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Other-Acts Evidence – State’s Failure to Identify Specifics

State v. Joel Steinhauer, 2012AP189-CR, District 3, 11/27/12

court of appeals decision (not recommended for publication); case activity

When the State fails to articulate the specific other acts testimony it seeks to adduce, the trial court acts within its discretion in ruling the testimony inadmissible without performing the 3-step analysis of State v. Sullivan, 216 Wis. 2d 768, 771–73, 576 N.W.2d 30 (1998).

¶13      The circuit court concluded the State’s descriptions of these incidents were too vague and did not sufficiently identify the sex acts the State wanted to introduce as other acts evidence.  The court also noted the State did not provide any details about where and when the incidents occurred, or the circumstances surrounding them.  Without this information, the court concluded it could not conduct a proper Sullivan analysis.  We agree.

¶14      Under the second step of the Sullivan analysis, a court must determine the relevance of the proffered other acts evidence.  Id. at 785.  To do so, it must consider the evidence’s probative value—that is, “whether the evidence has a tendency to make a consequential fact more probable or less probable than it would be without the evidence.”  Id. at 786.  Here, the State asserted the incidents with Steinhauer’s cousins were probative of his intent to obtain sexual gratification during the incidents with his niece and daughter.  When other acts evidence is offered to prove intent, its probative value depends on its “nearness in time, place and circumstances to the alleged crime or to the fact or proposition sought to be proved.”  See id. at 786-87.  Due to the lack of detail in the State’s summary of the other acts evidence, the court reasonably concluded it did not have enough information to make this determination.  Consequently, the court properly denied the State’s motion without conducting a Sullivan analysis.

The State attempted to shore up its deficient presentation with a police report, which the trial court characterized as merely “raw law enforcement data” that failed to inform the analysis, ¶8; the court of appeals agrees with the trial court:

 ¶15      We also agree with the court’s denial of the State’s renewed motion.  In support of its renewed motion, the State submitted a nine-page police report describing a myriad of incidents spanning at least a decade.  Faced with a nine-page narrative reciting numerous instances of sexual contact, the court reasonably concluded it could not determine which acts the State was actually seeking to introduce.  To conduct a Sullivan analysis based on the State’s renewed motion, the court would have had to sift through the allegations in the police report, separate the conduct it described into individual acts, and then—without aid from the State—apply the three-step Sullivan analysis to each individual act.  A court is not required to undertake this task.

Nor is the “greater latitude” rule applicable, State v. Veach, 2002 WI 110, ¶53, 255 Wis. 2d 390, 648 N.W.2d 447 (in child sexual assault trials, “greater latitude of proof [is afforded] to other like occurrences”), for the simple reason that the court “did not have enough information,” therefore “had no occasion to apply the greater latitude rule,” ¶16.

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