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COA: Other-acts exception for first-degree sexual assault is constitutional

State v. Christopher L. Gee, 2018AP1069, 5/14/2019, District 1 (recommended for publication); case activity (including briefs)

Christopher Gee was accused of sexually assaulting two women at knifepoint; one of the women had come to Gee’s apartment building because someone there had agreed to pay her for sex. He admitted to police that he’d had sex with this second woman, but said it was consensual and he’d simply refused to pay her afterward–something he said he often did. (¶10).

At trial, the state sought to introduce evidence about a 1996 Indiana sexual assault to which Gee had pled guilty; the facts there involved Gee summoning an escort to his apartment building, then assaulting her at gunpoint. Under Wis. Stat. § 904.04(2)(b)2., evidence of a prior first-degree sexual assault (or other jurisdiction’s equivalent) is admissible in a first-degree sexual assault trial specifically to show propensity–in other words, the usual Sullivan other-acts analysis doesn’t apply.

(Actually, this is complicated. First, though the statute says the usual rule against propensity evidence doesn’t apply; such evidence could still be excluded as more prejudicial than probative under § 904.03. Second, our supreme court recently held in State v. Dorsey that similar language in § 904.04(2)(b)1. continues to incorporate the Sullivan analysis, though in its very lenient “greater latitude” variant. The court of appeals in this case declines to decide whether the same is true here.)

Gee argued in the circuit court that the first-degree sexual assault exception violated his right to due process. The circuit court rejected the constitutional challenge, but it held the prior-assault evidence would be admissible only if Gee should testify that the sex in this case was consensual. (¶13).

Gee didn’t testify, either in his original trial, which ended in mistrial, or his second, which ended in his conviction. He noted each time that he was making this decision in light of the court’s ruling about the prior-assault evidence.

On appeal, Gee renews his constitutional claim; the court of appeals construes it as both a facial and an as-applied challenge. As to the former, the court surveys caselaw from other jurisdictions and agrees with those that have held the law constitutional. (¶¶30-37).

Regarding the as-applied challenges–Gee says he was deprived of the right to be informed of the accusation against him, and that the circuit court’s conditional-admissibility ruling burdened his right to testify–the court rejects both as undeveloped. (¶¶40-41).

The court of appeals finally concludes that the circuit court correctly applied the Sullivan test in admitting the evidence (though again, it doesn’t decide whether it was necessary for the court to do so). (¶¶42-47).

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