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Defense win! Circuit court properly excluded other acts as propensity evidence

State v. Clinton D. Clucas, 2022AP965, 12/30/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

This is a pretrial state’s appeal under Wis. Stat. § 974.05(1)(d)2.. The trial court excluded three of the four prior incidents the state proposed to offer as evidence in Clucas’s trial for disorderly conduct with the domestic abuse enhancer. The court of appeals affirms, concluding the state’s proffered “permissible purpose” for the evidence is really just propensity by another name.

Clucas was separated from his wife, A.B. The state alleges that during an exchange of the pair’s children, Clucas “got in the face” of his wife making various accusations and slapped the back of her head.

At trial, the state wished to have the jury hear about four prior events. Two involved Clucas and a prior girlfriend, C.D. In the first, he allegedly threatened to kill her, broke her cell phone, choked her, and dragged her across the floor. In the second, C.D. said he’d twisted her arm and pushed her across the room into a couch. In a third alleged prior act involving A.B., the state says Clucas pushed her, grabbed her arm and choked her.

Though the circuit court admitted a fourth act involving A.B., it excluded the above-described ones under the familiar test described in State v. Sullivan, 216 Wis. 2d 768, 771-73, 576 N.W.2d 30 (1998). That’s a three-step inquiry requiring the proponent of evidence about a prior act to first show that it’s being offered for a permissible purpose. A permissible purpose is, basically, any purpose other than a showing that the person who committed the prior act is the sort of person who commits such acts–and is thus likely to have committed some act in question at the trial.

So, for example, it’s not a proper purpose, in the trial of a person accused of a physical assault, to introduce evidence about other, earlier assaults in an attempt to show that the defendant is assault-prone (and thus likely committed the assault for which he or she is on trial). This doesn’t mean evidence about prior assaults can’t be admissible, though: they can be, if they tend to establish some other relevant fact. The statute Sullivan construed, Wis. Stat. § 904.04(2)(a), gives non-exhaustive list of ways a prior act might be relevant other than to show that a person has a propensity to commit such acts: “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

If the proponent of other-acts evidence can point to a permissible purpose, the inquiry moves to the next two steps: (2) is the evidence relevant and probative for this purpose, and (3) if it is, should it nevertheless be kept out because its prejudicial effect substantially outweighs its probative value? All three of these factors are interpreted more loosely–that is, more favorably to the state–in criminal trials charged as acts of domestic abuse. State v. Dorsey, 2018 WI 10, ¶35, 379 Wis. 2d 386, 906 N.W.2d 158.

Here, the state ticks off several of the statutory permissible purposes (including “motive, intent, and absence of mistake or accident”) but then adds “pattern of behavior.” You might think evidence going to a “pattern of behavior” sounds an awful lot like propensity evidence: Clucas, the state is suggesting, followed his usual “pattern” in committing the charged acts; i.e., he acted in the way his prior acts show he tends to act. Your suspicions might then be bolstered when the state elaborates on how its proffered evidence is relevant: they show that Clucas “engages in abusive contact against his then girlfriend or wife when he feels that the relationship is showing signs of deterioration.” That sounds an awful lot like an invocation of Clucas’s character for committing acts like the one with which he’s charged, does it not?

The court of appeals thinks so too. It notes that some of the state’s proffered purposes–intent and motive–are not implicated in this disorderly conduct case. (¶38). It goes on:

Significantly, the State itself based all of its proffered purposes on the following proposition: “Throughout each of these prior acts and the present case, the defendant has shown that he engages in abusive contact against his then girlfriend or wife when he feels that the relationship is showing signs of deterioration.” Offering the other-acts evidence to show that Clucas is argumentative and abusive in his relationships is to show Clucas’s character and propensity for being argumentative and abusive in his relationships. The only conceivable purpose of introducing this evidence is to ask the jury to make the inference that, because Clucas is argumentative and abusive with his partners, he is the type of person who was argumentative and abusive when his then-wife came to pick up their children in the present case. While it may be true that he has that character or propensity, it runs afoul of the reason for the permissible purpose requirement, which is to ensure that the jury convicts not because of that inference but because the State has proved beyond a reasonable doubt that Clucas did engage in disorderly conduct in the case before it. See Marinez, 331 Wis. 2d 568, ¶25 (a purpose is impermissible if it “depend[s] upon the forbidden inference of character as circumstantial evidence of conduct.” (quoted source omitted)).


The state also argued that the circuit court erred in requiring that “witnesses with personal knowledge of these incidents” would have to testify if it were to change its mind and allow the state’s proffered evidence in. The court of appeals rejects this argument as unripe: none of the events that would make it an issue have yet come to pass. (¶46).

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