recommended for publication in the official reports.
from a judgment of the circuit court for Milwaukee County,
No. 2015CF1640 JEFFREY A. WAGNER, Judge.
Brennan, Brash and Dugan, JJ.
Alberto E. Rivera appeals from a judgment of conviction,
entered on a jury verdict, of being a felon in possession of
a firearm as a repeater; first-degree intentional homicide
with use of a dangerous weapon, as a party to a crime and as
a repeater; attempted first-degree intentional homicide with
use of a dangerous weapon, as a party to a crime and as a
repeater; and two counts of armed robbery with use of force
as a party to a crime and as a repeater.
Rivera argues that the trial court's admission of other
acts evidence was prejudicial error. He further argues that there
was insufficient evidence for the jury to convict him of
first-degree intentional homicide with use of a dangerous
weapon, as a party to a crime; and, attempted first-degree
intentional homicide with use of a dangerous weapon, as a
party to a crime. We disagree and, therefore, affirm.
During the evening of April 8, 2015, in an alley near 1300
South 56th Street in West Allis, Henry Hodges was shot and
killed, and his girlfriend Beth was shot in both hands and a
bullet grazed her head. Both Hodges and Beth were shot in
Hodges' Chevrolet Tahoe.
On April 16, 2015, Rivera was charged with being a felon in
possession of a firearm. On September 3, 2015, Rivera was
charged with first-degree intentional homicide with use of a
dangerous weapon, as a party to a crime; and attempted
first-degree intentional homicide with use of a dangerous
weapon, as a party to a crime.
On November 9, 2015, the State filed a motion to introduce
other acts evidence regarding other crimes Rivera committed
in 1997 which resulted in his conviction in Milwaukee County
case No. 1997CF971820 for a charge of felony murder with the
underlying crime being attempted armed robbery, as a party to
a crime. The State intended to use the evidence as it related
to Rivera's identity, modus operandi, intent, motive, and
opportunity. Rivera opposed the motion. The trial court heard
oral argument and in a written decision, it denied the motion
"with the caveat that the State [could] seek to admit
that evidence on rebuttal if the defense put on affirmative
evidence to challenge motive, intent, modus operandi or
At the final pretrial conference, trial counsel read the
following excerpt from the trial court's decision:
Should the defendant put on a defense that directly contests
the issue of motive, intent, modus operandi or identity, then
the issues … will become heightened.
Should that occur, then the probative value of the other acts
will also be heightened, and then the danger of unfair
prejudice may not substantially outweigh that probative
Thus the [c]ourt leaves open the possibility that the other
acts evidence may be admissible on rebuttal, but advises the
parties that the defense will have to directly challenge
these issues in its case in chief for the [c]ourt to allow
the other evidence on rebuttal.
trial court then indicated that the parties would not know
what was going to occur until the defense's case in
chief. The State then said that it "would have to get
leave of the [c]ourt before doing anything." Trial
counsel then stated that "we'll cross that bridge
… this is the issue that has been previously litigated
and may continue to be an issue during the trial."
The matter proceeded to a four-day jury trial. In its opening
statement, the State stated that the testimony and evidence
would show that Rivera shot Hodges and Beth. Trial counsel
told the jury that the issue in the case was who did the
shooting. In other words, it was an "identification
State's case in chief
Beth testified that at approximately 7:30 p.m. on April 8,
2015, Hodges picked her up in his Tahoe. They were going to
get something to eat. Hodges then received a call from
Rivera. Hodges said that they needed to stop at Rivera's
apartment. Beth had met Rivera five or six times and had been
to his apartment near 76th Street and Capitol Drive in
When they arrived at Rivera's apartment, Hodges went into
Rivera's apartment and Beth waited in the Tahoe. After
approximately ten or fifteen minutes, a person walked from
the apartment building to the Tahoe. Beth expected the person
to be Hodges. However, Rivera appeared at the front passenger
side door and told Beth to look under the driver's seat.
Beth bent down to look under the seat and saw nothing. When
Beth sat up, she saw Rivera pointing a gun with a laser sight
at her head. Rivera told Beth to move to the third row seat
area of the Tahoe and to keep her head down. Beth moved to
the third row on the passenger side and put her head down
with her arms crossed near her forehead. Rivera then sat in
the second row area on the passenger side with the gun on his
lap. Rivera positioned himself so he could see what was going
on in the back and he could see Beth. Beth was directly
behind Rivera. Beth saw an African-American male enter the
driver's seat and drive behind Rivera's apartment
building. Rivera then made a phone call and said, "bring
Soon after, Beth saw Hodges being pushed into the second row
area of the Tahoe. Although she did not get a good look at
Hodges, she knew that his mouth was covered and he could not
walk on his own. Rivera asked Hodges multiple times,
"[W]here is the money?" Hodges replied that he did
not have any money. Rivera then demanded that they go to
Hodges' house to prove that he "didn't have no
About ten minutes later, the Tahoe arrived at Hodges'
house at 35th Street and Greenfield Avenue, and parked in
back. A car pulled up along the passenger side of the Tahoe
where Rivera was sitting and a "third voice [said]
something about they don't have the keys." Rivera
said that they had to go back to his apartment to get the
After a short drive, the Tahoe stopped again. "[Rivera]
told [Hodges], let me holler at Ra Ra real quick." Then
the door on Beth's side of the Tahoe where Rivera had
been sitting opened. Beth heard two shots originating from
the second row area where Rivera was seated.
Beth testified that after the first two shots were fired it
felt "like somebody [was] over [her] head." Then
she felt someone in the second row seat reach over that seat
toward her. Beth heard a shot, followed by a pause, a second
shot, and then the door closed. After about two or three
minutes, Beth felt blood running down her head and she was
"[t]rying to figure out if [she] got shot in [her] head.
[She was] [t]rying to see if [Hodges] was fine. [Hodges] did
not move when [she] called his name."
Beth got out of the Tahoe, ran to a nearby house, and the
occupant called 911. The police arrived and transported Beth
to the hospital, where she was treated for gunshot wounds to
both of her hands and a bullet graze to her head. On the way
to the hospital, Beth told the police that Rivera was the
Beth was shown a photograph of Rivera and she identified him
as the shooter with 100% certainty. Four months after the
shooting, Beth identified Rivera as the shooter in a lineup.
Hodges was shot in the head and the left knee. Both bullets
passed through his body. The medical examiner estimated that
the gun used to shoot Hodges discharged from a distance of
about "a few inches to maybe a foot" from
Hodges' head. Hodges' hands and legs had been bound
with extension cords, and duct tape covered his mouth.
Wisconsin State Crime Laboratory fingerprint examiners
obtained a fingerprint from a cardboard tape roll that the
police found in Rivera's kitchen and determined that the
fingerprint belonged to Levell Drew. The police showed Beth a
photo array that included Drew's photo, but she did not
identify Drew as being involved in the incident.