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Defendant’s history of controlling and abusing girlfriends admissible as “other acts” evidence

State v. Angus Murray McArthur, 2016AP2315-17-CR, 2/20/18, District 1 (not recommended for publication); case activity (including briefs)

This opinion recounts in detail MacArthur’s controlling, violent behavior toward K.W., the victim in this case, and toward 4 of his previous girlfriends. The lead issues are (1) whether McArthur’s conduct toward the previous girlfriends was admissible as “other acts” evidence, and (2) whether trial counsel was ineffective for not objecting when, during the jury trial, a detective read K.W.’s statement which described MacArthur’s “relationship rules” and his escalating violence toward her.  The court of appeals answers both questions “no.”

The prior abuse satisfied the 3-part test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

¶23 As to the first question, the State argues that evidence of McArthur’s conduct with previous girlfriends was offered for multiple permissible purposes including identity, motive and state of mind. The trial court agreed, noting that the evidence “show[ed] basically an escalation of different methods of operation by [McArthur]. Which does, in fact, develop [McArthur’s] state of mind, which is connected to his motive…. And all these other acts reveal a striking pattern of controlling and violent behavior by the defendant of his girlfriends.” The trial court identified multiple permissible purposes for admitting the testimony and explained its rationale. Accordingly, the trial court’s findings that this testimony was offered for multiple permissible purposes were not erroneous.

¶24 The testimony was also relevant. McArthur’s girlfriends testified about a disturbing pattern of conduct involving: controlling behavior, punching, strangulation, gruesome death threats to the girlfriends and/or their family members, stalking and harassment. McArthur’s violent behavior towards his previous girlfriends stemmed from what he perceived to be defiance of his rules and was often motivated by jealousy. These assaults are strikingly similar to the assault K.W. suffered on the night of July 13, 2013, and the morning of July 14, 2013. The testimony of McArthur’s former girlfriends was therefore relevant to establishing McArthur’s motive for his assault of K.W., as well as his state of mind and his identity. Specifically, McArthur’s motive to control K.W.’s drinking habits and her contact with other men; his anger and jealousy when K.W. broke his rules; and his identity as her attacker, as McArthur claimed he was with friends on July 13 and July 14, 2013. As the trial court noted, McArthur’s actions are “basically a signature and a footprint.” The trial court properly determined that the other acts evidence was relevant.

¶25 Lastly, the trial court correctly determined that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. McArthur himself made the other acts testimony necessary. When the State filed its motion to admit the evidence, it appeared from McArthur’s jail house phone calls and letters to K.W. that he was attempting to convince K.W. to recant her allegations. See State v. Hunt, 2003 WI 81, ¶59, 263 Wis. 2d 1, 666 N.W.2d 771 (Other acts evidence is permissible to show the victims’ state of mind, to corroborate information provided to the police, and to establish the credibility of victims and witnesses when a victim recants initial statements to police.). McArthur claimed that he did not attack K.W., but rather, K.W. was attacked by “Mike,” whom she met at a bar shortly before her attack. Thus, McArthur put the issue of his identity before the jury himself.

The detective’s reading of K.W.’s statement was admissible as a “prior consistent statement.”

¶36 Prior consistent statements of a witness are admissible as an exception to the hearsay rule if: (1) the declarant testifies at trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant’s testimony; and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. See WIS. STAT. § 908.01(4)(a)2.; State v. Mares, 149 Wis. 2d 519, 525- 26, 439 N.W.2d 146 (Ct. App. 1989). The rationale underlying the prior consistent statement exception to the hearsay rule is that if a witness related a version of the events consistent with his courtroom testimony prior to testifying in court, the existence of a prior consistent statement rebuts the suggestion that the courtroom testimony is not trustworthy. See State v. Peters, 166 Wis. 2d 168, 177, 479 N.W.2d 198 (Ct. App. 1991).

¶37 McArthur’s defense theories were that K.W. lied about McArthur being her attacker, that “Mike” was most likely the perpetrator, and that K.W. was not credible. K.W.’s statement was therefore admissible to rebut the defense’s contention that K.W. fabricated the story of her attack. Moreover, we reject McArthur’s implication that the determining factor in the verdict was Roberson’s reading of K.W.’s statement. The evidence against McArthur was overwhelming and included testimony from K.W., his former girlfriends, and medical staff. McArthur himself admitted to abusing his former girlfriends and told the jury that K.W. “broke[] the cardinal rule” by having him arrested. The jury was also privy to text messages and letters between McArthur and K.W.


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