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Admission of other-acts evidence at TPR grounds trial was harmless

Barron County DH & HS v. Q.B., 2023AP37, District 3, 6/13/23 (one-judge decision; ineligible for publication); case activity

At the trial to terminate the parental rights of Q.B. (“Quan”) on grounds of continuing CHIPS and failure to assume parental responsibility, a substance abuse counselor referred to Quan having spent “quite a bit of time incarcerated over the years” before the entry of the CHIPS order. (¶¶8-9, 24). The circuit court then declined to give a cautionary instruction. Assuming the evidence was inadmissible and that a cautionary instruction was appropriate, the error was harmless.

The counselor made the statement in response to being asked by Quan’s lawyer about Quan’s periods of sobriety. Quan’s lawyer thereafter asked for a cautionary instruction, which the court declined to give on the ground it was a minimal reference and the instruction would draw more attention to it—though the court also offered Quan’s lawyer the chance to renew the request if further review of transcript suggested the reference was more extensive than the court thought. Quan’s attorney didn’t raise the issue again. (¶¶9-10).

The parties agree the reference was inadmissible, so that general point is assumed by the court. (¶15). Quan also specifically argues it was unfairly prejudicial under the third prong of the other-acts test, State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998), but that argument is forfeited because Quan didn’t object to the evidence at trial or move to strike the evidence, and the request for the cautionary instruction doesn’t make up for that failure. (¶¶9-10, 16-18).

As to whether the circuit court should’ve given the cautionary instruction, the court of appeals assumes it should have, but that failure to do so was harmless because, given the evidence in the case, there is no reasonable probability that the jury was affected by the limited reference to Quan’s period of incarceration. (¶¶19-26).

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