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  • WisBar News
    September 01, 2016

    Appeals Court Allows Other-Acts Evidence, Applies ‘Greater Latitude Rule’

    Joe Forward

    Domestic Violence

    Sept. 1, 2016 – Anton Dorsey argued “other-acts evidence” was improperly admitted as evidence to support domestic abuse charges against him. Recently, a state appeals court ruled the evidence was admissible, noting the expanded “greater latitude rule.”

    The state learned that over the course of a couple years, Dorsey physically and emotionally abused his girlfriend. The victim alleged Dorsey spit in her face and hit her in the head with a closed fist, in addition to other abuses while the two lived together.

    The state charged Dorsey with acts of domestic abuse, including aggravated battery, strangulation, and suffocation. The jury ultimately convicted Dorsey on the aggravated battery charge, as well as disorderly conduct and misdemeanor battery charges.

    But before trial, the state successfully moved to admit evidence that Dorsey committed acts of domestic violence against another previous girlfriend.

    The state said the evidence was admissible to establish Dorsey’s “intent and motive to cause bodily harm to his [current] victim and to control her within the context of a domestic relationship,” just as he had done in a previous relationship.

    At a pre-trial hearing to determine admissibility, Dorsey’s former girlfriend testified about the abuses she suffered at his hands while carrying and raising their child.

    Dorsey argued that the other-acts evidence could not be admitted to prove “intent and motive” unless he was arguing that he did not intend to harm the victim or had no motive to hurt her. But he was arguing that he never touched the victim at all.

    The circuit court allowed the other-acts evidence, instructing the jury that it could only consider the former girlfriend’s testimony to evaluate Dorsey’s motive and intent.

    Greater Latitude Rule

    On appeal, Dorsey challenged the other-acts evidence. But in State v. Dorsey, 2015AP648-CR (Aug. 30, 2016), a three-judge panel for the District III Appeals Court ruled the other-acts evidence was properly admitted under the “greater latitude rule.”

    The panel said the greater latitude rule “empowers circuit courts with broader discretion in the admission of other-acts evidence in certain types of cases” but historically was used “almost exclusively in cases concerning sexual offenses against children.”

    However, the Wisconsin Legislature in 2014 expanded the greater latitude rule to apply to other categories of crimes, the panel explained, including domestic abuse crimes.

    Codified as Wis. Stat. section 904.04(2)(b)1, the statute allows other-acts evidence in domestic abuse cases “without regard to whether the victim of the crime that is the subject of the proceeding is the same as the victim of the similar act.”

    Thus, other-act evidence can be admissible in domestic abuse cases, even if a different victim is testifying about other acts. Dorsey argued that even with the greater latitude rule in play, the state still failed to meet the so-called Sullivan test for admissibility.

    State Met Sullivan Test

    The panel explained that under the Sullivan test, other-acts evidence is admissible if relevant and offered for an acceptable purpose unless the defendant can show the danger of unfair prejudice substantially outweighs the evidence’s probative value.

    The panel ruled that the evidence was both relevant and offered for an acceptable purpose under Wis. Stat. section 904.04(2)(a). “Proving intent and motive are clearly proper purposes to admit other-act’s evidence,” wrote Judge Mark Seidl.

    Dorsey argued that other-acts evidence to prove intent could not be admissible because he was not challenging the intent element of his domestic abuse charges. In other words, he was not arguing an accident occurred – he said he never touched anyone.

    The panel noted that the state still has the burden to prove intent crimes beyond a reasonable doubt, even if the defendant does not dispute intent.

    In this case, the other-acts evidence was admissible to show Dorsey’s motive and purpose to control his victims. Both victims testified that Dorsey abused them in similar ways, and both said Dorsey accused them of being unfaithful to him.

    Finally, the court ruled the other-acts evidence was probative based on the similarities with the current charged acts and the probative value outweighed the danger of prejudice. Even a two-year gap between acts did not diminish the connection, the panel noted.

    “We agree with the circuit court that two years is not a significant enough period of time to hold the other-acts evidence irrelevant,” Judge Seidl wrote.

    The panel also noted that the jury acquitted Dorsey on the suffocation and strangulation charges, evidence that the other-acts evidence was not prejudicial to his case.

    “The jury did not assume Dorsey was a bad character, and thus guilty of all charged offenses, because of other-acts evidence,” Judge Seidl noted.

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