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Admission of other acts evidence and sufficiency of evidence for homicide conviction affirmed

State v. Alberto E. Rivera, 2018AP952-CR, 4/30, District 1 (not recommended for publication); case activity (including briefs).

The State charged Rivera with a homicide and an attempted homicide that occurred in 2015. Before trial, it moved to introduce “other acts” evidence–a homicide that Rivera committed in 1997. The trial court tentatively denied the motion. But then Rivera’s counsel made a “strategic” decision to offer the evidence as part of his defense.  So, as you might guess, the appellate challenge regarding the admission of this evidence failed.

“Other acts” evidence. The court addressed the State’s motion to admit “other acts” evidence at the final pre-trial conference. It held that if the trial counsel put on a defense that directly contested the identity of the shooter, then the State might be able to offer the 1997 homicide as “other acts” evidence. Defense had just one witness: Rivera. He testified that he has not the shooter and explained the 1997 homicide–he had shot a drug supplier by accident. The State then cross-examined him about homicide and cited the homicide during closing arguments.

The court of appeals held that the admission of this evidence complied with State v.
Sullivan, 216 Wis. 2d 768, 781, 576 N.W.2d 30 (1998). (1) The State sought the evidence for the purpose of establishing the identity of the person who shot the 2 victims in 2015. (2) The circumstances surrounding Rivera’s shooting of a drug supplier in 1997 and the victim/drug supplier shot and killed in this case were very similar. And the 2 shootings occurred “near in time” in the sense that the second occurred just 18 months after Rivera was released from prison for the first shooting. See State v. Murphy, 188 Wis. 2d 508, 519, 524 N.W.2d 924 (Ct. App. 1994). (3) Rivera was not prejudiced by the admission of the evidence because the circuit court instructed the jury that it could not use the 1997 homicide to conclude that because Rivera is a bad person he is guilty of the 2015 crimes. State v. Hurley, 2015 WI 35, ¶92, 361 Wis. 2d 529, 861 N.W.2d 174.

We know how effective these cautionary instructions are, right? Seriously, when “other acts” evidence is offered to prove “identity” what do you suppose the jury is going to do with it?

Sufficiency of the evidence. Rivera argued that there was no direct or  circumstantial evidence that he was the shooter. But the court of appeals pointed to the testimony of Beth, the victim of the attempted homicide. She said that Rivera pointed a gun at her head, then told her to sit in the 3rd row seat of a vehicle with her head down as he sat in the 2nd row with a gun and the drug dealer who was then shot to death. She also said that while she did not see Rivera shoot the dealer, she heard Rivera talking, and she heard shots coming from his seat in the vehicle. The court of appeals noted, among other things, that a finding of guilt may rest upon circumstantial evidence. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). It thus found sufficient evidence to support the guilty verdict.

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