Abuse of Discretion – Other-acts Evidence

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Brian S. O’Toole

Case No.: 2018AP1726-CR

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Abuse of Discretion – Other-acts Evidence

Brian S. O’Toole appeals from a judgment convicting him of first-degree sexual assault of a child, as a persistent repeater, and an order denying his postconviction motion. O’Toole argues that the circuit court: (1) erroneously exercised its discretion in admitting other-acts evidence of a prior sexual assault and a restraining order, (2) improperly allowed the jury to use the other acts as evidence of O’Toole’s propensity to commit sexual assaults, and (3) made erroneous evidentiary rulings at trial. O’Toole also argues that application of the greater latitude rule to the prejudice prong of the court’s other acts analysis violated his due process right to a fair trial, and that the prosecutor’s closing arguments improperly shifted and lowered the applicable burden of proof. For the reasons that follow, we affirm.

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.