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Per curiam court of appeals decision addresses “greater latitude” language in § 904.04(2)(b)

State v. Anton R. Dorsey, 2015AP648-CR, District 3, 12/6/16 (per curiam; not citable as precedent or for persuasive value), petition for review granted, 4/10/17, affirmed, 2018 WI 10; case activity (including briefs)

You may not cite this per curiam opinion as binding precedent or for persuasive value in any Wisconsin court, see § 809.23(3)(b), but On Point is telling you about it because the court of appeals concludes that the purported “greater latitude” rule in § 904.04(2)(b)1. is not a codification of the “greater latitude” rule created by case law regarding admission of other acts evidence in child sex cases. While you can’t cite this decision for authority, you may and should use the court’s reasoning for its conclusion to counter the claim of a prosecutor or circuit judge that § 904.04(2)(b)1. codifies a “greater latitude” rule.

The “greater latitude” rule “empowers circuit courts with broader discretion in the admission of other-acts evidence” and “applies to all three parts of the … analysis” under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). But the greater latitude rule has been used almost exclusively in cases concerning sexual offenses against children.

In this case, the circuit court applied the “greater latitude” rule to admit other-acts evidence at the trial on Dorsey’s battery and disorderly conduct charges. It did so based on § 904.04(2)(b)1., which was enacted by 2013 Wis. Act 362. That subdivision—one of two falling under the heading “greater latitude” in § 904.04(2)(b)—contains a list of “sensitive crimes” other than child sex offenses. The list includes allegations “of domestic abuse, as defined in s. 968.075(1)(a), or … an offense that, following a conviction, is subject to the surcharge in s. 973.055….” The battery and disorderly conduct charges against Dorsey fall under both of those categories. (¶13).

In an opinion issued back in August and recommended for publication, the court of appeals agreed with the circuit court that, under “the plain language” of § 904.04(2)(b)1., the greater latitude rule applies to Dorsey’s charges. It relied heavily, if not exclusively, on the fact that the title of § 904.04(2)(b) is “Greater latitude.” But after Dorsey filed a petition for review, and before the opinion was published, the court of appeals withdrew the opinion. In its new opinion the court changes course, and now concludes the statute does not codify a greater latitude rule:

¶21     The circuit court’s decision stated that it applied the “greater latitude rule” in allowing the other acts evidence to be used in this case. The greater latitude rule is a court-created doctrine. It simply functions as a mechanism for the “more liberal admission of other crimes evidence ….” State v. Davidson, 2000 WI 91, ¶52, 236 Wis. 2d 537, 613 N.W.2d 606. More specifically, the rule allows courts to permit a “greater latitude of proof as to other like occurrences.” Id., ¶36 (citations omitted). Historically, the greater latitude rule was used almost exclusively in cases concerning sexual offenses against children. Id., ¶¶ 36, 51.

¶22     We note that current Wis. Stat. § 904.04(2)(b)1. includes the subtitle “Greater latitude.” That subtitle might indicate a legislative intent that the court-created, so-called “greater latitude rule” now applies to domestic abuse cases. “Although titles are not part of statutes, Wis. Stat. § 990.001(6), they may be helpful in interpretation. Nevertheless text must control over title.” Aiello v. Village of Pleasant Prairie, 206 Wis. 2d 68, 73, 556 N.W.2d 697 (1996). The text of § 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. Under the statute, the only greater latitude provided in admission of evidence in domestic abuse cases is the ability to admit other acts evidence “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.” Therefore, we decline to otherwise interpret the statute to provide for greater latitude in the admissibility of other acts evidence in domestic abuse cases merely because of the subsection title.

This is an appropriate and appreciated corrective, given the court’s acknowledgement that the only language of the statute referring to greater latitude is in the title, not in the text. True, this statutory language is curious because it doesn’t add much, if anything, new to other-acts analysis. Similarity of the other acts is already part of the Sullivan analysis, 216 Wis. 2d at 787, and in the domestic abuse context, at least, it’s been clear for a long time that acts of domestic violence against a different person are admissible as other-acts evidence, see, e.g.State v. Clark, 179 Wis. 2d 484, 507 N.W.2d 172 (Ct. App. 1993). But the text controls, so whatever else the legislature did in Act 362, it didn’t create a “greater latitude” rule.

If you’re looking for citable authority on this point, the Criminal Jury Instruction Committee has come to the same conclusion, based in part on another curious aspect of § 904.04(2)(b): Its two “greater latitude” subdivisions aren’t treated equally. The second subdivision, § 904.04(2)(b)2., allows evidence of a narrow class of child sexual assault convictions to be admitted in pending cases alleging the same kind of child sexual assault and is specifically excepted from the general rule excluding propensity evidence in § 904.04(2)(a), which states: “Except as provided in par. (b)2., evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person….” But par. (b)1., the statute at issue in this case, is not excepted from the general rule of exclusion. This feature of the statute led the Jury Instruction Committee to conclude in its recent revision of J.I.—Criminal 275 (2016) that, despite the title of § 904.04(2)(b), “the rules articulated in the subdivisions of that section differ from those established in the case law” concerning greater latitude (emphasis added). In particular:

…[T]he Committee concluded that the similar acts must still be offered for an acceptable purpose as set forth in sub. (2)(a) and as required by the first step of the Sullivan analysis. This is because sub. (2)(a) begins by stating: “Except as provided in par. (b)2.” There is no exception for par. (b)1., leading the Committee to conclude that the standard analysis applies. The only apparent effect of sub. (2)(b)1. is to make clear that the victim of the current crime need not be the same as the victim of other act. (Emphasis supplied.)

For those interested, the court goes on to apply the three-part Sullivan test, 216 Wis. 2d at 780-81, to the other acts Dorsey allegedly committed and affirm the circuit court’s admission of the evidence. (¶¶23-45).

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{ 1 comment… add one }
  • Peter Heyne August 31, 2016, 8:50 am

    To more fully develop that domestic abuse is quite distinguishable from child sex assault cases:

    The rationale for greater latitude in child sex cases laid out in State v. Hurley, 2015 WI 35, is distinguishable from domestic abuse cases. Hurley justified the relaxed standard because of the specific nature of the crime and the victim in child sex assault cases:

    1. Other-acts evidence is particularly relevant in child sexual assault cases because an average juror likely presumes that a defendant is incapable of such an act.18
    2. An additional rationale for the greater latitude rule “is the need to corroborate the victim’s testimony against credibility challenges.”19

    Id. at ¶ 59 (spacing and numbering added for clarity, internal quotations and citations omitted). Footnote 18 in Hurley stated: “We have explained that the other-acts evidence was relevant under the greater latitude rule because:
    [t]o a person of normal, social and moral sensibility, the idea of the sexual exploitation of the young is so repulsive that it’s almost impossible to believe that none but the most depraved and degenerate would commit such an act. The average juror could well find it incomprehensible that one who stands before the court on trial could commit such an act. Juries must have all the relevant facts before them. A past history of such a defendant’s plans, schemes and motives is relevant. State v. Friedrich, 135 Wis.2d 1, 27–28, 398 N.W.2d 763 (1987).”

    Footnote 19 in Hurley stated: “Because of ‘the difficulty sexually abused children experience in testifying, and the difficulty prosecutors have in obtaining admissible evidence in such cases’ a more liberal admissibility standard in child sexual assault cases applies. State v. Davidson, 2000 WI 91, ¶ 42, 236 Wis.2d 537, 613 N.W.2d 606. ‘The dangers presented by the propensity inference are thus evenly balanced by the need to corroborate young victims whose horrific allegations might otherwise be doubted.’ Blinka, supra [Wisconsin Practice Series: Wisconsin Evidence (3d ed.2008)] § 404.7, at 218–19.” Likewise, the court earlier held: “Because of immaturity, fear and embarrassment, sexually abused children find it difficult to testify. Friedrich, 135 Wis. 2d at 30.

    To summarize, the rules for other acts are different with child sexual assault because
    1. The average juror, it is almost impossible to believe that none but the most depraved and degenerate would sexually assault a child, especially a young child.

    2. The State faces evidentiary challenges because sexually abused children have difficulty testifying, e.g., because of immaturity, fear and embarrassment.

    These stated rationales do not apply to domestic abuse situations.

    First, the average Disorderly Conduct-Domestic Abuse case could involve a spouse yelling, maybe then escalating to pushing or slapping, or even punching. This conduct is a far cry from child sexual assault. It is doubtful that the average juror would find it almost impossible to believe that none but the most depraved and degenerate would yell at, push, slap, or even punch his spouse or domestic partner. Sadly, domestic abuse is all too common, and not confined to a very specific minority of the population (e.g., pedophiles).

    Second, by statutory definition, “domestic abuse” refers only to adult victims. Granted, an adult victim of domestic abuse may still indeed feel fear and embarrassment, as well as guilt and torn feelings, so it may be difficult for him or her to testify. There may be some emotional immaturity, but not the same physical/mental immaturity as a young child. Maturity-wise, the average middle-aged spouse victim, who may be an articulate professional, is simply not in the same class as a thirteen-, or ten-, or five-, or three-year-old child victim. The adult domestic violence victim is much more capable of testifying in court, so the State does not face the same difficulties as with young children.

    In sum, the stated rationales for the “greater latitude” rule in admitting other acts of child sexual assault do not apply to cases of domestic abuse, so this new rule is really just an attempt to dilute the protections of Sullivan (cf. also Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)). Sullivan is not simply a technical rule of evidence, but a guarantee against unfair prejudice to the defendant, a guarantee of a fair trial—thus constitutionally protected Due Process. Dorsey did not raise any of these constitutional issues in his briefs. The three prongs of Sullivan should still apply with full force and effect in domestic abuse cases.

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