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Court of appeals affirms admission of other acts evidence to prove child sexual assault

State v. Marco A. Lopez, Sr., 2018AP159-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs).

The State charged Lopez with child sexual assault of two victims and moved to admit the of testimony of two additional relatives who said that they were also assaulted by Lopez for years when they were the same ages as the victims. Lopez conceded the first two elements of the “other acts” evidence test. State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998),  §904.04(2) and §904.03. He argued that the trial court incorrectly weighed the probative value of the evidence against the danger of unfair prejudice.

According to Lopez, the State offered the other acts evidence to show that he committed the charged acts for the purpose of sexual gratification. Lopez denied doing the charged acts. However, he conceded that if he was found to have done them, then his motive was sexual gratification. Thus, the State did not need, and the circuit court should not have admitted, other acts evidence. Its admission only served to prejudice his defense. Opinion, ¶17.(citing State v. Payano, 2009 WI 86, ¶81, 320 Wis. 2d 348, 768 N.W.2d 832).

The court of appeals didn’t buy that argument. It held that the State must prove all elements of a charged crime even if one element is not disputed. Opinion, ¶18 (citing State v. Veach, 2002 WI 110, ¶77, 255 Wis. 2d 390, 658 N.W.2d 447). It also rejected Lopez’s characterization of the State’s reasons for seeking admission of the “other acts” evidence. It wasn’t to prove sexual gratification. It was to show “proof of plan,” which was very much in dispute.

¶20 The third problem with Lopez’s argument is that it misperceives what “the proffered proposition” was, and thus the extent to which it was “in substantial dispute.” See Payano, 320 Wis. 2d 348, ¶81 (“The main consideration in assessing probative value of other acts evidence ‘is the extent to which the proffered proposition is in substantial dispute[.]’”). The proffered proposition was not that Lopez derived sexual gratification from the acts but that Lopez abused two young children who were related to him over a period of years and coerced the silence of one of them by threatening to kill the child’s mother. In his testimony, Lopez denied every aspect of this proposition. It was therefore in substantial dispute. In addition, the greater latitude rule applies in this case, and its purpose is to ensure “the more liberal admission of other crimes evidence in sex crime cases in which the victim is a child.” See Davidson, 236 Wis. 2d 537, ¶51.

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