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Particular Examples of Misconduct, § 904.04(2) – “Reverse” Misconduct – Inability of Witness to Identify Defendant of Similar Uncharged Crime

State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry


¶44. Alternatively, Wright argues that Lomack’s testimony was admissible as other acts evidence of a third-party perpetrator pursuant to ScheidellScheidell involved the admissibility of other acts evidence committed by an unknown third party, which was proffered by the accused on the issue of identity. Id. at 287. The supreme court set forth a three-step analytical framework to be applied when a defendant proffers such other acts evidence. Id. at 306. The first step is to determine whether the other acts evidence is offered for a permissible purpose under Wis. Stat. § 904.04(2), such as to establish motive, opportunity, plan, knowledge or identity. Scheidell, 227 Wis. 2d at 306. The second step is to determine whether the other acts evidence is relevant such that it relates to a fact or proposition that is of consequence to the determination of the action. The final step is to determine the probative value of the proffered testimony or its tendency to make a consequential fact more or less probable than it would be without the evidence. Id. at 307. The purpose of this test is to assure that the other acts evidence does more than raise conjecture or speculation. Id. at 305.

¶45. Wright’s argument under Scheidell is a nonstarter. Without more, we hold that the mere inability of a victim to identify the defendant as the perpetrator of a similar uncharged crime perforce takes the jury into the realm of conjecture or speculation. Unlike Scheidell, where the defendant sought to present evidence of a similar crime committed by an unknown third party while the defendant was in jail, id. at 291, Lomack’s proffered testimony does not demonstrate that Wright was incapable of committing the similar crime. At the most, Lomack’s proffered testimony merely shows that he could not identify Wright as the robber; it does not demonstrate that Wright could not have committed the offense. As such, Lomack’s testimony does not tend to make a consequential fact more or less probable than it would be absent his testimony. Id. at 307. We agree with the State: “When there is a series of similar crimes, the fact that the State is unable to prove that the defendant committed all of the crimes does not tend to establish that the defendant did not commit any of the crimes.” Lomack’s testimony was not competent other acts evidence under Scheidell, and the trial court did not err in excluding it.

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