State v. Anton R. Dorsey

• Court: Wisconsin Supreme Court
• Decided: January 25, 2018
• Docket: 2015AP000648-CR
• Status: Published

Opinion

2018 WI 10

SUPREME COURT OF WISCONSIN CASE NO.: 2015AP648-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Anton R. Dorsey, Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 373 Wis. 2d 308, 895 N.W.2d 103 (2017 – Unpublished)

OPINION FILED: January 25, 2018 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 23, 2017

SOURCE OF APPEAL: COURT: Circuit COUNTY: Eau Claire JUDGE: Paul J. Lenz

JUSTICES: CONCURRED: R.G. BRADLEY, J. concurs, joined by KELLY, J. (opinion filed). DISSENTED: NOT PARTICIPATING: ABRAHAMSON, J. did not participate.

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs filed and an oral argument by Frederick A. Bechtold, Taylors Falls, Minnesota.

For the plaintiff-respondent, there was a brief filed and an oral argument by Tiffany M. Winter, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general. 2018 WI 10 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP648-CR (L.C. No. 2014CF204)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. JAN 25, 2018 Anton R. Dorsey, Diane M. Fremgen Acting Clerk of Supreme Court Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals, State v. Dorsey,

No. 2015AP648-CR, unpublished slip op. (Wis. Ct. App. Dec. 6, 2016) (per curiam), affirming the Eau Claire County circuit

court's1 judgments of conviction for Anton R. Dorsey ("Dorsey")

for three crimes related to his domestic violence toward C.B.

¶2 In a criminal action by the State, Dorsey was charged

with four crimes relating to his domestic violence toward his

then-girlfriend, C.B.: one count of strangulation and

1 The Honorable Paul J. Lenz presided. No. 2015AP648-CR

suffocation under Wis. Stat. § 940.235(1) (2013-14)2;3 one count

of misdemeanor battery under Wis. Stat. § 940.19(1); one count

of disorderly conduct under Wis. Stat. §§ 947.01 and 973.055(1);

and one count of aggravated battery under §§ 940.19(6) and

973.055(1). All counts were charged with repeater enhancers.

¶3 In the circuit court, the State filed a motion to

admit other-acts evidence. Ruling on this motion required the

circuit court to interpret, as a matter of first impression, the

recently amended language in Wis. Stat. § 904.04(2)(b)1. After

colloquy with the parties, the circuit court held that the new

language allowed the admission of other acts of a defendant in a

domestic abuse case with greater latitude under the Sullivan4

analysis. Given this interpretation, the circuit court admitted

the testimony of R.K., a former girlfriend of Dorsey's, who

testified to other acts of physical violence committed by Dorsey

against her when they were dating in 2011. Postconviction,

Dorsey appealed.

¶4 The court of appeals affirmed on other grounds. It held that the greater latitude rule did not apply because the

text, not the title ("Greater latitude"), controls, and that the

2 All references to the Wisconsin Statutes are to the 2013- 14 version unless otherwise noted. 3 The jury found Dorsey not guilty of count one and his appeal here involves only the judgments of conviction entered for counts two through four. Thus, we will limit our discussion and analysis to counts two through four. 4 State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

2 No. 2015AP648-CR

text of subd. (2)(b)1. did not indicate any clear legislative

intent to adopt the greater latitude rule with regard to other

acts of domestic abuse. The court of appeals then evaluated

admission of the other-acts evidence under a straight Sullivan

analysis and concluded that it was admissible, even without

applying greater latitude.

¶5 There are two issues on this appeal. First, we

consider what standard for admission of other-acts evidence

applies under the recently amended language in Wis. Stat.

§ 904.04(2)(b)1. Second, we consider whether the evidence of

Dorsey's other acts was properly admitted under § 904.04(2)(b)1.

As to the first issue, we conclude that the recently amended

language allows admission of other-acts evidence with greater

latitude under a Sullivan analysis. As to the second issue, we

conclude that the circuit court did not erroneously exercise its

discretion in admitting evidence of Dorsey's other acts because

the circuit court applied the proper legal standard and

admission was a conclusion that a reasonable judge could reach based on the facts of the record.

¶6 Thus, we affirm the decision of the court of appeals

on other grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶7 The State charged Dorsey with the following four

crimes: (1) strangulation and suffocation under Wis. Stat.

§ 940.235(1), for intentionally impeding normal breathing by applying pressure on the throat or neck of another person; (2)

3 No. 2015AP648-CR

misdemeanor battery under Wis. Stat. § 940.19(1), for intending

to cause bodily harm to C.B., without her consent and with the

knowledge that she did not consent; (3) disorderly conduct under

Wis. Stat. §§ 947.01(1) and 973.055(1), for engaging in violent,

abusive, or otherwise disorderly conduct, under circumstances in

which such conduct tended to cause a disturbance; and (4)

aggravated battery under §§ 940.19(6) and 973.055(1), for

intentionally causing bodily harm to C.B. by conduct that

created a substantial risk of great bodily harm.5 Dorsey entered

pleas of not guilty and the case was set for a jury trial.

¶8 Before trial, the State filed a motion to introduce

evidence of Dorsey's two convictions for domestic battery from

2011 for other acts of domestic violence toward a former

girlfriend, R.K., arguing that such evidence was admissible to

prove intent to cause bodily harm under the recently amended6

Wis. Stat. § 904.04(2)(b)1.,7 which states as follows:

5 The criminal complaint was filed on March 18, 2014, and Dorsey waived his right to a preliminary hearing on April 15, 2014. On May 2, 2014, Dorsey pled not guilty and the case was set for trial. 6 See 2013 Wis. Act 362, §§ 20-22, 38; see also id., § 38 (amending and renumbering Wis. Stat. § 944.33(3) as Wis. Stat. § 904.04(2)(b)1.). 7 Prior to this motion, Dorsey had filed a motion in limine, requesting, in part, that the State be "prohibited from introducing any evidence concerning alleged acts of criminal or other misconduct by the defendant either prior to or following the date of the alleged offense charged in the Complaint." In support of this request, Dorsey argued that "[t]he probative value of such other misconduct evidence, if any, is out-weighed by its prejudicial effect . . . ." The State also filed a pre- (continued) 4 No. 2015AP648-CR

(b) Greater Latitude. 1. In a criminal proceeding alleging a violation of s. 940.302(2) or of ch. 948, alleging the commission of a serious sex offense, as defined in s. 939.615(1)(b), or of domestic abuse, as defined in s. 968.075(1)(a), or alleging an offense that, following a conviction, is subject to the surcharge in s. 973.055, evidence of any similar acts by the accused is admissible, and is admissible 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. Wis. Stat. § 904.04(2)(b)1.8 The State argued that this other-

acts evidence was admissible under the now-familiar three-step

analysis promulgated in State v. Sullivan, 216 Wis. 2d 768, 576

N.W.2d 30 (1998): other-acts evidence is admissible if (1) it is

offered for a permissible purpose under § 904.04(2)(a),9 (2) it

trial motion in limine, requesting, in part, that Dorsey be prohibited from introducing "any witness' criminal record, or other crimes, wrongs or acts, if any, unless a proper hearing is held under Wis. [Stat.] § 904.04." 8 In Wisconsin, the admissibility of prior convictions for substance is governed by Wis. Stat. § 904.04 and the admissibility of prior convictions for impeachment is governed by Wis. Stat. § 906.09. 9 Wisconsin Stat. § 904.04(2)(a) states as follows:

Except as provided in par. (b)2., evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

§ 904.04(2)(a). This list is nonexclusive. See State v. Shillcut, 116 Wis. 2d 227, 236, 341 N.W.2d 716 (Ct. App. 1983) ("[This list] of circumstances . . . for which the evidence is relevant and admissible is not exclusionary but, rather, illustrative.").

5 No. 2015AP648-CR

is relevant under § 904.01,10 and (3) its probative value is not

substantially11 outweighed by the risk of unfair prejudice under

§ 904.03.12 See Sullivan, 216 Wis. 2d at 772-73. 10 Wisconsin Stat. § 904.01 states as follows:

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

§ 904.01. 11 "The term 'substantially' indicates that if the probative value of the evidence is close or equal to its unfair prejudicial effect, the evidence must be admitted." State v. Payano, 2009 WI 86, ¶80, 320 Wis. 2d 348, 768 N.W.2d 832 (emphasis in original) (quoting State v. Speer, 176 Wis. 2d 1101, 1115, 501 N.W.2d 429 (1993)). 12 Wisconsin Stat. § 904.03 states as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

§ 904.03. As this language demonstrates, unfair prejudice is not the only reason that evidence which is relevant may nonetheless be excluded. See also Wis. Stat. §§ 904.06-904.16. Here, however, unfair prejudice was alleged and we limit our review to that issue. "Unfair prejudice" is prejudice that results

when the proffered evidence has a tendency to influence the outcome by improper means or if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case.

Sullivan, 216 Wis. 2d at 789-90.

6 No. 2015AP648-CR

¶9 Under the first prong, the State argued that the

evidence was offered "to establish the defendant's intent and

motive to cause bodily harm to his victim and to control her

within the context of a domestic relationship." Under the

second prong, the State argued that the evidence was relevant

because it established Dorsey's intent and motive, which were

facts of consequence, and that the other acts were near enough

in time, place, and circumstances to have a tendency to make the

facts of intent and motive more probable. Under the third

prong, the State noted that the defendant bore the burden to

show that the probative value is substantially outweighed by

unfair prejudice and argued that a cautionary jury instruction

would ensure that the jury only considered the evidence for the

proffered purpose, thereby avoiding any unfair prejudice.

¶10 On August 26, 2014, the circuit court held a hearing

on the State's motion. During the hearing, the court heard

arguments from the parties as to the proper interpretation of

the new language in Wis. Stat. § 904.04(2)(b)1. The circuit court ultimately held that the amended language "provid[es]

greater latitude . . . similar . . . to the serious sex offense

business and making it available more to be able to be used in

the case in chief than [the court] would provide."

¶11 The circuit court then allowed the evidence to be

admitted, holding that "using that greater latitude[,] the

three-prong analysis of Sullivan is met." Under the first

7 No. 2015AP648-CR

prong, the court held that intent and motive to control were

permissible purposes.13 Under the second prong, the court held

that the other acts were relevant "because [] the similarity,

the motive to control," which although "not very, very, very

near in time, [was] within two years and in a period of time in

which the clock kind of stops ticking a little bit because the

defendant [was] on probation for a period of that time."

Additionally, the court held that "the clear statutory language

indicates that it does not need to involve the same victim."

Under the third prong, the court held that the probative value

was not substantially outweighed by the danger of unfair

prejudice, and that a cautionary instruction would ensure that

this information goes "only to evaluate the defendant's motive

and intent."

¶12 On August 28, 2014, trial began. At trial, the

State's primary witness was C.B., the victim. C.B. testified

that she and Dorsey started dating in June of 2013. As to count

one, for strangulation and suffocation, C.B. testified that, on the night of October 11-12, 2013, she and Dorsey got into an

argument about money on their way home from a bar after a night

13 In its analysis under Sullivan, the circuit court did not specifically hold that the purposes offered by the State were permissible under the first prong, but its discussion of the second and third prongs rests on a holding that intent and motive were permissible purposes. In this regard, we note that the circuit court had "read the motion so [it had] an understanding of what the State is looking to do," and acknowledged the State's arguments on motive and intent in discussing how to tailor the cautionary jury instruction.

8 No. 2015AP648-CR

out with friends. She felt that "all [she was] good for [was]

money" and told him "[t]his is done. This isn't a healthy

relationship. I'm not happy." He then pulled the car over,

locked the doors, pushed her head against the window, and

demanded to know "is there someone else? Do you have someone

else? Is that why you don't want me here?" She testified that

she was able to get out of the car and that she had started

walking toward her house when he came up behind her, but she did

not remember anything else until waking up on the ground with

him saying, "[y]ou aren't F-ing doing this to me."

¶13 As to count two, for misdemeanor battery, C.B.

testified that, in December of 2013, she could not remember

exactly what had started the argument and caused Dorsey to be

upset with her, but she remembered telling him that she "didn't

want to talk to him . . . right now" and rolled over in the bed

to face away from him. He responded by saying "[n]o, we're

going to talk about this," and turned her back to face him by

grabbing her hip; he then flicked her lip with his finger, splitting it open and causing it to bleed. C.B. testified that

Dorsey then threw a tissue box at her for her bloody lip. He

was saying, "I don't know why you lie to me, why you

lie . . . to me all the time," to which C.B. responded that she

did not know what he was upset about. He then grabbed her by

the waist, bringing her toward him, pulled her hair to make her

look up at him because "he likes to have eye contact," and spit

in her face.

9 No. 2015AP648-CR

¶14 As to counts three and four, for disorderly conduct

and aggravated battery, C.B. testified that on March 11, 2014,

she and Dorsey were in the parking lot of a bar when Dorsey got

upset after he saw that she had been texting a man he did not

like. (Dorsey had grabbed C.B.'s phone from her during an

argument about her talking to her ex.) She testified that

Dorsey accused her of sleeping with this other man and that she

just kept telling him "[n]o, it's not like that. He's just a

friend." She got out of the car and tried to catch the

attention of someone in an office next to the bar because she

was afraid of getting hit. Dorsey got out saying, "[d]on't you

dare, don't you dare," and came up behind her, grabbed her, and

pushed her up against the side of the building demanding to know

"[w]hy are you doing this?" A few people then came out into the

parking lot and Dorsey told her to get back in the car.

¶15 Nothing more happened that night, but C.B. testified

that when she woke up the next morning, Dorsey was leaning over

her just inches from her face and said, "I can't believe you're doing this, that you keep doing this." She started getting

ready for work, but before she could leave, Dorsey told her to

sit down, that they "were going to talk about this." She

testified that she sat down on the bed and that right away he

hit her and said, "I don't believe that you're doing this."

When she tried to move away, he grabbed her hair, pulled her

back, and hit her in the head again. C.B. testified that her

head was ringing and she felt sick to her stomach, that she told him she had to go to work, but that he kept hitting her. Dorsey 10 No. 2015AP648-CR

relented when C.B. told him that she had a meeting and that if

she was not there "they're going to wonder what's going on, and

they will send someone to the house." He then threw her phone

at her chest; she took it, ran down the stairs, grabbed her

keys, and got out the door and into her car.

¶16 The State also called R.K., a former girlfriend of

Dorsey's. R.K.'s testimony regarding Dorsey's violent acts

toward her is the focus of Dorsey's appeal. At trial, R.K.

testified about two incidents that took place in 2011.14 The

first was in June of 2011, when R.K. was six months pregnant.

R.K. testified that she had asked Dorsey to take a paternity

test so that he could not later claim that their child was not

his. He became upset, thinking that the real reason she wanted

the test was that she was not sure who the father was. He left,

but when he came back later that night he was yelling and

swearing and calling her names; he flicked a lit cigarette butt

at her and tried to leave in her car. When she got in the

passenger side to stop him from taking the car, he pushed her out while backing out of the driveway. She then testified that,

when Dorsey came back later, he yelled some more, dragged her

out of the house by her feet, causing bruising to her abdomen,

and locked her out of her house.

14 Although Dorsey was convicted of domestic battery for both of these incidents, the circuit court did not allow the State to elicit the fact of Dorsey's convictions at trial because it "[didn't] see that it adds anything."

11 No. 2015AP648-CR

¶17 The second incident was in November of 2011. R.K.

testified that Dorsey had become upset because he felt she did

not respect him. He asked her to leave, and R.K. testified that

she was going to go because he was sitting on the couch feeding

their daughter and she "didn't want things to escalate." As she

was walking out the door, he took the bottle out of their

daughter's mouth and threw it at R.K., and then threw a shoe at

R.K. He then asked R.K. to come back in the house, and when she

came back in, he locked the door, began yelling at her, pushed

her down to the ground, and started hitting her in the head with

a shoe and kicking her in the back repeatedly. R.K. testified

that when Dorsey stopped "after a while" and went into the

kitchen, she took their daughter, ran out to the car, and drove

to her mother's house.

¶18 Dorsey's defense was that these witnesses were making

false allegations and that the acts never happened. As to C.B.,

he testified that he did not remember having a physical

altercation where he grabbed her around the neck; that he had never tried to prevent C.B. from leaving the house; and that her

injuries in March were because she had slipped in the shower.

As to R.K., Dorsey initially testified that he never spat on

her; that he never threw a shoe or baby bottle at her; and that

he never dragged her out of the house when she was six months

pregnant. Outside the presence of the jury, the State then

sought to introduce his convictions for these incidents to

impeach his testimony; the circuit court denied the request, accepting Dorsey's explanation that "he misunderstood exactly 12 No. 2015AP648-CR

how he was supposed to respond." When asked again (in the

presence of the jury), Dorsey admitted that, in June of 2011, he

spat on R.K. and dragged her out of the house when she was six

months pregnant because he had been upset that the baby was

possibly not his; and that, in November of 2011, he threw a shoe

and a baby bottle at R.K., prevented her from leaving their

apartment, and hit her because he felt that R.K. had not been

respecting him.

¶19 At the close of evidence, the circuit court instructed

the jury. As pertains to the issue here, the court gave a

cautionary jury instruction regarding other acts:

Evidence has been presented regarding other conduct of the defendant for which the defendant is not on trial.

Specifically, evidence has been presented that the defendant committed a battery of [R.K.] in June and November of 2011. If you find that this conduct did occur, you should consider it only on the issue of motive and intent.

You may not consider this evidence to conclude that the defendant has a certain character or certain character trait and that the defendant acted in conformity with that trait or character with respect to the offense charged in this case.

Evidence was received on the issues of motive, that is, whether the defendant had the reason to desire the result of the offense charged, and intent, that is, whether the defendant acted with the state of mind that is required for the offense charged.

You may consider this evidence only for the purposes I have described, giving it the weight you determine it deserves. It is not to be used to

13 No. 2015AP648-CR

conclude that the defendant is a bad person and for that reason is guilty of the offense charged.[15] ¶20 On August 28, 2014, the jury found Dorsey not guilty

on count one,16 but found Dorsey guilty on counts two through

four.17 The circuit court sentenced Dorsey on October 24, 2014,18

and entered the judgments of conviction on October 27, 2014.

¶21 On March 30, 2015, Dorsey filed notice of appeal. On

December 6, 2016, the court of appeals affirmed the circuit

court on other grounds. Contrary to the circuit court, the

court of appeals held that the greater latitude rule did not

15 The circuit court also instructed the jury regarding impeachment by prior conviction:

Evidence has been received that the defendant in this trial has been convicted of crimes. This evidence was received solely because it bears upon the credibility of the witness. It must not be used for any other purpose, and in particular a criminal conviction at some previous time is not proof of guilt of the offense now charged.

This was in reference to Dorsey's testimony on cross-examination that he had been convicted of crimes on ten occasions. 16 Count one was for Strangulation and Suffocation, Repeater, under Wis. Stat. §§ 940.235(1) and 939.62(1)(b). 17 Count two was for Misdemeanor Battery, Repeater, under Wis. Stat. §§ 940.19(1) and 939.62(1)(a); count three was for Disorderly Conduct, Repeater, Domestic Abuse, under Wis. Stat. §§ 947.01(1), 939.62(1)(a), and 973.055(1); and count four was for Aggravated Battery, Repeater, Domestic Abuse, under §§ 940.19(6), 939.62(1)(b), and 973.055(1). 18 Dorsey was sentenced as follows: on count two, to one year imprisonment; on count three, to one year imprisonment; and on count four, to two years, nine months imprisonment and two years, three months extended supervision. These sentences were to be served concurrently.

14 No. 2015AP648-CR

apply because the "text must control over [the] title" and

"[t]he text of Wis. Stat. § 904.04(2)(b)1. does not indicate any

clear legislative intent to make the greater latitude rule, as

developed through our state's case law, now applicable to

domestic abuse cases." Dorsey, unpublished slip op., ¶22.

Instead, the court of appeals held that the other acts were

admissible under a straight Sullivan analysis: first, the

evidence was offered for the permissible purpose of proving

intent and motive "to control [C.B.] within the context of a

domestic relationship," id., ¶¶25-27, 29; second, the evidence

was relevant because intent is an element of any crime and is

thus "of consequence," even if undisputed, and the other acts

were similar enough in time,19 place, and circumstances that they

had probative value, id., ¶¶34-37; third, Dorsey did not satisfy

his burden to show that the probative value was substantially

outweighed by the risk of unfair prejudice because Dorsey

conceded there were similarities, the evidence was "highly

probative of intent," and "any prejudicial effect could be mitigated by the use of [a] cautionary instruction," id., ¶43.

¶22 On January 3, 2017, Dorsey filed a petition for review

in this court. On April 10, 2017, we granted the petition.

19 As in the circuit court, the court of appeals found that the two-year gap in time did not sever the connection because Dorsey "may have purposefully waited until his probation expired to engage in further domestic abuse, so as to avoid probation revocation." State v. Dorsey, No. 2015AP648-CR, unpublished slip op., ¶40 (Wis. Ct. App. Dec. 6, 2016) (per curiam).

15 No. 2015AP648-CR

II. STANDARD OF REVIEW

¶23 Determining what standard for admission of other-acts

evidence applies under the recently amended language in Wis.

Stat. § 904.04(2)(b)1. requires us to interpret the statute.

"The interpretation and application of a statute present

questions of law that this court reviews de novo while

benefitting from the analyses of the court of appeals and

circuit court." State v. Alger, 2015 WI 3, ¶21, 360

Wis. 2d 193, 858 N.W.2d 346.

¶24 Determining whether the evidence of Dorsey's other

acts was properly admitted under Wis. Stat. § 904.04(2)(b)1.

requires us to review an exercise of discretion by the circuit

court. See State v. Jackson, 2014 WI 4, ¶43, 352 Wis. 2d 249,

841 N.W.2d 791 ("This court will not disturb a circuit court's

decision to admit or exclude evidence unless the circuit court

erroneously exercised its discretion."). "A circuit court

erroneously exercises its discretion if it applies an improper

legal standard or makes a decision not reasonably supported by the facts of record." Id.

III. ANALYSIS

¶25 There are two issues on this appeal. First, we

Dorsey's other acts was properly admitted under § 904.04(2)(b)1. As to the first issue, we conclude that the recently amended

16 No. 2015AP648-CR

language allows admission of other-acts evidence with greater

latitude under a Sullivan analysis. As to the second issue, we

conclude that the circuit court did not erroneously exercise its

discretion in admitting evidence of Dorsey's other acts because

admission was a conclusion that a reasonable judge could reach

based on the facts of the record.

A. What Standard For Admission Of Other-Acts Evidence Applies Under Wis. Stat. § 904.04(2)(b)1. ¶26 We consider first what standard for admission of

other-acts evidence applies under the recently amended language

in Wis. Stat. § 904.04(2)(b)1. Dorsey argues that a straight

Sullivan analysis applies, that is, that the statute does not

afford circuit courts greater latitude to admit other-acts

evidence of domestic abuse. The State argues that the amended

language should be interpreted one of two ways: one, under the

common law greater latitude rule, as affording circuit courts

greater latitude to admit other, similar acts of domestic abuse

in a Sullivan analysis; or two, under a plain language interpretation, as allowing circuit courts to admit other,

similar acts of domestic abuse without requiring a permissible

purpose (which is required under the first prong of Sullivan).

We conclude that the recently amended language allows for the

17 No. 2015AP648-CR

admission of other, similar acts of domestic abuse with greater

latitude under a Sullivan analysis.20

¶27 "[S]tatutory interpretation begins with the language

of the statute." State ex rel. Kalal v. Cir. Ct. for Dane Cty.,

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Wisconsin

Stat. § 904.04(2), entitled "Other crimes, wrongs, or acts,"

states, in relevant part, as follows:

(a) General admissibility. Except as provided in par. (b)2., evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(b) Greater latitude. 1. In a criminal proceeding alleging a violation of s. 940.302(2) or of ch. 948, alleging the commission of a serious sex offense, as defined in s. 939.615(1)(b), or of domestic abuse, as defined in s. 968.075(1)(a),[21] or 20 Although we discuss the statute in the context of domestic abuse, our interpretation here applies with equal force to the other circumstances listed in Wis. Stat. § 904.04(2)(b)1. 21 Wisconsin Stat. § 968.075(1)(a) states as follows:

"Domestic abuse" means any of the following engaged in by an adult person against his or her spouse or former spouse, against an adult with whom the person resides or formerly resided or against an adult with whom the person has a child in common:

1. Intentional infliction of physical pain, physical injury or illness.

2. Intentional impairment of physical condition.

3. A violation of s. 940.225(1), (2) or (3). (continued) 18 No. 2015AP648-CR

alleging an offense that, following a conviction, is subject to the surcharge in s. 973.055, evidence of any similar acts by the accused is admissible, and is admissible 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. § 904.04(2)(a), (b)1. (footnote added).

¶28 "If the meaning of the statute is plain, we ordinarily

stop the inquiry." Kalal, 271 Wis. 2d 633, ¶45. As argued by

the State, under a plain language interpretation of Wis. Stat.

§ 904.04(2)(b)1., the court could hold that evidence of other, similar22 acts by the accused is admissible, even if the acts

relate to a different victim, if the similar acts are offered in

a criminal proceeding that alleges (1) a violation of Wis. Stat.

§ 940.302(2); (2) a violation of Wis. Stat. ch. 948; (3) the

commission of a serious sex offense, as defined in Wis. Stat.

§ 939.615(1)(b); (4) the commission of domestic abuse, as

defined in Wis. Stat. § 968.075(1)(a); or (5) an offense that,

4. A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under subd. 1., 2. or 3.

Wis. Stat. § 968.075(1)(a). The parties do not dispute that Dorsey's acts qualify as domestic abuse under this definition. 22 We note that subd. (2)(b)1. specifically requires that the other acts be "similar acts by the accused." Wis. Stat. § 904.04(2)(b)1. This specific requirement of similarity distinguishes subd. (2)(b)1. from para. (2)(a), but this requirement is nonetheless satisfied when applying greater latitude under a Sullivan analysis——the standard that we adopt below——because the second prong of Sullivan directs circuit courts to examine the similarity of the acts when evaluating probative value. We discuss this issue of similarity more below. See infra ¶¶45, 49.

19 No. 2015AP648-CR

following conviction, is subject to the surcharge in Wis. Stat.

§ 973.055. The plain meaning interpretation would thus allow

circuit courts to admit evidence of other, similar acts without

regard to its purpose, even if the purpose is to show "that the

person acted in conformity therewith," (i.e., propensity).

§ 904.04(2)(a).23

23 The concurrence argues that this isolated plain meaning of subd. (2)(b)1. should be the end of a circuit court's analysis, that is, that "evidence of 'similar acts' in sensitive crimes cases [is] admissible without requiring the State to establish a permissible purpose." Concurrence, ¶73. This conclusion is problematic for at least two reasons. First, it ignores the context of surrounding provisions within Wis. Stat. § 904.04. See State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. As concluded below, such an isolated interpretation creates a conflict in the plain language of the statute in the context of para. (2)(a). See infra ¶29. Such an isolated interpretation also creates a conflict in the plain language of the statute in the context of subsec. (1), which embodies the general purpose of rule 904.04 "to exclude use of other misdeeds to prove character in order to prove guilt." See State v. Spraggin, 77 Wis. 2d 89, 94, 252 N.W.2d 94 (1977). Subsection (1) states in relevant part as follows:

Character evidence generally. Evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion . . . .

§ 904.04(1).

Second, and relatedly, this isolated interpretation would effectively repeal the exclusionary purpose of the rule, which is supported by four long-standing and oft-cited rationales:

(1) [t]he overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present (continued) 20 No. 2015AP648-CR

¶29 Subdivision (2)(b)1. must, however, be interpreted "in

the context in which it is used; not in isolation but as part of

a whole." Kalal, 271 Wis. 2d 633, ¶46. And this plain language

charge but because he has escaped punishment from other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated; and (4) the confusion of issues which might result from bringing in evidence of other crimes.

Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557 (1967). Thus, the concurrence would have us overturn decades of common law construction by this court and by lower courts. But see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 327 (2012) ("Repeals by implication are disfavored——'very much disfavored.'"); id. at 318 ("A statute will be construed to alter the common law only when that disposition is clear.").

Moreover, and perhaps more importantly, the concurrence does not provide any practical guidance to circuit courts because it does not offer a standard for admission of other, similar acts. Under its isolated interpretation, could a court admit acts as "similar" because they were committed in the same month? Is a court compelled to admit similar acts without any assessment of reliability? How would the court instruct the jury regarding such other-acts evidence, or is that rendered unnecessary because a jury can use the evidence for any purpose it sees fit? In other words, without a standard for admission, how could courts guarantee a fair trial? Such an aimless interpretation would result in appeal after appeal, and would require opinion after opinion explaining what we did not mean to say. Thus, although the concurrence is unpersuaded by our position, see Concurrence, ¶72, its skepticism reveals a troubling lack of recognition of the practical effect that such a simplistic interpretation will have in courtrooms across the state. See also infra note 25. We conclude that utilizing the time-tested analytical framework of Sullivan, but with greater latitude, as called for by the plain meaning of the statute, is the more prudent approach in light of our duty to provide meaningful guidance to those who are confronted with such issues in litigation.

21 No. 2015AP648-CR

interpretation of subd. (2)(b)1. contradicts the plain language

of para. (2)(a). Paragraph (2)(a) only excepts subd. (2)(b)2.——

not subd. (2)(b)1.——from its general prohibition on the use of

other acts "to prove the character of a person in order to show

that the person acted in conformity therewith." Wis. Stat.

§ 904.04(2)(a). Where a specific exception is made, it implies

that no other exceptions are intended. See Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

107-11 (2012) ("The expression of one thing implies the

exclusion of others (expressio unius est exclusio alterius).").

Thus, we cannot read subd. (2)(b)1. as an exception to

para. (2)(a)'s general prohibition on propensity.

¶30 This results in ambiguity with regard to the meaning

of subd. (2)(b)1. See Kalal, 271 Wis. 2d 633, ¶47 ("[A] statute

is ambiguous if it is capable of being understood by reasonably

well-informed persons in two or more senses."). If the plain

language of a statute is ambiguous as to meaning, we consider

the scope, context, and purpose of the statute. Id., ¶¶48-49. In this regard, the title of subd. (2)(b)1., "Greater latitude,"

is instructive. As a preliminary matter, we note that

"[t]itles . . . are not part of the statutes," Wis. Stat.

§ 990.001(6), but are "permissible indicators of

meaning . . . for the purpose of . . . relieving [] ambiguity,"

Scalia & Garner, supra ¶29, at 221-22. See also Aiello v. Vill.

of Pleasant Prairie, 206 Wis. 2d 68, 73, 556 N.W.2d 697 (1996)

("Although titles are not part of statutes, . . . they may be helpful in interpretation."). As noted above, there is 22 No. 2015AP648-CR

ambiguity with regard to the meaning of subd. (2)(b)1., thus,

reference to its title is appropriate here.

¶31 In the context of its title, "Greater latitude," we

interpret subd. (2)(b)1. as adopting the common law greater

latitude rule to permit the admission of other, similar acts of

domestic abuse with greater latitude. "All words and phrases

shall be construed according to common and approved usage; but

technical words and phrases and others that have a peculiar

meaning in the law shall be construed according to such

meaning." Wis. Stat. § 990.01(1); see also Scalia & Garner,

supra ¶29, at 320 ("A statute that uses a common-law term,

without defining it, adopts its common-law meaning.") Here,

"greater latitude" is a technical term defined in the common law

that deals with admission of other-acts evidence, thus it "shall

be construed according to such meaning." § 990.01(1).

¶32 Under the common law, the greater latitude rule

allows for more liberal admission of other-acts evidence. See,

e.g., State v. Hurley, 2015 WI 35, ¶59, 361 Wis. 2d 529, 861 N.W.2d 174. It has traditionally been applied in cases of

sexual abuse, particularly those involving children. See, e.g.,

id. Its application in this context dates back to 1893, and it

has been so-applied in hundreds of cases since. See Proper v.

State, 85 Wis. 615, 630, 55 N.W. 1035 (1893) ("A greater

latitude of proof as to other like occurrences is allowed in

cases of sexual crimes."). Thus, the term "greater latitude" is

a term of art in the context of other-acts evidence and its application is well-established in the common law. 23 No. 2015AP648-CR

¶33 The greater latitude rule has been described as

operating to "facilitate[] the admissibility of the other acts

evidence under the exceptions set forth in [Wis. Stat.]

§ 904.04(2)[(a)]." State v. Hammer, 2000 WI 92, ¶23, 236

Wis. 2d 686, 613 N.W.2d 629 (citing Hendrickson v. State, 61

Wis. 2d 275, 279, 212 N.W.2d 481 (1973)). And indeed, after

Sullivan, which set out the standard for admission of other-acts

evidence under para. (2)(a), we clarified that the greater

latitude rule is to be applied within the Sullivan analysis

(which requires a (2)(a) permissible purpose under the first

prong). See State v. Davidson, 2000 WI 91, ¶51, 236

Wis. 2d 537, 613 N.W.2d 606. Application of the greater

latitude rule, however, is not limited to any one prong. See

id. Thus, for the types of cases enumerated under Wis. Stat.

§ 904.04(2)(b)1., circuit courts should admit evidence of other

acts with greater latitude under the Sullivan analysis to

facilitate its use for a permissible purpose.24

¶34 Before concluding our interpretation of the statute, we note that adopting Dorsey's interpretation would render

24 This conclusion is further supported by the Legislative Reference Bureau analysis that accompanied the assembly bill: "This bill states that, in a prosecution alleging . . . a crime of domestic abuse . . . evidence of similar acts is generally admissible . . . ." Drafting File for 2013 Wis. Act 362, Analysis by the Legislative Reference Bureau of 2013 A.B. 620, Legislative Reference Bureau, Madison, Wis. See Kalal, 271 Wis. 2d 633, ¶51 ("[L]egislative history need not be and is not consulted except to resolve an ambiguity in the statutory language . . . .").

24 No. 2015AP648-CR

subd. (2)(b)1. superfluous. Dorsey argues that a straight

Sullivan analysis applies, that is, that circuit courts are not

permitted greater latitude to admit evidence of other acts in

domestic abuse cases. A straight Sullivan analysis, however, is

what circuit courts apply when a party seeks to introduce other-

acts evidence under para. (2)(a). Sullivan, 216 Wis. 2d at 772-

73. Before the statute was amended, this was the proper

standard for admission of other acts of domestic abuse, and, in

fact, before the amendment, the State did seek to introduce

other acts of domestic abuse under para. (2)(a). See, e.g.,

Sullivan, 216 Wis. 2d 768. But the addition of subd. (2)(b)1.

provided a specific standard for admission of other acts of

domestic abuse. Thus, to hold that a straight Sullivan analysis

is still the proper standard for admission would render the

legislature's enactment of subd. (2)(b)1. meaningless. This we

cannot do. See Kalal, 271 Wis. 2d 633, ¶46 ("Statutory language

is read where possible to give reasonable effect to every word,

in order to avoid surplusage."); Scalia & Garner, supra ¶29, at 174-79 ("If possible, every word and every provision is to be

given effect (verba cum effectu sunt accipienda). None should

be ignored. None should needlessly be given an interpretation

that causes it to duplicate another provision or to have no

consequence." (Footnote omitted.)).

¶35 In sum, we conclude that Wis. Stat. § 904.04(2)(b)1.

permits circuit courts to admit evidence of other, similar acts

of domestic abuse with greater latitude, as that standard has been defined in the common law, under Sullivan, because it is 25 No. 2015AP648-CR

the most reasonable interpretation in light of the context and

purpose of the statute. See Kalal, 271 Wis. 2d 633, ¶46

("[S]tatutory language is interpreted in the context in which it

is used . . . and reasonably, to avoid absurd or unreasonable

results."). As a practical matter, not only does our analysis

afford due respect to the words of this legislation, but

maintaining the well-established Sullivan analysis, with greater

latitude in domestic abuse cases, also provides a framework for

litigants and our courts to create a thorough record of the

arguments and rulings concerning other-acts evidence.25

25 We note that the concurrence does not take issue with applying steps two and three of the Sullivan analysis. Sullivan defines its "three-step analytical framework" in relevant part as follows:

(2) Is the other acts evidence relevant, considering the two facets of relevance set forth in Wis. Stat. § 904.01? . . .

(3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence [under Wis. Stat. § 904.03]?

216 Wis. 2d at 772-73. The concurrence agrees that "subsec. (2)(b)1 . . . permits the admission of 'similar acts' evidence . . . as long as the proffered evidence satisfies Wis. Stat. § 904.01's relevance test and is not excluded under Wis. Stat. § 904.03's unfair prejudice test." Concurrence, ¶62. The § 904.03 balancing test, however, subsumes permissible purpose: the danger of unfair prejudice is exactly the rationale which underlies Wis. Stat. § 904.04's general prohibition of propensity. See supra note 23. Thus, it is not clear how a party could establish relevance under Wis. Stat. § 904.01, or pass the balancing test under § 904.03, without proffering a "purpose" (relevance) that is "permissible" (not substantially (continued) 26 No. 2015AP648-CR

B. Whether Admission Of Dorsey's Other Acts Was An Erroneous Exercise Of Discretion. ¶36 We consider second whether the evidence of Dorsey's

other acts was properly admitted under Wis. Stat.

§ 904.04(2)(b)1. The arguments of the parties on this issue are

outlined in detail below. In this regard, we note that our

review on this issue is limited to the arguments presented to

the circuit court at the time the circuit court made its

admissibility determination. Thus, although the parties raised additional arguments on appeal, we limit our analysis to the

arguments they raised in the circuit court. We conclude that

the circuit court did not erroneously exercise its discretion in

admitting evidence of Dorsey's other acts because the circuit

court applied the proper legal standard and admission was a

conclusion that a reasonable judge could reach based on the

facts of the record.

¶37 Our analysis "begins with the understanding that the

circuit court's decisions to admit or exclude evidence are

entitled to great deference." Jackson, 352 Wis. 2d 249, ¶45. We will uphold a circuit court's evidentiary ruling if it

"examined the relevant facts, applied a proper standard of law,

used a demonstrated rational process and reached a conclusion

outweighed by the danger of unfair prejudice). See also State v. Hurley, 2015 WI 35, ¶62, 361 Wis. 2d 529, 861 N.W.2d 174 ("Identifying a proper purpose for other-acts evidence is not difficult and is largely meant to develop the framework for the relevancy examination.").

27 No. 2015AP648-CR

that a reasonable judge could reach." Hurley, 361 Wis. 2d 529,

¶28.

¶38 As explained above, the proper standard for admission

of other acts of domestic abuse is one of greater latitude. See

supra ¶35. Here the record reflects that the circuit court

applied this legal standard: at the hearing on the State's

motion to introduce other-acts evidence, the circuit court held

that the recently amended language "provid[es] greater

latitude . . . similar . . . to the serious sex offense business

and making it available more to be able to be used in the case

in chief than [the court] would provide."

¶39 The circuit court also reached a conclusion that a

reasonable judge could reach using a demonstrated, rational

process. The lodestar of admissibility of other-acts evidence

is the three-prong analysis promulgated in Sullivan: other-acts

evidence is admissible if (1) it is offered for a permissible

purpose under Wis. Stat. § 904.04(2)(a); (2) it is relevant

under Wis. Stat. § 904.01; and (3) its probative value is not substantially outweighed by the risk of unfair prejudice under

Wis. Stat. § 904.03. See Sullivan, 216 Wis. 2d at 772-73.

1. Whether the other acts were offered for a permissible purpose. ¶40 Under the first prong, the State offered Dorsey's "two

Battery convictions and his conduct of June 2011 through

November 2011 . . . to establish [his] intent and motive to

cause bodily harm to [C.B.] and to control her within the context of a domestic relationship." Dorsey did not

28 No. 2015AP648-CR

meaningfully argue that these were not permissible purposes;

rather, he focused on relevancy, which we discuss in detail

below.

¶41 The transcript of the motion hearing reflects that the

circuit court understood the purposes for which the State

offered the evidence. See supra note 13. Thus, the court was

within its discretion in holding that intent and motive to

control were permissible purposes. See, e.g., State v. Veach,

2002 WI 110, ¶58, 255 Wis. 2d 390, 648 N.W.2d 447.

¶42 Moreover, this was a conclusion that a reasonable

judge could reach. Under Wis. Stat. § 904.04(2)(a), "motive"

and "intent" are listed as permissible purposes. Thus, the

evidence was offered for a permissible purpose. See State v.

Payano, 2009 WI 86, ¶63, 320 Wis. 2d 348, 768 N.W.2d 832 (citing

Wis. Stat. § 904.04(2) (2007-08)) ("As long as the proponent

identifies one acceptable purpose for admission of the evidence

that is not related to the forbidden character inference, the

first step is satisfied. Consequently, this first step is hardly demanding." (Footnote omitted.) (Citations omitted.));

see also State v. Marinez, 2011 WI 12, ¶29, 331 Wis. 2d 568, 797

N.W.2d 399 (noting that permissible purposes under Sullivan are

not limited to those listed in the statute or to those

recognized in previous cases).

¶43 Thus, especially given greater latitude in this

domestic abuse case, the circuit court did not err in concluding

that Dorsey's other acts were offered for a permissible purpose.

29 No. 2015AP648-CR

2. Whether the other acts were relevant to the permissible purposes. ¶44 Under the second prong, the relevance inquiry is two-

fold: first, "[t]he evidence must relate to a fact or

proposition of consequence"; second, the evidence must have

probative value, that is, "a tendency to make a consequential

fact more or less probable than it would be without the

evidence." Veach, 255 Wis. 2d 390, ¶59; see Wis. Stat.

§ 904.01.

¶45 With regard to the first, the State argued that intent

is of consequence because it is an element of the charged

crimes; it argued that motive is of consequence because

"[m]otive is always relevant," in part because it is related to

intent. With regard to the second, the State argued that the

other acts were near in time because, although two years had

passed, Dorsey was on probation for a portion of that time. The

State further argued that the other acts were similar in

circumstance because:

• The arguments that preceded the assaults concerned Dorsey's allegations that his partners did not show him

sufficient respect;

• The assaults occurred when the victims were in their home

or vehicle;

• In both the November 2011 (R.K.) and March 2014 (C.B.)

incidents, the assaults happened in the midst of Dorsey

accusing the victims of lying to him; and

30 No. 2015AP648-CR

incidents, Dorsey restricted his victims' movements.

¶46 With regard to the first, Dorsey argued that intent

and motive were not of consequence in this case because he

planned to deny that the alleged crimes ever happened, and thus,

he was not directly disputing the issue of intent and motive.

Dorsey also argued that, to the extent that the other-acts

evidence bolstered C.B.'s credibility, admission was improper.

With regard to the second, Dorsey argued that, although the

charges were similar, the victims were different people, and

that "one prior offense doesn't make the allegation of another

one more or less probable."

¶47 The circuit court found

that using [] greater latitude . . . [the evidence] does have probative value in that it does go to, because of the similarity, the motive to control. Although it is not very, very, very near in time, it's within two years and in a period of time in which the clock kind of stops ticking a little bit because the defendant is on probation for a period of that time. And while they're similar, they do not involve the same victim, there is some case law that it doesn't need to involve the same victim, but the clear statutory language indicates that it does not need to involve the same victim. This record reflects that the court applied the proper legal

standard to the relevant facts using a demonstrated, rational

process.

¶48 Moreover, this was a conclusion that a reasonable

judge could reach. Whether other-acts evidence is "of consequence" asks whether it is logically related to an element

31 No. 2015AP648-CR

of the offense, that is, whether, under the substantive law, it

is related to "the ultimate facts and links in the chain of

inferences that are of consequence to the case." Sullivan, 216

Wis. 2d at 786. Intent and motive are "of consequence." Wis.

Stat. § 904.01. Intent is an element of two of the three

charged crimes at issue here.26 "[A]n element of a crime

constitutes a consequential fact that the State must prove even

if the defendant does not dispute the element." Veach, 255

Wis. 2d 390, ¶¶61, 77 (characterizing and upholding Davidson,

26 The second charge was for Misdemeanor Battery under Wis. Stat. § 940.19(1):

Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.

See also Wis JI——Criminal 1220 (2015). The fourth charge was for Aggravated Battery under Wis. Stat. § 940.19(6):

Whoever intentionally causes bodily harm to another by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony.

See also Wis JI——Criminal 1226 (2015). The jury was also instructed on intent for each of these charges as follows:

"Intent to cause bodily harm" means that the defendant had the mental purpose to cause bodily harm to another human being or was aware that his conduct was practically certain to cause bodily harm to another human being. . . .

You cannot look into a person's mind to find intent and knowledge. Intent and knowledge must be found, if found at all, from the defendant's acts, words, and statements, if any, and from all the facts and circumstances in this case bearing upon intent.

32 No. 2015AP648-CR

236 Wis. 2d 537, ¶65); see also Hammer, 236 Wis. 2d 686, ¶25

(citing State v. Plymesser, 172 Wis. 2d 583, 594-95, 493

N.W.2d 376 (1992)) ("If the state must prove an element of a

crime, then evidence relevant to that element is admissible,

even if a defendant does not dispute the element."). Similarly,

although motive is not specifically an element of a crime that

the State must prove, here it is logically related to the

element of intent. "Intent" is defined as having a requisite

"mental purpose." See, e.g., Wis JI——Criminal 1220 (2015);

supra note 26. Motive is relevant to establishing purpose.27

See, e.g., Davidson, 236 Wis. 2d 537, ¶65 (quoting Plymesser,

172 Wis. 2d at 594-95). "Evidence relevant to motive is

therefore admissible, whether or not defendant disputes motive."

Id.

¶49 Whether other-acts evidence has probative value asks

whether the other acts are similar, that is, whether they are

27 Dorsey argues that his cause is distinguishable from the considerable precedent applying the greater latitude rule and holding that motive is relevant to establish purpose because that precedent exclusively evaluates the relevance of motive in the context of sexual abuse crimes, where the purpose of "sexual gratification" is an element of the crime. See, e.g., State v. Hammer, 2000 WI 92, ¶27, 236 Wis. 2d 686, 613 N.W.2d 629 ("[The] testimony was properly admitted to prove motive because purpose is an element of sexual contact."). If we were considering a pure question of common law, extension of the greater latitude rule might not be a perfect analogy for domestic abuse cases but we are not; instead, we are considering the legislature's statutory extension of the common law greater latitude rule to domestic abuse contexts. Thus, Dorsey's argument that evidence of motive should not be admitted under our greater latitude cases fails.

33 No. 2015AP648-CR

near "in time, place, and circumstance[,] to the alleged crime

or to the fact or proposition sought to be proved." Sullivan,

216 Wis. 2d at 786 (citing Whitty v. State, 34 Wis. 2d 278, 294,

149 N.W.2d 557 (1967)).28 Here, the other acts tend to make the

facts of intent and motive more probable because they are

similar as to intent and motive, namely that, in both instances,

Dorsey became violent when he felt like he was being

disrespected or lied to, and he isolated his victims and

restricted their movements immediately prior to the assaults.

See supra ¶45.

¶50 Furthermore, to the extent that R.K.'s testimony

operated to bolster C.B.'s credibility, we have held that "[a]

witness's credibility is always 'consequential' within the

meaning of Wis. Stat. § 904.01." Marinez, 331 Wis. 2d 568, ¶34.

And we have held that credibility is particularly probative in

cases that come down to he-said-she-said. Id. Moreover, the

difficult proof issues in these kinds of cases "provide the

rationale behind the greater latitude rule. . . . [I]t follows that the greater latitude rule allows for the more liberal

admission of other-acts evidence that has a tendency to assist

the jury in assessing [credibility]." Id. (citation omitted).

¶51 Thus, especially given greater latitude in this

domestic abuse case, the circuit court did not err in concluding

28 As noted above, see supra note 22, subd. (2)(b)1. explicitly requires that the other acts be similar. This requirement is satisfied by the similarity analysis under this second prong of Sullivan.

34 No. 2015AP648-CR

that Dorsey's other acts were relevant to the purposes of intent

and motive.

3. Whether the probative value was substantially outweighed by the risk of unfair prejudice. ¶52 Under the third prong, the State noted that it was

Dorsey's burden to show that the probative value was

substantially outweighed by the danger of unfair prejudice and

argued that he would not be able to do so: the probative value

of Dorsey's other acts "could not be substantially outweighed by the danger of unfair prejudice" because of the similarities of

the incidents. The State also argued that "a cautionary

instruction [would] ensure that the jury uses the evidence []

only to evaluate the defendant's motive [and] intent." Dorsey

argued that the other acts would unfairly bolster the

credibility of C.B. because "when you have a female who's

alleging abuse in a domestic type situation, the jury is

automatically . . . already more toward the female who's making

the allegations." Dorsey also argued that admitting R.K.'s

testimony would result in a trial within a trial, confusing the issues the jury must decide.

¶53 The circuit court found

that using [] greater latitude . . . is the probative value substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, needless presentation of cumulative evidence, and then the court's consideration of delay and waste of time, I do not find that it is. That with a cautionary instruction, it can be provided that this information goes only to evaluate the defendant's motive and intent elements. There's going to be no claim of

35 No. 2015AP648-CR

mistake or what have you. So for those reasons, I'll allow it in. This record reflects that the court applied the proper legal

standard to the relevant facts using a demonstrated, rational

¶54 Moreover, this was a conclusion that a reasonable

judge could reach. "Because the statute provides for exclusion

only if the evidence's probative value is substantially

outweighed by the danger of unfair prejudice, [t]he bias is []

squarely on the side of admissibility." Marinez, 331

Wis. 2d 568, ¶41 (first alteration in original). "The

evidence's probative value largely turns on the relevancy

analysis from step two under Sullivan." Payano, 320

Wis. 2d 348, ¶81. "If the probative value is close to or equal

to its unfair prejudicial effect, the evidence must be

admitted." Hurley, 361 Wis. 2d 529, ¶87. And "[t]o limit the

possibility that the jury will convict based on 'improper

means[,]' circuit courts may . . . edit the evidence." Id.,

¶89. ¶55 As noted above, the circuit court found that the prior

acts and the charged acts were near in time and similar in place

and circumstance. Additionally, the circuit court limited any

unfair prejudice by precluding admission of the fact of Dorsey's

36 No. 2015AP648-CR

convictions for the other acts29 and by planning to give a

cautionary instruction at the close of evidence. We presume

that jurors follow the instructions given by the court. See,

e.g., Marinez, 331 Wis. 2d 568, ¶41. Where a cautionary

instruction is not tailored to the facts of the case, "its

cautionary effect [may be] significantly diminished." Sullivan,

216 Wis. 2d 791; cf. id. (quoting State v. Mink, 146 Wis. 2d 1,

17, 429 N.W.2d 99 (Ct. App. 1988)) ("[A] cautionary instruction,

even if not tailored to the case, can go 'far to cure any

adverse effect attendant with the admission of the [other-acts]

evidence.'"). Here, the cautionary instruction was tailored to

the facts particular to this case——intent and motive——and was

therefore in its most effective form. See supra ¶19.

¶56 Thus, especially given greater latitude in this

domestic abuse case, the circuit court did not err in concluding

that the probative value of Dorsey's other similar acts was not

substantially outweighed by the risk of unfair prejudice.

¶57 In sum, we conclude that the circuit court's admission of the other-acts evidence under Wis. Stat. § 904.04(2)(b)1. was

not an erroneous exercise of discretion because the circuit

court properly applied greater latitude under a Sullivan

29 The circuit court did not decide the admissibility of the fact of Dorsey's convictions for his other acts toward R.K. at the motion hearing on December 22, 2014; rather, it reserved decision on whether the convictions were relevant for when R.K. was testifying. Ultimately, the circuit court did not allow in the fact of Dorsey's convictions.

37 No. 2015AP648-CR

analysis, considered the relevant facts using a demonstrated,

rational process, and reached a conclusion that a reasonable

judge could reach.

IV. CONCLUSION

¶58 There are two issues on this appeal. First, we

Dorsey's other acts was properly admitted under § 904.04(2)(b)1.

language allows admission of other-acts evidence with greater

latitude under a Sullivan analysis. As to the second issue, we

conclude that the circuit court did not erroneously exercise its

discretion in admitting evidence of Dorsey's other acts because

admission was a conclusion that a reasonable judge could reach

based on the facts of the record. ¶59 Thus, we affirm the decision of the court of appeals

By the Court.—The decision of the court of appeals is

affirmed.

¶60 SHIRLEY S. ABRAHAMSON, J., did not participate.

38 No. 2015AP648-CR.rgb

¶61 REBECCA GRASSL BRADLEY, J. (concurring). Instead of

adopting a plain meaning interpretation of Wis. Stat.

§ 904.04(2)(b)1, the majority chose to squeeze the new language

of subsec. (2)(b)1 back into the Sullivan1 analysis under subsec.

(2)(a) and declares that its only substantive effect arises from

its statutory title by affording greater latitude in domestic

abuse cases when admitting other-acts evidence. By doing so,

the majority renders the actual text of subsec. (2)(b)1

meaningless. Under the majority's holding, admission of similar

acts evidence at specifically enumerated sensitive crimes trials

remains bound by the same three-step Sullivan analysis used

before the legislature added subsec. (2)(b)1 to the statute. I

disagree with the majority's interpretation.

¶62 I write separately to apply a plain meaning

interpretation to Wis. Stat. § 904.04(2)(b)1. A plain meaning

analysis establishes that Sullivan does not apply to subsec.

(2)(b)1; rather, subsec. (2)(b)1 operates independently from subsec. (2)(a) and permits the admission of "similar acts"

evidence at the enumerated sensitive crimes trials, as long as

the proffered evidence satisfies Wis. Stat. § 904.01's relevance

test and is not excluded under Wis. Stat. § 904.03's unfair

prejudice test. Applying this interpretation to the challenged

evidence in Dorsey's case, I conclude the circuit court did not

erroneously exercise its discretion in admitting the evidence;

1 See State v. Sullivan, 216 Wis. 2d 768, 772, 576 N.W.2d 30 (1988).

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therefore, I would affirm the decision of the court of appeals.

I respectfully concur.

I

¶63 This case presents the court with the first

opportunity to interpret the newly revised Wis. Stat.

§ 904.04(2), which added an entirely new subsection titled

"Greater latitude." Wisconsin Stat. § 904.04(2) reads:

(2) OTHER CRIMES, WRONGS, OR ACTS.

(a) General admissibility. Except as provided in par. (b)2., evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(b) Greater latitude.

1. In a criminal proceeding alleging a violation of s. 940.302(2) or of ch. 948, alleging the commission of a serious sex offense, as defined in s. 939.615(1)(b), or of domestic abuse, as defined in s. 968.075(1)(a), or alleging an offense that, following a conviction, is subject to the surcharge in s. 973.055, evidence of any similar acts by the accused is admissible, and is admissible 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.

2. In a criminal proceeding alleging a violation of s. 940.225(1) or 948.02(1), sub. (1) and par. (a) do not prohibit admitting evidence that a person was convicted of a violation of s. 940.225(1) or 948.02(1) or a comparable offense in another jurisdiction, that is similar to the alleged violation, as evidence of the person's character in order to show that the person acted in conformity therewith. 2 No. 2015AP648-CR.rgb

¶64 The majority correctly sets forth the court's standard

for reviewing statutes. Majority op., ¶¶27-28. It goes astray,

however, when it concludes that interpreting para. (b)1 in

context means it is subject to the language of para. (a).

Majority op., ¶29. In a plain meaning analysis, the court

examines the language in the statute and if "the meaning of the

statute is plain, we ordinarily stop the inquiry." State ex

rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110. The language used in para. (b)1 is

plain and its meaning should be applied as written.

¶65 The language of para. (b)1 plainly instructs: (1) in

certain specified sensitive crime proceedings; (2) "evidence of

any similar acts by the accused is admissible"; (3) even when

the victim of the similar act is different than the victim in

the case being prosecuted. Wis. Stat. § 904.04(2)(b)1. Nothing

in this paragraph requires that the "similar acts" be admitted

for a particular purpose, and nothing says the similar acts

cannot be admitted to prove a person acted in conformity therewith.

¶66 This language arguably conflicts with para. (a), which

directly precedes para. (b)1, but only if one assumes the

legislature cannot create an exemption from para. (a) unless it

places the text of that exemption in para. (a) and nowhere else.

Paragraph (a) prohibits the admission of "evidence of other

crimes, wrongs or acts" to prove propensity, with two

exceptions. Such "other acts" evidence is admissible in criminal prosecutions alleging the crimes set forth in para.

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(b)2 and such evidence is admissible for a purpose other than

propensity in any proceedings. By contrast, para. (a) does not

explicitly except para. (b)1 from its provisions. The pivotal

question then is whether para. (a)'s prohibition against

propensity evidence and its requirement of a permissible purpose

apply to para. (b)1. I conclude they do not.

¶67 "It is a cardinal rule of statutory construction that

when a general and a specific statute relate to the same subject

matter, the specific statute controls and this is especially

true when the specific statute is enacted after the enactment of

the general statute." Martineau v. State Conservation Comm'n,

46 Wis. 2d 443, 449, 175 N.W.2d 206 (1970) (citing Raisanen v.

City of Milwaukee, 35 Wis. 2d 504, 516, 151 N.W.2d 129 (1967));

City of Wauwatosa v. Grunewald, 18 Wis. 2d 83, 87, 118

N.W.2d 128 (1962); Pruitt v. State, 16 Wis. 2d 169, 173-74, 114

N.W.2d 148 (1962); Maier v. Racine Cty., 1 Wis. 2d 384, 388, 84

N.W.2d 76 (1957); see also State v. Wilson, 2017 WI 63, ¶35, 376

Wis. 2d 92, 896 N.W.2d 682 ("[W]here a specific statutory provision leads in one direction and a general statutory

provision in another, the specific statutory provision

controls." (quoted source omitted)); State v. Schaefer, 2008 WI

25, ¶47, 308 Wis. 2d 279, 746 N.W.2d 457.2 Here, paras. (a) and

2 The majority does not apply the well-established "specific statute controls over a general statute" rule, which has been repeatedly adopted by this court in prior statutory construction cases. See, e.g., Belding v. Demoulin, 2014 WI 8, ¶17, 352 Wis. 2d 359, 842 N.W.2d 373; Emjay Inv. Co. v. Vill. Of Germantown, 2011 WI 31, ¶38, 333 Wis. 2d 252, 797 N.W.2d 844; Kramer v. City of Hayward, 57 Wis. 2d 302, 311, 203 N.W.2d 872 (1973). Instead, the majority applies the "expressio unius est (continued) 4 No. 2015AP648-CR.rgb

(b)1 both relate to the admission of evidence. Paragraph (a)

broadly covers any civil or criminal action, applies to the

defendant as well as any witness who testifies, and addresses

"crimes, wrongs, or acts." Paragraph (b) specifically covers

only particular sensitive crimes, applies only to "similar

acts," and is limited to evidence against the defendant. There

can be no dispute that para. (b)1 is the more specific statute.

Thus, the admission of the challenged evidence should be

analyzed only under para. (b)1.

¶68 The majority says the statute is ambiguous because the

plain language of para. (a) conflicts with para. (b)1. It then

concludes that para. (b)1's only meaning is to give greater

latitude to the admission of other-acts evidence in domestic

violence cases. The majority gives two reasons for its

conclusion: (1) the explicit exception referenced in para. (a)

means para. (b)1 cannot operate as an exception; and (2) the

title "Greater latitude" resolves the ambiguity and gives

meaning to (b)1. Majority op., ¶¶29-33.

exclusion alterius" canon ("The expression of one thing implies the exclusion of others.") by citing exclusively to Reading Law: The Interpretation of Legal Texts. Majority op., ¶29 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107-11 (2012)). However, Reading Law also instructs, consistent with well-established Wisconsin law, that "[i]f there is a conflict between a general provision and a specific provision, the specific provision prevails." Scalia & Garner, supra, at 183. Particularly pertinent to reconciling Wis. Stat. § 904.04(2)(a) with § 904.04(2)(b)(1), "[u]nder this [general/specific] canon, the specific provision is treated as an exception to the general rule." Id.

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¶69 The majority's interpretation, however, results in the

newly enacted para. (b)1 being swallowed by para. (a). Before

the enactment of para. (b)1, all "other acts" evidence in the

specifically enumerated crimes in para. (b)1 was subject to

already-existing para. (a). In other words, in a domestic

violence case like this one, if the State wanted to introduce

evidence of Dorsey's prior similar bad acts toward R.K., it

would need to clear the three-part Sullivan analysis. The

majority holds that despite the legislature's revision to Wis.

Stat. § 904.04(2), admission of other-acts evidence in sensitive

crimes cases remains subject to a Sullivan analysis.

¶70 The majority holds Sullivan still controls the

admission of evidence under the newly-enacted para. (b)1. It

determines the only effect of this statutory paragraph was to

give greater latitude when admitting other-acts evidence in

domestic abuse cases. Under this construction, all of the other

statutory language of para. (b)1 is rendered superfluous. The

legislature might as well have limited para. (b)1 to say "courts shall give greater latitude under the Sullivan test in domestic

violence cases." After all, the greater latitude rule already

applied to sexual assault crimes before the enactment of

para. (b)1. See State v. Davidson, 2000 WI 91, ¶44, 236

Wis. 2d 537, 613 N.W.2d 606. The majority's interpretation

violates the fundamental rule of statutory construction

requiring courts to give effect to all statutory provisions "so

that no part will be inoperative or superfluous." See Kalal, 271 Wis. 2d 633, ¶46; see also Clark v. Rameker, 134 S. Ct.

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2242, 2248 (2014) (quoted source omitted). Statutes should be

"read where possible to give reasonable effect to every word, in

order to avoid surplusage." Kalal, 271 Wis. 2d 633, ¶46.

¶71 This can be done quite simply in this case by adopting

a plain meaning interpretation. Under that interpretation,

admission of other-acts evidence in cases not specifically

enumerated in para. (b)1 will continue to be governed by the

Sullivan three-part analysis. Those cases are confined to the

limitations set out in the language of para. (a) and evidence is

inadmissible unless a party proffers a permissible purpose (and

clears the second and third part of the Sullivan analysis). In

the specifically identified criminal actions prosecuting

sensitive crimes under para. (b)1, the admission of evidence

will not require a particular purpose to secure admission.

Rather, it will be admitted if it constitutes a "similar act."

Its admission, like all proffered evidence, is subject to Wis.

Stat. § 904.01's relevancy requirement and may be excluded even

if relevant under Wis. Stat. § 904.03's unfair prejudice test. See Davidson, 236 Wis. 2d 537, ¶34 (noting that to be admitted,

all evidence "must be relevant under" Wis. Stat. § 904.01 and

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must clear Wis. Stat. § 904.03's unfairly prejudicial balancing

test.).3

¶72 I am not persuaded by the majority's position that

because para. (a) specifically excepts para. (b)2, this means

that para. (b)1 cannot operate independently from para. (a).

Paragraph (b)1's own language operates to except it from

para. (a) and this is the only interpretation of the statute

that gives effect to every provision. And under the

general/specific canon, the specific provision——here,

para. (b)1——is treated as an exception to the general rule,

embodied here in para. (a). Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 183 (2012).

¶73 I am also not persuaded that the only meaning given to

para. (b)1 arises from its title——"Greater latitude." The title

3 The majority says it does not know how the plain meaning of this statute would work in conjunction with the "relevance" and "unfair prejudice" tests: "[I]t is not clear how a party could establish relevance under Wis. Stat. § 904.01, or pass the balancing test under § 904.03, without proffering a 'purpose' (relevance) that is 'permissible' (not substantially outweighed by the danger of unfair prejudice)." Majority op., ¶35 n.25. The permissible purpose, of course, is to establish that the defendant acted in conformity with the character established by the "similar acts" evidence. That is the same permissible purpose the legislature authorized in subsec. (2)(b)2 (evidence of conviction on comparable offenses admissible as "evidence of the person's character in order to show that the person acted in conformity therewith."). There is nothing the majority can say on this score with respect to subsec. (2)(b)1 that would not apply with equal force to subsec. (2)(b)2. The majority is obviously uncomfortable with this policy change, but our role is not to judge the wisdom of a legislative choice. It is only to apply it insofar as it is consistent with the Wisconsin and United States Constitutions.

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of the statute is not part of the statute. See Wis. Stat.

§ 990.001(6) ("titles to subchapters, subsections, paragraphs

and subdivisions of the statutes and history notes are not part

of the statutes."). Although titles may be helpful in

interpreting a statute, the "text must control over title."

Aiello v. Vill. of Pleasant Prairie, 206 Wis. 2d 68, 73, 556

N.W.2d 697 (1996). "[A] title or heading should never be

allowed to override the plain words of a text." Scalia &

Garner, supra ¶12, at 222. Here, the text of the statute itself

expresses the meaning of para. (b)1, and it is the text itself,

rather than its title, that makes evidence of "similar acts" in

sensitive crimes cases admissible without requiring the State to

establish a permissible purpose. "[The] heading is but a

shorthand reference to the general subject matter involved."

Scalia & Garner, supra ¶12, at 221 (quoting Brotherhood of R.R.

Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 529-29 (1947)).

Here, the title "Greater latitude" is an apt description of the

text that follows, because in certain criminal proceedings, evidence that would otherwise be inadmissible without clearing

the Sullivan hurdles is made admissible, period. However, the

majority misapplies the title to read into subsec. (2)(b)1

evidentiary preconditions wholly absent from the text.

¶74 The majority says we must ignore the plain meaning of

subsec. (2)(b)1 because it "creates a conflict . . . in the

context of subsec. (1), which embodies the general purpose of

rule 904.04 'to exclude use of other misdeeds to prove character in order to prove guilt.'" Majority op., ¶28 n.23. In one

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sense, this arguably creates a "conflict" because the scope of

Wis. Stat. § 904.04(1) after adoption of subsec. (2)(b)1 is not

as great as before. But when the legislature adopts a new

provision that is inconsistent with an existing provision, we

don't call it a "conflict," we call it an amendment. Yes,

adoption of subsec. (2)(b)1 limited the general purpose of

proscribing the use of "other acts" evidence to prove

propensity. But on what authority does the majority reject this

valid legislative choice?

¶75 The majority objects to the legislature's change

because it "would effectively repeal the exclusionary purpose of

the rule, which is supported by four long-standing and oft-cited

rationales . . . ." Majority op., ¶28 n.23.4 It is true that

the rationales are long-standing and oft-cited. But so what?

Do we really propose a pitched battle between our rationales and

the legislature regarding a subject on which it has the

authority to legislate? Even if our rationales had enjoyed

universal acclamation from the beginning of time, still they would have no standing against the legislature's decision to

change this policy. This discussion suggests the court rejected

the plain meaning of subsec. (2)(b)1 simply because it altered

the status quo ante that had obtained in Wis. Stat. § 904.04(1).

4 This significantly overstates the reach of subsec. (2)(b)1, which is limited to the identified types of cases. But within those types of cases, the majority is correct that it would repeal the exclusionary purpose of the general rule. But this repeal is accomplished by the legislature's pen, not ours, and it is the legislature's prerogative to do so.

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¶76 The majority replaces the legislature's policy choices

with what it characterizes as its own "more prudent approach."

Majority op., ¶28 n.23. This method of interpretation,

sometimes termed consequentialism, rejects the statutory text in

favor of a construction that will "produce sensible, desirable

results, since that is surely what the legislature must have

intended. But it is precisely because people differ over what

is sensible and what is desirable that we elect those who will

write our laws——and expect courts to observe what has been

written." Scalia & Garner, supra ¶12, at 22. Our "duty to

provide meaningful guidance[,]" see majority op., ¶28 n.23, to

the bench and bar cannot override our duty to say what the law

is and not what we may wish it to be. Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803).

¶77 The majority also shies away from the plain meaning of

subsec. (2)(b)1 because it does not contain a comprehensive set

of interpretive aids to help the bench, bar, and juries

understand the meaning of "similar acts." Majority op., ¶28 n.23. It worries this "would result in appeal after appeal, and

would require opinion after opinion" to determine the proper

application of this provision. That may be true. But that's

also the reason we are here. And "similar acts" is not so

ethereal or exotic that we should struggle with it more than,

say, the meaning of "comparable offenses" (subsec. (2)(b)2) that

are "similar to the alleged violation," id., or "pertinent

trait" (subsec. (1)(a) & (b)), or the purposes for which "other acts" evidence may be admitted under subsec. (2)(a).

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Ultimately, this objection is a category error——the judiciary

may not refuse a statutory enactment because it will require too

much future interpretative work.

¶78 Applying the plain meaning of the text to the

challenged evidence here, I conclude the trial court did not

erroneously exercise its discretion in allowing its admission.

For these reasons, I respectfully concur.

¶79 I am authorized to state that Justice DANIEL KELLY

joins this concurrence.

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