State v. Clark

SUNDBY, J.

0dissenting). I view with dismay the further depreciation of the Whitty rule 1 which our decision herein effects. The Whitty rule is codified in sec. 904.04(2), Stats., which provides:

*498 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.

In Whitty, the court stated:

Over 60 years ago, this court in Paulson v. State (1903), 118 Wis. 89, 98 , 94 N.W. 771 , [774], pointed out and explained the rule that the evidence against an accused should be confined to the very offense charged and neither general bad character nor commission of other specific disconnected acts, whether criminal or merely meretricious, could be proved against him. Exceptions pointed out were all based upon relevancy and probative value.

Id. at 292-93, 149 N.W.2d at 563. We have forgotten the purpose of the rule. Other-acts evidence is now routinely admitted to show that the defendant must be guilty because he or she has committed other bad acts in the past.

In this case, the "very offense charged" is Clark's beating his sixteen-year-old girlfriend. The state could not prove the charge through his girlfriend's testimony because she recanted her story of the beating. She explained that she made up the story because she learned that Clark had cheated on her and telling the story to her parents would make it easier to break off the relationship. She subsequently made a voluntary statement to Clark's attorney in which she stated:

After I got a subpoena to appear in court, I knew I had to come forward. I wasn't about to lie if I was going to be under oath. That scared me. And I *499 also couldn't let Jason take punishment for something he didn't do.

Because the state could not prove "the very offense charged," it proved another, unconnected act. It moved the court to admit evidence that, several years before, Clark had battered another girlfriend. The state argued that this evidence was admissible and relevant to prove Clark's "intent and motive" to cause bodily harm to his present girlfriend. The trial court admitted the evidence over Clark's objection because Clark's claim of innocence "putts] everything at issue," including intent.

I agree that a defendant's denial that he or she committed the offense charged does not relieve the state of its burden to prove every element of the offense charged. If intent is an element of the offense, the state may introduce evidence which is relevant to that issue. See State v. Fishnick, 127 Wis. 2d 247 , 378 N.W.2d 272 (1985). However, simply because intent is an element of the offense charged does not allow the state to prove defendant's culpability by other-acts evidence. When intent can be established beyond a reasonable doubt by "the very offense charged," it is unnecessary to resort to other-crimes evidence. Plainly, in this case, the state did not introduce evidence of Clark's battering of his former girlfriend to show intent, but to prove Clark's culpability.

The state relies on Estelle v. McGuire, 502 U.S. —, 116 L. Ed. 2d 385 (1991), where the Court held that the admission of expert testimony and evidence related to prior injuries to prove existence of the "battered child syndrome" did not violate the defendant's federal constitutional rights. The court said: "When offered to show that certain injuries are a product of child abuse, rather than accident, evidence of prior injuries is rele *500 vant even though it does not purport to prove the identity of the person who might have inflicted those injuries." Id. at 396 .

McGuire argued that because he did not raise the defense of accidental death at trial, evidence of the "battered child syndrome" was inadmissible. The Court, however, pointed out that the prosecution's burden to prove every element of a crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense. The Court concluded that therefore evidence of battered child syndrome was relevant to show intent. Id. at 397 . The evidence admitted in McGuire consisted of prior injuries to the child McGuire was charged with killing, the "very offense charged."

Clark's theory of defense was that his girlfriend accidentally fell and was injured. She supported his defense by her testimony and letter recanting her original story. The state, however, was allowed to introduce evidence that Clark previously battered another former girlfriend following a similar dispute regarding fidelity. The evidence concerned a wholly unrelated act and not "the very offense charged." In short, the state proved its case against Clark by showing that he was of a character or disposition to beat his girlfriends. This is exactly the kind of evidence which the Whitty rule was intended to exclude.

Further, any relevance of evidence that Clark, on a prior occasion, had battered another girlfriend was remote. Plainly, the probative value of that evidence was outweighed by its prejudicial effect.

For these reasons I respectfully dissent.

Whitty v. State, 34 Wis. 2d 278 , 149 N.W.2d 557 (1967), cert. denied, 390 U.S. 959 (1968).