COURT OF APPEALS

DECISION

DATED AND FILED

July 21, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP1732-CR Cir. Ct. No. 2018CF202

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

ERIC J. DEBROW,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County: 

JOHN D. HYLAND, Judge. Reversed and cause remanded with directions. 

Before Kloppenburg, Fitzpatrick, and Graham, JJ.

¶1 FITZPATRICK, J. Eric J. Debrow was charged in the Dane County 

Circuit Court with first-degree and second-degree sexual assault of a child based 

on allegations that he improperly touched A.B. and C.D.—respectively, Debrow’s

girlfriend’s thirteen-year-old and eleven-year-old daughters—in separate 
No. 2021AP1732-CR

2

incidents.

1

 Both counts were persistent repeater charges because Debrow was 

previously convicted of first-degree sexual assault of a child. See WIS. STAT.

§ 939.62(2m)(a), (b). Prior to trial, Debrow moved to exclude that prior 

conviction from evidence presented to the jury, and the circuit court granted that 

motion. Debrow also moved to exclude from evidence presented to the jury that

he had on his computer a particular pornographic video and other acts evidence 

involving a separate incident in which A.B. woke up to find Debrow in her 

bedroom, and the court denied those motions.

¶2 During the trial, E.F.—the son of Debrow’s girlfriend—testified that 

he witnessed Debrow enter the bedroom shared by A.B. and C.D. on the night of 

the alleged sexual assault of A.B. The prosecutor asked E.F. whether he had 

learned anything that caused him to be “on alert” that night. We agree with 

Debrow that, from E.F.’s response, jurors would have reasonably understood that 

E.F. was on alert and watching the door to his minor sisters’ bedroom at night 

because E.F. learned from the CCAP website that Debrow had a prior criminal 

conviction related to sexual misconduct involving a child.2 The circuit court 

apparently intended to grant Debrow’s request to strike that portion of E.F.’s

testimony in light of the fact that the court had previously excluded evidence of 

Debrow’s prior conviction. Further, the circuit court attempted to instruct the jury

about that testimony from E.F. Debrow moved for a mistrial on the ground that 

 

1

 Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2019-20), we refer to the 

victims and their family members using initials that do not conform to their actual names. All 

references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

2

 CCAP, which stands for Consolidated Court Automation Programs, is an internetaccessible case management system that “provides public access online to reports of activity in 

Wisconsin circuit courts.” State v. Bonds, 2006 WI 83, ¶¶1, 6, 292 Wis. 2d 344, 717 N.W.2d 

133.
No. 2021AP1732-CR

3

E.F.’s response introduced unfairly prejudicial information to the jury about 

Debrow’s prior conviction, and the court denied that motion.

¶3 At the end of the trial, the jury convicted Debrow of second-degree

sexual assault of A.B., and found Debrow not guilty of first-degree sexual assault 

of C.D. Pursuant to the persistent repeater statute, the circuit court sentenced 

Debrow to life imprisonment without the possibility of release on extended 

supervision.

3

 Debrow appeals the judgment of conviction.

¶4 For the reasons discussed in this opinion, we reverse Debrow’s 

judgment of conviction and remand for a new trial based on E.F.’s testimony,

which was unfairly prejudicial to Debrow, and on our conclusion that such

evidence was sufficiently prejudicial to warrant a new trial. In addition, we 

conclude that the circuit court’s instruction to the jury that was an attempt to cure 

the prejudicial effect of E.F.’s pertinent testimony did not sufficiently identify the 

prejudicial evidence that the jury was to disregard and did not instruct the jury in 

clear terms that the jury must not consider that evidence. 

¶5 Our conclusions regarding E.F.’s testimony are sufficient to grant a 

new trial. Nonetheless, we also address Debrow’s remaining arguments regarding 

the admission of other evidence because those issues may recur on remand, and

we conclude that the circuit court did not err in admitting that evidence. 

Accordingly, we reverse the judgment of conviction and remand to the circuit 

court for a new trial and further proceedings consistent with this opinion.

 

3

 Pertinent to this appeal, WIS. STAT. § 939.62(2m)(c) provides: “If the actor is a 

persistent repeater, the term of imprisonment for the felony for which the persistent repeater 

presently is being sentenced under [WIS. STAT.] ch. 973 is life imprisonment without the 

possibility of parole or extended supervision.” Sec. 939.62(2m)(c). 
No. 2021AP1732-CR

4

BACKGROUND

¶6 In 2018, officers from the City of Madison Police Department were

dispatched to a residence to investigate the alleged sexual assault of a child. 

Living at the residence were Debrow and his girlfriend G.H., along with G.H.’s 

nineteen-year-old son E.F., her thirteen year-old-daughter A.B., and her elevenyear-old daughter C.D. The following was reported to the officers. Debrow 

entered the bedroom of A.B. and C.D. early that morning and touched A.B.’s 

buttocks and lower back over her clothes while she was sleeping. A.B. woke up 

while Debrow was touching her, and she screamed at him to get out of her room. 

Based on this information, Debrow was placed under arrest.

¶7 Debrow was charged with second-degree sexual assault of a child 

under the age of 16 pursuant to WIS. STAT. § 948.02(2).4 Because Debrow had 

been convicted of first-degree sexual assault of a child in 2004, he was charged as 

a persistent repeater pursuant to WIS. STAT. § 939.62(2m)(a) and (b). Debrow 

pled not guilty to that charge. 

¶8 Later, the State filed a pre-trial motion to join the case involving the 

assault against A.B. with a separate case involving an alleged sexual assault by 

Debrow against C.D. Debrow was charged in that separate case with first-degree

sexual assault as a persistent repeater contrary to WIS. STAT. §§ 948.02(1)(e) and 

939.62(2m)(a) and (b).

5 Over Debrow’s objection, the circuit court granted the 

 

4

 WISCONSIN STAT. § 948.02(2) states, in relevant part: “Whoever has sexual contact or 

sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C 

felony.” Sec. 948.02(2).

5

 WISCONSIN STAT. § 948.02(1)(e) provides: “(1) First degree sexual assault.... 

(e) Whoever has sexual contact or sexual intercourse with a person who has not attained the age 

of 13 years is guilty of a Class B felony.” Sec. 948.02(1)(e).
No. 2021AP1732-CR

5

State’s motion to join the two cases.6 Evidence regarding the alleged sexual 

assault of C.D. is not germane to this appeal, and we generally do not discuss it 

further.

¶9 The jury returned a guilty verdict on the count of second-degree

sexual assault of a child under the age of sixteen (A.B.) and a not guilty verdict on 

the count of first-degree sexual assault of a child under the age of thirteen (C.D.). 

The circuit court, as noted, sentenced Debrow to life imprisonment without the 

possibility of extended supervision. Debrow appeals.

¶10 We mention other material facts in the following discussion.

DISCUSSION

¶11 Debrow argues that he is entitled to a new trial based on three 

separate errors: (1) the circuit court erred in denying Debrow’s mistrial motion; 

(2) the court erred in allowing evidence that Debrow had on his computer a 

particular pornographic video; and (3) the court erred in allowing other acts 

evidence involving a separate incident in which A.B. woke up to find Debrow in 

her bedroom. We address each argument in turn.

 

6

 The State also moved to join fifteen counts of felony bail jumping in these two cases. 

The circuit court denied that motion, and the bail jumping cases remained separate from the 

sexual assault cases. Neither the bail jumping charges nor the order to join the sexual assault 

cases are in dispute in this appeal.
No. 2021AP1732-CR

6

I. The Circuit Court Erred in Denying Debrow’s Mistrial Motion.

¶12 As noted, Debrow argues that the circuit court erroneously exercised 

its discretion in denying his mistrial motion which concerned a portion of E.F.’s 

testimony. We now consider the pertinent events at trial.

A. Pertinent Events at Trial.

¶13 On the first day of trial, the circuit court addressed motions filed by 

the parties. In one such motion, Debrow requested that the court exclude from 

evidence presented to the jury his prior conviction in 2004 for first-degree sexual 

assault of a child. More particularly, Debrow expressed concern to the circuit 

court that E.F. was aware of Debrow’s prior conviction, and E.F. might testify 

about that conviction at trial. Debrow argued that the evidence was not relevant to 

the pending charges and that any probative value was substantially outweighed by 

the danger of unfair prejudice to him. The State agreed that the risk of unfair 

prejudice to Debrow outweighed any probative value, and the circuit court granted 

Debrow’s motion.

¶14 During trial, the State called E.F. as a witness. On direct 

examination, the State asked E.F. what he had witnessed the night before 

Debrow’s arrest. E.F. responded that he was lying awake in his bed with the 

bedroom door open and observed Debrow enter the bedroom of A.B. and C.D.

before 5:00 a.m. After five to ten minutes, E.F. heard one of his sisters scream 

and saw Debrow leave the room. On cross-examination, E.F. stated that he was 

awake at that time of night because he was on medication and could not control 

when he fell asleep. 
No. 2021AP1732-CR

7

¶15 During redirect examination, the State requested a sidebar out of the 

hearing of the jurors because it proposed to ask E.F. questions about why E.F. at 

that time “thought something strange was going on inside” the girls’ bedroom. 

The State explained that it did not intend to elicit evidence of Debrow’s 

“extremely prejudicial” prior conviction although the record establishes that E.F.’s 

knowledge of Debrow’s prior conviction was the sole basis for E.F.’s concerns. 

The State assured the circuit court that E.F. had been instructed prior to taking the 

stand that he was not to mention Debrow’s prior conviction. Nonetheless, the 

State wanted to question E.F. about the reasons underlying his concern that 

something improper might be happening when he witnessed Debrow enter the 

room of A.B. and C.D. In response, Debrow argued that the State should not be 

allowed, through questions to E.F., to bring out evidence that the court had already 

ruled inadmissible. Debrow also contended that the questions proposed by the 

State could cause E.F. to testify that he knew about Debrow’s prior conviction 

and, if that occurred, Debrow would move for a mistrial. 

¶16 The circuit court acknowledged that a mistrial might occur if E.F.

mentioned the prior conviction, but allowed the State to question E.F. on this 

topic, stating:

[Y]ou may be able to go into this area in not a directly 

leading fashion but in a very direct or indirect but not 

leading manner.

....

... I’ll direct the State to be cautious in his question 

but since the defense objects to the straight out leading into 

this area, I’ll sustain the objection and advise the State to 

proceed cautiously.

The court further stated that it would attempt to prevent E.F. from mentioning 

Debrow’s prior conviction: “And certainly I’ll be happy to be on pins and needles 
No. 2021AP1732-CR

8

as well to jump in if he starts saying something.” The State similarly assured that 

it would “try to be quick to interrupt” if necessary. 

¶17 After the sidebar concluded, the State questioned E.F. in the 

presence of the jury about his reason for being “on alert” that night: 

[The State]: [E.F.], I want to draw your attention to 

the timeframe of when you moved into [the residence] with 

[Debrow] and your two sisters and your mom, okay? 

At any point from when you moved in, had you 

learned anything or heard anything that led you to be on 

alert that night on [the date of the alleged sexual assault of 

A.B.]?

[E.F.]: Yes.

[The State]: And were those based on things your 

sisters had mentioned?

[E.F.]: No.

[The State]: Are those things that you heard from 

your mom?

[E.F.]: It’s things that I --

[The State]: -- I don’t want to get into that --

¶18 We pause here to note that, at that point, the trial transcript states: 

“(Unreportable simultaneous interjections by Counsel.)” Regardless, after E.F.

left the witness stand and the jury was excused, the circuit court explained that,

when E.F. finished his answer after stating “It’s things that I --” and was 

interrupted by the State, the court heard E.F. say the words “I looked on CCAP,” 

and the court continued by stating: “that’s where I think the jury couldn’t possibly 

have heard anything else.” Both attorneys agreed with the circuit court’s 

recollection. As a result, the record establishes that E.F. stated in the jury’s 

presence the full answer of: “It’s things that I -- I looked on CCAP.” 
No. 2021AP1732-CR

9

¶19 We now return to the events at trial immediately after the 

simultaneous interjections of counsel. The transcript continues: 

THE COURT: -- yeah, we can’t get --

[The State]: -- [E.F.], I don’t want to get into that.

THE COURT: You got to be responsive to the 

ques --

Still in the presence of the jury, Debrow objected and moved to strike E.F.’s 

response, and defense counsel stated that he would have “[a]nother motion in a 

minute.” The circuit court and E.F. then had the following exchange:

THE COURT: I’ll -- I’ll move to strike. 

The question was were those things you heard from 

your mother, and if you can just give yes or no as far as 

whether those were things you heard from your mother. 

We can’t get into what they are, because that’s hearsay.

[E.F.]: Well, my mom did tell me --

THE COURT: -- all right, that’s fine. That’s all.

[The State]: I just wanted to say --

THE COURT: -- that’s all --

[The State]: -- yes or no.

THE COURT: We can’t -- we can’t put her words 

into your mouth in front of the jury. That’s why she’s a 

witness if she testifies.

After the State had no further questions for E.F., the circuit court told the jury: 

[T]o the extent that -- as the State was -- was raising an 

interjection the answer beyond what he gave just now will 

be -- I’ll direct the jury to strike anything else that they --

they heard beyond the witness’s statement that he heard 

from his mother but not the content of anything.
No. 2021AP1732-CR

10

¶20 Shortly thereafter, outside the presence of the jury, Debrow moved 

for a mistrial, arguing that E.F.’s response to the State’s question caused the jury 

to assume that Debrow had a prior conviction for sexual assault listed on CCAP 

and that the jury could not disregard that information after hearing it. The State 

responded that a mistrial was not necessary because it was “hard” “knowing” what 

“the jury could have heard” and because of the circuit court’s just-quoted

instruction to the jury. 

¶21 The circuit court denied Debrow’s motion for a mistrial. The court 

provided four reasons for its decision. First, the court concluded that there is no 

way to know if any of the jurors know what CCAP is. Second, E.F. did not 

explicitly state the nature of the information he saw on CCAP and, according to 

the circuit court, the jury would not necessarily infer that Debrow had a prior 

conviction because CCAP displays many types of court records, including small 

claims, civil, and divorce records. Third, the court concluded that E.F.’s response 

had been “overridden in ways that directed the jury’s attention, not to the 

substance, but to the fact that what was being offered was someone else’s 

statement.” Finally, the court stated that there are “less drastic measures than a 

mistrial” and concluded that it had instructed the jury to disregard E.F.’s response. 

B. Applicable Authorities.

¶22 “A motion for mistrial is committed to the sound discretion of the 

circuit court.” State v. Ford, 2007 WI 138, ¶28, 306 Wis. 2d 1, 742 N.W.2d 61. 

“The [circuit] court must determine, in light of the whole proceeding, whether the 

claimed error was sufficiently prejudicial to warrant a new trial.” State v. Ross, 

2003 WI App 27, ¶47, 260 Wis. 2d 291, 659 N.W.2d 122. We will reverse the 
No. 2021AP1732-CR

11

denial of a motion for mistrial on a clear showing of an erroneous exercise of 

discretion by the circuit court. Id.

¶23 Evidence of a defendant’s prior offenses or convictions may be

unfairly prejudicial to a defendant. State v. Warbelton, 2009 WI 6, ¶51, 315 Wis. 

2d 253, 759 N.W.2d 557. “The term ‘unfair prejudice,’ as to a criminal defendant, 

speaks to the capacity of some concededly relevant evidence to lure the factfinder 

into declaring guilt on a ground different from proof specific to the offense 

charged.” State v. Alexander, 214 Wis. 2d 628, ¶21, 571 N.W.2d 662 (1997)

(quoted source omitted). As our supreme court has recognized:

Evidence of prior convictions may lead a jury to 

convict a defendant for crimes other than the charged 

crime, convict because a bad person deserves punishment 

rather than based on the evidence presented, or convict 

thinking that an erroneous conviction is not so serious 

because the defendant already has a criminal record. A 

jury is likely to rely on the prior convictions as evidence of 

a defendant’s bad character so as to “deny him [or her] a 

fair opportunity to defend against a particular charge.”

Id., ¶23 (citations omitted); see also Kwosek v. State, 60 Wis. 2d 276, 281, 208 

N.W.2d 308 (1973) (“[S]uch evidence has a tendency to prejudice the jury’s mind 

and to lead them to conclude that because the defendant acted wrongly in the past 

it is likely he [or she] also committed the offense charged.”); State v. Rutchik, 116 

Wis. 2d 61, 67-68, 341 N.W.2d 639 (1984) (“[T]he jury is not permitted to convict 

someone based on the inference that if he [or she] broke the law once he [or she] is 

likely to do so again.”). 

C. Analysis.

¶24 For the following reasons, we conclude Debrow has made a “clear 

showing” that the circuit court erred in denying Debrow’s mistrial motion because, 
No. 2021AP1732-CR

12

in light of the whole proceeding, E.F.’s pertinent testimony was “sufficiently

prejudicial to warrant a new trial.” See Ross, 260 Wis. 2d 291, ¶47. In our 

analysis we are mindful that only one juror needs to harbor a material prejudice in 

order to impair a criminal defendant’s right to an impartial jury. See State v. 

Messelt, 185 Wis. 2d 254, 277-78, 518 N.W.2d 232 (1994) (“[C]riminal 

defendants have the right not only to an impartial jury, but also to a unanimous 

verdict.... Material prejudice on the part of even a single juror can impair these 

rights.”); see also State v. Mahajni, No. 2017AP1184, unpublished slip op. ¶10 

(WI App June 27, 2019). 

¶25 We begin our analysis with several propositions that are not in 

dispute on appeal. First, the State does not dispute that the evidence of Debrow’s 

prior conviction was unfairly prejudicial to Debrow, and that the circuit court 

properly excluded that evidence before trial testimony began. Second, the State 

does not dispute that the circuit court’s order was in force at the time of E.F.’s 

testimony, and the pertinent portion of E.F.’s testimony violated that order. Third, 

the State does not dispute that the jury would have interpreted E.F.’s testimony to 

mean that he “learned” information from the CCAP website.

7

 More specifically, 

 

7

 The circuit court questioned whether any of the jurors “know what CCAP is.” We 

disagree with this speculative assertion on the part of the circuit court, and the State does not rely 

on this assertion on appeal. It is highly unlikely that all twelve members of the jury were 

completely unfamiliar with the term “CCAP.” Further, it cannot be reasonably concluded that all 

jurors were unfamiliar with the fact that the CCAP website contains court records and allows the 

public access to criminal court records. 

The State also contends on appeal that, according to the circuit court, “there was no 

indication as to what the jurors actually heard” regarding E.F.’s pertinent testimony. Contrary to 

this assertion, however, the circuit court never questioned that the jury heard E.F. state that “I 

looked on CCAP” as part of his answer. The court stated: “I heard the words I looked on CCAP,

and that’s where I think the jury couldn’t possibly have heard anything else.” Indeed, as noted, 

counsel for the parties agreed at trial that E.F. gave that testimony. As a result, we reject this 

contention from the State.
No. 2021AP1732-CR

13

the State asked E.F. if, after he moved to the apartment with his mother, two 

sisters, and Debrow, he had “learned anything” that led him “to be on alert” the 

night A.B. was allegedly assaulted by Debrow, and E.F. answered, “Yes.” The 

circuit court stated that E.F. testified that he learned that information when he 

“looked on CCAP.” Fourth, the State does not dispute that the logical inference 

from this testimony was that the information E.F. learned from looking at the

CCAP website concerned Debrow. In the context of the charges against Debrow, 

the testimony to that point in the trial, E.F.’s testimony that he was “on alert” that 

night because of the information he learned on CCAP, and his testimony that he 

was watching his sisters’ bedroom door, the only reasonable conclusion a juror 

could draw is that the information E.F. learned from the CCAP website concerned 

Debrow. 

¶26 We next consider disputed propositions regarding E.F.’s pertinent

testimony. The circuit court concluded, and the State argues on appeal, that the 

jurors may have presumed that E.F.’s testimony was referring to non-criminal 

court records available on CCAP, such as small claims, civil, or divorce cases. 

That conclusion of the circuit court is highly unlikely based on the record and 

reasonable assumptions about the jurors. As stated earlier, E.F. answered “yes” to 

the following question from the State: “At any point from when you moved in, 

had you learned anything or heard anything that led you to be on alert that night

[of the alleged sexual assault of A.B.]?” Shortly thereafter, reasonably construed,

E.F. told the jury that he learned information about Debrow from looking at the 

CCAP website that put him on alert. Based on the context of the prosecutor’s 

question, the charges against Debrow, the testimony to that point in the trial, and 

the fact that E.F. testified he was watching the door to his sisters’ bedroom during 

the night, by far the most reasonable likely inference from E.F.’s response was that 
No. 2021AP1732-CR

14

E.F. was aware of a criminal conviction against Debrow. It defies reasonable 

assumptions to conclude that E.F.’s CCAP research would have caused him to pay 

close attention to Debrow’s potential entry into the room of A.B. and C.D. if he

had only learned about non-criminal proceedings against Debrow such as an 

eviction action or a divorce. 

¶27 When a prior conviction is “similar or of the same nature or 

character as the charged crime, the risk of unfair prejudice is particularly great.” 

Alexander, 214 Wis. 2d 628, ¶21. Debrow argued in the circuit court and 

contends on appeal that jurors reasonably deduced that E.F. had viewed on CCAP 

a prior criminal conviction against Debrow involving sexual assault of a child. 

We conclude that at least one juror would reasonably make a related deduction

because Debrow was on trial for sexual assaults of two children, E.F.’s testimony 

described Debrow entering the bedroom of A.B. and C.D. at night, and E.F. was 

“on alert” watching that bedroom door. Put another way, given the connection the 

State was attempting to draw between E.F.’s knowledge of Debrow’s past conduct 

and his reasons for being concerned about Debrow’s entry into his younger sisters’ 

bedroom, it is reasonably likely that at least one juror inferred that Debrow’s prior 

conviction involved sexual misconduct involving a child.

¶28 We now summarize our analysis to this point: The circuit court 

properly concluded before testimony began that evidence of Debrow’s prior 

conviction for first-degree sexual assault of a child was “unfairly prejudicial” to 

Debrow, and such evidence was excluded; E.F.’s pertinent testimony heard by the 

jury violated that order; one or more jurors would have known that the CCAP 

website has criminal court records that are available to the public; and one or more 

jurors would have reasonably understood that E.F. was “on alert” about Debrow 

and was watching the door to his minor sisters’ bedroom at night because E.F.
No. 2021AP1732-CR

15

learned from the CCAP website that Debrow had a prior criminal conviction

related to sexual misconduct involving a child. Those conditions support our 

conclusion that, in light of the whole proceeding, E.F.’s pertinent testimony was 

“sufficiently prejudicial to warrant a new trial.” See Ross, 260 Wis. 2d 291, ¶47. 

¶29 Nonetheless, the State argues on appeal, and the circuit court 

concluded, that those conditions were ameliorated by the instruction given to the 

jury by the circuit court immediately after E.F. testified and a statement from the 

circuit court to the jury regarding hearsay evidence. We reject each argument for 

the following reasons.

¶30 The circuit court concluded that E.F.’s pertinent testimony did not 

affect the jury’s decision because the jury was given an instruction by the court 

shortly after E.F. testified. We disagree. 

¶31 It is a well-established principle that “[w]hen a circuit court gives a 

proper” instruction, “appellate courts presume that the jury followed that 

instruction and acted in accordance with the law.” State v. Gary M.B., 2004 WI 

33, ¶33, 270 Wis. 2d 62, 676 N.W.2d 475. However, this presumption is

explicitly predicated on the common sense observation that the circuit court must 

give the jury a “proper” or “sufficient” curative instruction. See id., ¶¶29, 33; see 

also State v. Williamson, 84 Wis. 2d 370, 391, 267 N.W.2d 337 (1978) (holding 

that a new trial may not be necessary if a “sufficient curative instruction was 

given”), declined to follow on other grounds, Manson v. State, 101 Wis. 2d 413, 

422, 304 N.W.2d 729 (1981). A curative instruction is improper or insufficient if 

the instruction does not both sufficiently identify the prejudicial evidence that the 

jury is to disregard and instruct the jury in clear terms that the jury must not 

consider that evidence. State v. Penigar, 139 Wis. 2d 569, 581-82, 408 N.W.2d 
No. 2021AP1732-CR

16

28 (1987); cf. State v. Sullivan, 216 Wis. 2d 768, 780, 790-92, 576 N.W.2d 30 

(1998) (holding that the circuit court’s instruction regarding other acts evidence 

was “too broad” and “insufficient to cure the prejudicial impact” because the court 

“did not tailor” the instruction “to the facts of the case”); Peters v. State, 70 Wis. 

2d 22, 32, 233 N.W.2d 420 (1975), disapproved of on other grounds by State v. 

Poellinger, 153 Wis. 2d 493, 504-05, 451 N.W.2d 752 (1990) (holding that the 

circuit court’s instruction regarding evidence was insufficient because the jury 

“was not clearly and unequivocally instructed” that it must not consider certain 

delineated evidence in its deliberations and such an instruction “must be given in 

clear and certain terms”).

¶32 For example, in Penigar, the defendant was initially charged with 

second-degree sexual assault causing a venereal disease contrary to WIS. STAT.

§ 940.225(2)(b).8 Penigar, 139 Wis. 2d at 574. To prove that the defendant 

caused the disease, the victim testified at trial that she did not have sexual 

intercourse before or after the assault. Id. at 575. The State at trial amended the 

charge to third degree sexual assault contrary to § 940.225(3) (1985-86),

9

and the 

parties agreed that the victim’s prior testimony regarding sexual intercourse before 

or after the assault was not relevant to the amended changes and should have been

stricken. Id. at 578. The circuit court concluded that the victim’s testimony did 

 

8

 At the time State v. Penigar, 139 Wis. 2d 569, 408 N.W.2d 28 (1987), was decided,

WIS. STAT. § 940.225(2)(b) (1985-86) provided as follows: “Whoever does any of the following 

is guilty of a Class C felony: ... (b) Has sexual contact or sexual intercourse with another person 

without consent of that person and causes injury, illness, disease or impairment of a sexual or 

reproductive organ, or mental anguish requiring psychiatric care for the victim.” 

Sec. 940.225(2)(b) (1985-86).

9

 At the time Penigar was decided, WIS. STAT. § 940.225(3) (1985-86) provided: 

“Whoever has sexual intercourse with a person without the consent of that person is guilty of a 

Class D felony.” Sec. 940.225(3) (1985-86).
No. 2021AP1732-CR

17

not necessitate a new trial because the jury had been provided a curative 

instruction to disregard that evidence. Id. at 581. The court’s instruction to the 

jury explained that the charge was being amended because there was insufficient

evidence of venereal disease and instructed the jury to “disregard the evidence 

which bore on the subject of whether or not the defendant caused a disease of a 

sexual or reproductive organ.” Id. Our supreme court held that this instruction 

was “inadequate” because it “did not explicitly direct the jury to disregard the 

laboratory tests” and “did not expressly or even by implication direct the jury to 

disregard the complainant’s testimony about her lack of prior sexual experience.” 

Id. at 581-82. The supreme court determined that the jurors would have 

reasonably believed that they “need disregard only the laboratory evidence to 

which the circuit court had made reference and the complainant’s testimony about 

the state of her health,” and that the jury need not disregard the victim’s testimony 

about her lack of prior sexual experience. Id.

¶33 With those authorities in mind, we repeat that the jury received the 

following instruction from the circuit court soon after E.F.’s pertinent testimony: 

And -- and to the extent that -- as the State was --

was raising an interjection the answer beyond what he gave 

just now will be -- I’ll direct the jury to strike anything else 

that they -- they heard beyond the witness’s statement that 

he heard from his mother but not the content of anything.

As in Penigar, the circuit court’s instruction given to the jury immediately after 

E.F. testified does not sufficiently identify the evidence that the jury was to 

disregard. See id. Rather, the instruction “directs” the jury to themselves “strike” 

“anything else that they ... heard beyond the witness’s statement that he heard 
No. 2021AP1732-CR

18

from his mother.”10 More particularly, the language is difficult to understand and 

does not identify for the jurors (clearly or otherwise) the testimony that was to be

disregarded—i.e., E.F.’s testimony that he learned information on CCAP about 

Debrow that put him on alert and he was watching his sisters’ room because of it. 

Importantly, the court’s instruction includes at the end the phrase “but not the 

content of anything.” This added language muddies the already unclear 

instruction, and it is likely that language confused the jurors further as to which 

testimony they were to “strike.” A reasonable juror would have interpreted this 

particular language as directing the jury to “strike” certain testimony, but to not 

strike the content of that testimony. Cf. Peters, 70 Wis. 2d at 32 (in case involving 

joinder of charges, holding that the jury must be “clearly and unequivocally 

instructed” and the cautionary instruction “must be given in clear and certain 

terms”).11

¶34 Further, as alluded to already, the unclear language of the instruction 

left the jury without clear guidance as to the circuit court’s directions. The court 

only directed the jury to “strike” “anything else that they ... heard.” The use of 

the term “strike” was quite obscure to any juror in this context.12 The jurors were

no doubt left to wonder the meaning of this directive, and if it was to affect in any 

way the information they could properly consider during deliberations. As a 

 

10

 The State does not contend that the first 24 words of the above-quoted instruction 

would have been meaningful to the jury.

11

 We are aware of the burdens placed on circuit courts, including time and other 

pressures to manage and keep a jury trial moving to a conclusion. However, that awareness does 

not allow this court to overlook the record or not consider controlling authorities.

12

 In addition, as already noted, in the presence of the jury the circuit court itself 

“move[d]” to “strike” the pertinent testimony of E.F.
No. 2021AP1732-CR

19

result, the circuit court failed to properly instruct the jury about E.F.’s pertinent 

testimony as the directive was not “given in clear and certain terms.” Peters, 70 

Wis. 2d at 32. 

¶35 Next, the circuit court concluded that the jury likely did not interpret 

E.F.’s testimony as referring to a prior criminal conviction against Debrow 

because the court directed the jury’s attention away from the substance of E.F.’s 

statement. We disagree. The specific exchange that occurred prior to the court’s 

instruction to the jury was: 

THE COURT: I’ll – I’ll move to strike.

The question was were those things you heard from 

your mother, and if you can just give yes or no as far as 

whether those were things you heard from your mother. 

We can’t get into what they are, because that’s hearsay.

[E.F.]: Well, my mom did tell me --

THE COURT: -- all right, that’s fine. That’s all.

[The State]: I just wanted to say --

THE COURT: -- that’s all --

[The State]: -- yes or no.

THE COURT: We can’t -- we can’t put her words 

into your mouth in front of the jury. That’s why she’s a

witness if she testifies.

Although the court may have been attempting to divert the jury’s attention away 

from the substance of E.F.’s response, it is unlikely that such an attempt was 

effective at negating the unfair prejudice. In other words, it is unlikely that the 

jurors who understood the implication of E.F.’s testimony would have forgotten

that testimony because the court stated that it had interrupted E.F.’s answer on 

hearsay grounds. By mentioning hearsay, the court obfuscated what the jury was 
No. 2021AP1732-CR

20

supposed to do with this unfairly prejudicial testimony. See Penigar, 139 Wis. 2d

at 581-82 (curative instruction must sufficiently identify the evidence that the jury 

is to disregard). Thus, the court’s comments about hearsay prior to its instruction 

to the jury do not alter our conclusion that the circuit court erred in denying 

Debrow’s mistrial motion. 

¶36 In sum, E.F.’s pertinent testimony was unfairly prejudicial to 

Debrow and violated the circuit court’s order that evidence of Debrow’s prior 

conviction be excluded from evidence. The court’s attempts to cure the 

prejudicial effect of this testimony were insufficient and did not properly instruct

the jury to disregard that testimony when deliberating. Thus, the circuit court 

erroneously exercised its discretion in denying Debrow’s motion for a mistrial.13

¶37 Our conclusion that the circuit court erroneously exercised its 

discretion in denying Debrow’s mistrial motion is sufficient to warrant a new trial,

and we ordinarily would not reach Debrow’s remaining arguments. See Barrows 

v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 

508 (2013) (“An appellate court need not address every issue raised by the parties 

when one issue is dispositive.”). Nevertheless, we will address those arguments 

because those may be raised again on remand. 

 

13

 The State does not make a harmless error argument regarding the circuit court’s denial 

of Debrow’s mistrial motion based on E.F.’s testimony. Accordingly, the State has forfeited any 

such argument on appeal. Waushara Cnty. v. Graf, 166 Wis. 2d 442, 451, 480 N.W.2d 16 

(1992) (“[A]ppellate courts need not and ordinarily will not consider or decide issues which are 

not specifically raised on appeal.”); see State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 

(Ct. App. 1992) (“We cannot serve as both advocate and judge.”).
No. 2021AP1732-CR

21

II. The Circuit Court Did Not Erroneously Exercise Its Discretion in 

Admitting Evidence.

¶38 Debrow argues that the circuit court erred in admitting the following 

evidence: (1) a text message and a recorded phone call indicating that Debrow 

searched for and watched a pornographic video that was found on his computer; 

and (2) other acts evidence indicating that, on an occasion separate from the 

charged act, A.B. awoke to find Debrow in her room during the night.

¶39 A circuit court’s decision to admit or exclude evidence is reviewed 

under an erroneous exercise of discretion standard. Ford, 306 Wis. 2d 1, ¶30. “In 

making evidentiary rulings, the circuit court has broad discretion.” State v. 

Chamblis, 2015 WI 53, ¶20, 362 Wis. 2d 370, 864 N.W.2d 806. As with other 

discretionary determinations, we “will uphold a decision to admit or exclude 

evidence if the circuit court examined the relevant facts, applied a proper legal 

standard, and, using a demonstrated rational process, reached a reasonable

conclusion.” Id. 

¶40 We next address Debrow’s arguments, beginning with the admission 

of the evidence regarding the pornographic video.

A. Pornographic Video Evidence.

¶41 Prior to trial, Debrow moved to exclude from evidence presented to 

the jury text messages and a recorded phone call between Debrow and G.H. in 

which G.H. confronted Debrow about pornography she found on his computer. 

This evidence indicated that Debrow had on his computer a pornographic video 

titled “Stepdaughter is scared to get fucked while wife sleeps.” Debrow argued 

that this evidence was not relevant because it suggested intercourse, which was not 

part of the charged offenses. Debrow also argued that, even if the evidence was 
No. 2021AP1732-CR

22

relevant, it was unfairly prejudicial because it risked the jury convicting him based 

on the video title alone. The State responded that the evidence was relevant to 

Debrow’s intent and sexual gratification, elements of the charged offenses,14 and 

was not unfairly prejudicial. The circuit court agreed with the State and denied 

Debrow’s motion to exclude this evidence. In its ruling, the court presumed that 

Debrow chose particular search terms in searching for the video and determined 

that the evidence was relevant to the allegations against Debrow because the 

nature of the search terms Debrow likely used to find the video tended to establish

the element of sexual gratification based on the facts alleged in this case. 

¶42 The State called G.H. as a witness, and she testified that, after 

Debrow had been arrested, she looked on his computer and discovered that he had 

on the computer a pornographic video titled “Stepdaughter scared to get fucked 

while wife sleeps.” The State introduced into evidence text messages between 

G.H. and Debrow in which G.H. confronted Debrow about the video. In these text 

messages, Debrow did not deny watching the video and stated that he “watched all 

type[s] of shit like stepbrother fucked sister.” The State later introduced a 

recording of a jail call in which Debrow and G.H. discussed the pornographic 

video on Debrow’s computer. 

¶43 On appeal, Debrow argues that the circuit court erroneously 

admitted this evidence. As noted earlier, Debrow moved to exclude this evidence 

 

14

 Both WIS. STAT. § 948.02(1)(e) and WIS. STAT. § 948.02(2) refer to “sexual contact.” 

Evidence of sexual gratification may be used to prove “sexual contact.” See WIS. STAT.

§ 948.01(5)(a) (defining “sexual contact” as: “Any of the following types of intentional touching, 

whether direct or through clothing, if that intentional touching is either for the purpose of sexually 

degrading or sexually humiliating the complainant or sexually arousing or gratifying the 

defendant”) (emphasis added)).
No. 2021AP1732-CR

23

prior to trial and the court ruled that the evidence is admissible because it is 

relevant to the “sexual gratification” element of second-degree sexual assault. The 

circuit court reasoned that the “mere fact of possession of pornography on a 

computer” is not relevant, but that Debrow used search terms to access the video 

was relevant because its probative value outweighed the risk of prejudice: 

The search terms which originate from the user were 

chosen according to this testimony, we presume, by 

Mr. Debrow in searching and those terms involve highly 

relevant factors that are present in the accusations here. 

....

... [T]he fact that he utilized search terms, 

“stepdaughters assaulted while mother is sleeping” or 

anything of that nature ... that’s relevant to the sexual 

gratification element.

¶44 Debrow contends that this evidence is not admissible because there 

is no conclusive evidence that he used search terms to seek out the video.

15 We 

disagree with Debrow’s contention. The evidence proffered by the State

reasonably supports an inference that Debrow used search terms in a search engine

to find that video. Further, as noted by the circuit court, the search terms that are 

reasonably implied by this evidence likely involve “factors that are present in the 

accusations” against Debrow and increase the probability that Debrow’s conduct 

in this case was for the purpose of sexual gratification. Accordingly, this evidence 

is relevant, and admissible, because it tends to support an element of the charged 

offense. See WIS. STAT. § 904.01 (“‘Relevant evidence’ means evidence having 

any tendency to make the existence of any fact that is of consequence to the 

 

15

 Debrow does not argue that evidence about the pornographic video is inadmissible 

other acts evidence pursuant to the Sullivan analysis, State v. Sullivan, 216 Wis. 2d 768, 780, 

790-92, 576 N.W.2d 30 (1998), discussed in the next section of this opinion.
No. 2021AP1732-CR

24

determination of the action more probable or less probable than it would be 

without the evidence.”).

¶45 Moreover, as the State correctly observes, Debrow’s argument 

regarding the lack of conclusive evidence that he used particular search terms 

bears on the weight that the jury may give the evidence, not its admissibility. See 

State v. Jones, 2018 WI 44, ¶31, 381 Wis. 2d 284, 911 N.W.2d 97 (“[T]he court’s 

role is to admit evidence that meets the prescribed standards, which the factfinder 

then weighs to ascertain the truth.”). In other words, the lack of conclusive 

evidence that Debrow used particular search terms may undercut the inference that 

he acted for the purpose of sexual gratification, but it does not render the evidence

proffered by the State inadmissible.

¶46 In sum, Debrow has failed to demonstrate that the circuit court erred 

in exercising its discretion in admitting into evidence the text messages and phone 

call recording. 

B. Other Acts Evidence.

¶47 Prior to trial, the State moved to admit evidence of acts other than 

the charged offenses. Germane to this appeal, the State indicated that it planned to 

introduce evidence of a separate incident in which Debrow entered A.B.’s 

bedroom at night, causing her to wake up and scream. The State argued that it was 

introducing this evidence to show a “[c]ommon plan, scheme, design, intent, 

context, and absen[ce] of mistake,” and that the probative value of the evidence 

was not outweighed by the risk of unfair prejudice. Debrow opposed the motion, 

arguing that the other acts were highly prejudicial and had little relevance to the 

charged offense. The circuit court determined that the evidence was relevant and 
No. 2021AP1732-CR

25

that the probative value outweighed the risk of prejudice and granted the State’s 

motion. 

¶48 On appeal, Debrow argues that the circuit court erroneously 

admitted this evidence. Wisconsin courts follow a three-step test to determine 

whether such other acts evidence is admissible. Sullivan, 216 Wis. 2d at 772-73. 

Under this test, other acts evidence is admissible if: (1) it is offered for a 

permissible purpose pursuant to WIS. STAT. § 904.04(2)(a); (2) it is relevant 

pursuant to WIS. STAT. § 904.01; and (3) its probative value is not substantially 

outweighed by the risk or danger of unfair prejudice pursuant to WIS. STAT.

§ 904.03. State v. Marinez, 2011 WI 12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399

(citing Sullivan, 216 Wis. 2d at 772-73). “Once the proponent of the other-acts 

evidence establishes the first two [steps] of the test, the burden shifts to the party 

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

of the evidence is substantially outweighed by the risk or danger of unfair 

prejudice.” Id.

¶49 The first step in the Sullivan analysis is satisfied if the evidence is 

“offered for a purpose not associated with proving an individual’s character and 

propensity to act in conformity therewith.” State v. Payano, 2009 WI 86, ¶62, 320 

Wis. 2d 348, 768 N.W.2d 832 (citing WIS. STAT. § 904.04(2)). “As long as the 

proponent identifies one acceptable purpose for admission of the evidence that is 

not related to the forbidden character inference, the first step is satisfied.” Id., ¶63 

(footnote omitted). Here, the State offered the evidence that Debrow had 

previously entered A.B.’s room at night while A.B. was sleeping for the purpose 

of showing “plan or a lack of mistake on Debrow’s part” and “opportunity.” The 

circuit court agreed that those were acceptable purposes. On appeal, Debrow does 

not dispute that this other acts evidence was offered for a permissible purpose. 
No. 2021AP1732-CR

26

Accordingly, we conclude that the court properly exercised its discretion in 

determining that the State satisfied its burden under this first step of the analysis. 

¶50 The second step of the Sullivan analysis requires a court “to assess 

whether the evidence is relevant as defined by WIS. STAT. § 904.01.” Id., ¶67. 

Under § 904.01, “‘[r]elevant evidence’ means evidence having any tendency to 

make the existence of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without the evidence.”

Sec. 904.01. “Because other acts evidence is inherently relevant to prove 

character and therefore a propensity to behave accordingly, ‘the real issue is 

whether the other act is relevant to anything else.’” Payano, 320 Wis. 2d 348, 

¶67 (quoted source omitted). 

¶51 Our supreme court has explained that this step of the Sullivan

analysis is met if the following two questions are answered affirmatively: “(1) is 

the proposition for which the evidence is offered of ‘consequence to the 

determination of the action’ and (2) does the evidence have probative value when 

offered for that purpose?” Id., ¶68 (quoted source omitted); see also Sullivan, 216 

Wis. 2d at 772. Under the first prong, “the court must focus its attention on the 

pleadings and contested issues in the case.” Payano, 320 Wis. 2d 348, ¶69. “The 

pleadings set forth the elements of the claims, charges, or defenses. Unless parties 

stipulate or fail to contest them, all such elements as well as any propositions 

tending to establish them are fairly in dispute.” Id. The second prong “must be 

determined by the trial judge in view of his or her experience, judgment and 

knowledge of human motivation and conduct.” Id., ¶70 (quoting State v. Pharr, 

115 Wis. 2d 334, 344, 340 N.W.2d 498 (1983)). “Although some other acts cases 

focus ‘on the other incident’s nearness in time, place and circumstances to the 

alleged crime or to the fact or proposition sought to be proved,’ ‘[s]imilarity’ and 
No. 2021AP1732-CR

27

‘nearness’ are not talismans. Sometimes dissimilar events will be relevant to one 

another.” Id. (citations and quoted source omitted).

¶52 In the present case, as noted, the State moved to admit evidence of a 

separate occasion in which Debrow entered A.B.’s bedroom at night causing her to 

wake up and scream. The circuit court found that this evidence was relevant 

because it tended to establish that Debrow’s intent in touching A.B. on the charged 

occasion was for sexual gratification, an element of second-degree sexual assault 

pursuant to WIS. STAT. § 948.02(2). The court explained that this act is “very 

probative” of sexual gratification because it tends to prove that Debrow acted with 

intent and that Debrow had “repeated opportunities” to take advantage of the 

living situation in G.H.’s home. 

¶53 On appeal, Debrow argues that the other acts evidence is not 

relevant under the second step in the Sullivan analysis. As to the first prong of the 

second step, Debrow does not dispute that the element of sexual gratification “is of 

consequence to the determination of the action” or that the State offered the other 

acts evidence in relation to that element. See Payano, 320 Wis. 2d 348, ¶69. 

Rather, Debrow focuses only on the second prong and argues that the other acts 

evidence is not probative of the sexual gratification element because there is no 

evidence that he touched A.B. during the prior incident. Debrow contends that, 

without this evidence, the prior incident is not sufficiently similar to the charged 

incident and is merely an “insinuation” or “innuendo” that Debrow touched A.B.

in an improper way. Debrow argues that the other acts evidence does “not make it 

more likely that [he] improperly touched [A.B.]” as charged and does not increase 

the probability that he acted for sexual gratification during the charged incident. 
No. 2021AP1732-CR

28

¶54 We conclude that Debrow has not sufficiently demonstrated that the 

circuit court erroneously exercised its discretion in determining that the other acts 

evidence is relevant. As discussed earlier, the probative value of other acts often 

depends “on the other incident’s nearness in time, place and circumstances to the 

alleged crime or to the fact or proposition sought to be proved.” Id., ¶70; 

Sullivan, 216 Wis. 2d at 786. Here, the prior incident involving A.B. was similar 

to the alleged crime in a number of respects, including the location, time of day, 

persons involved, and circumstances surrounding the act. As the State correctly 

observes, these similarities are appropriate considerations because those increase 

the probability that the alleged crime was planned, that there was no mistake as to 

Debrow’s conduct, and that there was an opportunity for Debrow to commit the 

alleged crime. Although the record contains no evidence that Debrow touched 

A.B. during the prior incident, this evidentiary deficiency does not render the 

evidence of that prior incident irrelevant. Rather, that deficiency may diminish the 

probative value and the weight that the jury could give to the evidence of the prior 

act. Accordingly, we conclude that Debrow has failed to demonstrate that the 

court erroneously exercised its discretion in determining that the others acts 

evidence is relevant under the second step of the Sullivan analysis.

¶55 Under the third step of the Sullivan analysis, other acts evidence that 

satisfies the first two steps is admissible unless the opponent demonstrates that “its 

probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of cumulative evidence.” Payano, 

320 Wis. 2d 348, ¶80 (quoting WIS. STAT. § 904.03). Here, the circuit court 

determined that the probative nature of the prior incident was not substantially 

outweighed by its prejudicial effect. On appeal, Debrow does not develop an 
No. 2021AP1732-CR

29

argument that this evidence is unfairly prejudicial or that the court erroneously 

exercised its discretion in making its determination about the third step of the 

Sullivan analysis. We will not develop this argument for Debrow. Pettit, 171 

Wis. 2d at 647.16

¶56 In sum, Debrow has failed to establish that the circuit court 

erroneously exercised its discretion in admitting evidence of Debrow’s other act

involving A.B.17

CONCLUSION

¶57 For the foregoing reasons, the judgment of the circuit court is

reversed. Although the court did not erroneously exercise its discretion regarding 

the admission of the evidence about the pornographic video and the abovedescribed other act, it erroneously exercised its discretion regarding the motion for 

a mistrial. This matter is remanded for a new trial and further proceedings 

consistent with this opinion.

 

16

 We note that the State argues that the greater latitude rule applies in this case. This 

rule allows for more liberal admission of other acts evidence in cases involving sexual abuse, 

especially those involving children. See State v. Dorsey, 2018 WI 10, ¶32, 379 Wis. 2d 386, 906 

N.W.2d 158; WIS. STAT. §§ 904.04(2)(b)1., 939.615(1)(b). Because we conclude that Debrow’s 

arguments fail under the Sullivan analysis, we need not address the effect of the greater latitude 

rule in this case.

17

 Because we conclude that the circuit court did not erroneously exercise its discretion 

in admitting the video or the other acts evidence, we need not address the State’s alternative 

argument that the admission of that evidence was harmless error. 

Debrow also argues that he is entitled to a new trial in the interest of justice because the 

erroneously admitted evidence “obscured the crucial issue.” Because we conclude that the 

evidence was properly admitted—and because we reverse the circuit court’s denial of Debrow’s 

mistrial motion—we do not address the argument regarding a new trial in the interest of justice.
No. 2021AP1732-CR

30

By the Court.—Judgment reversed and cause remanded with

directions.

Not recommended for publication in the official reports.