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No error in admission of other acts evidence, no prejudice on IAC claims

State v. Rodell Thompson, 2015AP1764-CR, District 4, 8/4/16 (not recommended for publication); case activity (including briefs)

The trial court didn’t erroneously exercise its discretion in deciding to admit other-acts evidence in Thompson’s trial for sexual assault, false imprisonment, and battery, and Thompson’s IAC claims fail for want of prejudice.

Thompson concedes the other-acts evidence in question satisfied the first two parts of the test under State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998), as to the false imprisonment charge—i.e., the evidence was offered for a proper non-propensity purpose and was relevant. (¶¶8-10). But, he argues, the probative value of the evidence was substantially outweighed by the danger of unfair prejudice and confusion of the issues.

Specifically, Thompson claims the probative value was minimal because the facts of the other acts were provided to the jury through the reading of a stipulation between the parties rather than testimony from the witness involved in the other acts, making it impossible for the jury to assess that witness’s credibility. (¶11). This argument is “self defeating” because “[i]f the jury placed not much weight on the stipulation, it follows that the stipulation carried with it a limited risk of prejudice.” (¶12). The court also rejects as speculative Thompson’s argument about the prejudice that might have resulted if the witness had in fact testified. (¶13). Finally, given the presumption that jurors follow such instructions, the court rejects Thompson’s challenge to the cautionary instruction telling the jurors to consider the other-acts evidence only on the false imprisonment change, not the sexual assault charge. (¶16).

The court of appeals also rejects Thompson’s ineffective assistance claims because he fails to show prejudice. One claim is that trial counsel failed to impeach the complainant on a claim in her testimony. The court holds the record contains little, if any, factual support for the impeachment trial counsel should have engaged in. (¶¶24-31). The second claim is that trial counsel failed to offer additional reasons to support his unsuccessful pretrial motion for the complainant’s mental health records under State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). The court holds the additional reasons have only limited value and make only speculative assertions about what might be in the records, and thus don’t show the Shiffra motion should have been granted. (¶¶32-45).

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