On Point: 4. Character, 904.04

State v. Darrin L. Malone, 2017AP680-CR, 9/26/18, District 2 (not recommended for publication); case activity (including briefs)

The disputed image is below. It’s of a similar robbery three days before the robbery for which Malone was convicted of felony murder (the other robber in that latter robbery–who testified against Malone–admitting shooting and killing the gas station clerk). The state showed the video of that earlier robbery to the jury, hoping to convince them that Malone did that one, and thus likely did the one he was being tried for, too. Showed it, that is, except for the 10 seconds including this frame, which seems to show a white person’s hand on the robber the state claimed was Malone. Malone is black.

State v. Terrell Dawon Essex, 2017AP1509-CR, District 1, 5/15/18 (not recommended for publication); case activity (including briefs)

Essex was on trial for being a felon in possession of a firearm and first degree reckless homicide of a man named Dotson by use of a dangerous weapon. The circuit court allowed the state to present evidence that on a prior occasion Essex used the same firearm involved in Dotson’s shooting. The court of appeals holds the evidence was admissible.

State v. Timothy P. Gregory, 2016AP1265-CR, District 2, 3/14/18 (not recommended for publication); case activity (including briefs)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State v. Deandre D. Rogers, 2017AP670-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Evidence that Rogers was identified as a passenger in a vehicle reported stolen was properly admitted in his armed robbery trial because it provided “context” and “background” to one of the robbery charges for which he was on trial. And while the prosecutor made in improper argument in rebuttal closing because it wasn’t based on any evidence whatsoever, the argument wasn’t prejudicial.

State v. James C. Faustmann, 2017AP1932-CR, District 2, 3/7/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the test for lesser included offenses under § 939.66(1), disorderly conduct in violation of § 947.01(1) isn’t a lesser-included offense of unlawful use of a computerized communication system in violation of § 947.0125(2)(a).

State v. Angus Murray McArthur, 2016AP2315-17-CR, 2/20/18, District 1 (not recommended for publication); case activity (including briefs)

This opinion recounts in detail MacArthur’s controlling, violent behavior toward K.W., the victim in this case, and toward 4 of his previous girlfriends. The lead issues are (1) whether McArthur’s conduct toward the previous girlfriends was admissible as “other acts” evidence, and (2) whether trial counsel was ineffective for not objecting when, during the jury trial, a detective read K.W.’s statement which described MacArthur’s “relationship rules” and his escalating violence toward her.  The court of appeals answers both questions “no.”

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. Willie Brownlee, Jr., 2015AP2319-CR, 11/21/17, District 1, (not recommended for publication); case activity (including briefs)

Two officers stopped Brownlee after he drove his rental car through a red light. One officer approached the driver’s side, the other approached the passenger side occupied by Brownlee’s friend. Both smelled the distinct odor of burnt marijuana. They ordered Brownlee and his friend out of the car and searched it. Guess what they found in the glove compartment?

State v. Kyle Lee Monahan, 2014AP2187, petition for review of an unpublished COA decision granted 11/13/17; case activity (including briefs)

The parties and the state agree that the circuit court erred in excluding Kyle Monahan’s proffered GPS evidence from his trial; the only dispute in this appeal is whether that error is harmless beyond a reasonable doubt.

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.