                                                              2015 WI 35

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:               2013AP558-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Appellant-Cross-Respondent-
                        Petitioner,
                             v.
                        Joel M. Hurley,
                                  Defendant-Respondent-Cross-Appellant.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 354 Wis. 2d 622, 848 N.W.2d 903
                                  (Ct. App. 2014 – Unpublished)

OPINION FILED:          March 31, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 8, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Marinette
   JUDGE:               David G. Miron

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, C.J., BRADLEY J. dissent. (Opinion
                        Filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For        the   plaintiff-appellant-cross-respondent-petitioner,
the cause was argued by Jacob J. Wittwer, assistant attorney
general, with whom on the briefs was J.B. Van Hollen, attorney
general.


       For the defendant-respondent-cross-appellant, the cause was
argued by Craig S. Powell and Kohler & Hart, S.C., Milwaukee.
The briefs were filed by Craig S. Powell.
                                                                  2015 WI 35
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.   2013AP558-CR
(L.C.     2011CF90)
No.
STATE OF WISCONSIN                      :            IN SUPREME COURT

State of Wisconsin,

          Plaintiff-Appellant-Cross-Respondent-
Petitioner,                                                    FILED
     v.
                                                          MAR 31, 2015
Joel M. Hurley,
                                                             Diane M. Fremgen
                                                          Clerk of Supreme Court
            Defendant-Respondent-Cross-Appellant.




     REVIEW of a decision of the Court of Appeals.             Reversed and

cause remanded to the circuit court with the instruction to

reinstate the judgment of conviction.


     ¶1     MICHAEL J. GABLEMAN, J.   We review an unpublished per

curiam decision of the court of appeals1 reversing in part two

decisions of the Marinette County circuit court.2            In an amended

     1
       State v. Hurley, No. 2013AP558-CR, unpublished slip op.,
(Wis. Ct. App. Mar. 18, 2014) OPINION WITHDRAWN AND REISSUED
(May 6, 2014).
     2
         The Honorable David G. Miron, presiding.
                                                             No.   2013AP558-CR



criminal complaint ("amended complaint") filed on July 29, 2011,

the Marinette County District Attorney's Office charged Joel M.

Hurley ("Hurley") with one count of engaging in repeated acts of

sexual assault of the same child under Wis. Stat § 948.025(1).3

The amended complaint detailed how Hurley sexually assaulted his

stepdaughter, M.C.N., 26 times between 2000 and 2005.                  M.C.N.

was between 6 and 11 years old when the assaults occurred.

      ¶2      Prior to trial, the State filed a motion to admit

other-acts evidence under Wis. Stat. § 904.04(2)(a) (2011-12).

The   State    sought     to   admit   evidence   that    Hurley   repeatedly

sexually assaulted his younger sister, J.G., 25 years prior to

trial.     J.G. stated that the assaults occurred when Hurley was

between the ages of 12 and 14 years old, and J.G. was between

the ages of 8 and 10 years old.              The circuit court granted the

State's    motion   and    admitted    the   other-acts   evidence   for   the



      3
         The amended complaint alleged that Hurley assaulted
M.C.N. between 2000 and 2005.     While the applicable statutes,
Wis. Stat. §§ 948.02 and 948.025, were amended during this
period, the underlying crime with which Hurley was charged
remained materially the same. Under each version of § 948.025,
any person who committed three of more acts of first degree
sexual assault of a child, against the same child, was guilty of
a class B felony.    First degree sexual assault of a child was
defined as sexual contact or sexual intercourse with a person
who has not attained the age of 13 years that did not result in
great bodily harm to the child. M.C.N. was under the age of 13
years during the charging period. Although it is unclear under
which version the Marinette County District Attorney's Office
charged Hurley, the facts alleged in the complaint satisfy each
version.   All subsequent references to the Wisconsin Statutes
are to the 2005-06 version unless otherwise indicated.


                                        2
                                                                       No.        2013AP558-CR



purpose    of    establishing         Hurley's       modus    operandi        (method      of

operation) and opportunity.

      ¶3    At trial, Hurley testified in his own defense and his

attorney    asked      him     twice   whether       he     recalled     the        assaults

alleged by J.G.          Hurley answered that he did not recall the

assaults.       During closing argument, the prosecutor stated, "when

the   defendant       testified,       he   was      asked    by   his       []     attorney

regarding   [J.G.]      he     said    well,    do    you     recall     any       of   these

incidents with [J.G.] ever happening?                      And his answer was no.

The question wasn't did you do this or not, it was do you

recall?     That's different than it didn't happen."                               The jury

found Hurley guilty of one count of engaging in repeated acts of

sexual assault of the same child and the circuit court sentenced

him to 25 years imprisonment consisting of 18 years of initial

confinement and 7 years of extended supervision.

      ¶4    Subsequently,        Hurley      filed     a     post-conviction            motion

arguing that his trial counsel was ineffective for failing to

move to dismiss the amended complaint on due process grounds.
Alternatively,        Hurley    argued      that     the     amended     complaint         was

deficient       and   constituted       plain      error4      requiring           reversal.

Hurley also argued trial counsel was ineffective for failing to

object to the remarks made by the prosecutor during closing

argument.       Finally, Hurley argued that the prosecutor's remarks

      4
       Plain error is "'error so fundamental that a new trial or
other relief must be granted even though the action was not
objected to at the time.'" State v. Jorgensen, 2008 WI 60, ¶21,
310 Wis. 2d 138, 754 N.W.2d 77 (citation omitted).


                                            3
                                                                       No.    2013AP558-CR



during closing argument required a new trial in the interest of

justice.

      ¶5        The   circuit       court    agreed       with    Hurley       that     the

prosecutor's statement was improper and ordered a new trial in

the interest of justice.                The circuit court denied Hurley's

other grounds for relief.

      ¶6        The   State   and    Hurley       filed   cross-appeals        with     the

court      of    appeals.       The     State       argued       the   circuit        court

erroneously exercised its discretion by granting a new trial in

the interest of justice.              Hurley argued that his trial counsel

was   ineffective       for   failing       to    move    to   dismiss       the   amended

complaint on due process grounds.                   Alternatively, Hurley argued

that the amended complaint was deficient and constituted plain

error requiring reversal.              Hurley also argued that the circuit

court   erroneously         exercised       its    discretion     in    admitting      the

other-acts evidence.

      ¶7        The court of appeals agreed with Hurley and concluded

that the amended complaint failed to provide adequate notice,
and thus violated Hurley's due process rights, and that the

circuit court erroneously exercised its discretion in admitting

the other-acts evidence.               Hurley, No. 2013AP558-CR, ¶¶38, 54.

The court of appeals did not address the remarks made by the

prosecutor during his closing argument.

      ¶8        Three issues are presented for our consideration: 1)

whether the amended complaint and information charging Hurley

with one count of engaging in repeated acts of sexual assault of
the same child provided adequate notice to satisfy Hurley's due
                                             4
                                                                     No.    2013AP558-CR



process right to plead and prepare a defense; 2) whether the

circuit court erroneously exercised its discretion in admitting

other-acts      evidence       that     Hurley      had       repeatedly        sexually

assaulted his sister, J.G., when she was between the ages of 8

and 10 years old and he was between the ages of 12 and 14 years

old; and 3) whether the circuit court erroneously exercised its

discretion in ordering a new trial in the interest of justice

because of the prosecutor's remarks during closing argument.

      ¶9    First,      we     hold    that      the    amended       complaint       and

information5 provided adequate notice and thus did not violate

Hurley's    due   process      right    to      plead   and    prepare      a   defense.

Second,    we   hold    that    the    circuit     court      did   not    erroneously

exercise its discretion in admitting the other-acts evidence.

Finally, we hold that the circuit court erroneously exercised

its   discretion       in   granting    a    new   trial      in    the    interest   of

justice.     We therefore reverse the court of appeals and remand

to the circuit court with the instruction that the judgment of

conviction be reinstated.


      5
       "The information is the [charging document] . . .       to
which [a] defendant must enter a plea." Pillsbury v. State, 31
Wis. 2d 87, 93, 142 N.W.2d 187, 191 (1966).     "A defendant has
the benefit of both the factual allegations required in the
complaint and the final statutory charges alleged in the
information."   State v. Copening, 103 Wis. 2d 564, 576, 309
N.W.2d 850 (Ct. App. 1981). However, "[t]he factual allegations
relied on by the state which satisfy the elements of the crime
are more likely found in the complaint.     The facts recited in
the complaint need not be repeated in the information." Id. at
577.    Thus, when discussing the sufficiency of the factual
allegations against Hurley, we refer to the amended complaint.


                                            5
                                                                      No.     2013AP558-CR



              I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      ¶10     On     July    29,    2011,     the        Marinette   County     District

Attorney's        Office    filed   an   amended         complaint   charging     Hurley

with one count of engaging in repeated acts of sexual assault of

the   same        child,    contrary     to       Wis.    Stat.   § 948.025(1),6      for

assaulting his stepdaughter, M.C.N. on three or more occasions

"on and between" 2000 and 2005.

      6
          Wisconsin Stat. § 948.025 provides, in relevant part:

      (1) Whoever commits 3 or more violations under s.
      948.02 (1) or (2) within a specified period of time
      involving the same child is guilty of:

          . . .

      (ar) A Class B felony if fewer than 3 of the
      violations were violations of s. 948.02 (1) (a) but at
      least 3 of the violations were violations of s. 948.02
      (1) (a) or (b).

      Wisconsin Stat. § 948.025 does not require proof of an
exact offense date and was

      enacted to address the problem that often arises in
      cases where a child is the victim of a pattern of
      sexual abuse and assault but is unable to provide the
      specifics of an individual event of sexual assault.
      The purpose of the legislation was to facilitate
      prosecution of offenders under such conditions.

State v. Nommensen, 2007 WI App 224, ¶15, 305 Wis. 2d 695, 741
N.W.2d 481. A jury is required to agree unanimously only to the
fact that three separate assaults occurred, not to which three
assaults occurred.   State v. Johnson, 2001 WI 52, ¶¶14-15, 243
Wis. 2d 365, 627 N.W.2d 455. "In other words, it is the course
of sexually assaultive conduct that constitutes the primary
element of this offense, about which the jury must be unanimous
(the second and third elements are the age of the victim and the
timing of the acts). . . . Unanimity is explicitly not required
regarding the individual acts of sexual assault." Id., ¶16.


                                              6
                                                                    No.     2013AP558-CR



       ¶11    According      to     the     amended      complaint,       Hurley     and

M.C.N.'s mother were married sometime in 2000 and divorced in

November 2006.         The family lived together at a residence in

Peshtigo, Wisconsin.              According to M.C.N. the assaults began

shortly after the marriage in 2000, when she was 6 years old,

and lasted until 2005, when she was 11 years old.                               All the

sexual assaults occurred at the family residence.

       ¶12    According to the amended complaint, M.C.N. explained

that the assaults began "as the defendant played a type of game

with her."       When M.C.N.'s mother was away from the residence,

Hurley chased M.C.N. around the house and removed her clothing

when he caught her.               According to the amended complaint, the

chasing game happened one time.

       ¶13     Hurley then started coming into M.C.N.'s bedroom at

night and would get into bed with her.                    Hurley then placed his

hand   into    M.C.N.'s      pajama       bottoms   and    inserted       his   fingers

inside her vagina.           The amended complaint relates that M.C.N.

said Hurley did this "approximately five times during the time
she lived with him."              The amended complaint also stated that

during these incidents Hurley tried "to get her to touch him,

which M.C.N. stated she did during one of these encounters."

M.C.N.   was    unsure    whether         her   mother    was   home   during      these

assaults.

       ¶14    Around   the    same     time      that    the    nighttime       assaults

began, Hurley began weighing M.C.N. while she was naked when she

got home from school.             During this game Hurley "would have her
take her clothing off and would put her on his shoulders to take
                                            7
                                                                        No.     2013AP558-CR



her into the bathroom" where he would weigh her on a scale.

M.C.N. said that Hurley did this frequently, in excess of 20

times, when she was between the ages of 6 and 11 years old.

M.C.N. stated that during these incidents Hurley "would not go

any further than have her naked on his shoulders and weigh her."

       ¶15    During one of the "last occasions" Hurley got into the

shower with M.C.N. after school.                    M.C.N. stated she was naked

but Hurley had on his underwear.                   Hurley asked her "you're not

going to tell your mother are you?"                  M.C.N. replied "yes," which

caused Hurley to leave the shower.

       ¶16    M.C.N. stated these incidents occurred until 2005, one

year prior to the 2006 divorce.                  M.C.N. estimated Hurley weighed

her naked in excess of 20 times, placed his fingers inside of

her vagina approximately five times, and forced her to touch his

genitals one time while he was touching her genitals.

       ¶17    M.C.N. stated that she disclosed the assaults to a few

friends in 2010 and decided to disclose the assaults to her

mother in September 2010 when she was 15 years old after Hurley
moved to Indiana.

       ¶18    Before trial, the State filed a motion to introduce

other-acts         evidence       that   Hurley          had     repeatedly          sexually

assaulted         his   younger    sister,       J.G.,    over    the   course        of   two

years, from 1984 to 1986, when she was between the ages of 8 and

10 years old, and he was between the ages of 12 and 14 years

old.         At    the    motion    hearing        J.G.    testified          that     Hurley

repeatedly sexually assaulted her.                   J.G. testified that, while
their parents were away, Hurley asked her to remove her clothes,
                                             8
                                                                          No.     2013AP558-CR



put on a fur coat, and meet him in their parents' bedroom.                                   When

J.G. entered, Hurley was naked under the covers and asked J.G.

to    slowly    perform      a   strip     tease.         J.G.    stated        that    Hurley

fondled himself while watching her, that they performed oral sex

on each other, and that Hurley made J.G. fondle him.                                         J.G.

further testified that Hurley often penetrated her vagina with

his fingers, and there was a lot of "humping," but she could not

recall whether Hurley penetrated her vagina with his penis.

       ¶19     The    circuit      court    granted        the        other-acts       motion,

concluding that the evidence was admissible to show opportunity

and method of operation.             The circuit court also concluded that

the     evidence      was    relevant      and    that      it        bolstered     M.C.N.'s

credibility.         The circuit court explained that there was great

similarity      between      the   assaults       because        1)    the   victims         were

similar in age, 2) Hurley played a game with each victim before

the assaults, and 3) each victim was digitally penetrated by

Hurley, a trusted family member, in a private bedroom.                              Finally,

the circuit court concluded the testimony would not be unfairly
prejudicial if the court gave two limiting instructions.

       ¶20     At trial, Hurley testified in his own defense.                           Hurley

denied assaulting M.C.N. and testified that his job required

some travel causing his absence from one day to one week at a

time.        Hurley did not present an alibi defense.                             On direct

examination      Hurley      was    asked    by     his    attorney:         "Now,      [J.G.]

testified      that    she   was    assaulted       when     she       believed        she   was

around eight years old.             Do you recall having an encounter with
[J.G.] when she was around eight?"                   Hurley answered: "No."                    He
                                             9
                                                                   No.     2013AP558-CR



was   then   asked    by     his   attorney:   "Do     you    recall     any   of   the

allegations [J.G.] brought up here today?"                        Hurley answered:

"No, I do not."       During closing arguments the assistant district

attorney stated: "when the defendant testified, he was asked by

his—by the attorney regarding [J.G.] he said well, do you recall

any of these incidents with [J.G.] ever happening?                             And his

answer was no.        The question wasn't did you do this or not, it

was do you recall?            That's different than it didn't happen."

Hurley's trial counsel did not object.                  The assistant district

attorney had in his possession a police report which explained

that on September 26, 2010, J.G.                 confronted Hurley over the

phone about the assaults he committed against her.                       During this

conversation Hurley denied assaulting J.G.

      ¶21    The jury found Hurley guilty and the circuit court

sentenced Hurley to 25 years imprisonment consisting of 18 years

of initial confinement and 7 years of extended supervision.

      ¶22    Hurley   subsequently       filed    a    post-conviction         motion,

arguing the amended complaint violated his right to due process
by failing to provide adequate notice to plead and prepare a

defense, and that his trial counsel was ineffective for failing

to move to dismiss the amended complaint.                 Alternatively, Hurley

argued that the amended complaint was deficient and constituted

plain error requiring reversal.                Hurley also argued that his

counsel      was    ineffective        for    failing        to   object       to   the

prosecutor's       remarks    during    closing       arguments.         Hurley     also

requested a new trial in the interest of justice because of the


                                         10
                                                                                   No.     2013AP558-CR



prosecutor's                purportedly        improper             remarks        during      closing

argument.

       ¶23       At a Machner7 hearing, Hurley's trial counsel testified

that       he    decided          not    to    file           a    motion     to    dismiss      after

researching            the    issue      of    constitutionally              deficient         charging

documents and discussing the matter with Hurley.                                         Counsel said

that he concluded a motion to dismiss would likely fail based on

his reading of the case law, and that, even if it had succeeded,

the State would likely re-file with additional details.                                            With

regard          to     the     allegedly        improper             remarks,       trial       counsel

testified            that    he   made     a   strategic            decision       not    to   object,

explaining an objection would have drawn "more attention from

the jury" to a statement that the prosecutor "said very quickly

and didn't harp on."

       ¶24       The        circuit     court       rejected         Hurley's       notice       claim.

However,         the    court      ordered          a    new      trial     in   the     interest    of

justice based on the prosecutor's remarks that Hurley did not

recall assaulting J.G.                   Both parties filed cross-appeals.                       In an
unpublished per curium decision, the court of appeals reversed

in   part        concluding         that       1)       the       amended    complaint         violated

Hurley's right to due process, and 2) the circuit court erred in

admitting J.G.'s other-acts evidence.                               Hurley, No. 2013AP558-CR,

¶¶38, 54.             The court of appeals did not address whether the

closing argument remarks were improper.

       7
           State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).


                                                        11
                                                                         No.      2013AP558-CR



       ¶25    The    State    petitioned           for   review,      which      this   court

granted on September 18, 2014.

                              II. STANDARD OF REVIEW

       ¶26    Whether a complaint and information are sufficient to

provide notice to the defendant is a question of constitutional

fact that we review de novo.              State v. Fawcett, 145 Wis. 2d 244,

249, 426 N.W.2d 91 (Ct. App. 1988).                      "The criminal complaint is

a self-contained charge which must set forth facts that are

sufficient, in themselves or together with reasonable inferences

to    which   they    give     rise,     to    allow      a     reasonable        person   to

conclude      that   a     crime   was    probably        committed         and    that    the

defendant is probably culpable."                     Id. at 250 (citing State v.

Hoffman, 106 Wis. 2d 185, 197, 316 N.W.2d 143 (Ct. App. 1982)).

The sufficiency of a pleading is a question of law reviewed

independently.        Id.     In reviewing a complaint, our analysis is

restricted     to    the     charging     document        and    we    do    not    consider

extrinsic evidence.

       ¶27    In order to satisfy the requirements of the United
States and Wisconsin Constitutions, the charges in the complaint

and    information       "must     be    sufficiently           stated      to    allow    the

defendant to plead and prepare a defense."                         Id.      When reviewing

the sufficiency of the complaint and information, we consider

two factors: "whether the accusation is such that the defendant

[can] determine whether it states an offense to which he [can]

plead and prepare a defense and whether conviction or acquittal

is a bar to another prosecution for the same offense."                              Holesome
v. State, 40 Wis. 2d 95, 102, 161 N.W.2d 283 (1968).
                                              12
                                                                            No.     2013AP558-CR



       ¶28    The    admission        of    other-acts      evidence        is     within   the

trial court's discretion.                  State v. Davidson, 2000 WI 91, ¶38,

236 Wis. 2d 537, 613 N.W.2d 606.                     "We review a circuit court's

admission of other-acts evidence for an erroneous exercise of

discretion."         State v. Marinez, 2011 WI 12, ¶17, 331 Wis. 2d

568, 797 N.W.2d 399 (citing State v. Hunt, 2003 WI 81, ¶34, 263

Wis. 2d 1, 666 N.W.2d 771).                   A reviewing court will uphold a

circuit court's evidentiary ruling if it "'examined the relevant

facts, applied a proper standard of law, used a demonstrated

rational      process      and    reached     a    conclusion       that       a    reasonable

judge could reach.'"             Id. (quoting Hunt, 263 Wis. 2d 1, ¶34).

       ¶29    "When reviewing a circuit                   court's determination for

erroneous exercise of discretion an appellate court may consider

acceptable purposes for the admission of evidence other than

those contemplated by the circuit court, and may affirm the

circuit court's decision for reasons not stated by the circuit

court."      Hunt, 263 Wis. 2d 1, ¶52.                    "'Regardless of the extent

of the trial court's reasoning, [a reviewing court] will uphold
a discretionary decision if there are facts in the record which

would support the trial court's decision had it fully exercised

its     discretion."             Id.       (citing    State       v.      Shillcutt,        116

Wis. 2d 227, 238, 341 N.W.2d 716 (Ct. App. 1983), aff'd on other

grounds, 119 Wis. 2d 788, 350 N.W.2d 686 (1984)).

       ¶30    "A trial court's ruling on a postconviction motion for

a     new    trial    in    the       interest       of    justice        is       within   its

discretion."          State      v.    Williams,     2006    WI     App     212,     ¶13,   296
Wis. 2d 834,         723   N.W.2d 719         (citing       State      v.      Randall,     197
                                              13
                                                               No.   2013AP558-CR



Wis. 2d 29,   36,    539   N.W.2d 708      (Ct.   App.    1995)).     Thus,    we

review the circuit court's decision granting of Hurley's motion

for an erroneous exercise of discretion.                 Id.   "A trial court

properly exercises its discretion if it applies accepted legal

standards to the facts in the record."            Id.    (citation omitted).

                             III. DISCUSSION

    ¶31   We first consider whether the amended complaint and

information   provided     adequate   notice      to    satisfy   Hurley's    due

process right to plead and prepare a defense, and conclude that

it did.   We then address whether the circuit court erroneously

exercised its discretion in admitting other-acts evidence that

Hurley had sexually assaulted his sister, J.G., when they were

children, and conclude that it did not.                  Finally, we consider

whether the circuit court erroneously exercised its discretion

in granting a new trial in the interest of justice, and conclude

that it did.        We therefore reverse the court of appeals and

remand to the circuit court with the instruction to reinstate

the judgment of conviction.
    A. Under the Totality of the Circumstances, the Amended

 Complaint and Information Provided Hurley with Adequate Notice

                    to Plead and Prepare a Defense.

    ¶32   When reviewing the sufficiency of a criminal complaint

and information, a court considers "whether, under the totality

of the circumstances, the complaint and information allege facts




                                      14
                                                                                No.     2013AP558-CR



such that the defendant can plead and prepare a defense."8                                       State

v. Kempainen, 2015 WI 32, ¶36,                       Wis. 2d         ,         N.W.2d        .

       ¶33      Child sexual assaults are difficult crimes to detect

and to prosecute, as typically there are no witnesses except the

victim and the perpetrator.                 Fawcett, 145 Wis. 2d at 249.                         Often

the child is assaulted by a trusted relative and does not know

whom to turn to for protection.                       Id.      The child may have been

threatened,         or,   as   is    often      the    case,        may    harbor       a    natural

reluctance to          come forward.             Id.        "These circumstances many

times serve to deter a child from coming forth immediately.                                        As

a result, exactness as to the events fades in memory."                                             Id.

Thus, "[y]oung children cannot be held to an adult's ability to

comprehend and recall dates and other specifics."                                 Id.       See also

Gail       S.   Goodman   &    Vicki      S.    Helgeson,       Child          Sexual       Assault:

Children's Memory and the Law, 40 U. Miami L. Rev. 181, 185-86

(1985) (explaining that "children often retain and report less

than       adults     do").     "A    person         should    not        be   able     to    escape

punishment for such a . . . crime because he has chosen to take
carnal knowledge of an infant too young to testify clearly as to

the time and details of such . . . activity."                              State v. Sirisun,

90   Wis. 2d        58,   65-66      n.4,      279    N.W.2d        484    (Ct.       App.    1979).

"However,        no    matter       how     abhorrent         the     conduct         may    be,    a




       8
       Neither Hurley nor the State raise the double jeopardy
factor,   whether  conviction  would  be   a  bar to  another
prosecution. Therefore, we do not address it.


                                                15
                                                                     No.   2013AP558-CR



defendant's    due     process    [rights] . . . may         not     be    ignored      or

trivialized."    Fawcett, 145 Wis. 2d at 250.

    ¶34     Because     "[t]ime       is   not   of   the   essence        in    [child]

sexual assault cases" when the date of the commission of the

crime is not a material element of the offense, it need not be

precisely alleged.       Id. at 250; see also Hoffman, 106 Wis. 2d at

198-99    ("'[W]here     time    of    commission      of   a   crime       is    not   a

material     element    of   the      offense     charged,      it     need      not    be

precisely alleged.'").           A "more flexible application of notice

requirements is required and permitted [in child sexual assault

cases].    The vagaries of a child's memory more properly go to

the credibility of the witness and the weight of the testimony,

rather than to the legality of the prosecution in the first

instance."    Fawcett, 145 Wis. 2d at 254.

    ¶35     With these considerations in mind, the Fawcett court

adopted a seven factor test to apply when determining whether a

charge of sexual abuse of a child provides adequate notice.

These factors include:

    (1) the age and intelligence of the victim and other
    witnesses; (2) the surrounding circumstances; (3) the
    nature of the offense, including whether it is likely
    to occur at a specific time or is likely to have been
    discovered immediately; (4) the length of the alleged
    period of time in relation to the number of individual
    criminal acts alleged; (5) the passage of time between
    the alleged period for the crime and the defendant's
    arrest; (6) the duration between the date of the
    indictment and the alleged offense; and (7) the
    ability of the victim or complaining witness to
    particularize the date and time of the alleged
    transaction or offense.
Id. at 253.

                                           16
                                                                        No.       2013AP558-CR



       ¶36    As we explain in Kempainen,                        Wis. 2d            , ¶4, a

reviewing court may apply the seven Fawcett factors, and may

consider      any    other      relevant      factors      necessary         to    determine

whether a criminal complaint and information provide adequate

notice.       No single factor is dispositive, and not every Fawcett

factor will necessarily be present.

       ¶37    Before turning to the Fawcett factors, we must address

the    parties'      dispute     over       how    many   individual         assaults          are

alleged in the amended complaint because the criminal complaint

places a defendant on notice as to what he may have to defend

against.       The State contends that the amended complaint alleged

26 assaults while Hurley claims the amended complaint alleged

five assaults.         "A criminal complaint is a self-contained charge

which must set forth facts that are sufficient, in themselves or

together with reasonable inferences to which they give rise, to

allow a reasonable person to conclude that a crime was probably

committed      and      that    the     defendant         is    probably      culpable."

Hoffman, 106 Wis. 2d at 197; State ex rel. Evanow v. Seraphim,
40 Wis. 2d 223, 226, 161 N.W.2d 369 (1968).                          A complaint must

put forth "enough that a fair-minded magistrate could conclude

that    the     facts     and     circumstances           alleged      justify          further

criminal      proceedings        and    that       the    charges      are    not        merely

capricious."           Hoffman,        106    Wis. 2d      at    200     (citation             and

quotation      omitted).          We    have       previously       explained           that    a

criminal      complaint        must    answer      five    questions         when       stating

probable      cause:    "1)     Who    is    charged?;     2)    What   is        the    person
charged with?; 3) When and where did the alleged offense take
                                              17
                                                           No.    2013AP558-CR



place?; 4) Why is this particular person being charged; and 5)

Who says so? or How reliable is the informant?"            State v. White,

97 Wis. 2d 193, 203, 295 N.W.2d 346, 350 (1980).            In reviewing a

complaint, our analysis is restricted to the charging document

and we do not consider extrinsic evidence.

      ¶38   The amended complaint alleges six acts that occurred

in M.C.N.'s bed: five acts of digital penetration of the vagina

and   one   act   of   forced   touching   of   Hurley's    genitals,     all

contrary to Wis. Stat. § 948.02(1)(b).9           The amended complaint

reads:

      9
       Wisconsin Stat. § 948.02(1)(b) states: "Whoever has sexual
contact or sexual intercourse with a person who has not attained
the age of 13 years is guilty of one of the following: If the
sexual contact or sexual intercourse did not result in great
bodily harm to the person, a Class B felony."

     The definition of sexual intercourse, which was constant
throughout the charging period, was

      vulvar penetration as well as cunnilingus, fellatio or
      anal   intercourse  between  persons   or  any   other
      intrusion, however slight, of any part of a person's
      body or of any object into the genital or anal opening
      either by the defendant or upon the defendant's
      instruction. The emission of semen is not required.

Wis. Stat. § 948.01(6).

     Sexual contact, as applicable here, remained                   constant
throughout the charging period, and was defined as:

      (a) Any of the following types of intentional
      touching, whether direct or through clothing, if that
      intentional touching is either for the purpose of
      sexually   degrading  or   sexually  humiliating  the
      complainant or sexually arousing or gratifying the
      defendant:

                                                                 (continued)
                                    18
                                                         No.     2013AP558-CR


     [Hurley] would get into bed with [M.C.N.] and place
     his hand into her pajama bottoms and put his fingers
     inside her vagina.     M.C.N. said she thought this
     occurred approximately five times during the time she
     lived with him.    On these occasions, the defendant
     would also try to get her to touch him, which M.C.N.
     stated she did during one of these encounters.
We agree with the State that the incident of forced touching of

Hurley's genitals is sufficiently alleged because the context——

where M.C.N. had just alleged Hurley committed acts of digital

penetration——indicates that Hurley forced M.C.N. to touch his

genitals while he touched her genitals.

     ¶39    Additionally, at least twenty acts of sexual contact

with a child under the age of thirteen, contrary to Wis. Stat.

§ 948.02(1)(b)10   are   alleged   that   relate   to   the    after-school

weighing incidents.      The amended complaint alleges:

     [M.C.N.] stated that after getting home from school,
     the defendant would have her take her clothing off and
     would put her on his shoulders to take her into the

     1. Intentional touching by the defendant or, upon the
     defendant's instruction, by another person, by the use
     of any body part or object, of the complainant's
     intimate parts.

     2. Intentional touching by the complainant, by the use
     of any body part or object, of the defendant's
     intimate parts or, if done upon the defendant's
     instructions, the intimate parts of another person.

Wis. Stat. § 948.01(5).

     Intimate parts was also consistent throughout the charging
period and was defined as "the breast, buttock, anus, groin,
scrotum, penis, vagina or pubic mound of a human being."   Wis.
Stat. § 939.22(19).
     10
          See supra, note 9.


                                   19
                                                                         No.   2013AP558-CR


       bathroom. He would then put her on the scale. These
       incidents occurred on a very frequent basis, M.C.N.
       thought a couple of times per week. . . . [The
       defendant] weighed her naked in excess of 20 times.
When Hurley had M.C.N. take off her clothes so that he could

carry her naked on his shoulders, her intimate parts (buttocks,

groin, vagina, or pubic mound) would necessarily have been in

contact with Hurley's neck and shoulders.                          "Intent can [] be

inferred from the circumstances and from one's acts."                              Hoffman,

106   Wis.     2d    at   200.     The     circumstances         here    (frequent    nude

weighing, nude "rides" on Hurley's shoulders, and the five acts

of    digital       penetration     and    one       act   of   forced    touching)    are

sufficient to draw a reasonable inference that Hurley acted with

sexual intent during these incidents.

       ¶40     These      26     acts     in        the    amended      complaint     were

sufficiently alleged to put Hurley on notice that he might have

to    defend    against        these     allegations       as   incidents      of   sexual

intercourse and sexual contact.11                    Therefore, our application of

the Fawcett factors will be grounded in the conclusion that the

amended      complaint         alleges    26        separate    and     distinct    sexual

assaults.

       ¶41     Further, before applying the Fawcett factors, it is

important to reiterate our conclusion in Kempainen that State v.

R.A.R., 148 Wis. 2d 408, 408, 435 N.W.2d 315 (Ct. App. 1988),


       11
       Because we are bound by the four corners of the amended
complaint and do not examine extrinsic evidence, we do not
examine any facts adduced at trial, what the prosecution focused
on, or the court's jury instructions.


                                               20
                                                                            No.       2013AP558-CR



incorrectly      limited         a    court's         consideration        of     factors       one

through      three    to    situations           where    a   defendant          alleges       that

prosecutors could have obtained a more narrow offense period

through diligent efforts.                   As we explain in Kempainen, Fawcett

made    no   such    limitation.             Kempainen,               Wis.       2d        ,    ¶28

("'courts     may     consider        these      factors      and    any    other       relevant

factors helpful.           . . . To the extent that R.A.R. conflicts with

the holding in Fawcett, and thus limits the factors a court may

consider      when     applying            the    Holesome          test    [(whether           the

accusation is such that the defendant can determine whether it

states an offense to which he can plead and prepare a defense

and    whether       conviction        or     acquittal       is     a     bar    to     another

prosecution for the same offense)] it is overruled.").                                   Fawcett

concluded that all seven factors can "assist us in determining

whether the Holesome test is satisfied" and proceeded to apply

all seven factors.            Id. at 253-54.              See also State v. Miller,

2002 WI App 197, 257 Wis. 2d 124, 650 N.W.2d 850 (applying all

seven Fawcett factors despite the absence of any claim of a lack
of     prosecutorial        diligence).                When    evaluating             whether     a

complaint and information give a defendant sufficient notice a

court may examine all the Fawcett factors, and any other factors

it deems relevant.

       ¶42    Turning to the Fawcett factors, factor one, the age

and    intelligence         of       the    victim,       weighs      in     favor       of     our

conclusion that the amended complaint and information provided

notice.      In a prosecution under Wis. Stat. § 948.025, due weight
must be given to the impact of the repeated nature of the sexual
                                                 21
                                                                                No.    2013AP558-CR



assaults on a child's ability to provide details.                                     Contrary to

the court of appeals' conclusion that the assaults may not have

begun    until      M.C.N.       was     11    years       old,   the      amended      complaint

plainly      states       that     the     assaults         began     "shortly         after   the

marriage at the residence" when M.C.N. was six years old.                                          At

age six, M.C.N. was still a young child.                              At this young age it

is highly unlikely that she could particularize the dates or the

sequences in which the assaults occurred.                               Even at the age of

ten years old, given her young age and intelligence, M.C.N. was

likely      rendered           incapable       of     reporting           the     incidents        or

recalling        back     to    the    exact        date    or    time      period      when   the

assaults began.

      ¶43     Further, as described below, assaults committed by a

stepfather against a young girl constitute a compelling reason

for the delay in reporting.                    See generally Miller, 257 Wis. 2d

124, ¶31 (describing that where the sexual assault of a child

occurred     in     a    doctor-patient          relationship,            the     trust     that   a

child would place in a doctor would explain a delay in reporting
and   thus       such    delay    would       not    create       a   due       process     issue);

Goodman      &     Helgeson,          supra,     Child       Sexual         Assault,        185-86.

Additionally,           the    repeated       and    similar      nature         of   the    crimes

could reasonably have led                     to M.C.N.'s         failure to recall the

exact dates and times of the assaults.                                Goodman & Helgeson,

supra,      Child       Sexual     Assault,          190-91.          A     child      repeatedly

assaulted at such a young age is likely extremely confused and

upset, and it is not surprising that she would not take note of
the specific date on which the assaults occurred.
                                                22
                                                              No.    2013AP558-CR



       ¶44    Factors two and three, the surrounding circumstances

and the nature of the offense, including whether it is likely to

occur at a specific time or is likely to have been discovered

immediately, also weigh         in favor of       our conclusion that the

amended complaint and information provided notice.                   Hurley was

M.C.N.'s stepfather and they lived together in the same home.

Hurley allegedly committed the assaults when they were alone,

and the assaults were frequent and similar in nature.                        "Child

molestation often encompasses a period of time and a pattern of

conduct.      As a result, a singular event or date is not likely to

stand out in [a] child's mind."             Fawcett, 145 Wis. 2d at 254.

Goodman & Helgeson, supra, Child Sexual Assault, 190 ("Children

can    order    simple,    familiar    events       quite    well,     but    have

difficulty ordering more complex, less familiar events.").

       ¶45    The acts occurred in the family home when Hurley may

have been alone with M.C.N., either at night or after school.

The assaults were not likely to happen on any particular day,

and M.C.N. was as specific as could reasonably be expected about
the times at which they took place.               Given that M.C.N. was the

only    witness,     was   assaulted    in    the     home    during     regular

activities, and was dissuaded from reporting by Hurley during

the shower incident, it is unlikely that the crimes would have

been discovered immediately or would have occurred at a specific

time or at a unique location that would have stuck out in a

child's      mind.   Further,    during     the    shower    incident,       Hurley

specifically asked if M.C.N. was going to tell her mother, as if
to ward off potential accusations and to dissuade M.C.N. from
                                       23
                                                                 No.     2013AP558-CR



coming forward to tell her mother, the most likely person that

could have helped.           Finally, as Hurley's stepdaughter, M.C.N.

would undoubtedly feel vulnerable as Hurley held a position of

authority over M.C.N. as her stepfather and the sexual acts he

performed on her highlighted his position of dominance.

       ¶46    The assaults themselves, the statement made by Hurley

to M.C.N., and Hurley's paternal relationship indisputably would

have    had    a    significant    impact     on    M.C.N,     and     thus    it   is

reasonable that no single incident stood out in M.C.N.'s memory.

When a parent abuses a child's trust and takes advantage of the

child's vulnerability, it is also understandable that a child

may not immediately come forward.              M.C.N.'s age at the time of

the    assaults     and   the    circumstances     surrounding       the      assaults

"represent         the    most    compelling       factor[s]     in      explaining

[M.C.N.'s] delay in reporting."              Miller, 257 Wis. 2d 124, ¶¶30-

31.

       ¶47    Factor four, the length of the alleged period of time

in relation to the number of individual criminal acts alleged
further belies Hurley's claim.           The amended complaint alleged 26

separate criminal acts spanning six years.               The court of appeals

was incorrect in determining that "[a]ll of the acts could have

occurred within a single month in 2000, or within a single month

in 2005."      Hurley, No. 2013AP558-CR, ¶29.           The amended complaint

was clear that M.C.N. stated that the offenses occurred over

several years        and began shortly after the marriage in 2000.

Though M.C.N. could not state the order of the assaults or what
month each assault occurred in, given that the assaults were
                                        24
                                                                      No.     2013AP558-CR



committed by her stepfather as well as their cumulative nature,

"the    vagaries      of    [M.C.N's]      memory     more   properly        go    to    the

credibility of the witness and the weight of the testimony,

rather than to the legality of the prosecution."                            Fawcett, 145

Wis. 2d at 254.

       ¶48    At     the   time    of     the    assaults    Hurley     was       M.C.N.'s

stepfather, and they lived together in the same house.                                  As a

result, the defenses available to Hurley were limited.                             Hurley

contends      that,        with   a      narrower     charging      period,        it     is

conceivable        that     he    could     have    raised     an   alibi         defense.

However, as the court of appeals explained in Fawcett:

       an alibi defense does not change the nature of the
       charges against the defendant or suddenly incorporate
       time as a necessary element of the offense. . . . If
       we required that a complaint be dismissed for lack of
       specificity when a defendant indicated a desire to
       assert an alibi defense, such a holding would create
       potential for an untenable tactic: a defendant would
       simply have to interpose an alibi defense in order to
       escape prosecution once it became apparent that a
       child victim/witness was confused with respect to the
       date or other specifics of the alleged criminal
       event. . . . We decline to adopt such a rule.
Fawcett, 145 Wis. 2d at 254 n.3.                   See also People v. Jones, 792

P.2d 643 (Cal. 1990) (concluding that where a defendant has

lived with a victim for an extensive period of time and has thus

had continuous access to the victim, neither alibi nor mistaken

identity are likely defenses).                  We too decline to adopt such a

rule.        Thus,    factor      four    weighs     against     Hurley's         argument

because no indication exists that a narrower charging period
would have changed or aided his defense under the circumstances.


                                            25
                                                                      No.    2013AP558-CR



       ¶49    Factors five and six, the passage of time between the

alleged period of the crime and the defendant's arrest, and the

duration      between   the    date   of     the      complaint     and     the   alleged

offense, while at first blush may support Hurley's claim, a

close examination proves they do not.

       ¶50    These factors address the "problem of dimmed memories

and    the    possibility     that    the    defendant       may    not     be    able    to

sufficiently      recall     or   reconstruct         the   history    regarding         the

allegations."      Miller, 257 Wis. 2d 124, ¶35.                   The offense period

here ended in 2005, the investigation did not begin until 2010,

and the District Attorney did not charge                       Hurley       until 2011.

Hurley advances a strictly mechanical and mathematical approach

to these factors.            Hurley simply points out that the charging

period was from 2000 to 2005, and the District Attorney's Office

did not charge him until June 2011, 5 to 10 years after the

assaults.12      In essence, what Hurley is arguing is that too much

time    has    passed   to    allow   for        a   prosecution.         However,       the

District Attorney's Office filed the amended complaint within
the period prescribed by the applicable statute of limitations.13
       12
       The court of appeals' discussion of these factors was
just as mechanical, in that it merely examined the length of
time and compared it to the length of time that was rejected in
R.A.R. Hurley, No. 2013AP558-CR, ¶31.
       13
       The amended complaint alleged a violation of Wis. Stat.
§ 948.025(1). A prosecution under Wis. Stat. § 948.025(1) (a),
(b), (c), or (d) "may be commenced at any time."     Wis. Stat.
§ 939.74(2)(a)(1) (2011-12).   A prosecution under Wis. Stat.
§ 948.025(1)(e) "shall be commenced before the victim reaches
the age of 45 years or be barred."    Wis. Stat. § 939.74(2)(c)
(2011-12).


                                            26
                                                                              No.        2013AP558-CR



"'The statute of limitations is the                             principal     device . . . to

protect against prejudice arising from a lapse of time between

the    date    of       an     alleged    offense         and    an   arrest.'"           State    v.

McGuire,      2010        WI    91,    ¶45,     328      Wis.    2d   289,    786       N.W.2d    227

(quoting State v. Wilson, 149 Wis.2d 878, 903, 440 N.W.2d 534

(1989)).           If     we    were     to    accept       Hurley's     argument         we   would

invalidate          the      statute      of     limitations          because       the     amended

complaint was filed within the statute of limitations.

       ¶51     Thus, a purely mathematical approach is impracticable

when    determining            the     overall       reasonableness          of    the     charging

period.       The long delay may have hampered Hurley's ability to

provide a defense; however, Hurley has not explained how this

delay    actually            impacted     his       ability      to   plead       and    prepare   a

defense.           Nor has Hurley alleged, much less demonstrated, any

improper purpose for the delay.                          See Kempainen,             Wis. 2d         ,

¶39.    Simply stating that he has been impacted is insufficient.

A defendant arguing that factors five and six weigh in his favor

must articulate how his ability to present a defense has been
impaired.          Further, as the State suggests, good reason exists

for the delay; namely, the fact that M.C.N. waited to report the

incidents          until       2010     when        Hurley      moved    away       to     Indiana.

Therefore, factors five and six weigh in favor of our conclusion

that the amended complaint and information provided notice.

       ¶52     Factor seven, the ability of the victim or complaining

witness       to    particularize             the    date       and   time    of    the     alleged

offense, weighs against Hurley's argument.                              As we explained when
describing the first three factors, at age six, when the first
                                                    27
                                                                           No.     2013AP558-CR



offense occurred, M.C.N.'s ability to recall details was very

limited and thus she did not have the capacity to particularize

the     date    of     each       offense.           Despite    not     being         able    to

particularize         the     date     of     each    offense,       she     was      able    to

particularize the time of each offense.                        M.C.N. stated that the

acts of digital penetration and forced touching occurred when

she went to bed at night, and the "weighing" incidents occurred

after school.          Also, M.C.N.'s ability to recall the particular

dates    on    which     each       assault    occurred       was    hampered       by   their

repeated and similar nature.                  We thus disagree with the court of

appeals' conclusion that M.C.N.'s "complete inability" to narrow

down the charging period was not understandable.                                 Hurley, No.

2013AP558-CR, ¶34.            Given the repeated and similar nature of the

assaults at the hands of a trusted stepparent in the family

home, it is reasonable and understandable that M.C.N. would be

unable to narrow down the charging period.

      ¶53      Based on our application of the Fawcett factors, the

amended complaint and information provided sufficient notice to
satisfy       Hurley's      due     process     right    to     plead      and     prepare     a

defense.       Hurley alleged that his trial counsel was ineffective

for failing to object to the amended complaint and that the

alleged error in the amended complaint affected a substantial

right,    such       that     the    plain     error     rule       mandated       dismissal.

However, because the amended complaint did not violate Hurley's

due   process        rights,      counsel's      recommendation         not      to    file   a

motion to dismiss was reasonable professional advice and was not


                                               28
                                                                       No.    2013AP558-CR



prejudicial.         Put simply, the plain error rule does not apply

here because no error occurred.

B. The Circuit Court Did Not Erroneously Exercise Its Discretion

                      in Admitting Other-Acts Evidence.

    ¶54    Next,        we     consider          whether    the        circuit     court

erroneously     exercised      its     discretion      in    admitting        other-acts

evidence   that       Hurley    had    repeatedly       sexually        assaulted     his

sister, J.G., when she was between the ages of 8 and 10 years

old and he was between the ages of 12 and 14 years old.                                We

conclude that the circuit court did not erroneously exercise its

discretion      in    admitting       the    other-acts     evidence,         as   "[t]he

circuit court's decision was not a decision that no reasonable

judge   could    make."        State    v.    Payano,      2009   WI    86,    ¶52,   320

Wis. 2d 348, 768 N.W.2d 832.

 i. General Principles Regarding the Admissibility of Other-Acts

                                       Evidence

    ¶55    Under Wis. Stat. § 904.04(2)(a) (2011-12):

    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.
    This subsection does not exclude the evidence when
    offered for other purposes, such as proof of motive,




                                            29
                                                                   No.   2013AP558-CR


       opportunity, intent, preparation, plan, knowledge,
       identity, or absence of mistake or accident.14
       ¶56   Wisconsin       Stat.    §        904.04(2)(a)        (2011-12)      thus

"prohibits the admission of evidence of a defendant's other bad

acts    to   show    that   the   defendant      has   a    propensity    to    commit

crimes."15     Marinez, 331 Wis. 2d 568, ¶18.                "However, other-acts

evidence that is offered for a purpose other than the prohibited

propensity     purpose      is    admissible      if   it     is   relevant     to   a

permissible purpose and is not unfairly prejudicial."                    Id.

       ¶57   In Sullivan, we developed a three-prong test to guide

courts in determining whether other-acts evidence is admissible

under Wis. Stat. § 904.04(2)(a) (2011-12).                    Other-acts evidence

is admissible (1) if it is offered for a permissible purpose

pursuant to Wis. Stat. § 904.04(2)(a) (2011-12), (2) if it is

relevant     under    the   two   relevancy      requirements       of   Wis.    Stat.




       14
       Wisconsin Stat. § 904.01(2)(a) (2011-12) "contains an
illustrative, and not exhaustive, list of some of the
permissible   purposes   for   which   other-acts  evidence   is
admissible."     State v. Marinez, 2011 WI 12, ¶18, 331
Wis. 2d 568, 797 N.W.2d 399.    "The rule does not require that
courts pigeonhole . . . the other act evidence into one of these
[enumerated] categories.   As long as the evidence is relevant
and otherwise admissible apart from the propensity inference
(act/character/conduct), Wis. Stat. § 904.04(2) does not bar its
use." 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 404.6, at 173 (3d ed. 2008).
       15
       In other words, other-acts evidence cannot be used to
prove a person's character through circumstantial evidence of
conduct, but instead must be used for a permissible purpose.


                                          30
                                                                        No.     2013AP558-CR



§ 904.01     (2011-12),16       and     (3)    if    its    probative     value       is   not

substantially          outweighed     by      the    risk    or     danger      of    unfair

prejudice under Wis. Stat. § 904.03 (2011-12).                            Sullivan, 216

Wis.    2d   at       772-73;   State    v.     Jackson,     2014    WI   4,        ¶55,   352

Wis. 2d 249, 841 N.W.2d 791.

       ¶58   "The party seeking to admit the other-acts evidence

bears the burden of establishing that the first two prongs are

met    by    a    preponderance         of     the    evidence."          Marinez,         331

Wis. 2d 568, ¶19 (citations omitted).                       "Once the proponent of

the other-acts evidence establishes the first two prongs of the

test, the burden shifts to the party opposing the admission of

the other-acts evidence to show that the probative value of the

evidence is substantially outweighed by the risk or danger of

unfair prejudice."          Id. (citations omitted).

       ¶59   "Because this is a child sexual assault case with a

young victim, the greater latitude rule permit[s] a more liberal

admission        of    other    crimes        evidence."17        Id.,        ¶20    (citing
       16
       Wisconsin Stat. § 904.01 (2011-12) defines relevant
evidence as "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."    Evidence is relevant if it (1) "relates to a
fact or proposition that is of consequence to the determination
of the action" and (2) "has a tendency to make a consequential
fact more probable or less probable than it would be without the
evidence."   State v. Sullivan, 216 Wis. 2d 768, 785-86, 576
N.W.2d 30 (1998).
       17
       Despite the greater latitude rule, courts still have the
duty to ensure that other-acts evidence is offered for a proper
purpose.   State v. Hunt, 2003 WI 81, ¶87, 263 Wis. 2d 1, 666
N.W.2d 771.


                                              31
                                                           No.     2013AP558-CR



Davidson, 236 Wis. 2d 537, ¶44; State v. Hammer, 2000 WI 92,

¶23, 236 Wis. 2d 686, 613 N.W.2d 629) (internal quotation marks

omitted).       The greater latitude rule applies to each Sullivan

prong.       Davidson, 236 Wis. 2d 537, ¶51.     Other-acts evidence is

particularly relevant in child sexual assault cases because an

average juror likely presumes that a defendant is incapable of

such    an    act.18   Id.,   ¶42.   An   additional    rationale    for   the

greater latitude rule "is the need to corroborate the victim's

testimony against credibility challenges."19           Id., ¶40.

                        ii. The Sullivan Analysis



       18
       We have explained that the other-acts                 evidence      was
relevant under the greater latitude rule because:

       [t]o a person of normal, social and moral sensibility,
       the idea of the sexual exploitation of the young is so
       repulsive that it's almost impossible to believe that
       none but the most depraved and degenerate would commit
       such an act.    The average juror could well find it
       incomprehensible that one who stands before the court
       on trial could commit such an act.    Juries must have
       all the relevant facts before them. A past history of
       such a defendant's plans, schemes and motives is
       relevant.

State v. Friedrich, 135 Wis. 2d 1, 27-28, 398 N.W.2d 763 (1987).
       19
       Because of "the difficulty sexually abused children
experience in testifying, and the difficulty prosecutors have in
obtaining admissible evidence in such cases" a more liberal
admissibility standard in child sexual assault cases applies.
State v. Davidson, 2000 WI 91, ¶42, 236 Wis. 2d 537, 613 N.W.2d
606.   "The dangers presented by the propensity inference are
thus evenly balanced by the need to corroborate young victims
whose horrific allegations might otherwise be doubted." Blinka,
supra, § 404.7, at 218-19.


                                     32
                                                                      No.   2013AP558-CR



       ¶60    With these principles in mind, we turn now to whether

the     circuit    court    erroneously        exercised        its    discretion    in

admitting testimony from J.G. that Hurley sexually assaulted her

when she was between the ages of 8 and 10 years old and he was

between the ages of 12 and 14 years old.

        1. Was the Evidence Offered for a Permissible Purpose?

       ¶61    The circuit court admitted the other-acts evidence for

two    purposes:    method     of    operation    and     opportunity.20          After

describing J.G.'s testimony, the circuit court, in explaining

why the evidence was admissible to show method of operation,

stated, "there is a great similarity [in the] descriptions of

what        the   two      alleged     victims      are         claiming      occurred

here.       There's quite a similarity in this.                 And again, I think

that    go[es]    towards    the     alleged    method     of    operation     of   Mr.

Hurley and how he goes about this."               The circuit court explained

       20
       Similar to its position at the court of appeals, the
State does not argue that opportunity was a permissible purpose
for the other-acts evidence.       Therefore, the argument is
conceded. Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp.,
90 Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979). While it
is axiomatic that we are not bound by a party's concession, we
agree with the court of appeals on this point.           Hurley's
assaults against J.G. do not inform whether or not he had the
opportunity to assault M.C.N years later, without overlapping
with the impermissible propensity inference.      Therefore, our
analysis will center on the permissible purposes, method of
operation and motive. See Hunt, 263 Wis. 2d 1, ¶52 (explaining
that "[w]hen reviewing a circuit court's determination for
erroneous exercise of discretion an appellate court may consider
acceptable purposes for the admission of evidence other than
those contemplated by the circuit court, and may affirm the
circuit court's decision for reasons not stated by the circuit
court.").


                                         33
                                                                                    No.     2013AP558-CR



that    Hurley          had    a    distinct       method         of    operation          because   he

repeatedly          digitally            penetrated          each       victim,           incorporated

"games" into each assault, and targeted a specific type of girl:

an elementary school-aged girl, to whom he is related, and over

whom he had a great degree of control.                                 The circuit court noted

that J.G. was Hurley's younger sister and was assaulted between

the    ages    of       8     and       10    years    old,       and    M.C.N.        was    Hurley's

stepdaughter and was assaulted between the ages of 6 and 11

years old.          The circuit court also noted that Hurley assaulted

each victim when no one else was around.                                       The circuit court

concluded that these similarities bolstered M.C.N.'s credibility

given Hurley's distinct method of operation.                                   The circuit court

also    admitted            the     other-acts         evidence          for     the      purpose     of

establishing            Hurley's             opportunity         stating       it    answered        the

question: "Did Mr. Hurley have the opportunity to commit these

crimes?"

       ¶62     Identifying a proper purpose for other-acts evidence

is not difficult and is largely meant to develop the framework
for the relevancy examination.                             Payano, 320 Wis. 2d 348, ¶63;

see also Marinez, 331 Wis. 2d 568, ¶25 ("The purposes for which

other-acts evidence may be admitted are 'almost infinite' with

the prohibition against drawing the propensity inference being

the main limiting factor.").                       "The proponent need only identify

a relevant proposition that does not depend upon the forbidden

inference of character as circumstantial evidence of conduct."

7     Daniel       D.       Blinka,          Wisconsin       Practice          Series:       Wisconsin
Evidence       §    404.6,         at    180     (3d       ed.   2008).         As     long    as    one
                                                      34
                                                                  No.     2013AP558-CR



permissible    purpose    for    the    other-acts    evidence          exists,   the

first prong of the Sullivan analysis is met.                      See Hammer, 236

Wis. 2d 686, ¶29 n. 4.

       ¶63   Applying these principles to our review of the circuit

court's decision, we conclude that, given the greater latitude

rule, the circuit court reasonably concluded that the other-acts

evidence     was    admissible    for    the      purposes    of        establishing

Hurley's method of operation.           Further, we agree with the State

that the other-acts evidence was admissible to show Hurley's

motive.

       ¶64   First, the circuit court did not erroneously exercise

its discretion in concluding that the other-acts evidence was

admissible     to   establish    method      of    operation       through      which

Hurley's plan may be proved because of the similarity between

the two acts.       Id., ¶24; see also Blinka, supra, § 404.7, at 211

("Proof of a distinctive 'modus operandi' does not, however,

lead    to   automatic    admissibility.           Rather,        the    method    of

operation must be probative of issues such as intent, plan, or
identity.").        As   we   explained      in    State     v.    Fishnick,      127

Wis. 2d 247, 263, 378 N.W.2d 272 (1985):

       Where other-acts evidence is used for identity
       purposes, similarities must exist between the 'other
       act' and the offense for which the defendant is being
       tried.    Similarities which tend to identify the
       defendant as the proponent of an act also tend to
       ensure a high level of probativeness in the other-acts
       evidence.  These similarities may be established, for
       example, where there is a discernable method of
       operation from one act to the next, [citation omitted]
       or where the other act and the crime charged and their
       surrounding circumstances are so similar that the

                                        35
                                                                          No.     2013AP558-CR


    incidents and circumstances bear the imprint of the
    defendant.
(citations omitted).            "The threshold measure for similarity with

regard to identity is nearness of time, place, and circumstance

of the other act to the crime alleged.                             Whether there is a

concurrence of common features is generally left to the sound

discretion of the trial courts."                      State v. Kuntz, 160 Wis. 2d

722, 746-47, 467 N.W.2d 531 (1991).

    ¶65     The     circuit      court        acted      within    its     discretion      in

admitting J.G.'s testimony for the purpose of proving method of

operation   to    prove        the   plan     of    Hurley.        A     great    similarity

exists    between       the    two     sets    of       assaults    as    1)     J.G.'s   and

M.C.N.'s allegations were very similar, 2) J.G. and M.C.N. were

similar   in     age,    3)     both    sets       of    assaults      involved      digital

penetration that were repeated over a number of years, and 4)

Hurley preceded the assaults with games.

    ¶66     First,       the    allegations         were     similar.            J.G.'s   and

M.C.N.'s testimony showed that Hurley's preferred sexual target

was an elementary-school-aged girl who lived in his home and was
a member of his immediate family.                         The testimony showed that

Hurley also preferred a young girl over whom he had a great deal

of control and with whom there was a relationship of implied

trust: in J.G.'s case an older brother whom J.G. "always leaned

towards" growing up, and in M.C.N.'s case her stepfather to whom

she was close.          In each instance Hurley used this trust to his

advantage by continually assaulting each girl and by attempting
to dissuade them from coming forward.                      Hurley asked J.G. during


                                              36
                                                               No.    2013AP558-CR



one assault "you're not going to tell mom and dad, are you?" and

asked M.C.N. during the shower incident "you're not going to

tell     your   mother,     are    you?,"    language   that    was    virtually

identical.

       ¶67    Second, the victims were similar in age.                 J.G. was

assaulted between the ages of 8 and 10 years old, and M.C.N. was

assaulted between the ages of 6 and 11 years old.                    Third, each

assault      involved    repeated    acts    of   digital   penetration     in   a

private bedroom.          J.G.'s testimony also indicated that, while

Hurley's conduct with her involved a wider variety of sexual

acts, digital penetration was among his preferred acts, and he

engaged in these acts regularly over a period of years.                   Hurley

also repeatedly digitally penetrated M.C.N. over a number of

years, even though he             also committed other sexual acts with

M.C.N.

       ¶68    Finally, Hurley preceded each set of assaults with a

"game" that involved stripping the victim of her clothes.                    With

regard to J.G., Hurley had her wear a fur coat and perform a
striptease before the assaults.              With regard to M.C.N., Hurley

chased M.C.N. around the house and stripped her naked before the

first assault.          Hurley also had M.C.N. remove all her clothes,

placed her on his shoulders, and took her to the bathroom where

he would weigh her.

       ¶69    Though Hurley was younger when he assaulted J.G., and

he was much closer to J.G. in age, the striking similarities

outweigh these differences.           Given both the similarities between
the assaults and greater latitude rule, the circuit court did
                                        37
                                                                        No.       2013AP558-CR



not erroneously exercise its discretion in admitting the other-

acts evidence to show method of operation through Hurley's plan.

    ¶70        The     State    also     suggests       that      the       evidence        is

admissible to prove motive.               As we explained above, a reviewing

court    may    consider       acceptable      purposes    for    the       admission       of

other-acts evidence other than that contemplated by the circuit

court.    Hunt, 263 Wis. 2d 1, ¶52 (citations omitted).

    ¶71        "'Motive' is defined as the cause or reason that moves

the will and induces action."                  Blinka, supra, § 404.07, at 202;

State v. Balistreri, 106 Wis. 2d 741, 756, 317 N.W.2d 493 (1982)

("Motive explains the reasons for a person's actions.").                                    The

admissibility          of   other-acts      to    prove    motive          "is     purely    a

function of relevance: How does the other act help the trier of

fact to understand why the person acted as he did?"                                  Blinka,

supra, § 404.7, at 204.

    ¶72        "When    a   defendant's        motive     for    an     alleged       sexual

assault is an element of the charged crime, we have held that

other     crimes       evidence    may    be     offered    for       the        purpose    of
establishing . . . motive."              Hunt, 263 Wis. 2d 1, ¶60 (emphasis

added); see also Davidson, 236 Wis. 2d 537, ¶57 ("Our cases

establish that when the defendant's motive for an alleged sexual

assault    is    an     element    of    the     charged    crime,          other     crimes

evidence       may     be   offered      for     the    purpose       of      establishing

motive.") (emphasis added).




                                            38
                                                                          No.     2013AP558-CR



       ¶73    Here, the        District Attorney's Office charged Hurley

with    repeated       sexual    assault       of    a     child       under     Wis.    Stat.

§ 948.025.21        "There is no doubt that sexual assault, involving

either       sexual    contact     or    sexual          intercourse,           requires    an

intentional or volitional act by the perpetrator."                                Hunt, 263

Wis. 2d 1, ¶60.          Here, "[t]he other-acts evidence was properly

admitted to prove motive because purpose is an element of sexual

assault,      and     motive    [is]    relevant         to     purpose."         Hunt,    263

Wis. 2d 1, ¶60 (citing State v. Plymesser, 172 Wis. 2d 583, 593–

96, 493 N.W.2d 367 (1992)); Davidson, 236 Wis. 2d 537, ¶57.

       ¶74    The motive to which the other-acts evidence relates is

Hurley's desire to achieve sexual arousal or gratification.                                 As

the State correctly notes: "within its discretion, a circuit

court could conclude that Hurley's repeated acts of incest with

a   younger     female    family       member       in    his    formative        years    was

relevant to show Hurley's desire as an adult to target another

girl of the same age within his immediate family for sexual

gratification."            "Thus       [Hurley's]          purpose       or     motive     for
allegedly      touching     [M.C.N.]         was    one    element       of     the   charged

crime,       and      evidence     relevant         to         motive     was      therefore

admissible."           Davidson,       236    Wis.        2d    537,    ¶59.          Hurley's


       21
       For the relevant statutory definitions see supra notes 3,
6, & 9. Though the circuit court did not instruct the jury on
"sexual contact," as we explained above a reviewing court "may
consider acceptable purposes for the admission of evidence other
than those contemplated by the circuit court."        Hunt, 263
Wis. 2d 1, ¶52.


                                             39
                                                                      No.     2013AP558-CR



"motive . . . for allegedly touching or having intercourse with

[M.C.N.]   was     part    of     the    corpus     of   the   crimes   charged,      and

evidence relevant to the motive . . . was therefore admissible."

Hunt,   263    Wis.   2d    1,    ¶60.        The   court      of   appeals    thus   was

incorrect in rejecting motive as a permissible purpose.                          Hurley,

No. 2013AP558-CR,          ¶47.     Given the greater latitude rule, we

conclude that the other-acts evidence was admissible to show

Hurley's motive.

 2. Were the Assaults Committed by Hurley against J.G. Relevant

                          to the Admissible Purposes?

     ¶75      In   describing           the    relevance       of    the      other-acts

evidence, the circuit court explained:

     I think that this evidence is relevant and it –
     certainly it bolsters the credibility of [M.C.N.]. It
     clearly relates to a fact of proposition of whether it
     occurred or not.   . . . The Hammer case talks about
     the measure of probative value in assessing relevance
     is a similarity between the charged offense and the
     other act.   . . . Now I understand that the nearness
     of time, we don't have that here.        We're talking
     perhaps 15 to 20 years prior, but there is case law in
     this State and even in this same paragraph here,
     paragraph 32 of Hammer it talks about incidences that
     occurred years before.       They talked also about
     evidence being admissible even though the victims were
     of different ages. I'm finding here the victims were
     very similar in age and that the alleged conduct is
      . . . very similar when you talk about digital
     penetration, you talk about the games that the
     defendant allegedly had each of the victims partake
     in. So I do find it to be probative as well. . . .
     Also the allegation, of course, is that [they] share
     some common characteristics, occurring when there is
     nobody else around and it's just the defendant and the
     alleged victim.   That goes towards his opportunistic
     nature of doing this.


                                              40
                                                                              No.     2013AP558-CR



       ¶76    "Because other acts evidence is inherently relevant to

prove     character          and     therefore              a     propensity         to     behave

accordingly,         'the    real     issue       is    whether         the    other       act    is

relevant      to   anything        else.'"         Payano,            320   Wis. 2d 348,          ¶67

(citing      Blinka,       supra,    § 404.6,          at       181)   (emphasis       removed).

"This   second       prong    is     significantly              more    demanding         than    the

first prong but still does not present a high hurdle for the

proponent       of     the        other-acts           evidence."              Marinez,           331

Wis. 2d 568, ¶33.

       ¶77    Evidence is relevant if it has "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 (2011-

12).      There      are    two     parts    to    a    relevancy           analysis:       first,

"whether the evidence relates to a fact or proposition that is

of consequence to the determination of the action," and second,

"whether the evidence has a tendency to make a consequential

fact more probable or less probable than it would be without the
evidence."         Sullivan,        216   Wis.     2d       at    785–86.           "The    key    is

relevance: What is it being offered to prove, and does it have

any tendency to make that proposition more or less likely?"

Blinka, supra, § 404.6, at 174-75.

       ¶78    In answering the first question——whether the evidence

is offered in relation to any fact or proposition that is of

consequence to the determination of the action——"the court must

focus its attention on the pleadings and contested issues in the


                                              41
                                                                           No.    2013AP558-CR



case."       Payano,      320     Wis. 2d        348,     ¶69   (citing       Blinka     supra,

§ 404.6, at 181.)

      ¶79     "The second part of the relevancy analysis illustrates

the evidence's probative value, which is also part of the third

prong of the Sullivan test."                        Marinez, 331 Wis. 2d 568, ¶33.

"The measure of probative value in assessing relevance is the

similarity        between       the    charged       offense      and    the     other   act."

Hunt, 263 Wis. 2d 1, ¶64 (citation omitted).                                   Similarity is

demonstrated        by    showing        the     "nearness       of     time,    place,      and

circumstance"          between        the    other-act      and    the     charged       crime.

State v. Scheidell, 227 Wis. 2d 285, 305, 595 N.W.2d 661 (1999).

"The greater the similarity, complexity and distinctiveness of

the events, the stronger is the case for admission of the other

acts evidence."           Sullivan, 216 Wis. 2d at 787.                    It is within a

circuit      court's      discretion           to    determine        whether     other-acts

evidence is too remote.                     Hough v. State, 70 Wis. 2d 807, 814,

235 N.W.2d 534 (1975).

      ¶80     However, events that are dissimilar or that do not
occur      near   in     time    may        still    be    relevant      to     one   another.

Payano, 320 Wis. 2d 348, ¶70.                        "There is no precise point at

which a prior act is considered too remote, and remoteness must

be considered on a case-by-case basis."                           Hunt, 263 Wis. 2d 1,

¶64 (citation omitted).                 "Even 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. (citing State v. Mink, 146 Wis. 2d 1, 16, 429
N.W.2d 99 (Ct. App. 1988)).
                                                42
                                                                            No.     2013AP558-CR



      ¶81     Turning to the first prong of relevance, each of the

purposes for which the circuit court admitted the other-acts

evidence relates to a proposition that is of consequence to the

determination of the action, namely, whether the jury believed

M.C.N.'s account of sexual abuse by Hurley.                           Indeed, the central

issue    in    dispute      at     trial      was     credibility.            "'A      witness's

credibility is always 'consequential' within the meaning of Wis.

Stat.    §    904.01.'"           Marinez,      331      Wis.    2d   568,       ¶34    (quoting

Blinka,      supra,    §    401.101,       at    98).        Like     many       child    sexual

assault       cases,       this     case      boiled       down       to     a     credibility

determination.         See Blinka, supra, § 404.7, at 217–18 ("Child

sexual       abuse    prosecutions         often         proceed      under       three       major

disabilities: they rely on a single witness who is very young

and   whose     allegations        are     frequently       unsupported           by    physical

evidence.").

      ¶82     These    proof       issues       provide         the   rationale         for    the

greater latitude rule.              Davidson, 236 Wis. 2d 537, ¶40; State v.

Friedrich, 135 Wis. 2d 1, 25, 398 N.W.2d 763 (1987).                                   "Thus, it
follows      that    the    greater      latitude         rule     allows     for      the    more

liberal admission of other-acts evidence that has a tendency to

assist the jury in assessing a child's allegations of sexual

assault."       Marinez, 331 Wis. 2d 568, ¶34.                         The circuit court

correctly      concluded      that      the     assaults        committed        against      J.G.

"clearly      relate[d]      to     a    fact       of   proposition        of      whether     it

occurred or not" and it was reasonable for the circuit court to

conclude that the assaults against J.G. were admissible to allow


                                                43
                                                                       No.     2013AP558-CR



the jury to better assess M.C.N.'s credibility, which was the

central determination.

       ¶83    Further,     the     other-acts      evidence         was      relevant    to

establish Hurley's method of operation and motive to assault

M.C.N.       See Friedrich, 135 Wis. 2d at 28-29 ("Juries must have

all the relevant facts before them.                     A past history of such a

defendant's plans, schemes and motives is relevant. . . . It is

this     scheme    or      plan     to       achieve     sexual       stimulation        or

gratification from the young, the most sexually vulnerable in

our    society,    that       allows     trial    courts       in    the     exercise   of

discretion to admit evidence of past similar acts to show scheme

or plan to exploit children.") (emphasis added).                              As already

discussed, Hurley's motive for assaulting M.C.N. was directly

related to an element of the charged crime (for the purpose of

sexual arousal or gratification), and the J.G. assaults related

to that consequential fact.              See Davidson, 236 Wis. 2d 537, ¶65

(explaining that the defendant's motive for touching the victim

was an element of the crime, and the sexual assault on the prior
victim related to that fact of consequence to the determination

of the action).         Plan, and thus method of operation, is a fact

of    consequence,      and     thus    is    relevant     because         Hurley   denied

assaulting M.C.N.          The same can certainly be said for motive.

Whether or not Hurley had the plan or motive to carry out the

assaults against M.C.N. was certainly informed by his assaults

against J.G.

       ¶84    Turning      to     the    second        prong    of     the      relevance
determination,       the      circuit     court    correctly         stated     that    the
                                             44
                                                                                No.     2013AP558-CR



evidence was probative because of its similarity.                                     "The measure

of   probative          value    in    assessing         relevance       is     the     similarity

between      the    charged       offense         and     the    other       act."          Id.,    ¶67

(citation         and    quotations       omitted).               The    assaults        committed

against J.G. and M.C.N. were very similar and it was reasonable

for the circuit court to conclude that the similarity provided

context to Hurley's method of operation.                                It would have also

been   reasonable          for    the    circuit          court    to    conclude           that    the

similarity provided context for Hurley's motive.                                      Both victims

1) were similar in age; 2) were members of Hurley's immediate

family;      3)    lived    in    the     same          household       as    Hurley;       4)     were

female;      5)    were    younger       than       Hurley;       6)    were     controlled         by

Hurley    and      trusting       of    him;       7)     were     assaulted          via    digital

penetration; 8) were assaulted in the home and bedroom; 9) were

assaulted repeatedly over a period of years; 10) before being

assaulted,         participated         in    a     stripping          "game"     initiated          by

Hurley; and 11) Hurley attempted to dissuade each victim by

saying "you're not going to tell mom, are you?".
       ¶85    Though Hurley was 25 years younger when he assaulted

J.G., we do not conclude this is a significant distinction given

the many similarities discussed above.                           Further, even though the

other-acts evidence was removed in time, as the circuit court

noted, courts have upheld the admission of other-acts evidence

that   was    removed       in    time       due    to     the    similarity          between      the

incidents.          See     Plymesser,         172       Wis.     2d    583     (upholding          the

admissibility of 13 year old evidence); Kuntz, 160 Wis. 2d 722
(upholding the admissibility of 16 year old evidence).                                           Given
                                                   45
                                                                   No.   2013AP558-CR



the multitude of similarities outlined above, we conclude that

the J.G. assaults were relevant evidence, because they related

to a fact of consequence in the case and had strong probative

value.

        3. Was the Probative Value of the Other-Acts Evidence

   Substantially Outweighed by the Risk of Unfair Prejudice?

       ¶86    After   discussing       the    relevance      of    the   other-acts

evidence, the circuit court explained:

       [a]nd then with respect to the danger of unfair
       prejudice, clearly this is prejudicial information.
       If it wasn’t, the State wouldn’t seek to use it. And
       I agree that a limiting instruction should be given
       both before the testimony and again at the close of
       the case. And I think that [] will be a sound way to
       make sure that the jury does not conclude that Mr.
       Hurley is a bad person simply because of that.   And
       the purpose of using this is to establish method of
       operation and opportunity for doing this.
       ¶87    Evidence     that   is   relevant      "may   be    excluded    if   its

probative value is substantially outweighed by the danger of

unfair       prejudice."      Wis.     Stat.      § 904.03       (2011-12).        The

probative value of evidence "is a function of its relevance

under Wis. Stat. § 904.01."              Blinka, supra, § 403.1, at 135.

The circuit court is to consider the proponent's need to present

this evidence given the context of the entire trial.                          Id. at

136.     "Essentially,       probative       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."          Payano, 320 Wis. 2d 348, ¶81.              If the
probative value is close to or equal to its unfair prejudicial


                                         46
                                                                      No.     2013AP558-CR



effect, the evidence must be admitted.                        State v. Speer, 176

Wis. 2d 1101, 1115, 501 N.W.2d 429.                    Prejudice 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."      Payano,      320      Wis.    2d    348,    ¶87     (quotation

omitted).

      ¶88    "Unfair prejudice [also] results when the proffered

evidence . . . appeals         to   the     jury's      sympathies,         arouses       its

sense of horror, provokes its instinct to punish or otherwise

causes a jury to base its decision on something other than the

established propositions in the case."                  Sullivan, 216 Wis. 2d at

789-90.      "The circuit court's job is to ensure that the jury

will not 'prejudge a defendant's guilt or innocence in an action

because of his prior bad act.'"                 Payano, 320 Wis. 2d 348, ¶89

(quoting Fishnick, 127 Wis. 2d at 262).

      ¶89    To limit the possibility that the jury will convict

based on "improper means" circuit courts may provide limiting

instructions, give cautionary instructions, edit the evidence,
or restrict a party's arguments.                Id., ¶99; Hunt, 263 Wis. 2d 1,

¶¶72–73 (explaining that cautionary instructions help to limit

any unfair prejudice that may result from other-acts evidence);

Sullivan,      216     Wis.    2d     at     791.            Limiting       instructions

substantially mitigate any unfair prejudicial effect.                             Hunt, 263

Wis. 2d 1, ¶¶73-75 (concluding limiting instructions in child

sexual      assault    cases   were        proper,     limited       any     prejudicial

effect, and had been approved of in the past).                          In some cases,


                                           47
                                                                     No.       2013AP558-CR



limiting      instructions         eliminate     the     potential         for     unfair

prejudice.      Hammer, 236 Wis. 2d 686, ¶36.

    ¶90       A reviewing court "presume[s] that juries comply with

properly given limiting and cautionary instructions, and thus

consider this an effective means to reduce the risk of unfair

prejudice      to    the    party     opposing     admission        of     other       acts

evidence."      Marinez, 331 Wis. 2d 568, ¶41; see also Hunt, 263

Wis. 2d 1, ¶72.        "Because [§ 904.04] provides for exclusion only

if the evidence's probative value is substantially outweighed by

the danger of unfair prejudice, '[t]he bias, then, is squarely

on the side of admissibility.            Close cases should be resolved in

favor of admission.'"            Marinez, 331 Wis. 2d 568, ¶41 (quoting

Blinka, supra, § 403.1, at 139).

    ¶91       For    the    reasons    discussed       above   in     the       relevancy

analysis,     the     assaults      against    J.G.    were    highly          probative.

While   the    evidence      was     certainly    prejudicial,           the     limiting

instructions        given   before    J.G.'s    testimony      and    again       at   the

close of the case were a sound way to make sure that the jury
did not use the evidence for an improper purpose.                          See Marinez,

331 Wis. 2d 568, ¶41.          Here, the circuit court gave two limiting

instructions, the first before J.G. testified and the second

after closing arguments.

    Evidence will now be presented regarding other conduct
    of the defendant for which the defendant is not on
    trial, specifically evidence will be presented that
    the defendant engaged in sexual intercourse with
    [J.G.].     Sexual intercourse means any intrusion
    however slight by any part of a person's body or of
    any object into the genital or anal opening of

                                         48
                                                         No.   2013AP558-CR


    another.   Emission of semen is not required.    If you
    find this conduct did occur, you should consider it
    only on the issues of opportunity and method of
    operation.    You may not consider this evidence to
    conclude that the defendant has a certain character or
    a certain character trait and that the defendant acted
    in conformity with that trait or character with
    respect to the offense charged in this case.        The
    evidence is received on the issues of, first,
    opportunity, that is whether the defendant had the
    opportunity to commit the offense charged; and second,
    method of operation.   You may consider this evidence
    only for the purposes I have described giving it the
    weight you determine it deserves.     It is not to be
    used to conclude that the defendant is a bad person
    and for that reason is guilty of the offense charged.22
    ¶92     Because we presume that juries comply with properly

given limiting and cautionary instructions and because there was

no unfair prejudice, the circuit court could reasonably conclude

that Hurley did not meet his burden23 of establishing that the

probative   value   of   the   other-acts   evidence   was   substantially




    22
       During opening and closing arguments, the prosecutor was
careful to explain that J.G.'s testimony was being admitted only
to show Hurley's opportunity and method of operation.
    23
       See Marinez, 331 Wis. 2d 568, ¶19 ("Once the proponent of
the other-acts evidence establishes the first two prongs of the
test, the burden shifts to the party opposing the admission of
the other-acts evidence to show that the probative value of the
evidence is substantially outweighed by the risk or danger of
unfair prejudice.").


                                    49
                                                            No.     2013AP558-CR



outweighed by the danger of unfair prejudice.24             Simply put, the

circuit court's decision regarding the prejudicial effect was

not a decision that no reasonable judge could make.

    ¶93     Given that the evidence was admissible for a proper

purpose,    was   relevant,     and   its     probative     value    was    not

substantially outweighed by the danger of unfair prejudice, the

circuit court did not erroneously exercise its discretion in

admitting the other-acts evidence.

  C. The Circuit Court Erroneously Exercised its Discretion in

           Granting a New Trial in the Interest of Justice.

    ¶94     Finally,   we     consider      whether   the    circuit       court

erroneously exercised its discretion in granting a new trial in


    24
        State v. McGowan, 2006 WI App 80, 291 Wis. 2d 212, 715
N.W.2d 631, which the court of appeals used to reach the
opposite conclusion, is distinguishable. In McGowan, the court
of appeals concluded that McGowan's assault of a 5 year old
female cousin when he was 10 years old did not provide evidence
of McGowan's motive to assault a 10 year old cousin when McGowan
was 18.    We agree with the State in distinguishing McGowan as
McGowan was only 10 years old when he committed the other-act,
while Hurley was between the ages of 12 and 14 when he assaulted
J.G.     Further, the result in McGowan was driven by the
difference in the nature of the two sets of acts, and the horrid
nature of urinating in a child's mouth.      Id., ¶¶20, 23.   In
contrast, Hurley was 14 years old when he stopped assaulting
J.G., much older than McGowan who was 10 years old at the time
of the other-act.   Further, both sets of assaults committed by
Hurley were repeated in nature, contrasted with the single
other-act in McGowan.    As the circuit court explained: "what
distinguishes McGowan from this case, quite frankly, is they
were talking about a single incident that had occurred some time
previously, which is completely different from what we have in
this case where [J.G.] is alleging that these acts occurred for
quite a long time, perhaps a number of years."


                                      50
                                                                           No.     2013AP558-CR



the interest of justice and conclude that it did.                                The circuit

court erroneously exercised its discretion because it did not

apply accepted legal principles to the facts in the record in

explaining     how    the     comments        "'so      infected       the       trial        with

unfairness as to make the resulting conviction a denial of due

process.'"     State v. Mayo, 2007 WI 78, ¶43, 301 Wis. 2d 642, 734

N.W.2d 115 (quoting Davidson, 236 Wis. 2d 537, ¶88).

       ¶95   A "prosecutor may comment on the evidence, detail the

evidence,    argue    from    it    to    a    conclusion        and      state        that      the

evidence convinces him and should convince the jurors."                                     State

v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979).                                           The

prosecutor should aim to "analyze the evidence and present facts

with a reasonable interpretation to aid the jury in calmly and

reasonably    drawing       just    inferences          and    arriving           at    a     just

conclusion     upon    the     main      or        controlling       questions."                 Id.

However, "[c]ounsel is allowed considerable latitude in closing

arguments," and is permitted to draw any reasonable inference

from   the   evidence.        State      v.        Burns,   2011     WI     22,        ¶48,      332
Wis. 2d 730, 798 N.W.2d 166 (citing Draize, 88 Wis. 2d at 454);

State v. Nemoir, 62 Wis. 2d 206, 213 n.9, 214 N.W.2d 297 (1974).

       ¶96   "When    a      defendant         alleges        that     a         prosecutor's

statements constituted misconduct, the test we apply is whether

the statements so infected the trial with unfairness as to make

the resulting conviction a denial of due process."                                     Davidson,

236 Wis. 2d 537, ¶88.          "Even if there are improper statements by

a prosecutor, the statements alone will not be cause to overturn
a   conviction.       Rather,      the    statements          must    be    looked          at    in
                                              51
                                                                           No.     2013AP558-CR



context of the entire trial."                    Mayo, 301 Wis. 2d 642, ¶43; see

also   United         States    v.     Young,     470      U.S.     1,   11     (1985)    ("[A]

criminal conviction is not to be lightly overturned on the basis

of a prosecutor's comments standing alone, for the statements or

conduct must be viewed in context; only by so doing can it be

determined        whether        the    prosecutor's             conduct      affected        the

fairness of the trial.").

       ¶97    The      circuit       court   in      the    instant      case     erroneously

exercised its discretion as it misapplied the holding of State

v. Weiss, 2008 WI App 72, 312 Wis. 2d 382, 752 N.W.2d 372.                                     In

Weiss,    the     defendant       was     charged       with      two    counts    of    sexual

assault      of   a    child    under     the     age      of    16.     Id.,     ¶2.     Weiss

testified      that     he     verbally      told     the       police   that     he    did   not

commit the assaults, but did not include that denial in his

written statements.              Id., ¶4.         Two police reports stated that

Weiss had verbally denied the accusations.                               Id., ¶1.        During

closing argument, the prosecutor argued that the first and only

time the defendant had denied committing the assaults was during
his oral testimony.              Id., ¶5.         On ten occasions during closing

and rebuttal the prosecutor remarked that Weiss did not deny

assaulting the victim until trial.                    Id., ¶¶5-7.

       ¶98    In granting a new trial in the interest of justice,

the Weiss court explained that the prosecutor "was asking the

jury to disbelieve Weiss's statement that he had verbally denied

the crime to the police."               Id., ¶15.          The Weiss court explained:

       [The prosecutor] knew better. She had the two police
       reports saying otherwise.    . . . We point out once

                                                52
                                                                    No.     2013AP558-CR


      more, because this is important: the State concedes
      that the prosecutor's argument, asserting that Weiss
      never denied the crime, implicitly including verbal
      denials, was incorrect. The importance of what we are
      about   to   say   cannot    be   underscored   enough.
      Prosecutors may not ask jurors to draw inferences that
      they know or should know are not true.     That is what
      occurred here and it is improper.
Id.

      ¶99     At trial, Hurley testified in his own defense.                          On

direct examination his attorney asked: "Now, [J.G.] testified

that she was assaulted when she believed she was around eight

years old.      Do you recall having an encounter with [J.G.] when

she was around eight?"              Hurley answered: "No."                His attorney

then asked: "Do you recall any of the allegations [J.G.] brought

up here today?"       Hurley answered: "No, I do not."

      ¶100 During         his    closing    argument      the   assistant     district

attorney stated "[w]hen the defendant testified, he was asked by

his—by the attorney regarding [J.G.] he said well, do you recall

any of these incidents with [J.G.] ever happening?                             And his

answer was no.        The question wasn't did you do this or not, it

was do you recall?              That's different than 'it didn't happen.'"

The assistant district attorney and the defense attorney had in

their possession a police report which stated that on September

26,   2010,    J.G.   called       Hurley    and       discussed   the     assaults   he

committed against her, which Hurley denied.

      ¶101 The circuit court concluded that the application of

Weiss   required      a    new    trial.         The    circuit    court    found     the

prosecutor's comments were designed to have the jury draw the
inference that Hurley had not previously denied that the sexual

                                            53
                                                                      No.    2013AP558-CR



assaults described by J.G. occurred, and that Hurley could only

not recall whether he engaged in the sexual contact with his

sister.     The circuit court further found that this inference was

inaccurate       and     that    the    prosecutor       knew     that      Hurley      had

previously       denied    J.G.'s      allegations      when    confronted        by   her.

The circuit court explained that the case largely boiled down to

a credibility          determination and that the prosecutor's remarks

were intended to undermine the credibility of the defendant.

      ¶102 However,        the   circuit        court   did     not   apply     accepted

legal principles in that it misapplied Weiss.                         In Weiss there

were at least ten separate comments by the prosecutor relating

to the denial during closing and rebuttal.                      Id., ¶¶5, 7.           Here

the prosecutor made two very brief remarks and did not dwell on

the   defendant's        testimony.        Further,     the     inference     that     the

circuit court thought the prosecutor was asking the jury to draw

is unfounded.            The circuit court thought the prosecutor was

asking the jury to draw the inference that Hurley had never

denied    assaulting       J.G.,     and   that    he    only    could      not    recall
whether     it     had    happened.         The      reasonable       inference        the

prosecutor was arguing was that Hurley had not been asked by his

trial counsel whether he assaulted J.G. (and Hurley did not

volunteer     a    denial       of     J.G.'s    allegations)         because      Hurley

believed it was possible he had assaulted her, but could not

recall having done so.           The prosecutor did not say "he has never

denied the assault before today" as the prosecutor did in Weiss,

but instead stated that Hurley could not recall the assault
which is different from "it didn't happen."                      The prosecutor did
                                           54
                                                                No.    2013AP558-CR



not ask the jury to draw an inference that he knew or should

have    known   was   untrue.      The    prosecutor   merely        commented       on

Hurley's     testimony   at   trial,     appropriately       held    him   to    that

testimony, and confined his remark to the reasonable inference

discussed above.

       ¶103 Finally, in Weiss the defendant denied assaulting the

victim, but here Hurley denied assaulting J.G., the other-acts

victim.      Because Hurley's denial did not go to the heart of the

case, whether or not he assaulted the victim for which he was on

trial, even if the prosecutor's remarks were improper, which we

do     not   conclude,   they     did    not   so   infect     the    trial      with

unfairness as to make the resulting conviction a denial of due

process.        "Even    if     there    are    improper     statements         by   a

prosecutor, the statements alone will not be cause to overturn a

conviction.      Rather, the statements must be looked at in context

of the entire trial."         Mayo, 301 Wis. 2d 642, ¶43.             Noting that

Hurley could not recall whether the assaults occurred is in fact

different than the assaults did not occur.                 Had the prosecutor
argued that Hurley had never denied the assaults, then, given

the credibility contest, those remarks may have infected the

trial with unfairness.        But that was not the case.

       ¶104 The prosecutor's comments were brief, fair, and did

not ask the jury to draw an inference that the prosecutor knew

or should have known was false.                Therefore, the circuit court

misapplied Weiss in reaching its conclusion and thus the court

erroneously exercised its discretion in granting a new trial.
                                 IV. CONCLUSION
                                         55
                                                                          No.     2013AP558-CR



      ¶105 First,        we      hold    that        the    amended           complaint    and

information provided adequate notice and thus did not violate

Hurley's    due    process       right     to       plead   and    prepare       a   defense.

Second,    we    hold    that     the    circuit       court      did    not     erroneously

exercise its discretion in admitting the other-acts evidence.

Finally, we hold that the circuit court did erroneously exercise

its   discretion        in    granting     a    new    trial      in    the     interest   of

justice.     We therefore reverse the court of appeals and remand

to the circuit court with the instruction that the judgment of

conviction be reinstated.



      By the Court.—Reversed and cause remanded to the circuit

court     with    the        instruction       to     reinstate         the     judgment   of

conviction.




                                               56
                                                            No.   2013AP558-CR.ssa




       ¶106 SHIRLEY S. ABRAHAMSON, C.J.              (dissenting).       I agree

with the decision of the court of appeals on the issue of the

other-acts evidence.1           I, like the court of appeals, conclude

that the circuit court erroneously exercised its discretion in

admitting the State's other-acts evidence.

       ¶107 The admissibility of other-acts evidence is governed

by     Wis.      Stat.   § 904.04(2).        Other-acts     evidence     is   not

admissible "to prove the character of a person in order to show

that the person acted in conformity therewith" or to show that

the defendant has a propensity to commit crimes.2                     Other-acts

evidence introduced for a different purpose is admissible so

long as the evidence is relevant to a permissible purpose and

its    probative      value   is   not   substantially     outweighed    by   the

danger of unfair prejudice.3

       ¶108 I agree with the court of appeals that the other-acts

evidence introduced by the State fails each prong of the three-

prong analysis set forth in State v. Sullivan, 216 Wis. 2d 768,
772,       576   N.W.2d 30    (1998).4       The   State   offered   other-acts

evidence in order to show that the defendant is a bad person

       1
       State v. Hurley, No. 2013AP558-CR, unpublished slip op.,
at 23-24 (Wis. Ct. App. May 6, 2014).
       2
       State v. Marinez, 2011 WI 12, ¶18, 331 Wis. 2d 568, 797
N.W.2d 399.
       3
           Id.
       4
       The three-prong test set forth in State v. Sullivan, 216
Wis. 2d 768, 772, 576 N.W.2d 30 (1998), is discussed in ¶57 of
the majority opinion.


                                         1
                                                                        No.   2013AP558-CR.ssa


with       a   propensity       to    sexually      assault       children.          The   State

sought         to    persuade        the    jury,     in    violation     of    Wis.       Stat.

§ 904.04(2)(a),           that        the    assaults       alleged      in    the     State's

complaint were committed by the defendant in conformity with his

criminal character and propensity to sexually assault children.

       ¶109 If the State's other-acts evidence is relevant to show

more than the defendant's criminal character or propensity to

sexually assault children (and it is not), its probative value

is substantially outweighed by the danger of unfair prejudice.5

Evidence that the defendant "committed repeated acts of incest

against his sister was likely to arouse the jury's sense of

horror         and   provoke     its       instinct    to    punish."6         The    limiting

instructions provided by the circuit court did not, in my view,

cure       the       unfair     prejudice       and        thus   "do    not     sway       this

balance . . . ."7

       ¶110 An erroneous exercise of discretion in admitting the

State's other-acts evidence does not necessarily lead to a new

trial.8         Rather, this court must determine whether the error was
harmless.9




       5
           See Wis. Stat. § 904.03.
       6
           Hurley, No. 2013AP558-CR, unpublished slip op., at 23.
       7
           Marinez, 331 Wis. 2d 568, ¶77.
       8
       Martindale v. Ripp, 2001 WI 113, ¶30, 246 Wis. 2d 67, 629
N.W.2d 698.
       9
           Id.


                                                2
                                                                  No.   2013AP558-CR.ssa


      ¶111 In the instant case, the State properly conceded at

the   court    of     appeals     that    if      its   other-acts      evidence        was

erroneously admitted, the error was not harmless.10                           The State

does not assert harmless error in its brief before this court.11

      ¶112 I agree with the court of appeals that the error was

not   harmless      and   would    therefore        grant   the    defendant        a   new

trial.

      ¶113 By denying the defendant relief in the instant case,

the   majority      opinion     adds     to   the   growing    body      of    case     law

whittling away at the protections afforded to defendants by Wis.

Stat. § 904.04(2).        As Justice Bradley wrote over a decade ago:

      Rather than endeavoring to stretch beyond repair the
      definitions of the acceptable purposes [for other-acts
      evidence   under  Wis.   Stat.    § 904.04(2)(a)],   the
      majority should simply lay all its cards on the table
      and acknowledge that it is sanctioning the blanket use
      of propensity evidence in child sexual assault cases.
      [Instead], the majority maintains its refuge under the
      cloak   of   the   very   statute    it   simultaneously
                    12
      erodes. . . .
      ¶114 For the reasons set forth, I dissent.

      ¶115 I     am    authorized        to    state    that   Justice        ANN   WALSH

BRADLEY joins this opinion.




      10
       Brief (in Court of Appeals) of the State as Appellant and
Cross-Respondent at 34.
      11
       Brief (in Supreme Court) of the State                            as    Plaintiff-
Appellant-Cross-Respondent-Petitioner at 44 n.8.
      12
       State v. Davidson, 2000 WI 91, ¶109, 236 Wis. 2d 537, 613
N.W.2d 606 (Bradley, J., dissenting).


                                              3
    No.   2013AP558-CR.ssa




1
