On Point blog, page 6 of 14
No safe harbors for “mandatory reporter” of child abuse
State v. Trista J. Ziehr, 2015AP994-CR, 1/13/16, District 2 (one-judge opinion, ineligible for publication); case activity, including briefs
There isn’t much case law on Wisconsin’s “mandatory reporter” requirement, and this opinion makes no attempt to fill the gaps. Ziehr ran a daycare center and thus had a mandatory duty to report child abuse to the proper authorities whenever she had reasonable cause to suspect that such abuse had occurred. Wis. Stat. §48.981(2) & (6). A jury convicted her of failing to report abuse by her son. On appeal she argued primarily that: (1) the trial court erroneously instructed the jury; (2) the State’s complaint was duplicitous, and (3) the trial court erroneously admitted “other acts” evidence. She lost on all issues.
SCOW: Evidence of other sexual assaults from 15 years in the past was properly admitted
State v. Joel M. Hurley, 2015 WI 35, 3/31/15, reversing an unpublished per curiam court of appeals decision; opinion by Justice Gableman; case activity (including briefs)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.
Court of appeals rejects multiple-issue challenge to child pornography conviction
State v. Jose O. Gonzalez-Villarreal, 2013AP1615-CR, District 1, 1/27/15 (not recommended for publication); case activity
The court of appeals rejects Gonzalez-Villarreal’s challenge to his conviction for possessing child pornography based on claims that: his right to a speedy trial was violated; discovery restrictions violated his right to equal protection; other acts evidence was erroneously admitted; the trial court rejected his modified jury instruction on possession; the court erroneously exercised its sentencing discretion.
Other acts evidence was harmless and PTAC amendment during trial was not prejudicial
State v. Sean T. Pugh, 2013AP1522-CR, District 3, 10/21/14 (not recommended for publication); case activity
If the trial court erred in admitting evidence that Pugh had a prior conviction for an offense similar to the ones he was on trial for, the error was harmless, given the overwhelming evidence against him. In addition, the trial court properly allowed the state to amend the information to add party-to-a-crime modifiers because Pugh wasn’t prejudiced by the amendment.
Evidence that defendant asked victim to lie and choked her admitted as “other acts” evidence
State v. Daniel K. Rogers, 2012AP186-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity
The defendant, having been charged with sexual assault and released on bond, allegedly choked his victim to make her to lie on his behalf at trial. The circuit court admitted this as § 904.04(2) “other acts” evidence at the sexual assault trial, and the COA affirmed because the evidence showed consciousness of guilt.
Evidence of victim’s violent character excluded; evidence of defendant’s other violent acts admitted
State v. Brian J. Anderson, 2013AP913-CR, District 1, 4/15/14 (not recommended for publication); case activity
Anderson appealed his conviction for 1st-degree intentional homicide arguing that the trial court should have admitted evidence of his victim’s violent character under State v. McMorris and excluded “other acts” evidence under State v. Sullivan and § 904.04(2) and 904.03. The court of appeals rejects both arguments.
10-year history of drug-dealing deemed admissible in case where state declined to charge drug crimes
State v. Jimmy L. Powell, 2013AP1111-CR, 3/27/14, District 4; (not recommended for publication); case activity
This appeal stems from a 1st-degree reckless injury conviction. Powell, a drug dealer, ran over and/or cut his client’s throat during a deal. His enthusiastic, 38-page initial brief raises 7 issues for review. This post examines the court of appeals’ decision on 2 of them.
“Other Acts” Evidence Issue: Whether the circuit court erred in admitting “other acts”
Admission of other-acts evidence wasn’t error; trial court properly denied mistrial motion
State v. Timothy A. Jago, 2013AP1084-CR, District 1, 2/4/14; court of appeals decision (not recommended for publication); case activity
Trial counsel was not ineffective for failing to move in limine to exclude other-acts evidence–specifically, evidence that Jago told the victim he has only pointed a gun at two people in his life, the victim and the man he killed in Illinois. (¶¶4, 16, 19). Jago’s trial lawyer reasonably relied on an agreement with the prosecutor to keep this statement out of evidence.
Wisconsin Supreme Court: When a defendant raises self-defense, evidence of a victim’s reputation for violence is admissible to show who was the first aggressor even if the defendant was unaware of that reputation
State v. Curtis L. Jackson, 2014 WI 4, affirming an unpublished court of appeals decision; majority opinion by Justice Ziegler; Justice Bradley concurs; Chief Justice Abrahamson dissents; case activity
In a decision that clarifies the rules regarding evidence of the victim’s character in cases involving self-defense, the supreme court holds that a defendant may present evidence about the victim’s reputation for violence even if the defendant was not aware of that reputation at the time of the offense.
Video of robbery taken by private surveillance camera was properly authenticated
State v. Robert Vincent McCoy, 2012AP2583-CR, District 1, 1/7/14; court of appeals decision (not recommended for publication); case activity
An armed robbery outside a bar was caught on the security camera of a nearby homeowner, who gave a copy of the video to the police by uploading it on YouTube and emailing it to the police. The video was used to identify McCoy and then “burned” to a DVD and played at his trial.