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State v. Miguel E. Marinez, Jr., No. 2009AP567-CR, District IV, 3/18/10, reversed 2011 WI 12

court of appeals decision (3-judge, not recommended for publication); BiC; Resp. Br.; Reply Br.
Reversed, 2011 WI 12

Evidence – Extraneous Misconduct – “Context”
On trial for sexual assault of defendant’s young stepdaughter, evidence that defendant also burned her hand was not admissible to show the “context” of the alleged crime.

¶15      Here, in contrast, the hand burning evidence did not explain M.M.L.’s behavior in reporting the incident.  The State asserts generally that M.M.L.’s testimony is more credible because M.M.L. previously reported the hand burning and Marinez was then convicted of that offense.  But there are two problems with this rationale. First, no evidence was introduced to the jury establishing that Marinez was, in fact, convicted of burning M.M.L.’s hands, thus establishing her credibility in reporting abuse by Marinez.  Additionally, we decline to adopt the State’s reasoning that a child’s credible report of bad behavior against a defendant is admissible as other acts evidence to support the child’s credibility in reporting unrelated charged behavior.  The State does not support this proposition with authority or reasoned argument.[6] To the extent it relies on Hunt, that reliance is misplaced.  In Hunt, the challenged evidence helped explain why the victims would have falsely recanted.  That is, the evidence directly explained why the victims had a motive to falsely recant.  Here, even assuming that it was established that M.M.L. was truthful about the hand burning incident, that fact does not help establish that she was truthful about the unrelated assault allegation.[7]

¶16      The State also argues generally that the hand burning evidence was necessary to fully establish its case. …

¶17      … We disagree with the State that these statements were necessary to fully establish its sexual assault case against Marinez.  The statements were not, as the State contends, “inextricably intertwined with [M.M.L.’s] statements about the sexual assault.”  Rather, the statements were easily separated from the sexual assault allegations, and the two events were presented as distinct incidents.  Even assuming the greater latitude rule applies in this context, that does not overcome the fact that the evidence was not offered for a proper purpose.  See id., ¶52 (“The greater latitude standard does not relieve a court of the duty to ensure that the other acts evidence is offered for a proper purpose under [WIS. STAT. §] 904.04(2).” (citation omitted)).

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