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Evidence that defendant asked victim to lie and choked her admitted as “other acts” evidence

State v. Daniel K. Rogers, 2012AP186-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

The defendant, having been charged with sexual assault and released on bond, allegedly choked his victim to make her to lie on his behalf at trial. The circuit court admitted this as § 904.04(2) “other acts” evidence at the sexual assault trial, and the COA affirmed because the evidence showed consciousness of guilt.

There’s a dispute over what the victim actually said at trial.   According to Rogers, the victim did not testify that he asked her to lie at trial and then he choked her in an effort to gain her cooperation.  Rather, he asked her to lie, she agreed to do so, and then he choked her.  The State separately charged Rogers for the choking incident but it wanted to use the evidence at the sexual assault trial to show obstruction of justice and consciousness of guilt.  Rogers argued that the victim’s description of the sequence of events was not probative of these issues.  See ¶¶8-9.

The court of appeals repeatedly acknowledged that the victim’s testimony was “unclear.”  But it held that Roger’s interpretation was “not a reasonable understanding of the victim’s testimony.”  Slip op. ¶8.  Applying State v. Sullivan‘s 3-part test for the admission of “other acts evidence”, it upheld the circuit court.  The evidence was admitted for a proper purpose under § 904.04(2), it was probative of Roger’s consciousness of guilt, and its probative value offset the danger that it would be unfairly prejudicial to him. Slip op.¶11.


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