State v. Dorsey

379 Wis.2d 386

906 N.W.2d 158

2018 WI 10

STATE of Wisconsin, Plaintiff-Respondent,

v.Anton R. DORSEY, Defendant-Appellant-Petitioner.

No. 2015AP648-CR

Supreme Court of Wisconsin.

Oral Argument: October 23, 2017

Opinion Filed: January 25, 2018

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.

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This is a review of an unpublished decision of the court of appeals, State v. Dorsey, No. 2015AP648-CR, unpublished slip op., 373 Wis. 2d 308, 2016 WL 7108525 (Wis.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 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 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) 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:

(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 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, 576 N.W.2d 30.

¶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 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 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.

¶14 As to...