Aug. 29, 2024 – In a case of first impression, the Wisconsin Court of Appeals (District III) has applied the other-acts evidence statute to a sexual assault case.
In State v. Hill, 2022AP1718 (Aug. 6, 2024), the Court of Appeals held that the analysis for admitting other-acts evidence under State v. Sullivan, 216 Wis. 2d 768, 576 N.W. 2d 30 (1998), doesn’t apply to prior conviction evidence sought to be admitted under section 904.04(2)(b).
In August 2022, the Douglas County District Attorney charged Kenneth Hill with two counts of first-degree sexual assault of a child. Each charge arose out of an incident in which Hill allegedly digitally penetrated a 12-year-old girl.
During a pre-trial hearing, the State moved pursuant to Wis. Stat. section 904.04(2)(b)2 to admit proof that Hill had been convicted of sexually assaulting a child in 1984 in Minnesota.
Under section 904.04(2)(b)2, to be admitted, a prior conviction from another jurisdiction: 1) must be a “comparable offense” to the offenses listed in section 940.225(1) (sexual assault) or section 948.02(1) (sexual assault of a child); and 2) the circumstances underlying the prior conviction and the defendant’s alleged Wisconsin violation must be similar.
The 1984 conviction arose out of an incident in which Hill crept into the bed of a 10- or 11-year-old girl
The Douglas County Circuit Court denied the state’s motion. The circuit court concluded that while the Minnesota conviction was comparable to the Wisconsin charges, the factual dissimilarities between the Minnesota and Wisconsin violations outweighed the similarities.
The state appealed. While the case was on appeal, in June 2023, the circuit court dismissed the charges against Hill.
Convictions Are Comparable
The State argued that the circuit court erred in the following ways:
- failing to apply the “greater latitude” rule in conducting a similarity analysis under section 904.04(2)(b)2; and
- applying Sullivan’s three-prong test for other-acts evidence to the prior-conviction evidence subject to section 904.04(2)(b)2.
In an opinion written by Presiding Judge Lisa Stark, a three-judge panel concluded that to perform the comparable analysis, a court must compare the elements of the prior out-of-state offense and the Wisconsin offense and “determine if the statutes are ‘worthy of being considered equivalent or categorically similar’ but not identical.”
The panel concluded that the circuit court was correct in its ruling that the Minnesota conviction was comparable to section 948.02(1).
“Both statutes criminalize conduct as a first-degree crime, both statutes criminalize sexual penetration/intercourse, both statutes contain an age element, and both statutes contain provisions addressing the use or threat of force or violence and bodily harm,” Stark wrote.
Jeff M. Brown, Willamette Univ. School of Law 1997, was a legal writer for the State Bar of Wisconsin.
Circumstances Are Similar
The panel concluded that the circuit court erred by determining that the circumstances underlying the 1984 Minnesota conviction and the alleged Wisconsin violations were dissimilar.
Judge Stark wrote that section 904.04(2)(b)2 “does not, by its plain language, require that the factual circumstances of the prior conviction and the current charge(s) be identical, strictly similar, exactly similar, or more similar than not.”
The panel concluded that the circuit court erred by ruling that the circumstances underlying the Minnesota conviction and the alleged Wisconsin violations were dissimilar.
The circuit court based its determination of dissimilarity in part on: 1) to the fact Hill was much younger at the time of the violation that gave rise to the 1984 conviction; and 2) the nearly 40-year gap between that conduct and the conduct that led to the 2022 charges in Wisconsin.
The State conceded that those dissimilarities were significant. But the circuit court’s focus on those dissimilarities, Stark wrote for the panel, “set the bar too high.”
“The prior-conviction statute does not require that the cases be the same or more similar than different,” Judge Stark wrote. “The statute merely asks whether the cases are similar, and the answer to that question is subject to the greater latitude rule.”
The panel pointed out that, under State v. Dorsey, 2018 WI 10, 906 N.W. 2d 158, the Wisconsin Supreme Court held section 904.04(2)(b)(1) allows a court to admit other acts evidence with greater latitude that would be allowed under the Sullivan test.
The panel conclude that the “greater latitude” principle applied to all of section 904.04(2)(b).
Sullivan Test Doesn’t Apply
The circuit court based its denial of the State’s motion in part on a conclusion that Sullivan’s three-pronged test was applicable to section 904.04(2)(b)2.
In Sullivan, the Court of Appeals established the following three-prong test for admitting other-acts evidence:
- is the other acts evidence offered for a proper purpose under section 904.04(2)?
- is the other acts evidence relevant under section 904.01? and
- is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice?
Stark wrote that the Sullivan test does not apply to evidence sought to be admitted under section 904.04(2)(b), because of “the legislature’s clear intent to lower obstacles to the admission of propensity evidence in a very narrow class of cases.”
“Evidence of a prior conviction could always have been introduced under Wis. Stat. section 904.04(2)(a), subject to the Sullivan analysis; therefore, there had to be a purpose for the legislature to create a narrow exception to section 904.04(2)(a)’s requirements for specific crimes,” Judge Stark wrote.
Rather than pass the Sullivan test, the panel concluded, evidence sought to be admitted under section 904.04(2)(b) must only: 1) be relevant under section 904.01; and 2) pass the balancing test under section 904.03.
Only Fact of Conviction
The panel also concluded that under section 904.04(2)(b), only the fact of the conviction, and not the details underlying the conviction, may be admitted as evidence.
“The prior conviction statute utilizes the phrase ‘evidence that a person was convicted’ to describe the type of evidence that is admissible, demonstrating to this court that the admissible ‘evidence’ is proof that the person was previously found guilty of one of the listed crimes,” Judge Stark wrote.
