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Date: 01-27-2018

Case Style:

State of Wisconsin v. Anton R. Dorsey

Anton R Dorsey - Registered Sex Offender

Case Number: 2015AP648-CR

Judge: ANNETTE KINGSLAND ZIEGLER

Court: SUPREME COURT OF WISCONSIN

Plaintiff's Attorney: Tiffany M. Winter, assistant attorney general and Brad D. Schimel, attorney general

Defendant's Attorney: Fred Bechtold

Description: 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

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suffocation under Wis. Stat. ァ 940.235(1) (2013-14)2;3 one count
of misdemeanor battery under Wis. Stat. ァ 940.19(1); one count
of disorderly conduct under Wis. Stat. ァァ 947.01 and 973.055(1);
and one count of aggravated battery under ァァ 940.19(6) and
973.055(1). All counts were charged with repeater enhancers.
カ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. ァ 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.
カ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 201314 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).
No. 2015AP648-CR

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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.
カ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.
ァ 904.04(2)(b)1. Second, we consider whether the evidence of
Dorsey's other acts was properly admitted under ァ 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.
カ6 Thus, we affirm the decision of the court of appeals
on other grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND
カ7 The State charged Dorsey with the following four
crimes: (1) strangulation and suffocation under Wis. Stat.
ァ 940.235(1), for intentionally impeding normal breathing by
applying pressure on the throat or neck of another person; (2)
No. 2015AP648-CR

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misdemeanor battery under Wis. Stat. ァ 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. ァァ 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 ァァ 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.
カ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. ァ 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, ァァ 20-22, 38; see also id., ァ 38 (amending and renumbering Wis. Stat. ァ 944.33(3) as Wis. Stat. ァ 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)
No. 2015AP648-CR

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(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. ァ 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 ァ 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.] ァ 904.04."
8 In Wisconsin, the admissibility of prior convictions for substance is governed by Wis. Stat. ァ 904.04 and the admissibility of prior convictions for impeachment is governed by Wis. Stat. ァ 906.09.
9 Wisconsin Stat. ァ 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.
ァ 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.").
No. 2015AP648-CR

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is relevant under ァ 904.01,10 and (3) its probative value is not
substantially11 outweighed by the risk of unfair prejudice under
ァ 904.03.12 See Sullivan, 216 Wis. 2d at 772-73. 10 Wisconsin Stat. ァ 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.
ァ 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, カ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. ァ 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.
ァ 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. ァァ 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.
No. 2015AP648-CR

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カ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.
カ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. ァ 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."
カ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
No. 2015AP648-CR

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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."
カ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.
No. 2015AP648-CR

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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."
カ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.
No. 2015AP648-CR

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カ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.
カ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
No. 2015AP648-CR

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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.
カ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."
No. 2015AP648-CR

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カ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.
カ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
No. 2015AP648-CR

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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.
カ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
No. 2015AP648-CR

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conclude that the defendant is a bad person and for that reason is guilty of the offense charged.[15]
カ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.
カ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. ァァ 940.235(1) and 939.62(1)(b).
17 Count two was for Misdemeanor Battery, Repeater, under Wis. Stat. ァァ 940.19(1) and 939.62(1)(a); count three was for Disorderly Conduct, Repeater, Domestic Abuse, under Wis. Stat. ァァ 947.01(1), 939.62(1)(a), and 973.055(1); and count four was for Aggravated Battery, Repeater, Domestic Abuse, under ァァ 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.
No. 2015AP648-CR

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apply because the "text must control over [the] title" and
"[t]he text of Wis. Stat. ァ 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., カ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., カカ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., カカ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., カ43.
カ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., カ40 (Wis. Ct. App. Dec. 6, 2016) (per curiam).
No. 2015AP648-CR

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II. STANDARD OF REVIEW
カ23 Determining what standard for admission of other-acts
evidence applies under the recently amended language in Wis.
Stat. ァ 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, カ21, 360
Wis. 2d 193, 858 N.W.2d 346.
カ24 Determining whether the evidence of Dorsey's other
acts was properly admitted under Wis. Stat. ァ 904.04(2)(b)1.
requires us to review an exercise of discretion by the circuit
court. See State v. Jackson, 2014 WI 4, カ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
カ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.
ァ 904.04(2)(b)1. Second, we consider whether the evidence of
Dorsey's other acts was properly admitted under ァ 904.04(2)(b)1.
As to the first issue, we conclude that the recently amended
No. 2015AP648-CR

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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. ァ 904.04(2)(b)1.
カ26 We consider first what standard for admission of
other-acts evidence applies under the recently amended language
in Wis. Stat. ァ 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
No. 2015AP648-CR

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admission of other, similar acts of domestic abuse with greater
latitude under a Sullivan analysis.20
カ27 "[S]tatutory interpretation begins with the language
of the statute." State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
2004 WI 58, カ45, 271 Wis. 2d 633, 681 N.W.2d 110. Wisconsin
Stat. ァ 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. ァ 904.04(2)(b)1.
21 Wisconsin Stat. ァ 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)
No. 2015AP648-CR

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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.
ァ 904.04(2)(a), (b)1. (footnote added).
カ28 "If the meaning of the statute is plain, we ordinarily
stop the inquiry." Kalal, 271 Wis. 2d 633, カ45. As argued by
the State, under a plain language interpretation of Wis. Stat.
ァ 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.
ァ 940.302(2); (2) a violation of Wis. Stat. ch. 948; (3) the
commission of a serious sex offense, as defined in Wis. Stat.
ァ 939.615(1)(b); (4) the commission of domestic abuse, as
defined in Wis. Stat. ァ 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. ァ 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. ァ 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覧the standard that we adopt below覧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 カカ45, 49.
No. 2015AP648-CR

20

following conviction, is subject to the surcharge in Wis. Stat.
ァ 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).
ァ 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, カ73. This conclusion is problematic for at least two reasons. First, it ignores the context of surrounding provisions within Wis. Stat. ァ 904.04. See State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, カ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 カ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 . . . .
ァ 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)
No. 2015AP648-CR

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カ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, カ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覧'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, カ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.
No. 2015AP648-CR

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interpretation of subd. (2)(b)1. contradicts the plain language
of para. (2)(a). Paragraph (2)(a) only excepts subd. (2)(b)2.覧
not subd. (2)(b)1.覧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.
ァ 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.
カ30 This results in ambiguity with regard to the meaning
of subd. (2)(b)1. See Kalal, 271 Wis. 2d 633, カ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., カカ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.
ァ 990.001(6), but are "permissible indicators of
meaning . . . for the purpose of . . . relieving [] ambiguity,"
Scalia & Garner, supra カ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
No. 2015AP648-CR

23

ambiguity with regard to the meaning of subd. (2)(b)1., thus,
reference to its title is appropriate here.
カ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. ァ 990.01(1); see also Scalia & Garner,
supra カ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." ァ 990.01(1).
カ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, カ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.
No. 2015AP648-CR

24

カ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.]
ァ 904.04(2)[(a)]." State v. Hammer, 2000 WI 92, カ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, カ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.
ァ 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
カ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, カ51 ("[L]egislative history need not be and is not consulted except to resolve an ambiguity in the statutory language . . . .").
No. 2015AP648-CR

25

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, カ46 ("Statutory language
is read where possible to give reasonable effect to every word,
in order to avoid surplusage."); Scalia & Garner, supra カ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.)).
カ35 In sum, we conclude that Wis. Stat. ァ 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
No. 2015AP648-CR

26

the most reasonable interpretation in light of the context and
purpose of the statute. See Kalal, 271 Wis. 2d 633, カ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. ァ 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. ァ 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. ァ 904.01's relevance test and is not excluded under Wis. Stat. ァ 904.03's unfair prejudice test." Concurrence, カ62. The ァ 904.03 balancing test, however, subsumes permissible purpose: the danger of unfair prejudice is exactly the rationale which underlies Wis. Stat. ァ 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. ァ 904.01, or pass the balancing test under ァ 904.03, without proffering a "purpose" (relevance) that is "permissible" (not substantially (continued)
No. 2015AP648-CR

27


B. Whether Admission Of Dorsey's Other Acts Was An Erroneous Exercise Of Discretion.
カ36 We consider second whether the evidence of Dorsey's
other acts was properly admitted under Wis. Stat.
ァ 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.
カ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, カ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, カ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.").
No. 2015AP648-CR

28

that a reasonable judge could reach." Hurley, 361 Wis. 2d 529,
カ28.
カ38 As explained above, the proper standard for admission
of other acts of domestic abuse is one of greater latitude. See
supra カ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."
カ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. ァ 904.04(2)(a); (2) it is relevant
under Wis. Stat. ァ 904.01; and (3) its probative value is not
substantially outweighed by the risk of unfair prejudice under
Wis. Stat. ァ 904.03. See Sullivan, 216 Wis. 2d at 772-73.

1. Whether the other acts were offered for a permissible purpose.
カ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
No. 2015AP648-CR

29

meaningfully argue that these were not permissible purposes;
rather, he focused on relevancy, which we discuss in detail
below.
カ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, カ58, 255 Wis. 2d 390, 648 N.W.2d 447.
カ42 Moreover, this was a conclusion that a reasonable
judge could reach. Under Wis. Stat. ァ 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, カ63, 320 Wis. 2d 348, 768 N.W.2d 832 (citing
Wis. Stat. ァ 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, カ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).
カ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.

No. 2015AP648-CR

30

2. Whether the other acts were relevant to the permissible purposes.
カ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, カ59; see Wis. Stat.
ァ 904.01.
カ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
No. 2015AP648-CR

31

In both the November 2011 (R.K.) and March 2014 (C.B.)
incidents, Dorsey restricted his victims' movements.
カ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."
カ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.
カ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
No. 2015AP648-CR

32

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. ァ 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, カカ61, 77 (characterizing and upholding Davidson,
26 The second charge was for Misdemeanor Battery under Wis. Stat. ァ 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覧Criminal 1220 (2015). The fourth charge was for Aggravated Battery under Wis. Stat. ァ 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覧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.
No. 2015AP648-CR

33

236 Wis. 2d 537, カ65); see also Hammer, 236 Wis. 2d 686, カ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覧Criminal 1220 (2015);
supra note 26. Motive is relevant to establishing purpose.27
See, e.g., Davidson, 236 Wis. 2d 537, カ65 (quoting Plymesser,
172 Wis. 2d at 594-95). "Evidence relevant to motive is
therefore admissible, whether or not defendant disputes motive."
Id.
カ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, カ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.
No. 2015AP648-CR

34

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 カ45.
カ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. ァ 904.01." Marinez, 331 Wis. 2d 568, カ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).
カ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.
No. 2015AP648-CR

35

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.
カ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.
カ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
No. 2015AP648-CR

36

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.
カ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, カ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, カ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, カ87. And "[t]o limit the
possibility that the jury will convict based on 'improper
means[,]' circuit courts may . . . edit the evidence." Id.,
カ89.
カ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
No. 2015AP648-CR

37

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, カ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覧intent and motive覧and was
therefore in its most effective form. See supra カ19.
カ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.
カ57 In sum, we conclude that the circuit court's admission
of the other-acts evidence under Wis. Stat. ァ 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.
No. 2015AP648-CR

38

analysis, considered the relevant facts using a demonstrated,
rational process, and reached a conclusion that a reasonable
judge could reach.

Outcome: 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.
ァ 904.04(2)(b)1. Second, we consider whether the evidence of
Dorsey's other acts was properly admitted under ァ 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.

Thus, we affirm the decision of the court of appeals
on other grounds.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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