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§ 904.04, Applicability of “Sullivan” Analysis – Evidence of Drug House not Extraneous Misconduct but Proof of Element

State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff

Issue/Holding:

¶29 Here, Detective Carter testified that he observed the building at 450 North 33rd Street, saw people coming, staying for a few minutes and leaving, and explained that such traffic was consistent with operating a drug house. He admitted, however, that he was unable to see which unit the people who appeared to be purchasing drugs entered. Carter also testified that on May 27, 2004 (approximately one month before the search warrant was executed), a person later identified as McAdams pulled up in a van, entered the building, left two minutes later and drove off, in response to which he and his partner followed the van, eventually stopped it due to a traffic violation, and searched it. At this point defense counsel objected, and, after much discussion, the trial court decided to disallow any more evidence about McAdams.

¶30 Dukes mischaracterizes the evidence as other acts evidence. The evidence was not evidence of another act by Dukes, was not introduced for any of the purposes listed in Wis. Stat. § 904.04(2), and was certainly not an impermissible attempt to introduce character evidence about Dukes. Rather, the evidence was introduced to show that Apartment 1 at 450 North 33rd Street was indeed a drug house. This was an element of count three, maintaining a drug house, see Wis. Stat. § 961.42(1), with which Dukes was charged. Thus, even though Dukes erroneously categorizes the evidence as other acts evidence, we disagree with his contention that the evidence was irrelevant because introducing evidence to show that a drug house existed was central to the charge of maintaining a drug house. See State v. Hammer, 2000 WI 92, ¶25, 236 Wis. 2d 686, 613 N.W.2d 629 (evidence relevant to charged crime is admissible).

¶31 We are also not convinced by Dukes’s claim that the evidence was unfairly prejudicial under Wis. Stat. § 904.03. “Unfair prejudice arises either when the evidence admitted has a tendency to influence the outcome of the jury deliberations by the use of improper means, or when it arouses in the jury a sense of horror or desire to punish.” State v. Opalewski, 2002 WI App 145, ¶23, 256 Wis. 2d 110, 647 N.W.2d 331. The evidence presented by Carter informed the jury of police surveillance of 450 North 33rd Street, that the behavior they had observed was consistent with the operation of a drug house, and that they searched a car because they suspected that it contained drugs purchased from 450 North 33rd Street and their suspicions were confirmed. In presenting the evidence, the State did not use improper means or arouse a sense of horror or a desire to punish. See id. Moreover, any potential for unfair prejudice was further diminished when the testimony about McAdams’s drug purchase was cut short by the judge in response to a defense objection

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