State v. Kenneth W. Hill, 2022AP1718-CR, 8/6/24, District III (recommended for publication); case activity
The state appealed after the circuit court denied its motion seeking to admit Hill’s 1984 conviction from Minnesota for “criminal sexual conduct in the first degree” pursuant to Wis. Stat. § 904.04(2)(b)2. at his trials for two counts of first-degree sexual assault of a child. The court of appeals reverses and remands with directions, outlining the relevant analysis, holding that the admissible evidence includes only the fact of the conviction, not the underlying details of the prior case, and concluding that the Sullivan analysis does not apply. (¶2).
In this published decision, the COA considers three issues: 1) the proper interpretation of the prior-conviction statute; 2) the standard for the admission of evidence under the prior-conviction statute; and 3) whether the circuit court properly excluded evidence of Hill’s 1984 conviction in this case. (¶10).
Statutory Interpretation
The prior-conviction statute, § 904.04(2)(b)2., is “an exception to the rule that prohibits other-acts evidence from being offered to prove conduct.” State v. Gee, 2019 WI App 31, ¶22, 388 Wis. 2d 68, 931 N.W.2d 287. (¶12). The statute provides:
In a criminal proceeding alleging a violation of [Wis. Stat. §§] 940.225(1) or 948.02(1), sub. (1) and par. (a) do not prohibit admitting evidence that a person was convicted of a violation of [§§] 940.225(1) or 948.02(1) or a comparable offense in another jurisdiction, that is similar to the alleged violation, as evidence of the person’s character in order to show that the person acted in conformity therewith.
(¶12).
The court holds that some of the language is clear (¶¶15-16), and turns to three main questions:”(1) how do courts determine whether a conviction is ‘a comparable offense in another jurisdiction’; (2) what information is admitted into evidence based on the phrase ‘evidence that a person was convicted’; and (3) what does it mean for a prior conviction to be ‘similar to the alleged violation’?” (¶17).
The COA holds that circuit courts should review the other jurisdiction’s criminal statute including the titles of the statutes and elements of the offenses and compare it to Wis. Stat. §§ 940.225(1) or 948.02(1) to determine if the statute is “a comparable offense” subject to the greater latitude rule. (¶¶2, 21). As to the second statutory interpretation question, the COA compares the language to that of Wis. Stat. § 906.09, which it finds most similar, and concludes that only evidence of a prior conviction under WIS. STAT. §§ 940.225(1), 948.02(1), or a comparable offense in another jurisdiction may be admitted under the prior-conviction statute, not the factual details of the prior case. (¶¶26-28). “Therefore, if the circuit court determines that prior-conviction statute evidence is admissible, the jury should be informed simply that the individual has been previously convicted of first-degree sexual assault of an adult or first-degree sexual assault of a child in Wisconsin, whichever is applicable, or a comparable offense in another jurisdiction.”
Third, to determine whether the prior conviction is “similar to the alleged violation,” the court reviews the underlying circumstances of the current charge(s) and those of the prior conviction to determine whether they are similar, also subject to the greater latitude rule. (¶¶2, 32-33).
Standard for the Admission of Evidence
The COA agrees with the state that the Sullivan analysis is not applicable to prior conviction evidence. (¶¶35-47). “Instead, the admission of evidence under this statute is, like all proffered evidence, subject to the requirements that the evidence be relevant, see Wis. Stat. § 904.01, and that it overcomes the Wis. Stat. § 904.03 balancing test . . . .” (¶38).
In other words, the question before the circuit court would be whether the probative value of evidence that a person was previously convicted of first-degree sexual assault of an adult or child or a comparable offense in another jurisdiction, absent any details of the case, is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See Wis. Stat. § 904.03. The court should consider all of these § 904.03 factors in its analysis.
(¶47). The COA concludes that the greater latitude rule (“Wisconsin has a long common law tradition of applying more relaxed standards to the admissibility of other[-]acts evidence of similar crimes in sexual assault cases,” Gee, 388 Wis. 2d 68, ¶26) applies to “all aspects of the statute’s analysis to allow for the more liberal admission of evidence of a prior conviction for first-degree sexual assault of an adult or a child . . . .” (¶¶49-50). However, the court acknowledges that prior conviction evidence “is not automatically admissible” and circuit courts must still apply the rules of evidence. (¶50).
Application to this Case
The COA holds that the circuit court failed to correctly analyze the evidentiary requirements of the prior-conviction statute, which then led it to apply an incorrect legal standard to the question of whether the evidence was admissible. (¶54). The court therefore reverses and remands for the circuit court to apply the Wis Stat. § 904.03 admissibility standard to Hill’s 1984 conviction.
