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State v. Chad W. Voeller, No. 2009AP001596-CR, District II, 7/28/10

court of appeals decision (3-judge, not recommended for publication); for Voeller: Steven G. Richards; BiC; Resp.; Reply

Counsel – Sanction – Appendix

¶9 n. 3:

Contrary to the State’s certification, the appendix does not include the trial court’s findings or opinion. The transcript of the oral findings and opinion should have been included in the appendix. Wisconsin Stat. Rule 809.83(2) provides that failure to follow the rules of appellate procedure is grounds to impose a penalty on counsel or take any other action the court considers appropriate. Therefore, a $150 sanction is imposed against the State for filing a false appendix certification. See State v. Bons, 2007 WI App 124, ¶¶20-25, 301 Wis. 2d 227, 731 N.W.2d 367. The State shall pay the $150 sanction within fourteen days of this opinion.

This isn’t an isolated example of the principle that the court takes the appendix certification requirement seriously, very seriously. You should too. $150 worth of serious, if you want to quantify just how serious. More than that, if you want to consider the unquantifiable loss of credibility with the court for signing a demonstrably false statement. But this particular sanction holds some separate if minor interest because it runs against “the State,” not the offending counsel. Authority does exist for the idea that because it is formally designated a party to the litigation, “the State” is subject to assessment for jury costs under § 814.51, Flottmeyer and Monroe Co. D.A.’s Office v. Circuit Court for Monroe Co., 2007 WI App 36, ¶14. But isn’t that something else? The State didn’t sign the appendix certification, an individual attorney did. Well, this is someone else’s problem, so we will leave it at that.

Other Crimes Evidence – Context

Evidence of Voeller’s prior alleged sexual assaults of the stalking complainant’s daughters (allegations he was previously tried for and acquitted of) was potentially probative of the “context” of the stalking charge. The trial court ruling excluding this evidence wasn’t, the court of appeals holds, based on properly reasoned analysis and is reversed.

¶16      … The State argued that Voeller’s past contacts with Warriner in the context of the sexual assault trial are probative as to Warriner’s fear of Voeller—an essential element of the stalking charge.

¶17      … The court’s conclusion that the other acts must be similar to the crime charged demonstrates a misunderstanding of the law as it applies to other acts evidence offered to demonstrate context and an essential element of the crime.

¶18      As discussed below, the court also rejected admission of the evidence based on its determination that the sexual assault allegations were not credible. However, as it relates to stalking, the State sought to introduce the other acts evidence to provide the history, or context, of Voeller’s relationship with Warriner and her children. The State sought to introduce the fact that Warriner’s three daughters had accused Voeller of sexually assaulting them in 2007 and, whether true or false, this could cause Warriner to reasonably fear bodily harm to herself or her daughters when Voeller began harassing her in August 2008. See State v. Hunt, 2003 WI 81, ¶59, 263 Wis. 2d 1, 666 N.W.2d 771 (other acts evidence relevant and admissible to prove victim’s state of mind). It was the State’s contention that these sexual assault allegations made in 2007 formed the launching pad for Voeller’s increasingly harassing behavior toward Warriner—entering Warriner’s laundry room through a window without her consent and repeated phone calls—which culminated in his alleged break-ins at the downstairs apartment of her residence in September 2008 and February 2009.

¶19      As in Payano, the evidence was offered to provide a complete explanation of the circumstances surrounding Voeller’s otherwise inexplicable behavior.  Unlike other acts evidence offered to prove intent, the evidence need not be similar to the crime charged because it provided the context for the charged crime. …

A false claim would explain Warriner’s fear of Voeller? Maybe the idea is that Voeller would be motivated to harass Warriner because of prior false claims against him. Contrast, State v. Miguel E. Marinez, Jr., No. 2009AP567-CR, which held that a prior act of misconduct had no explanatory benefit for the current charge. Note further, the grant of review in that case, and thus the potential for a very expansive view of “context” as a basis for misconduct evidence admissibility.

Other holdings of potential interest:

  • The prior acquittal doesn’t preclude admissibility, ¶25, citing State v. Landrum, 191 Wis. 2d 107, 117, 528 N.W.2d 36 (Ct. App. 1995). This is certainly a non-controversial result; failure to prove a crime beyond reasonable doubt of course doesn’t mean a subsequent fact-finder can’t determine its existence by a lesser standard. Tangent: double jeopardy prevents the prior acquittal from being used as an element of a subsequent charge, Feela v. Israel, 727 F. 2d 151 (7th Cir. 1984); but that is something else.
  • Evidence that Voeller viewed child pornography at the local library is relevant to his “continued interest in minor girls and to prove motive for” burglaries with which he is also charged, ¶28, citing State v. Normington, 2008 WI App 8.
  • Rather than engage its own, independent review and deem the evidence at issue admissible, the court of appeals determines that the proper course is remand for more refined consideration by the trial court, ¶31.
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