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COA: Reference to prior violence by defendant admissible other acts evidence

State v. Kevin B. Hutchins, 2018AP1144-CR, 7/16/2019, District 1 (not recommended for publication); case activity (including briefs)

Hutchins had a jury trial for the alleged sexual assault, false imprisonment, and battery of the mother of his children. The judge permitted her to testify, over objection, that he had hit her on other, earlier occasions–the proffered purpose of this testimony being to show why she didn’t immediately go to the police after this incident (and thus, apparently, to defend the credibility of her story). The court of appeals affirms.

In so doing, it doesn’t rely on the reasoning of the trial court, advanced half-heartedly by the state on appeal: that because the prosecution didn’t bring out specific instances of Hutchins’ supposed prior batteries, the testimony wasn’t “other acts” evidence at all. (¶13). This, at least, is good news–it’d be hard to explain why “he previously robbed First Brooklyn Savings Bank” raises a danger of unfair prejudice while “he previously robbed dozens of banks” does not.

Instead, the court of appeals runs the familiar Sullivan analysis and finds the other conduct admissible:

Here, the trial court determined that the testimony was offered for a permissible purpose: to show M.U.’s state of mind. The court found that the testimony was relevant to understanding M.U.’s conduct during and after the crimes. The court’s findings suggested that M.U. acted in a manner so as not to further agitate an angry and intoxicated Hutchins and to protect her children. M.U.’s testimony offered reasons why she went to work after the assault and why she waited to report Hutchins’s crimes. The court also limited the State’s ability to question M.U. in detail about Hutchins’s prior behavior and found that the State’s limited questions would not result in unfairly prejudicial testimony. Thus, the trial court assessed the relevancy and prejudicial effect of M.U.’s testimony when it decided to admit this evidence. The court properly exercised its discretion in admitting this evidence. See State v. Jensen, 2011 WI App 3, ¶75, 331 Wis. 2d 440, 794 N.W.2d 482. The postconviction court did not err in denying this portion of Hutchins’s motion without a hearing.

(¶14). It also rejects a related ineffective-assistance claim regarding the prosecution’s opening statement about his alleged prior violence. (¶¶15-17).

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