By: WISCONSIN LAW JOURNAL STAFF//April 9, 2013//
Wisconsin Court of Appeals
Criminal
Evidence — other acts
In a sexual assault trial against a school bus driver, the trial court erroneously excluded evidence that the victim was facing expulsion, because it provided motive for her to lie.
“Applying the Sullivan framework here, we conclude, first, that the evidence was offered for an acceptable purpose: showing that the student had a motive to fabricate the assault. See id. at 772. If, as Echols portends, the school documents do show that the student had signed a ‘behavioral contract’ just before the assault occurred, and if that contract threatened expulsion should the student become involved in another school-related altercation, the documents would show that the student had a motive to lie about the assault. According to Echols, the student had thrown a snowball at him while he was driving the bus about two weeks before the alleged assault, and, on the morning of the alleged assault, she was threatening to do it again.”
“Second, contrary to what the trial court found and what the State argues on appeal, this evidence is relevant. See id. The evidence is relevant to show the student knew she would very likely be expelled for throwing and/or threatening to throw a snowball, and that she was trying to point a finger at Echols’ alleged wrongdoing in order to divert attention from her own.”
Reversed and Remanded.
Recommended for publication in the official reports.
Dist. I, Milwaukee County, Dallet, J., Curley, J.
Attorneys: For Appellant: Grass, Gary, Milwaukee; For Respondent: Balistreri, Thomas J., Madison; Loebel, Karen A., Milwaukee