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Particular Examples of Misconduct, § 904.04(2) — Inadmissible Propensity — Charge of Sexual Assault, Defense of Consent

State v. Luther Wade Cofield, 2000 WI App 196, 238 Wis. 2d 467, 618 N.W.2d 214
For Cofield: Donna L. Hintze, SPD, Madison Appellate

Issue: Whether, on a charge of sexual assault where the defense was consent, evidence of prior sexual assaults were properly admissible.

Holding:

¶11 In reviewing the list set forth in WIS. STAT. § 904.04(2), we reject each of the proper ‘other purposes’ under which the State and the trial court argued the prior acts evidence should be admitted. First, the evidence was not admissible to show intent because intent was not an element of the offense charged. See State v. Danforth, 129 Wis. 2d 187, 202-03, 385 N.W.2d 125 (1986). The State concedes that intent was not an element it had to prove on the sexual assault charges, but argues that intent was an element on the kidnapping charge and, therefore, admissible. This argument, made only on appeal, is a stretch at best. It is clear throughout the entire trial court transcript that the other acts evidence was being introduced as relevant to the sexual assault, not the kidnapping. The State also contends that the evidence was used to show intent to hold the victim to servitude for sex as in State v. Grande, 169 Wis. 2d 422, 433, 485 N.W.2d 282 (Ct. App. 1992). This argument, however, was never made in the trial court and the cautionary instruction on the other acts evidence never mentioned this other purpose. In addition, the prosecutor’s closing argument focused on linking the prior acts with the charged offenses. The State, therefore, has waived both arguments. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980).

¶12 Similarly, the other acts cannot be properly admitted to show motive. Other crimes evidence may be admitted to establish motive for the charged offense if there is a relationship between the other acts and the charged offense, see e.g., Holmes v. State, 76 Wis. 2d 259, 268-69, 251 N.W.2d 56 (1977), or if there is a purpose element to the charged crime, see State v. Friedrich, 135 Wis. 2d 1, 22, 398 N.W.2d 763 (1987). Here, neither can be satisfied. There was no connection between Cofield’s earlier convictions and the Lee case, and there is no evidence that the prior offense provided a reason for committing the charged offenses or that there was some link between them. Further, there is no purpose element in the crimes charged in this case.

¶13 The State argues that the similarities between the old and new offenses demonstrated a common scheme or plan. That is, a knife was used in each incident, the race of the women was the same, all of the victims were in their twenties or thirties, they were all women Cofield had seen before, and he told each of them that if they were compliant, they would not get hurt. Our supreme court has addressed the concept of ‘plan’ as that term is used in WIS. STAT. § 904.04(2):

The word ‘plan’ in sec. 904.04(2) means a design or scheme formed to accomplish some particular purpose. Evidence showing a plan establishes a definite prior design, plan, or scheme which includes the doing of the act charged. As Wigmore states, there must be ‘such a concurrence of common features that the various acts are materially to be explained as caused by a general plan of which they are the individual manifestations.’

State v. Spraggin, 77 Wis. 2d 89, 99, 252 N.W.2d 94 (1977) (citation and footnote omitted). In other words, similarity of facts is not enough to admit other acts under this ‘other purpose.’ There must be some evidence that the prior acts were a step in a plan leading to the charged offense, or some other result of which the charged offense was but one step. See State v. Roberson, 157 Wis. 2d 447, 453, 459 N.W.2d 611 (Ct. App. 1990). This linkage is simply not present here. There is no evidence that the prior acts were simply a step in a plan leading up to the Lee incident. In addition, there are as many dissimilarities between the earlier acts and the charged offenses as there are similarities. In the charged offense, Cofield shared cocaine with the victim, he put the knife down, the incident took place in his apartment as opposed to the victim’s bedroom, he allowed the victim to leave to retrieve her child, and the instant case occurred during the day.

 

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