# State v. Johnson > Court of Appeals of Wisconsin · April 27, 1994 · 184 Wis. 2d 324 URL: https://www.frixlaw.com/law-library/cases/9690004 ## Case - **Full name:** State of Wisconsin, Plaintiff-Respondent, v. Donald J. Johnson, Defendant-Appellant - **Court:** Court of Appeals of Wisconsin - **Decided:** April 27, 1994 - **Citations:** 184 Wis. 2d 324; 516 N.W.2d 463; 1994 Wisc. App. LEXIS 534 - **Precedential status:** Published - **Opinion:** Concurrence by Anderson - **Judges:** Anderson, Nettesheim, Snyder - **Cited by:** 53 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9690004 ## Opinion text ANDERSON, P.J. (concurring). I write separately because the issue of whether or not Donald Johnson could present evidence of Karen Petersen's activities immediately after his arrest raises several concerns. Before discussing those concerns there is a significant problem Johnson does not address in his argument before this court: Should the proffered evidence be classified as "other acts" evidence subject to § 904.04(2), Stats.? I am satisfied that Petersen's conduct is not classic "other acts" evidence. Rather, it is admissible evidence supporting Johnson's theory of *349 defense. It is part of the panorama of evidence that directly bolsters Johnson's defense. Section 904.04(2) provides: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This statute is used in two classic situations. In these situations the evidence of "other acts" is of conduct that happened at another time and place. For example, in a prosecution for C.V.C.'s sexual assault of his wife, evidence that two years earlier C.V.C. had threatened the life of his wife was admitted. See State v. C.V.C., 153 Wis. 2d 145 , 160-62, 450 N.W.2d 463 , 469-70 (Ct. App. 1989). And, in a prosecution for being party to the crime of first degree murder, the defendant was prevented from presenting evidence that several years earlier a third party had previously shot another person in an attempt to prove that the third party had shot the victim. See State v. Balistreri, 106 Wis. 2d 741, 754-57 , 317 N.W.2d 493, 499-501 (1982). In this case the evidence Johnson sought to introduce was of Petersen's conduct immediately after the assault. 1 Johnson's purpose in using this evidence was *350 not to prove that at the time of the assault Petersen was acting in conformity with her prior conduct or to prove one of the exceptions to the general rule of exclusion of § 904.04(2), Stats. Johnson wanted to use the evidence defensively; he sought to prove that Petersen had fabricated the assault in an attempt to gain possession of his personal property. Johnson's theory of defense was that Petersen fabricated the assault because she was an excessively jealous and vengeful person. Johnson testified that when he announced that he was moving out of their shared apartment, Petersen vented her rage by assaulting him. He admitted he did have physical contact with Petersen when he defended himself. His offer of proof was, that after his arrest, Petersen undertook brash attempts to strip him of his property. Johnson's testimony and offer of proof presented the court with a depiction of Petersen as a spiteful person who, without delay, approached more than six persons storing Johnson's property in an attempt to gain possession of that property, solicited a police officer to give her Johnson's keys to his trailer and beseeched the district attorney's office to give her possession of a television set. For Johnson's theory of defense to have any viability, Petersen's conduct cannot be viewed frame-by-frame as the State argues. The fact that Petersen's bid to secure Johnson's personal property came after the alleged assault does not make it an "other act" subject to analysis under § 904.04(2), STATS. A criminal act cannot be viewed frame-by-frame if the finder of fact is to arrive at the truth. For example, in a case where a defendant is charged with shooting her husband, the defendant's *351 act of purchasing a weapon three days before the shooting as well as her act of disposing of the weapon three days after the shooting would be admissible. No reasonable defense attorney would raise an objection that the acquisition and disposition of the weapon are inadmissible as "other acts." The same is true in this case, just because it is the alleged victim's conduct that is sought to be put before the jury does not make that conduct "other acts." I cannot help but think, that if Johnson's assault had resulted in Petersen's hospitalization and, prior to his arrest, Johnson attempted to gain possession of Petersen's personal property that, in its case-in-chief, the State would have presented such evidence with both barrels blazing along with the argument that Johnson's attempts to get the property were not "other acts." And, if a reasonable defense attorney had raised an objection under § 904.04(2), STATS., the State would have reloaded and argued that if the evidence was "other acts" evidence, it was an exception proving intent, motive, plan, etc. Apart from my determination that the evidence of Petersen's conduct is not evidence of "other acts," I have several concerns about the application of § 904.04(2), Stats., when a defendant seeks to use evidence of a victim's, witness's or third party's "other acts" defensively. My first concern relates to the gutting of the rule excluding "other acts." For the last several years the State has argued in numerous appeals that evidence of "other acts" offered by the prosecution during trial was correctly admitted as an exception to the general prohibition of § 904.04(2), STATS. The State's success can be seen in the annotations found in WiS. Stat. Ann. § 904.04 (West 1993), which are overflowing with *352 reported cases of exceptions. As one commentator has written, "[t]he various exceptions to the character rule used by the courts cause the rule to operate as a barrier to admissibility to approximately the same extent that wire mesh operates as a barrier to the flow of water." IA John Henry Wigmore, Evidence In Trials at Common Law, § 54.1, at 1154 n.l (Tillers rev. ed., 1983). The State's efforts, at this late date, to replace the proverbial screen door on a submarine with a water tight hatch to prevent an accused from using "other acts" evidence defensively is contrary to my sense of justice. My second concern focuses on the strict application of the two-prong balancing test of admissibility for "other acts" evidence offered by the defendant. See State v. Fishnick, 127 Wis. 2d 247, 254 , 378 N.W.2d 272, 276 (1985). Specifically, I see no practical reason for the second prong of the test — the determination of whether the offered evidence's potential prejudicial effect outweighs its probative value — when analyzing "other acts" evidence offered defensively. In Whitty v. State, 34 Wis. 2d 278 , 149 N.W.2d 557 (1967), cert. denied, 390 U.S. 959 (1968), the Wisconsin Supreme Court noted that one of the reasons for excluding "other acts" evidence is "the overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts." Id. at 292, 149 N.W.2d at 563 . The heavy burden the State bears in its attempt to convict would be substantially lightened if it could introduce "other acts" evidence for the sole purpose of establishing a defendant's unsavory character and raise the inference that the defendant has a propensity for criminal behavior. The "other acts" evidence could be so inflammatory that a jury would *353 find a defendant guilty solely because he or she committed prior acts of misconduct. I do not see these concerns of prejudice being present when a defendant seeks to introduce "other acts" evidence. The defendant does not have the burden of proving his or her innocence at trial. A defendant uses evidence of a witness's or victim's "other acts" of misconduct merely to raise a reasonable doubt about the defendant's guilt. The dangers of "other acts" evidence described in Whitty, 34 Wis. 2d at 292 , 149 N.W.2d at 563 , are not present when a defendant uses such evidence. Several cases reach this same conclusion. In United States v. Aboumoussallem, 726 F.2d 906 (2nd Cir. 1984), the Second Circuit held that the "risks of prejudice are normally absent when the defendant offers similar acts evidence of a third party to prove some fact pertinent to the defense." Id. at 911 . The Second Circuit concluded that "[i]n such cases the only issue ... is whether the evidence is relevant to the existence or non-existence of some fact pertinent to the defense." Id. at 912 . The Eleventh Circuit has reached a similar conclusion in United States v. Cohen, 888 F.2d 770, 777 (11th Cir. 1989). My third concern is of constitutional dimensions. I believe that there are serious constitutional implications to a rule that prohibits a defendant from introducing evidence of "other acts" where such evidence is relevant to his or her defense. It is an elementary constitutional principle that an accused must be given a meaningful opportunity to present a complete defense. See Crane v. Kentucky, 476 U.S. 683, 690 (1986). In numerous cases a state's interest in various evidentiary and procedural rules has had to give way to the accused's right to present a complete *354 defense. See, e.g., Olden v. Kentucky, 488 U.S. 227, 232 (1988) (state's general concern with potential "prejudice" to victim from evidence regarding her interracial relationship could not justify the exclusion of evidence "with such strong potential" to aid the defense); United States v. Nixon, 418 U.S. 683, 713 (1974) (executive privilege "must yield to the demonstrated, specific need for evidence in a pending criminal trial"); Davis v. Alaska, 415 U.S. 308, 319 (1974) (accused's interest in presenting defense outweighs state policy of protecting juvenile offender from potential embarrassment); Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973) (accused's interest in presenting defense outweighs state's interest in maintaining its hearsay rule). There is no right more fundamental than the right of an accused to present witnesses in his or her own defense. The fundamental nature of this right requires that the state's interest in the rule excluding "other acts" evidence and its balancing test must give way to an accused's right to present exculpatory evidence. See Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)). There is another category of evidence Johnson sought to introduce dealing with Petersen's conduct during her previous marriage. According to Johnson's offer of proof, this evidence would have shown that Peterson fabricated a story about being assaulted by her then-husband and after he was arrested she tried, but failed, to gain possession of his property. Because this *350 conduct occurred at another time and place it definitely is classic "other acts" evidence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9690004. Public record. Not legal advice.