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Court of appeals addresses pretrial rulings on other acts, use of audiovisual recording

State v. Omar S. Coria-Granados, 2019AP1989-CR, District 4, 2/11/21 (not recommended for publication); case activity (including briefs)

In this child sexual assault the circuit court denied the state’s motions to admit other-acts evidence under § 904.04(2) and to allow the use of an audiovisual statement of a complainant under § 908.08. In a long (39 page) decision addressing the multiple legal questions and fact specific issues, the court of appeals reverses the circuit court’s other-acts order but affirms the denial of the motion to admit the audiovisual statement.

Coria-Granados was charged with attempted sexual contact of E., who is under 13, and sexual contact with M., who is E.’s sister and was 17 at the time. (¶¶1, 4-6). Because the decision is quite fact dependent and not recommended for publication, this post will give only a broad overview of the issues and list the holdings in a general way, with links to the text for readers interested in more detail.

Other acts

The state sought to admit evidence of 5 specific other acts, one involving E., four involving M. (¶¶15-24). Along with nutshell expositions of the three-step other-acts test under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998) (¶¶10-14, 26, 29-30, 35-36, 42, 57-59, 61, 74), the court examines the parties arguments about the admissibility of the other acts.

As to the first step—proper purpose—there was no dispute that the other-acts met the first step (offered for a non-propensity purpose (¶¶26-28).

As to the second step—relevance and probative value—there is no dispute the other acts are relevant because they relate to a fact or proposition of consequence. (¶¶31-35). But Coria-Granados argues two of the other acts regarding M. are not probative because they are too dissimilar to the charged offenses. The court rejects this claim, saying the acts show a pattern of sexual behavior by Coria-Granados while he is near or in communication with M. and that the acts are similar in circumstances to the charged acts and have a connection with the charged acts. (¶¶36-40).

The second step also looks at whether there’s also sufficient evidence for a jury to find by a preponderance of the evidence that the other acts happened. (¶42). The circuit court concluded there was not, largely because the complainants’ statements regarding the other acts aren’t corroborated and no report of the acts was made to the authorities. While those circumstances go to credibility or weight of the testimony, the court of appeals holds that doesn’t mean the evidence is insufficient, particularly in light of the greater latitude rule in child sexual assault cases. (¶¶43-55).

Finally, under the third step—probative value versus prejudicial effect—Coria-Granados hasn’t met his burden of showing that the probative value is substantially outweighed by the danger of ufair prejudice. As part of this analysis, the court discusses and rejects his claim that the probative value is diminished by its limited reliability, saying the probative value isn’t about weight or strength, but its relevance. (¶¶60-82).

Admission of audiovisual recording of E.’s statement

The state claims the circuit court invoked an improper presumption against admission and erroneously exercised its discretion in its application of the proper factors, but the court of appeals rejects this claim, finding that the circuit court correctly  applied the proper standard under § 908.08. (¶¶84-95).

 

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