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BENCH BLOG: Court opens door for more ‘other-acts evidence’

By: Jean DiMotto//April 16, 2015//

BENCH BLOG: Court opens door for more ‘other-acts evidence’

By: Jean DiMotto//April 16, 2015//

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Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at [email protected].

In keeping with last year’s legislative changes to the state’s other-acts evidence statute, the conservative majority on the Wisconsin Supreme Court took a recent case involving the sexual assault of a child as an occasion to liberalize its application of this sort of evidence.

The case concerned Joel Hurley, a Marinette County man who had been charged with one count of repeatedly sexually assaulting his stepdaughter. The count stemmed from more than 25 incidents of sexual contact that had occurred when the child was between the ages of 6 and 11.

Even before any of the 25 occurrences, Hurley had “played a type of game with her.” He had chased her around the house when her mother was away and had taken off her clothes when he caught her.

Approximately five of the 25 alleged incidents involved Hurley digitally penetrating his stepdaughter’s vagina in her bedroom at night. The remaining incidents occurred when she came home from grammar school. Hurley would take off her clothes, put her on his shoulders, take her into the bathroom and weigh her.

On one of the latest occasions, she was in the shower after school. Hurley entered wearing only his underwear.

He asked her if she was going to tell her mother and, when she answered “yes,” he climbed back out.

Other-acts evidence

The state moved in limine to introduce other-acts evidence stemming from Hurley’s molestation of his younger sister when both were children. Hurley was between 12 and 14 years old at the time and his sister was between 8 and 10.

The abuse involved oral sex as well as instances of digital vaginal penetration. As prelude to the abuse, Hurley had his sister remove her clothes and put on a fur coat, then come into the house’s main bedroom when their parents were away and slowly remove the coat, “like a strip-tease.”

The state argued that the evidence was admissible because of the similarity of the assaults. Each: 1) involved digital vaginal penetration; 2) had victims who were relatively of the same age; and 3) and took place in a “familial setting.”

The defense argued that the evidence was: 1) not being offered for a permissible purpose but rather to suggest that Hurley had a propensity to sexually assault children; 2) irrelevant because the acts with his sister were “the acts of two children;” and 3) unfairly prejudicial because incest between a brother and sister is “so horrifying” that a jury might convict on that fact alone.

The Circuit Court for Marinette County, with Judge David Miron presiding, determined that the previous acts bore “great similarity” to the current case because: 1) the victims were in the same age range; 2) each had been asked by Hurley to play some sort of game with each; and 3) each had been assaulted by digital vaginal penetration by a trusted family member in a private bedroom.

Accordingly, Judge Miron found that the evidence was offered for the permissible purposes of modus operandi, as well as for establishing that an opportunity had existed to commit the crime that was charged. While he permitted the state to introduce the other-acts evidence, he gave limiting instructions so that the jury would not regard the other bad acts as propensity evidence.

Hurley was found guilty, convicted and sentenced to 25 years of imprisonment. He appealed.

Court of Appeals decision

The District 3 Court of Appeals took up the matter of other-acts evidence in an unpublished per curiam decision. The court disagreed with Judge Miron’s finding of two permissible purposes.

First, “Hurley argues convincingly that the assaults alleged by (his sister) are not probative of Hurley’s opportunity to assault (his stepdaughter) fifteen years later.” The State conceded the matter by not responding to Hurley’s argument.

Second, the “only true similarity between the alleged assaults is the victims’ ages.” Differences abounded: the vaginal penetration was surrounded by more frequent and a wider variety of sexual contact, the “games” Hurley played with each were dissimilar as was the number of times he played them, Hurley’s relationship to each victim was different, and Hurley was older in one case and younger in the other.

According to the appeals court, it was Hurley’s age difference that undercut the state’s argument that the evidence was relevant to intent or motive. “Because of the considerable changes in character that most individuals experience between childhood and adulthood, behavior that occurred when the defendant was a minor is much less probative than behavior that occurred while the defendant was an adult.”

Even had the evidence been relevant, the court concluded it would have been outweighed by the danger of unfair prejudice. Evidence of repeated acts of sibling incest “was likely to arouse the jury’s sense of horror and instinct to punish.” The prejudice could not be cured because there was no proper purpose for admitting the evidence in the first place.

Supreme Court opinion

The state Supreme Court issued a diametrically opposed opinion. In a lengthy and repetitive decision, Justice Michael Gableman held that Judge Miron had not erred in exercising his discretion to admit the other-acts evidence.

The court noted that the permissible purpose of using modus operandi to prove Hurley’s plan was demonstrated through the similarities that existed between the charged offense and the other-acts evidence. The victims, the court pointed out, 1) were similar in age; 2) were members of Hurley’s immediate family; 3) had lived in the same household as Hurley; 4) were female; 5) were younger than Hurley; 6) trusted Hurley and were controlled by him; 7) were assaulted with digital penetration; 8) were assaulted in a bedroom of their home; 9) were assaulted repeatedly over a period of years; and 10) had participated in a stripping game before being assaulted. In addition, Hurley attempted to dissuade the victims from coming forward by asking each if she was going to tell her mother.

These “striking” similarities outweighed the fact that Hurley committed the assaults at separate times in his life and thus was not the same age in each case.

The Supreme Court, as had the court, identified the probative value of the evidence as bolstering the stepdaughter’s credibility. Although the stepdaughter was 17 years old at the time she testified, the “greater latitude” rule still applied to her.

Lastly, the court concluded that the danger of unfair prejudice was cured by limiting instructions, which juries are presumed to follow.

Dissent

In a short dissent, Chief Justice Shirley Abrahamson agreed with the Court of Appeals that the other-acts evidence here failed on each prong of the State v. Sullivan analysis, and was offered for propensity purposes.

“[T]he majority opinion adds to the growing body of case law whittling away at the protections afforded to defendants by Wis. Stat. § 904.02(2).”

Commentary

The Court of Appeals’ decision seems to rest more on common sense, but the Supreme Court decision in the Hurley case is more consonant with the 2014 legislative broadening of the admissibility of other-acts evidence in sexual assault cases, even though this case was prosecuted before the change in law.

Nonetheless, the majority seemed to strain when identifying similarities in the other-acts evidence here, to the point of making much of the fact that the victims were of the same sex.

The opinion demonstrates that even thin links between the charged offense and prior bad acts are sufficient. Thus, the decision is instructive to judges when analyzing other-acts evidence and to prosecutors in preparing sexual-assault cases.

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