Admittance of Evidence – Other-acts Evidence

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Frank P. Smogoleski

Case No.: 2019AP1780-CR

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

Focus: Admittance of Evidence – Other-acts Evidence 

Frank P. Smogoleski was charged with second-degree sexual assault of a person under the influence of an intoxicant. At Smogoleski’s preliminary examination, Jon testified that he saw a naked Smogoleski on top of an intoxicated, asleep seventeen-year-old female whose pants and underwear were around her ankles. Jon passed away a month later. The State appeals, pursuant to WIS. STAT. § 974.05(1)(d)2., from two pretrial orders of the circuit court denying the State’s motions to admit Jon’s preliminary examination testimony at trial and to admit other-acts evidence. As we conclude that Smogoleski’s Sixth Amendment Confrontation Clause rights will not be violated by admitting Jon’s preliminary examination testimony at trial and we agree with the State that the circuit court erred in denying the State’s other-acts motion, we reverse and remand for further proceedings consistent with this decision.

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