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COA upholds admission of prior confrontations with police in disorderly conduct trial

State v. Eric L. Vanremortel, 2018AP417, 9/4/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Vanremortel was charged with disorderly conduct for an incident in which he followed the wife of a retired police officer in her car, then repeatedly got out of his own car and shouted at her. The state sought to admit evidence of three prior incidents involving Vanremortel following and/or shouting at police officers, including one that happened a few weeks before the charged conduct and involved the wife’s retired-officer husband. The circuit court admitted the evidence, finding it satisfied the test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and Vanremortel appeals.

The court of appeals first rejects, as undeveloped, the state’s argument that Vanremortel has forfeited review of these issues because his trial lawyer agreed with the court that the prior acts were admissible. It then applies the three-step Sullivan framework thusly:

  1. Noting the similarities between the charged crime and the other instances of Vanremortel initiating confrontations with police, it agrees with the circuit court that they were offered for proper purposes: they demonstrate a “system of criminal activity”: he “has issues with law enforcement officers …. He follows them whether those are officers he’s had prior contact with or not.” (¶18). Regarding the prior following of the alleged victim’s husband a few weeks earlier, the court also agrees that it “completes the story” of the alleged offense. (¶19).
  2. The court finds the other acts relevant, in particular because the alleged victim had been warned about Vanremortel by her husband. His prior conduct thus explained why she might be “terrified” by his charged conduct, and thus why it “tended to cause or provoke a disturbance” under the circumstances–an element of disorderly conduct. (¶22).
  3. Finally, the court of appeals agrees with the lower court that the prejudicial nature of the evidence didn’t substantially outweigh its probative value–particularly as the trial court gave a limiting instruction. (¶¶25-26).
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