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Evidence – Other Misconduct Rule – “Context”

State v. Stuart J. Gasper, 2010AP1973-CR, District 2, 9/14/11

court of appeals decision (not recommended for publication); for Gasper: Mark A. Schoenfeldt; case activity

On a trial for hit-and-run and OWI, evidence that just before the charged events, the defendant’s car struck another car, was not “other acts” evidence within § 904.04(2) but, rather, was admissible to show “context”:

¶13      At the postconviction motion hearing, the trial court aptly concluded that “review of the pertinent testimony [shows] that this was not other acts evidence, rather this is evidence given to give the context of the scene and to complete the entire story that developed this night in question.”  We agree. McGuire’s testimony was not other acts evidence because it was part of the panorama of evidence needed to completely describe the events that occurred.  See State v. Hereford, 195 Wis. 2d 1054, 1069, 537 N.W.2d 62 (Ct. App. 1995) (“Testimony of other acts for the purpose of providing the background or context of a case is not prohibited by [Wis. Stat.] § 904.04(2).”).  The event that happened to McGuire was part and parcel of the events that evening.  Just because  the police did not know about the hit-and-run to McGuire does not mean that her testimony was “another” crime. It is as plain as day that what happened to McGuire was simply part of the same reckless driving sequence. We need not discuss this argument further.

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