Making full use of the “greater latitude of proof” rule, the recent precedent adopting a more liberal approach to admission of other-acts evidence, e.g., State v. Marinez, 2011 WI 12, 331 Wis. 2d 568, 797 N.W.2d 399, State v. Payano, 2009 WI 86, 320 Wis. 2d 348, 768 N.W.2d 832, and the deferential standard of review, the court upholds the admission of other-acts evidence that Hurley had repeatedly sexually assaulted his sister, J.G., when she was between the ages of 8 and 10 years old and he was between the ages of 12 and 14 years old.
Hurley was charged in 2011 for allegedly assaulting his stepdaughter M.C.N. between 2000 and 2005, when she was between 6 and 11 years of age. (¶¶10-11). The trial court admitted the evidence about J.G. to show “method of operation” and “opportunity.” (¶61). Applying the three-part analysis of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the supreme court holds:
- The evidence was offered for the acceptable purpose of establishing “method of operation” in assaulting young girls because of the “great similarity” between the assaults—namely: 1) J.G.’s and M.C.N.’s allegations were very similar; 2) J.G. and M.C.N. were similar in age; 3) both sets of assaults involved digital penetration over a number of years; and 4) Hurley preceded the assaults with “games.” (¶¶65-69). It was also admissible to prove a “motive” of sexual arousal or gratification, a necessary element of sexual contact. (¶70-74).
- The evidence was relevant to the credibility of M.C.N. and, of course, to show Hurley’s “method of operation” and motive. (¶¶75-85).
- The probative value of the evidence was not outweighed by undue prejudice in light of the limiting instruction given regarding the evidence. (¶¶86-93).
Chief Justice Abrahamson, joined by Justice Bradley, dissents from the majority’s other-act evidence ruling. (¶¶106-15).
The court of appeals (¶¶39-54) held the other-act evidence wasn’t admissible to show “method of operation” because the “games” Hurley played were “not remotely similar” and because of the differences in Hurley’s age and relationship with respect to J.G. (12 to 14 years of age; brother) and M.C.N. (27 to 32; stepfather). Nor did it buy the argument about “motive,” because the state’s theory at trial was the Hurley was guilty because of the acts of digital penetration, and, unlike contact, intent isn’t an element of intercourse. Indeed, the jury wasn’t even instructed about sexual contact.
The supreme court says that doesn’t matter because a reviewing court “may consider acceptable purposes other than those contemplated by the circuit court.” (¶73 n.21). This is sophistry. The question isn’t whether there is some other acceptable purpose out there not considered by the trial judge; it’s whether the proffered purpose (here, “motive”) is acceptable. If the jury isn’t instructed to consider the legal basis for liability that the other-acts evidence is being offered to support, the evidence isn’t being offered for an acceptable purpose and isn’t relevant and can’t satisfy the Sullivan standard.
The court of appeals also concluded J.G.’s evidence wasn’t probative of Hurley’s motive 25 years later, citing State v. McGowan, 2006 WI App 80, ¶20, 291 Wis. 2d 212, 715 N.W.2d 631 (“[b]ecause of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult”). The supreme court distinguishes McGowan based primarily on the repeated nature of the assaults of J.G. (¶92 n.24) and also concludes that the difference in Hurley’s age between the time of the other-acts evidence and this case is outweighed by the similarities of the acts. (¶¶69, 85). But most of those similarities are described at a very high level of generality:
¶84 …. Both victims 1) were similar in age; 2) were members of Hurley’s immediate family; 3) lived in the same household as Hurley; 4) were female; 5) were younger than Hurley; 6) were controlled by Hurley and trusting of him; 7) were assaulted via digital penetration; 8) were assaulted in the home and bedroom; 9) were assaulted repeatedly over a period of years; 10) before being assaulted, participated in a stripping “game” initiated by Hurley; and 11) Hurley attempted to dissuade each victim by saying “you’re not going to tell mom, are you?”.
The more general the description, of course, the more easily you can find similarity that creates a pattern (not to say, shows a propensity) and therefore a “method of operation.” It may not be too many steps from the above list to “the prior acts involved sex, and so do these charges,” and the evidence is good to go under § 904.04. But then, given the legislature’s tinkering with the rule (see 2013 Wis. Act 362, §§ 20-22, 38, creating § 904.04(2)(b) as it now reads), there promise to be more cases where Sullivan will prevent no hurdle to the admission of propensity evidence.