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In assault case alleging accosting woman in vehicle, COA holds similar incident the same day admissible other acts

State v. Jose A. Arevalo-Viera, 2021AP1937, 7/25/23, District 1 (not recommended for publication); case activity (including briefs)

In a case alleging a disturbing sexual assault, the court of appeals exercises a deferential standard of review to uphold the lower court’s decision to admit other-acts evidence regarding an alleged attempted assault occurring on the same day.

Arevalo-Viera was convicted of multiple serious felonies following a jury trial. (¶1). The State alleged that Areval0-Viera and a co-actor abducted a woman on Interstate 794 in Milwaukee and, while the co-actor drove, Arevalo-Viera sexually assaulted her. (Id.) Following a thorough police investigation involving Google Maps location data, a fingerprint, and records pertaining to the victim’s stolen credit card, police ultimately tracked down Arevalo-Viera in Kentucky. (¶5).

Prior to trial, the State then moved to admit other-acts evidence: an incident occurring on the same day as this alleged assault in Kenosha, where Arevalo-Viera was identified by a witness as being involved in an apparent attempted abduction, wherein a woman at a red light was followed by a truck similar to the one in this case and accosted at gunpoint. (¶6). The circuit court, over Arevalo-Viera’s objection, granted the State’s motion, finding that it had been offered for a permissible purpose, identity. (¶8). It also concluded that “method of operation,” “absence of mistake” and “intent” would also be permissible purposes for this evidence. (¶10-11). The jury heard Arevalo-Viera’s account of a consensual encounter with the alleged victim in this case and he was ultimately found guilty on all counts (although one conviction was for a lesser-included and less-serious charge of sexual assault). (¶18).

On appeal, Arevalo-Viera renews his challenge to the court’s discretionary decision to admit the Kenosha evidence, arguing that the circuit court’s reasoning was defective as it “failed to demonstrate its reasoning, referencing specific facts in the record, when it applied the necessary analytical framework.” (¶20). Although there’s a lot of discussion as to the first prong of the Sullivan test, that discussion is largely irrelevant given Arevalo-Viera’s concession “that the first prong of Sullivan, the acceptable purpose of the evidence, was satisfied by the State.” (¶23). Instead, Arevalo-Viera focuses his challenge on the court’s findings with respect to the second and third prongs. In his view, the court improperly focused on identification in assessing these two prongs and failed to “individually analyze how any other acceptable purposes of the evidence were relevant[…].” (¶24). He also alleges that the court failed to properly to conduct the weighing test on step three when it determined that the probative value of this evidence was not outweighed by the danger of unfair prejudice. (Id.).

COA first rejects Arevalo-Viera’s “broad” argument that the court failed to conduct the proper legal inquiry. (¶25). It also concludes that, to a large degree, the court’s on-the-record explanation is immaterial, as it has an obligation to independently review the record and determine whether there was an “appropriate basis” for the court’s discretionary decision. (Id.) In COA’s view, the four identified purposes–“identity, motive, intent, and absence of mistake” (¶27)–“combine to show Arevalo-Viera’s method of operation, which was highly relevant to the elements of the State’s case.” (¶33). This evidence was “relevant to show Arevalo-Viera’s identity or imprint, his intent, his motive, and his lack of innocent mistake.” (Id.). It had “probative value to understand what happened” on the night of the alleged attack. (Id.).

Obviously, the foregoing analysis is a highly-condensed recitation of the fact-dependent discussion of Sullivan’s second prong in this dense decision. As COA swatted away all of Arevalo-Viera’s arguments–including his attempts to argue that evidence of identity was somehow categorically irrelevant given his testimony of a consensual encounter–we won’t try to take you into the weeds. But if you have an other-acts case of this nature, the decision and briefs might be a useful read.

As to the third prong of Sullivanthe court deploys its exceedingly deferential standard of review for discretionary decisions to uphold the circuit court’s weighing of the proffered other-acts evidence. (¶35). Crucial to this outcome is the circuit court’s use of multiple instructions intended to ameliorate any potential misuse of the Kenosha evidence by the jury. (Id.). Given a presumption that jurors follow the instructions they are given–and Arevalo-Viera’s alleged failure to offer anything more than speculation on this point–COA affirms. (¶36). Moreover, even if the court erred, COA is confident that any alleged error was harmless given the strength of the State’s case. (¶40).

Although COA, as is its wont, slightly muddles the harmless error test (concluding the error was harmless because “there is no possibility a rational jury would have found Arevalo-Viera not guilty, if the other acts evidence had been excluded from the trial” instead of assessing whether there is a “reasonable doubt that a rational jury would have found the defendant guilty absent the error”), any semantic disagreements in this case seem irrelevant given COA’s ample discussion of the facts.

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