-acts evidence with greater latitude
under a Sullivan analysis.” Dorsey, 379 Wis. 2d 386, ¶5. In doing so, the court
observed that “the title of subd. (2)(b)1., ‘Greater latitude,’ is instructive.”
Dorsey, 379 Wis. 2d 386, ¶30. While the court “note[d] that ‘[t]itles … are not
part of the statutes,’ WIS. STAT. § 990.001(6),” it affirmed that titles are
“permissible indicators of meaning … for the purpose of … relieving []
ambiguity,” Dorsey, 379 Wis. 2d 386, ¶30 (second and third alteration in original;

27
No. 2022AP1718-CR

citation omitted).16 Accordingly, our supreme court stated: “In the context of its
title, ‘Greater latitude,’ we interpret subd. (2)(b)1. as adopting the common law
greater latitude rule to permit the admission of other, similar acts of domestic
abuse with greater latitude.” Dorsey, 379 Wis. 2d 386, ¶31.

¶50 We apply Dorsey’s holding in this regard to the prior-conviction
statute and conclude that the greater latitude rule applies to all aspects of the
statute’s analysis to allow for the more liberal admission of evidence of a prior
conviction for first-degree sexual assault of an adult or a child (or a comparable
offense in another jurisdiction). The title of WIS. STAT. § 904.04(2)(b) is “Greater
latitude,” and that title would reasonably apply equally to both subd. (2)(b)1. and
subd. (2)(b)2. The Dorsey court’s holding, then, persuades us that subd. (2)(b)2.
also adopts the greater latitude rule. See Dorsey, 379 Wis. 2d 386, ¶31. We are
also persuaded that “the greater latitude rule applies to the entire analysis” under
this statute to “permit the more liberal admission” of prior conviction evidence at
trial. See Davidson, 236 Wis. 2d 537, ¶51; Dorsey, 379 Wis. 2d 386, ¶33. Prior
conviction evidence, however, “is not automatically admissible,” and the circuit
court must still ensure that it is properly admitted pursuant to the rules of
evidence, as discussed above. See Davidson, 236 Wis. 2d 537, ¶52; see also supra
¶¶34-48.

16
In Dorsey, our supreme court concluded that WIS. STAT. § 904.04(2)(b)1. is
ambiguous because the “plain language interpretation of subd. (2)(b)1. contradicts the plain
language of para. (2)(a).” Dorsey, 379 Wis. 2d 386, ¶¶29-30. Ultimately, the court determined
that it could not “read subd. (2)(b)1. as an exception to para. (2)(a)’s general prohibition on
propensity.” Dorsey, 379 Wis. 2d 386, ¶29. The court’s reasoning in Dorsey does not apply here
because the prior-conviction statute is, by its plain language, an exception to para. (2)(a).

28
No. 2022AP1718-CR

III. Exclusion of the 1984 Conviction Was an Erroneous Exercise of
Discretion

¶51 Now that we have determined the proper interpretation of the
prior-conviction statute and what standard for the admission of evidence applies,
we must address whether the circuit court properly excluded evidence of Hill’s
1984 conviction. Determining whether the court properly excluded evidence
requires us to review the court’s exercise of discretion. See State v. Jackson, 2014
WI 4, ¶43, 352 Wis. 2d 249, 841 N.W.2d 791. “A circuit court erroneously
exercises its discretion if it applies an improper legal standard or makes a decision
not reasonably supported by the facts of record.” Id. (citation omitted). “Whether
the circuit court applied the proper legal standards … presents a question of law
subject to independent appellate review.” Pinczkowski v. Milwaukee County,
2005 WI 161, ¶15, 286 Wis. 2d 339, 706 N.W.2d 642.

¶52 On appeal, the State argues that the circuit court erroneously
exercised its discretion by excluding evidence of the 1984 conviction because the
court applied an improper legal standard to its analysis of the prior-conviction
statute. According to the State, the court: (1) completely failed to apply the
greater latitude rule to its “similar” analysis under the prior-conviction statute;
(2) applied the Sullivan test for other-acts evidence to the prior-conviction statute
evidence; and (3) failed to use the correct legal standards for the relevance and
WIS. STAT. § 904.03 analyses.

¶53 Hill argues that the circuit court did properly exercise its discretion
by considering the greater latitude rule and determining that “greater latitude is not
‘total or absolute latitude.’” Further, Hill asserts that the court properly
determined that the dissimilarities between the 1984 conviction and the current

29
No. 2022AP1718-CR

charges were too numerous and that the court appropriately relied on this court’s
unpublished decision in Mitchell.17 Finally, Hill claims that the “court rightfully
identified that admitting the [1984] conviction would result in unfair prejudice to
Mr. Hill that outweighed its low probative value” because “the prior conviction
would arouse the jurors’ ‘senses of horror and punishment’ because there are
‘many ... graphic and disturbing facts involved in the 1984 incident.’”

¶54 We agree with the State that the circuit court failed to correctly
analyze the evidentiary requirements of the prior-conviction statute, which then
led the court to apply an incorrect legal standard to the question of whether the
evidence was admissible. The court properly determined that the 1984 conviction
is a “comparable offense in another jurisdiction.” See WIS. STAT. § 904.04(2)(b)2.
The court erroneously exercised its discretion, however, by deciding that the
1984 conviction is not “similar to” the allegations in the current case. Finally, the
court erroneously failed to consider only the fact of the prior conviction, rather
than the underlying facts of the prior case, being heard by the jury in weighing the
prior conviction’s admissibility under WIS. STAT. § 904.03. Accordingly, we
reverse and remand for the court to apply the proper standard of admissibility to
the 1984 conviction under the prior-conviction statute.

¶55 Hill was convicted of criminal sexual conduct in the first degree
under MINN. STAT. § 609.342(c) (1984). The circuit court agreed with the State
that the 1984 conviction was a “comparable offense in another jurisdiction” within
the meaning of the prior-conviction statute. On appeal, Hill conceded in his

17
As we expressed above, see supra note 6, the circuit court erred by relying on Mitchell
to reach its decision in this case. See WIS. STAT. RULE 809.23(3)(a).

30
No. 2022AP1718-CR

response brief that the offenses were comparable, stating that “the State admittedly
satisfied this requirement.”

¶56 Then, in a surprising turn of events, Hill walked back his concession
at oral argument, arguing before this court that MINN. STAT. § 609.342(c) (1984)
is not comparable to first-degree sexual assault of an adult or first-degree sexual
assault of a child in Wisconsin.18 Hill claimed that the offenses are not
comparable due to the dissimilar titles of the statutes; the fact that MINN. STAT.
§ 609.342(c) (1984) did not require a specific age of the child; and the fact that the
Wisconsin statutes criminalize sexual contact, while the Minnesota statute
required penetration. For these reasons, Hill argued that the statutes are not
identical or narrowly or substantially similar. The State, in response, argued that
“comparable” does not mean “identical.” It further asserted that the fact that the
Minnesota statute required penetration does not impact comparability with the
Wisconsin statute because the Minnesota statute was narrower, rather than
broader.

¶57 We conclude that the circuit court did not erroneously exercise its
discretion by determining that MINN. STAT. § 609.342 (1984) is a “comparable
offense in another jurisdiction.” See WIS. STAT. § 904.04(2)(b)2. As we

18
Given Hill’s failure to develop in his appellate brief his belated claim that the
1984 conviction is not comparable to first-degree sexual assault of an adult or first-degree sexual
assault of a child in Wisconsin and his failure to raise this issue until oral argument, we could
refuse to reach the issue based on the forfeiture rule. See A.O. Smith Corp. v. Allstate Ins. Cos.,
222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998). At oral argument, Hill argued that we
should not conclude that he forfeited this issue because it would be a “disservice to the bench and
the bar to not address it.” We have the authority to disregard a forfeiture and address an allegedly
forfeited claim on the merits. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749
(1999) (“[T]he [forfeiture] rule is one of judicial administration and … appellate courts have
authority to ignore the [forfeiture].”). Here, we choose to address Hill’s claim.

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explained above, see supra ¶¶18-21, this determination is an elements-based
analysis of the criminal statutes generally to determine comparability, subject to
the greater latitude rule. The title of MINN. STAT. § 609.342 (1984) was “Criminal
Sexual Conduct in the First Degree”; thus, both the Minnesota statute and the
Wisconsin statute address criminal sexual conduct in the first degree. The
Minnesota statute criminalized conduct where the defendant “engage[d] in sexual
penetration with another person and if any of the [enumerated] circumstances
exist[ed].” Some of these circumstances included, for example, an age
component, the complainant having “a reasonable fear of imminent great bodily
harm,” the actor being “armed with a dangerous weapon,” or the actor “caus[ing]
personal injury to the complainant.” MINN. STAT. § 609.342 (1984). By
comparison, in this case, Hill was charged under WIS. STAT. § 948.02(1), which is
sexual assault of a child. The Wisconsin statute also contains an age component
as well as provisions for “use or threat of force or violence” and where the actor
“causes great bodily harm.” Sec. 948.02(1).

¶58 Based on our review of the titles and elements of the statutes, we
conclude that the statutes are comparable. Both statutes criminalize conduct as a
first-degree crime, both statutes criminalize sexual penetration/intercourse, both
statutes contain an age element, and both statutes contain provisions addressing
the use or threat of force or violence and bodily harm. Compare WIS. STAT.
§ 948.02(1) with MINN. STAT. § 609.342 (1984). As noted, the statutes need not
be identical or even substantially similar. Especially given the application of the
greater latitude rule, we conclude that the offenses are comparable.

¶59 Next, we address the circuit court’s conclusion that the
1984 conviction is not “similar to the alleged violation[s]” in the current case. As
we explained above, see supra ¶¶29-33, the court must analyze how the prior

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conviction and the current charges were perpetrated to determine whether the
circumstances are “similar.” See WIS. STAT. § 904.04(2)(b)2. Here, the court
conducted a detailed review of the facts underlying the 1984 conviction and the
allegations in the current case. While the court acknowledged some similarities
between the cases, the court also concluded that “the collective factual
dissimilarities between [Hill’s] 1984 Minnesota conviction and the factual
allegations in the case at bar … are clearly significant, compelling, and strong.”

¶60 We conclude that the circuit court erred by determining that the
1984 conviction is not similar to Hill’s current charges. The court appropriately
acknowledged “some level of similarities between” the 1984 conviction and the
current allegations: “[A]ll incidents involve a child victim (approximately the
same age) and all incidents involve unlawful sexual touching and penetration of
the victims’ vaginas with [Hill’s] finger.” The court also noted that Hill had told
both Melody and Hope not to tell anyone about the assaults. As the State argued,
“[s]imilarity in age of victims … is a common and significant fact that courts
consider,” as is the “the nature of the assaults.” See, e.g., Hurley, 361 Wis. 2d
529, ¶¶65-67 (concluding that the victims’ “allegations were similar” and noting
the similar ages of the victims and that “both sets of assaults involved digital
penetration”).

¶61 By focusing on the differences between the 1984 conviction and the
current allegations, however, the circuit court set the similarity bar too high when
viewed under the umbrella of the greater latitude rule. The prior-conviction
statute does not require that the cases be the same or more similar than different.
The statute merely asks whether the cases are similar, and the answer to that
question is subject to the greater latitude rule. The State concedes that the court
identified “two significant dissimilarities”: “Hill’s age at the time of each offense

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No. 2022AP1718-CR

and, relatedly, the remoteness in time.” However, the State notes that “it is clear
that when courts apply the greater latitude rule, these factors are not given
sufficient weight to defeat admissibility where there are relevant similarities.”
See, e.g., Hurley, 361 Wis. 2d 529, ¶¶69, 85 (collecting cases). Even under
Sullivan, our case law recognizes that “[s]ometimes dissimilar events will be
relevant to one another.” Payano, 320 Wis. 2d 348, ¶70 (citations omitted). Thus,
under the proper standard of similarity, as modified by the greater latitude rule, we
conclude that the 1984 conviction is “similar to” the current allegations as a matter
of law, given that the victims were all females, that they were all essentially the
same age, that each allegation involved digital penetration, and that Hill told two
of the girls not to tell anyone.

¶62 Finally, we address the circuit court’s decision to consider the
underlying facts and circumstances of the case to determine admissibility under
WIS. STAT. § 904.03, rather than considering only the fact of the 1984 conviction.
The analysis of the prior-conviction statute evidence under § 904.03 requires the
court to weigh whether the probative value of “evidence that a person was
convicted of a violation of [WIS. STAT. §§] 940.225(1) or 948.02(1) or a
comparable offense in another jurisdiction” “is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” See WIS. STAT. §§ 904.04(2)(b)2., 904.03. Again, this
determination is not made with regard to the details and circumstances of the prior
case because the jury will not hear those details; therefore, there is no possibility
of those details causing unfair prejudice, confusion of the issues, or misleading the
jury. The court should consider only whether mere knowledge of the prior
conviction is inadmissible under § 904.03, subject to the greater latitude rule.

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No. 2022AP1718-CR

¶63 Additionally, in terms of unfair prejudice, we reiterate that this
determination “must be made with great care because ‘[n]early all evidence
operates to the prejudice of the party against whom it is offered…. The test is
whether the resulting prejudice of relevant evidence is fair or unfair.” Payano,
320 Wis. 2d 348, ¶88 (alteration in original; citation omitted); see also State v.
Veach, 2002 WI 110, ¶91, 255 Wis. 2d 390, 648 N.W.2d 447 (affirming the
circuit court’s decision, pursuant to the greater latitude rule, which found “graphic,
disturbing, and extremely prejudicial” other-acts evidence admissible based on its
“tremendous probative value”). As we observed previously, however, the court’s
WIS. STAT. § 904.03 analysis for prior-conviction statute evidence must be
different from its analysis under Sullivan’s third prong for other-acts evidence
because the concern is not the same. See BLINKA, supra, § 404.604 (“In this
context, ‘unfair prejudice’ refers to the danger that the jury will draw the forbidden
character/propensity inference regardless of a[] limiting instruction.”).

¶64 Accordingly, we reverse and remand for the circuit court to apply
the proper standard of admissibility under WIS. STAT. § 904.03 to Hill’s
1984 conviction.

By the Court.—Order reversed and cause remanded with directions.

Recommended for publication in the official reports.

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