State v. SHESTO
State v. SHESTO
Opinion
¶ 1 Randall S. Shesto appeals from judgments, entered upon a jury verdict, convicting him of one count of second-degree sexual assault of a child and one count of exposing genitals to a child. He argues that the trial court erroneously exercised its discretion when it allowed the State to present other-acts evidence. We disagree with Shesto and affirm the judgments.
¶ 2 In late 2006, fifteen-year-old Kayleigh B. met Shesto, then twenty, on MySpace, an online social networking website. Kayleigh knew Shesto as "RJ" and knew he was twenty. They mainly communicated online. Sometime in December, with the permission of Kayleigh's father, Shesto visited Kayleigh and her girlfriend at Kayleigh's house. The girlfriend introduced Shesto to Kayleigh's father as an eighteen-year-old who attended the same high school as she and Kayleigh did. Shesto did not dispute his represented age.
¶ 3 On or about December 22, 2006, Kayleigh told Shesto her father denied her request to allow Shesto to visit because neither parent would be home. Shesto told Kayleigh he would "come over for a little bit" anyway. He parked away from the house and came to the back door. Shesto and Kayleigh went to the basement where they engaged in sexual activity. A few weeks later, Kayleigh's father saw on the television news that Shesto was accused of having sexual contact with a fifteen-year-old in Sheboygan county. The news report identified Shesto as a twenty-year-old. Kayleigh confirmed to her father that the alleged offender was "RJ" and admitted that she also had had sex with him.
¶ 4 The State ultimately charged Shesto with three counts of sexual contact (hand-to-breast, mouth-to-breast and hand-to-penis), one count of sexual assault of a child under sixteen (oral intercourse) and one count of exposing genitals to a child, contrary to WIS. STAT. §§
¶ 5 Shortly before the motion hearing, Shesto filed a notice of alibi, stating that on the night Kayleigh identified he was at a restaurant with his parents and later spent time with a friend. The court granted the State's motion on grounds that the evidence was admissible to show motive, intent, plan and, especially in light of the alibi defense, identity. The court allowed Wendy to testify at trial. The jury found Shesto guilty of count four, oral intercourse, and count five, exposing genitals to a child, and acquitted him of the other counts.
¶ 6 Shesto now argues that the trial court erroneously admitted other-acts evidence through Wendy's testimony. Other-acts evidence is admissible if offered for an acceptable purpose, if relevant and if the probative value substantially outweighs the danger of unfair prejudice. SeeState v. Sullivan,
¶ 7 Shesto first contends that Whitty v. State,
¶ 8 The remainder of Shesto's argument mainly focuses on the fact that the Wendy incident occurred after the Kayleigh incident. He contends the trial court failed to consider that the applicable case law involves the admission ofprior other-acts evidence. We disagree that the question is one of chronology. Wisconsin case law expressly holds that the other act may have occurred after the particular offense at issue. See, e.g., Johnson,
¶ 9 The trial court undertook a textbookSullivan analysis and found that the State offered the evidence for an acceptable purpose: identity, motive, plan and intent. For other-acts evidence to be admitted for purposes of identity, there should be "such a concurrence of common features and so many points of similarity" between the other act and the crime charged that it reasonably can be said that each bears the "imprint of the defendant." State v.Fishnick,
¶ 10 The trial court noted that the incidents involving Kayleigh and Wendy shared numerous common features and similarities, as well as a nearness of time, place and circumstance. Shesto initiated and maintained the online contact with both girls on MySpace and knew from their MySpace profiles that they were fifteen. Both girls knew Shesto as "RJ." In neither case did the alleged sexual encounter simply "happen." Rather, the meetings were carefully arranged in a manner to avoid their parents' knowledge and for the purpose of having sex. The incidents occurred twenty days apart. While the locations of the assaults were not identical, the places nonetheless were similar because they were specifically chosen to be away from parental control. The trial court properly exercised its discretion in admitting the evidence for an acceptable purpose.3
¶ 11 We also conclude that the trial court conducted a proper relevancy analysis. Other-acts evidence is relevant if it is of consequence to the determination of the action and has probative value. See Sullivan,
¶ 12 The final step in the Sullivan analysis is determining whether the probative value of the other-acts evidence was substantially outweighed by the danger of unfair prejudice. "The term `substantially' indicates that if the probative value of the evidence is close or equal to its unfair prejudicial effect, the evidence must be admitted."Speer,
¶ 13 Although Shesto bears the burden of showing that the evidence was unfairly prejudicial, seeHunt,
By the Court. — Judgments affirmed.
This opinion will not be published. See WIS. STAT. RULE
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.