State v. Bruce E. Smith

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.
July 13, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP516-CR Cir. Ct. No. 2019CF78

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRUCE E. SMITH,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Monroe County:
TODD L. ZIEGLER, Judge. Affirmed.

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

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

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

¶1 PER CURIAM. Following a jury trial in Monroe County circuit
court, Bruce Smith appeals a judgment convicting him of first degree sexual assault
No. 2022AP516-CR

of a child and incest through sexual contact with the same child. Smith argues that
the convictions must be reversed because the circuit court erroneously exercised its
discretion in admitting at trial three sets of other-acts evidence. In the alternative,
he argues that this court should order a new trial because the real controversy was
not fully tried in light of the admission of the other-acts evidence. Regarding
admission of two sets of other-acts evidence, we conclude that the circuit court did
not erroneously exercise its discretion. As to the remaining set, we assume without
deciding that the decision to admit was error, but we conclude that the assumed error
was harmless. For these reasons, reversal in the interest of justice is not required.
Accordingly, we affirm.

BACKGROUND

¶2 In February 2019, the State filed a criminal complaint charging Smith
with having sexual contact with his niece, whom we identify as A.B.1 The
complaint alleged that this occurred sometime between August 15, 1990, and
August 15, 1992, when she was between the ages of 7 and 9. According to the
criminal complaint, A.B. told a police detective in November 2018 that
approximately 27 years earlier, when she was in second or third grade, Smith had
sexual contact with her. More specifically, she said that Smith rubbed her genitals
and asked her, “[D]oes it feel good[?]” She said that this occurred in the bedroom
she then shared with her younger sister in their residence in Monroe County while
Smith was babysitting.

1
We refer to victims and witnesses in this case by initials different from their own in order
to protect their privacy. See WIS. STAT. RULE 809.86(4) (2021-22). All references to the
Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

2
No. 2022AP516-CR

¶3 The prosecution’s amended information charged Smith with having
sexual contact with A.B. sometime between January 1, 1990, and December 31,
1992, in violation of WIS. STAT. § 948.02(1), and incest with A.B. through sexual
contact during the same period, in violation of WIS. STAT. § 948.06(1).

¶4 The prosecution filed a pretrial motion for the admission at trial of
three sets of other-acts evidence under governing law that includes WIS. STAT.
§ 904.04(2). As an evidentiary basis for all three sets, the prosecution relied on
allegations contained in the criminal complaint, which quoted from interviews
conducted by a police detective. In discussion below we summarize the details
regarding the pre-trial offers of proof by the prosecution and the related testimony
at trial regarding each set of allegations.

¶5 The prosecution argued that each of these alleged incidents was
admissible as a “sexually motivated act[]” by Smith that he “directed towards the
same minor child,” namely, A.B.’s older brother. We identify the brother as C.D.
The prosecution contended that witness’s accounts of these incidents were offered
for the permissible purposes of: proving that, in allegedly having contact with
A.B.’s genitals on the charged occasion, Smith intended to humiliate or gain sexual
gratification from the victim; proving the “lack of mistake or accident”; and also to
“present[] the full story to [the] jury” regarding the A.B. incident. Defense counsel
countered that the witness’s accounts of the three alleged incidents amounted to
mere expressions of “amorphous feelings” and not concrete “observations” of fact.
Counsel said the allegations were so vague that his “concern is really kind of through
the roof on how these observations were ever even made; the inability to cross-
examine beliefs, feelings, as opposed to something [the witness] can see and hear
and testify to.”

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No. 2022AP516-CR

¶6 The circuit court ruled that all three alleged incidents were admissible
under the three prongs of the Sullivan analysis, particularly in light of “the greater
latitude rule.” See State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30
(1998); State v. Marinez, 2011 WI 12, ¶¶16, 20, 28, 34, 331 Wis. 2d 568, 797
N.W.2d 399 (explaining and applying the greater latitude rule, which allows for
more ample admission of other-acts evidence in child sexual assault cases). But the
court’s ruling was preliminary; the court said that defense counsel had brought up
“well-noted” “issues” and the court indicated that, before or during trial, the court
might entertain “objections to certain statements” by the witnesses to the other acts.

¶7 At trial, A.B. testified to the conduct underlying the charged offenses.
Among other details, she specifically testified that Smith touched her genitals in her
bedroom when she was in third, fourth, or fifth grade; that it was “very painful” and
she felt “frozen”; and that Smith asked her “if it felt good.” A.B.’s mother, father,
and aunt testified that they were aware of her allegations in the early 1990s. Smith
did not testify at trial.

¶8 The prosecution elicited testimony regarding the three alleged other-
acts evidence incidents, as summarized in discussion below. Neither side now calls
our attention to further pertinent discussion among the parties and the circuit court
during the course of trial regarding the admissibility of other-acts evidence.

¶9 The circuit court gave a cautionary instruction regarding two of the
three sets of other-acts evidence as part of its final set of instructions to the jury
toward the close of trial, quoted in the discussion below.

¶10 The jury reached guilty verdicts on both charges, the circuit court
sentenced Smith, and he now appeals the judgment of conviction.

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No. 2022AP516-CR

DISCUSSION

¶11 We first summarize the basic applicable legal standards regarding
other-acts evidence and then address the incidents in turn, adding some background
facts and legal standards as needed.

I. Other-Acts Evidence

¶12 We review a circuit court’s decision to admit other-acts evidence for
an erroneous exercise of discretion, upholding the decision as long as the court
examined the relevant facts, applied a proper legal standard, and used a rational
process to reach a reasonable conclusion. State v. Hurley, 2015 WI 35, ¶28, 361
Wis. 2d 529, 861 N.W.2d 174.

¶13 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 another purpose, “such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

¶14 As referenced above, our supreme court in Sullivan set forth a three-
part test for determining whether other-acts evidence is admissible. Sullivan, 216
Wis. 2d at 772-73. A court must consider whether: (1) the other-acts evidence is
offered for a permissible purpose under WIS. STAT. § 904.04(2); (2) the evidence is
relevant under WIS. STAT. § 904.01; and (3) its probative value is substantially
outweighed by the danger of unfair prejudice under WIS. STAT. § 904.03. Sullivan,
216 Wis. 2d at 772-73. The proponent of the evidence must show the permissible
purpose and relevance prongs of the Sullivan test; the opponent bears the burden to
establish unfair prejudice. Marinez, 331 Wis. 2d 568, ¶19.

5
No. 2022AP516-CR

¶15 Other-acts evidence may be “particularly relevant in child sexual
assault cases because an average juror likely presumes that a defendant is incapable
of” committing child sexual assault. Hurley, 361 Wis. 2d 529, ¶59. This means
that courts are to 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 (quoted source omitted). The greater latitude rule
has been codified in WIS. STAT. § 904.04(2)(b)1., which states that in a sexual
assault case “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.

II. The North Dakota Incident

A. Additional Background

¶16 The following was the factual basis for the circuit court’s pretrial
ruling regarding one set of other-acts evidence, which we refer to as the North
Dakota incident. A.B.’s brother C.D. was quoted in the criminal complaint as telling
police the following. In 1986 or 1987—when A.B. was 3 or 4 and C.D. was 6 or
7—the two children and their parents were living in North Dakota. At one point
during a visit to the family, Smith was with the two children in C.D.’s bedroom.
C.D. and A.B. were naked. A.B. was lying on a bed. C.D. could not recall if Smith
was also naked. “[I]t seems like there was probably some rubbing going on. I don’t
know if [Smith] was pleasuring himself.” C.D. “doesn’t remember what happened
in his room that day, but only remembers [Smith] in the room with [C.D.] and [A.B.]
lying naked in the bed.” “I remember feeling that this wasn’t right. I don’t like
this.”

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No. 2022AP516-CR

¶17 At trial, the prosecution elicited the following trial testimony from
C.D. Smith visited C.D.’s family when they were living in North Dakota and C.D.
was 6 or 7. At one point during the visit Smith was with C.D. and A.B. in C.D.’s
bedroom. C.D. could not be “a hundred percent sure I was unclothed,” but he
testified to a clear memory that A.B. was lying “in the bed” while completely naked.
C.D. was also “in the bed.” C.D. did not recall whether Smith was clothed or not.
“I absolutely felt … that it was inappropriate.”2

B. Analysis

¶18 We conclude that the State has carried its burden of showing that the
testimony regarding the North Dakota incident was offered for the permissible
purpose of making a showing, which was relevant, that in touching A.B.’s genitals
as charged Smith had “the purpose of sexually degrading or sexually humiliating
[A.B.] or sexually arousing or gratifying [Smith].” See WIS. STAT. § 948.01(5)(a)
(part of the definition of “sexual contact”). We also conclude that Smith fails to
carry his burden of showing that the probative value of the North Dakota incident
was substantially outweighed by the danger of unfair prejudice resulting from its
admission.

¶19 Regarding the first step of the Sullivan test, proper purpose, Smith
does not dispute, because he cannot, that the prosecution at trial was required to
prove that he touched A.B.’s genitals “for the purpose of sexually degrading or
sexually humiliating [A.B.] or sexually arousing or gratifying [Smith].” See WIS.

2
We note that C.D.’s trial testimony regarding the North Dakota incident did not include
the following allegations from the criminal complaint that formed the basis of the pretrial motion:
“[I]t seems like there was probably some rubbing going on. I don’t know if [Smith] was pleasuring
himself.” However, Smith does not develop an argument that this difference undermines the circuit
court’s decision to admit evidence of the North Dakota incident and we conclude that it does not
undermine the decision.

7
No. 2022AP516-CR

STAT. § 948.01(5)(a). Accordingly, the prosecution offered evidence of the North
Dakota incident to show that Smith’s intent in touching A.B.’s genitals on the
charged occasion was for one of these purposes. See Davidson, 236 Wis. 2d 537,
¶¶59, 65 (defendant’s “purpose or motive for allegedly touching [a child] was one
element of the charged crime, and evidence relevant to motive was therefore
admissible”; previous sexual contact with young children relevant to show that he
had sexual contact with a child on the charged occasion for the purpose or with the
motive of sexually arousing or gratifying himself); State v. Friedrich, 135 Wis. 2d
1, 22, 398 N.W.2d 763 (1987).

¶20 Turning to the second step of the Sullivan test, relevancy, Smith
argues that this evidence was not relevant because it did “nothing to show that
Smith’s alleged ‘behavior’ was sexual or motivated by sexual gratification” and
failed to show that Smith “ever engaged in any inappropriate sexual behavior.”
(Emphasis in briefing.) We disagree.

¶21 The circuit court could reasonably determine that the following
evidence could help to demonstrate that, at the time of the charged offense, Smith
had an intent to sexually degrade or humiliate or become sexually aroused or
gratified: when C.D. was 6 or 7 and A.B. was 3 or 4, the children were in a bedroom
with only Smith; C.D. and A.B. were in a bed; one or both children were completely
naked; and at the time C.D. thought the circumstances were inappropriate. It is true
that this does not describe an act of sexual contact by Smith. It does, however,
describe circumstances in which Smith might have been trying to observe one or
more naked children for sexual purposes or to have contact with naked children for
sexual purposes. There are certainly possible innocent explanations for an adult to
be alone in a room with naked young relatives, with the children in a bed. Further,
of course, one of the children could later recall thinking that, at the time, the

8
No. 2022AP516-CR

circumstances were inappropriate, even if they were not inappropriate. But there
are also explanations for these allegations that would help to show a sexual intent at
the time of the charged offense.

¶22 Further, we note that, while the North Dakota incident was distant in
time from the time of trial in this case, it was not distant in time from Smith’s assault
on A.B. Its probative value to show a sexual intent at the time of the assault on A.B.
may not be strong, but it is meaningful.

¶23 Beyond that, the testimony was that A.B., the victim in the charged
incident, was naked, not only that C.D. may have been naked.

¶24 It is not clear but Smith might intend to argue that the jury lacked
sufficient evidence to find that what C.D. testified to actually occurred. Our
supreme court has explained this part of the relevancy prong as follows:

[O]ther acts evidence may consist of uncharged offenses ….
However, “[u]nder [WIS. STAT. § 904.04(2)], other acts
evidence is relevant if a reasonable jury could find by a
preponderance of the evidence that the defendant committed
the other act.” State v. Bustamante, 201 Wis. 2d 562, 570,
549 N.W.2d 746 (Ct. App. 1996) (citing State v. Landrum,
191 Wis. 2d 107, 119-20, 528 N.W.2d 36 (Ct. App. 1995)).
Whether a jury could determine that the defendant
committed the other acts is a question of law which we
review de novo. Bustamante, 201 Wis. 2d at 570.

State v. Gray, 225 Wis. 2d 39, 59, 590 N.W.2d 918 (1999) (second alteration in
Gray). If Smith intends to argue that C.D.’s testimony was inherently incredible or
inconsistent, he fails to develop an argument. While C.D. couched his testimony in
qualifications, the jury was free to treat the qualifications as indications that he was
taking care to testify to only what he could be sure of.

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No. 2022AP516-CR

¶25 Turning to the third step of the Sullivan test, whether the prejudicial
effect of the North Dakota incident evidence substantially outweighs any probative
value, Smith argues that “the strength of proof that Smith committed the proffered
other acts is far too low to have any probative value in relation to the central issues
at trial.” In a similar vein, he argues that, “[a]t best, the other acts evidence” in this
case “is only probative to prove that Smith acted in conformity with some propensity
to seek sexual gratification from young children.” These arguments do not come to
grips with the relevance of the North Dakota evidence to Smith’s sexual intent in
touching A.B. in the charged incident and also fail to take into account the “greater
latitude” rule that we are obligated to apply.

¶26 Unfair prejudice in this context “‘is not whether the evidence harms
the opposing party’s case, but rather whether the evidence tends to influence the
outcome of the case by improper means.’” State v. Payano, 2009 WI 86, ¶87, 320
Wis. 2d 348, 768 N.W.2d 832 (quoted source omitted). And here, the cautionary
jury instruction specifically addressed the North Dakota incident, directing the jury
that it must avoid relying on this evidence for an improper purpose.3 As the State

3
The circuit court instructed the jury:

Evidence has been presented regarding other conduct of
the defendant for which the defendant is not on trial. Specifically,
evidence has been presented that the defendant was in a bedroom
in a house in North Dakota when [A.B.] and [C.D.] were in bed in
approximately 1987, and that the defendant touched [C.D.]’s
penis in Sparta at a different time.

If you find that this conduct did occur, you should
consider it only on the issue of motive, intent, context or
background. You may not consider this evidence to conclude 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.

10
No. 2022AP516-CR

points out, we presume that jurors follow court instructions, and instructions can go
“far to cure any adverse effect attendant with the admission of the [other-acts]
evidence,” Sullivan, 216 Wis. 2d at 791, and “substantially mitigate” any unfair
prejudicial effect caused by the admission of other-acts evidence. Hurley, 361
Wis. 2d 529, ¶89. Regarding the North Dakota incident, Smith fails to present a
developed argument that the cautionary instruction was inadequate.

¶27 Before moving on to the next set of other-acts allegations, we address
a contention Smith makes regarding one aspect of the other-acts evidence
collectively. The argument is that the prosecution in its opening statement and
closing argument in effect improperly invited the jury to ignore the cautionary
instruction and to find him guilty of sexually assaulting A.B. because he has the
general motivation, or propensity, to molest children, based on all of the other-acts
evidence. We agree with Smith that some statements by the prosecutor to the jury
in both opening and closing could be interpreted to have been dangerously loose on
the topic of Smith being “motivated by sexual desire for children.” By making
Smith’s “motivation and desire to be gratified sexually by touching a young child”
a theme—without carefully framing these comments as bearing only on Smith’s

Evidence was received on the issue of motive[,] that is,
whether the defendant had a reason to desire the result of the
offense charged;

Intent[,] that is, whether the defendant acted with the state
of mind that is required for the offense charged;

Context or background[,] that is, to provide a more
complete presentation of the evidence relating to the offense
charged.

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 the defendant is a bad person and for
that reason is guilty of the offense charged.

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No. 2022AP516-CR

intent at the time of the charged offense—the prosecutor’s remarks might be
interpreted to have crossed a line into a propensity argument. At the same time,
however, the prosecutor’s remarks could also be interpreted in a manner that is more
consistent with the cautionary instruction—especially to a juror who took into
account the more precise, legally sound direction on this topic in the court’s
cautionary instruction, which we are to presume the jury followed. For these
reasons, we reject Smith’s argument that the prosecutor’s remarks contributed to
unfair prejudice in the admission of the other-acts evidence.

III. The Smith Apartment Incident

A. Additional Background

¶28 The following was the factual basis for the circuit court’s pretrial
ruling regarding an incident that we refer to as the Smith apartment incident. C.D.
was quoted in the criminal complaint as telling police the following. When C.D.
was “5 to 8,” he “could not remember exact details but felt as though [C.D.] was
sexually assaulted by” Smith in Smith’s apartment in Sparta “based off the faint
memories [C.D.] had as a child.” C.D. “remembered lying in [Smith’s] bed
watching a movie,” and he told the police, “[I]t seems like [Smith] was naked at that
time.… It seems like I remember him rubbing me.” Later, when C.D. saw a baked
potato “ooz[ing]” “juice,” this caused C.D. to think that C.D. had “more than likely
witnessed [Smith] ejaculating at some point in time.”

¶29 At trial, the prosecution elicited the following trial testimony from
C.D. When C.D. was about 5, at some point he was alone with Smith in Smith’s
second-floor apartment in Sparta. “And for whatever reason I was in bed and I just
have a feeling that I was being molested while I was watching” a television show
featuring scuba diving. “All I can vaguely remember is [Smith] touching” C.D.’s

12
No. 2022AP516-CR

penis. When C.D. was older, he saw a potato cooking in a microwave and it made
C.D. think of Smith and “[t]he only thing I can come up with is I thought it had
something to do with ejaculation.” But he had no direct memory of seeing Smith
ejaculate.

B. Analysis

¶30 As with the North Dakota incident and for a number of the same
reasons, we conclude that the State has carried its pertinent burdens regarding the
Smith apartment incident and we also conclude that Smith has not carried his
pertinent burden.

¶31 Smith concedes that the Smith apartment incident evidence “is closer
to the charged offense” in character than either of the other two sets of other-act
evidence allegations. His argument on this issue focuses on the qualifications that
C.D. made in this testimony, specifically that C.D. testified that he “just [had] a
feeling that [he] was being molested” and that all he could “vaguely remember is
[Smith] touching” C.D.’s penis. Based on these qualifications, Smith argues that
C.D.’s testimony about the Smith apartment incident are insufficiently “concrete”
to be relevant.

¶32 But C.D. testified to the memory that Smith touched C.D.’s penis
while the two were in a particular physical location and during a general time frame,
even if C.D. qualified his memory as being only “vague[].” The jury was free to
interpret the concept of vagueness to mean that C.D.’s memories were only partial
and in some respects indistinct, but not to mean that it was unlikely that the touching
occurred. That is, the testimony provided a basis for a jury to find by a
preponderance of the evidence that Smith did touch his penis and, if so, a basis to
consider that fact as it might bear on Smith’s sexual intent in touching A.B.’s

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No. 2022AP516-CR

genitals on the charged occasion. C.D.’s potato-cooking reference, while resting on
inferences, could have contributed to a finding that sexual activity by Smith
occurred when C.D. was a child.

¶33 Smith asserts for the first time in his reply brief that the cautionary
jury instruction given by the circuit court misstated the evidence by asserting that
there was testimony that “the defendant touched [C.D.’s] penis in Sparta,” but Smith
fails to explain a problem with this summary reference. This is what C.D. testified
to, even though he acknowledged that his memory was not strong or detailed.

IV. The Family Home Incident

A. Additional Background

¶34 The following was the factual basis for the circuit court’s pretrial
ruling regarding the incident that we refer to as the family home incident. A.B. was
quoted in the criminal complaint as telling police the following. When A.B. was
“between the ages of 7-10” and C.D. was “10-13,” A.B. walked into the living room
of the family’s Monroe County house and saw C.D. “facing” Smith. C.D. was
wearing only “underwear,” by which we assume she meant only underpants. Smith
“had his arms on” C.D. and “was shaking” C.D. The two were “yelling at each
other.” A.B. “didn’t know what was going on and turned around and ran.”

¶35 At trial, the prosecution elicited the following trial testimony from
A.B. One day when A.B. was in third, fourth, or fifth grade, in her family residence,
she was awakened by an argument between C.D. and Smith, with C.D. “sound[ing]

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No. 2022AP516-CR

very loud.” She came upon the two in the living room, arguing.4 C.D. was wearing
only “underwear.” Smith had his hands on C.D.’s shoulders and was shaking him.
She considered this to be odd behavior. “I was extremely scared and I ran … back
to my room.”

B. Harmless Error

¶36 If a decision of a circuit court to admit other acts evidence was
erroneous, reversal is not appropriate if the error was harmless and therefore not
prejudicial. Sullivan, 216 Wis. 2d at 792; see also WIS. STAT. § 901.03(1) (“Error
may not be predicated upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected ....”). Error is harmless “if it is clear beyond
a reasonable doubt that a rational jury would have found the defendant guilty absent
the error.” State v. Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851 N.W.2d 434.
Whether an error was harmless presents an issue of law that we review de novo. Id.,
¶21.

We use several non-exclusive factors to aid our
application of the harmless error rule in the evidentiary
context: (1) the frequency of the error; (2) the importance of
the erroneously included or excluded evidence to the
prosecution’s or defense’s case; (3) the presence or absence
of evidence corroborating or contradicting the erroneously
included or excluded evidence; (4) whether erroneously
excluded evidence merely duplicates untainted evidence;
(5) the nature of the defense; (6) the nature of the State’s
case; and (7) the overall strength of the State’s case.

State v. Monahan, 2018 WI 80, ¶35, 383 Wis. 2d 100, 913 N.W.2d 894.

4
The transcript quotes A.B. as also testifying that the two were “shuffling,” which might
have been a faulty rendering of her saying or attempting to say “scuffling.” But the reference is
ambiguous and in any case it would not matter to our analysis what word A.B. used that caused the
court reporter to record the word “shuffling.”

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No. 2022AP516-CR

C. Analysis

¶37 We assume without deciding that the State has not carried its pertinent
burdens, and therefore it was error for the circuit court to allow the admission of
evidence regarding the family home incident. Having made those assumptions, we
conclude that it is clear beyond a reasonable doubt that a rational jury would have
found Smith guilty absent the assumed error.

¶38 It is highly significant to this issue that the family home incident
would have presented the jury with more of a puzzle than anything else. It does not
necessarily reflect badly on Smith. Essentially, a young person was scared and
thought it odd that Smith and her brother had a loud argument during which Smith
shook him by the shoulders, and C.D. was wearing only underpants. A.B. did not
suggest that there was anything sexual about the incident. Indeed, she did not relate
any content from the argument, sexual in nature or otherwise. It is not necessarily
unusual for young boys to wear only underpants in various rooms of their own
residences, including in the presence of an uncle. It is also not necessarily unusual
for adult relatives of children to get into arguments, which might briefly become
loud, with children for reasons that have nothing to do with sexual activity, which
could innocently be accompanied by briefing taking the child by the shoulders and
shaking them. A.B. did not testify that the shaking was violent.

¶39 In addition, the prosecution appeared to make no special use of the
family home incident, and defense counsel in closing argument had reasonable
points to make:

Now, if there’s something about the way that
mundane things are perceived by these people when they
were young, [Smith] with his hand on [C.D.’s] shoulders
shaking him, right; was it discipline? Were they [] arguing

16
No. 2022AP516-CR

about something? Was it, “Go to bed,” and [C.D.] refused?
We don’t know that.

I think [there’s] a very reasonable explanation for
what [A.B.] saw and regarded as something weird and
perhaps even sexual. But that hyper-reaction is just curious,
and we can’t get to the root of it because these are 30-year-
old allegations.

¶40 It is obvious that the jury, in returning guilty verdicts, credited A.B.’s
testimony about how Smith touched her genitals. It is certainly possible that the
jury also credited her testimony about the family home incident. But we see no
reason to think that the latter testimony, about an animated argument on an unknown
topic that included some shoulder shaking, would have made convictions on the
charged offenses even slightly more likely.

¶41 For a case of this type, the prosecution’s evidence was not notably
strong but it also was not notably weak. A.B.’s testimony was not equivocal. It
also contained some vivid detail, such as that Smith’s hands “felt very itchy and
scratchy” to her and that he “smelled like lumber” from his workplace. She testified
that she tried to report the incident at the time, but did not get the support that she
needed at that time, and that she lived with the “significant emotional trauma” for
many years, until she finally reported it to police. Relatives testified that they were
contemporaneously aware of the allegations. On the other side of the equation, the
charged sexual assault occurred many years earlier and there was no directly
corroborating evidence.5

5
Smith cites to the criminal complaint for the allegation that A.B.’s sister told police that
she was surprised by A.B.’s statements about the sexual assault by Smith and also said that A.B.
was “a drama queen when she was a young child,” but this was not evidence introduced at trial.

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No. 2022AP516-CR

¶42 In sum, the assumed error regarding admission of the family home
incident was harmless.6

CONCLUSION

¶43 For all of these reasons, we affirm the judgment of conviction.

By the Court.—Judgment affirmed.

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

6
Smith argues that “the ‘real controversy was not fully tried’ because the [circuit] court’s
erroneous admission of highly prejudicial innuendo designed to show that Smith had a sexual desire
for children ‘so clouded’ the ‘crucial issue’ of whether the [S]tate proved beyond a reasonable
doubt that Smith was guilty of the charged crimes,” citing State v. Hicks, 202 Wis. 2d 150, 160,
549 N.W.2d 435 (1996). We reject this argument, which is based entirely on the admission of the
other-acts evidence, for the reasons stated in the text.

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