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State v. Dorsey

Court of Appeals of Wisconsin, District III

August 30, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Anton R. Dorsey, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Eau Claire County No. 2014CF204 PAUL J. LENZ, Judge.

          Before Stark, P.J., Hruz and Seidl, JJ.

          SEIDL, J.

         ¶1 Anton Dorsey appeals a judgment of conviction for one count of misdemeanor battery, one count of disorderly conduct, and one count of aggravated battery, with the latter two counts having been charged as acts of domestic abuse, pursuant to Wis . Stat . §§ 973.055(1). [1] The jury acquitted Dorsey of a charge of strangulation and suffocation. Dorsey's sole challenge on appeal is the circuit court's admission of certain other-acts evidence. This issue requires us to address recent legislative changes to the greater latitude rule provided for in Wis.Stat. § 904.04(2)(b)1. Because we hold the circuit court properly admitted the other-acts evidence, we affirm the judgment of conviction.

         BACKGROUND

         ¶2 Dorsey's charges all involved his actions against C.B., who was Dorsey's girlfriend at the relevant times. The charge of strangulation and suffocation occurred on October 13, 2013. The charge of misdemeanor battery arose from Dorsey's conduct in December 2013 or January 2014. C.B. testified Dorsey was at her home when he became upset. C.B. was on her bed, facing away from Dorsey because she did not want to talk to him. Dorsey insisted on discussing their disagreement, turned C.B. around, and "flipped" his finger at her lip, causing her to bleed. He then threw a Kleenex box at C.B. and asked her why she lies to him all the time. Dorsey then grabbed C.B. by the arm and the waist to force her to make eye contact with him, at which point he spat in her face. When C.B. tried to turn away, Dorsey hit her with an open hand on the side of her head.

         ¶3 The charges of disorderly conduct and aggravated battery arose from Dorsey's actions in March 2014. C.B. testified Dorsey began living with her in February 2014. Dorsey and C.B. had planned to go out for a drink when Dorsey began to question why she was talking to her husband, from whom she was separated. While still in the car outside the bar, Dorsey demanded to see C.B.'s phone and began to read her text messages. He discovered some messages between C.B. and a male friend and then accused C.B. of sleeping with that male friend. Out of fear, C.B. exited the car and tried to get the attention of a person in a nearby office. Dorsey followed her and pushed her against the side of the building. At that time, some people walked by, and Dorsey and C.B. returned to the car to talk briefly. Dorsey then stayed at the bar, while C.B. returned home.

         ¶4 When Dorsey returned home that night, there was no discussion of what had occurred earlier. The next morning, C.B. awoke to find Dorsey's face approximately four inches from her face. Dorsey was noticeably upset with C.B., but C.B. attempted to ignore him. She knew Dorsey would not hurt her while her two sons were still in the home. However, she was unable to leave the home before they left for school, and after her sons had left, Dorsey hit C.B. in the head with his fist. When C.B. tried to leave, Dorsey pulled her back towards him by her hair and then hit her in the head again, this time with an open hand. The blows to the head caused ringing in C.B.'s ear, gave her a headache, and made her feel sick to her stomach. Dorsey again accused C.B. of seeing someone else, asked why she kept lying to him, and hit her again. The conversation continued for a while until C.B. convinced Dorsey that she had to call into work before someone came looking for her. Dorsey had C.B.'s cell phone and threw it at her chest, which resulted in a bruise to her chest. C.B. grabbed the phone and ran out of the house. She was able to drive away and call her friend, Lori.

         ¶5 Dorsey pleaded not guilty to all the charges. Dorsey testified at trial, denying the incidents against C.B. ever occurred, and claimed C.B. was injured in March 2014 because she fell while in the shower.

         ¶6 Before trial, the State moved to admit evidence that Dorsey committed acts of domestic violence against his previous girlfriend, R.K. The State wanted to admit the evidence to establish Dorsey's "intent and motive to cause bodily harm to his victim and to control her within the context of a domestic relationship." The State believed the other-acts evidence was relevant because the acts of domestic violence against R.K. were similar to the charged acts in this case and the evidence related to Dorsey's intent and motive to harm C.B.

         ¶7 At a hearing on the State's motion, R.K. testified that in June 2011, she was pregnant with Dorsey's child. R.K. was sure Dorsey was the father, but she did not want him to disclaim the child in the future if he became angry with R.K. She asked Dorsey to take a paternity test so there would be no question that he was the father. Dorsey became upset at the request and accused R.K. of being unfaithful. Dorsey left, but later that night R.K. picked him up. At that time, Dorsey spat on R.K. When she and Dorsey reached their home, the argument continued and he dragged her down the stairs and out of the home. This resulted in trauma to her abdomen, for which she sought medical treatment.

         ¶8 In October 2011, R.K. was on the phone with a doctor or nurse regarding R.K. and Dorsey's infant daughter. Dorsey became upset with her because she did not discuss with him the issue of their daughter before calling a doctor. Dorsey struck R.K. with an open hand, causing her to fall down and suffer a black eye and a cut lip.

         ¶9 R.K. testified that later that same month, Dorsey became upset with her because their baby kicked off her blankets during the night. Dorsey accused R.K. of not wrapping the baby tight enough and threatened to kill R.K. He said no one would care if she died and he would go on with his life like nothing happened.

         ¶10 R.K. further testified that in November 2011, she and Dorsey got into an argument because he felt she was not respecting him. Dorsey told R.K. to leave, and as she was leaving, he threw a baby's bottle and a shoe at her. He then got up and pulled R.K. back by her hair, locked the door to the home, hit her in the head with a shoe, pushed her to the floor, and kicked her after she fell to the floor.

         ¶11 Dorsey argued the following in opposition to admission of the other- acts evidence:

Mr. Dorsey's case is that he committed none of these offenses. ... We're not saying that there was any type of accident, there was any type of striking or pushing that was accidental or any type of mistake. He said it didn't occur at all. There's not an identity issue. The State's witness is going to say that Mr. Dorsey is the -- the aggressor. Mr. Dorsey will say that, no, I was not the aggressor and it did not happen.
....
But if the theory of the defense is that there was no physical contact, not accidental, not that he didn't intend to harm, that there was no physical contact, then this doesn't apply to our case. It's not as if the persons are in the home and there was a -- a grabbing and such that the person's wrist was sprained or broken or anything like that. We're saying none of that happened at all. So intent is not really a defense. It's not part of our defense. We're saying it didn't happen at all.

         ¶12 In its decision on admission of the other-acts evidence, the circuit court applied the "greater latitude rule" under Wis.Stat. § 904.04(2)(b)1. to the Sullivan factors. See State v. Sullivan, 216 Wis.2d 768, 780-81, 576 N.W.2d 30 (1998). The circuit court held the other-acts evidence concerning Dorsey's actions against R.K. was admissible, explaining:

I'm looking at this and I want the record to be clear, because this might be the case where the enlightened ones will enlighten all of us as to what this language means. I read this language providing greater latitude to be similar into the serious sex offense business and making it available more to be able to be used in the case in chief than I would provide. I find that using that greater latitude that the three-prong analysis of Sullivan is met. It does have probative value in that it does go to, because of the similarity, the motive to control. Although it is not very, very, very near in time, it's within two years and in a period of time in which the clock kind of stops ticking a little bit because the defendant is on probation for a period of that time. And while they're similar, they do not involve the same victim, there is some case law that it doesn't need to involve the same victim, but the clear statutory language indicates that it does not need to involve the same victim. And is the probative value substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, needless presentation of cumulative evidence, and then the court's consideration of delay and waste of time, I do not find that it is. That with a cautionary instruction, it can be provided that this information goes only to evaluate the defendant's motive and intent elements. There's going to be no claim of mistake or what have you. So for those reasons, I'll allow it in.

         At the trial, the circuit court gave a cautionary instruction, Wis JI-Criminal 275 (2003), instructing the jury to consider R.K.'s testimony only for purposes of Dorsey's motive and intent. Dorsey now appeals.

         DISCUSSION

         ¶13 The decision whether to admit other-acts evidence rests within the circuit court's sound discretion. State v. Payano, 2009 WI 86, ¶¶40-41, 320 Wis.2d 348, 768 N.W.2d 832; Sullivan, 216 Wis.2d at 780-81. We will uphold the circuit court's exercise of its discretion in admitting other-acts evidence if it applied the relevant facts to the proper legal standards and it reached a conclusion that a reasonable judge could reach. Sullivan, 216 Wis.2d at 780-81.

         ¶14 Generally, other-acts evidence is not admissible for the reasons explained in Whitty v. State, 34 Wis.2d 278, 292, 149 N.W.2d 557 (1967):

The character rule excluding prior crimes evidence as it relates to the guilt issue rests on four bases: (1) The over strong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present charge but because he has escaped punishment from other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated; and (4) the confusion of issues which might result from bringing in evidence of other crimes.

         However, other-acts evidence may be used in any criminal prosecution if the evidence is not used to show that the defendant acted in conformity with his or her character and: (1) the evidence is offered for an acceptable purpose; (2) the evidence is relevant; and (3) the evidence's probative value is not substantially outweighed by the danger ...


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