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Particular Examples of Misconduct, § 904.04(2) — Prior Domestic Abuse — on Trial of Battery to Live-in Girlfriend

State v. Joseph F. Volk, 2002 WI App 274
For Volk: Charles B. Vetzner, SPD, Madison App

Issue: Whether, in a prosecution for battery against the defendant’s live-in girlfriend, evidence of the defendant’s domestic abuse of his former wife was admissible.

Holding: The evidence tended to refute the defense of lack of intent to harm:

¶22. Here, the prior acts testified to by Love were very similar to the events surrounding the charged offense and, as a result, Love’s testimony had a strong tendency to make Volk’s defense less probable than if she had not testified. Unlike the “other acts” evidence rejected by our supreme court in Sullivan which consisted of one prior incident lacking unusual facts or physical contact, Love’s testimony involved a series of incidents involving complex facts and physical contact similar to that alleged by Swim. See id. at 788-89. Specifically, the altercations described by Love were similar in that Volk had been drinking, the violence was perpetrated against a domestic partner and Volk’s actions involved strikes to the head and choking. We are satisfied that Love’s testimony served to make it less probable that Volk did not intend to harm Swim or that Swim injured herself. As such, the evidence satisfied the second aspect of the second prong of Sullivan.

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