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Defense wins on restitution, loses on evidentiary issues

State v. Shawn W. Forgue, 2016AP2414-CR, 5/11/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)

Forgue, convicted of misdemeanor battery and disorderly conduct, appealed the circuit court’s decision to exclude evidence of the victim’s prior violent conduct toward him (i.e. McMorris evidence) and her other bad acts. He also appealed an order setting restitution at $269.50 for the victim’s lost wages and $1,000 to the Crime Victim Compensation Program.

McMorris evidence. Forgue wanted to offer evidence of the victim engaged in road rage, which cause him (the passenger) to fear for his life. The court of appeals affirmed the exclusion of the evidence as irrelevant. The victim’s road rage didn’t show violent behavior towards him in particular. Op. ¶13.

Prior bad acts. Forgue wanted to offer evidence that the victim (1) was arrested for domestic violence against her previous boyfriend, and (2) was a USPS employee, stole people’s mail, and threatened to kill Forgue in his sleep if he told the police. The court of appeals held that the former showed propensity and could confuse the jury, so it was inadmissible. ¶¶18-120. As to the latter, Forgue was allowed to testify about the treat but not about the stolen mail because it had little probative value. ¶22.

Restitution.

¶29 Forgue argues that record does not support the restitution order as to the amount of damages awarded and as to the causal connection between Forgue’s crime and those damages.  The State agrees, stating that the record is insufficient to support the amount awarded because the “prosecutor failed to file supporting documentation regarding the amount of restitution in the case.”  Therefore, as requested by Forgue and agreed to by the State, this case is remanded to the circuit court for a new hearing on restitution.

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