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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
MARCH 4, 1997
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RULE 809.62(1), STATS.                                                                               Official Reports.
No. 96-2100-CR
STATE OF WISCONSIN                                                                                   IN COURT OF APPEALS
                                                                                                     DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM J. MURPHY,
Defendant-Appellant.
APPEAL from a judgment and order of the circuit court for Pierce
County:  ROBERT W. WING, Judge.  Affirmed.
Before Cane, P.J., LaRocque and Myse, JJ.
PER CURIAM.     William Murphy appeals a judgment convicting
him of two counts of sexual assault of a child, contrary to § 948.02(2), STATS.;1
one count of sexual exploitation of a child, contrary to § 948.05(1)(b), STATS.; and
one count of possession of a firearm by a felon, contrary to § 941.29(1)(b), STATS.,
and an order denying postconviction relief.    He argues that the trial court
1  Count one of the information charged Murphy with sexual intercourse with a person not yet 16
years old; count two of the information charged sexual contact with a person not yet 16 years old.




No.   96-2100-CR
erroneously (1) admitted testimony of seven witnesses regarding "other acts"
evidence contrary to § 904.04(2), STATS.; (2) did not allow Murphy to be present
at a pretrial motion in limine hearing; (3) denied his request for a continuance to
obtain new counsel; (4) ruled that the State fully disclosed exculpatory evidence;
and (5) sentenced him to an excessive sentence.   We affirm the judgment and
order.
At trial, C. testified that she was involved in sexual activity with
Murphy, her stepfather, since 1986, when she was eleven or twelve years old.
She testified that in 1986, her stepfather pretended to leave the house on an
errand,  but  then  entered  her  darkened  bedroom  when  she  was  sleeping,
feigning to be a stranger, and threatened harm if she did not follow certain
directions.   After the second such incident, Murphy gave C. letters that were
allegedly from an unknown third party threatening that she would be harmed if
she did not engage in sexual activity with her stepfather.   The letters described
specific sexual acts, and C. was required to give the letters back to Murphy after
reading them.    Incidents of kissing, fondling, and touching Murphy's penis
followed.   One of the letters required C. to dress up in her mother's underwear.
Another letter, received years later, blamed C. for her great-grandmother's
recent death for not following certain directions in the letters.
C. testified that in 1989, when she was thirteen or fourteen, a letter
required C. to be photographed by Murphy in a partially unclothed manner.
The letter required C.'s mother to stand behind C. and lift up C.'s shirt, exposing
C.'s breasts.   C. testified that Murphy took a polaroid photograph of C. in this
manner.   In May or June of  1989, Murphy required C. to put on his wife's
underwear and to touch his penis; he touched C.'s breasts.   C. testified that
Murphy videotaped himself engaging in oral sex with C.
The State brought a motion to be permitted to introduce testimony
of other crimes and "bad acts."  At the motion hearing, the trial court denied the
State's motion to permit evidence of Murphy's 1974 conviction for the crime of
indecent  liberties,  reduced  from  the  initial  charge  of  aggravated  rape.    It
concluded  that  without  facts  underlying  the  conviction,  it  did  not  have
sufficient facts to determine whether the crime was relevant to prove plan,
identity, intent or motive.
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No.   96-2100-CR
The trial court permitted the State to introduce evidence of other
bad acts, stating that the other acts
are dealing with minors, and they are dealing -- otherwise they
deal  with  photographs,  and  that's  the  similarity,
these  are  the  numerous  contact  with  minors  for
sexual  purposes,  and  there  is  a  series  of  acts
involving photographs of a sexually explicit nature
that exist in the past, and that these are relevant, at
least  on  the  issue  of  motive,  plan,  and  intent,
arguably on the issue of identity as well.   ..
... that this bears on the issue of the purpose for which he is doing
that, that there was not an innocent purpose behind
it, it was for sexual gratification.
[T]here is a steady stream of these things, there is a continuity of
acts ... and they are over a fairly lengthy period of
time, and fairly similar in nature to the type of act
that occurred here --- sexual, improper sexual contact
with a minor.
The seven witnesses who testified to "other acts" were as follows:
1.  J.A. testified that in 1973, when he was ten or eleven years old,
he visited Murphy at Murphy's residence.   Murphy offered J.A. $5 to put on
Murphy's wife's underwear.  Murphy handed the underwear to J.A., who put it
on.  Murphy then pushed J.A. onto a bed, began kissing him and touching J.A.'s
body.
2.  M.B. testified that in 1977 or 1978, when he was approximately
nine years old, while wearing women's underwear, he sat on Murphy's lap.
Murphy kissed him and laid on top of him.
3.  A.K. testified that in 1978, when she was twelve years old, she
played  "hang man,"  a  word  game,  with  Murphy  while  babysitting  for  his
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No.   96-2100-CR
children.   She felt uncomfortable because he chose the word "kiss."   On another
occasion, he asked her for a kiss and chased her around a chair.
4.  C.L. testified that in 1980 or 1981, when she was fourteen or
fifteen, he kissed her on one occasion and asked if she ever had sex with a man.
On another occasion he grabbed her when the lights were out.   He also asked if
she had ever been kissed by anybody with a mustache and kissed her with
permission.
5.  M.H. testified that in 1982, when she was sixteen, he asked her
if she had ever had sex, called her into his bedroom, grabbed her by the wrist
and tried to kiss her.
6.  V.H., who was born in 1966, testified that in 1979 or 1980, when
he  was  over  at  Murphy's house,  Murphy  showed  him  nude  pictures  and
offered him $3 an hour to take nude photos of himself and his wife.
7.  M.P., who apparently was an adult at the time of the "other
acts,"  testified  that  she  used  to  cut  Murphy's  hair.     She  testified  that
approximately seven years before trial, Murphy asked her to engage in sexual
activity with him, such as helping him to masturbate.   On another occasion he
asked whether she had any dirty magazines, and if she would wear heels and a
skirt the next time she cut his hair.                                                   The trial court instructed the jury that
evidence has been received regarding other acts involving Murphy for which he
is not on trial.   Its instructions included the following:   "You may not consider
this evidence to conclude the defendant has a certain character or a certain
character trait and that the defendant may have acted in conformity with that
trait  or character with  respect to  the events as charged  in  this case.    The
evidence was received on the issues of motive and identity.   Motive, that is
when the defendant had a reason to desire the result of the crime."   The jury
found Murphy guilty on all four counts charged.  Murphy appeals.
Murphy argues that the trial court erroneously admitted "other
acts" evidence.  We conclude that the record supports the trial court's exercise of
discretion with respect to the testimony of six of the "other acts" witnesses.   We
conclude  that  the  admission  of  the  testimony  of  the  seventh  witness  was
erroneous, but the error was not prejudicial.
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No.   96-2100-CR
Upon review of evidentiary issues, the question on appeal is not
whether this court, ruling initially on the admissibility of the evidence, would
have permitted it to come in, but whether the trial court exercised its discretion
in accordance with legal standards and in accordance with the facts of record.
State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498, 501-02 (1983).   We must
independently review the record for reasons to sustain the trial court's exercise
of discretion, id. at 343, 340 N.W.2d at 502, and we must uphold the trial court's
ruling if the record shows a reasonable basis.   State v. Rushing, 197 Wis.2d 631,
645, 541 N.W.2d 155, 161 (Ct. App. 1995).
Evidence of other crimes, wrongs, or acts is inadmissible to prove
character or action in harmony with that character.   Section 904.04(2), STATS.   It
is generally inadmissible because it distracts the jury and encourages improper
inferences of the defendant's guilt, inviting punishment because he is a bad
person.   State v. Harris, 123 Wis.2d 231, 233-34, 365 N.W.2d 922, 924 (Ct. App.
1985).
Nonetheless,  other  acts  evidence  may  be  admissible  for  other
limited purposes, "such as proof of motive, opportunity, intent, preparation,
plan, identity, or absence of mistake or accident."   Section 904.04(2), STATS.   The
court  must  determine  whether  the  evidence  is  admissible  under  both  §§
904.04(2) and 904.03, STATS.   Rushing, 197 Wis.2d at 645, 541 N.W.2d at 161.
First, the trial court must decide whether the evidence of other acts fits within
one or more of the statutory exceptions.   Id.   Next, it must determine whether
the danger of unfair prejudice in admitting the proffered evidence substantially
outweighs the probative value, so as to warrant exclusion of the evidence.   Id.
The  prejudice  to  be  avoided  is  the  potential  harm  of  a  jury  reaching  the
conclusion that because the defendant committed a bad act in the past, the
defendant necessarily committed the current crime.    State v. Fishnick,  127
Wis.2d 247, 378 N.W.2d 247 (1985).
Implicit in this analysis is the determination that the other acts
evidence is relevant.   Id.   Evidence of significantly similar criminal conduct
establishes a definite method of operation and thus preparation, plan, motive
and intent.   State v. Rutchik, 116 Wis.2d 61, 68, 341 N.W.2d 639, 643 (1984).
Also, in a prosecution for sexual contact with a child, we have held that because
a defendant's purpose for the contact is an element of the crime, and because his
motive impacts upon that purpose, the other acts evidence that tends to show
the defendant's purpose or motive for sexual contact with the victim of the
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No.   96-2100-CR
crime charged is relevant.   See State v. Mink, 146 Wis.2d 1, 15, 429 N.W.2d 99,
104 (Ct. App. 1988).
In State v. Jones,   151 Wis.2d 488, 444 N.W.2d 760 (Ct. App. 1989),
the defendant denied any sexual contact with the victim whatsoever.    We
concluded that testimony that the defendant had similarly assaulted the victim
on six or seven prior occasions "is relevant to motive, plan and the general
scheme of the crime."  Id. at 493-94, 444 N.W.2d at 763.  In Hendrickson v. State,
61 Wis.2d 275, 281-82, 212 N.W.2d 481, 483-84 (1973), our supreme court held
that  earlier  incestuous  acts  by  the  defendant  father  with  the  complaining
witness daughter or with her sisters were admissible to show the exception to §
904.04, STATS., of (1) a "general scheme or plan;" and (2) "proof of motive or
intent."
With the exception of the seventh act, we conclude that the trial
court reasonably exercised its discretion when it ruled that the evidence fits
within one or more of the exceptions of § 904.04(2), STATS.   The six acts were
significantly similar to the crimes charged as to be relevant to  (1) proof of
preparation and plan; and (2) motive and intent.
As  in  Mink,  all the  contacts  took  place  in  or near the  home,
involved  minors  of  approximately  the  same  age  group,  with  whom  the
defendant was related or well-acquainted, and, with the exception of the sixth
incident that involved indecent photos, included similar sexual activities of
kissing, fondling and touching.   In the first two other acts, Murphy had the
children  dress  in  his  wife's  underwear,  followed  by  kissing  and  fondling.
Similarly, in the sexual assaults charged, Murphy had C. dress in his wife's
underwear,  followed  by  kissing  and  fondling.    In  the  next  four  incidents,
Murphy made inappropriate advances to children in the same approximate age
group as the crime charged.   We agree with the trial court's determination that
these incidents disclose a specific plan, motive and intent to obtain sexual
gratification from minors.
As  in  Mink,  the  difficult  question  is  remoteness  in  time.
"[R]emoteness in time does not necessarily render the evidence irrelevant, but it
may do so when the elapsed time is so great as to negate all rational or logical
connections between the fact to be proven and other acts evidence."   Id. at 16,
429 N.W.2d at 105.   In Mink, the other acts evidence ranged thirteen to twenty-
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No.   96-2100-CR
two years prior to the commission of the crime charged.  Id. at 16, 429 N.W.2d at
105.    The court balanced the remoteness in time against the similarities in
events.  This exercise of discretion was upheld.  Id. at 16-17, 429 N.W.2d at 105.
Here, the six other acts range from sixteen to nine years before the
commission of the crimes of which Murphy stands convicted.   Nonetheless,
they bear striking similarities to the crimes charged.   "We find that the marked
similarities among the prior incidents ... and the charged offenses overcome
considerations arising due to remoteness in time."  State v. Friedrich, 135 Wis.2d
1, 25, 398 N.W.2d 763, 774 (1987).   We conclude the similarities overcome the
considerations arising due to remoteness in time.2
We further conclude that their probative value is not outweighed
by prejudicial effect.   While the first two acts are the most prejudicial, they are
also the most similar, in that they involve minors, of the same age group with
whom  Murphy  was  well  acquainted  or  related  by  marriage,  and  whom
Murphy had dress in his wife's underwear before the incidents of kissing and
fondling ensued.    The next four witnesses gave testimony of less probative
value,  in  that  they  involved  improper  advances  against  minors  that  were
rebuffed but, on balance, the evidence was also less prejudicial.
Also,  the  trial  court  gave  limiting  instructions.    In  Jones,  we
concluded that "[a]ny possible prejudicial effect of the `other acts' evidence was
offset by the trial court's instructions, which explained to the jury that such
evidence was `admitted solely on the issue of opportunity, preparation or plan."
Id. at 494, 444 N.W.2d at 763.   The jury was further instructed that the alleged
other contacts could not be used to evaluate the defendant's character.  Id.
The court similarly instructed the jury here.   "This effort signals to
us that the trial court was aware of the prejudicial danger of the State's evidence
and took a rational step to alleviate the risk."   State v. Wallerman, 203 Wis.2d
158, 171, 552 N.W.2d 128, 134 (Ct. App. 1996).   Because the trial court applied
the correct legal standards, and its ruling has a reasonable basis in the record,
we do not overturn its decision on appeal.
2   Time spent incarcerated is not calculated.   See State v. Rutchik, 116 Wis.2d 61, 75, 341
N.W.2d 639, 646 (1984).   The record is not clear as to how much of the four-year prison sentence
Murphy served on his 1974 indecent liberties conviction.
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No.   96-2100-CR
We conclude, however, that the testimony of the seventh witness,
M.P., should not have been admitted.   Because there is no suggestion that M.P.
was a minor at the time in question, the evidence indicated only that Murphy
suggested consensual sexual activity with an adult female.   This evidence is not
probative or relevant to the crimes charged.   However, because this evidence
was not a crime, and not inflammatory in nature, we conclude that the error
was harmless.
Next, Murphy argues the court erred when it stated that someday
the supreme court and the legislature is going to decide that "this evidence is
exactly important because the way we judge people is on their behavior.   The
fact that he has done this for 10 years is darn good reason to believe he did it
this time ....   One day the Supreme Court is going to come to grips with that."
We disagree with Murphy's characterization of the court's remarks.   The trial
court's remarks acknowledged that other acts evidence was not admissible to
prove character.   The remarks, when read in context, were not given as a basis
or rationale for its   decision.   After this aside, the court indicated its familiarity
with  the  applicable  statute,  the  relevancy  requirement,  exceptions  and
balancing  analysis  required.    In  applying  §  904.04,  STATS.,  the  trial  court
concluded that Murphy's 1974 conviction for indecent liberties should not be
admitted.   We conclude that the court's remarks do not demonstrate reversible
error.
Next, Murphy argues that identity and motive were not at issue,
because identity was not in dispute and he offered to stipulate that although he
denied doing the act, if it was done, the motive was sexual gratification.  We are
unpersuaded.   Murphy's proffered stipulation fell short of removing motive as
an issue in the case.3   The State was entitled to prove not only that the motive
3  State v. Wallerman, 203 Wis.2d 158, 167, 552 N.W.2d 128, 132 (Ct. App. 1996), stated:
To prevent the admission of bad acts evidence, a defendant's offer to concede
knowledge and/or intent issues must do two things.  First, the offer
must express a clear and unequivocal intention to remove the
issues such that, in effect if not in form, it constitutes an offer to
stipulate.  Second, notwithstanding the sincerity of the defendant's
offer, the concession must cover the necessary substantive ground
to remove the issues from the case.
(quoting United States v. Garcia, 983 F.2d 1160, 1174 (1st Cir. 1993)).
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No.   96-2100-CR
for the sexual assault charged was one of sexual gratification with a minor, but
also that Murphy had the motive to gratify himself sexually with a minor.   See
State v. Plymesser, 172 Wis.2d 583, 594-95, 493 N.W.2d 367, 372 (1992).   We
conclude that the record supports the trial court's decision to admit the other
acts with minors on the issues of motive and plan.   Because the evidence was
admissible on the issues of motive and plan, any error with respect to admitting
the evidence on the issue of identity would be harmless.
Next, Murphy argues that the trial court violated his constitutional
rights to due process when it did not require his presence at the hearing on the
State's motion in limine to admit the prior bad acts evidence.   We disagree.   At
the hearing, only the admissibility of evidence was discussed.   A defendant's
presence is not constitutionally required at a hearing in which the admissibility
of evidence is discussed, admissibility being an issue of law.  Leroux v. State, 58
Wis.2d 671, 691-92, 207 N.W.2d 589, 600 (1973); see also § 971.04, STATS.   Because
the hearing dealt only with the legal issue of admissibility, Murphy's absence
did not render it unfair or unjust.   In any event, Murphy fails to demonstrate
how his absence at the pretrial motion in limine hearing affected the outcome.
See State v. McMahon, 186 Wis.2d 68, 88, 519 N.W.2d 621, 629-30 (Ct. App.
1994).
Next, Murphy complains that the trial court erred when it denied
his request to obtain new counsel.   We disagree.   The record discloses that the
two-day jury trial was set for December 13, 1995.   On December 11, 1995, the
trial court held a hearing on defense counsel's request to withdraw as counsel
for Murphy.  Defense counsel's affidavit stated that Murphy felt that he was not
well represented and insisted on an approach opposite to that defense counsel
would  take.     Defense  counsel  stated  that  the  working  relationship  has
deteriorated to the point that he felt he could not be a completely zealous
advocate for Murphy's interests and position.   At the December 11 hearing,
defense counsel stated that he was exasperated by the lack of participation from
Murphy.   Defense counsel also stated, however, that it was only that morning
that Murphy indicated to him that Murphy wanted another attorney.
The trial court stated that the reasons proffered were inadequate,
that the case involved serious felonies, that it had been pending for more than a
year, and that the defendant made the last hour request without making any
efforts for alternative representation.   The trial court found that defense counsel
"was an experienced trial counsel and can adequately represent the defendant."
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No.   96-2100-CR
The court noted that it was not appropriate to grant a continuance to obtain
new counsel because defense counsel has been "intimately familiar" with the
case, was involved in numerous motions and supplied with numerous items of
discovery.    The court noted that there was no reasonable prospect that the case
could  be  tried  in  the  near  future,  that  there  were  numerous  witnesses
scheduled, and denied the motion.
A  request  to  substitute  counsel  is  addressed  to  trial  court
discretion.   State v. Lomax, 146 Wis.2d 356, 359, 432 N.W.2d 89, 90 (1988).   The
trial court must balance the defendant's constitutional right to counsel with the
community's interest in the prompt and efficient administration of justice.  Id. at
360, 432 N.W.2d at 91.  Factors to be considered include (1) the timeliness of the
request, (2) whether the alleged conflict results in a total lack of communication
to prevent an adequate defense and frustrate a fair presentation of the case; and
(3) the adequacy of the court's inquiry into the defendant's complaint.  Id. at 359,
432 N.W.2d at 90.   Here, the record discloses that the trial court considered the
competing issues and reached a reasonable conclusion.    Because the record
demonstrates a reasonable exercise of discretion, we do not overturn it on
appeal.
Next, Murphy argues that at the postconviction hearing, the trial
court erroneously found that the State fully disclosed exculpatory evidence.
The trial court specifically found that the information in question was supplied
on November 17, 1995, nearly a month prior to the December 13 trial date.   It
determined that officer Bob Rhiel's testimony was more credible than that of
defense counsel as to the date when the material was supplied.
Rhiel testified that in the middle of November 1995, after a motion
hearing, defense counsel walked down to the sheriff's office with the assistant
district attorney.   Rhiel stated that defense counsel browsed through the two or
three large boxes of papers that were set out.   Rhiel testified that although he
did  not  specifically  examine  the  materials,  the  boxes  contained  numerous
notebooks.   The motion hearing to which Rhiel referred was November  17.
Defense  counsel  testified  that  the  materials  were  made  available  to  him
sometime around that date but could not remember the specific date.
We do not reverse the trial court's findings of fact unless they are
clearly  erroneous.    Section  805.17(2),  STATS.    We  defer  to  the  trial  court's
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No.   96-2100-CR
assessment of weight and credibility.  Mullen v. Braatz, 179 Wis.2d 749, 756, 508
N.W.2d 446, 449 (Ct. App. 1993).   We conclude the record supports the trial
court's factual determination that the discovery materials were available to the
defense on November 17.
Murphy further argues that the withholding of the exculpatory
materials until five days before trial was a violation of Brady v. Maryland, 373
U.S. 83 (1963).   Because we sustain the trial court's finding of fact that discovery
materials were provided to the defense on November  17, this argument is
without merit.
Finally, Murphy argues that the trial court erroneously exercised
its sentencing discretion.   Murphy was sentenced to ten years on the first count
of sexual assault, five years on the second count of sexual assault, and two years
on the possession of a firearm count, to be served concurrently to count one.
Sentence  was  stayed  and  ten  years'  probation  was  ordered  on  the  sexual
exploitation of a child conviction.   Murphy argues that it was error for the trial
court not to follow the recommendation of the presentence report of seven years
in prison.  We disagree.
The record reveals no misuse of sentencing discretion.  See State v.
Echols, 175 Wis.2d 653, 681, 499 N.W.2d 631, 640 (1993).   The sentences were
within  the  statutory  maximums.    The  court  considered  the  gravity  of  the
offense, Murphy's prior record and character, and protection of the public.
These are appropriate factors.   See id. at 682, 499 N.W.2d at 640.   While the
presentence report is a relevant factor, it is not binding.   State v. Johnson, 158
Wis.2d 458, 469, 463 N.W.2d 352, 357 (Ct. App. 1990).
By the Court.—Judgment and order affirmed.
This opinion will not be published.  RULE 809.23(1)(b)5, STATS.
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