On Point

State v. Joshua D. Schultz, Clark County Case No. 10-CM-138, 10/12/10

Clark County circuit court decision; for Schultz: William Poss, SPD Trial, Black River Falls

The complaint in this matter alleges that on June 10, 2010, the defendant was carrying a concealed weapon, a knife in the waistband of his pants which was covered by his shirt. The State alleges this is contrary to section 941.23, Wis. Stats. Defendant challenges the statute as unconstitutional “on its face, and because the statute is overbroad, abridges his privileges or immunities as a United States citizen, and violates his due process rights as guaranteed by the Second and Fourteenth Amendments.” Def. Brief, p. 2.

…

… (T)his court agrees with Justice Clarence Thomas’s McDonald concurrence and application of the Fourteenth Amendment to this matter. In essence, no State shall abridge the privileges and immunities of citizens of the United States. As Justice Thomas demonstrates, the right to keep and bear arms is a fundamental right, not created by the Second Amendment, but secured or recognized by it. The right to keep and bear arms is therefore not to be abridged byany State law. Sec. 941.23 must also fail under the application of the Fourteenth Amendment.

In sum, sec. 941.23 is unconstitutional on its face as overly broad in violation of the Second and Fourteenth Amendments of the United States Constitution.

That’s it in a nutshell: a circuit court has invalidated our CCW statute. Well, if you’re not lucky enough to practice in Clark County, then so what? you may ask. The answer: it turns out that you can cite the decision in any court in the state, Brandt v. LIRC, 160 Wis. 2d 353, 361-63, 466 N.W.2d 673 (Ct. App. 1991), aff’d, 166 Wis. 2d 623, 480 N.W.2d 494 (1992), so the better question is, How can you not take advantage of the decision?

Very rough summary: Because the CCW statute flatly prohibits behavior entitled to constitutional (2nd A) protection as a “fundamental right,” the statute must survive “strict scrutiny” to remain standing. The statute isn’t “narrowly tailored” to achieve the governmental interest of health, safety and welfare of the citizenry, indeed, has been declared by the Wisconsin supreme court to be an “exceptionally restrictive scheme.” Nor is the ban the “least restrictive means” of achieving the governmental goals.”

Nice reference along the way to the “strong argument” of John Lott “that guns, and concealed carry of them, makes citizens safer.” (Possible aphoristic variant, but not necessarily one you’d want to quote to a court: “An armed society is a polite society.”)

It might be interesting to ponder how we’ve arrived at the New New Federalism, where you can argue greater personal liberty interests under the United States Constitution than Wisconsin’s (at least in certain respects such as this one). No need. More important that you leave philosophizing to another time and go file your own CCW cases.

State v. Salvador Cruz, 2010AP911-CR, District 2, 10/13/10

court of appeals decision (1-judge, not for publication); for Cruz: Matthew S. Pinix; BiC; Resp.; Reply

Evidence of the effect of the defendant’s (alleged disorderly) conduct was relevant, without a showing of “proximity” to that conduct:

¶13      A.S. instructs that “[i]n addition to considering the potential effects of a defendant’s conduct in disorderly conduct cases … prior cases also indicate that the actual effects of a defendant’s conduct are probative.”  Id., ¶38; see also State v. Maker, 48 Wis. 2d 612, 616-19, 180 N.W.2d 707 (1970) (citing to the officer’s testimony regarding the effect of the defendant’s conduct as support for the trial court’s finding of guilt).  Further, the A.S. court expressly rejected the notion that WIS. STAT. § 947.01 requires an immediate physical and visible reaction by those subject to the conduct.  A.S., 243 Wis. 2d 173, ¶40.  It considered evidence of an individual reporting the defendant’s conduct to the police the day after it happened and the subsequent efforts by the police in conducting interviews regarding the defendant’s threats to be probative.  Id., ¶39.  The court stated:  “These actual effects of [the defendant’s] conduct support our finding that his conduct tended to cause or provoke a disturbance.”  Id.

Cruz became demonstrably distraught during a TPR proceeding and ventilated a bit to the caseworker. Later that day, Cruz left voice mail messages for the caseworker and her supervisor, indicating that he wanted the caseworker removed from his case, otherwise “something bad will happen”; and that “she had an ugly face and ugly attitude,” and so on. On appeal, Cruz challenges admissibility of evidence of the department’s reaction: a new caseworker was assigned, police now patrolled the building, which went on lockdown, photos of Cruz were posted at the reception desks, and a mass email with his photo was distributed. As the blockquote above shows, the court finds this evidence relevant. The court also rejects a related § 904.03, unfair-prejudice argument, ¶16 (“The evidence undoubtedly aided the jury in determining the extent to which the actions of Cruz were perceived as a threat.”).

Consolidated cases:

Camreta

Docket

Decision Below (9th Cir)

Question Presented (from SCOTUSblog):

Whether the Fourth Amendment requires a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused.

Cert. Petition

Brief Opposing Cert

SCOTUSblog page

Alford v. Greene

Docket

Question Presented:

Whether the Fourth Amendment requires a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused.

Decision below (9th Cir)

Petition for certiorari

Brief in opposition

SCOTUSblog page

Here’s the set-up by the 9th:

We are asked to decide whether the actions of a child protective services caseworker and deputy sheriff, understandably concerned for the well-being of two young girls, exceeded the bounds of the constitution. Specifically, the girls’ mother, Sarah Greene, alleges, on behalf of S.G., one of her children, that the caseworker, Bob Camreta, and deputy sheriff, James Alford, violated the Fourth Amendment when they seized and interrogated S.G. in a private office at her school for two hours without a warrant, probable cause, or parental consent. Sarah also argues that Camreta’s subsequent actions, both in securing a court order removing the girls from her custody and in subjecting the girls to intrusive sexual abuse examinations outside her presence, violated the Greenes’ familial rights under the Due Process Clause of the Fourteenth Amendment.

And here’s the nub of the holding:

Rather, we hold, as we did in Calabretta, that “the general law of search warrants applie[s] to child abuse investigations.” Calabretta, 189 F.3d at 814. Once the police have initiated a criminal investigation into alleged abuse in the home, responsible officials must provide procedural protections appropriate to the criminal context. At least where there is, as here, direct involvement of law enforcement in an inschool seizure and interrogation of a suspected child abuse victim, we simply cannot say, as a matter of law, that she was seized for some “special need[ ], beyond the normal need for law enforcement.” Ferguson, 532 U.S. at 74 n.7.

In short, applying the traditional Fourth Amendment requirements, the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances,17 or parental consent18 was unconstitutional. We follow the lead of our sister circuits and hold that in the context of the seizure of a child pursuant to a child abuse investigation, a court order permitting the seizure of the child is the equivalent of a warrant.19 See, e.g., Tenenbaum, 193 F.3d at 602; Doe v. Heck, 327 F.3d at 517; Gates v. Texas Dept. of Protective and Regulatory Servs., 537 F.3d 404, 429 (5th Cir. 2008). We therefore reverse the district court to the extent that it held that Alford and Camreta had not violated S.G.’s right to be free from an unconstitutional seizure.

The court went on to find against liability (because of qualified immunity, which requires that a governmental duty be clearly established before liability may be assigned). If the cert petitions are any guide, the case turns on the setting (school) and context (seizure of the person as potential witness rather than suspected perpetrator); whether, that is, a New Jersey v. T.L.O./Terry balancing test rather than the probable cause/warrant requirement should apply.

Docket

Decision Below (New Mexico supreme court)

Question Presented:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Cert. Petition

State’s Brief Opposing Cert

SCOTUSblog page

Follow-up to Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (proof of nature and quantity of controlled substance via notarized affidavit rather than live testimony violated confrontation). As the cert petition puts it, “State v. Bullcoming raises the question of whether the prosecution complies with that holding by introducing forensic reports through the in-court testimony of someone, such as a supervisor, who did not perform or observe the testing discussed in the reports.” Here’s how the New Mexico supreme court finessed the problem:

{19} However, the Confrontation Clause permits the admission of testimonial statements “so long as the declarant is present at trial to defend or explain it.” Crawford, 541 U.S. at 59 n.9 (citation omitted). Although the analyst who prepared Exhibit 1 was not present at trial, the evidence revealed that he simply transcribed the results generated by the gas chromatograph machine. He was not required to interpret the results, exercise independent judgment, or employ any particular methodology in transcribing the results from the gas chromatograph machine to the laboratory report. Cf. Melendez-Diaz, 557 U.S. at ___, 129 S. Ct. at 2537-38 (stating that the methodology used in generating the reports “require[d] the exercise of judgment and present[ed] a risk of error that might be explored on cross-examination”); State v. Aragon, 2010-NMSC-008, ¶ 30, __ N.M. __, __ P.3d ___ (No. 31,187, February 12, 2010) (holding that “[t]he determinations of whether a substance is narcotic and its degree of purity . . . must be classified as ‘opinion,’ rooted in the assessment of one who has specialized knowledge and skill”). Thus, the analyst who prepared Exhibit 1 was a mere scrivener, and Defendant’s true “accuser” was the gas chromatograph machine which detected the presence of alcohol in Defendant’s blood, assessed Defendant’s BAC, and generated a computer print-out listing its results. See United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (“[T]he Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial.”); United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007) (“The raw data generated by the diagnostic machines are the ‘statements’ of the machines themselves, not their operators.”); United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005) (concluding that the computer-generated header information accompanying pornographic images retrieved from the Internet “was neither a ‘statement’ nor a ‘declarant’”). Under these circumstances, we conclude that the live, in-court testimony of a separate qualified analyst is sufficient to fulfill a defendant’s right to confrontation. See People v. Rutterschmidt, 98 Cal. Rptr. 3d 390, 411-12 (Cal. Ct. App. 2009), review granted and opinion superseded by People v. Rutterschmidt, 220 P.3d 239 (2009) (holding that the testimony of a qualified analyst who did not prepare the defendant’s toxicology report was admissible under the Confrontation Clause).

Any of this sound familiar? Might be because of State v. David Barton, 2006 WI App 18 (expert opinion of crime lab analyst, presenting own conclusions about tests performed by non-testifying analyst, didn’t violate confrontation):

¶16 Like the unit leader’s testimony in Williams, Olson’s testimony was properly admitted because he was a qualified unit leader presenting his individual, expert opinion.  Olson not only examined the results of Lyle’s tests, but he also performed a peer review of Lyle’s tests.  He formed his opinion based on his own expertise and his own analysis of the scientific testing.  He then presented his conclusions to the jury, and he was available to Barton for cross-examination.  Thus, Olson’s testimony satisfied Barton’s confrontation right and is admissible under the supreme court’s decision in Williams.

¶17 Barton contends that Crawford v. Washington, 541 U.S. 36 (2004), overrulesWilliams “to the extent Williams is interpreted as permitting the State to rely upon inadmissible hearsay as the basis for Olson’s testimony in this case.”  We disagree.  …

¶20 The holding in Crawford does not undermine our supreme court’s decision in Williams. Williams is clear: A defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another. Williams, 253 Wis. 2d 99, ¶¶9, 11. We do not see, and Barton fails to explain, how Crawford prevents a qualified expert from testifying in place of an unavailable expert when the testifying expert presents his or her own opinion.

For a more recent iteration: State v. Earnest Jean Jackson, 2009AP1449-CR, 4/27/10:

¶28      In State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, the Wisconsin Supreme Court held that “[a] defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another.”[5] Barton, 289 Wis. 2d 206, ¶20.  More specifically, Williams held that a defendant’s confrontation rights are satisfied by “the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders [his or] her own expert opinion.”  Id., 253 Wis. 2d 99, ¶20.  The court noted that “[t]he critical point … is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others.  In short, one expert cannot act as a mere conduit for the opinion of another.”[6] Id., ¶19.

In a fundamental sense, the Barton-Williams rule expresses the long-standing assumption that a witness may base his or her expert opinion on what would otherwise be inadmissible hearsay. That assumption is problematic (not least because it requires taking the underlying data — the very stuff that would be inadmissible hearsay without the witness who generated it — as true) but it’s certainly well-entrenched. Nonetheless, whatever else might be said, the Barton-Williams rule doesn’t involve a “mere scrivener,” which marks a possible point of distinction with the pending Bullcoming. Neither Bullcoming nor New Mexico cite this line of Wisconsin cases in their respective documents, and perhaps it will remain unaffected by the outcome. When you get right down to it, both Bullcoming and Barton-Williams involve an expert testifying to an opinion based on the work of a non-testifying analyst: for confrontation clause purposes, does it really matter whether the non-testifying witness is a “mere scrivener”? Isn’t the Question Presented, quoted above, broad enough to cover the Burton-Williams situation? We should find out soon enough.

Confrontation expert Richard Friedman points out that the same day the New Mexico supreme court decided Bullcoming, it came to a different conclusion in a case where a lab report prepared by one expert came in through the testimony of a different expert, State v. Aragon, 225 P.3d 1280. A testifying expert may rely on the facts or data of another, non-testifying expert; but may not rely on the opinion of that other expert. (“{26} Therefore, we must determine whether Young’s testimony was an expression of his own opinion or whether he was merely parroting Champagne’s opinion. Our review of the record leads us to the conclusion that Young was merely repeating the contents of Champagne’s report and her opinion.”) Aragon appears to be consistent with Barton-Williams, and in any event isn’t before the Supreme Court. Interestingly, though, Friedman perceives that the two cases should yield the same result: “In Bullcoming, the court holds that one analyst can testify to the facts reported by an absent analyst; in Aragon, the court holds that one analyst cannot pass on the absent analyst’s opinions. I do not believe the distinction will hold.” Ultimately, then, the viability of Barton-Williams may be implicated, and if that rule interests you, then you’ll definitely want to keep an eye on this case. And also, State v. Mahlik D. Ellington, 2005 WI App 243 (confrontation clause doesn’t prohibit a witness from reading to the jury admissible medical records), whose holding also might be affected by Bullcoming.

Nathan Y. v. Tarik T., 2010AP992, District IV, 10/7/10

court of appeals decision (1-judge, not for publication); for Tarik T.: Philip J. Brehm

The court rejects the argument that under Steven V. v. Kelley H., 2004 WI 47, ¶36, summary judgment is inappropriate when the ground alleged is abandonment.

¶7        …  First, Steven V. explained that its discussion of the use of summary judgment procedure on grounds proven by documentary evidence versus those proven by non-documentary evidence was not “mean[t] to imply that the general categorization of statutory grounds in this and the preceding paragraph represent a definitive statement about the propriety of summary judgment in any particular case.”  Id., ¶37 n.4.  The court added:  “The propriety of summary judgment is determined case-by-case.”  Id.  Second, Steven V.’s holding that use of summary judgment procedure in the grounds phase does not violate the parent’s right to a jury trial or to procedural due process was not limited to certain grounds for termination.  Accordingly, we reject Tarik’s argument that summary judgment is always inappropriate when the alleged grounds for termination is abandonment.  We now turn to the submissions to determine whether summary judgment was appropriately granted in this case.

SJ was appropriate on the facts: the mother removed the child from Iowa to Madison, to escape abuse from Tarik, and Tarik failed to have any contact with them for a number of months. Although he asserted, in effect, that the mother obstructed his efforts to see the child, he didn’t deny that he knew where she worked, and had her email address and her parents’ residential address.

¶11      We conclude that the submissions fail to raise an issue of material fact concerning whether Tarik had good cause for failing to communicate with Lauren or Quincy from October 2007 to July 2008.  Tarik’s proposed reasons for failing to contact Lauren and Quincy during this time are nothing more than speculation, and are not supported by the summary judgment submissions.  Accepting as true Tarik’s assertion as fact that his communication with Quincy was controlled by Lauren, and that any gift or communication to Quincy would have to go through Lauren, neither constitutes good cause for failing to even attempt to contact Lauren about Quincy.  If Tarik had reasons constituting good cause for his failure to contact Lauren or Quincy, these reasons should have been provided in his summary judgment submissions.  Thus, while summary judgment is ordinarily inappropriate in termination of parental rights cases premised on a fact-intensive grounds for parental unfitness such as abandonment, Bobby G., 301 Wis. 2d 531, ¶40, the submissions in this case fail to present any factual dispute from which a reasonable inference could be drawn that Tarik had good cause for not communicating with Lauren about Quincy or with Quincy during this nine-month period.  Accordingly, we conclude that the circuit court properly granted Nathan’s motion for summary judgment as to grounds for termination.

Grant Co. DSS v. Stacy K. S., 2010AP1678, District IV, 10/7/10

court of appeals decision (1-judge, not for publication); for Stacy K.: Donna L. Hintze, SPD, Madison Appellate

The circuit court may take the parent’s admission telephonically at the grounds phase of a TPR; neither § 48.422(7)(a) nor § 807.13 requires physical presence.

¶16      Addressing first the requirements of Wis. Stat. § 48.422(7)(a),  the plain import of the requirement that the court “[a]ddress the parties present” is that the court engage in an on-the-record discussion, before all those appearing at the hearing, focused on the topics addressed in § 48.422(7)(a), namely the adequacy and clarity of a purported admission.  The import of “[a]ddress the parties present” is not that all who make appearances at a grounds hearing must be personally present.  There is no suggestion in the language of the statute that presence by telephone is prohibited.  Stacy made an appearance at the grounds hearing.  The fact that she elected to appear by telephone instead of in person does not mean that she did not make an appearance.

…

¶19      Turning to the requirements of Wis. Stat. § 807.13, we conclude that the circuit court did not violate its terms by permitting the stipulation to a telephone appearance by Stacy.  See § 807.13(2)(b). [4]  The circuit court properly admitted Stacy’s voluntary admission to grounds by telephone because the hearing was an evidentiary hearing under Wis. Stat. Ch. 48 and the parties stipulated to allowing the circuit court to admit such testimony, which was presumably subject to cross-examination if anyone had elected to cross-examine Stacy.

The legislation specifically requires personal presence for voluntary termination, § 48.41(2)(a), (b) (“appears personally”; “appear in person”). This shows that, had the legislature indeed intended to require personal presence at the grounds phase, it would have so provided, ¶18. The court’s discussion is limited to statutory construction, the caselaw being settled that due process doesn’t absolutely require physical presence, so long as the means of appearance is the functional equivalent, ¶11 n. 3.

State v. Daniel H. Hanson, 2010 WI App 146 (recommended for publication), affirmed 2012 WI 4; for Hanson: Chad A. Lanning; case activity

Fleeing, § 346.04(3)

Can you criminally “flee” the police, if what you’re actually doing is driving to the nearest police station to escape what you believe to be a beating at the hands of the officer you’re fleeing? Yep.

¶13      Here, Hanson contends that the State could not prove that he was “knowingly fleeing or attempting to elude” the police.  We understand Hanson to argue that there can be no fleeing-and-eluding charge if police know that he is going to stop his vehicle at a police station.  The theory is simply that he cannot be fleeing and eluding police if he calls 911 and tells the police where he is going.  However, the plain language of Wis. Stat. § 346.04 undermines Hanson’s position.  While Hanson speaks generally of fleeing “the police,” the statute expressly makes it a violation of the law to elude “any traffic officer.”  Sec. 346.04(3).  We agree with the State that the objectives of the statute are readily discerned from its language.  It seeks to foster cooperation with individual officers at the time of the initial stop while also discouraging unsafe driving.  Thus, as long as Hanson, after having received a visual or audible signal from a traffic officer or marked police vehicle, fled or attempted to elude that officer, it makes no difference under § 346.04(3) that he was fleeing to a police station.  We therefore turn to whether there was sufficient evidence at trial to support Hanson’s conviction for eluding an officer.

The issue is raised as a challenge to the sufficiency of proof. Hanson was pulled over for a traffic stop, and things escalated from there. The dispute at trial was whether Hanson or the cop (Klinkhammer) was the aggressor. No dispute that Hanson took off in his car, and called 911 to report that Klinkhammer had struck him, that Hanson feared for his life; and to ask for the nearest police station. The matter in factual dispute can’t be resolved by the appellate court, of course, so Hanson is constrained to take the undisputed facts and argue that as a matter of law they show lack of elemental proof. Nothing in the opinion suggests that self-defense, or some comparable defense, wasn’t available to Hanson; to the contrary, the court alludes to self-defense having been argued to the jury, ¶8. That issue, turning as it did on the disputed question of who was the aggressor, would have been solely for the fact-finder to resolve.

Evidence – Character Trait of Victim

The court rejects an interest-of-justice argument that exclusion of evidence of Klinkhammer’s character for aggressiveness violated § 904.04(1)(b) (relating to admissibility of pertinent character trait of “victim”):

¶20      The admission of character evidence under Wis. Stat. § 904.04(1)(b) depends, as does all evidence, on its relevance.  Here, the trial court found that the “label” of victim did not apply to Klinkhammer under the facts of this case and, therefore, § 904.04(1)(b) did not apply.  The court stated, “The charges here of fleeing an officer and two counts of obstructing to this Court’s way of thinking are victimless crimes….  It’s a question of whether, in his actions, [Hanson] created a victim.  I don’t see in this set of facts where a victim was created.”  We see no error in the trial court’s analysis.  While the testimony underlying Hanson’s defense clearly portrayed Klinkhammer as the aggressor, the evidence did not support a finding that Klinkhammer suffered injury, sustained losses or was otherwise victimized so as to make relevant the proffered character evidence.  The trial court’s exclusion of the § 904.04(1)(b) victim character evidence was not error.  The record reflects that the court considered the facts, applied the correct law, and reached a reasonable determination. See Alsteen, 108 Wis. 2d at 727.

¶21      Further, the exclusion of this character evidence did not prevent the real controversy from being tried.  The jury heard Hanson’s testimony that Klinkhammer screamed “at the top of his lungs,” took out his baton, acted “gruffly” and “angrily” in taking Hanson’s license, grabbed him, ripped his shirt, and struck him on the back of the head. The jury also heard testimony from four character witnesses that Hanson is a truthful and fair person.  We agree with the State that the exclusion of testimony from a single witness as to Klinkhammer’s reputation for being “hot-headed” did not prevent the real controversy from being fully tried.

State v. Haase, 2006 WI App 86 (police department not entitled to restitution for damages incurred to squad car in pursuit of fleeing driver, because “the officers,” not the department, were the “direct victims” of the offense), distinguished: “That an officer can be a victim of the crime of eluding an officer for purposes of restitution does not mean that an officer is victimized as a result of every such crime,” ¶19. The court’s analysis seems a bit pat; not that it’s necessarily wrong, just that it isn’t so obviously correct that a toss-away line carries the day. “Victim” is broadly defined, at least in § 950.02(4)(a), as any “person against whom a crime has been committed” (well, sure; but sometimes belaboring the obvious is a necessary exercise).  Also, State v. Howard-Hastings, 218 Wis. 2d 152, 156, 579 N.W.2d 290 (Ct. App. 1998), favorably cites the dictionary definition (again, for restitution purposes) as a “person or thing killed, injured etc. as a result of another’s deed, or accident, circumstances etc.” But we’re simply left wondering why “victim” would have a broad meaning in the criminal code and a different and narrower one in the evidence code. True, Klinkhammer doesn’t seem to have been physically injured – but what if he’d sought restitution for counseling due to emotional trauma suffered in the event? He’d have at least a colorable claim to status as a “victim” for restitution purposes. The court doesn’t reject such a possibility, indeed appears to concede that the officer in a fleeing case can be a victim, ¶19. In the court’s view, “victim” means one thing with respect to restitution, another with respect to character evidence; again, the court may well be right, but the reason for treating “victim” differently depending on the context isn’t quite that self-evident.