Feb. 25, 2011 – The circuit court did not err in allowing the jury to hear about other-acts evidence referenced in a video interview with a four-year-old child, the Wisconsin Supreme Court recently held in a 5-2 decision.
The four-year-old child lived with her mother and stepfather, Miguel Marinez, Jr. (Marinez) in Watertown. In 2006, Marinez severely burned the child’s hands by holding them under extremely hot water, and was later convicted of intentional child abuse.
Six months later, the child disclosed to an advocacy worker that Marinez had also sexually abused her. The worker videotaped the interview, in which the child disclosed limited details about Marinez’s sexual abuse, and spontaneously brought up the hand-burning incident.
As a result, the state charged Marinez with sexual contact with a child under the age of 13. The state sought to admit the videotaped interview in lieu of in-court testimony, and moved to admit the other-acts evidence referenced in the video regarding the hand-burning incident.
The state argued that the other-acts evidence was admissible for the purpose of establishing the time and location of the alleged assault, and to allow the jury to better assess the child’s credibility. Marinez objected to admission of references to the hand-burning incident, arguing that such evidence would be unfairly prejudicial.
The circuit court admitted the video with references to the hand-burning incident. The jury subsequently found Marinez guilty of sexual contact with a child. Upon conviction, Marinez appealed.
The appeals court reversed the judgment of conviction, ruling that the hand-burning evidence was not admitted for a proper purpose under Wis. Stat. section 904.04(2) and the error was not harmless. Section 904.04(2)(a) prohibits the admission of evidence of a defendant’s other bad acts for the purpose of showing the defendant’s propensity to commit crimes.
In State v. Marinez, 2011 WI 12 (Feb. 23, 2011), the Wisconsin Supreme Court – in an opinion written by Justice N. Patrick Crooks – reversed the appeals court decision, holding the circuit court did not abuse its discretion in allowing the hand-burning evidence to be admitted as other-acts evidence. Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented.
Evidence admitted for proper purpose
The supreme court ruled that it was not error for the circuit court to allow the hand-burning evidence because it was offered for a proper purpose and it was not unfairly prejudicial.
Under State v. Sullivan, 216 Wis.2d 768, 576 N.W.2d 30 (1998), the court explained, other acts evidence is admissible if offered for a purpose other than to show a defendant’s propensity to commit a crime. In addition, the evidence must be relevant, and its probative value must not be substantially outweighed by the risk or danger of unfair prejudice.
The court concluded that the state properly offered the evidence for the main purposes of establishing Marinez’s identification, providing context to allow the jury to assess the child’s credibility, and providing context for a complete explanation of the case.
“None of these purposes relies on the prohibited propensity inference of the defendant’s character to commit crimes, and thus they are legally permissible purposes under the first prong of the Sullivan analysis and Wis. Stat § 904.04(2)(a),” Justice Crooks wrote.
Relevance and unfair prejudice
The court also concluded that the hand-burning evidence was relevant, its probative value was not outweighed by a danger of unfair prejudice, and the “greater latitude rule” permitted a more liberal admission of the evidence because it was a sexual assault case with a young victim.
“[T]he relevance of the hand-burning evidence is tied to the relevance of the video itself,” Justice Crooks wrote. “Certainly, given the importance of the video evidence to the State’s case, it was not unreasonable for the circuit court to conclude that such evidence was relevant to the jury’s credibility determination, which was the central focus of the case. …”
The state argued that the hand-burning references were probative because of their importance to disclosure of the sexual assault in the video, and unfair prejudice was limited by giving the jury limiting instructions and controlling testimony on that incident. The supreme court agreed.
“The circuit court reasonably concluded that Marinez did not meet his burden of establishing that the probative value of the hand-burning evidence was substantially outweighed by the danger of unfair prejudice,” Justice Crooks wrote.
Finally, the supreme court rejected Marinez’s claim of prosecutorial misconduct. Marinez argued that the prosecutor exceeded the circuit court’s limitations on use of the other-acts evidence, but the supreme court ruled that any misuse of the hand-burning evidence did not so infect the trial with unfairness as to deny Marinez due process.
Chief Justice Shirley Abrahamson wrote a dissenting opinion (Justice Ann Walsh Bradley joined), arguing that Marinez deserved a new trial because the circuit court erroneously exercised its discretion in admitting the hand-burning evidence.
“The majority opinion offers a litany of legitimate purposes for the burning evidence,” Chief Justice Abrahamson wrote. “But the majority fails in its attempts to legitimize the introduction of the burning evidence.”
The dissent also agreed with the appeals court that the district attorney “improperly introduced testimony and arguments about the burning beyond what the circuit court allowed.”
Assistant Attorney General Rebecca Rapp St. John represented the state. Ralph Sczygelski of Sczygelski & Pangburn Law Firm LLC, Manitowoc, represented Miguel Marinez.