State v. Anton R. Dorsey ( 2018 )

2018 WI 10
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP648-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Anton R. Dorsey,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 373 Wis. 2d 308, 895 N.W.2d 103
(2017 – Unpublished)
OPINION FILED: January 25, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 23, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Eau Claire
JUDGE: Paul J. Lenz
JUSTICES:
CONCURRED: R.G. BRADLEY, J. concurs, joined by KELLY, J.
(opinion filed).
DISSENTED:
NOT PARTICIPATING: ABRAHAMSON, J. did not participate.
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Frederick A. Bechtold, Taylors
Falls, Minnesota.
For the plaintiff-respondent, there was a brief filed and
an oral argument by Tiffany M. Winter, assistant attorney
general, with whom on the brief was Brad D. Schimel, attorney
general.
2018 WI 10
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP648-CR
(L.C. No. 2014CF204)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JAN 25, 2018
Anton R. Dorsey, Diane M. Fremgen
Acting Clerk of Supreme
Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, State v. Dorsey,
No. 2015AP648-CR, unpublished slip op. (Wis. Ct. App. Dec. 6,
2016) (per curiam), affirming the Eau Claire County circuit
court's1 judgments of conviction for Anton R. Dorsey ("Dorsey")
for three crimes related to his domestic violence toward C.B.
¶2 In a criminal action by the State, Dorsey was charged
with four crimes relating to his domestic violence toward his
then-girlfriend, C.B.: one count of strangulation and
1
The Honorable Paul J. Lenz presided.
No. 2015AP648-CR
suffocation under Wis. Stat. § 940.235(1) (2013-14)2;3 one count
of misdemeanor battery under Wis. Stat. § 940.19(1); one count
of disorderly conduct under Wis. Stat. §§ 947.01 and 973.055(1);
and one count of aggravated battery under §§ 940.19(6) and
973.055(1). All counts were charged with repeater enhancers.
¶3 In the circuit court, the State filed a motion to
admit other-acts evidence. Ruling on this motion required the
circuit court to interpret, as a matter of first impression, the
recently amended language in Wis. Stat. § 904.04(2)(b)1. After
colloquy with the parties, the circuit court held that the new
language allowed the admission of other acts of a defendant in a
domestic abuse case with greater latitude under the Sullivan4
analysis. Given this interpretation, the circuit court admitted
the testimony of R.K., a former girlfriend of Dorsey's, who
testified to other acts of physical violence committed by Dorsey
against her when they were dating in 2011. Postconviction,
Dorsey appealed.
¶4 The court of appeals affirmed on other grounds. It
held that the greater latitude rule did not apply because the
text, not the title ("Greater latitude"), controls, and that the
2
All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise noted.
3
The jury found Dorsey not guilty of count one and his
appeal here involves only the judgments of conviction entered
for counts two through four. Thus, we will limit our discussion
and analysis to counts two through four.
4
State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).
2
No. 2015AP648-CR
text of subd. (2)(b)1. did not indicate any clear legislative
intent to adopt the greater latitude rule with regard to other
acts of domestic abuse. The court of appeals then evaluated
admission of the other-acts evidence under a straight Sullivan
analysis and concluded that it was admissible, even without
applying greater latitude.
¶5 There are two issues on this appeal. First, we
consider what standard for admission of other-acts evidence
applies under the recently amended language in Wis. Stat.
§ 904.04(2)(b)1. Second, we consider whether the evidence of
Dorsey's other acts was properly admitted under § 904.04(2)(b)1.
As to the first issue, we conclude that the recently amended
language allows admission of other-acts evidence with greater
latitude under a Sullivan analysis. As to the second issue, we
conclude that the circuit court did not erroneously exercise its
discretion in admitting evidence of Dorsey's other acts because
the circuit court applied the proper legal standard and
admission was a conclusion that a reasonable judge could reach
based on the facts of the record.
¶6 Thus, we affirm the decision of the court of appeals
on other grounds.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶7 The State charged Dorsey with the following four
crimes: (1) strangulation and suffocation under Wis. Stat.
§ 940.235(1), for intentionally impeding normal breathing by
applying pressure on the throat or neck of another person; (2)
3
No. 2015AP648-CR
misdemeanor battery under Wis. Stat. § 940.19(1), for intending
to cause bodily harm to C.B., without her consent and with the
knowledge that she did not consent; (3) disorderly conduct under
Wis. Stat. §§ 947.01(1) and 973.055(1), for engaging in violent,
abusive, or otherwise disorderly conduct, under circumstances in
which such conduct tended to cause a disturbance; and (4)
aggravated battery under §§ 940.19(6) and 973.055(1), for
intentionally causing bodily harm to C.B. by conduct that
created a substantial risk of great bodily harm.5 Dorsey entered
pleas of not guilty and the case was set for a jury trial.
¶8 Before trial, the State filed a motion to introduce
evidence of Dorsey's two convictions for domestic battery from
2011 for other acts of domestic violence toward a former
girlfriend, R.K., arguing that such evidence was admissible to
prove intent to cause bodily harm under the recently amended6
Wis. Stat. § 904.04(2)(b)1.,7 which states as follows:
5
The criminal complaint was filed on March 18, 2014, and
Dorsey waived his right to a preliminary hearing on April 15,
2014. On May 2, 2014, Dorsey pled not guilty and the case was
set for trial.
6
See 2013 Wis. Act 362, §§ 20-22, 38; see also id., § 38
(amending and renumbering Wis. Stat. § 944.33(3) as Wis. Stat.
§ 904.04(2)(b)1.).
7
Prior to this motion, Dorsey had filed a motion in limine,
requesting, in part, that the State be "prohibited from
introducing any evidence concerning alleged acts of criminal or
other misconduct by the defendant either prior to or following
the date of the alleged offense charged in the Complaint." In
support of this request, Dorsey argued that "[t]he probative
value of such other misconduct evidence, if any, is out-weighed
by its prejudicial effect . . . ." The State also filed a pre-
(continued)
4
No. 2015AP648-CR
(b) Greater Latitude. 1. In a criminal
proceeding alleging a violation of s. 940.302(2) or of
ch. 948, alleging the commission of a serious sex
offense, as defined in s. 939.615(1)(b), or of
domestic abuse, as defined in s. 968.075(1)(a), or
alleging an offense that, following a conviction, is
subject to the surcharge in s. 973.055, 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.
Wis. Stat. § 904.04(2)(b)1.8 The State argued that this other-
acts evidence was admissible under the now-familiar three-step
analysis promulgated in State v. Sullivan, 216 Wis. 2d 768, 576
N.W.2d 30 (1998): other-acts evidence is admissible if (1) it is
offered for a permissible purpose under § 904.04(2)(a),9 (2) it
trial motion in limine, requesting, in part, that Dorsey be
prohibited from introducing "any witness' criminal record, or
other crimes, wrongs or acts, if any, unless a proper hearing is
held under Wis. [Stat.] § 904.04."
8
In Wisconsin, the admissibility of prior convictions for
substance is governed by Wis. Stat. § 904.04 and the
admissibility of prior convictions for impeachment is governed
by Wis. Stat. § 906.09.
9
Wisconsin Stat. § 904.04(2)(a) states as follows:
Except as provided in par. (b)2., 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. 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.
§ 904.04(2)(a). This list is nonexclusive. See State v.
Shillcut, 116 Wis. 2d 227, 236, 341 N.W.2d 716 (Ct. App. 1983)
("[This list] of circumstances . . . for which the evidence is
relevant and admissible is not exclusionary but, rather,
illustrative.").
5
No. 2015AP648-CR
is relevant under § 904.01,10 and (3) its probative value is not
substantially11 outweighed by the risk of unfair prejudice under
§ 904.03.12 See Sullivan, 216 Wis. 2d at 772-73.
10
Wisconsin Stat. § 904.01 states as follows:
"Relevant 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.
§ 904.01.
11
"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." State v.
Payano, 2009 WI 86, ¶80, 320 Wis. 2d 348, 768 N.W.2d 832
(emphasis in original) (quoting State v. Speer, 176
Wis. 2d 1101, 1115, 501 N.W.2d 429 (1993)).
12
Wisconsin Stat. § 904.03 states as follows:
Although relevant, evidence may be excluded if 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.
§ 904.03. As this language demonstrates, unfair prejudice is
not the only reason that evidence which is relevant may
nonetheless be excluded. See also Wis. Stat. §§ 904.06-904.16.
Here, however, unfair prejudice was alleged and we limit our
review to that issue. "Unfair prejudice" is prejudice that
results
when the proffered evidence has a tendency to
influence the outcome by improper means or if it
appeals to the jury's sympathies, arouses its sense of
horror, provokes its instinct to punish or otherwise
causes a jury to base its decision on something other
than the established propositions in the case.
Sullivan, 216 Wis. 2d at 789-90.
6
No. 2015AP648-CR
¶9 Under the first prong, the State argued that the
evidence was offered "to establish the defendant's intent and
motive to cause bodily harm to his victim and to control her
within the context of a domestic relationship." Under the
second prong, the State argued that the evidence was relevant
because it established Dorsey's intent and motive, which were
facts of consequence, and that the other acts were near enough
in time, place, and circumstances to have a tendency to make the
facts of intent and motive more probable. Under the third
prong, the State noted that the defendant bore the burden to
show that the probative value is substantially outweighed by
unfair prejudice and argued that a cautionary jury instruction
would ensure that the jury only considered the evidence for the
proffered purpose, thereby avoiding any unfair prejudice.
¶10 On August 26, 2014, the circuit court held a hearing
on the State's motion. During the hearing, the court heard
arguments from the parties as to the proper interpretation of
the new language in Wis. Stat. § 904.04(2)(b)1. The circuit
court ultimately held that the amended language "provid[es]
greater latitude . . . similar . . . to the serious sex offense
business and making it available more to be able to be used in
the case in chief than [the court] would provide."
¶11 The circuit court then allowed the evidence to be
admitted, holding that "using that greater latitude[,] the
three-prong analysis of Sullivan is met." Under the first
7
No. 2015AP648-CR
prong, the court held that intent and motive to control were
permissible purposes.13 Under the second prong, the court held
that the other acts were relevant "because [] the similarity,
the motive to control," which although "not very, very, very
near in time, [was] within two years and in a period of time in
which the clock kind of stops ticking a little bit because the
defendant [was] on probation for a period of that time."
Additionally, the court held that "the clear statutory language
indicates that it does not need to involve the same victim."
Under the third prong, the court held that the probative value
was not substantially outweighed by the danger of unfair
prejudice, and that a cautionary instruction would ensure that
this information goes "only to evaluate the defendant's motive
and intent."
¶12 On August 28, 2014, trial began. At trial, the
State's primary witness was C.B., the victim. C.B. testified
that she and Dorsey started dating in June of 2013. As to count
one, for strangulation and suffocation, C.B. testified that, on
the night of October 11-12, 2013, she and Dorsey got into an
argument about money on their way home from a bar after a night
13
In its analysis under Sullivan, the circuit court did not
specifically hold that the purposes offered by the State were
permissible under the first prong, but its discussion of the
second and third prongs rests on a holding that intent and
motive were permissible purposes. In this regard, we note that
the circuit court had "read the motion so [it had] an
understanding of what the State is looking to do," and
acknowledged the State's arguments on motive and intent in
discussing how to tailor the cautionary jury instruction.
8
No. 2015AP648-CR
out with friends. She felt that "all [she was] good for [was]
money" and told him "[t]his is done. This isn't a healthy
relationship. I'm not happy." He then pulled the car over,
locked the doors, pushed her head against the window, and
demanded to know "is there someone else? Do you have someone
else? Is that why you don't want me here?" She testified that
she was able to get out of the car and that she had started
walking toward her house when he came up behind her, but she did
not remember anything else until waking up on the ground with
him saying, "[y]ou aren't F-ing doing this to me."
¶13 As to count two, for misdemeanor battery, C.B.
testified that, in December of 2013, she could not remember
exactly what had started the argument and caused Dorsey to be
upset with her, but she remembered telling him that she "didn't
want to talk to him . . . right now" and rolled over in the bed
to face away from him. He responded by saying "[n]o, we're
going to talk about this," and turned her back to face him by
grabbing her hip; he then flicked her lip with his finger,
splitting it open and causing it to bleed. C.B. testified that
Dorsey then threw a tissue box at her for her bloody lip. He
was saying, "I don't know why you lie to me, why you
lie . . . to me all the time," to which C.B. responded that she
did not know what he was upset about. He then grabbed her by
the waist, bringing her toward him, pulled her hair to make her
look up at him because "he likes to have eye contact," and spit
in her face.
9
No. 2015AP648-CR
¶14 As to counts three and four, for disorderly conduct
and aggravated battery, C.B. testified that on March 11, 2014,
she and Dorsey were in the parking lot of a bar when Dorsey got
upset after he saw that she had been texting a man he did not
like. (Dorsey had grabbed C.B.'s phone from her during an
argument about her talking to her ex.) She testified that
Dorsey accused her of sleeping with this other man and that she
just kept telling him "[n]o, it's not like that. He's just a
friend." She got out of the car and tried to catch the
attention of someone in an office next to the bar because she
was afraid of getting hit. Dorsey got out saying, "[d]on't you
dare, don't you dare," and came up behind her, grabbed her, and
pushed her up against the side of the building demanding to know
"[w]hy are you doing this?" A few people then came out into the
parking lot and Dorsey told her to get back in the car.
¶15 Nothing more happened that night, but C.B. testified
that when she woke up the next morning, Dorsey was leaning over
her just inches from her face and said, "I can't believe you're
doing this, that you keep doing this." She started getting
ready for work, but before she could leave, Dorsey told her to
sit down, that they "were going to talk about this." She
testified that she sat down on the bed and that right away he
hit her and said, "I don't believe that you're doing this."
When she tried to move away, he grabbed her hair, pulled her
back, and hit her in the head again. C.B. testified that her
head was ringing and she felt sick to her stomach, that she told
him she had to go to work, but that he kept hitting her. Dorsey
10
No. 2015AP648-CR
relented when C.B. told him that she had a meeting and that if
she was not there "they're going to wonder what's going on, and
they will send someone to the house." He then threw her phone
at her chest; she took it, ran down the stairs, grabbed her
keys, and got out the door and into her car.
¶16 The State also called R.K., a former girlfriend of
Dorsey's. R.K.'s testimony regarding Dorsey's violent acts
toward her is the focus of Dorsey's appeal. At trial, R.K.
testified about two incidents that took place in 2011.14 The
first was in June of 2011, when R.K. was six months pregnant.
R.K. testified that she had asked Dorsey to take a paternity
test so that he could not later claim that their child was not
his. He became upset, thinking that the real reason she wanted
the test was that she was not sure who the father was. He left,
but when he came back later that night he was yelling and
swearing and calling her names; he flicked a lit cigarette butt
at her and tried to leave in her car. When she got in the
passenger side to stop him from taking the car, he pushed her
out while backing out of the driveway. She then testified that,
when Dorsey came back later, he yelled some more, dragged her
out of the house by her feet, causing bruising to her abdomen,
and locked her out of her house.
14
Although Dorsey was convicted of domestic battery for
both of these incidents, the circuit court did not allow the
State to elicit the fact of Dorsey's convictions at trial
because it "[didn't] see that it adds anything."
11
No. 2015AP648-CR
¶17 The second incident was in November of 2011. R.K.
testified that Dorsey had become upset because he felt she did
not respect him. He asked her to leave, and R.K. testified that
she was going to go because he was sitting on the couch feeding
their daughter and she "didn't want things to escalate." As she
was walking out the door, he took the bottle out of their
daughter's mouth and threw it at R.K., and then threw a shoe at
R.K. He then asked R.K. to come back in the house, and when she
came back in, he locked the door, began yelling at her, pushed
her down to the ground, and started hitting her in the head with
a shoe and kicking her in the back repeatedly. R.K. testified
that when Dorsey stopped "after a while" and went into the
kitchen, she took their daughter, ran out to the car, and drove
to her mother's house.
¶18 Dorsey's defense was that these witnesses were making
false allegations and that the acts never happened. As to C.B.,
he testified that he did not remember having a physical
altercation where he grabbed her around the neck; that he had
never tried to prevent C.B. from leaving the house; and that her
injuries in March were because she had slipped in the shower.
As to R.K., Dorsey initially testified that he never spat on
her; that he never threw a shoe or baby bottle at her; and that
he never dragged her out of the house when she was six months
pregnant. Outside the presence of the jury, the State then
sought to introduce his convictions for these incidents to
impeach his testimony; the circuit court denied the request,
accepting Dorsey's explanation that "he misunderstood exactly
12
No. 2015AP648-CR
how he was supposed to respond." When asked again (in the
presence of the jury), Dorsey admitted that, in June of 2011, he
spat on R.K. and dragged her out of the house when she was six
months pregnant because he had been upset that the baby was
possibly not his; and that, in November of 2011, he threw a shoe
and a baby bottle at R.K., prevented her from leaving their
apartment, and hit her because he felt that R.K. had not been
respecting him.
¶19 At the close of evidence, the circuit court instructed
the jury. As pertains to the issue here, the court gave a
cautionary jury instruction regarding other acts:
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 committed a battery of [R.K.] in June
and November of 2011. If you find that this conduct
did occur, you should consider it only on the issue of
motive and intent.
You may not consider this evidence to conclude
that the defendant has a certain character or certain
character trait and that the defendant acted in
conformity with that trait or character with respect
to the offense charged in this case.
Evidence was received on the issues of motive,
that is, whether the defendant had the reason to
desire the result of the offense charged, and intent,
that is, whether the defendant acted with the state of
mind that is required for 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
13
No. 2015AP648-CR
conclude that the defendant is a bad person and for
that reason is guilty of the offense charged.[15]
¶20 On August 28, 2014, the jury found Dorsey not guilty
on count one,16 but found Dorsey guilty on counts two through
four.17 The circuit court sentenced Dorsey on October 24, 2014,18
and entered the judgments of conviction on October 27, 2014.
¶21 On March 30, 2015, Dorsey filed notice of appeal. On
December 6, 2016, the court of appeals affirmed the circuit
court on other grounds. Contrary to the circuit court, the
court of appeals held that the greater latitude rule did not
15
The circuit court also instructed the jury regarding
impeachment by prior conviction:
Evidence has been received that the defendant in
this trial has been convicted of crimes. This
evidence was received solely because it bears upon the
credibility of the witness. It must not be used for
any other purpose, and in particular a criminal
conviction at some previous time is not proof of guilt
of the offense now charged.
This was in reference to Dorsey's testimony on cross-examination
that he had been convicted of crimes on ten occasions.
16
Count one was for Strangulation and Suffocation,
Repeater, under Wis. Stat. §§ 940.235(1) and 939.62(1)(b).
17
Count two was for Misdemeanor Battery, Repeater, under
Wis. Stat. §§ 940.19(1) and 939.62(1)(a); count three was for
Disorderly Conduct, Repeater, Domestic Abuse, under Wis. Stat.
§§ 947.01(1), 939.62(1)(a), and 973.055(1); and count four was
for Aggravated Battery, Repeater, Domestic Abuse, under
§§ 940.19(6), 939.62(1)(b), and 973.055(1).
18
Dorsey was sentenced as follows: on count two, to one
year imprisonment; on count three, to one year imprisonment; and
on count four, to two years, nine months imprisonment and two
years, three months extended supervision. These sentences were
to be served concurrently.
14
No. 2015AP648-CR
apply because the "text must control over [the] title" and
"[t]he text of Wis. Stat. § 904.04(2)(b)1. does not indicate any
clear legislative intent to make the greater latitude rule, as
developed through our state's case law, now applicable to
domestic abuse cases." Dorsey, unpublished slip op., ¶22.
Instead, the court of appeals held that the other acts were
admissible under a straight Sullivan analysis: first, the
evidence was offered for the permissible purpose of proving
intent and motive "to control [C.B.] within the context of a
domestic relationship," id., ¶¶25-27, 29; second, the evidence
was relevant because intent is an element of any crime and is
thus "of consequence," even if undisputed, and the other acts
were similar enough in time,19 place, and circumstances that they
had probative value, id., ¶¶34-37; third, Dorsey did not satisfy
his burden to show that the probative value was substantially
outweighed by the risk of unfair prejudice because Dorsey
conceded there were similarities, the evidence was "highly
probative of intent," and "any prejudicial effect could be
mitigated by the use of [a] cautionary instruction," id., ¶43.
¶22 On January 3, 2017, Dorsey filed a petition for review
in this court. On April 10, 2017, we granted the petition.
19
As in the circuit court, the court of appeals found that
the two-year gap in time did not sever the connection because
Dorsey "may have purposefully waited until his probation expired
to engage in further domestic abuse, so as to avoid probation
revocation." State v. Dorsey, No. 2015AP648-CR, unpublished
slip op., ¶40 (Wis. Ct. App. Dec. 6, 2016) (per curiam).
15
No. 2015AP648-CR
II. STANDARD OF REVIEW
¶23 Determining what standard for admission of other-acts
evidence applies under the recently amended language in Wis.
Stat. § 904.04(2)(b)1. requires us to interpret the statute.
"The interpretation and application of a statute present
questions of law that this court reviews de novo while
benefitting from the analyses of the court of appeals and
circuit court." State v. Alger, 2015 WI 3, ¶21, 360
Wis. 2d 193, 858 N.W.2d 346.
¶24 Determining whether the evidence of Dorsey's other
acts was properly admitted under Wis. Stat. § 904.04(2)(b)1.
requires us to review an exercise of discretion by the circuit
court. See State v. Jackson, 2014 WI 4, ¶43, 352 Wis. 2d 249,
841 N.W.2d 791 ("This court will not disturb a circuit court's
decision to admit or exclude evidence unless the circuit court
erroneously exercised its discretion."). "A circuit court
erroneously exercises its discretion if it applies an improper
legal standard or makes a decision not reasonably supported by
the facts of record." Id.
III. ANALYSIS
¶25 There are two issues on this appeal. First, we
consider what standard for admission of other-acts evidence
applies under the recently amended language in Wis. Stat.
§ 904.04(2)(b)1. Second, we consider whether the evidence of
Dorsey's other acts was properly admitted under § 904.04(2)(b)1.
As to the first issue, we conclude that the recently amended
16
No. 2015AP648-CR
language allows admission of other-acts evidence with greater
latitude under a Sullivan analysis. As to the second issue, we
conclude that the circuit court did not erroneously exercise its
discretion in admitting evidence of Dorsey's other acts because
the circuit court applied the proper legal standard and
admission was a conclusion that a reasonable judge could reach
based on the facts of the record.
A. What Standard For Admission Of Other-Acts Evidence
Applies Under Wis. Stat. § 904.04(2)(b)1.
¶26 We consider first what standard for admission of
other-acts evidence applies under the recently amended language
in Wis. Stat. § 904.04(2)(b)1. Dorsey argues that a straight
Sullivan analysis applies, that is, that the statute does not
afford circuit courts greater latitude to admit other-acts
evidence of domestic abuse. The State argues that the amended
language should be interpreted one of two ways: one, under the
common law greater latitude rule, as affording circuit courts
greater latitude to admit other, similar acts of domestic abuse
in a Sullivan analysis; or two, under a plain language
interpretation, as allowing circuit courts to admit other,
similar acts of domestic abuse without requiring a permissible
purpose (which is required under the first prong of Sullivan).
We conclude that the recently amended language allows for the
17
No. 2015AP648-CR
admission of other, similar acts of domestic abuse with greater
latitude under a Sullivan analysis.20
¶27 "[S]tatutory interpretation begins with the language
of the statute." State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Wisconsin
Stat. § 904.04(2), entitled "Other crimes, wrongs, or acts,"
states, in relevant part, as follows:
(a) General admissibility. Except as provided
in par. (b)2., 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. 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.
(b) Greater latitude. 1. In a criminal
proceeding alleging a violation of s. 940.302(2) or of
ch. 948, alleging the commission of a serious sex
offense, as defined in s. 939.615(1)(b), or of
domestic abuse, as defined in s. 968.075(1)(a),[21] or
20
Although we discuss the statute in the context of
domestic abuse, our interpretation here applies with equal force
to the other circumstances listed in Wis. Stat. § 904.04(2)(b)1.
21
Wisconsin Stat. § 968.075(1)(a) states as follows:
"Domestic abuse" means any of the following
engaged in by an adult person against his or her
spouse or former spouse, against an adult with whom
the person resides or formerly resided or against an
adult with whom the person has a child in common:
1. Intentional infliction of physical pain,
physical injury or illness.
2. Intentional impairment of physical condition.
3. A violation of s. 940.225(1), (2) or (3).
(continued)
18
No. 2015AP648-CR
alleging an offense that, following a conviction, is
subject to the surcharge in s. 973.055, 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.
§ 904.04(2)(a), (b)1. (footnote added).
¶28 "If the meaning of the statute is plain, we ordinarily
stop the inquiry." Kalal, 271 Wis. 2d 633, ¶45. As argued by
the State, under a plain language interpretation of Wis. Stat.
§ 904.04(2)(b)1., the court could hold that evidence of other,
similar22 acts by the accused is admissible, even if the acts
relate to a different victim, if the similar acts are offered in
a criminal proceeding that alleges (1) a violation of Wis. Stat.
§ 940.302(2); (2) a violation of Wis. Stat. ch. 948; (3) the
commission of a serious sex offense, as defined in Wis. Stat.
§ 939.615(1)(b); (4) the commission of domestic abuse, as
defined in Wis. Stat. § 968.075(1)(a); or (5) an offense that,
4. A physical act that may cause the other
person reasonably to fear imminent engagement in the
conduct described under subd. 1., 2. or 3.
Wis. Stat. § 968.075(1)(a). The parties do not dispute that
Dorsey's acts qualify as domestic abuse under this definition.
22
We note that subd. (2)(b)1. specifically requires that
the other acts be "similar acts by the accused." Wis. Stat.
§ 904.04(2)(b)1. This specific requirement of similarity
distinguishes subd. (2)(b)1. from para. (2)(a), but this
requirement is nonetheless satisfied when applying greater
latitude under a Sullivan analysis——the standard that we adopt
below——because the second prong of Sullivan directs circuit
courts to examine the similarity of the acts when evaluating
probative value. We discuss this issue of similarity more
below. See infra ¶¶45, 49.
19
No. 2015AP648-CR
following conviction, is subject to the surcharge in Wis. Stat.
§ 973.055. The plain meaning interpretation would thus allow
circuit courts to admit evidence of other, similar acts without
regard to its purpose, even if the purpose is to show "that the
person acted in conformity therewith," (i.e., propensity).
§ 904.04(2)(a).23
23
The concurrence argues that this isolated plain meaning
of subd. (2)(b)1. should be the end of a circuit court's
analysis, that is, that "evidence of 'similar acts' in sensitive
crimes cases [is] admissible without requiring the State to
establish a permissible purpose." Concurrence, ¶73. This
conclusion is problematic for at least two reasons. First, it
ignores the context of surrounding provisions within Wis. Stat.
§ 904.04. See State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. As concluded
below, such an isolated interpretation creates a conflict in the
plain language of the statute in the context of para. (2)(a).
See infra ¶29. Such an isolated interpretation also creates a
conflict in the plain language of the statute in the context of
subsec. (1), which embodies the general purpose of rule 904.04
"to exclude use of other misdeeds to prove character in order to
prove guilt." See State v. Spraggin, 77 Wis. 2d 89, 94, 252
N.W.2d 94 (1977). Subsection (1) states in relevant part as
follows:
Character evidence generally. Evidence of a
person's character or a trait of the person's
character is not admissible for the purpose of proving
that the person acted in conformity therewith on a
particular occasion . . . .
§ 904.04(1).
Second, and relatedly, this isolated interpretation would
effectively repeal the exclusionary purpose of the rule, which
is supported by four long-standing and oft-cited rationales:
(1) [t]he overstrong tendency to believe the defendant
guilty of the charge merely because he is a person
likely to do such acts; (2) the tendency to condemn
not because he is believed guilty of the present
(continued)
20
No. 2015AP648-CR
¶29 Subdivision (2)(b)1. must, however, be interpreted "in
the context in which it is used; not in isolation but as part of
a whole." Kalal, 271 Wis. 2d 633, ¶46. And this plain language
charge but because he has escaped punishment from
other offenses; (3) the injustice of attacking one who
is not prepared to demonstrate the attacking evidence
is fabricated; and (4) the confusion of issues which
might result from bringing in evidence of other
crimes.
Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557 (1967).
Thus, the concurrence would have us overturn decades of common
law construction by this court and by lower courts. But see
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 327 (2012) ("Repeals by
implication are disfavored——'very much disfavored.'"); id. at
318 ("A statute will be construed to alter the common law only
when that disposition is clear.").
Moreover, and perhaps more importantly, the concurrence
does not provide any practical guidance to circuit courts
because it does not offer a standard for admission of other,
similar acts. Under its isolated interpretation, could a court
admit acts as "similar" because they were committed in the same
month? Is a court compelled to admit similar acts without any
assessment of reliability? How would the court instruct the
jury regarding such other-acts evidence, or is that rendered
unnecessary because a jury can use the evidence for any purpose
it sees fit? In other words, without a standard for admission,
how could courts guarantee a fair trial? Such an aimless
interpretation would result in appeal after appeal, and would
require opinion after opinion explaining what we did not mean to
say. Thus, although the concurrence is unpersuaded by our
position, see Concurrence, ¶72, its skepticism reveals a
troubling lack of recognition of the practical effect that such
a simplistic interpretation will have in courtrooms across the
state. See also infra note 25. We conclude that utilizing the
time-tested analytical framework of Sullivan, but with greater
latitude, as called for by the plain meaning of the statute, is
the more prudent approach in light of our duty to provide
meaningful guidance to those who are confronted with such issues
in litigation.
21
No. 2015AP648-CR
interpretation of subd. (2)(b)1. contradicts the plain language
of para. (2)(a). Paragraph (2)(a) only excepts subd. (2)(b)2.——
not subd. (2)(b)1.——from its general prohibition on the use of
other acts "to prove the character of a person in order to show
that the person acted in conformity therewith." Wis. Stat.
§ 904.04(2)(a). Where a specific exception is made, it implies
that no other exceptions are intended. See Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
107-11 (2012) ("The expression of one thing implies the
exclusion of others (expressio unius est exclusio alterius).").
Thus, we cannot read subd. (2)(b)1. as an exception to
para. (2)(a)'s general prohibition on propensity.
¶30 This results in ambiguity with regard to the meaning
of subd. (2)(b)1. See Kalal, 271 Wis. 2d 633, ¶47 ("[A] statute
is ambiguous if it is capable of being understood by reasonably
well-informed persons in two or more senses."). If the plain
language of a statute is ambiguous as to meaning, we consider
the scope, context, and purpose of the statute. Id., ¶¶48-49.
In this regard, the title of subd. (2)(b)1., "Greater latitude,"
is instructive. As a preliminary matter, we note that
"[t]itles . . . are not part of the statutes," Wis. Stat.
§ 990.001(6), but are "permissible indicators of
meaning . . . for the purpose of . . . relieving [] ambiguity,"
Scalia & Garner, supra ¶29, at 221-22. See also Aiello v. Vill.
of Pleasant Prairie, 206 Wis. 2d 68, 73, 556 N.W.2d 697 (1996)
("Although titles are not part of statutes, . . . they may be
helpful in interpretation."). As noted above, there is
22
No. 2015AP648-CR
ambiguity with regard to the meaning of subd. (2)(b)1., thus,
reference to its title is appropriate here.
¶31 In the context of its title, "Greater latitude," we
interpret subd. (2)(b)1. as adopting the common law greater
latitude rule to permit the admission of other, similar acts of
domestic abuse with greater latitude. "All words and phrases
shall be construed according to common and approved usage; but
technical words and phrases and others that have a peculiar
meaning in the law shall be construed according to such
meaning." Wis. Stat. § 990.01(1); see also Scalia & Garner,
supra ¶29, at 320 ("A statute that uses a common-law term,
without defining it, adopts its common-law meaning.") Here,
"greater latitude" is a technical term defined in the common law
that deals with admission of other-acts evidence, thus it "shall
be construed according to such meaning." § 990.01(1).
¶32 Under the common law, the greater latitude rule
allows for more liberal admission of other-acts evidence. See,
e.g., State v. Hurley, 2015 WI 35, ¶59, 361 Wis. 2d 529, 861
N.W.2d 174. It has traditionally been applied in cases of
sexual abuse, particularly those involving children. See, e.g.,
id. Its application in this context dates back to 1893, and it
has been so-applied in hundreds of cases since. See Proper v.
State, 85 Wis. 615, 630, 55 N.W. 1035 (1893) ("A greater
latitude of proof as to other like occurrences is allowed in
cases of sexual crimes."). Thus, the term "greater latitude" is
a term of art in the context of other-acts evidence and its
application is well-established in the common law.
23
No. 2015AP648-CR
¶33 The greater latitude rule has been described as
operating to "facilitate[] the admissibility of the other acts
evidence under the exceptions set forth in [Wis. Stat.]
§ 904.04(2)[(a)]." State v. Hammer, 2000 WI 92, ¶23, 236
Wis. 2d 686, 613 N.W.2d 629 (citing Hendrickson v. State, 61
Wis. 2d 275, 279, 212 N.W.2d 481 (1973)). And indeed, after
Sullivan, which set out the standard for admission of other-acts
evidence under para. (2)(a), we clarified that the greater
latitude rule is to be applied within the Sullivan analysis
(which requires a (2)(a) permissible purpose under the first
prong). See State v. Davidson, 2000 WI 91, ¶51, 236
Wis. 2d 537, 613 N.W.2d 606. Application of the greater
latitude rule, however, is not limited to any one prong. See
id. Thus, for the types of cases enumerated under Wis. Stat.
§ 904.04(2)(b)1., circuit courts should admit evidence of other
acts with greater latitude under the Sullivan analysis to
facilitate its use for a permissible purpose.24
¶34 Before concluding our interpretation of the statute,
we note that adopting Dorsey's interpretation would render
24
This conclusion is further supported by the Legislative
Reference Bureau analysis that accompanied the assembly bill:
"This bill states that, in a prosecution alleging . . . a crime
of domestic abuse . . . evidence of similar acts is generally
admissible . . . ." Drafting File for 2013 Wis. Act 362,
Analysis by the Legislative Reference Bureau of 2013 A.B. 620,
Legislative Reference Bureau, Madison, Wis. See Kalal, 271
Wis. 2d 633, ¶51 ("[L]egislative history need not be and is not
consulted except to resolve an ambiguity in the statutory
language . . . .").
24
No. 2015AP648-CR
subd. (2)(b)1. superfluous. Dorsey argues that a straight
Sullivan analysis applies, that is, that circuit courts are not
permitted greater latitude to admit evidence of other acts in
domestic abuse cases. A straight Sullivan analysis, however, is
what circuit courts apply when a party seeks to introduce other-
acts evidence under para. (2)(a). Sullivan, 216 Wis. 2d at 772-
73. Before the statute was amended, this was the proper
standard for admission of other acts of domestic abuse, and, in
fact, before the amendment, the State did seek to introduce
other acts of domestic abuse under para. (2)(a). See, e.g.,
Sullivan, 216 Wis. 2d 768. But the addition of subd. (2)(b)1.
provided a specific standard for admission of other acts of
domestic abuse. Thus, to hold that a straight Sullivan analysis
is still the proper standard for admission would render the
legislature's enactment of subd. (2)(b)1. meaningless. This we
cannot do. See Kalal, 271 Wis. 2d 633, ¶46 ("Statutory language
is read where possible to give reasonable effect to every word,
in order to avoid surplusage."); Scalia & Garner, supra ¶29, at
174-79 ("If possible, every word and every provision is to be
given effect (verba cum effectu sunt accipienda). None should
be ignored. None should needlessly be given an interpretation
that causes it to duplicate another provision or to have no
consequence." (Footnote omitted.)).
¶35 In sum, we conclude that Wis. Stat. § 904.04(2)(b)1.
permits circuit courts to admit evidence of other, similar acts
of domestic abuse with greater latitude, as that standard has
been defined in the common law, under Sullivan, because it is
25
No. 2015AP648-CR
the most reasonable interpretation in light of the context and
purpose of the statute. See Kalal, 271 Wis. 2d 633, ¶46
("[S]tatutory language is interpreted in the context in which it
is used . . . and reasonably, to avoid absurd or unreasonable
results."). As a practical matter, not only does our analysis
afford due respect to the words of this legislation, but
maintaining the well-established Sullivan analysis, with greater
latitude in domestic abuse cases, also provides a framework for
litigants and our courts to create a thorough record of the
arguments and rulings concerning other-acts evidence.25
25
We note that the concurrence does not take issue with
applying steps two and three of the Sullivan analysis. Sullivan
defines its "three-step analytical framework" in relevant part
as follows:
(2) Is the other acts evidence relevant, considering
the two facets of relevance set forth in Wis. Stat.
§ 904.01? . . .
(3) Is the probative value of the other acts evidence
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
[under Wis. Stat. § 904.03]?
216 Wis. 2d at 772-73. The concurrence agrees that "subsec.
(2)(b)1 . . . permits the admission of 'similar acts'
evidence . . . as long as the proffered evidence satisfies Wis.
Stat. § 904.01's relevance test and is not excluded under Wis.
Stat. § 904.03's unfair prejudice test." Concurrence, ¶62. The
§ 904.03 balancing test, however, subsumes permissible purpose:
the danger of unfair prejudice is exactly the rationale which
underlies Wis. Stat. § 904.04's general prohibition of
propensity. See supra note 23. Thus, it is not clear how a
party could establish relevance under Wis. Stat. § 904.01, or
pass the balancing test under § 904.03, without proffering a
"purpose" (relevance) that is "permissible" (not substantially
(continued)
26
No. 2015AP648-CR
B. Whether Admission Of Dorsey's Other Acts
Was An Erroneous Exercise Of Discretion.
¶36 We consider second whether the evidence of Dorsey's
other acts was properly admitted under Wis. Stat.
§ 904.04(2)(b)1. The arguments of the parties on this issue are
outlined in detail below. In this regard, we note that our
review on this issue is limited to the arguments presented to
the circuit court at the time the circuit court made its
admissibility determination. Thus, although the parties raised
additional arguments on appeal, we limit our analysis to the
arguments they raised in the circuit court. We conclude that
the circuit court did not erroneously exercise its discretion in
admitting evidence of Dorsey's other acts because the circuit
court applied the proper legal standard and admission was a
conclusion that a reasonable judge could reach based on the
facts of the record.
¶37 Our analysis "begins with the understanding that the
circuit court's decisions to admit or exclude evidence are
entitled to great deference." Jackson, 352 Wis. 2d 249, ¶45.
We will uphold a circuit court's evidentiary ruling if it
"examined the relevant facts, applied a proper standard of law,
used a demonstrated rational process and reached a conclusion
outweighed by the danger of unfair prejudice). See also State
v. Hurley, 2015 WI 35, ¶62, 361 Wis. 2d 529, 861 N.W.2d 174
("Identifying a proper purpose for other-acts evidence is not
difficult and is largely meant to develop the framework for the
relevancy examination.").
27
No. 2015AP648-CR
that a reasonable judge could reach." Hurley, 361 Wis. 2d 529,
¶28.
¶38 As explained above, the proper standard for admission
of other acts of domestic abuse is one of greater latitude. See
supra ¶35. Here the record reflects that the circuit court
applied this legal standard: at the hearing on the State's
motion to introduce other-acts evidence, the circuit court held
that the recently amended language "provid[es] greater
latitude . . . similar . . . to the serious sex offense business
and making it available more to be able to be used in the case
in chief than [the court] would provide."
¶39 The circuit court also reached a conclusion that a
reasonable judge could reach using a demonstrated, rational
process. The lodestar of admissibility of other-acts evidence
is the three-prong analysis promulgated in Sullivan: other-acts
evidence is admissible if (1) it is offered for a permissible
purpose under Wis. Stat. § 904.04(2)(a); (2) it is relevant
under Wis. Stat. § 904.01; and (3) its probative value is not
substantially outweighed by the risk of unfair prejudice under
Wis. Stat. § 904.03. See Sullivan, 216 Wis. 2d at 772-73.
1. Whether the other acts were offered
for a permissible purpose.
¶40 Under the first prong, the State offered Dorsey's "two
Battery convictions and his conduct of June 2011 through
November 2011 . . . to establish [his] intent and motive to
cause bodily harm to [C.B.] and to control her within the
context of a domestic relationship." Dorsey did not
28
No. 2015AP648-CR
meaningfully argue that these were not permissible purposes;
rather, he focused on relevancy, which we discuss in detail
below.
¶41 The transcript of the motion hearing reflects that the
circuit court understood the purposes for which the State
offered the evidence. See supra note 13. Thus, the court was
within its discretion in holding that intent and motive to
control were permissible purposes. See, e.g., State v. Veach,
2002 WI 110, ¶58, 255 Wis. 2d 390, 648 N.W.2d 447.
¶42 Moreover, this was a conclusion that a reasonable
judge could reach. Under Wis. Stat. § 904.04(2)(a), "motive"
and "intent" are listed as permissible purposes. Thus, the
evidence was offered for a permissible purpose. See State v.
Payano, 2009 WI 86, ¶63, 320 Wis. 2d 348, 768 N.W.2d 832 (citing
Wis. Stat. § 904.04(2) (2007-08)) ("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. Consequently, this first step is
hardly demanding." (Footnote omitted.) (Citations omitted.));
see also State v. Marinez, 2011 WI 12, ¶29, 331 Wis. 2d 568, 797
N.W.2d 399 (noting that permissible purposes under Sullivan are
not limited to those listed in the statute or to those
recognized in previous cases).
¶43 Thus, especially given greater latitude in this
domestic abuse case, the circuit court did not err in concluding
that Dorsey's other acts were offered for a permissible purpose.
29
No. 2015AP648-CR
2. Whether the other acts were relevant to
the permissible purposes.
¶44 Under the second prong, the relevance inquiry is two-
fold: first, "[t]he evidence must relate to a fact or
proposition of consequence"; second, the evidence must have
probative value, that is, "a tendency to make a consequential
fact more or less probable than it would be without the
evidence." Veach, 255 Wis. 2d 390, ¶59; see Wis. Stat.
§ 904.01.
¶45 With regard to the first, the State argued that intent
is of consequence because it is an element of the charged
crimes; it argued that motive is of consequence because
"[m]otive is always relevant," in part because it is related to
intent. With regard to the second, the State argued that the
other acts were near in time because, although two years had
passed, Dorsey was on probation for a portion of that time. The
State further argued that the other acts were similar in
circumstance because:
• The arguments that preceded the assaults concerned
Dorsey's allegations that his partners did not show him
sufficient respect;
• The assaults occurred when the victims were in their home
or vehicle;
• In both the November 2011 (R.K.) and March 2014 (C.B.)
incidents, the assaults happened in the midst of Dorsey
accusing the victims of lying to him; and
30
No. 2015AP648-CR
• In both the November 2011 (R.K.) and March 2014 (C.B.)
incidents, Dorsey restricted his victims' movements.
¶46 With regard to the first, Dorsey argued that intent
and motive were not of consequence in this case because he
planned to deny that the alleged crimes ever happened, and thus,
he was not directly disputing the issue of intent and motive.
Dorsey also argued that, to the extent that the other-acts
evidence bolstered C.B.'s credibility, admission was improper.
With regard to the second, Dorsey argued that, although the
charges were similar, the victims were different people, and
that "one prior offense doesn't make the allegation of another
one more or less probable."
¶47 The circuit court found
that using [] greater latitude . . . [the evidence]
does have probative value in that it does go to,
because of the similarity, the motive to control.
Although it is not very, very, very near in time, it's
within two years and in a period of time in which the
clock kind of stops ticking a little bit because the
defendant is on probation for a period of that time.
And while they're similar, they do not involve the
same victim, there is some case law that it doesn't
need to involve the same victim, but the clear
statutory language indicates that it does not need to
involve the same victim.
This record reflects that the court applied the proper legal
standard to the relevant facts using a demonstrated, rational
process.
¶48 Moreover, this was a conclusion that a reasonable
judge could reach. Whether other-acts evidence is "of
consequence" asks whether it is logically related to an element
31
No. 2015AP648-CR
of the offense, that is, whether, under the substantive law, it
is related to "the ultimate facts and links in the chain of
inferences that are of consequence to the case." Sullivan, 216
Wis. 2d at 786. Intent and motive are "of consequence." Wis.
Stat. § 904.01. Intent is an element of two of the three
charged crimes at issue here.26 "[A]n element of a crime
constitutes a consequential fact that the State must prove even
if the defendant does not dispute the element." Veach, 255
Wis. 2d 390, ¶¶61, 77 (characterizing and upholding Davidson,
26
The second charge was for Misdemeanor Battery under Wis.
Stat. § 940.19(1):
Whoever causes bodily harm to another by an act
done with intent to cause bodily harm to that person
or another without the consent of the person so harmed
is guilty of a Class A misdemeanor.
See also Wis JI——Criminal 1220 (2015). The fourth charge was
for Aggravated Battery under Wis. Stat. § 940.19(6):
Whoever intentionally causes bodily harm to
another by conduct that creates a substantial risk of
great bodily harm is guilty of a Class H felony.
See also Wis JI——Criminal 1226 (2015). The jury was also
instructed on intent for each of these charges as follows:
"Intent to cause bodily harm" means that the defendant
had the mental purpose to cause bodily harm to another
human being or was aware that his conduct was
practically certain to cause bodily harm to another
human being. . . .
You cannot look into a person's mind to find intent
and knowledge. Intent and knowledge must be found, if
found at all, from the defendant's acts, words, and
statements, if any, and from all the facts and
circumstances in this case bearing upon intent.
32
No. 2015AP648-CR
236 Wis. 2d 537, ¶65); see also Hammer, 236 Wis. 2d 686, ¶25
(citing State v. Plymesser, 172 Wis. 2d 583, 594-95, 493
N.W.2d 376 (1992)) ("If the state must prove an element of a
crime, then evidence relevant to that element is admissible,
even if a defendant does not dispute the element."). Similarly,
although motive is not specifically an element of a crime that
the State must prove, here it is logically related to the
element of intent. "Intent" is defined as having a requisite
"mental purpose." See, e.g., Wis JI——Criminal 1220 (2015);
supra note 26. Motive is relevant to establishing purpose.27
See, e.g., Davidson, 236 Wis. 2d 537, ¶65 (quoting Plymesser,
172 Wis. 2d at 594-95). "Evidence relevant to motive is
therefore admissible, whether or not defendant disputes motive."
Id.
¶49 Whether other-acts evidence has probative value asks
whether the other acts are similar, that is, whether they are
27
Dorsey argues that his cause is distinguishable from the
considerable precedent applying the greater latitude rule and
holding that motive is relevant to establish purpose because
that precedent exclusively evaluates the relevance of motive in
the context of sexual abuse crimes, where the purpose of "sexual
gratification" is an element of the crime. See, e.g., State v.
Hammer, 2000 WI 92, ¶27, 236 Wis. 2d 686, 613 N.W.2d 629 ("[The]
testimony was properly admitted to prove motive because purpose
is an element of sexual contact."). If we were considering a
pure question of common law, extension of the greater latitude
rule might not be a perfect analogy for domestic abuse cases but
we are not; instead, we are considering the legislature's
statutory extension of the common law greater latitude rule to
domestic abuse contexts. Thus, Dorsey's argument that evidence
of motive should not be admitted under our greater latitude
cases fails.
33
No. 2015AP648-CR
near "in time, place, and circumstance[,] to the alleged crime
or to the fact or proposition sought to be proved." Sullivan,
216 Wis. 2d at 786 (citing Whitty v. State, 34 Wis. 2d 278, 294,
149 N.W.2d 557 (1967)).28 Here, the other acts tend to make the
facts of intent and motive more probable because they are
similar as to intent and motive, namely that, in both instances,
Dorsey became violent when he felt like he was being
disrespected or lied to, and he isolated his victims and
restricted their movements immediately prior to the assaults.
See supra ¶45.
¶50 Furthermore, to the extent that R.K.'s testimony
operated to bolster C.B.'s credibility, we have held that "[a]
witness's credibility is always 'consequential' within the
meaning of Wis. Stat. § 904.01." Marinez, 331 Wis. 2d 568, ¶34.
And we have held that credibility is particularly probative in
cases that come down to he-said-she-said. Id. Moreover, the
difficult proof issues in these kinds of cases "provide the
rationale behind the greater latitude rule. . . . [I]t follows
that the greater latitude rule allows for the more liberal
admission of other-acts evidence that has a tendency to assist
the jury in assessing [credibility]." Id. (citation omitted).
¶51 Thus, especially given greater latitude in this
domestic abuse case, the circuit court did not err in concluding
28
As noted above, see supra note 22, subd. (2)(b)1.
explicitly requires that the other acts be similar. This
requirement is satisfied by the similarity analysis under this
second prong of Sullivan.
34
No. 2015AP648-CR
that Dorsey's other acts were relevant to the purposes of intent
and motive.
3. Whether the probative value was substantially outweighed
by the risk of unfair prejudice.
¶52 Under the third prong, the State noted that it was
Dorsey's burden to show that the probative value was
substantially outweighed by the danger of unfair prejudice and
argued that he would not be able to do so: the probative value
of Dorsey's other acts "could not be substantially outweighed by
the danger of unfair prejudice" because of the similarities of
the incidents. The State also argued that "a cautionary
instruction [would] ensure that the jury uses the evidence []
only to evaluate the defendant's motive [and] intent." Dorsey
argued that the other acts would unfairly bolster the
credibility of C.B. because "when you have a female who's
alleging abuse in a domestic type situation, the jury is
automatically . . . already more toward the female who's making
the allegations." Dorsey also argued that admitting R.K.'s
testimony would result in a trial within a trial, confusing the
issues the jury must decide.
¶53 The circuit court found
that using [] greater latitude . . . is the probative
value substantially outweighed by the danger of unfair
prejudice, confusion, misleading the jury, needless
presentation of cumulative evidence, and then the
court's consideration of delay and waste of time, I do
not find that it is. That with a cautionary
instruction, it can be provided that this information
goes only to evaluate the defendant's motive and
intent elements. There's going to be no claim of
35
No. 2015AP648-CR
mistake or what have you. So for those reasons, I'll
allow it in.
This record reflects that the court applied the proper legal
standard to the relevant facts using a demonstrated, rational
process.
¶54 Moreover, this was a conclusion that a reasonable
judge could reach. "Because the statute provides for exclusion
only if the evidence's probative value is substantially
outweighed by the danger of unfair prejudice, [t]he bias is []
squarely on the side of admissibility." Marinez, 331
Wis. 2d 568, ¶41 (first alteration in original). "The
evidence's probative value largely turns on the relevancy
analysis from step two under Sullivan." Payano, 320
Wis. 2d 348, ¶81. "If the probative value is close to or equal
to its unfair prejudicial effect, the evidence must be
admitted." Hurley, 361 Wis. 2d 529, ¶87. And "[t]o limit the
possibility that the jury will convict based on 'improper
means[,]' circuit courts may . . . edit the evidence." Id.,
¶89.
¶55 As noted above, the circuit court found that the prior
acts and the charged acts were near in time and similar in place
and circumstance. Additionally, the circuit court limited any
unfair prejudice by precluding admission of the fact of Dorsey's
36
No. 2015AP648-CR
convictions for the other acts29 and by planning to give a
cautionary instruction at the close of evidence. We presume
that jurors follow the instructions given by the court. See,
e.g., Marinez, 331 Wis. 2d 568, ¶41. Where a cautionary
instruction is not tailored to the facts of the case, "its
cautionary effect [may be] significantly diminished." Sullivan,
216 Wis. 2d 791; cf. id. (quoting State v. Mink, 146 Wis. 2d 1,
17, 429 N.W.2d 99 (Ct. App. 1988)) ("[A] cautionary instruction,
even if not tailored to the case, can go 'far to cure any
adverse effect attendant with the admission of the [other-acts]
evidence.'"). Here, the cautionary instruction was tailored to
the facts particular to this case——intent and motive——and was
therefore in its most effective form. See supra ¶19.
¶56 Thus, especially given greater latitude in this
domestic abuse case, the circuit court did not err in concluding
that the probative value of Dorsey's other similar acts was not
substantially outweighed by the risk of unfair prejudice.
¶57 In sum, we conclude that the circuit court's admission
of the other-acts evidence under Wis. Stat. § 904.04(2)(b)1. was
not an erroneous exercise of discretion because the circuit
court properly applied greater latitude under a Sullivan
29
The circuit court did not decide the admissibility of the
fact of Dorsey's convictions for his other acts toward R.K. at
the motion hearing on December 22, 2014; rather, it reserved
decision on whether the convictions were relevant for when R.K.
was testifying. Ultimately, the circuit court did not allow in
the fact of Dorsey's convictions.
37
No. 2015AP648-CR
analysis, considered the relevant facts using a demonstrated,
rational process, and reached a conclusion that a reasonable
judge could reach.
IV. CONCLUSION
¶58 There are two issues on this appeal. First, we
consider what standard for admission of other-acts evidence
applies under the recently amended language in Wis. Stat.
§ 904.04(2)(b)1. Second, we consider whether the evidence of
Dorsey's other acts was properly admitted under § 904.04(2)(b)1.
As to the first issue, we conclude that the recently amended
language allows admission of other-acts evidence with greater
latitude under a Sullivan analysis. As to the second issue, we
conclude that the circuit court did not erroneously exercise its
discretion in admitting evidence of Dorsey's other acts because
the circuit court applied the proper legal standard and
admission was a conclusion that a reasonable judge could reach
based on the facts of the record.
¶59 Thus, we affirm the decision of the court of appeals
on other grounds.
By the Court.—The decision of the court of appeals is
affirmed.
¶60 SHIRLEY S. ABRAHAMSON, J., did not participate.
38
No. 2015AP648-CR.rgb
¶61 REBECCA GRASSL BRADLEY, J. (concurring). Instead of
adopting a plain meaning interpretation of Wis. Stat.
§ 904.04(2)(b)1, the majority chose to squeeze the new language
of subsec. (2)(b)1 back into the Sullivan1 analysis under subsec.
(2)(a) and declares that its only substantive effect arises from
its statutory title by affording greater latitude in domestic
abuse cases when admitting other-acts evidence. By doing so,
the majority renders the actual text of subsec. (2)(b)1
meaningless. Under the majority's holding, admission of similar
acts evidence at specifically enumerated sensitive crimes trials
remains bound by the same three-step Sullivan analysis used
before the legislature added subsec. (2)(b)1 to the statute. I
disagree with the majority's interpretation.
¶62 I write separately to apply a plain meaning
interpretation to Wis. Stat. § 904.04(2)(b)1. A plain meaning
analysis establishes that Sullivan does not apply to subsec.
(2)(b)1; rather, subsec. (2)(b)1 operates independently from
subsec. (2)(a) and permits the admission of "similar acts"
evidence at the enumerated sensitive crimes trials, as long as
the proffered evidence satisfies Wis. Stat. § 904.01's relevance
test and is not excluded under Wis. Stat. § 904.03's unfair
prejudice test. Applying this interpretation to the challenged
evidence in Dorsey's case, I conclude the circuit court did not
erroneously exercise its discretion in admitting the evidence;
1
See State v. Sullivan, 216 Wis. 2d 768, 772, 576 N.W.2d 30
(1988).
1
No. 2015AP648-CR.rgb
therefore, I would affirm the decision of the court of appeals.
I respectfully concur.
I
¶63 This case presents the court with the first
opportunity to interpret the newly revised Wis. Stat.
§ 904.04(2), which added an entirely new subsection titled
"Greater latitude." Wisconsin Stat. § 904.04(2) reads:
(2) OTHER CRIMES, WRONGS, OR ACTS.
(a) General admissibility. Except as provided
in par. (b)2., 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. 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.
(b) Greater latitude.
1. In a criminal proceeding alleging a
violation of s. 940.302(2) or of ch. 948,
alleging the commission of a serious sex offense,
as defined in s. 939.615(1)(b), or of domestic
abuse, as defined in s. 968.075(1)(a), or
alleging an offense that, following a conviction,
is subject to the surcharge in s. 973.055,
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.
2. In a criminal proceeding alleging a
violation of s. 940.225(1) or 948.02(1), sub. (1)
and par. (a) do not prohibit admitting evidence
that a person was convicted of a violation
of s. 940.225(1) or 948.02(1) or a comparable
offense in another jurisdiction, that is similar
to the alleged violation, as evidence of the
person's character in order to show that the
person acted in conformity therewith.
2
No. 2015AP648-CR.rgb
¶64 The majority correctly sets forth the court's standard
for reviewing statutes. Majority op., ¶¶27-28. It goes astray,
however, when it concludes that interpreting para. (b)1 in
context means it is subject to the language of para. (a).
Majority op., ¶29. In a plain meaning analysis, the court
examines the language in the statute and if "the meaning of the
statute is plain, we ordinarily stop the inquiry." State ex
rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. The language used in para. (b)1 is
plain and its meaning should be applied as written.
¶65 The language of para. (b)1 plainly instructs: (1) in
certain specified sensitive crime proceedings; (2) "evidence of
any similar acts by the accused is admissible"; (3) even when
the victim of the similar act is different than the victim in
the case being prosecuted. Wis. Stat. § 904.04(2)(b)1. Nothing
in this paragraph requires that the "similar acts" be admitted
for a particular purpose, and nothing says the similar acts
cannot be admitted to prove a person acted in conformity
therewith.
¶66 This language arguably conflicts with para. (a), which
directly precedes para. (b)1, but only if one assumes the
legislature cannot create an exemption from para. (a) unless it
places the text of that exemption in para. (a) and nowhere else.
Paragraph (a) prohibits the admission of "evidence of other
crimes, wrongs or acts" to prove propensity, with two
exceptions. Such "other acts" evidence is admissible in
criminal prosecutions alleging the crimes set forth in para.
3
No. 2015AP648-CR.rgb
(b)2 and such evidence is admissible for a purpose other than
propensity in any proceedings. By contrast, para. (a) does not
explicitly except para. (b)1 from its provisions. The pivotal
question then is whether para. (a)'s prohibition against
propensity evidence and its requirement of a permissible purpose
apply to para. (b)1. I conclude they do not.
¶67 "It is a cardinal rule of statutory construction that
when a general and a specific statute relate to the same subject
matter, the specific statute controls and this is especially
true when the specific statute is enacted after the enactment of
the general statute." Martineau v. State Conservation Comm'n,
46 Wis. 2d 443, 449, 175 N.W.2d 206 (1970) (citing Raisanen v.
City of Milwaukee, 35 Wis. 2d 504, 516, 151 N.W.2d 129 (1967));
City of Wauwatosa v. Grunewald, 18 Wis. 2d 83, 87, 118
N.W.2d 128 (1962); Pruitt v. State, 16 Wis. 2d 169, 173-74, 114
N.W.2d 148 (1962); Maier v. Racine Cty., 1 Wis. 2d 384, 388, 84
N.W.2d 76 (1957); see also State v. Wilson, 2017 WI 63, ¶35, 376
Wis. 2d 92, 896 N.W.2d 682 ("[W]here a specific statutory
provision leads in one direction and a general statutory
provision in another, the specific statutory provision
controls." (quoted source omitted)); State v. Schaefer, 2008 WI
25, ¶47, 308 Wis. 2d 279, 746 N.W.2d 457.2 Here, paras. (a) and
2
The majority does not apply the well-established "specific
statute controls over a general statute" rule, which has been
repeatedly adopted by this court in prior statutory construction
cases. See, e.g., Belding v. Demoulin, 2014 WI 8, ¶17, 352
Wis. 2d 359, 842 N.W.2d 373; Emjay Inv. Co. v. Vill. Of
Germantown, 2011 WI 31, ¶38, 333 Wis. 2d 252, 797 N.W.2d 844;
Kramer v. City of Hayward, 57 Wis. 2d 302, 311, 203 N.W.2d 872
(1973). Instead, the majority applies the "expressio unius est
(continued)
4
No. 2015AP648-CR.rgb
(b)1 both relate to the admission of evidence. Paragraph (a)
broadly covers any civil or criminal action, applies to the
defendant as well as any witness who testifies, and addresses
"crimes, wrongs, or acts." Paragraph (b) specifically covers
only particular sensitive crimes, applies only to "similar
acts," and is limited to evidence against the defendant. There
can be no dispute that para. (b)1 is the more specific statute.
Thus, the admission of the challenged evidence should be
analyzed only under para. (b)1.
¶68 The majority says the statute is ambiguous because the
plain language of para. (a) conflicts with para. (b)1. It then
concludes that para. (b)1's only meaning is to give greater
latitude to the admission of other-acts evidence in domestic
violence cases. The majority gives two reasons for its
conclusion: (1) the explicit exception referenced in para. (a)
means para. (b)1 cannot operate as an exception; and (2) the
title "Greater latitude" resolves the ambiguity and gives
meaning to (b)1. Majority op., ¶¶29-33.
exclusion alterius" canon ("The expression of one thing implies
the exclusion of others.") by citing exclusively to Reading Law:
The Interpretation of Legal Texts. Majority op., ¶29 (citing
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 107-11 (2012)). However, Reading
Law also instructs, consistent with well-established Wisconsin
law, that "[i]f there is a conflict between a general provision
and a specific provision, the specific provision prevails."
Scalia & Garner, supra, at 183. Particularly pertinent to
reconciling Wis. Stat. § 904.04(2)(a) with § 904.04(2)(b)(1),
"[u]nder this [general/specific] canon, the specific provision
is treated as an exception to the general rule." Id.
5
No. 2015AP648-CR.rgb
¶69 The majority's interpretation, however, results in the
newly enacted para. (b)1 being swallowed by para. (a). Before
the enactment of para. (b)1, all "other acts" evidence in the
specifically enumerated crimes in para. (b)1 was subject to
already-existing para. (a). In other words, in a domestic
violence case like this one, if the State wanted to introduce
evidence of Dorsey's prior similar bad acts toward R.K., it
would need to clear the three-part Sullivan analysis. The
majority holds that despite the legislature's revision to Wis.
Stat. § 904.04(2), admission of other-acts evidence in sensitive
crimes cases remains subject to a Sullivan analysis.
¶70 The majority holds Sullivan still controls the
admission of evidence under the newly-enacted para. (b)1. It
determines the only effect of this statutory paragraph was to
give greater latitude when admitting other-acts evidence in
domestic abuse cases. Under this construction, all of the other
statutory language of para. (b)1 is rendered superfluous. The
legislature might as well have limited para. (b)1 to say "courts
shall give greater latitude under the Sullivan test in domestic
violence cases." After all, the greater latitude rule already
applied to sexual assault crimes before the enactment of
para. (b)1. See State v. Davidson, 2000 WI 91, ¶44, 236
Wis. 2d 537, 613 N.W.2d 606. The majority's interpretation
violates the fundamental rule of statutory construction
requiring courts to give effect to all statutory provisions "so
that no part will be inoperative or superfluous." See Kalal,
271 Wis. 2d 633, ¶46; see also Clark v. Rameker, 134 S. Ct.
6
 No. 2015AP648-CR.rgb
2242, 2248 (2014) (quoted source omitted). Statutes should be
"read where possible to give reasonable effect to every word, in
order to avoid surplusage." Kalal, 271 Wis. 2d 633, ¶46.
¶71 This can be done quite simply in this case by adopting
a plain meaning interpretation. Under that interpretation,
admission of other-acts evidence in cases not specifically
enumerated in para. (b)1 will continue to be governed by the
Sullivan three-part analysis. Those cases are confined to the
limitations set out in the language of para. (a) and evidence is
inadmissible unless a party proffers a permissible purpose (and
clears the second and third part of the Sullivan analysis). In
the specifically identified criminal actions prosecuting
sensitive crimes under para. (b)1, the admission of evidence
will not require a particular purpose to secure admission.
Rather, it will be admitted if it constitutes a "similar act."
Its admission, like all proffered evidence, is subject to Wis.
Stat. § 904.01's relevancy requirement and may be excluded even
if relevant under Wis. Stat. § 904.03's unfair prejudice test.
See Davidson, 236 Wis. 2d 537, ¶34 (noting that to be admitted,
all evidence "must be relevant under" Wis. Stat. § 904.01 and
7
No. 2015AP648-CR.rgb
must clear Wis. Stat. § 904.03's unfairly prejudicial balancing
test.).3
¶72 I am not persuaded by the majority's position that
because para. (a) specifically excepts para. (b)2, this means
that para. (b)1 cannot operate independently from para. (a).
Paragraph (b)1's own language operates to except it from
para. (a) and this is the only interpretation of the statute
that gives effect to every provision. And under the
general/specific canon, the specific provision——here,
para. (b)1——is treated as an exception to the general rule,
embodied here in para. (a). Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 183 (2012).
¶73 I am also not persuaded that the only meaning given to
para. (b)1 arises from its title——"Greater latitude." The title
3
The majority says it does not know how the plain meaning
of this statute would work in conjunction with the "relevance"
and "unfair prejudice" tests: "[I]t is not clear how a party
could establish relevance under Wis. Stat. § 904.01, or pass the
balancing test under § 904.03, without proffering a 'purpose'
(relevance) that is 'permissible' (not substantially outweighed
by the danger of unfair prejudice)." Majority op., ¶35 n.25.
The permissible purpose, of course, is to establish that the
defendant acted in conformity with the character established by
the "similar acts" evidence. That is the same permissible
purpose the legislature authorized in subsec. (2)(b)2 (evidence
of conviction on comparable offenses admissible as "evidence of
the person's character in order to show that the person acted in
conformity therewith."). There is nothing the majority can say
on this score with respect to subsec. (2)(b)1 that would not
apply with equal force to subsec. (2)(b)2. The majority is
obviously uncomfortable with this policy change, but our role is
not to judge the wisdom of a legislative choice. It is only to
apply it insofar as it is consistent with the Wisconsin and
United States Constitutions.
8
No. 2015AP648-CR.rgb
of the statute is not part of the statute. See Wis. Stat.
§ 990.001(6) ("titles to subchapters, subsections, paragraphs
and subdivisions of the statutes and history notes are not part
of the statutes."). Although titles may be helpful in
interpreting a statute, the "text must control over title."
Aiello v. Vill. of Pleasant Prairie, 206 Wis. 2d 68, 73, 556
N.W.2d 697 (1996). "[A] title or heading should never be
allowed to override the plain words of a text." Scalia &
Garner, supra ¶12, at 222. Here, the text of the statute itself
expresses the meaning of para. (b)1, and it is the text itself,
rather than its title, that makes evidence of "similar acts" in
sensitive crimes cases admissible without requiring the State to
establish a permissible purpose. "[The] heading is but a
shorthand reference to the general subject matter involved."
Scalia & Garner, supra ¶12, at 221 (quoting Brotherhood of R.R.
Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 529-29 (1947)).
Here, the title "Greater latitude" is an apt description of the
text that follows, because in certain criminal proceedings,
evidence that would otherwise be inadmissible without clearing
the Sullivan hurdles is made admissible, period. However, the
majority misapplies the title to read into subsec. (2)(b)1
evidentiary preconditions wholly absent from the text.
¶74 The majority says we must ignore the plain meaning of
subsec. (2)(b)1 because it "creates a conflict . . . in the
context of subsec. (1), which embodies the general purpose of
rule 904.04 'to exclude use of other misdeeds to prove character
in order to prove guilt.'" Majority op., ¶28 n.23. In one
9
No. 2015AP648-CR.rgb
sense, this arguably creates a "conflict" because the scope of
Wis. Stat. § 904.04(1) after adoption of subsec. (2)(b)1 is not
as great as before. But when the legislature adopts a new
provision that is inconsistent with an existing provision, we
don't call it a "conflict," we call it an amendment. Yes,
adoption of subsec. (2)(b)1 limited the general purpose of
proscribing the use of "other acts" evidence to prove
propensity. But on what authority does the majority reject this
valid legislative choice?
¶75 The majority objects to the legislature's change
because it "would effectively repeal the exclusionary purpose of
the rule, which is supported by four long-standing and oft-cited
rationales . . . ." Majority op., ¶28 n.23.4 It is true that
the rationales are long-standing and oft-cited. But so what?
Do we really propose a pitched battle between our rationales and
the legislature regarding a subject on which it has the
authority to legislate? Even if our rationales had enjoyed
universal acclamation from the beginning of time, still they
would have no standing against the legislature's decision to
change this policy. This discussion suggests the court rejected
the plain meaning of subsec. (2)(b)1 simply because it altered
the status quo ante that had obtained in Wis. Stat. § 904.04(1).
4
This significantly overstates the reach of subsec.
(2)(b)1, which is limited to the identified types of cases. But
within those types of cases, the majority is correct that it
would repeal the exclusionary purpose of the general rule. But
this repeal is accomplished by the legislature's pen, not ours,
and it is the legislature's prerogative to do so.
10
No. 2015AP648-CR.rgb
¶76 The majority replaces the legislature's policy choices
with what it characterizes as its own "more prudent approach."
Majority op., ¶28 n.23. This method of interpretation,
sometimes termed consequentialism, rejects the statutory text in
favor of a construction that will "produce sensible, desirable
results, since that is surely what the legislature must have
intended. But it is precisely because people differ over what
is sensible and what is desirable that we elect those who will
write our laws——and expect courts to observe what has been
written." Scalia & Garner, supra ¶12, at 22. Our "duty to
provide meaningful guidance[,]" see majority op., ¶28 n.23, to
the bench and bar cannot override our duty to say what the law
is and not what we may wish it to be. Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177 (1803).
¶77 The majority also shies away from the plain meaning of
subsec. (2)(b)1 because it does not contain a comprehensive set
of interpretive aids to help the bench, bar, and juries
understand the meaning of "similar acts." Majority op., ¶28
n.23. It worries this "would result in appeal after appeal, and
would require opinion after opinion" to determine the proper
application of this provision. That may be true. But that's
also the reason we are here. And "similar acts" is not so
ethereal or exotic that we should struggle with it more than,
say, the meaning of "comparable offenses" (subsec. (2)(b)2) that
are "similar to the alleged violation," id., or "pertinent
trait" (subsec. (1)(a) & (b)), or the purposes for which "other
acts" evidence may be admitted under subsec. (2)(a).
11
No. 2015AP648-CR.rgb
Ultimately, this objection is a category error——the judiciary
may not refuse a statutory enactment because it will require too
much future interpretative work.
¶78 Applying the plain meaning of the text to the
challenged evidence here, I conclude the trial court did not
erroneously exercise its discretion in allowing its admission.
For these reasons, I respectfully concur.
¶79 I am authorized to state that Justice DANIEL KELLY
joins this concurrence.
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1