from a judgment of the circuit court for Eau Claire County
No. 2014CF204 PAUL J. LENZ, Judge.
Stark, P.J., Hruz and Seidl, JJ.
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).  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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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 ...