Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father’s vehicle and, on one occasion, had actually grabbed the wheel,” was properly excluded as irrelevant:
¶28 As the State pointed out in its brief, the one occasion on which Braun allegedly grabbed the wheel of his father’s vehicle was dissimilar in several respects to the occasion in which Braun allegedly grabbed the wheel of Muckerheide’s vehicle. There was no evidence that, on the prior occasion, Braun had been intoxicated or under the influence of drugs, but there was evidence that Braun had been drinking and doing cocaine prior to the accident in Muckerheide’s vehicle. There is no dispute that an individual often acts differently when he/she is under the influence of drugs and alcohol. Additionally, Braun’s father would have testified that Braun had gestured toward the steering wheel on several occasions, whereas Muckerheide never asserted that Braun had made gestures toward the steering wheel in Muckerheide’s vehicle prior to the accident. Finally, there is no evidence that Braun had ever grabbed the steering wheel when riding with Muckerheide on occasions prior to the accident, as Braun had allegedly done when riding with his father.¶29 Due to these dissimilarities, we conclude that Muckerheide’s offered other acts evidence does not make a consequential fact more probable or less probable. Id. at 785-86. As this court stated in Whitty v. State, 34 Wis. 2d 278, 291-92, 149 N.W.2d 557 (1967), our seminal case regarding other acts evidence, it is universally established that evidence of other acts “is not admitted in evidence for the purpose of proving general character, criminal propensity or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged.”
State v. Sullivan, 216 Wis. 2d 768, 771-72, 576 N.W.2d 30 (1998), it will be recalled, establishes a 3-part test for admissibility of § 904.04 extraneous conduct evidence, ¶20: acceptable purpose under § 904.04(2); relevancy under § 904.01; danger of unfair prejudice under § 904.03. The variant presented by this case is that it deals with evidence sought for use by rather than against the defendant. Draw your own conclusions as to whether identity of extraneous-conduct evidence has a distorting effect on the outcome. One noteworthy point, though: Muckerheide argued that Sullivan’s 3rd step, unfair prejudice, isn’t applicable where the other-acts evidence is advanced by the defendant; the court, while expressly declining to reach that argument, nonetheless equally explicitly “urge(s) circuit court to discuss and analyze all three steps of the Sullivan analytical framework,” ¶32.