State v. Gary Robert Petersen

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 9, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1097-CR Cir. Ct. No. 2018CF121

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GARY ROBERT PETERSEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Marinette County:
JAMES A. MORRISON, Judge. Affirmed.

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

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Following a jury trial, Gary Petersen was convicted
of two counts of first-degree sexual assault of a child (sexual contact with a person
No. 2021AP1097-CR

under age thirteen), as a persistent repeater, and one count of felony intimidation
of a victim, as a repeater. Petersen now appeals from his judgment of conviction,
arguing that the circuit court erroneously exercised its discretion by: (1) allowing
the State to introduce other-acts evidence at trial regarding Petersen’s 1991
conviction for second-degree sexual assault of a child; (2) prohibiting Petersen
from introducing evidence regarding a prior untruthful allegation of sexual assault
allegedly made by the victim; and (3) denying Petersen’s request for a mistrial
based on a comment a prospective juror made during voir dire. We reject each of
Petersen’s arguments and affirm.

BACKGROUND

¶2 In 2017, Petersen’s wife, Denise,1 informed law enforcement that
her twelve-year-old daughter, Ann, who was Petersen’s stepdaughter, had reported
that Petersen had sexually assaulted her. Ann was subsequently interviewed at the
Willow Tree Child Advocacy Center in Green Bay.

¶3 During the interview, Ann disclosed that Petersen first had sexual
contact with her in August 2015, just before she turned eleven years old. Ann
reported that during that incident, Petersen took her clothes off, touched her
vagina, and used a dildo on her, which Ann stated was painful. Ann also
described an incident in May 2016 during which Petersen took her pants and
underwear off and inserted his fingers into her vagina. When Ann tried to get
away, Petersen grabbed her, pulled her back onto the bed, and began touching her

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2019-20), we use
pseudonyms when referring to the victim and her mother. All references to the Wisconsin
Statutes are to the 2019-20 version unless otherwise noted.

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more aggressively. After the May 2016 assault, Petersen told Ann that “he would
kill her and hurt her mom” if she told anyone. Ann reported that Petersen had
sexual contact with her on at least one or two other occasions between
August 2015 and May 2016. Ann also reported that, at some unspecified time,
Petersen “made threats of killing her mom and sister.”

¶4 Based on Ann’s allegations, the State charged Petersen with two
counts of first-degree sexual assault of a child (sexual contact with a person under
age thirteen), as a persistent repeater, and one count of felony intimidation of a
victim, as a repeater. Petersen entered not-guilty pleas to all three of the charges,
and the case was set for a jury trial.

¶5 Before trial, the State filed a motion to introduce other-acts evidence
regarding Petersen’s 1991 conviction for second-degree sexual assault of a child.
That conviction stemmed from Petersen’s year-long sexual relationship with a
fourteen-year-old girl, Sarah,2 at a time when Petersen was about twenty-nine
years old. Petersen was a friend of Sarah’s father and got to know her because he
repeatedly visited her family’s home. Sarah’s diary entries showed that she and
Petersen had sexual intercourse on eight occasions between March 17, 1990, and
February 16, 1991.

¶6 At a friend’s urging, Sarah ultimately reported her relationship with
Petersen to a school liaison officer. Sarah did not want Petersen to get in trouble,
however, because he was her boyfriend and she believed they were in love. When
interviewed by law enforcement about Sarah’s report, Petersen admitted having

2
Again, we use a pseudonym when referring to the victim in the 1991 case.

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No. 2021AP1097-CR

sexual intercourse with Sarah on six to eight occasions. He subsequently pled no
contest to a charge of second-degree sexual assault of a child for his actions with
Sarah.

¶7 The State argued that evidence regarding Petersen’s 1991 conviction
was admissible to show his motive, opportunity, and intent to sexually assault Ann
because the evidence tended to show that Petersen had a sexual preference for
young girls. The State also argued that the evidence’s probative value was not
substantially outweighed by the danger of unfair prejudice. The circuit court
agreed and granted the State’s motion to admit the other-acts evidence.

¶8 Petersen filed a pretrial motion seeking to introduce evidence of a
prior untruthful allegation of sexual assault allegedly made by Ann. According to
the motion and a Brown County Health and Human Services report submitted by
the State, in 2011, Ann’s maternal grandmother told authorities that when Ann
was five, Ann told the grandmother that Ann’s maternal grandfather had put his
fingers down her pants and rubbed her. Brown County assigned a case worker to
investigate this allegation. The case worker interviewed Denise, who stated that
Ann’s grandmother was just trying to cause trouble. Denise agreed to bring Ann
in for an interview, during which Ann denied that anyone had ever seen or touched
her private parts.

¶9 The case worker subsequently spoke with Denise, who stated she
“spoke with [Ann] about this and [Ann] denied ever saying any of this.” Denise
then stated, however, that Ann later changed her story and said she “made this up”
because a friend told her that she would “get jewels and presents for saying this.”
Denise also told the case worker that she had been having “lots of problems with
her mom,” that her mom had been “threatening to go for Grandparents Rights,”

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and that her mom had been “reporting [Denise] for a lot of things, all which are
not true.” Denise further stated that she was “very concerned about her mother’s
influence on the children.” The case worker noted that Ann’s grandfather—who
was alleged to have touched Ann—had obtained a restraining order against Ann’s
grandmother—who had reported the alleged touching. The case worker ultimately
closed the investigation, concluding that the allegation made by Ann’s
grandmother was unsubstantiated.

¶10 Petersen argued that evidence regarding the 2011 allegation against
Ann’s grandfather was admissible under WIS. STAT. § 972.11(2)(b)3., an
exception to the rape shield statute that allows “[e]vidence of prior untruthful
allegations of sexual assault made by the complaining witness” to be admitted in a
prosecution for sexual assault of a child. The State opposed Petersen’s motion to
admit the evidence, arguing a reasonable jury “could not find that [Ann] made any
allegation of sexual assault, much less an untruthful one.” The State also argued
that evidence regarding a possible false accusation made by Ann at age five was
not relevant to Ann’s credibility at age twelve when she accused Petersen of
sexual assault. Additionally, the State asserted that the evidence’s probative value
was substantially outweighed by the danger of unfair prejudice, confusion of the
issues, and misleading the jury, as it had “already been established that the
maternal grandmother had motives to fabricate what [Ann] said or suggest such a
lie to [Ann].” The circuit court agreed with the State and denied Petersen’s
motion to admit evidence regarding the 2011 allegation.

¶11 Thereafter, on the first day of trial, the circuit court asked the
prospective jurors during voir dire whether any of them could not “fairly and
impartially listen to the evidence in this case and judge this case solely on the facts
as you find them to be and on the law as I give it to you, putting aside every other

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reason.” A prospective juror responded, “Well, my sister works in foster care.”
The court asked the prospective juror to stand up and remove her mask3 so that the
court could hear her better. The following exchange then occurred:

JUROR: My sister works in foster care in Green Bay and
she’s gone through a lot of these cases and like 80 percent
of them, they’ve been guilty, so I kind of—

THE COURT: Ma’am, so you think—Your sister has told
you they’ve been guilty.

JUROR: Yes.

THE COURT: Okay. Do you think that would cause you
to already make up your mind?

JUROR: I already did, and it’s—

THE COURT: All right. Ma’am, you are excused. Thank
you very much.

¶12 At a sidebar outside of the prospective jurors’ presence, Petersen’s
attorney expressed concern regarding the excused juror’s comment. Counsel
stated he believed it was possible that the juror’s comment had “poison[ed] the
entire jury.” The State opined that the issue could be rectified through a curative
instruction. The circuit court decided to address the issue with the prospective
jurors in a general fashion to determine whether the venire panel had been tainted.

¶13 When the prospective jurors returned to the courtroom, the circuit
court addressed them as follows:

Now the reason we go through this rather elaborate effort is
so we can have a jury that is fair and impartial and it will
decide this case only on the evidence that comes in through
testimony and exhibits in the courtroom and only based
upon the law that is presented to you by the Court, that is
3
Petersen’s jury trial took place in September 2020, during the COVID-19 pandemic.

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No. 2021AP1097-CR

me. And you are hearing some people express misgivings,
and that’s great that they do, but that’s not evidence, so
none of that is evidence. I appreciate—I applaud them for
it. So please do not misunderstand me, but that’s not
evidence. Evidence is the proof in this case that comes into
the case next door and the law that I give you. You all—
those of you who serve as jurors must swear that you will
find the facts as you as a group agree them—agree them to
be. You will apply the very significant burdens of proof
which the State has, and the defendant has no burden of
proof, and you will follow the law in doing that. If
anybody has any problem with that, that’s the question I’m
asking.

The court then asked: “[I]s there anybody now among my 24 [prospective jurors]
who cannot listen to the evidence, consider the evidence and only the evidence,
and apply the law and only the law that I give you, regardless of what thoughts
you might have? Anybody who can’t do that?” None of the prospective jurors
responded in the affirmative.

¶14 After the jury was selected, Petersen moved for a mistrial based on
the excused juror’s comment about her sister’s work in foster care. Petersen again
asserted there was the “potential” that the juror’s comment had poisoned the entire
venire panel. The State opposed Petersen’s motion, arguing that the juror’s
comment was made “fairly early on” during voir dire, “[i]t was not followed up
on,” and “nothing else was elicited to flesh out any more of [the juror’s] reasoning
for that.” The circuit court agreed and denied Petersen’s motion for a mistrial.

¶15 Petersen’s trial proceeded, and the jury ultimately found him guilty
of all three charges. Because Petersen was a persistent repeater, the circuit court
was required to impose sentences of life imprisonment without the possibility of
extended supervision on both of the first-degree sexual assault of a child charges.
See WIS. STAT. § 939.62(2m)(c). On the witness intimidation charge, the court
imposed a fourteen-year sentence consisting of nine years’ initial confinement

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No. 2021AP1097-CR

followed by five years’ extended supervision. Petersen now appeals. Additional
facts are included in the discussion section where necessary.

DISCUSSION

¶16 We review a circuit court’s decisions regarding the admission of
other-acts evidence and the admission of evidence of prior untruthful allegations
of sexual assault for an erroneous exercise of discretion. See State v. Sullivan,
216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998) (other-acts evidence); State v.
Ringer, 2010 WI 69, ¶¶24, 28, 326 Wis. 2d 351, 785 N.W.2d 448 (prior untruthful
allegations of sexual assault). The decision whether to grant a mistrial is also
reviewed for an erroneous exercise of discretion. See State v. Seefeldt, 2003 WI
47, ¶13, 261 Wis. 2d 383, 661 N.W.2d 822.

¶17 We will sustain a circuit court’s discretionary decision if the court
examined the relevant facts, applied a proper standard of law, and used a rational
process to reach a reasonable conclusion. Sullivan, 216 Wis. 2d at 780-81. The
test is not whether this court, as an original matter, would have reached the same
decision as the circuit court; the test is whether the circuit court erroneously
exercised its discretion when reaching the decision in question. Schneller v.
St. Mary’s Hosp. Med. Ctr., 162 Wis. 2d 296, 306, 470 N.W.2d 873 (1991).
When exercising its discretion, a circuit court “may reasonably reach a conclusion
which another judge or another court may not reach, but it must be a decision
which a reasonable judge or court could arrive at by the consideration of the
relevant law, the facts, and a process of logical reasoning.” Hartung v. Hartung,
102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).

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I. Petersen’s 1991 conviction

¶18 In Wisconsin, “evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that the person acted
in conformity therewith.” WIS. STAT. § 904.04(2)(a). Such evidence may be
admissible, however, “when offered for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” Id.

¶19 Courts apply a three-part test to determine whether other-acts
evidence is admissible. See Sullivan, 216 Wis. 2d at 772-73. First, the evidence
must be offered for an acceptable purpose under WIS. STAT. § 904.04(2)(a).
Sullivan, 216 Wis. 2d at 772. Second, the evidence must be relevant under WIS.
STAT. § 904.01. Sullivan, 216 Wis. 2d at 772. Third, the evidence’s probative
value must not be outweighed by the danger of unfair prejudice or by any of the
other considerations listed in WIS. STAT. § 904.03. Sullivan, 216 Wis. 2d at
772-73. The proponent of the other-acts evidence bears the burden on the
permissible purpose and relevance prongs of the Sullivan test, while the opponent
bears the burden on the unfair prejudice prong. State v. Marinez, 2011 WI 12,
¶19, 331 Wis. 2d 568, 797 N.W.2d 399.

¶20 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.” State v. Hurley, 2015 WI 35, ¶28, 361 Wis. 2d 529, 861 N.W.2d
174. Wisconsin courts therefore permit a “greater latitude of proof as to other like
occurrences” in cases involving child sexual assault. State v. Davidson, 2000 WI
91, ¶36, 236 Wis. 2d 537, 613 N.W.2d 606 (citation omitted). The greater latitude
rule has been codified in WIS. STAT. § 904.04(2)(b)1., which states that when a

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No. 2021AP1097-CR

defendant is charged with sexually assaulting a child, “evidence of any similar acts
by the accused is admissible, and is admissible without regard to whether the
victim of the crime that is the subject of the proceeding is the same as the victim
of the similar act.” The greater latitude rule applies to each step of the Sullivan
analysis. Hurley, 361 Wis. 2d 529, ¶59.

¶21 In this case, after applying the three-step Sullivan analysis, the
circuit court granted the State’s motion to admit other-acts evidence regarding
Petersen’s 1991 conviction for second-degree sexual assault of a child. The
court’s decision in that regard was not an erroneous exercise of discretion.

¶22 The first step of the Sullivan analysis is “not demanding” and is
“largely meant to develop the framework for the relevancy determination”
performed in the second step. Marinez, 331 Wis. 2d 568, ¶25. “As long as the
State and circuit court have articulated at least one permissible purpose for which
the other-acts evidence was offered and accepted, the first prong of the Sullivan
analysis is met.” Id. Here, the State offered the evidence regarding Petersen’s
1991 conviction for at least two permissible purposes—namely, to establish
Petersen’s motive and intent to sexually assault Ann. See WIS. STAT.
§ 904.04(2)(a). As such, the circuit court reasonably determined that the State had
satisfied the first step of the Sullivan analysis.

¶23 Turning to the second step of the Sullivan analysis, the circuit court
reasonably concluded that the State’s proffered other-acts evidence was relevant to
establishing Petersen’s motive and intent. Evidence is relevant when 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.

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No. 2021AP1097-CR

¶24 To convict Petersen of first-degree sexual assault of a child, as
charged in the criminal complaint and Information, the State needed to prove that
Petersen had sexual contact with Ann—that is, that he intentionally touched Ann’s
intimate parts “for the purpose of sexually degrading or sexually humiliating
[Ann] or sexually arousing or gratifying [Petersen].” See WIS. STAT.
§§ 948.01(5)(a)1., 948.02(1)(e). Evidence that Petersen had previously been
convicted of sexually assaulting a fourteen-year-old girl when he was an adult
tended to show that Petersen is sexually attracted to underage girls. The evidence
was therefore relevant to establish Petersen’s motive for sexually assaulting
Ann—i.e., to obtain sexual arousal or gratification—and to show that Petersen’s
intent in touching Ann was to become sexually aroused or gratified.

¶25 Petersen argues that evidence regarding his 1991 conviction was not
relevant because the acts underlying that conviction were remote in time and were
too dissimilar from the acts alleged in the instant case. In particular, Petersen
asserts that the 1991 case involved a year-long, consensual relationship between a
fourteen-year-old girl and a twenty-nine-year-old man, who was a nonfamilial
acquaintance. Petersen further asserts that he and the victim in the 1991 case were
dating and in love. Petersen also emphasizes that the 1991 case involved
allegations of consensual sexual intercourse, without any allegations of force or
coercion. In contrast, Petersen asserts that this case involves allegations of
repeated, coercive assaults, which involved the nonconsensual touching of an
eleven-year-old’s genitalia by a family member—specifically, her
fifty-three-year-old stepfather. Petersen further notes that while he admitted the
sexual relationship at issue in the 1991 case and took responsibility for his actions,
he has consistently denied sexually assaulting Ann.

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¶26 The circuit court reasonably concluded that evidence regarding
Petersen’s conduct in the 1991 case was relevant, despite the twenty-five-year gap
between that conduct and the conduct alleged in this case and despite the existence
of some factual differences between the two cases. The court noted that, in both
cases, Petersen had formed a relationship with another adult that allowed him to
gain access to that individual’s child. Also, the sexual acts in both cases “occurred
in [Petersen’s] bedroom when the ‘lady of the house’ was absent.” In addition,
both cases involved “repeated acts of alleged sexual intercourse and other sexually
intimate acts done at the urging and direction of [Petersen].” Ultimately, the court
concluded:

In both cases, it is alleged that young girls, significantly
below the age of consent, are repeatedly assaulted sexually
by a man substantially older than them, in a very
inappropriate relationship arising out of a close personal
friendship between the families in the [1991 case] and an
actual familial relationship in this case. The similarity of
these acts is of high probative value.

¶27 Petersen cites State v. Friedrich, 135 Wis. 2d 1, 398 N.W.2d 763
(1987), in support of his claim that the other-acts evidence in this case was too
dissimilar to the charged conduct to be relevant. Friedrich was charged with
sexually assaulting his fourteen-year-old niece on two separate occasions while
she was babysitting his children. Id. at 7-8. At trial, the State presented other-acts
evidence that Friedrich had sexually assaulted the same niece four years earlier
while he was driving her home from school; that Friedrich had sexually assaulted
a thirteen-year-old girl who fell asleep while babysitting his children; and that
Friedrich had made sexual advances toward an eighteen-year-old bartender who
was employed at his tavern. Id. at 17-18, 26.

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¶28 On appeal, our supreme court concluded the circuit court had
properly admitted the other-acts evidence regarding the prior sexual assaults of
Friedrich’s niece and the thirteen-year-old girl. Id. at 24. The court reasoned that
those acts were “highly probative of a scheme or plan” because they shared
various characteristics with one another and with the charged assault—
specifically, they involved “virtually identical” sexual contact with similarly aged
girls who had familial or quasi-familial relationships with Friedrich. Id. In
contrast, the court concluded the evidence regarding Friedrich’s sexual advances
toward the eighteen-year-old bartender was not properly admitted because the
minimal probative value of that evidence was outweighed by the danger of unfair
prejudice. Id. at 26. The court reasoned that evidence regarding sexual comments
made toward an adult woman did not “fit within the outline of the scheme or plan
established with respect to [Friedrich’s] seeking sexual gratification from young
girls.” Id. Instead, that evidence merely showed that Friedrich had “sought a
consensual sexual relationship with an adult.” Id.

¶29 Like the admissible other-acts evidence in Friedrich, the other-acts
evidence in this case shares common characteristics with the charged assaults.
Both cases involved Petersen having physical sexual contact with an underage girl,
and in both cases Petersen gained access to the victim by forming a relationship
with an adult member of her family. Unlike the inadmissible other-acts evidence
in Friedrich, the other-acts evidence here did not consist of mere verbal sexual
advances toward an adult woman. Under these circumstances, the circuit court
reasonably concluded that, despite certain factual differences, Petersen’s conduct
in the 1991 case was similar enough to his alleged conduct in this case to establish
his motive and intent to become sexually aroused or gratified by engaging in
sexual conduct with underage girls.

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¶30 The circuit court also reasonably concluded that the probative value
of the other-acts evidence was not substantially outweighed by the danger of
unfair prejudice. 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.” Hurley, 361 Wis. 2d 529, ¶87
(citation omitted). “If the [evidence’s] probative value is close to or equal to its
unfair prejudicial effect, the evidence must be admitted.” Id. Moreover, 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.’” Id.
(citation omitted). For instance, unfair prejudice occurs when other-acts 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.” Id., ¶88 (citation omitted).

¶31 Here, the circuit court found that the probative value of the
other-acts evidence was high. On the other side of the balance, the court
acknowledged that admitting the other-acts evidence created a risk that the jury
would “decide guilt in this case based upon what happened” in the 1991 case. The
court reasoned, however, that this risk could be mitigated by the use of a limiting
instruction clarifying the proper purposes for which the jury could consider the
other-acts evidence.

¶32 Limiting instructions “substantially mitigate any unfair prejudicial
effect” and, in some cases, may “eliminate the potential for unfair prejudice.” Id.,
¶89. In this case, the circuit court specifically instructed the jury of the
permissible purposes for which it could consider the other-acts evidence, and the
court further instructed the jury that it could not use the other-acts evidence “to
conclude that the defendant is a bad person and for that reason is guilty of the

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No. 2021AP1097-CR

offenses charged.” We presume that jurors follow the court’s instructions. State
v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989). Under these
circumstances, the court did not err by concluding that the probative value of the
other-acts evidence was not outweighed by the danger of unfair prejudice.

¶33 In summary, when ruling on the admissibility of the other-acts
evidence, the circuit court considered the relevant facts, properly applied the
three-step Sullivan analysis, and used a rational process to reach a reasonable
conclusion. The application of the greater latitude rule further supports the court’s
decision to admit the other-acts evidence in this case involving allegations of
sexual assault of a child. Accordingly, we cannot conclude that the court
erroneously exercised its discretion by admitting the other-acts evidence.

II. Ann’s alleged prior untruthful allegation of sexual assault

¶34 Wisconsin’s rape shield statute provides, as a general matter, that
evidence “concerning the complaining witness’s prior sexual conduct or opinions
of the witness’s prior sexual conduct and reputation as to prior sexual conduct” is
inadmissible in prosecutions for various crimes, including sexual assault of a child
under WIS. STAT. § 948.02. WIS. STAT. § 972.11(2)(b). An exception to this
general rule exists, however, for “[e]vidence of prior untruthful allegations of
sexual assault made by the complaining witness.” Sec. 972.11(2)(b)3.

¶35 Evidence of a complainant’s alleged prior untruthful allegations of
sexual assault may be introduced at trial “only after close judicial scrutiny.”
Ringer, 326 Wis. 2d 351, ¶26 (citation omitted). The evidence is admissible “only
if the circuit court first makes three determinations: (1) the proffered evidence fits
within WIS. STAT. § 972.11(2)(b)3[.]; (2) the evidence is material to a fact at issue

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No. 2021AP1097-CR

in the case; and (3) the evidence is of sufficient probative value to outweigh its
inflammatory and prejudicial nature.” Ringer, 326 Wis. 2d 351, ¶27.

¶36 With respect to the first of these three determinations, “the circuit
court must first conclude from the proffered evidence that a jury could reasonably
find that the complainant made prior untruthful allegations of sexual assault.” Id.,
¶31. Stated differently, the court must determine “whether a jury, acting
reasonably, could find that it is more likely than not that the complainant made
prior untruthful allegations of sexual assault.” Id., ¶32.

¶37 Based on Petersen’s proffered evidence, the circuit court found that a
jury “could not come to the conclusion that there was a prior untruthful allegation
of sexual assault” by Ann. The court did not erroneously exercise its discretion in
that regard. Critically, the prior allegation of sexual assault was reported to
authorities by Ann’s grandmother, not by Ann herself. When interviewed by a
case worker in 2011, Ann denied that any assault had occurred. The only evidence
suggesting that Ann, as opposed to her grandmother, had made an untruthful
allegation of sexual assault was Denise’s statement to the case worker that
although Ann initially denied “saying any of this,” she later stated she “made this
up” because her friend told her “she would get jewels and presents for saying
this.” At most, however, this evidence showed that in 2011, Denise made an
allegation that Ann had previously admitted making an untruthful allegation of
sexual assault. The court reasonably determined that this evidence was
insufficient to permit a reasonable jury to find that it was more likely than not that
Ann had made a prior untruthful allegation of sexual assault.

¶38 Moreover, the circuit court also reasonably determined that the
probative value of the evidence regarding the 2011 allegation was outweighed by

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No. 2021AP1097-CR

the danger of unfair prejudice. The court reasoned that Ann’s possible false
accusation of sexual assault when she was five years old was minimally probative
of her credibility in making a subsequent accusation of sexual assault when she
was twelve years old because a five-year-old child cannot be “held to the same
standard of truthfulness” as “a 12- or 13-year-old or even a 10-year-old.” The
court further reasoned that, given the evidence regarding the circumstances in
which Ann’s grandmother had reported the allegation to Brown County in 2011,

the jury is going to spend an awful lot of time speculating
about something that doesn’t matter at all, whether
Grandma was mad at [Ann’s grandfather] or what the heck
was going on, and all these other factors that might have
encouraged somebody else to lie has nothing to do with the
credibility of this person and these facts.

The court therefore concluded that Petersen’s proffered evidence regarding the
prior allegation of sexual assault was “unduly prejudicial” because, given the
evidence’s “very, very questionable province,” admitting the evidence “would do
much more harm than good.”

¶39 On the record before us, we cannot conclude that the circuit court
erroneously exercised its discretion by excluding Petersen’s proffered evidence
regarding the 2011 allegation of sexual assault. The court considered the relevant
facts, applied the test set forth in Ringer, and provided a rational basis for its
decision to exclude the evidence. As such, the court did not erroneously exercise
its discretion.

III. Petersen’s motion for a mistrial

¶40 Lastly, Petersen argues that the circuit court erroneously exercised
its discretion by denying his motion for a mistrial. As noted above, the decision
whether to grant a mistrial is committed to the circuit court’s discretion. See

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No. 2021AP1097-CR

Seefeldt, 261 Wis. 2d 383, ¶13. The court must determine, “in light of the entire
proceeding, whether the basis for the mistrial motion is sufficiently prejudicial to
warrant a new trial.” State v. Givens, 217 Wis. 2d 180, 191, 580 N.W.2d 340
(Ct. App. 1998). Not all errors warrant a mistrial, and “the law prefers less drastic
alternatives, if available and practical.” Id. (citation omitted). A mistrial is
appropriate only when a “manifest necessity” exists for the termination of the trial.
Id. (citation omitted).

¶41 Petersen moved for a mistrial based on the excused juror’s statement
during voir dire that her sister “works in foster care in Green Bay and she’s gone
through a lot of these cases and like 80 percent of them, they’ve been guilty.”
Petersen asserts that this statement tainted the entire venire panel by suggesting to
the prospective jurors that there was an eighty percent chance that he was guilty.
Petersen contends that by denying his motion for a mistrial and allowing his trial
to proceed with a tainted panel, the circuit court violated his constitutional right to
an impartial jury.

¶42 In support of this argument, Petersen relies on Mach v. Stewart, 137
F.3d 630 (9th Cir. 1997), as amended (Feb. 11, 1998). Mach was charged with
sexually assaulting an eight-year-old girl. Id. at 631. The first prospective juror to
be questioned during voir dire, Ms. Bodkin, was a social worker with the State of
Arizona Child Protective Services. Id. at 631-32. Bodkin stated that she would
“have a difficult time being impartial given her line of work, and that sexual
assault had been confirmed in every case in which one of her clients reported such
an assault.” Id. at 632. The trial court continued to question Bodkin about this
topic in front of the entire venire panel, and the court’s questions “elicited at least
three more statements from Bodkin that she had never, in three years in her
position, become aware of a case in which a child had lied about being sexually

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No. 2021AP1097-CR

assaulted.” Id. The court warned Bodkin and the entire panel that they were to
determine Mach’s guilt based on the evidence presented at trial, and Bodkin
responded that she could “probably” do that. Id. The court later asked the
prospective jurors whether they had any background or experience in psychology,
and Bodkin responded that she had taken psychology courses, including courses in
child psychology, and had “worked extensively with psychologists and
psychiatrists.” Id.

¶43 The trial court ultimately struck Bodkin for cause, but it denied
Mach’s request for a mistrial, rejecting his argument that Bodkin’s statements had
tainted the entire venire panel. Id. On appeal, the Ninth Circuit Court of Appeals
determined that the trial court had erred in that respect. The court reasoned that a
mistrial was warranted because the trial court had

elicited from Bodkin (a) that she had a certain amount of
expertise in this area (she had taken child psychology
courses and worked with psychologists and psychiatrists;
she worked with children as a social worker for the state for
at least three years); and (b) four separate statements that
she had never been involved in a case in which a child
accused an adult of sexual abuse where that child’s
statements had not been borne out.

Id. at 632-33. The court further noted that although the trial court had warned
Bodkin and the venire panel “that jurors are to make determinations based on the
evidence rather than on their own experiences or feelings,” the trial court “went on
to elicit yet another statement from Bodkin that she had never known a child to lie
about sexual abuse.” Id. at 633. When the trial court asked the other jurors
whether anyone disagreed with Bodkin’s statement to that effect, “no one
responded.” Id.

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No. 2021AP1097-CR

¶44 On this record, the Ninth Circuit held that, at a minimum,

when Mach moved for a mistrial, the court should have
conducted further voir dire to determine whether the panel
had in fact been infected by Bodkin’s expert-like
statements. Given the nature of Bodkin’s statements, the
certainty with which they were delivered, the years of
experience that led to them, and the number of times that
they were repeated, we presume that at least one juror was
tainted and entered into jury deliberations with the
conviction that children simply never lie about being
sexually abused. This bias violated Mach’s right to an
impartial jury.

Id. (footnote omitted).

¶45 As the State aptly notes, Mach’s holding is not binding on this court.
See Streff v. Town of Delafield, 190 Wis. 2d 348, 356, 526 N.W.2d 822 (Ct. App.
1994). Moreover, although we may choose to follow a lower federal court’s
decision that we find persuasive, see id., Mach is materially distinguishable from
the instant case. In Mach, the prospective juror spoke from a clear position of
authority—the venire panel was aware that she been employed as a social worker
dealing with children for at least three years, that she had taken courses in child
psychology, and that she had worked extensively with psychologists and
psychiatrists. Mach, 137 F.3d at 632. Against that background of stated
expertise, the prospective juror made at least four separate statements that she had
never encountered a case in which a child had lied about being sexually assaulted.
Id. The trial court engaged in prolonged questioning of the prospective juror
regarding that topic in front of the entire venire panel before eventually excusing
her for cause. Id.

¶46 In contrast, the excused juror in this case did not testify from a
position of personal authority or expertise. Instead, she testified that her sister

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No. 2021AP1097-CR

worked in foster care and her sister had told her that in eighty percent of cases the
person accused of sexually assaulting a child was guilty. The excused juror did
not claim to have any personal knowledge about whether her sister’s statement to
that effect was true, nor did she claim that her sister was an expert regarding child
sexual assault. In addition, unlike the prospective juror in Mach, the excused juror
here made a single objectionable comment, and the circuit court promptly excused
her for cause after determining that she had already made up her mind and could
not be impartial. The court did not engage in prolonged questioning of the
excused juror in front of the entire panel, nor did it elicit multiple objectionable
statements from her.

¶47 Moreover, after excusing the juror in question, the circuit court
expressly instructed the remaining members of the venire panel that the jury was
required to decide the case based only upon the evidence presented at trial and
that, although the panel had heard some prospective jurors “express misgivings,”
those comments were “not evidence.” The court then confirmed that the
remaining members of the panel could “listen to the evidence, consider the
evidence and only the evidence, and apply the law and only the law that I give
you, regardless of what thoughts you might have.” These circumstances
materially distinguish the present case from Mach.

¶48 When denying Petersen’s motion for a mistrial, the circuit court
expressly found that the excused juror’s comment about her sister’s experience
working in the foster care system was not made from a “position of authority.”
The court elaborated, “It’s not like she said my brother, the child psychiatrist who
deals with abused children says that 90 percent of this is the case, or my sister
who’s a therapist at Taycheedah [Correctional Institution] and deals with
offenders … said these things.” The court further stated that it suspected, based on

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No. 2021AP1097-CR

the excused juror’s body language, that she made the comment in question
because she was “trying to get herself kicked off the jury.” If the court drew that
conclusion based on the excused juror’s body language, it is reasonable to
conclude that other members of the venire panel would have had a similar
impression and would therefore have given little weight to the excused juror’s
comment.

¶49 The circuit court also noted that “little was made of [the excused
juror’s] comment” in front of other prospective jurors, which lessened the chance
that the comment had tainted the entire panel. The court further reasoned that the
panel

was told, without this matter being highlighted, that they
had to decide the case based upon the facts and the
evidence they received in court and nothing else, and they
had to put aside all of their questions. I specifically asked
them three or four different times in different ways can you
do this. Every one of them agreed they could.

On this record, the court’s denial of Petersen’s request for a mistrial was not an
erroneous exercise of discretion.

¶50 Citing Mach, Petersen asserts that if the circuit court chose not to
grant a mistrial, it was instead required to conduct further voir dire to determine
whether the panel had, in fact, been tainted by the excused juror’s “expert-like
statements.” See Mach, 137 F.3d at 633. The court reasonably determined,
however, that the excused juror’s comment was not made from a position of
authority or expertise, unlike the objectionable statements in Mach. Additionally,
after the juror in this case was excused for cause, the court specifically informed
the panel that any “misgivings” prospective jurors had voiced were “not
evidence,” and the court confirmed that the remaining members of the panel could

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No. 2021AP1097-CR

decide the case based solely on the evidence presented and the legal instructions
the court provided. Under the circumstances, this procedure was sufficient to
ensure that the venire panel was not tainted by the excused juror’s comment, and
the court was not required to grant Petersen’s request for a mistrial.

By the Court.—Judgment affirmed.

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

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