State v. Morris V. Seaton, 2021AP1399-CR, 11/6/24, District II (recommended for publication); case activity
In a case confirming the changes wrought to other acts case law as a result of the codification of the greater latitude rule, COA reverses the circuit court’s order excluding evidence of a prior sexual assault
Seaton was charged with third-degree sexual assault and is alleged to have assaulted his former high school classmate after she became inebriated at a party. (¶2). Prior to trial, the State sought to admit evidence that Seaton had sexually assaulted another classmate at a drinking party approximately 1.5 years earlier. (¶4). However, the circuit court determined that the evidence was not admissible, as it believed the State failed to articulate a permissible purpose for its introduction at trial. (¶11). COA reverses, and holds that the evidence satisfies all three prongs of the Sullivan test:
Permissible Purpose
Under Sullivan, the first step asks whether the other act is being offered for a permissible (non-propensity) purpose. (¶15). COA observes that this prong of Sullivan is not meant to be “difficult” to satisfy. (Id.). Moreover, the greater latitude rule in § 904.04(2)(b)1 “adds a thumb on the scale of admissibility when considering each prong of the Sullivan analysis.” (¶16). In this case, the State identified a laundry list of such permissible purposes–“motive, identity, plan, opportunity, modus operandi, intent, context, and credibility.” (¶17). COA reads SCOW’s decision in State v. Dorsey as necessitating only a “limited showing” to satisfy this prong in a post-greater latitude world; simply verbalizing a permissible purpose should be sufficient to meet the standard. (¶18). The State has done so here. (Id.).
Moreover, COA also faults the circuit court for not recognizing that bolstering of credibility is a permissible purpose under the statute and SCOW’s decision in State v. Marinez. (¶19).
Relevance
The second factor asks whether the other acts evidence satisfies the two-pronged relevancy test. (¶21). Notably, to find the evidence relevant, COA first has to deal with SCOW’s decision in State v. Alsteen, which held that when the defendant claims the alleged victim consented, evidence of a prior sexual assault of a different victim is not relevant to prove lack of consent. (¶24). However, COA establishes that the holding of Alsteen is weakened by the legislature’s codification of a broader greater latitude rule, a legal development which occurred several decades after Alsteen and could be seen as directly responsive to that precedent. (¶25). Moreover, SCOW’s decision in Dorsey confirms that “bolstering a current alleged victim’s credibility at trial is a relevant use of other acts evidence in he-said-she-said type cases.” (¶28). Admission of the prior sexual assault will therefore assist the jury in assessing the credibility of the competing accounts with respect to whether consent was given or withdrawn. (¶30).
COA also holds that the evidence is relevant to establishing Seaton’s modus operandi and therefore rebutting his claims of a consensual encounter. (¶31). It is also relevant to prove motive–“to obtain sexual gratification” despite the alleged victim’s request that he stop. (¶32). Moreover, the evidence would also be relevant to rebut a potential “misunderstanding” defense, as it would make it less likely that “Seaton misunderstood or did not hear Anna’s withdrawal of consent and more likely he simply disregarded it.” (¶34). Finally, COA rejects the circuit court’s finding that the acts were insufficiently similar and holds that the other acts are not so dated as to be irrelevant. (¶35).
Evidentiary Balancing Test
As to the third step, COA holds that “[t]he similarities between” the two assaults “make the other acts evidence highly probative.” (¶37). Moreover, COA rejects any argument that this evidence will “unfairly” prejudice Seaton, especially given that he can obtain a cautionary instruction if he so wishes. (Id.).
This case is interesting from an appellate procedure perspective. COA originally certified the opinion to SCOW, believing that SCOW needed to resolve the issue as to whether Alsteen was still good law given the legislature’s adoption of a greater latitude rule. This makes sense, as COA does not have the power to overrule that authority. However, given Justice Protasiewicz’s recusal, SCOW tied and booted the case back to COA. Thus, COA is now forced to “distinguish” Alsteen and, in this published decision, to effectively overrule that decision as well its prior decision in State v. Cofield.
Although Seaton will surely petition for review of this decision–and maybe even argue that COA is not permitted to reach the holdings it has–the question then becomes: now what? The membership of the court has not changed; absent an abrupt switch in legal position, it looks unlikely that this published decision will be further reviewed.
Although the defense loses this round, I’m encouraged to see the COA using certain language that draws attention to the plain flaws in general approach of the GLR. Courts should not be in the business of placing thumbs on the scale, or bolstering credibility. Admitting less relevant and more prejudicial evidence into trial increases the risk that the innocent are convicted, and makes it easier for bad actors to weaponize the justice system. Convicting the innocent does not reduce sex assault. Just the opposite, for it corrodes respect for the law.