State v. Plotka

¶1The State appeals from the trial court’s order on post-trial motions, which granted a new trial in a criminal case, but if the State failed to take an appeal, then promising to enter a judgment of acquittal. Plotka was convicted after a jury trial in November, 1990, of committing a lewd act upon a child (§ 800.04). We affirm in part.

¶2We hold that the trial judge acted within his discretion in ordering a new trial in this case. He determined that certain prejudicial testimony by a State witness should not have been admitted.1 However, we disagree with the trial judge that the State failed to adduce sufficient evidence to take this case to the *1354jury, had the State witness’s objeeted-to testimony been excluded. Accordingly, we affirm the trial judge’s order of a new trial in this case; and remand this cause to the lower court for further proceedings.

¶3AFFIRM in part; REMAND.