On Point: c. "Greater latitude" rule

State v. Jeffrey D. Lee, 2018AP1507-CR, 11/5/19, District 1 (not recommended for publication); case activity (including briefs)

At a jury trial for child sexual assault, the circuit court admitted “other acts” evidence that Lee had similarly assaulted 5 other children. The court of appeals called the “other acts” evidence of the 3rd, 4th and 5th children “textbook hearsay,” held that the circuit court erred in admitting it, but affirmed based on the harmless error doctrine.

State v. David Gutierrez, 2019 WI App 41, petition for review granted, 11/13/19, reversed in part and affirmed in part, 2020 WI 52; case activity (including briefs)

The circuit court allowed the state to admit testimony that Gutierrez’s DNA wasn’t found after testing of relevant evidence state as well as testimony about why his DNA might not be found; it did not, however, allow Gutierrez to admit evidence that the DNA of other men had been found. This was error.

State v. Christopher L. Gee, 2019 WI App 31; case activity (including briefs)

Christopher Gee was accused of sexually assaulting two women at knifepoint; one of the women had come to Gee’s apartment building because someone there had agreed to pay her for sex. He admitted to police that he’d had sex with this second woman, but said it was consensual and he’d simply refused to pay her afterward–something he said he often did. (¶10).

State v. Timothy P. Gregory, 2016AP1265-CR, District 2, 3/14/18 (not recommended for publication); case activity (including briefs)

In this lengthy decision, the court of appeals rejects multiple challenges Gregory makes to his convictions for child sexual assault that occurred in 1997.

State v. Anton R. Dorsey, 2018 WI 10, 1/25/28, affirming a per curiam court of appeals opinion, case activity (including briefs)

On Point has posted extensively about this case here regarding the court of appeals’ two opinions and here regarding Dorsey’s petition for review. This post focuses on the bottom line for trial lawyers because the majority opinion cements a change in Wisconsin law. Under common law, the “greater latitude rule” allows for the more liberal admission of “other acts” evidence in cases of sexual abuse particularly those involving children. Opinion ¶32. In 2013, the legislature amended §904.04(2)(b)1, and according to the majority, thereby extended this rule to a range of cases beyond child sexual abuse, including domestic abuse.  Specifically :

State v. Gary Lee Wayerski, 2015AP1083-CR, District 3, 10/31/17 (not recommended for publication), petition for review granted 3/13/18, and modified, and afford as modified, 2019 WI 11; case activity (including briefs)

Rejecting Wayerski’s argument to the contrary, the court of appeals holds that a police officer alleged to have sexually assaulted two teenage boys could be convicted under § 948.095(3)(a), which prohibits a person over age 21 “who engages in an occupation or participates in a volunteer position that requires him or her to work or interact directly with children” from having sexual contact or sexual intercourse with a child “whom the person works or interacts through that occupation or volunteer position.” The court also rejects the challenges Wayerski makes to the conduct of his trial.

Review of a per curiam court of appeals decision; case activity (including briefs)

Issues (composed by On Point based on the petition for review and the state’s response to petition for review)

Is the “greater latitude” rule created by case law regarding admission of other acts evidence in child sex cases codified by § 904.04(2)(b)1., which applies to admission of other acts evidence in cases involving an array of crimes in addition to child sex offenses?

Is evidence of a defendant’s criminal acts committed against a person other than the victim admissible under § 904.04(2)(b)1. to show a generalized motive or purpose by a defendant to “control” a person with whom he is in a relationship?

State v. Anton R. Dorsey, 2015AP648-CR, District 3, 12/6/16 (per curiam; not citable as precedent or for persuasive value), petition for review granted, 4/10/17, affirmed, 2018 WI 10; case activity (including briefs)

You may not cite this per curiam opinion as binding precedent or for persuasive value in any Wisconsin court, see § 809.23(3)(b), but On Point is telling you about it because the court of appeals concludes that the purported “greater latitude” rule in § 904.04(2)(b)1. is not a codification of the “greater latitude” rule created by case law regarding admission of other acts evidence in child sex cases. While you can’t cite this decision for authority, you may and should use the court’s reasoning for its conclusion to counter the claim of a prosecutor or circuit judge that § 904.04(2)(b)1. codifies a “greater latitude” rule.

State v. Joel M. Hurley, 2015 WI 35, 3/31/15, reversing  an unpublished per curiam court of appeals decision; opinion by Justice Gableman; case activity (including briefs)

Making full use of the “greater latitude of proof” rule, the recent precedent adopting a more liberal approach to admission of other-acts evidence, e.g., State v. Marinez, 2011 WI 12, 331 Wis. 2d 568, 797 N.W.2d 399, State v. Payano, 2009 WI 86, 320 Wis. 2d 348, 768 N.W.2d 832, and the deferential standard of review, the court upholds the admission of other-acts evidence that Hurley had repeatedly sexually assaulted his sister, J.G., when she was between the ages of 8 and 10 years old and he was between the ages of 12 and 14 years old.

State v. Timothy J. Normington, 2008 WI App 8, PFR filed 12/21/07
For Normington: Stephen J. Eisenberg

Issue: Whether images downloaded from the defendant’s computer, depicting objects inserted into women’s vaginas and into men’s and women’s anuses, were admissible on a charge of sexual assault of a mentally deficient victim involving an object inserted in his anus.

Holding:

¶19      We conclude the circuit court correctly decided that the greater latitude rule was available in cases where the other acts evidence is pornography,