Petition for Writ of Certiorari — Sergio Moises Ochoa, Petitioner v. Wisconsin
Supreme Court briefFeb 14, 2023
Ask Donna
What actually matters in this document.
Text
No.______
________________________________________________________________________
In the
Supreme Court of the United States
________________________________________________________________________
Sergio Moises Ochoa,
Petitioner
v.
State of Wisconsin
Respondent
On Petition for Wit of Certiorari to the Supreme Court of
Wisconsin
________________________________________________________________________
Appendix
________________________________________________________________________
Steven Roy
Counsel of Record
1310 O’Keeffe Ave. #315
Sun Prairie, WI 53590
608.571.4732
Steven@stevenroylaw.com
Appendix
1. Supreme Court of Wisconsin Order ……..……………………101
2. Court of Appeals Decision……………………………..………..103
3. Judgement of Conviction..……………………………..……….141
4. Wis. Stat.§940.02…………………………………………………144
5. Wis. Stat. §939.48 ..…………………………….………….….…147
6. Oral Ruling August 30, 2019 (Excerpt)………..…..…..……..151
7. Oral Ruling September 9, 2019 (Excerpt)……………………165
8. Oral Ruling September 24, 2019…………………………..…..173
9. Brief in Support of McMorris Evidence……………..……..…187
10. Motion for Reconsideration…………………………………..…191
11. Notice of Intent To Introduce Expert Testimony……………199
12. Attachment B in Support of Defendant’s Reply to State’s
Motion To Exclude Expert Witnesses (Mary Hayes)….……203
13. Notice of Defendants Summary of Expert Opinions of Alfonso
Villasenor………………………………..…………….……….….219
14. Attachment a in Support of Defendant’s Reply to State’s
Motion To Exclude Expert Witnesses (Conrad Zvara)…..…270
15. Motion To Reconsider Admission of Expert Testimony and
Opinions of Conrad Zvara…………………….…………..…….281
100
Appendix 1
101
Case 2020AP001981
11/16/2022 Court Order
Filed 11-16-2022
Page 1 of 1
Office of the Clerk
Supreme (Knurl nf pitsmustu
110 East Main Street, Suite 215
P.O.Box 1688
Madison, WI 53701-1688
Telephone (608) 266-1880
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
November 16, 2022
To:
Hon. Rebecca L. Persick
Circuit Court Judge
Sheboygan County Courthouse
615 N. 6th Street
Sheboygan, WI 53081
John Blimling
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Steven Roy
1310 O'Keeffe Ave., #315
Sun Prairie, WI 53590
Melody Lorge
Clerk of Circuit Court
Sheboygan County Courthouse
615 N. 6th Street
Sheboygan, WI 53081
Joel Urmanski
District Attorney
615 N. 6th Street
Sheboygan, WI 53081
You are hereby notified that the Court has entered the following order:
No. 2020AP1981-CR
State v. Ochoa. L.C. #2017CF478
A petition for review pursuant to Wis. Stat. § 808.10 having been filed on behalf of
defendant-appellant-petitioner, Sergio Moises Ochoa, and considered by this court;
IT IS ORDERED that the petition for review is denied, without costs.
Sheila T. Reiff
Clerk of Supreme Court
102
Appendix 2
103
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
COURT OF APPEALS
DECISION
DATED AND FILED
NOTICE
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 30, 2022
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Sheila T. Reiff
Clerk of Court of Appeals
Appeal No.
Page 1 of 38
Cir. Ct. No. 2017CF478
2020AP1981-CR
STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
SERGIO MOISES OCHOA,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Sheboygan
County: REBECCA L. PERSICK, Judge. Affirmed.
Before Gundrum, P.J., Neubauer and Grogan, JJ.
¶1
GROGAN, J. Sergio Moises Ochoa appeals from a judgment
entered after a jury found him guilty of two counts of first-degree reckless
104
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 2 of 38
No. 2020AP1981-CR
homicide, contrary to WIS. STAT. § 940.02(1) (2019-20).1 Ochoa argues the trial
court violated his constitutional right to present a defense when it: (1) excluded
evidence about the victims’ past violent acts; (2) excluded three of his proposed
expert witnesses; and (3) limited his testimony about why he returned to the home
of one of the victims in the middle of the night. He further contends the trial court
erroneously exercised its discretion when it refused to modify WIS JI—
CRIMINAL 1016 to include within it a portion of WIS JI—CRIMINAL 805. We
affirm.
I. BACKGROUND
¶2
In August 2017, the State charged Ochoa with two counts of first-
degree intentional homicide arising out of an incident that occurred in the early
morning hours of July 30, 2017. The victims were Luis Garcia, who was Ochoa’s
cousin, and a friend, Fernando Lopez. Ochoa pled not guilty and asserted at trial
that he shot both men in self-defense when an argument arose about why Ochoa
changed his mind about having Garcia act as the godfather for Ochoa’s son’s First
Communion.
As a part of his self-defense case, Ochoa argued that the
combination of the alcohol and cocaine in Garcia’s and Lopez’s blood caused
them to act erratically and threaten Ochoa, which caused Ochoa to believe he
needed to shoot them to survive.2
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
The toxicology reports run as part of the autopsies showed Garcia’s blood alcohol
concentration was .108 and showed he had both cocaine and THC in his system. Lopez’s blood
alcohol concentration was .16 and showed he had cocaine in his system.
2
105
2
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 3 of 38
No. 2020AP1981-CR
¶3
Ochoa filed thirty-eight motions in limine. As material here, in
support of his self-defense theory, Ochoa filed a motion seeking to introduce
evidence that “related to past acts of violence” of both victims, which is
commonly referred to as McMorris evidence.3 The State objected to Ochoa’s
McMorris evidence, asserting that Ochoa had failed to provide sufficient
information to establish its relevance and that even if it was relevant, it should be
excluded under WIS. STAT. § 904.03 because any probative value was outweighed
by its unfairly prejudicial nature. The trial court allowed Ochoa “to introduce
reputation evidence” “regarding the decedents’ reputation for violence” but
excluded “testimony regarding specific instances of violent conduct.” Ochoa filed
a motion asking the trial court to reconsider its decision denying the McMorris
evidence. The trial court denied the motion for reconsideration as untimely and
for failing to meet the legal standard for reconsideration.
¶4
Ochoa also filed a notice of his intent to present the testimony of ten
expert witnesses.4 In response, the State filed a motion seeking to exclude seven
of Ochoa’s expert witnesses because each witness was either irrelevant or
unreliable “under the Daubert[5] Standard” set forth in WIS. STAT. § 907.02(1), and
it later submitted a brief laying out its objections to five of Ochoa’s expert
witnesses. After conducting a three-day Daubert hearing, the trial court excluded
See McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973). “Evidence of a
victim’s violent character and past violent acts is often referred to as McMorris evidence.” State
v. Head, 2002 WI 99, ¶24 n.5, 255 Wis. 2d 194, 648 N.W.2d 413.
3
4
The ten witnesses were: (1) Lorrine Edwards; (2) Amy Miles; (3) William Johnson;
(4) Michelle Burns; (5) Glenn Hardin; (6) Alfonso Villaseñor; (7) Dr. Phillip Trompetter, Ph.D.,
ABPP; (8) William Wilson; (9) Conrad Zvara; and (10) Marty Hayes.
5
See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
106
3
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 4 of 38
No. 2020AP1981-CR
three of Ochoa’s proffered expert witnesses—Marty Hayes, Alfonso Villaseñor,
and Conrad Zvara—based on concerns about relevance and/or reliability.
¶5
Ochoa’s jury trial took place over the course of seventeen days in
October 2019. On days thirteen and fifteen, Ochoa testified in his own defense.
During his testimony, Ochoa described his friendship with his cousin Garcia over
the years, including how Garcia allowed Ochoa to live with him in California
when Ochoa first moved to the United States from Mexico in 1997 or 1998 and
how after visiting Garcia in Oostberg, where Garcia had relocated, Ochoa moved
his family to Oostburg in 2011. Garcia allowed Ochoa’s family to live with him in
Oostburg for six-to-eight weeks until Ochoa found an apartment. Ochoa testified
that at that time, his relationship with Garcia was “[v]ery good[,]” and they were
“more than cousins”—they “were brothers”—and that Garcia was his closest
friend. They continued to have a good relationship when Ochoa moved away
from Oostberg for a period of time before ultimately returning to the area.
¶6
Ochoa testified that he asked Garcia to be his son’s godfather prior
to his son’s April 2017 First Communion and that Garcia was “very joyful” about
this request. In March 2017, while Garcia and his family were at Ochoa’s house
to plan for the First Communion celebration, Ochoa believed Garcia and Lopez,
who was also present, were consuming cocaine at his house.
Ochoa, upset
because his son almost saw the drug use, asked Garcia and Lopez to leave. There
was no “big argument or fight”—Garcia understood Ochoa’s concern, gathered his
family, and left.
¶7
Ochoa testified that after the March 2017 incident, he decided to
choose a different godfather; however, Ochoa did not have a chance to tell Garcia
about the change at that time because Garcia “went to live [in] Milwaukee.” In
107
4
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 5 of 38
No. 2020AP1981-CR
May 2017, Ochoa and Garcia were hanging out together, and Ochoa planned to
tell Garcia that a different family member was chosen to be his son’s godfather at
the April First Communion. However, Ochoa did not get a chance to do so
because Garcia was “really sad” and “crying and telling [Ochoa] about this
personal problem.” Ochoa testified he did not tell Garcia “[b]ecause [Garcia] was
really worried about something serious, so compared with what he was facing, [the
godfather change] was really insignificant.”
Ochoa testified his son’s First
Communion had occurred in April 2017 without Garcia and that after May 2017,
he did not see Garcia again until July 2017.
¶8
Ochoa told the jury that on July 29, 2017, his sister and her husband
were visiting from Mexico and had brought asthma inhalers from Mexico. At
about 10:30 or 11:00 p.m., Ochoa and his brother-in-law went over to Garcia’s
house to deliver some of the inhalers. Ochoa also brought a bucket of beer and
rum as a gift for Garcia. Ochoa, his brother-in-law, Garcia, and Lopez all had a
beer together. After about twenty or thirty minutes, Ochoa told Garcia he needed
to get back home. Ochoa testified that he went home and slept for about two or
three hours and then woke up because he remembered that his cousin Garcia “had
been very insistent” about wanting to talk to Ochoa that night. The parties then
argued about whether Ochoa could testify about statements Garcia had made to
Ochoa that caused him to return to Garcia’s home when Ochoa woke up at 2:00
a.m. that morning. Ultimately, the trial court allowed Ochoa to testify about his
reason for returning to Garcia’s home in the middle of the night.
¶9
Ochoa also told the jury he had recently obtained his concealed carry
permit and had grown up learning how to use guns. The jury also learned that
Ochoa did not take his gun into Garcia’s home when he went there with his
brother-in-law, but he did take the gun into the Garcia home when he went back at
108
5
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 6 of 38
No. 2020AP1981-CR
2:00 a.m. on July 30th. Ochoa testified this was out of concern about a recent
robbery in the area since he was going alone. Ochoa told the jury that when he
first arrived at the Garcia home at 2:00 a.m., Garcia and Lopez were happy to see
him but that things got heated when they began to argue about Ochoa’s decision to
not have Garcia as his son’s First Communion godfather. Ochoa said Lopez had a
pocketknife that he opened and closed “[m]aybe four or five times” and made
threats that Ochoa felt meant they were going to kill him. The threats, spoken in
Spanish, were interpreted as “you are so screwed,” but Ochoa testified that he had
interpreted them to be death threats, more like, “I’m going to kill you. You’re
going to die” or “[y]ou’re gonna get screwed.”6
¶10
Ochoa also testified that he began walking into the kitchen and then
looped back through the living room about five times. He then tried to open the
back door once but testified Garcia came up behind him with a knife and said he
was not leaving. Ochoa walked back to the living room where he felt that he was
about to be attacked. Ochoa shot Lopez first and then Garcia when Garcia lunged
at him. Ochoa then left the home with the intent to go directly to the police
department but did not arrive at the Sheboygan Police Department until about an
hour after the shootings. During the drive, Ochoa tossed his gun holster out the
window.
¶11
Garcia’s son, J.G., was upstairs playing video games with two
friends at the time of the shooting. J.G. and his friends heard the shots and got
The Spanish words were: “Te va a llevar la verga” and “Ya te llevó la verga[.]” In his
“Summary of Expert Opinions of Alfonso Villaseñor,” one of the excluded experts, Ochoa
posited that Villaseñor would testify that these phrases meant “[y]ou’re gonna get fucked up” or
“[y]ou’re fucked, now[.]” Spanish interpreters were utilized throughout the course of the trial.
6
109
6
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 7 of 38
No. 2020AP1981-CR
scared. They were afraid to go downstairs in case the shooter was still present, but
eventually one of J.G.’s friends went out through the window and jumped down to
the ground. The friend saw Garcia and Lopez lying on the living room floor,
presumably shot to death, and then called J.G. to report what he saw before
driving home. J.G. and the remaining friend then went downstairs, and J.G. woke
up his uncle who lived with them and had been sleeping in his bedroom located on
the main floor of the house. The uncle attempted CPR and called 911 because J.G.
had not already done so.
¶12
When EMTs arrived, they determined both Garcia and Lopez were
deceased. The Sheboygan Sheriff’s Department and Police Department conducted
an investigation. They located multiple bullets and multiple casings that were
eventually connected to Ochoa’s gun. Both Garcia and Lopez were shot multiple
times. The police did not find any weapons in the living room at the Garcia home
aside from the pocketknife recovered from a pocket in Lopez’s cargo shorts.
¶13
When Ochoa arrived at the Sheboygan Police Department, he asked
for a Spanish-speaking officer, but one was not immediately available. Ochoa told
police that he was “sad” and that he “didn’t mean to hurt anybody,” that he had
done something “bad,” and that the gun was in his car. Police impounded Ochoa’s
car, retrieved the gun, and obtained a search warrant for Ochoa’s home. Police
recovered additional handguns and ammunition from Ochoa’s home.
¶14
After the close of testimony, the trial court determined which jury
instructions would be given to the jury. The only jury instruction issue Ochoa
raises on appeal is whether the trial court erred in denying his request that pattern
jury instruction WIS JI—CRIMINAL 1016 be modified to include language from
110
7
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 8 of 38
No. 2020AP1981-CR
WIS JI—CRIMINAL 805 that incorporates the definition of “reasonably believes”
found in WIS. STAT. § 939.22(32).
¶15
The trial court expressed its preference to use the pattern jury
instructions without modifications but explained that if Ochoa’s counsel provided
it with authority to make the modification to the pattern instruction, it would
consider doing so.
Ochoa’s counsel pointed to the statutory definition of
“reasonably believes,” but the trial court gave the pattern jury instruction to the
jury without adding the modification.
¶16
The jury returned guilty verdicts on the lesser-included crime of
first-degree reckless homicide on both counts.7 The trial court sentenced Ochoa to
twelve years and six months’ initial confinement followed by five years’ extended
supervision on each count, to run consecutively for a total of twenty-five years’
initial confinement and ten years’ extended supervision. Ochoa appeals.
II. STANDARD OF REVIEW
¶17
Although a trial court’s admission or exclusion of evidence is
reviewed for an erroneous exercise of discretion, we analyze de novo whether a
trial court’s exclusion of evidence deprived a defendant in a criminal case of his
7
The jury was instructed that first-degree reckless homicide requires the jury to find that
the defendant caused death by criminally reckless conduct and that “[c]riminally reckless conduct
means the conduct created a risk of death or great bodily harm to another person, and the risk of
death or great bodily harm was unreasonable and substantial, and the defendant was aware that
his conduct created the unreasonable and substantial risk of death or great bodily harm.” See
WIS JI—CRIMINAL 1016. The jury was further instructed “that it must find that the defendant
acted recklessly “under circumstances which show utter disregard for human life.” Id. As
discussed later, the jury was also instructed on the interplay between these charges and Ochoa’s
assertion of self-defense.
111
8
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 9 of 38
No. 2020AP1981-CR
constitutional right to present a defense. State v. Wilson, 2015 WI 48, ¶47, 362
Wis. 2d 193, 864 N.W.2d 52.
¶18
“[A] trial court has wide discretion in instructing the jury based on
the facts and circumstances of each case.” State v. Wenger, 225 Wis. 2d 495, 502,
593 N.W.2d 467 (Ct. App. 1999). A “trial court has wide discretion in choosing
the language of jury instructions and if the instructions given adequately explain
the law applicable to the facts, that is sufficient and there is no error in the trial
court’s refusal to use the specific language requested by the defendant.” State v.
Herriges, 155 Wis. 2d 297, 300, 455 N.W.2d 635 (Ct. App. 1990).
III. DISCUSSION
A. Constitutional Right to Present a Defense
¶19
Ochoa argues that three evidentiary exclusions violated his
constitutional right to present a defense. He contends the trial court: (1) should
have allowed him to introduce evidence about the victims’ prior violent acts;
(2) should have allowed him to call three additional expert witnesses; and (3) erred
in excluding testimony explaining his reasons for returning to the victim’s home in
the middle of the night. Ochoa contends the exclusion of this evidence violated
his constitutional right to present a defense under article I, section 7 of the
Wisconsin Constitution and the Sixth Amendment of the United States
Constitution.8
Article I, section 7 of the Wisconsin Constitution provides as relevant: “In all criminal
prosecutions the accused shall enjoy the right ... to meet the witnesses face to face; [and] to have
compulsory process to compel the attendance of witnesses in his behalf[.]” WIS. CONST. art. I,
§ 7.
8
(continued)
112
9
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 10 of 38
No. 2020AP1981-CR
¶20
“Every defendant in a criminal case has the right under the Sixth
Amendment to present his or her defense.” State v. Ward, 2011 WI App 151, ¶16,
337 Wis. 2d 655, 807 N.W.2d 23 (citing Washington v. Texas, 388 U.S. 14, 18-19
(1967)). The right is not absolute, however, as the evidence the defendant seeks to
introduce must be relevant. See Crane v. Kentucky, 476 U.S. 683, 689-90 (1986);
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (“mere absence of
testimony” is insufficient to establish constitutional violation; defendant must
show the excluded “testimony … would have been relevant and material, and …
vital to the defense” (citation omitted; second omission in original)).
The
admission of evidence is subject to “the application of evidentiary rules that
themselves serve the interests of fairness and reliability—even if the defendant
would prefer to see that evidence admitted.” Crane, 476 U.S. at 690. Trial courts
have “‘wide latitude’ to exclude evidence that is ‘repetitive …, only marginally
relevant,’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the
issues.’” Id. at 689-90 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986) (alteration and omission in original)). The relevance of the proffered
evidence must not be “substantially outweighed by its prejudicial effect.” State v.
Pulizzano, 155 Wis. 2d 633, 646, 456 N.W.2d 325 (1990).
For the reasons
explained below, the trial court did not violate Ochoa’s constitutional right to
present a defense.
The Sixth Amendment of the United States Constitution provides as relevant: “In all
criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
against him; [and] to have compulsory process for obtaining witnesses in his favor[.]” U.S.
CONST. amend. VI.
113
10
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 11 of 38
No. 2020AP1981-CR
1. Victims’ Prior Acts of Violence—McMorris Evidence
¶21
Ochoa’s first contention is that the trial court erred in refusing to
allow him to introduce evidence about the victims’ prior specific acts of
violence—namely McMorris evidence.
As noted, the trial court did allow
testimony that the victims had a reputation for being violent. Our review is
therefore limited to whether the exclusion of testimony regarding specific acts of
violence was error.
¶22
In his motions in limine, Ochoa asked the trial court to allow the
McMorris evidence if Ochoa chose to testify. Ochoa filed a brief in support of his
motion, which specifically asserted that he “wishes to introduce evidence of his
knowledge of prior specific acts of violence committed by” the victims to show
that the victims “were the first and primary aggressors.” His brief provided the
following information about these prior specific acts of violence:
[B]etween the years of 1993 and 1998 or 1999, Mr. Ochoa
personally observe[d] approximately three-to-four instances
of [Garcia and Lopez] engaging jointly in what he learned
to be pre-emptive, violent and brutal attacks against third
parties that involved kicking and punching the third parties
to the ground during a night of drinking alcohol at Plaza
Santa Maria de Torres in their home community in Mexico
during rodeo events. During the same period of time and
place, Mr. Ochoa personally observed [Garcia] in two-tothree separate instances launch similar style of attacks
against third parties. Mr. Ochoa observed third parties,
including the relatives of the owners of the Plaza Santa
Maria de Torres, Chino Morales, intervene to break up the
fights, and red cross workers attend to the injured third
parties, whose faces were often cut and who were
sometimes left unconscious, after [Garcia and/or Lopez]
fled. Mr. Ochoa was aware that [Garcia and Lopez] would
provoke the fights by intervening with a male who was
dancing with his girlfriend to provoke him to fight, or
threw Model beer cans at one or more males. In one
instance, Mr. Ochoa recalls that [Garcia] stole a
<<chicharra>>, or an electrical wire used to shock bulls
that would sometimes be used by those trying to break up
114
11
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 12 of 38
No. 2020AP1981-CR
fights, and used it to shock the person who he was fighting
to inflict additional carnage. Mr. Ochoa would indicate
that although other males in his peer group would also pick
fights at these types of events, he was aware of [Garcia and
Lopez’s] reputation for behaving extremely violently and
aggressively when drinking. Mr. Ochoa was also aware
during the same relevant years that [Garcia and Lopez]
would fight with others at annual fiestas, including festivals
at San Sebastial el Grande in San Agustin and in Santa
Maria in Tlajomulco, as well as Santa Anita in
Tlaquepaque. Mr. Ochoa indicates that he was aware that
[Garcia and Lopez] would use unconventional weapons
such as rocks and broken beer bottles during these fights to
inflict maximum carnage. From 1999 through 2017, both
[Garcia and Lopez] on various occasions would reminisce
in Mr. Ochoa’s presence about their violent exploits in
Mexico, ganging up and beating people in tandem, as well
as fights they had been involved in while living in the
United States, including California and Wisconsin.
Mr. Ochoa never witnessed any of the fights in the United
States, which [Garcia and Lopez] described themselves as
having been violent and successfully ganging up on and
beating up other individuals in a manner similar to what
Mr. Ochoa had personally observed or been told about third
hand.
¶23
The State objected to the admission of this McMorris evidence,
noting it is proper to exclude when it is too remote, see McMorris v. State, 58
Wis. 2d 144, 151, 205 N.W.2d 559 (1973), or if the application of the WIS. STAT.
§ 904.03 balancing test shows the evidence should be excluded. See State v.
McClaren, 2009 WI 69, ¶21, 318 Wis. 2d 739, 767 N.W.2d 550 (trial court has the
“responsibility to vet the evidence prior to admission to be sure it is valid
McMorris evidence”).
¶24
The State asserted that:
[E]vidence of the decedent’s actions between 1993 and
1997 or 1998 is not relevant given the significant time that
elapsed between the dates and the charged offense in 2017.
Further, the claimed reminiscing testimony should be
denied without more explanation because the court is
unable to identify the dates, circumstances, frequency or
other indicia of reliability or reasonableness of the offered
115
12
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 13 of 38
No. 2020AP1981-CR
testimony. Without more information the court is not in a
position to evaluate the probative value of the evidence as
opposed to its danger of unfair prejudice, nor to evaluate
whether the offered testimony would confuse the issues,
mislead the jury, delay the case, or waste the jury’s time.
In ruling on the McMorris motion, the trial court addressed the pertinent case law
and relied specifically on State v. Head, 2002 WI 99, ¶128, 255 Wis. 2d 194, 648
N.W.2d 413, which held that “[a]dmissibility is not automatic.” Head provides:
If the court determines that the [McMorris] evidence is
relevant, the [trial] court should admit it as it would any
other relevant evidence, excluding it only if its “probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” WIS. STAT.
§ 904.03.
Head, 255 Wis. 2d 194, ¶129.
¶25
The trial court then applied the precedential case law to Ochoa’s
case. It said:
In this case the defendant wants to introduce three to four
instances of [Garcia and Lopez] engaging in preemptive
violent attacks against someone else between the years of
1993 and 1998 or ‘99. He wants to introduce an additional
two to three similar acts by [Garcia] alone during that same
time period. All of those acts occurred in Mexico during a
night of drinking.
And then he further wants to introduce that between
1999 and 2017 both [Garcia and Lopez] would reminisce
about ganging up on people in Mexico as well as in the
U.S., but the defendant doesn’t provide any time frame for
the incidents which allegedly occurred in the U.S.
¶26
The trial court then addressed whether the McMorris evidence was
relevant, specifically “whether the evidence relates to a fact of consequence and
whether the other act makes the consequential fact more or less probable.” The
116
13
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 14 of 38
No. 2020AP1981-CR
trial court noted that the case law provides “a way to measure the probative
value,” which “is to look at the similarity in time, place, and circumstance between
the other act and the current incident.” The trial court first looked at the three or
four specific acts of violence Ochoa claimed he personally observed in Mexico.
First, the trial court noted these acts occurred:
“18 or more years prior to the homicides”;
“in Mexico … in public places, such as rodeos or bars”;
“None of them occurred in private homes or to family members”;
and
“There’s no allegation that [Garcia and Lopez] in those prior
incidents ever threatened anyone with death or actually used
deadly force against anyone.”
¶27
The trial court ruled these prior acts of violence were “of
questionable probative value” because they were too remote, too dissimilar, and
would not “reasonably bear on the defendant’s apprehension of danger.” Even if
these acts were “arguably relevant,” the trial court found that “admitting them
would be more prejudicial than probative” under WIS. STAT. § 904.03.
¶28
With respect to admitting evidence about the victims bragging about
the specific violent Mexico acts and the alleged similar violent acts occurring in
the United States, the trial court found “there are no details provided about time,
place, or circumstance.
Nor is there any detail about how often or at what
intervals these alleged recent attacks occurred.” The trial court said that “without
that information, there’s no way for me to determine the repeated admissions
about new assaults remained sufficiently constant over the years as alleged by
Mr. Ochoa.” Additionally, the trial court found there was insufficient specificity
117
14
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 15 of 38
No. 2020AP1981-CR
from which “a reasonable jury could find by a preponderance of the evidence that
the other acts occurred.”
¶29
We conclude the trial court’s decision to exclude the McMorris
evidence was not erroneous. The trial court considered the applicable law, applied
the pertinent facts, and reached a reasonable determination. See State v. Payano,
2009 WI 86, ¶51, 320 Wis. 2d 348, 768 N.W.2d 832. The “three or four” Mexico
violent acts that Ochoa sought to admit were not relevant for the reasons expressed
by the trial court. First, the Mexico acts were too remote from the present act.
These were acts by the victims almost twenty years before the homicides—before
Ochoa and Garcia moved to the United States and lived together first in California
and then in Oostburg where they were raising their families. Ochoa, his wife, and
three children moved into (and shared) Garcia’s home multiple times, and Ochoa
described Garcia as “a brother.”
Their families were close and celebrated
birthdays together where both Garcia and Ochoa drank, and although Ochoa
argues that Garcia’s drug use in front of his children distanced them in 2017, for
almost twenty years after the Mexico acts purportedly occurred, even Ochoa had
no concerns about the “three or four” violent incidents by Garcia and Lopez after
these men moved to the United States. Second, the Mexico acts were dissimilar to
what transpired the night Ochoa shot Garcia and Lopez. The Mexico events were
at public places—not Garcia’s home—the targeted subjects were strangers—not
family—and there were no threats to kill. The trial court’s decision to exclude the
Mexico events was reasonable.
¶30
The alleged United States-specific violent acts and Garcia and
Lopez’s alleged “bragging” were also properly excluded. Ochoa failed to provide
any specific information on these acts, and the trial court found that based on the
information Ochoa offered, a reasonable jury would not be able to find that those
118
15
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 16 of 38
No. 2020AP1981-CR
acts occurred. McMorris evidence must be relevant and not unduly prejudicial. If
the jury had no basis to find the proffered acts occurred, then they could not be
relevant.
Excluding McMorris evidence that was irrelevant does not violate
Ochoa’s right to present a defense.9
2. Excluded Expert Witnesses
¶31
Ochoa next complains that the trial court violated his right to put on
a defense when it excluded three of his expert witnesses: (1) Marty Hayes;
(2) Alfonso Villaseñor; and (3) Conrad Zvara. Ochoa asserted that Hayes would
offer his opinion about:
(1) the dynamics of violent encounters, including the risk of
an armed defender having his weapon disarmed when he is
outflanked; (2) the use of spent cartridge casings and other
physical evidence to infer shooter location; and (3) the
analysis of the trajectory of bullets, and other ballistic
evidence, to infer the manner in which the two deceased
individuals were shot.
9
Ochoa asserts the trial court’s decision does not stand up against the five-factor test set
forth in State v. Pulizzano, 155 Wis. 2d 633, 656, 456 N.W.2d 325 (1990):
(1) that the prior acts clearly occurred; (2) that the acts closely
resembled those of the present case; (3) that the prior act is
clearly relevant to a material issue; (4) that the evidence is
necessary to the defendant’s case; and (5) that the probative
value of the evidence outweighs its prejudicial effect.
Id. at 656. The State points out that Pulizzano is not specifically a McMorris evidence case, but
instead addresses the rape shield law. See Pulizzano, 155 Wis. 2d at 638. The State is correct.
Pulizzano does not mention McMorris evidence and only addresses the constitutional right to
present a defense in the context of “excluded evidence of a child complainant’s prior sexual
conduct for the limited purpose of proving an alternative source for sexual knowledge[.]”
Pulizzano, 155 Wis. 2d at 656. Even if we applied the Pulizzano test, we would still uphold the
trial court’s rulings. The Mexico acts do not “closely resemble[] those of the present case[,]” and
the prejudice of admitting such testimony outweighs the probative value. See id. The alleged
acts in the United States and the “bragging” likewise do not satisfy the Pulizzano factors because
there was insufficient information to show that the prior acts clearly occurred. See id.
119
16
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 17 of 38
No. 2020AP1981-CR
At the Daubert hearing, Hayes testified that he is a firearms expert, he was
retained to review the crime scene photos and do a crime scene reconstruction, and
that he uses forensic mannequins to determine bullet trajectory. Ochoa indicated
that Alfonso Villaseñor “is a certified federal interpreter in Spanish-to-English and
English-to-Spanish” and would give his opinion as to the slang meaning of the
phrases Lopez used that Ochoa understood to be a death threat. Ochoa filed a
summary of Villaseñor’s anticipated testimony stating that Villaseñor would
testify that “Te va a llevar la verga” best translates to “You’re gonna get fucked
up” or “You’re gonna get fucked” and that Villaseñor would explain that “the
speaker’s emotion when using the tone can have an affect [sic] on how the listener
interprets the phrase, such as whether he or she may be joking or serious.”
According to Ochoa, Conrad Zvara “is a retired Lieutenant of the Milwaukee
Police Department and Captain in the United States Coast Guard who is a certified
Self-Defense and Deadly Force instructor.” Ochoa indicated that Zvara planned to
testify about the use of deadly force and help the jury assess the reasonableness of
Ochoa’s actions given the circumstances in the Garcia living room at the time of
the shooting. Zvara testified at the Daubert hearing that he relied on “some of the
opinions” in other “defense expert reports,” including Hayes’s to write his report.
¶32
In determining whether the exclusion of a defendant’s expert witness
violated his constitutional right to present a defense, our supreme court has
established a two-part inquiry. See State v. St. George, 2002 WI 50, ¶53, 252
Wis. 2d 499, 643 N.W.2d 777. The first part requires that the defendant satisfy
four factors: (1) the expert’s testimony must meet the standards of WIS. STAT.
§ 907.02; (2) the testimony must be “clearly relevant to a material issue”; (3) the
testimony must be “necessary to the defendant’s case”; and (4) “[t]he probative
value of the testimony of the defendant’s expert witness outweigh[s] its prejudicial
120
17
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 18 of 38
No. 2020AP1981-CR
effect.” St. George, 252 Wis. 2d 499, ¶54. If the four factors of the first part are
satisfied, then the court moves on to the second part of the inquiry, namely
“whether the defendant’s right to present the proffered evidence is nonetheless
outweighed by the State’s compelling interest to exclude the evidence.” Id., ¶55.
“[W]hether to admit proffered expert testimony” “is within the [trial] court’s
discretion[.]” State v. Dobbs, 2020 WI 64, ¶27, 392 Wis. 2d 505, 945 N.W.2d
609. If the trial court’s decision “‘had a reasonable basis’ and ‘was made in
accordance with accepted legal standards and in accordance with the facts of
record[,]’” we will not reverse the trial court’s decision. Id. (citation omitted).
The trial court excluded these three witnesses under § 907.02—the first factor of
the first part of the St. George inquiry. Because we conclude the trial court’s
decision was proper on that basis, we need only address the first factor of part one
of the St. George inquiry.
¶33
After the Daubert hearings, the trial court rendered an oral decision
excluding Hayes, Villaseñor, and Zvara under the first St. George factor because
these three experts did not meet the standards of WIS. STAT. § 907.02. Section
907.02(1) provides:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and methods,
and the witness has applied the principles and methods
reliably to the facts of the case.
The trial court acknowledged that its role is to act as “a gatekeeper” to determine
whether the expert testimony is both reliable and relevant. It noted that “a trial
judge is to determine whether an expert is proposing to testify to scientific
121
18
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 19 of 38
No. 2020AP1981-CR
knowledge that will assist the trier of fact to understand or determine a fact of
issue, whether the reasoning or methodology underlying the testimony is
scientifically valid, and whether the reasoning or methodology can be applied to
the facts in issue.”
¶34
The trial court explained why it was excluding Hayes. First, it “had
some real concerns about the basis of his opinions.” Although Hayes had “some
experience as a former member of law enforcement,” it was “very dated” and
“didn’t involve analysis of crime scenes to the degree he’s being called -- would
be called to testify in this case.” Second, the trial court had concerns that Hayes
did not have sufficient education to offer opinions about “crime scene
reconstruction, forensic pathology, or the movement of bullets in the human
body,” as he based “a lot of his conclusions on his own experiments firing
weapons and using mannequins and rods to trace the trajectory of the bullets.”
The trial court saw this as “troubling” “because mannequins don’t have bone that
can change the trajectory of bullets” and because “people’s bodies may be moving
as they’re being shot, unlike a mannequin’s, which is stationary.” It concluded
that Hayes’s methodology was unreliable because “comparing how a bullet travels
through a mannequin versus a human body” is “vastly different. It’s comparing
apples to oranges.”
¶35
The trial court’s decision as to Hayes was not erroneous because it
reached a reasonable determination after considering the specific facts and
applying the correct law. It had valid concerns about the reliability of Hayes’s
opinions and acted within its gatekeeper function to exclude this witness.
¶36
In addressing Villaseñor, the trial court explained that it found his
testimony to be irrelevant. It reasoned:
122
19
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 20 of 38
No. 2020AP1981-CR
There’s no need for an expert to testify about meanings
of words or phrases because the only person the meaning
mattered to was Mr. Ochoa [who] was the hearer of those
statements. So it’s also excluded on relevance grounds.
I know the defense argued that it would help establish
Mr. Ochoa’s credibility if it re-enforced -- if this witness
re-enforced Mr. Ochoa’s perceptions of the words that were
used. But I don’t think that’s necessarily true because it
would require the jury to believe Mr. Ochoa was reciting
the words accurately. So they’re going to need to believe
Mr. Ochoa one way or the other anyway. And if they
believe him, then they’ll believe his take on those words.
So I just don’t think it’s relevant. I think it would be
cumulative, and it’s not necessary.
¶37
Excluding Villaseñor under WIS. STAT. § 907.02 as irrelevant was a
reasonable decision by the trial court. No one except Ochoa knew exactly what
Lopez said that night, and no one except Ochoa knew the tone or context of those
statements.
The only relevance of the slang translation was what Ochoa
understood the phrase to mean. Ochoa told the jury what the phrase Lopez used
meant to him: “With the tone of voice and the manner of which he was saying it,
it was like a threat to me. He said -- he was telling me I’m going to kill you.
You’re going to die.” The jury is charged with assessing credibility. It could have
chosen to believe Ochoa’s account of what happened. And if the jury believed
Ochoa’s account, it had no reason to doubt Ochoa’s testimony about the meaning
of Lopez’s statements. Presenting Villaseñor’s translation would have been a
waste of time and potentially created confusion. Moreover, the words “You’re
gonna get fucked up” or “You’re gonna get fucked” do not necessarily equate to
“I’m going to kill you” or “You’re going to die”—further supporting the trial
court’s exclusion as reasonable.
¶38
The trial court made the decision to exclude Zvara’s testimony
because it was “based in part on information from Mr. Hayes,” which it had
123
20
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 21 of 38
No. 2020AP1981-CR
already found to be unreliable. It therefore concluded that Zvara’s opinions based
on that information would likewise be unreliable. In addition, the trial court found
Zvara’s opinions to be irrelevant: “Mr. Zvara’s observations aren’t relevant to
those of the defendant and whether he was reasonable in his thoughts and actions.
The jury needs to consider the defendant’s thoughts and actions. So testimony
about typical use of force situations just isn’t relevant. So I’m going to exclude
his testimony on those grounds.”
¶39
The trial court’s decision on Zvara was reasonable.
Zvara’s
testimony relied on Hayes’s opinion, which was excluded as unreliable.
It
logically follows that any opinion Zvara formed based on Hayes’s opinion is also
unreliable. As for Zvara’s testimony that did not rely on Hayes’s opinion, the trial
court saw it as irrelevant. Zvara focused on use-of-force principles. Here, the jury
was tasked with assessing whether Ochoa’s thoughts and actions were reasonable.
The trial court acted reasonably in excluding testimony it found to be both
unreliable and irrelevant. As noted, it had “wide latitude to exclude evidence that
is repetitive …, only marginally relevant or poses an undue risk of harassment,
prejudice, [or] confusion of the issues.” Crane, 476 U.S. at 689-90 (alteration and
omission in original; citation and internal marks omitted).
¶40
In summary, the trial court’s determination that three of Ochoa’s
expert witnesses did not meet the standard under WIS. STAT. § 907.02(1) was not
erroneous, and Ochoa has therefore failed to establish their exclusion was a
violation of his constitutional right to present a defense.
3. Reason-for-Returning Testimony
¶41
Ochoa also argues that the trial court improperly prohibited him
from testifying about the reason he returned to Garcia’s home when he awoke
124
21
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 22 of 38
No. 2020AP1981-CR
during the middle of the night. Specifically, Ochoa wanted to tell the jury that
Garcia made statements asking Ochoa to return that night to talk about something
important and that it needed to be that night because Garcia was leaving for
Milwaukee the next day and did not know when he would be returning to
Oostburg.
Although the admissibility of Garcia’s statements to Ochoa that
prompted Ochoa’s return that night was the subject of much debate, the record
demonstrates that although the trial court did not allow Ochoa to testify as to the
specific content of Garcia’s request, it nevertheless allowed Ochoa to explain that
he returned to Garcia’s house in the middle of the night specifically because
Garcia had asked him to return to talk about something important that night
because Garcia was leaving for Milwaukee the next day. We set forth exactly
what the record reflects.
¶42
Ochoa testified that after returning home from his first visit to
Garcia’s house that evening, he slept for about two or three hours and then woke
up because he remembered that his cousin, Garcia, “had been very insistent” about
something. At that point, the prosecutor objected on hearsay grounds, and after a
sidebar, the trial court sent the jury out of the courtroom. The trial court recounted
the sidebar discussion for the record, explaining that the defense “wanted to
introduce testimony of what the decedent, Luis Garcia, had said that led
Mr. Ochoa to return to the house that evening in the middle of the night or the
middle of the morning, early morning.”
¶43
Ochoa’s trial lawyer argued that “the jury is entitled to hear the
actual account of the person who was there and understand the reason why he
returned to the house[.]” The defense wanted to offer something to dispel the
inference that Ochoa “had some kind of intent to kill based on using a firearm and
having it with him and going back to a house late at night.” In response to the
125
22
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 23 of 38
No. 2020AP1981-CR
prosecutor’s concern that testimony about what Garcia said would be inadmissible
hearsay if offered for the truth of the matter asserted, Ochoa’s trial lawyer argued
that Ochoa had a constitutional right “to explain his intent and motive, to explain
the background why that statement had an effect on him, enough to get him out of
bed in the middle of the night[.]”
¶44
The trial court did not make an immediate decision because it
wanted to research the issue. After considering relevant case law, the trial court
ruled that Ochoa could testify about his reason for returning to Garcia’s home in
the middle of the night.
Specifically, the trial court concluded Ochoa could
testify: “that when he left the house, he was under the impression that Luis Garcia
wanted him to return that evening, later that evening. And he can certainly testify
to his own statement that he said he would if he could.” The trial court explained:
I am not trying to limit his defense. I am trying to follow
the law to the best of my ability, which is why I think it is
fair to allow some explanation of why he returned, but the
entirety of the conversation is nothing that the jury needs to
hear. For you to present a complete defense, the jury needs
to know that your client was under the impression that Luis
Garcia wanted him to come back that evening and that he
said he wouldn’t be.
The trial court added:
And the other thing I just wanted to put on the record
regarding my decision on what can come out about why
Mr. Ochoa returned to the residence, is that he could have
gone over there for any number of reasons, none of which
involved the intent to commit a homicide.
What happened after he got there, I think, as I already
said, that would be relevant, but going over even at the
victim’s insistence isn’t in my opinion relevant, because
there are too many interceding possibilities for the intent to
commit a homicide to form after that to come into play.
126
23
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 24 of 38
No. 2020AP1981-CR
¶45
Ochoa filed a motion to reconsider the trial court’s decision on what
Ochoa could testify to regarding Garcia’s statement instructing Ochoa to “come
back” to Garcia’s home the night of the shooting.
In addressing Ochoa’s
reconsideration motion, the court clarified its ruling:
Most of my decision was based on the Wilson[10] case
and the Nieves[11] case and how I perceive these statements.
I’m having difficulty understanding why the defense keeps
asserting that I’m not allowing the defendant to testify to
the effect of these statements on him because I’ve already
said that he can certainly testify that he was under the
impression that he was to come back.
He can certainly testify as to Luis Garcia’s demeanor,
that he seemed upset or that he seemed however his
demeanor appeared because that's not hearsay. He can
certainly testify to his own statements. So I don’t
understand where the defense is coming from when they’re
saying I’m denying the defendant the ability to fully
present his defense or to present that part of the defense.
What I’m trying to do is comply with the law as I
understand it on hearsay. I don’t know that the specific
statement by the defendant has actually -- that the
defendant wants to offer that Luis Garcia made was ever
specifically imparted to me. What it says in the motion is
that the statement is come back, cousin. If that’s the
statement, I think that he can testify to that as to effect on
listener, come back, cousin. But to get into all the extra
stuff, the discussion about plans, et cetera, I think that
would be a violation of the hearsay rule for the reasons I
already went into yesterday.
¶46
When Ochoa resumed his direct testimony, the following exchange
occurred between Ochoa and his trial counsel:
10
State v. Wilson, 160 Wis. 2d 774, 777, 467 N.W.2d 130 (Ct. App. 1991) (a court may
properly admit statements, not for their truth, but rather to show their effect on the listener’s state
of mind).
State v. Nieves, No. 2014AP1623-CR, unpublished slip op. (Apr. 5, 2016), rev’d, 2017
WI 69, 376 Wis. 2d 300, 897 N.W.2d 363.
11
127
24
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 25 of 38
No. 2020AP1981-CR
¶47
Q
We talked about during the night you woke up
during the middle of the night because you were
worried about something?
A
Yes.
Q
What were you worried about?
A
Well, because of my cousin Luis. Hours prior he
had insisted that I go to his house because he
wanted to talk about something with me.
After Ochoa’s answer, the prosecutor interrupted, stating: “Judge,
the State previously objected to hearsay.” Although the trial court responded by
asking Ochoa’s trial lawyer if he “need[ed] clarification on the decision[,]” the
trial court did not ultimately rule on the objection or strike Ochoa’s answer.
Defense counsel continued questioning Ochoa:
Q
Sergio, did Luis tell you, cousin, come over to my
house?
A
Yes. He insisted that I go back to him. And I was
under the impression that he had something really
important to tell me.
Q
Do you remember what time he insisted to you to
come back or where you were when he was with
you?
This drew another objection from the prosecutor as to “the first part of that
multipart question.” The trial court sustained the objection but did not direct the
jury to disregard any part of the question or the previous answer. The jury then
heard the following exchange:
Q
Where was Luis when he told you to come back?
A
We were at his house the first time that I went with
him.
Q
And when you saw him, without saying more about
what he said to you, what kind of demeanor did he
have at the time? Was he joking, serious?
128
25
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 26 of 38
No. 2020AP1981-CR
A
Well, when he insisted me to go back later, he was
being serious.
Q
When you woke up in the middle of the night, why
did it bother you so much that he said come back to
the house?
A
I thought that he had something really important to
tell me.
The trial court then sustained an objection to defense counsel’s question about
whether Ochoa “[knew] why [Garcia] wanted [him] to come back to the house[,]”
but the trial court allowed the following:
¶48
Q
Without using any words about what Luis has
previously said, had you ever seen your cousin
make a request with that type of serious demeanor
before?
A
No. I have never seen him.
Q
Were you able to go back to sleep after you woke
up?
A
After? No.
Q
What did you do?
A
I got dressed. I got out of my house and got going
to [Garcia’s] house.
During re-direct, Ochoa testified that Garcia wanted him to return to
his house that night because he (Garcia) “said that he wanted to talk with me
because the next day very early he was going back to Milwaukee” and that “he
was gonna be there for two or three weeks.” Ochoa also testified that Garcia did
not live in Oostburg anymore because he had moved to Milwaukee for work.12
According to other testimony, Garcia “stayed” in Milwaukee during the week for his
job but came home to Oostburg on the weekends.
12
129
26
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 27 of 38
No. 2020AP1981-CR
¶49
Thus, although the jury did not hear what Garcia specifically said,
the statements that Ochoa asserts were erroneously excluded were not actually
excluded.13 The jury heard the reason why Ochoa returned to Garcia’s house in
the middle of the night and that Garcia had insisted that Ochoa come back that
night before Garcia left for Milwaukee. Accordingly, we cannot conclude that the
trial court’s rulings in this regard violated Ochoa’s constitutional right to present a
defense.
B. Jury Instruction
¶50
Ochoa’s final contention is that an error in the jury instructions
warrants a new trial. Specifically, he argues the trial court erroneously exercised
its discretion when it failed to modify WIS JI—CRIMINAL 1016 to include WIS.
STAT. § 939.22(32)’s definition of “reasonably believes[.]” Ochoa points out that
while the definition of “reasonably believes” is present in WIS JI—CRIMINAL 805,
the definition is absent from WIS JI—CRIMINAL 1016.
¶51
As relevant here, Wisconsin law provides the following as to self-
defense:
A person is privileged to threaten or intentionally use force
against another for the purpose of preventing or terminating
what the person reasonably believes to be an unlawful
interference with his or her person by such other person.
The actor may intentionally use only such force or threat
thereof as the actor reasonably believes is necessary to
prevent or terminate the interference. The actor may not
intentionally use force which is intended or likely to cause
13
Ochoa does not develop any argument that what Garcia wanted to discuss was
relevant, nor does he provide substantive information as to what was allegedly erroneously
excluded. In any event, as the State points out, Ochoa later testified that they discussed why
Ochoa had not visited Garcia and why Ochoa did not want Garcia to be the godfather to his son.
130
27
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 28 of 38
No. 2020AP1981-CR
death or great bodily harm unless the actor reasonably
believes that such force is necessary to prevent imminent
death or great bodily harm to himself or herself.
WIS. STAT. § 939.48(1) (emphases added). WISCONSIN STAT. § 939.22 defines
“words and phrases” as used in WIS. STAT. chs. 939 to 948 and 951, and
subsection (32) provides: “‘Reasonably believes’ means that the actor believes
that a certain fact situation exists and such belief under the circumstances is
reasonable even though erroneous.” Sec. 939.22(32).
¶52
WIS JI—CRIMINAL 1016 is the pattern jury instruction used in a case
such as this involving first-degree intentional homicide, second-degree intentional
homicide, first-degree reckless homicide, and self-defense.
See WIS JI—
CRIMINAL 1016 cmt. i. (“This instruction is for a case where first degree
intentional homicide is charged, there is evidence that the defendant acted in
self-defense, and the lesser included offenses of second degree intentional
homicide and first degree reckless homicide are to be submitted to the jury.”). WIS
JI—CRIMINAL 805 is the general self-defense instruction and provides as relevant:
A belief may be reasonable even though mistaken. In
determining whether the defendant’s beliefs were
reasonable, the standard is what a person of ordinary
intelligence and prudence would have believed in the
defendant’s position under the circumstances that existed at
the time of the alleged offense. The reasonableness of the
defendant’s beliefs must be determined from the standpoint
of the defendant at the time of the defendant’s acts and not
from the viewpoint of the jury now.
(Emphasis added; footnotes omitted.)
¶53
Because this case involved the charged first-degree intentional
homicides, the lesser-included offenses of second-degree intentional homicide and
first-degree reckless homicide, and Ochoa’s claim that he acted in self-defense, the
State requested WIS JI—CRIMINAL 1016 because it instructs the jury on the
131
28
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 29 of 38
No. 2020AP1981-CR
elements of the charged crime (first-degree intentional homicide) and its
relationship to the two lesser-included offenses (second-degree intentional
homicide and first-degree reckless homicide). This instruction also explains the
self-defense privilege and sets forth how self-defense applies to each of these three
homicide offenses.
Ochoa proposed modifying WIS JI—CRIMINAL 1016 to
include the portion of WIS JI—CRIMINAL 805 instructing the jury that “[a] belief
may be reasonable even though mistaken.”
¶54
The trial court considered both positions before deciding how to
instruct on the lesser-included offenses. It “looked at the proposed language that
was submitted by both parties” and concluded that “if the lesser included is
requested, my inclination would be to follow” the pattern instruction, WIS JI—
CRIMINAL 1016, as requested by the State “because I think it does most closely
match the statutes and the case law.” The trial court also expressed that it was
“always leery to use any sort of instruction that is drafted by either party as
opposed to being a pattern instruction” because “[t]he pattern instructions have
been very well vetted.”
¶55
At the final jury instruction conference, the State argued the
evidence supported instructing the jury on the lesser-included offenses of seconddegree intentional homicide and first-degree reckless homicide and therefore
requested the pattern jury instruction WIS JI—CRIMINAL 1016 because it
addressed the original charge, the lesser-included crimes, and self-defense. Ochoa
objected to instructing on the lesser-included crimes and proposed a modification
of the pattern jury instruction to include WIS. STAT. § 939.22(32)’s definition of
“reasonably believes” as set forth in WIS JI—CRIMINAL 805 (“A belief may be
reasonable even though mistaken.”).
132
29
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 30 of 38
No. 2020AP1981-CR
¶56
The trial court agreed the evidence supported submitting the lesser-
included crimes to the jury. The State also argued against Ochoa’s request for an
instruction that added a definition of “reasonably believes”:
As far as the language of the instruction that would be
necessary, I have offered to the Court the pattern
instruction. The Court’s observation about using pattern
instructions because they have been vetted is very
appropriate. The instruction combines the three offenses
with self-defense, and I think it does an excellent job of
being clear as to how the jury is to consider self-defense
and the definition of self-defense for these offenses.
I do not see, much like the pattern instructions have not
seen the need, to add additional language including that
which the defense is offering. So I ask that you read the
standard pattern instruction for the offenses as drafted by
the instruction committee.
Ochoa’s lawyer responded:
The language that has been requested to be added is
actually language that comes from a different pattern
instruction. I think that when you look at what the law
requires, you look at the two statutory definitions; first, the
affirmative privilege of self-defense talking about what
reasonable beliefs mean under those circumstances and
specifically the statutory defined meaning by the
legislature.
And that was incorporated for some reason into 805 but
not into I believe it’s 1016. This is a substantive part of
self-defense whether there was a mistake. There’s been
testimony on that particularly from Dr. Trompetter that a
portion of cases of legitimate self-defense can be mistake,
can be mistaken beliefs of the actor. There is no reason
other than to undermine someone’s rights to keep out
language that’s statutory, not by a drafting committee, but
that came directly from the legislature.
So our position is that the Court should follow what the
legislative statutory language proscribes when presenting to
the jury as fact finder what they need to do to understand
that key term, reasonable belief. And part of that definition
is that that belief can be reasonable albeit mistaken. There
is only prejudice to someone to take away a portion of the
133
30
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 31 of 38
No. 2020AP1981-CR
definition that relates to their rights for no good reason in
terms of prejudice to the other party.
I think that is a compelling reason to follow the statute
and not to follow what was done by a drafting committee in
this very long instruction and change what they previously
did that undermines and omits the statutory definition that
the Court and all the parties turn to when there’s any
ambiguity about an operational phrase on a key issue such
as self-defense.
¶57
The trial court asked Ochoa’s lawyer if he had “any case law to
support that because self-defense … is commonly used as a defense to homicide”
and noted that the modification Ochoa was requesting had not been added to WIS
JI—CRIMINAL 1016. Ochoa’s lawyer responded that “the plain language of the
statute speaks for itself” but that he would nevertheless “try and pull up additional
case law that stands for that proposition in the context of self-defense.” The trial
court replied: “All right. If you can provide any case law, I’ll take a look at that.
Otherwise my inclination is not to change the pattern instruction.”
¶58
After addressing other jury instructions, the trial court returned to
WIS JI—CRIMINAL 1016 and indicated it would accept 1016 “absent any case law
in support of defense’s argument.” Ochoa’s counsel responded that they were
“still looking for that. There’s only one case that talks about the instruction on
self-defense being inappropriate, so we’re reviewing that.”
The trial court
eventually adjourned the jury instruction conference and advised the parties that
“it’s going to take some time for my judicial assistant to try and assemble these
packets. Hopefully we can clean up any last-minute issues at that point. Anything
else from anybody?” Ochoa’s lawyer said he was “just going to keep looking at
case law on the issue of why the statutory language should be incorporated” and
that he would “let the Court know” if he found anything. Nothing was submitted
134
31
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 32 of 38
No. 2020AP1981-CR
and the trial court charged the jury with the pattern instruction WIS JI—CRIMINAL
1016.
¶59
“A trial court has broad discretion in instructing a jury but must
exercise that discretion in order to fully and fairly inform the jury of the applicable
rules of law.” State v. Ellington, 2005 WI App 243, ¶7, 288 Wis. 2d 264, 707
N.W.2d 907. “A circuit court properly exercises its discretion when it fully and
fairly informs the jury of the law that applies to the charges for which a defendant
is tried.” State v. Ferguson, 2009 WI 50, ¶9, 317 Wis. 2d 586, 767 N.W.2d 187.
“The purpose of a jury instruction is to fully and fairly inform the jury of a rule or
principle of law applicable to a particular case.” State v. Hubbard, 2008 WI 92,
¶26, 313 Wis. 2d 1, 752 N.W.2d 839 (citation omitted). Whether an instruction is
supported by the underlying facts is a legal question we review independently.
Ferguson, 317 Wis. 2d 586, ¶9. In reviewing a challenge to jury instructions, we
must view the instructions “‘in the context of the overall charge.’” Ellington, 288
Wis. 2d 264, ¶7 (citation omitted). “Relief is not warranted unless the court is
‘persuaded that the instructions, when viewed as a whole, misstated the law or
misdirected the jury.’” Id. (emphasis added).
¶60
Here, the trial court chose to give the pattern jury instruction that
specifically applies to the homicide crimes and self-defense assertions at issue
here.
See WIS JI—CRIMINAL 1016, cmt. i.
It is unclear why WIS. STAT.
§ 939.22(32)’s definition of “reasonably believes” was added to WIS JI—
CRIMINAL 805 but omitted from WIS JI—CRIMINAL 1016. What is clear, however,
is that the trial court’s decision to give the pattern instruction was not an erroneous
exercise of discretion because this instruction, as a whole, provided the jury with
an accurate instruction as to the law of self-defense under the facts of this case.
135
32
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 33 of 38
No. 2020AP1981-CR
¶61
As set forth above, the statutory definition provides that
“[r]easonably believes” means that the “actor believes that a certain fact situation
exists and such belief under the circumstances is reasonable even though
erroneous.” WIS. STAT. § 939.22(32). As the State points out in its Response
brief, Ochoa did not provide the trial court with any fact situation about which
Ochoa claimed he had an erroneous or mistaken belief that would make the
modification applicable, nor did he do so in his Appellant’s brief. It is only in his
Reply brief, that Ochoa points to possible mistaken perceptions that he could have
had, but his hypothetical examples are devoid of any cite to the record identifying
a fact about which he was mistaken, either that he provided to the trial court or to
this court on appeal.
As the party requesting it, Ochoa had the burden of
production to show that the modification was appropriate in the context of the
facts of the case. See State v. Pettit, 171 Wis. 2d 627, 640, 492 N.W.2d 633 (Ct.
App. 1992). He failed to do so.
¶62
As noted, even on appeal, Ochoa has not identified a mistake of fact
relating to his alleged belief in an unlawful interference with his person by the
others, a mistake of fact relating to his alleged belief that his actions were
necessary to prevent or terminate the interference, or a mistake of fact relating to
his alleged belief that the force used was necessary to prevent imminent death or
136
33
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 34 of 38
No. 2020AP1981-CR
great bodily harm to himself.14 This is not a case, for example, in which a
defendant testified to a mistaken belief that a victim held a gun when she did not.
¶63
Thus, since there was no identified mistake of fact, the instruction
would have had no effect on the jury’s deliberation. Thus, it is clear that an
additional jury instruction advising the jury that a belief can be reasonable even if
mistaken would not have changed the outcome. See State v. Langlois, 2018 WI
73, ¶48, 382 Wis. 2d 414, 913 N.W.2d 812 (an erroneous jury instruction warrants
reversal only when the error is prejudicial).
¶64
As it stands, Ochoa’s examples of “mistaken” beliefs are not based
on mistakes of fact, but rather, present questions about whether his perception of
14
Ochoa sets forth hypothetical examples based on arguments the State made in its
closing argument. For example, Ochoa argues he could have been mistaken about the need to
return to Garcia’s home that evening. Even if this somehow relates to his beliefs relating to the
danger posed or his use of force, Ochoa did not testify that he was mistaken about the need to
return; rather, he emphasized his belief about his need to return and indicated no uncertainty
about his cousin’s insistence. He also testified that he could not leave because Garcia was behind
him with a knife and he could not open the back door. However, these examples present issues of
fact, and his conclusion that he was in danger is based on these facts. But there is no mistaken
fact identified, such as for example that he could not open the door because it was locked when it
actually was not or that Garcia was behind him when he actually was not. His testimony that the
door handle spun and was “tricky to open” was undisputed, as was his testimony about Garcia’s
location.
As another example, Ochoa contends he could have made a mistake of fact as to where
Lopez’s knife was or whether Lopez was reaching for a knife. But at trial, Ochoa testified that he
took out his gun and shot Lopez when Lopez reached toward his waist as though he were going to
draw a weapon. Ochoa never suggested that he was mistaken about Lopez’s movement, and he
argued that it was Lopez who was mistaken about where the knife was (counsel argued to the jury
that Ochoa testified that Lopez reached toward his left pocket when it was ultimately found to be
in his right pocket). In short, Ochoa did not testify that he was factually mistaken. These are
issues of credibility and Ochoa’s denial that his perception of the danger was unreasonable.
Again, he has not identified any mistake of fact that factored into that analysis.
137
34
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 35 of 38
No. 2020AP1981-CR
the danger was reasonable. To that end, the jury heard the following proper
instructions, given the facts of this case:15
“The Criminal Code of Wisconsin provides that a person is
privileged to intentionally use force against another for the
purpose of preventing or terminating what he reasonably
believes to be an unlawful interference with his person by
the other person. However, he may intentionally use only
such force as he reasonably believes is necessary to prevent
or terminate the interference. He may not intentionally use
force which is intended or likely to cause death unless he
reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself.”
That Ochoa was “not guilty of any homicide offense” if he
“reasonably believed that he was preventing or terminating
an unlawful interference with his person and reasonably
believed the force used was necessary to prevent imminent
death or great bodily harm to himself.”
That “[t]he reasonableness of the defendant’s belief must
be determined from the standpoint of the defendant at the
time of his acts and not from the viewpoint of the jury
now” and that “[t]he standard is what a person of ordinary
intelligence and prudence would have believed in the
position of the defendant under the circumstances existing
at the time of the alleged offense.”
How to consider the applicability of self-defense as it
related to each charge (first-degree intentional homicide,
second-degree intentional homicide, and first-degree
reckless homicide).
That in regard to first-degree reckless homicide, it should
“consider the evidence relating to self-defense in deciding
whether the defendant’s conduct created an unreasonable
risk to another” and that if a defendant acts “lawfully in
self-defense, his conduct did not create an unreasonable
risk to another.”
That it is the State’s burden to “prove beyond a reasonable
doubt that the defendant did not act lawfully in self-
15
For the purpose of brevity, we set forth only select parts of WIS JI—CRIMINAL 1016.
The trial court read this entire instruction to the jury.
138
35
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 36 of 38
No. 2020AP1981-CR
defense” and that the jury “must be satisfied beyond a
reasonable doubt from all the evidence in the case that the
risk was unreasonable.” (Emphasis added.)
¶65
In summary, under the facts of this case the jury properly heard that
self-defense must be based on a reasonable belief, that whether Ochoa’s belief was
reasonable as to self-defense must be considered from the perspective of an
ordinary, reasonable person in Ochoa’s position at the time of the offense, and
how the self-defense privilege specifically applied to the charged and lesserincluded offenses. When viewed as a whole, and under the facts of this case, the
instruction given is in accord with the self-defense privilege codified in WIS.
STAT. § 939.48(1).
Moreover, in addition to instructing the jury as to the
circumstances in which the self-defense privilege applies, the instruction it heard
also accurately stated the law of self-defense as it relates to first-degree intentional
homicide, second-degree intentional homicide, first-degree reckless homicide, and
self-defense.
IV. CONCLUSION
¶66
The trial court’s evidentiary rulings did not violate Ochoa’s
constitutional right to present a defense. The right to present a defense is not
absolute and may be constrained by evidentiary rules that “serve the interests of
fairness and reliability—even if the defendant would prefer to see that evidence
admitted.” Crane, 476 U.S. at 690. Likewise, the trial court’s decision to give the
pattern jury instruction specifically applicable to the circumstances of this case did
not constitute an erroneous exercise of discretion.
By the Court.—Judgment affirmed.
Recommended for publication in the official reports.
139
36
Case 2020AP001981
Opinion/Decision
Filed 06-30-2022
Page 37 of 38
No. 2020AP1981-CR
140
37
Appendix 3
141
Case 2017CF000478
Document 445
Filed 03-13-2020
Page 1 of 2
FILED
03-13-2020
Sheboygan County
BY THE COURT:
Clerk of Circuit Court
2017CF000478
DATE SIGNED: March 13, 2020
Electronically signed by Christine M Koenig
Circuit Court Deputy Clerk
STATE OF WISCONSIN
CIRCUIT COURT BRANCH 4
State of Wisconsin vs. Sergio Moises Ochoa
SHEBOYGAN COUNTY
Judgment of Conviction
Sentence to Wisconsin State Prisons and
Extended Supervision
Date of Birth: 12-13-1975
Case No. 2017CF000478
List Aliases: AKA Sergio Moises Ochoa
The defendant was found guilty of the following crime(s):
Ct. Description
1 1st-Degree Reckless Homicide
2 1st-Degree Reckless Homicide
Violation
940.02(1)
940.02(1)
Plea
Not Guilty
Not Guilty
Severity
Felony B
Felony B
Date(s)
Committed
07-30-2017
07-30-2017
Trial
To
Jury
Jury
Date(s)
Convicted
10-29-2019
10-29-2019
IT IS ADJUDGED that the defendant is guilty as convicted and sentenced as follows:
Ct. Sent. Date Sentence
Length
Agency
Comments
1 03-13-2020 State Prison w/ Ext. Supervision 17 YR 6 MO Wisconsin
Prison System
2 03-13-2020 State Prison w/ Ext. Supervision 17 YR 6 MO Wisconsin
Prison System
Total Bifurcated Sentence Time
Confinement Period
Ct. Years Months Days
1
12
6
0
2
12
6
0
Ct. Sent. Date
1 03-13-2020
2 03-13-2020
Extended Supervision
Years Months Days
5
0
0
5
0
0
Comments
Sentence
Length
Firearms/Weapons Restrict
Firearms/Weapons Restrict
Agency
Total Length of Sentence
Years Months Days
17
6
0
17
6
0
Comments
Sentence Concurrent With/Consecutive Information:
Ct. Sentence
1 State Prison
1 Extended Supervision
2 State Prison
2 Extended Supervision
Type
Consecutive
Consecutive
Consecutive
Consecutive
Concurrent with/Consecutive To Comments
Count 2
Count 2
Count 1
Count 1
Conditions of Extended Supervision:
142
CR-212(CCAP), 05/2016 Judgment of Conviction, DOC 20, (08/2007)
§§ 939.50, 939.51, 972.13, Chapter 973, Wisconsin Statutes
This form shall not be modified. It may be supplemented with additional material.
Page 1 of 2
Case 2017CF000478
Obligations:
Fine
Document 445
Filed 03-13-2020
Page 2 of 2
(Total amounts only)
Attorney
Fees
Ct.
1
1
Court Costs
1,878.20
Condition
Restitution
Costs
1
Employment / School
1
Prohibitions
1
Other
2
2
Costs
Other
Joint and Several
Restitution
Other
6,905.00
716.50
Agency/Program Comments
Mandatory
Victim/Wit.
Surcharge
184.00
5% Rest.
Surcharge
DNA Anal.
Surcharge
500.00
If Probation is revoked or discharged with outstanding
financial obligations, a civil judgment shall be entered
against the defendant in favor of restitution victims and or
governmental entities for the balance due. All available
enforcement actions will be used to collect the debt.
If revoked and sent to prison, DOC shall withhold 25% of all
inmates monies to pay fines/costs with the balance due as a
condition of extended supervision/parole.
Good faith effort to seek/maintain employment - at agents
discretion
No contact directly or indirectly with the victims family
members.
Not possess any dangerous weapons
Counseling/assessments/treatment deemed appropriate by
agent.
Provide DNA sample.
Same conditions as Count 1
Pursuant to §973.01(3g) and (3m) Wisconsin Statutes, the court determines the following:
The Defendant is
is not X eligible for the Challenge Incarceration Program.
The Defendant is
is not X eligible for the Substance Abuse Program.
IT IS ADJUDGED that 958 days sentence credit are due pursuant to §973.155, Wisconsin Statutes
IT IS ORDERED that the Sheriff shall deliver the defendant into the custody of the Department.
If the defendant is in or is sentenced to state prison and is ordered to pay restitution, IT IS ORDERED that the defendant
authorize the department to collect, from the defendant's wages and from other monies held in the defendant's inmate
account, an amount or a percentage which the department determines is reasonable for restitution to victims.
If the defendant is placed on probation or released to extended supervision, IT IS ORDERED that the defendant pay
supervision fees as determined by the Department of Corrections.
THIS IS A FINAL ORDER FOR THE PURPOSE OF APPEAL.
Distribution:
Rebecca L. Persick, Judge
Joel N Urmanski, District Attorney's Office
Corey Mehlos, Defense Attorney
143
CR-212(CCAP), 05/2016 Judgment of Conviction, DOC 20, (08/2007)
§§ 939.50, 939.51, 972.13, Chapter 973, Wisconsin Statutes
This form shall not be modified. It may be supplemented with additional material.
Page 2 of 2
Appendix 4
144
Wis. Stat. § 940.02
This document is current through the 2021-2022 Legislative Session.
LexisNexis® Wisconsin Annotated Statutes > Criminal Code (Chs. 939 — 951) > Chapter 940. Crimes
Against Life and Bodily Security (Subchs. I — II) > Subchapter I Life (§§ 940.01 — 940.16)
940.02. First-degree reckless homicide.
(1) Whoever recklessly causes the death of another human being under circumstances which show
utter disregard for human life is guilty of a Class B felony.
(1m) Whoever recklessly causes the death of an unborn child under circumstances that show utter
disregard for the life of that unborn child, the woman who is pregnant with that unborn child or
another is guilty of a Class B felony.
(2) Whoever causes the death of another human being under any of the following circumstances is
guilty of a Class C felony:
(a) By manufacture, distribution or delivery, in violation of s. 961.41, of a controlled
substance included in schedule I or II under ch. 961, of a controlled substance analog of a
controlled substance included in schedule I or II under ch. 961 or of ketamine or
flunitrazepam, if another human being uses the controlled substance or controlled substance
analog and dies as a result of that use. This paragraph applies:
1. Whether the human being dies as a result of using the controlled substance or controlled
substance analog by itself or with any compound, mixture, diluent or other substance
mixed or combined with the controlled substance or controlled substance analog.
2. Whether or not the controlled substance or controlled substance analog is mixed or
combined with any compound, mixture, diluent or other substance after the violation of s.
961.41 occurs.
3. To any distribution or delivery described in this paragraph, regardless of whether the
distribution or delivery is made directly to the human being who dies. If possession of the
controlled substance included in schedule I or II under ch. 961, of the controlled substance
analog of the controlled substance included in schedule I or II under ch. 961 or of the
ketamine or flunitrazepam is transferred more than once prior to the death as described in
this paragraph, each person who distributes or delivers the controlled substance or
controlled substance analog in violation of s. 961.41 is guilty under this paragraph.
(b) By administering or assisting in administering a controlled substance included in schedule
I or II under ch. 961, a controlled substance analog of a controlled substance included in
schedule I or II of ch. 961 or ketamine or flunitrazepam, without lawful authority to do so, to
another human being and that human being dies as a result of the use of the substance. This
paragraph applies whether the human being dies as a result of using the controlled substance or
controlled substance analog by itself or with any compound, mixture, diluent or other
substance mixed or combined with the controlled substance or controlled substance analog.
145
Wis. Stat. § 940.02
History
1987 a. 339, 399; 1995 a. 448; 1997 a. 295; 1999 a. 57; 2001 a. 109.
LexisNexis® Wisconsin Annotated Statutes
Copyright © 2023 All rights reserved.
End of Document
146
Appendix 5
147
Wis. Stat. § 939.48
This document is current through the 2021-2022 Legislative Session.
LexisNexis® Wisconsin Annotated Statutes > Criminal Code (Chs. 939 — 951) > Chapter 939. Crimes —
General Provisions (Subchs. I — VI) > Subchapter III Defenses to Criminal Liability (§§ 939.42 — 939.49)
939.48. Self-defense and defense of others.
(1) A person is privileged to threaten or intentionally use force against another for the purpose of
preventing or terminating what the person reasonably believes to be an unlawful interference with
his or her person by such other person. The actor may intentionally use only such force or threat
thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The
actor may not intentionally use force which is intended or likely to cause death or great bodily
harm unless the actor reasonably believes that such force is necessary to prevent imminent death
or great bodily harm to himself or herself.
(1m)
(a) In this subsection:
1. “Dwelling” has the meaning given in s. 895.07 (1) (h).
2. “Place of business” means a business that the actor owns or operates.
(ar) If an actor intentionally used force that was intended or likely to cause death or great
bodily harm, the court may not consider whether the actor had an opportunity to flee or retreat
before he or she used force and shall presume that the actor reasonably believed that the force
was necessary to prevent imminent death or great bodily harm to himself or herself if the actor
makes such a claim under sub. (1) and either of the following applies:
1. The person against whom the force was used was in the process of unlawfully and
forcibly entering the actor’s dwelling, motor vehicle, or place of business, the actor was
present in the dwelling, motor vehicle, or place of business, and the actor knew or
reasonably believed that an unlawful and forcible entry was occurring.
2. The person against whom the force was used was in the actor’s dwelling, motor vehicle,
or place of business after unlawfully and forcibly entering it, the actor was present in the
dwelling, motor vehicle, or place of business, and the actor knew or reasonably believed
that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of
business.
(b) The presumption described in par. (ar) does not apply if any of the following applies:
1. The actor was engaged in a criminal activity or was using his or her dwelling, motor
vehicle, or place of business to further a criminal activity at the time.
2. The person against whom the force was used was a public safety worker, as defined in
s. 941.375 (1) (b), who entered or attempted to enter the actor’s dwelling, motor vehicle, or
148
Wis. Stat. § 939.48
place of business in the performance of his or her official duties. This subdivision applies
only if at least one of the following applies:
a. The public safety worker identified himself or herself to the actor before the force
described in par. (ar) was used by the actor.
b. The actor knew or reasonably should have known that the person entering or
attempting to enter his or her dwelling, motor vehicle, or place of business was a public
safety worker.
(2) Provocation affects the privilege of self-defense as follows:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him
or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense
against such attack, except when the attack which ensues is of a type causing the person
engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of
death or great bodily harm. In such a case, the person engaging in the unlawful conduct is
privileged to act in self-defense, but the person is not privileged to resort to the use of force
intended or likely to cause death to the person’s assailant unless the person reasonably believes
he or she has exhausted every other reasonable means to escape from or otherwise avoid death
or great bodily harm at the hands of his or her assailant.
(b) The privilege lost by provocation may be regained if the actor in good faith withdraws
from the fight and gives adequate notice thereof to his or her assailant.
(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to
use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not
entitled to claim the privilege of self-defense.
(3) The privilege of self-defense extends not only to the intentional infliction of harm upon a real
or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that
if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless
homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or
2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or
fire, the actor is liable for whichever one of those crimes is committed.
(4) A person is privileged to defend a 3rd person from real or apparent unlawful interference by
another under the same conditions and by the same means as those under and by which the person
is privileged to defend himself or herself from real or apparent unlawful interference, provided that
the person reasonably believes that the facts are such that the 3rd person would be privileged to act
in self-defense and that the person’s intervention is necessary for the protection of the 3rd person.
(5) A person is privileged to use force against another if the person reasonably believes that to use
such force is necessary to prevent such person from committing suicide, but this privilege does not
extend to the intentional use of force intended or likely to cause death.
(6) In this section “unlawful” means either tortious or expressly prohibited by criminal law or
both.
History
149
Wis. Stat. § 939.48
1987 a. 399; 1993 a. 486; 2005 a. 253; 2011 a. 94.
LexisNexis® Wisconsin Annotated Statutes
Copyright © 2023 All rights reserved.
End of Document
150
Appendix 6
151
Case 2017CF000478
Document 197
Filed 10-01-2019
Page 1 of 69
FILED
10-01-2019
Sheboygan County
Clerk of Circuit Court
2017CF000478
67 7( 2) :,6 216,1
6 ( 2
,5 8,7
1
2817
2857
6WDWH RI :LVFRQVLQ
3ODLQWLII
2
8 ,1*
Y
HUJLR 0RL H
2FKRD
DVH 1R
'HIHQGDQW
R UW 2IILFLDO
RQRUDEOH 5HEHFFD 3HUVLFN
'DWH RI 3URFHHGLQJ
J
33( 5 1 (6
7KH 3ODLQWLII DSSHDUV E
'LVWULFW
WWRUQH
-RHO 8UPDQVNL
7KH 'HIHQGDQW DSSHDUV LQ SHUVRQ ZLWK
WWRUQH
RUH
( ), (
0HKORV
7
1
152
,37 2) 3 2 (( ,1*
)
Case 2017CF000478
Document 197
Filed 10-01-2019
Page 24 of 69
UHJDUGLQJ VSHFLILF LQVWDQFHV RI FRQG FW
7KH QH[W PRWLRQ LV WKH PRWLRQ
WKH GHIHQGDQW V
PRWLRQ WR LQWURG FH UHS WDWLRQ HYLGHQFH IRU
UHJDUGLQJ WKH GHFHGHQWV
ILOHG 0D
OLPLQH Q PEHU
WK
E
UHS WDWLRQ IRU YLROHQFH
7KLV ZDV
DQG LW UHODWHV WR WKH GHIHQGDQW V PRWLRQ LQ
UHJDUGLQJ DGPLWWLQJ
E
VSHFLILFDOO
L
HYLGHQFH
DOORZV IRU WKH GHIHQGDQW
WR LQWURG FH D SHUWLQHQW FKDUDFWHU RI WKH YLFWLP
SHUWLQHQW
FKDUDFWHU WUDLW RI WKH YLFWLP
GHFHGHQWV KDG D UHS WDWLRQ IRU YLROHQFH ZR OG FHUWDLQO
SHUWLQHQW WR WKH GHIHQGDQW V FODLP RI VHOI GHIHQVH
DJDLQ
WKH ZLWQHVV NQRZV WKH GHFHGHQWV
WHVWLI
,Q WKLV FDVH ZKHWKHU WKH
EH
6R
SURYLGHG D SURSHU IR QGDWLRQ FDQ EH ODLG WR HVWDEOLVK
UHS WDWLRQV
WR WKDW
:KHWKHU RU QRW WR DOORZ WHVWLPRQ
LQVWDQFHV RI YLROHQW FRQG FW LV JRYHUQHG E
LQ JHQHUDO
WKHP
WKUHH VWHS
RWKHU DFWV DUH QRW DGPLVVLEOH
DV ZH SUHYLR VO
D ZLWQHVV FDQ
L D
GLVF VVHG
UHJDUGLQJ VSHFLILF
QG
:KHWKHU WR DGPLW
LV JRYHUQHG E
WKH
DQDO VLV
7KH GHIHQGDQW DOVR FLWHV WKH
,Q
L
L
V SSRUW RI WKHLU PRWLRQ
ZKHQ WKH LVV H RI VHOI GHIHQVH LV V IILFLHQWO
VKR OG EH DGPLWWHG DV WR ERWK WKH UHS WDWLRQ RI WKH YLFWLP
DQG WKH GHIHQGDQW V SHUVRQDO NQRZOHGJH RI SULRU UHOHYDQW
FRQG FW
153
WKH
FDVH LQ
R UW KHOG WKDW
UDLVHG
SURRI
Case 2017CF000478
Document 197
Filed 10-01-2019
,Q DOORZLQJ WHVWLPRQ
L
Page 25 of 69
UHJDUGLQJ SULRU FRQG FW
FODULILHG WKDW LW ZDVQ W SULPDULO
WR VKRZ WKH
GHFHDVHG V FKDUDFWHU E W WR H[SODLQ WKH GHIHQGDQW V PRWLYH
ZKLFK
VSHFLILFDOO
ZR OG FHUWDLQO
DQDO VLV
DJDLQ
LV RQH RI WKRVH SHUPLVVLEOH S USRVHV
R WOLQHG LQ
6R , WKLQN WKH HYLGHQFH
SDVV WKH ILUVW SURQJ RI WKH
L
L D
VWDWHV WKDW WKHUH V QR V EVWDQWLDO UHDVRQ
IRU WKH H[FO VLRQ RI D SDUWLF ODU YLROHQW DFW RI WKH YLFWLP
QG LW S WV QR T DOLILFDWLRQV RQ WKDW VWDWHPHQW
UHDOO
DQ
DSSHDUV WR FUHDWH SUHWW
L
P FK DQ RSHQ GRRU SROLF
WR
YLROHQW DFW RI WKH YLFWLP
RZHYHU
L
GLG FLWH
D H
QRWHG WKH DGPLVVLELOLW
H[FO VLRQ DQG D SURSHU FDVH IRU UHPRWHQHVV
6R
D H
D H
WKH
G
ZKLFK
RI V FK HYLGHQFH LV V EMHFW WR
,Q
R UW KHOG WKDW
L
HYLGHQFH LV
V EMHFW WR D EDODQFLQJ WHVW ZHLJKLQJ LWV SUREDWLYH YDO H
DJDLQVW WKH GDQJHU RI
WLPH
DV ZLWK DQ
QIDLU SUHM GLFH
QG H GHOD
ZDVWH RI
DQG QHHGOHVV SUHVHQWDWLRQ RI F P ODWLYH HYLGHQFH M VW
RWKHU DFWV HYLGHQFH
, GRQ W NQRZ LI HLWKHU SDUW
D H
HDG
VSHFLILFDOO
FDVH RI
PRWLRQ
LI , M VW IROORZHG D OLQN RQ :HVWODZ IURP WKH
RU WKLV LV RQH WKDW RQH RI WKH SDUWLHV FLWHG
FLWHG WKH
E W ZKLOH , ZDV SUHSDULQJ IRU WKLV
WKDW V RQH RI WKH FDVHV , UHYLHZHG
154
6R , GRQ W NQRZ
L
FDVH
, FDQ W UHFDOO
Case 2017CF000478
Document 197
Filed 10-01-2019
Page 26 of 69
ULJKW QRZ
W LQ WKDW FDVH
L
WKH
R UW QRWHG DGPLVVLRQ RI
HYLGHQFH LV QRW D WRPDWLF
,W V QRW WR EH
VHG WR
V SSRUW DQ LQIHUHQFH DER W D YLFWLP V DFW DO FRQG FW G ULQJ
DQ LQFLGHQW
UHDVRQDEOHQHVV RI WKH GHIHQGDQW V DSSUHKHQVLRQ RI GDQJHU DW
WKH WLPH RI WKH LQFLGHQW
,W LV DGPLWWHG EHFD VH LW
,Q
FODLPHG VHOI GHIHQVH
VR JKW WR LQWURG FH P OWLSOH DFWV WKUR JKR W WKH
WKLV FDVH WKH GHIHQGDQW ZDQWV WR LQWURG FH WKUHH WR IR U
LQVWDQFHV RI /
DWWDFNV DJDLQVW VRPHRQH HOVH EHWZHHQ WKH
RU
D H
HDG
EHDUV RQ WKH
7KH LQFLGHQW KDSSHQHG LQ
DQG ) /
WKUHH VLPLODU DFWV E
SHULRG
RI GULQNLQJ
/
,Q
HDUV RI
DQG
DORQH G ULQJ WKDW VDPH WLPH
OO RI WKRVH DFWV RFF UUHG LQ 0H[LFR G ULQJ D QLJKW
QG WKHQ KH I UWKHU ZDQWV WR LQWURG FH WKDW EHWZHHQ
DQG
JDQJLQJ
WKH GHIHQGDQW GRHVQ W SURYLGH DQ
LQFLGHQWV ZKLFK DOOHJHGO
V
HQJDJLQJ LQ SUHHPSWLYH YLROHQW
DQG VKH
H ZDQWV WR LQWURG FH DQ DGGLWLRQDO WZR WR
D ZLIH ZKR NLOOHG KHU K VEDQG
D H
ERWK /
DQG ) /
ZR OG UHPLQLVFH DER W
S RQ SHRSOH LQ 0H[LFR DV ZHOO DV LQ WKH 8 6
R
DOO WRJHWKHU
DQG WKH
YLHZ
VLQJ D
L
G
DQG
HDG FDVH DV ZHOO
WKH
L D
155
WLPH IUDPH IRU WKH
RFF UUHG LQ WKH 8 6
, WKLQN ZKHQ
V SSRUW WKH LGHD RI
E W
DQG
DQDO VLV WR GHWHUPLQH
Case 2017CF000478
Document 197
DGPLVVLELOLW
S USRVH
DV , VDLG
L D
DQDO VLV
Filed 10-01-2019
Page 27 of 69
7KH GHIHQGDQW V PRWLYH LV DQ DFFHSWDEOH
VR WKDW ZR OG SDVV WKH ILUVW SURQJ RI WKH
7KH VHFRQG SURQJ UHT LUHV WKH
R UW WR GHWHUPLQH LI
WKH HYLGHQFH LV UHOHYDQW
ZKHWKHU WKH HYLGHQFH UHODWHV WR D IDFW RI FRQVHT HQFH DQG
ZKHWKHU WKH RWKHU DFW PDNHV WKH FRQVHT HQWLDO IDFW PRUH RU
OHVV SUREDEOH
QG WR GR WKDW
WKH
QG WKH FDVH ODZ VHWV R W WKDW D ZD
R UW ORRNV DW
WR GR WKDW
D
ZD
WR PHDV UH WKH SUREDWLYH YDO H LV WR ORRN DW WKH
VLPLODULW
DFW DQG WKH F UUHQW LQFLGHQW
DFW DOO
LGHQWLILHG E
WKH GHIHQGDQW
KDQGOH
HP VHSDUDWHO
VR , OO KDQGOH WKH WKLQJV KH REVHUYHG
LQ 0H[LFR EHWZHHQ
RWKHU DFWV WKDW WKH GHFHGHQWV DOOHJHGO
LQ WLPH
SODFH
DQG FLUF PVWDQFH EHWZHHQ WKH RWKHU
DQG
,Q WKLV FDVH WKH RWKHU DFWV
RU
6R WKH RWKHU DFWV DFW DOO
VHSDUDWHO
WKDQ WKH
UHPLQLVFHG DER W
LGHQWLILHG E
WKH
GHIHQGDQW DOO RFF UUHG
KRPLFLGHV
WKH DOOHJHG KRPLFLGHV LQ WKLV FDVH
7KH
LQ 0H[LFR
7KH
V FK DV
URGHRV RU EDUV
1RQH RI WKHP RFF UUHG LQ SULYDWH KRPHV RU WR
IDPLO
WKDW ZDV LGHQWLILHG LQ WKH GHIHQVH PRWLRQ
DQ ZD
SULRU LQFLGHQWV HYHU WKUHDWHQHG DQ RQH ZLWK GHDWK RU DFW DOO
VHG GHDGO
PHPEHUV
RU PRUH
DQG , P JRLQJ WR
HDUV SULRU WR WKH
DOO RFF UUHG LQ S EOLF SODFHV
RFF UUHG
7KHUH V QR DOOHJDWLRQ WKDW WKH GHFHGHQWV LQ WKRVH
IRUFH DJDLQVW DQ RQH
156
Case 2017CF000478
Document 197
Filed 10-01-2019
QG WKHQ W UQLQJ WR WKH DOOHJDWLRQV WKDW WKH
Page 28 of 69
EUDJJHG DER W PRUH UHFHQW DWWDFNV
SURYLGHG DER W WLPH
DQ
UHFHQW DWWDFNV RFF UUHG
WKHUH V QR ZD
DER W QHZ DVVD OWV UHPDLQHG V IILFLHQWO
HDUV DV DOOHJHG E
SODFH
WKHUH DUH QR GHWDLOV
RU FLUF PVWDQFH
1RU LV WKHUH
GHWDLO DER W KRZ RIWHQ RU DW ZKDW LQWHUYDOV WKHVH DOOHJHG
QG ZLWKR W WKDW LQIRUPDWLRQ
IRU PH WR GHWHUPLQH WKH UHSHDWHG DGPLVVLRQV
0U
FRQVWDQW RYHU WKH
2FKRD
7R EH DGPLVVLEOH
RWKHU DFWV HYLGHQFH QHHG EH V FK
WKDW D UHDVRQDEOH M U
FR OG ILQG E
HYLGHQFH WKDW WKH RWKHU DFWV RFF UUHG
DFWV WKDW RFF UUHG VLQFH
UHDVRQDEOH M U
HYHQ FOHDUO
RU
D SUHSRQGHUDQFH RI WKH
5HJDUGLQJ WKH RWKHU
, GRQ W EHOLHYH D
FR OG ILQG WKRVH DFWV RFF UUHG
7KH
UH QRW
LGHQWLILHG
7KLV FDVH LV D YHU
RWKHU DFWV WKDW ZHUH DOORZHG LQ LQ
DFWV ZHUH IDLUO
LQFLGHQW
7KH GHIHQGDQW VR JKW WR LQWURG FH RWKHU DFWV ZKLFK RFF UUHG
EHWZHHQ KHUVHOI DQG WKH GHIHQGDQW
GLIIHUHQW VLW DWLRQ WKDQ WKH
FRQVWDQW LQ WKH
D H
HDG ZKHUH WKH
HDUV OHDGLQJ
S WR WKH
,Q WKDW FDVH WKH YLFWLP V GHDWK RFF UUHG LQ
RU WKH YLFWLP
UDWKHU
LQ
DQG
6KH VR JKW WR LQWURG FH WKH IDFW WKDW KH WKUHDWHQHG
WR NLOO KHU LQ
DQG UHSHDWHG WKDW WKUHDW WKUR JKR W WKH
PDUULDJH
DQG ZDV LQYROYHG LQ D URDG UDJH LQFLGHQW LQ
7KDW KH WKUHDWHQHG D V SHUYLVRU DW ZRUN LQ
157
7KDW KH
Case 2017CF000478
Document 197
Filed 10-01-2019
Page 29 of 69
KDG DOWHUFDWLRQV ZLWK WZR QHLJKERUV LQ WKH
LQ DQ DOWHUFDWLRQ ZLWK D VL[
D QDPH LQ
LGHQWLILHG LQ WHUPV RI WLPH
RU
HDU ROG ER
V DQG DOVR JRW
ZKR KDG FDOOHG KLP
OO RI WKRVH DFWV DUH FOHDUO
SODFH
DQG FLUF PVWDQFH
,Q WKLV FDVH WKH RWKHU DFWV WKDW DUH FOHDUO
RFF UUHG DOPRVW WZR GHFDGHV DJR
D H
L
7KH GHIHQGDQW FLWHG
IRU WKH SURSRVLWLRQ WKDW HYLGHQFH RI RWKHU DFWV
WKDW RFF UUHG
L
DOVR LQYROYHG ILUVW GHJUHH VH[ DO DVVD OW RI D FKLOG
GHILQHG
HDUV DJR LV VWLOO DGPLVVLEOH
LV DOVR D YHU
RZHYHU
GLIIHUHQW FDVH IURP WKLV RQH
VR WKH JUHDWHU ODWLW GH DSSOLHV
QG VHFRQG
7KDW FDVH
QGHU
WKH RWKHU
DFWV WKDW ZHUH DGPLWWHG DOVR LQYROYHG WKH VH[ DO DVVD OW RI
FKLOGUHQ
7KHUH DUH RIWHQ ODUJH ODSVHV LQ WLPH EHWZHHQ NQRZQ
VH[ DO DVVD OWV RI FKLOGUHQ
SUHGDWRUV LQ V FK D ZD
DVVD OWV
KLOGUHQ DUH RIWHQ JURRPHG E
WKDW WKH
UHPDLQ VLOHQW DER W WKRVH
6R WKRVH IDFWRUV GRQ W DSSO
,Q DGGLWLRQ
KHUH
DV , WKLQN , DOUHDG
RWKHU DFWV RFF UUHG LQ DQRWKHU FR QWU
7KH
FLUF PVWDQFHV
DJR DUH RI T HVWLRQDEOH SUREDWLYH YDO H
WKH
GDQJHU
GLGQ W LQYROYH IDPLO
UHDVRQDEO
QG VR
ZHQW RYHU
WKRVH
LQ S EOLF SODFHV
QGHU DOO WKRVH
, WKLQN WKRVH DFWV WKDW RFF UUHG
SO V
, GRQ W EHOLHYH
EHDU RQ WKH GHIHQGDQW V DSSUHKHQVLRQ RI
6R HYHQ LI WKH
UH DUJ DEO
158
HDUV
UHOHYDQW
, WKLQN
Case 2017CF000478
Document 197
Filed 10-01-2019
Page 30 of 69
DGPLWWLQJ WKHP ZR OG EH PRUH SUHM GLFLDO WKDQ SUREDWLYH
GRQ W WKLQN WKH
DQDO VLV RU
YLROHQFH PD
DSSUHKHQVLRQ RI GDQJHU DQG WKRVH DUH DGPLVVLEOH
DFWV KH VHHNV WR DGPLW DUH QRW
7 ( ,17( 3 (7(
SDVV WKH WKLUG SURQJ RI WKH
UHS WDWLRQV IRU
LPSDFWHG WKH GHIHQGDQW V
R U
RQRU
WKH VSHFLILF
FR OG , KDYH D
ILYH PLQ WH EUHDN SOHDVH"
7 (
7 ( ,17( 3 (7(
28 7
6 UH
:H OO WDNH D EUHDN
7KDQN
R
ULHI SD VH LQ SURFHHGLQJV
L D
6R DOWKR JK WKH YLFWLPV
KDYH UHDVRQDEO
7 (
)
0V
28 7
HUQDQGH]
:H UH EDFN RQ WKH UHFRUG LQ
R
UH VWLOO
QGHU RDWK
:H PD
D PRWLRQ GDWHG
PRWLRQ ZDV ILOHG ZKHQ WKH WULDO ZDV VWLOO VHW IRU 0D
WKUR JK
QRWLFH RI LQWHQW ZDV ILOHG
LV LQ 2FWREHU
D QRQLVV H
,
WK
KDYH FRYHUHG WKLV DOUHDG
SULO
WK WR H[FO GH '1
,W V QRW DQ LVV H DQ
SULO
VR PRUH WKDQ
7KH GHIHQVH ILOHG
HYLGHQFH
7KDW
WK
ORQJHU EHFD VH WKH
QG
DQG WKH QHZ WULDO GDWH
GD V ODWHU
7KH QH[W PRWLRQ ZDV ILOHG
SULO
6R , WKLQN WKDW V
WK
1RWLFH RI
0RWLRQ DQG 0RWLRQ IRU 3URVHF WLRQ WR 7UDQVFULEH
(OHFWURQLF 5HFRUGLQJV
VSHFLILFDOO
IRU DQ RUGHU WR UHT LUH WKH 6WDWH WR WUDQVFULEH E
GLR RI
, GRQ W WKLQN WKH 6WDWH HYHU
UHVSRQGHG WR WKDW
159
W
WWRUQH
0HKORV PRYHG
VH RI D
Case 2017CF000478
Document 197
Filed 10-01-2019
Page 33 of 69
, WKLQN D PLVWULDO DW WKLV VWDJH ZKHQ WKH FDVH LV DOUHDG
RYHU WZR
WKH 6WDWH
, DOVR WKLQN LW ZR OG EH DQ DGGHG H[SHQVH WR WKH
WD[SD HUV
6R , P M VW JRLQJ WR GHQ
HDUV ROG DQG PHPRULHV DUH IDGLQJ ZR OG SUHM GLFH
WKDW PRWLRQ
7KH QH[W VHULHV RI PRWLRQV DOO UHODWH WR H[SHUW
WHVWLPRQ
WKDW V EHLQJ SURIIHUHG E
Q PEHU RI HYLGHQWLDU
GHFLGHG WKDW D WULDO M GJH LV WR GHWHUPLQH ZKHWKHU DQ H[SHUW
LV SURSRVLQJ WR WHVWLI
DVVLVW WKH WULHU RI IDFW WR
LVV H
WHVWLPRQ
RU PHWKRGRORJ
D
H
WKH GHIHQVH
KHDULQJV
,Q
H
WKH
R UW
WR VFLHQWLILF NQRZOHGJH WKDW ZLOO
QGHUVWDQG RU GHWHUPLQH D IDFW RI
ZKHWKHU WKH UHDVRQLQJ RU PHWKRGRORJ
LV VFLHQWLILFDOO
D
:H KDG D
YDOLG
QGHUO LQJ WKH
DQG ZKHWKHU WKH UHDVRQLQJ
FDQ EH DSSOLHG WR WKH IDFWV LQ LVV H
,Q WKDW
D
H
FDVH
WKH
R UW V SSOLHG D
QRQH[KD VWLYH OLVW RI IDFWRUV IRU WKH WULDO FR UW WR FRQVLGHU
ZKHQ DFWLQJ DV D JDWHNHHSHU
)HGHUDO
GYLVRU
FRQVLGHU
W
WULDO M GJH P VW GHWHUPLQH ZKHWKHU WKH WHVWLPRQ
EDVHG RQ WKH NQRZOHGJH DQG H[SHULHQFH RI WKH H[SHUW EHLQJ
SURIIHUHG
DQG LW P VW EH VDWLVILHG WKDW WKH WHVWLPRQ
UHOLDEOH E
D SUHSRQGHUDQFH RI WKH HYLGHQFH
RI FR UVH
WKH HYLGHQFH DOVR KDV WR EH UHOHYDQW
7KH 5 OHV RI (YLGHQFH DQG WKH
RPPLWWHH DOO DGGHG DGGLWLRQDO IDFWRUV WR
OWLPDWHO
WKH FDVH ODZ HVWDEOLVKHV WKDW WKH
6R WKH WZR SULPDU
ZKHQ GHFLGLQJ ZKHWKHU
D
H
IDFWRUV WKDW WKH
QG D
LV
R UW
R UW ORRNV DW
HYLGHQFH VKR OG FRPH LQ LV
160
LV UHOLDEOH
Case 2017CF000478
Document 197
Filed 10-01-2019
UHOLDELOLW
WKH WHVWLPRQ
DER W WKH ORFDWLRQ RI SHRSOH ZLWKLQ WKH FULPH VFHQH DW WKH
WLPH RI WKH VKRRWLQJ
DQG WUDMHFWRU
DQG UHOHYDQFH
Page 34 of 69
RI 0DUW
7KH GHIHQVH KDV PRYHG WR DGPLW
D HV
H LV EHLQJ RIIHUHG WR WHVWLI
DER W E OOHW KROH HQWU
DQG H[LW ZR QGV
LQ WKH ERGLHV RI WKH GHFHGHQWV
QG ZKLOH KH ZDV WHVWLI LQJ
, KDG VRPH UHDO
FRQFHUQV DER W WKH EDVLV RI KLV RSLQLRQV
QG , WKLQN WKH
6WDWH GLG D JRRG MRE RI V PPDUL]LQJ WKRVH LQ WKHLU UHSO
EULHI
ODZ HQIRUFHPHQW
DQDO VLV RI FULPH VFHQHV WR WKH GHJUHH KH V EHLQJ FDOOHG
ZR OG EH FDOOHG WR WHVWLI
H GRHV KDYH VRPH H[SHULHQFH DV D IRUPHU PHPEHU RI
E W WKDW V YHU
GDWHG
,W GLGQ W LQYROYH
LQ WKLV FDVH
H GRHVQ W KDYH D IRUPDO HG FDWLRQ DER W FULPH VFHQH
UHFRQVWU FWLRQ
IRUHQVLF SDWKRORJ
RU WKH PRYHPHQW RI
E OOHWV LQ WKH K PDQ ERG
VHPLQDUV
RI KLV FRQFO VLRQV RQ KLV RZQ H[SHULPHQWV ILULQJ ZHDSRQV DQG
VLQJ PDQQHT LQV DQG URGV WR WUDFH WKH WUDMHFWRU
E OOHWV
H[FHSW KH GLG DWWHQG D IHZ
DQG KH V UHDG ERRNV DQG DUWLFOHV
H EDVHV D ORW
RI WKH
QG WKDW ODWWHU EDVLV LV SDUWLF ODUO
PH EHFD VH PDQQHT LQV GRQ W KDYH ERQH WKDW FDQ FKDQJH WKH
WUDMHFWRU
WKH
VWDWLRQDU
FRPSDULQJ KRZ D E OOHW WUDYHOV WKUR JK D PDQQHT LQ YHUV V D
RI E OOHWV
UH EHLQJ VKRW
WUR EOLQJ WR
OVR SHRSOH V ERGLHV PD
QOLNH D PDQQHT LQ V
7KHUH V OLWWOH YDO H
161
LQ P
EH PRYLQJ DV
ZKLFK LV
RSLQLRQ
LQ
Case 2017CF000478
Document 197
K PDQ ERG
EHFD VH WKH PDNH S RI WKH WZR DUH YDVWO
GLIIHUHQW
,W V FRPSDULQJ DSSOHV WR RUDQJHV
Filed 10-01-2019
QG DOWKR JK 0U
D HV DFNQRZOHGJHG WKDW
FOHDU WR PH IURP KLV WHVWLPRQ
GLIIHUHQFH LQ IRUPLQJ KLV RSLQLRQV
WKDW KLV PHWKRGRORJ
WR D K PDQ ERG
WHVWLPRQ
NHHS LW R W
RI
Page 35 of 69
KRZ KH DFFR QWHG IRU WKDW
QG , M VW GRQ W EHOLHYH
VLQJ D PDQQHT LQ DQG URGV DV RSSRVHG
DQG URGV LV UHOLDEOH
6R , GRQ W WKLQN KLV
LV SHUPLVVLEOH IRU WKDW UHDVRQ
5HJDUGLQJ 'U
LW ZDVQ W
7URPSHWWHU
DQG , P JRLQJ WR
KH V D ERDUG FHUWLILHG DQG
OLFHQVHG SV FKRORJLVW VSHFLDOL]LQJ LQ SROLFH DQG IRUHQVLF
SV FKRORJ
T DOLILFDWLRQV DV DQ H[SHUW
UHOHYDQF
ZLWK ODZ HQIRUFHPHQW IRU PDQ
WUHDWPHQW WR RIILFHUV LQYROYHG LQ VKRRWLQJV VLQFH
ZHOO RYHU
IHZ FDVHV LQFO GLQJ WZR FDVHV ZKHUH FLYLOLDQV ZHUH LQYROYHG
LQ VKRRWLQJV UDWKHU WKDQ RIILFHUV OLNH ZH KDYH KHUH
7KH 6WDWH GRHVQ W DSSHDU WR FRQWHVW KLV
JUR QGV
HDUV
'U
E W , WKLQN WKHLU REMHFWLRQ LV
7URPSHWWHU WHVWLILHG WKDW KH V ZRUNHG
HDUV LQFO GLQJ SURYLGLQJ
VR
H V WHVWLILHG DV DQ H[SHUW LQ T LWH D
H V EHLQJ RIIHUHG WR WHVWLI
DER W KRZ DUPHG
LQGLYLG DOV ZKR NLOO RWKHUV LQ VHOI GHIHQVH DFW DQG WKLQN
LQFO GLQJ SRVVLEOH GLVWRUWLRQV RI SHUFHSWLRQ DQG PHPRU
ZHOO DV HPRWLRQDO DQG SK VLFDO UHVSRQVHV
WHVWLPRQ
HQIRUFHPHQW DQG FLWL]HQV DQG ZKHWKHU KLV H[SHULHQFH SULPDULO
P
DV
' ULQJ KLV
FRQFHUQ ZDV WKH GLIIHUHQFH EHWZHHQ ODZ
162
Case 2017CF000478
Document 197
LQ
WHVWLPRQ
RQUDG
Filed 10-01-2019
YDUD LV EHLQJ RIIHUHG E
H[SODLQ WKH G QDPLFV RI GHDGO
DVVHVVPHQW
WHVWLPRQ
ZKRVH WHVWLPRQ
VWDWHG RQ WKH UHFRUG
Page 38 of 69
GDQJHU ]RQHV
WKH GHIHQVH WR
IRUFH GHFLVLRQV
DQG GLVSDULW
WKUHDW
RI IRUFH
7KH
V EDVHG LQ SDUW RQ LQIRUPDWLRQ IURP 0U
D HV
, P H[FO GLQJ IRU WKH UHDVRQV , YH DOUHDG
7KH GHIHQVH GLG SRLQW R W LQ WKHLU UHSO
PDQ
RI KLV RSLQLRQV GR QRW LQYROYH LQS W IURP 0U
W EH RQG WKDW UHOLDELOLW
LVV H
EULHI WKDW
D HV
, DJUHH ZLWK WKH 6WDWH
WKDW 0U
GHIHQGDQW DQG ZKHWKHU KH ZDV UHDVRQDEOH LQ KLV WKR JKWV DQG
DFWLRQV
DQG DFWLRQV
VLW DWLRQV M VW LVQ W UHOHYDQW
WHVWLPRQ
YDUD V REVHUYDWLRQV DUHQ W UHOHYDQW WR WKRVH RI WKH
7KH M U
QHHGV WR FRQVLGHU WKH GHIHQGDQW V WKR JKWV
6R WHVWLPRQ
DER W W SLFDO
6R , P JRLQJ WR H[FO GH KLV
RQ WKRVH JUR QGV
5HJDUGLQJ 0U
OIRQVR 9LOODVHxRU
WR WHVWLI
6WDWH LVQ W FRQFHGLQJ
, P VRUU
NQRZOHGJH RU H[SHULHQFH
7KH
REMHFW RQ UHOHYDQFH JUR QGV
VH RI IRUFH
DER W 6SDQLVK
KH V EHLQJ RIIHUHG
0H[LFDQ 6SDQLVK VODQJ
QG WKH
LVQ W FKDOOHQJLQJ KLV
FRQFHGH WKDW
W WKH
GR
QG , DJUHH ZLWK WKH 6WDWH
7KHUH V QR QHHG IRU DQ H[SHUW WR WHVWLI
PHDQLQJV RI ZRUGV RU SKUDVHV EHFD VH WKH RQO
PHDQLQJ PDWWHUHG WR ZDV 0U
VWDWHPHQWV
DER W
SHUVRQ WKH
2FKRD ZDV WKH KHDUHU RI WKRVH
6R LW V DOVR H[FO GHG RQ UHOHYDQFH JUR QGV
163
Case 2017CF000478
Document 197
Filed 10-01-2019
, NQRZ WKH GHIHQVH DUJ HG WKDW LW ZR OG KHOS
HVWDEOLVK 0U
ZLWQHVV UHHQIRUFHG 0U
ZHUH
LW ZR OG UHT LUH WKH M U
WKH ZRUGV DFF UDWHO
0U
2FKRD RQH ZD
KLP
WKHQ WKH
GRQ W WKLQN LW V UHOHYDQW
DQG LW V QRW QHFHVVDU
2FKRD V FUHGLELOLW
VHG
WR EHOLHYH 0U
6R WKH
WKDW LQGLYLG DO"
R QW
PLGVW RU SUH
R UW DOUHDG
D
EHOLHYH
6R , M VW
KDQGOHG WKH UHT HVW UHJDUGLQJ
H V WKH PHGLFDO OHJDO LQYHVWLJDWRU LQ
8 0 1 .,
0
RRN
UHFROOHFWLRQ LV WKDW
PDGH VRPH ILQGLQJV DQG U OLQJV HYHQ LQ WKH
H
7 (
28 7
, GRQ W WKLQN WKHUH DUH DQ
WWRUQH
HDK
, EHOLHYH WKDW V FRUUHFW
R WVWDQGLQJ LVV HV ZLWK WKDW
0HKORV"
772 1(
7 (
QG LI WKH
,V WKHUH DQ WKLQJ R WVWDQGLQJ UHJDUGLQJ
772 1(
WKH
2FKRD ZDV UHFLWLQJ
, WKLQN LW ZR OG EH F P ODWLYH
, WKLQN ZH DOUHDG
WU H EHFD VH
UH JRLQJ WR QHHG WR EHOLHYH
RU WKH RWKHU DQ ZD
ULJKW"
LI WKLV
2FKRD V SHUFHSWLRQV RI WKH ZRUGV WKDW
OO EHOLHYH KLV WDNH RQ WKRVH ZRUGV
LOO :LOVRQ
LI LW UHHQIRUFHG
W , GRQ W WKLQN WKDW V QHFHVVDULO
Page 39 of 69
0(
28 7
2
1R
- U
LQVWU FWLRQV , OO FRPH EDFN
WR
7KH GHIHQGDQW V PRWLRQ IRU DQ HYLGHQWLDU
7KH GHIHQVH LV VHHNLQJ DQ HYLGHQWLDU
164
KHDULQJ
KHDULQJ WR GHWHUPLQH
Appendix 7
165
Case 2017CF000478
Document 198
Filed 10-01-2019
Page 1 of 17
FILED
10-01-2019
Sheboygan County
Clerk of Circuit Court
2017CF000478
67 7( 2) :,6 216,1
6 ( 2
,5 8,7
1
2817
2857
6WDWH RI :LVFR VL
3ODL WLII
2
8 ,1*
Y
HUJLR 0RL H
2FKRD
DVH 1R
'HIH GD W
R UW 2IILFLDO
R RUDEOH 5HEHFFD 3HUVLFN
'DWH RI 3URFHHGL J
HS HPEHU
33( 5 1 (6
7 H 3ODL WLII DSSHDUV E
'LVWULFW
WWRU H
-RHO 8UPD VNL
7 H 'HIH GD W DSSHDUV L
WWRU H
RUH
( ), (
SHUVR
ZLW
0H ORV
7
1
166
, 7 2)
2 (( ,1*
)
Case 2017CF000478
Document 198
, FHUWDL O
Filed 10-01-2019
Page 4 of 17
W H
FURVV H DPL DWLR
WR ODZ H IRUFHPH W UHODWHG WR W LV FDVH
W L N V H ZR OG EH V EMHFW WR
L FO GL J R
D
L IRUPDWLR
V H SURYLGHG
5HJDUGL J W H GHIH GD W V OHWWHU UHJDUGL J
0U
R UDG
W DW LVV H
YDUD
DJDL
,
D G VR , DP
WWRU H
W H GHIH GD W V OHWWHU
UHVSR G"
RW
DG WLPH WR I OO
GLG
R
DYH D F D FH WR UHYLHZ
D G GLG
R
ZD W D
772 1(
8 0 1 .,
, UHDG LW W LV PRU L J
LW
WR
HVWHUGD
G , G EH
WR
DV ZHOO
SURYLGH W H
IRU W LV ZHHN ZLOO EH VHWWOL J WRPRUURZ
Z H HYHU W H
R UW VRPH EULHI L VLJ WV
DSS
,W DSSHDUV P
VR , FD
WULDO
GR VR
R UW ZR OG OLNH PH WR
7 (
,I
28 7
FR WHPSODWL J
IL H
,I
R
RZ LI
R
UH SUHSDUHG
R
, P
RW V UH Z DW
ZD W WR UHVSR G L
ZD W WR UHVSR G RUDOO
772 1(
8 0 1 .,
FDVHV DOUHDG
W LV PRU L J
VRPHW L J L
ZULWL J IRU W H
RSSRUW
, UHFHLYHG LW
UHYLHZ
RW SUHSDUHG WR UHVSR G WR LW
8UPD VNL
DYH
7 (
WWRU H
DGPLVVLELOLW
WUD VODWL J D 6SD LV
P
28 7
R
UH
ZULWL J W DW V
FD
GR W DW ULJ W
: LOH , YH UHYLHZHG D IHZ
SUHIHUH FH ZR OG EH WR SODFH
R UW
5HJDUGL J W H VHFR G LVV H L
0H ORV V OHWWHU UHT HVWL J W H
RI 0U
R
R UW WR U OH R
W H
9LOODVHxRU V W LUG H SHUW RSL LR
S UDVH
, GR
167
W N RZ
, GLG
W
DYH
Case 2017CF000478
Document 198
Filed 10-01-2019
Page 5 of 17
LW FRPPLWWHG WR PHPRU
D G , GLG
W
FRPSOHWH ILOH
HVWHUGD
VR , GR
W N RZ Z DW W H W LUG
H SHUW RSL LR
LV
W DW
S
2W HUZLVH LI
ULJ W
RZ
ZH PD
R
772 1(
S UDVH L
6SD LV
GHDW
P
ZLW
, FD
FHUWDL O
R
7 (
ORRN
UH ZLOOL J WR WHOO PH Z DW W DW LV
0(
2
HV
R U
W DW LV L WHUSUHWHG L
EURV
0H ORV
EH DEOH WR GLVSRVH RI LW ULJ W
WWRU H
DYH DFFHVV WR W H
I FNHUV
28 7
RZ
R RU
( JOLV
,W LV D
DV WR W H
SOH UDO
6R IRU Z DW S USRVH DUH
R
VHHNL J WR DGPLW W DW"
772 1(
0(
2
W EHOLHYH ZH
:H DUH VHHNL J WR DGPLW
LW
D G , GR
PDS
E W W DW ZDV D VWDWHPH W PDGH E
DWWDFNHUV DW D GLIIHUH W SRL W L
WUD VODWLR
UHODWLR V LS ZLW
EHL J GR H
DYH WR JLYH W H 6WDWH D URDG
R H RI W H WZR
WLPH W DW ZH DUH
,W ZDV PDGH L
VL J
UHIHUH FH WR
W H RW HU FR DWWDFNHU L
LV
D S EOLF IRU P
G ZH DUH
DUH DVVHUWL J V RZV D UHS WDWLR
IRU YLROH FH D G W DW W HVH
WZR ZR OG
DYH DFWHG L
GDWH RI W H L FLGH W D G SDUWLF ODUO
Z
IULH G V L WHUHVW G UL J D
DWWDFN
DFFRUGL J WR 6HUJLR
)HU D GR
DUD
VL J LW WR FRUURERUDWH HYLGH FH W DW ZH
RSH
7 (
EH UHOHYD W RU D
ZR OG
28 7
WR H SODL
DYH DJJUHVVLYHO
W H
WR W H M U
DGYD FHG
LV
DUJ PH W W DW W U HG L WR D
, VWLOO GR
W L J RW HU W D
168
FR FHUW R
W VHH
RZ W DW ZR OG
DGGLWLR DO WHVWLPR
WR
Case 2017CF000478
Document 198
Filed 10-01-2019
Z DW W H GHIH GD W FR OG JLYH
WHVWLPR
Page 6 of 17
LPVHOI
)RU 0U
W H
UH JRL J WR
DYH WR
EHOLHYH 0U
2F RD DER W Z DW W H GHFHGH WV VDLG WR
LP D G
Z DW W H
VDLG SUHYLR VO
,I W H
WHVWLPR
IURP W H GHIH GD W
LV
W JRL J WR PDNH D GLIIHUH FH R H ZD
W H
GR EHOLHYH W DW WHVWLPR
EHOLHYH W H
L WHUSUHWHG W DW WHVWLPR
772 1(
7 (
772 1(
WR PDWWHU WR W H M U
6
GR
W EHOLHYH W DW
0U
9LOODVHxRU V WHVWLPR
W H
RU D RW HU
W HUH V
RW DOVR EHOLHYH
G LI
R UHDVR
WR
RZ W H GHIH GD W
RU W DW VWDWHPH W
0(
28 7
0D
, UHVSR G"
6 UH
0(
FLWHG DV
2
2
G
D
VSHOOHG
'
LPSRUWD W WR FRUURERUDWH D GHIH GD W V VWDWHPH W L
VHOI GHIH VH FDVH HYH
GHIH GD W EHFD VH W H M U
GHIH GD W V VWDWHPH W LV SRWH WLDOO
W HUHIRUH LW LV FULWLFDO W DW W H DFF VHG EH DOORZHG WR
REMHFWLYHO
H SODL HG W DW LW LV
RI W H RW HU SDUWLHV EHFD VH RW HUZLVH W H M U
WR DVV PH W DW W HUH LV
GHIH GD W V VHOI VHUYL J VWDWHPH W
LI W H M U
FRUURERUDWH
G R
:LV
WDW
1 , (
ZR OG
W H
9LOODVHxRU V
ZLOO
LV DFFR
LV L FOL HG WR EHOLHYH W H
GHUVWD G W DW W H
VHOI VHUYL J
DW UH
ZLOO EH OHIW
R L GHSH GH W V SSRUW IRU W H
SDJH
D G
W H T RWH VD V
H PD
EH O L J
DV UHDG
FRUURERUDWL J W H GHIH GD W V VHOI VHUYL J WHVWLPR
R O
W H FDVH
G
W RI W H DJJUHVVLYH
LVV H L
D
(YLGH FH
R
W H
W H GHIH GD W V VWDWH RI PL G
ZR OG
169
Case 2017CF000478
Document 198
EH
SHUV DVLYH WR W H IDFW IL GHU
W H 6WDWH GRHV
RW FR WHVW W H GHIH GD W V WHVWLPR
W H YLFWLP GRHV
RW REYLDWH W H GHIH GD W V
LV RZ
ZLW
HVSHFLDOO
LJ O
WHVWLPR
Filed 10-01-2019
WHVWLPR
W DW RI W H YLFWLP
V 0F OOLVWHU
Page 7 of 17
7 H PHUH IDFW W DW
HHG WR EROVWHU
RI RW HU ZLW HVVHV
LPVHOI
0
, 6 7 ( 5
W H GHIH GD W V R OG
DVVHUWLR
HYLGH FH WR SURYH W H UHDOLW
H FODLPV N RZOHGJH
DER W
RW EH OLPLWHG PHUHO
PDNHV FOHDU
WR
LV RZ
E W V R OG EH DOORZHG WR SURG FH V SSRUWL J
G W HUHIRUH L
LPVHOI
)HU D GR
RI W H SDUWLF ODU DFWV RI Z LF
W LV FDVH
EHFD VH W H DOOHJHG
DUD
PDGH W H VWDWHPH W
YLFWLP
LV FRUURERUDWL J HYLGH FH W DW DOORZV 6HUJLR WR V RZ W DW
ZDV
UHDOLW
RI Z DW
DGYD FH
LV FR DWWDFNHU V L WHUHVW ZDV DFW DOO
)HU D GR
DG S EOLFO
SURWHFW
LV IULH G
W O L J EDVHG R
RSH
LW
H
D VHOI VHUYL J L WHUHVW E W UDW HU W H
H SHUFHLYHG RI )HU D GR V DJJUHVVLR
EURDGFDVW DV
WR
VRPHW L J
LV PRWLYH RU L WH WLR
W R U DUJ PH W LV W DW
GHU
D E
H SHUW V R OG EH DOORZHG EHFD VH
VWDWHPH W LI W H IR
GDWLR
LV HVWDEOLV HG
7 (
28 7
:HOO
WR
W W DW W H
H V T DOLILHG WR PDNH W H
OHVV 0U
9LOODVHxRU LV
W H R H Z R
HDUG R H RI W H GHFHGH WV PDNL J W H VWDWHPH W
L
W H
LV WHVWLPR
SHUV DGHG E
D
R
W H SDVW
W L J
LV M VW F P ODWLYH
YH VDLG
170
, P
RW
Case 2017CF000478
Document 198
, YH
Filed 10-01-2019
Page 8 of 17
DG D F D FH WR UHYLHZ W H
D
FDVH
T LFNO
7 H LVV H LV Z HW HU W H FLUF LW FR UW DE VHG LWV
GLVFUHWLR
Z H
HYLGH FH RW HU W D
LV RZ
YLROH W DFWV RI Z LF
W H GHIH GD W ZDV DZDUH
OLNH W LV LV D
RW HU DFWV HYLGH FH W DW , YH DOUHDG
LW U OHG W H GHIH GD W FR OG
H G DUR
6R , GR
WHVWLPR
G WR WU
RW SUHVH W
RI W H YLFWLP V SULRU
6R LW VR
D G JHW DUR
G P
GV
U OL J R
PDGH
W N RZ LI W H GHIH GD W RU D RW HU ZLW HVV
LV SOD
L J WR WHVWLI
SDUWLF ODU RU VDLG W LV SDUWLF ODU H SUHVVLR
DW D RW HU
WLPH
G LW UHDOO
HDUG LW FD
WHVWLI
DER W Z DW W H
WUD VODWRU L WHUSUHWV LW LV LUUHOHYD W
JRL J WR DOORZ W H WHVWLPR
W DW R H RI W H GHFHGH WV PDGH W LV
GRHV
W PDWWHU
EHOLHYHG W H PHD L J ZDV
7 H W LUG LVV H
RI 0U
WWRU H
ZDV W H DGPLVVLELOLW
RSL LR V R
W H
3UL FLSOHV D G '
( FR
D G
8VL J 3
RFDWLR
ZDV
ILUVW D G VHFR G H SHUW RSL LR V
WHUV
RI 0U
D HV
E W , GLG
W , GR EHOLHYH
W RVH LVV HV DV ZHOO
RI IRUPDO WUDL L J
DYH
, P
0H ORV UDLVHG L
RW
LV OHWWHU
ILUVW D G VHFR G H SHUW
DPLFV RI 9LROH W
RI 0U
LV WHVWLPR
, VLPSO
Z LF
JLYH
LV
D HV IL GL J LW
DSSO
W DW WR W H
UHOLDEOH R
LV ODFN RI D
DW UH RI W H WUDL L J
, W L N , DOUHDG
171
DJDL
9LOODVHxRU
W VSHFLILFDOO
W H GDWHG
D G RW HU LVV HV
6R
RZ D
VLFDO (YLGH FH WR , IHU 6 RRWHU
, H FO GHG W H WHVWLPR
RW UHOLDEOH
: RHYHU
VRUW
H GRHV
LGH WLILHG
Case 2017CF000478
Document 198
Z H
UHOLDEOH
JDWHNHHSL J WHVW
Filed 10-01-2019
, U OHG RULJL DOO
D G , GR
, GR
L
OHIW RII
OLPL H VWDUWL J ZLW
, EHOLHYH
RW W L N
PEHU
7 DW V Z HUH ZH
RU
8UPD VNL"
8 0 1 .,
S W DW GRF PH W DJDL
W H GDWH
SR
, EHOLHYH
VRPH V SSOHPH WV ILOHG
L
0RWLR
, P M VW RSH L J
, N RZ ODVW WLPH W H
LW ZDV
R UW SURYLGHG
VL J W RVH PRWLR V
7 HUH ZHUH
28 7
SULO
W
ODEHOHG 'HIH GD W V 1RWLFH RI
D G )LUVW 0RWLR
L
LPL H
OLPL H ILOHG
772 1(
DGGUHVV
, P M VW ORRNL J DW W H PRWLR V
8 0 1 .,
- GJH
GLG
R
ZD W WR
"
- GJH
7 (
W
GHIH GD W V PRWLR V
D E
LV
HHG WR IL LV
WWRU H
772 1(
Z LF
LV WHVWLPR
RW EHOLHYH LW SDVVHV D
, W L N ZH VWLOO
Page 9 of 17
7 (
28 7
, EHOLHYH W DW V Z HUH ZH OHIW
RII
772 1(
8 0 1 .,
WR
HDU EDFN IURP D ZLW HVV L
HDUG EDFN E W V R OG W LV ZHHN
L WH G D
UHSRUWV JLYH
0DGLVR
RW HU H SHUWV W D
V , V DUHG
0DGLVR
DYH
W
W W LV SRL W , GR
RW
W RVH W DW
WR W H GHIH VH RW HU W D
7 (
28 7
772 1(
0RYL J R
8 0 1 .,
172
, VWLOO
, P ZDLWL J
,
DYH EHH
DPHG D G
W LV SHUVR
IURP
WR
PEHU
"
DYH
R REMHFWLR
WR
Appendix 8
173
Case 2017CF000478
Document 199
Filed 10-01-2019
Page 1 of 25
FILED
10-01-2019
Sheboygan County
Clerk of Circuit Court
2017CF000478
67 7( 2) :,6 216,1
6 ( 2
,5 8,7
1
2817
2857
6WDWH RI :LVFR VL
3ODL WLII
2
8 ,1*
Y
HUJLR 0RL H
2FKRD
DVH 1R
'HIH GD W
R UW 2IILFLDO
R RUDEOH 5HEHFFD 3HUVLFN
'DWH RI 3URFHHGL J
HSWHPEHU
33( 5 1 (6
7 H 3ODL WLII DSSHDUV E
'LVWULFW
WWRU H
-RHO 8UPD VNL
7 H 'HIH GD W DSSHDUV L
WWRU H
RUH
( ), (
SHUVR
ZLW
0H ORV
7
1
174
, 7 2)
2 (( ,1*
)
Case 2017CF000478
Document 199
Filed 10-01-2019
7 (
28 7
Page 2 of 25
7 LV LV
6HUJLR 2F RD
7 H 6WDWH DSSHDUV E
8UPD VNL
0U
2F RD LV
0H ORV
:H UH
HUH R
,
FR UW VL FH
SURFHHG
WWRU H
D FR WL
DWLR
RI D PRWLR
HDUL J
,W V
WWRU H
0H ORV
R
ZHUH L
W LV PRU L J
6R DUH
R
SUHSDUHG WR
R
HHG D IHZ PL
772 1(
0(
2
PDNL J U OL JV WRGD
7 (
772 1(
7 (
28 7
2ND
,17(
(7(
:
L WHUSUHWHUV
7 (
WHV"
, EHOLHYH W H
28 7
R UW V M VW
0(
V IDU DV , N RZ
2
28 7
HV
R U
HV
7 H
(: .,
, G EH SUHSDUHG
'R W H
R RU"
7 D N
R
, WHUSUHWHUV VZRU
28 7
( .
6WDWH
,17(
(7(
( 1 1 (
,17(
(7(
:
ZDV]F]HZVNL
R U
DPH IRU W H UHFRUG
0DUW D
(: .,
HU D GH]
6DUD
FHUWLILHG L WHUSUHWHU
7 (
28 7
)LUVW UHJDUGL J W H GHIH GD W V
UHT HVW W DW , UHFR VLGHU DOORZL J WHVWLPR
R UDG
D RW HU
FRUUHFW"
HHG WR EH VZRU
WWRU H
DOR J ZLW
'LVWULFW
SHUVR
GHUVWD G
RU GR
6WDWH YHUV V
HUH L
G LW ZDV VHW WR VWDUW DW
)
IURP
D HV"
772 1(
0(
2
175
YDUD
R U
R RU
LV LW
Case 2017CF000478
Document 199
Filed 10-01-2019
7 (
28 7
772 1(
Page 3 of 25
0U
D HV
2
, EHOLHYH ZH GLG
0(
0DUW
PRWLR
WR UHFR VLGHU 0U
D HV
U OH R
W H EDVLV IRU 0U
YDUD V WHVWLPR
7 (
28 7
D HV"
E W ZH DVNHG W H
W ILOH D
R UW WR
/HW PH JHW W H OHWWHU R W EHFD VH
, W L N DW W H H G RI W H OHWWHU
UHFR VLGHU DOORZL J 0U
WZR LVV HV
3UL FLSOHV D G '
D G
VLFDO (YLGH FH WR , IHU 6 RRWHU /RFDWLR
8VL J 3
0(
R
W DW ODVW WLPH
LI , P
DP
RW UHPHPEHUL J FRUUHFWO
7 (
DV ZHOO JR RYHU LW DJDL
UHFRUG
DVVLVW W H UHFRUG
UHJDUGL J W H ILUVW
DPLFV RI 9LROH W ( FR
2
, EHOLHYH W H
RW PLVWDNH
28 7
, P
DOVR DVNHG W DW ,
D HV WR WHVWLI
772 1(
R
VR , DSRORJL]H LI ,
E W , M VW
RW V UH , PDGH W H EHVW
RW V UH JRL J RYHU LW DJDL
ZLOO DFW DOO
E W , P JRL J WR WU
G , ZD W WR FR WUDVW 0U
D HV
DJDL VW W RVH RI RW HU H[SHUWV RIIHUHG E
H[DPSOH
HG FDWLR
UHVHDUF
L YROYHG L
V UYLYRUV
T DOLILHG
R UW U OHG
, N RZ , GLG FRYHU LW
EHFD VH , P
WHUV
W H GHIH VH FLWHG 'U
W H GHIH VH
)RU
7URPSHWWHU V H[WH VLYH
H V ERDUG FHUWLILHG
D G ZRUN ZLW
T DOLILFDWLR V
GUHGV
H GRHV UHFRJ L]HG
LI
RW PRUH
RIILFHUV
SROLFH V RRWL JV DV ZHOO DV RW HU WUD PD
G W H GHIH VH UHIHUUHG WR
G , DJUHH W DW 'U
7URPSHWWHU T DOLILHV DV D
176
LP DV V SHULRUO
Case 2017CF000478
Document 199
D G VR
Filed 10-01-2019
H[SHUW
W H UHDVR V , DOUHDG
LV WHVWLPR
LV WHVWLPR
Page 4 of 25
LV REYLR VO
ZH W RYHU DW W H ODVW
G IRU
HDUL J
, W L N
V DOVR UHOHYD W
W , GR
W W L N W H VDPH LV WU H RI 0U
GRHV
GR
UHJDUGL J L IHUUL J V RRWHU ORFDWLR
UHOLDEOH
D HV
DYH GDWHG WUDL L J DV D ODZ H IRUFHPH W RIILFHU
W W L N W DW DOR H ZR OG T DOLI
G W H UHVW RI
LP WR WHVWLI
RU E OOHW WUDMHFWRU
LV T DOLILFDWLR V UHDOO
UHODWH WR
LV
H[SHULH FH DV D ILUHDUPV D G EDOOLVWLFV L VWU FWRU D G
VHOI GHVFULEHG UHYLHZ RI YLUW DOO
OLWHUDW UH L
UHFR VWU FWLR V
7 H GHIH VH L GLFDWHV
H[SHUW L
FD
EH UHOLDEOH
H YLUR PH W OLNH D ZDOO
H V EHH
G , W L N WUDMHFWRU
HVSHFLDOO
W W HUH LV
W UR J
T DOLILHG DV D
T DOLILHG WR WHVWLI
V RW W UR J
D
RU DV 0U
D HV
UHVHDUF
H YLUR PH WV
G W DW V
VHV
PD
W DW , UHFDOO
PD
FD
HT L V
HDUG W DW V JJHVWV
Z H
H V
D E OOHW V
ERG
, GLG SRL W W DW R W ODVW WLPH
URGV FHUWDL O
DER W E OOHW WUDMHFWRU
R VWDWLF
URGV
VRPH VRUW RI VWDWLF
R HYLGH FH W DW ,
DOO RI W H SURIHVVLR DO
RW HU FR UWV D G DOVR DUJ HV W DW WUDMHFWRU
EH UHOLDEOH
LV
LV ILHOG UHJDUGL J V RRWL J L FLGH W
,
UHOLDEO
H
OPRVW DOO RI
LV
LP WHVWLI L J DER W L YROYH VWDWLF
G W H VFH H LWVHOI ZDV
RW VWDWLF HLW HU
RW VRPHW L J , SRL WHG R W DW W H ODVW
7 HUH ZHUH SHRSOH L
W H
177
R VH DW W H WLPH
HDUL J
7 HUH
Case 2017CF000478
Document 199
EHWZHH
Filed 10-01-2019
ZDV D GHOD
WLPH LW ZDV UHSRUWHG
W H
FRPH L
FDVH
Page 5 of 25
W H WLPH W H V RRWL J RFF UUHG D G W H
G ZH GR
R VH ROG G UL J W DW WLPH
W N RZ Z DW ZDV JRL J R
2EYLR VO
SDUDPHGLFV
DG WR
G , W L N W DW W DW V W H UHDO GLIIHUH FH L
G DV WR W H
WHUV
( FR
DV LW LV UHJDUGL J 0U
VLW DWLR V IRU FRPSDULVR
P
3UL FLSOHV RI '
W LV
DPLF D G 9LROH W
D DO VLV RI W DW WHVWLPR
YDUD V WHVWLPR
S USRVHV
LV UHDOO
R
W H VDPH
VH RI IRUFH
6R , OO W U
WR W DW
7 H GHIH GD W DUJ HV W DW W DW HYLGH FH LV UHOHYD W
EHFD VH LW PDNHV D IDFW RI FR VHT H FH
W H GHIH GD W V EHOLHIV D G Z HW HU
LV DFFR
ZLW
ZLW R W W H HYLGH FH
W H HYLGH FH
PRUH SUREDEOH W D
W H UHDVR DEOH HVV RI
G W H GHIH GD W V SSRUWV W DW DUJ PH W E
ZLW
YLFWLP V UHFD WDWLR
GRPHVWLF YLROH FH
W H 6WDWH RIIHUL J HYLGH FH L
FR WUDVWL J LW
'9 FDVHV WR H[SODL
RU ODFN RI EU LVL J
W '9 FDVHV DUH YHU
W LV FR VLVWH W
GLIIHUH W
G E
7 H
OL H RI FDVHV DGGUHVVL J Z
FRPSDULVR
FUHGLELOLW
WR '9 D G VH[ DO DVVD OW FDVHV
RPLFLGH FDVHV
FRPSR H WV RI GRPHVWLF YLROH FH RU VH[ DVVD OW
L
WHVWLPR
LV
JUHDWHU ODWLW GH L
HFHVVDU
'9 , PHD
UH SDUW RI D
DGPLWWL J
WR EROVWHU D YLFWLP V
7 H JUHDWHU ODWLW GH U OH VSHFLILFDOO
DW OHDVW
7 H GHIH GD W
RW
DV
,W GRHV
RW DSSO
DSSOLHV
WR
RPLFLGH FDVHV ZLW R W W RVH
RW FLWHG D
178
D
D W RULW
VSHFLILF
Case 2017CF000478
Document 199
Filed 10-01-2019
Page 6 of 25
WR W LV W SH RI FDVH W DW ZR OG V SSRUW W HLU FODLP
OW R J
GDWHG 6HSWHPEHU
WHVWLPR
SURILOH DV D EDWWHUHG ZRPD
G W DW V W H VDPH W SH RI
VLW DWLR
D JUHDWHU ODWLW GH FDVH
RW W H VDPH W SH RI VLW DWLR
W H
KDUG R
W DW FDVH UHODWHG WR W H GHIH GD W V
ZH
DYH L
W LV FDVH
D EDWWHUHG ZRPD
G
R UHDVR
WR EHOLHYH 0U
2F RD V FUHGLELOLW
HHGV WR
EH EROVWHUHG E
WHF
LFDOO
G O
FRPSDULVR
WHVWLPR
6R DOW R J
LW PD
EH UHOLDEOH D G DOVR UHOHYD W
LW V H[FO GDEOH
DV W H
RI HYLGH FH Z LF
GHOD
,
HHGOHVV SUHVH WDWLR
W H FDVH
W H GHIH GD W V OHWWHU GDWHG 6HSWHPEHU
W H GHIH GD W UHIHUH FHV SDJH
IRRW RWH
D
GHIH GD W
DV D FR VWLW WLR DO ULJ W WR RIIHU H[SHUW
WHVWLPR
WR SUHVH W D FRPSOHWH GHIH VH
IURP 0D
VW FLWHV
ZHOO DV
D H
HU
EULHI L
V SSRUW RI
UD H
HRU H
.H
RI
W
,W V
VH RI IRUFH E
ZLOO
W H FRPSDULVR
,W ZDV D
W HUH V
W H GHIH VH OHWWHU
RPLFLGH FDVH
W DW DOVR DSSOLHV L
GHU
LV D
DOORZHG L
W
FDVH FLWHG E
L
LV 0D
LV FODLP W DW W H
7 DW
D
D G
HU
PRWLR
D
DV
VLF
7 H ILUVW WZR FDVHV UHODWH WR YRO
WDUL HVV RI W H
GHIH GD W V FR IHVVLR
W H ODWWHU WR D UHFD WDWLR
L
F LOG VH[ DVVD OW FDVH
GLVWL J LV DEOH IURP W H FDVH Z HUH W H LVV HV DUH YHU
VWUDLJ WIRUZDUG
D
G VR W RVH VLW DWLR V DUH FOHDUO
179
Case 2017CF000478
Document 199
Filed 10-01-2019
7 H 6HSWHPEHU
W
Page 7 of 25
OHWWHU IURP W H GHIH VH L
IRRW RWH
UHIHUH FHV SDJH
W DW ZDV ILOHG ODWHU L
J VW
SURSRVLWLR
FRPSDULVR
, P VRUU
W DW DOW R J
RI W H GHIH VH V
J VW
W
ZHOO HVWDEOLV HG OHJDO D W RULW
HU
EULHI
IRU W H
WHVWLPR
W DW DOORZL J FRPSDULVR
D
V EDVHG R
WHVWLPR
LV EDVHG
G
W DW UHIHUV
R
WR D OL H RI FDVHV Z HUH W H GHIH GD W ZDV D EDWWHUHG ZRPD
Z LF
GLVWL J LV DEOH IURP W LV VLW DWLR
'HVSLWH W H ODUJH
, M VW DGGUHVVHG
WU
GHIH GD W
G
DV
DJDL
W RVH FDVHV DUH FOHDUO
PEHU RI J
FR
W DW L GLFDWHV FRPSDULVR
OLNH W LV WR DVVLVW W H WULHU RI IDFW
H[FO GH ERW
WHVWLPR
EHL J
R UDG
RW SURYLGHG D
WHVWLPR
YDUD V WHVWLPR
UHJDUGL J W H
DJDL
RPLFLGHV L
R
LV
W LV
SRL W FDVH ODZ
HFHVVDU
L
D FDVH
6R , P JRL J WR
DV ZHOO DV 0U
3UL FLSOHV RI '
DPLF ( FR
D HV
WHUV
DV
RW DGPLVVLEOH
5HJDUGL J 0U
9LOODVHxRU V W LUG H[SHUW RSL LR
GHIH VH L GLFDWHG W DW , H[FO GHG W DW EHFD VH LW V
UHOHYD W WR Z DW 0U
, GR
WR EH FOHDU DER W W DW
UHDVR
2F RD
RW
GHUVWRRG W H ZRUGV WR PHD
W W L N LW V UHOHYD W IRU D
W H
W
RW HU S USRVH HLW HU M VW
6R , W L N LW V H[FO GDEOH IRU W DW
7 H GHIH VH DUJ HV W DW LW ZR OG EH DGPLVVLEOH WR
DVVLVW W H M U
ZLOO R O
L
GHUVWD GL J SRVVLEOH PHD L J
L IO H FH W H M U
LI W H
180
G W DW
EHOLHYH W H GHIH GD W V
Case 2017CF000478
Document 199
WHVWLPR
DER W Z DW ZDV VDLG
UHDVR
W H
PHD W
6R , W L N LW ZR OG M VW EH F P ODWLYH
FLUF PVWD FHV D G
ZR OG
Filed 10-01-2019
G LI VR
W DOVR EHOLHYH
DJDL
FD
F UR RORJLFDOO
6HSWHPEHU
EH L WH GL J WR
W DW
W
W H
W HUH V
LV WHVWLPR
EH H[FO GHG
, ZD W WR WDNH D EUHDN
Page 8 of 25
R
DV WR Z DW LW
GHU W RVH
GHU
HUH EHFD VH , P JRL J
D G W H GHIH GD W VH W D OHWWHU
M VW UDLVL J W H LVV H W DW W H 6WDWH PD
DPH D
WWRU H
H[SHUW D G UDLVL J D FR FHU
8UPD VNL
772 1(
DUH
R
DER W
DEOH WR FRPPH W R
8 0 1 .,
, DP
DG
UHDF HG R W WR W H FULPH ODE L
RIIHUHG WHVWLPR
IURP 0U
D HV
, OHDU HG DIWHU PDWHULDO
ZDV VH W WR W H D DO VW L
0DGLVR
W DW W H
RW RU DUH
JLYH
DYH EHH
SUH RU HYH
ZDV UHDOO
R O
SURYLGHG D
EHFD VH W RVH L
W H FR F
ZR OG
RW SURYLGH D
YDO H VL FH
W H H WU
FR OG
DYH EHH
IURP D
GLIIHUH W RU
PEHU RI
D JOHV
6R W H
DYH
L WH G WR FDOO D
W H
RW FDSDEOH RI SHUIRUPL J D
WR W HP L
D
DWWHPSW WR WU
UHVSR VH WR W H
DSSDUH WO
YDO H IRU D
D G SODFH Z HUH SHRSOH PD
G W DW W HUH
ROH RU PDUNL J W DW ZR OG
W SH RI WUDMHFWRU
RW SURYLGHG D
R H L
FDVH L
RW UH GHUHG D
28 7
DYH
HW FHWHUD
UHSRUWV
D G , GR
RW
F LHI IURP W H ODE VL FH
UHSRUWV JLYL J PH RSL LR V
OO ULJ W
181
GR
D DO VLV RI PDWHULDOV
G UL J W H V RRWL J
R H E OOHW
7 (
L
,
W DW"
DYH
0DGLVR
- GJH
VWLOO
WWRU H
0H ORV
GRHV
Case 2017CF000478
Document 199
Filed 10-01-2019
Page 9 of 25
W DW DGGUHVV W H GHIH GD W V FR FHU
LVV H"
772 1(
GR
0(
2
W DW W H
,I W H
ODZ W DW ZR OG V SSRUW W DW W H
FLUF PVWD FHV
WHF
G UL J WULDO JHWWL J D ZLW HVV
ZLW
ZR OG FDOO L
G UL J WULDO D G DOWHU DWLYHO
ZLW HVV R
FRPH
GR FDOO VRPHR H L
W H 6WDWH V FRPPH W
R H R
W H FDVH L
UHE WWDO
FD
D
W HUH LV VRPH
GR W DW
GHU FHUWDL
ZH PD
V RUW
RWLFH
D FHUWDL
EH ORRNL J DW
H[SHUW ZLW HVV WR FR V OW
G , W L N LW M VW JRHV WR W H
UHE WWDO Z HW HU ZH
F LHI
REYLR VO
R SUHGLVFORV UH
DW UH RI Z DW W H
DYH D
LI ZH
D
HU
HDUL J
DYH D RW HU H[SHUW
6R W RVH DUH M VW W L JV W DW FR OG
S IURP D SUDFWLFDO VWD GSRL W
7 (
28 7
DGGUHVV W RVH LI D G Z H
OO ULJ W
W H
7 H
OHWWHU GDWHG 6HSWHPEHU
GHFLVLR
R
GHFLVLR
ZDV EDVHG R
GLVFORVHG W H FRPP
FRUUHFW L
EHFD VH W H SULYLOHJH ZDV
0U
:HOO
W , W L N LI ZH JHW IDU DILHOG L
LFDO DVSHFW ZLW
W L WH G WR FDOO D
UHJDUGL J W DW OLPLWHG
G ZH OO
DYH WR
DULVH
H[W ILOL J , UHFHLYHG ZDV W H GHIH GD W V
DVNL J W H
R UW WR UHFR VLGHU P
W H PDULWDO SULYLOHJH ZDLYHU
W H IDFW W DW 0UV
LFDWLR
VD L J W DW V
3DUW RI P
2F RD YRO
WDULO
G , EHOLHYH W H GHIH GD W V
RW D YDOLG EDVLV IRU W H GHFLVLR
W 0UV
2F RD V WR ZDLYH
LW ZDV
2F RD V
W W DW GRHV
W F D JH W H RW HU EDVLV IRU P
182
Case 2017CF000478
Document 199
GHFLVLR
Z LF
PDL WDL
LV SULYLOHJH E
Page 10 of 25
, EHOLHYH VWLOO VWD GV
0U
RW FDOOL J
G LW V FRUUHFW W DW W H 6WDWH FD
WHVWLPR
Filed 10-01-2019
E
V ESRH DL J
HU RU FDOOL J
Z LF
LV
DYH
FD
LV FDNH D G HDW LW WRR
W DW SULYLOHJH
ZLW HVV
V SSRUW LWV DUJ PH W W DW R FH 0UV
E
UHJDUGL J FRPP
H FD
7 HUH V EHH
W H GHIH VH V H FD
F RRVH
HU
WR VD
,I
2F RD V
HU DV D ZLW HVV
W H
OLPLWHG L
G , J HVV D RW HU ZD
W
LV ZLIH WR WHVWLI
RW FRPSHO 0UV
W LI W H GHIH GD W F RRVHV WR FDOO
WR FURVV H[DPL DWLR
2F RD FD
V H V V EMHFW
:LVFR VL
W DW LV W H GHIH GD W
H ZD WV WR SUHVHUYH
RW WR FDOO
LV ZLIH DV D
R FDVH ODZ SURYLGHG E
W H GHIH VH WR
2F RD V FDOOHG WR WHVWLI
W EH FURVV H[DPL HG E
W H 6WDWH
LFDWLR V W DW ZR OG RW HUZLVH EH SULYLOHJHG
7 H H[DPSOHV RU W H
SRW HWLFDOV SURYLGHG E
GHIH VH GR
W FRUUHODWH WR W LV VFH DULR
GHIH GD W DUJ HG W DW LI , DOORZ 0UV
FURVV H[DPL HG DER W SULYDWH FRPP
VD L J D YLFWLP Z R WHVWLILHV DER W D VH[ DO DVVD OW
L WHUSUHWHU FD
,17(
(7(
:
RW NHHS
S
R U
7 (
28 7
W H
)RU H[DPSOH
W H
2F RD WR EH
LFDWLR V
(: .,
LW ZR OG EH OLNH
, P VRUU
7 H
R RU
7 H GHIH GD W DUJ HV W DW LI ,
DOORZ 0UV
2F RD WR EH FURVV H[DPL HG DER W SULYDWH
FRPP
WHVWLILHV DER W D VH[ DO DVVD OW ZR OG EH FR VLGHUHG WR
ZDLYHG D
LFDWLR V
LW ZR OG EH OLNH VD L J D YLFWLP Z R
W HUDSLVW FR
VHORU SULYLOHJH
183
G W DW V
DYH
RW D
Case 2017CF000478
Document 199
D DORJR V VLW DWLR
- VW DV L
Filed 10-01-2019
Page 11 of 25
W LV FDVH W H GHIH GD W FR OG
RW FRPSHO
W H W HUDSLVW WR WHVWLI
E W LI W H 6WDWH YRO
W H W HUDSLVW
FR OG EH FURVV H[DPL HG
VDPH ORJLF DSSOLHV WR W H GHIH GD W V RW HU
SRW HWLFDOV
6R W H GHIH VH LV FRUUHFW W DW W H 6WDWH FD
W FRPSHO
0UV
F RRVHV WR FDOO
W DW SHUVR
2F RD WR EH FDOOHG DV D ZLW HVV
, P
HU
DV W H GHIH GD W
VHOI L FULPL DWLR
WHVWLI L J
ZDLYHG
LI
G W H
E W LI W H GHIH GD W
FDVH ODZ WR W H FR WUDU
- VW
DV D ULJ W D G D SULYLOHJH DJDL VW
D G
H FD
PDL WDL
H F RRVHV WR WHVWLI
W DW E
RW
W DW SULYLOHJH LV
DW OHDVW WR LVV HV UHODWHG WR W H F DUJHG RIIH VH
G , W L N W DW W DW V W H EHWWHU D DORJ
5HJDUGL J W H GHIH GD W V 6HSWHPEHU
GHIH GD W ILUVW DUJ HV W DW W H 6WDWH GLG
IDFW W DW 0U
FRPSDULVR
DUJ L J W H 6WDWH V R OG
YDUD V WHVWLPR
WHVWLPR
L
UG OHWWHU
W H
RW DGGUHVV W H
ZDV EHL J RIIHUHG DV
LWV L LWLDO UHSO
6R W H
RW EH DOORZHG WR UHSO
UH
WR W DW
RZ
W , W L N W H GHIH GD W ZDLYHG W DW DUJ PH W Z H
W H
OHWWHU EULHI R
WR W DW OHWWHU EULHI
GDWHG 6HSWHPEHU
FDOOHG
V H V V EMHFW WR FURVV
RW DZDUH RI D
WDULO
DVNHG W H
, GR
R UW WR UHFR VLGHU W DW LVV H YLD W HLU
6HSWHPEHU
W
D G W H
7 H 6WDWH V H WLWOHG WR UHSO
GLG VR L
W HLU OHWWHU EULHI
W
W N RZ LI W LV PDNHV D GLIIHUH FH WR W H
184
Case 2017CF000478
Document 199
GHIH VH
E W WR EH
EULHI Z H
UHFR VLGHUDWLR
E W
UHDVR DEO
UHSO
,
, IRUP ODWHG P
RW UHDG W H 6WDWH V OHWWHU
GHFLVLR
R
,
D
HYH W
W H PRWLR
, GR
SUHFO GH W H 6WDWH IURP
WR D PRWLR
IRU
W W L N , FR OG
DYL J D
RSSRUW
LW
WR
IRU UHFR VLGHUDWLR
7 H GHIH GD W W H
W DW 0U
DG
Page 12 of 25
6R VRPH RI W HLU UHDVR L J PLUURUV PL H
YDUD V RSL LR
R HVW
RW DOO RI LW
Filed 10-01-2019
DGGUHVVHV W H 6WDWH V DUJ PH W
L YDGHV W H SURYL FH RI W H M U
,17(
(7(
7 (
28 7
:
(: .,
2 H PRUH WLPH IRU
W H L WHUSUHWHU"
, YDGHV W H SURYL FH RI W H M U
WR GHWHUPL H W H GHIH GD W V W R J WV RU FUHGLELOLW
6WDWH V DUJ PH W W DW FRPSDULVR
FDVHV UHODWL J WR D ZLW HVV V PH WDO VWDWH
, GR
W W L N , UHDOO
WHVWLPR
R O
RU W H
DSSOLHV WR
HHG WR DGGUHVV W RVH
DUJ PH WV VL FH P
GHFLVLR
RU W RVH LVV HV
G , J HVV M VW WR V SSOHPH W Z DW , YH
DOUHDG
HDUL JV
VRPH RI
0U
Z LF
VDLG DER W 0U
D HV
ZDV
YDUD
LV RSL LR
, GR
W EDVHG R
W RVH DUJ PH WV
DV , SUHYLR VO
ZDV EDVHG R
VDLG DW RW HU
L IRUPDWLR
IURP
W W L N LV UHOLDEOH
H V RIIHUL J WR WHVWLI
W DW DSSO
WR VHOI GHIH VH RU
DUH W DW W H DJJUHVVRU
DJJUHVVRU
W H GHIH GHU SHUFHLYHG W DW W UHDW
R
VH RI IRUFH FDVHV
DG W H DELOLW
DG W H RSSRUW
LW
D G W RVH
WR L IOLFW L M U
WR DWWDFN LPPHGLDWHO
185
W H W UHH SUL FLSOHV
W W HVH DUH
W H
D G W DW
W
Case 2017CF000478
Document 199
Filed 10-01-2019
FRPSOLFDWHG FR FHSWV
, W L N W H
7 H VHOI GHIH VH M U
Page 13 of 25
UH FRPPR
L VWU FWLR
VH VH
ZLOO DOHUW W H
M URUV WR W H LVV HV W H
LW ERLOV GRZ
WR Z HW HU W H M URUV EHOLHYH W H GHIH GD W LV
FUHGLEOH RU
RW
W H GHFHGH W V DELOLW
DV
H OO
LV SHUFHSWLR
HFHVVDU
LW ZR
SUHVH WHG L
L
DYH D
D G RSSRUW
LW
W W L N W DW 0U
DV , VDLG HDUOLHU
W DVVLVW W H M U
D
RSSRUW
D G W H UHVW RI
LW
WR WHVWLI
WR DWWDFN
LP DV ZHOO
ZD
L
YDUD V WHVWLPR
WR EROVWHU
LV
LV FUHGLELOLW
D G
GHUVWD GL J W H LVV HV
W DW , W L N LV
HFHVVDU
RU FRPSHOOL J
W LV FDVH
5HJDUGL J W H SURSRVHG M U
W H GHIH VH
Z LF
L VWU FWLR
PEHU
SDWWHU
ULJ W RI VHOI GHIH VH
,
, GR
W W L N
L VWU FWLR V RIIHUHG E
DYH EHH
FRYHUHG
, P JRL J WR GLVDOORZ
HW
M U
7 HUH DUH
L VWU FWLR V W DW DGGUHVV W H F DUJHG RIIH VH D G W H
DGGLWLR
W H L VWU FWLR
GHIH GD W LV H WLWOHG 7 HRU
HG FDWH W H M U
DV WR LWV W HRU
DJDL
FORVL J M VW DV W H 6WDWH FD
ULJ W WR D M U
DUJ H LW L
L VWU FWLR
RI W H
SURSRVHG E
DER W
RI W DW W UHDW
G , GR
HHG WR FR VLGHU
DVH
7 H GHIH GD W FD
RI W H FDVH L
DV WR W H W HRU
G , W L N SUHVH WL J LW WR W H M U
W H
RSH L J D G
7 HUH V
RI W H FDVH
W DW ZD
ZR OG EH
FR I VL J WR W HP VL FH LW V W H GHIH GD W V W HRU
FDVH
RW W H 6WDWH V
186
RI W H
R
Appendix 9
187
Case 2017CF000478
Document 119
Filed 05-08-2019
STATE OF WISCONSIN CIRCUIT COURT
BRANCH IV
Page 1 of 3
SHEBOYGAN COUNTY
FILED
05-08-2019
Sheboygan County
Clerk of Circuit Court
2017CF000478
STATE OF WISCONSIN,
Plaintiff,
v.
Case No.: 17 CF 478
SERGIO OCHOA,
Defendant.
________________________________________________________________________________
DEFENDANT’S BRIEF IN SUPPORT OF MCMORRIS EVIDENCE
DEFENDANT’S MOTION IN LIMINE NO. 13
________________________________________________________________________________
TO:
District Attorney Joel Urmanski
Sheboygan County District Attorney's Office
615 North Sixth Street
Sheboygan, Wisconsin 53081
NOTICE OF MOTION
PLEASE TAKE NOTICE that the Defendant, Mr. Sergio Ochoa, appearing specially by Kaehne,
Cottle, Pasquale & Associates, S.C., specifically Attorney Corey G. Mehlos, and reserving the right
to challenge the court’s jurisdiction, will move the Sheboygan County Circuit Court, Branch IV,
before the Honorable Rebecca Persick, presiding judge, on a date and time to be set, for an order to
allow the defense to introduce reputation testimony from witnesses that the decedents had a reputation
for violence.
MOTION
NOW COMES, the Defendant, Mr. Sergio Ochoa, appearing specially by Kaehne, Cottle,
Pasquale & Associates, S.C., specifically Attorney Corey G. Mehlos, and reserving the right to
challenge the Court’s jurisdiction, hereby moves the Court for an order to allow the defense to
introduce reputation testimony from witnesses that the decedents had a reputation for violence.
IN SUPPORT OF THIS MOTION, it is asserted:
1. That Mr. Sergio Ochoa is charged with two (2) counts of First-Degree Intentional
Homicide, contrary to Wis. Stat. § 940.01 (1)(a). Such charges are essentially the most
serious crimes known to Wisconsin law. The penalty, upon conviction of either count, or
both, is mandatory life imprisonment. See Wis. Stat. § 939.50 (3)(a).
2. The primary issues of consequence in this case related to Mr. Ochoa’s claim of self1 of 4
188
Case 2017CF000478
Document 119
Filed 05-08-2019
Page 2 of 3
defense are:
a. Whether Mr. Ochoa used deadly force against L.G. (D.O.B.: 04/24/75) and F.L.
(D.O.B.: 10/20/73) without a legal privilege or justification; or
b. Whether Mr. Ochoa reasonably used deadly force to terminate an imminent and
actual unlawful interference with his person by L.G. (D.O.B.: 04/24/75) and F.L.
(D.O.B.: 10/20/73) and that the amount of force used was necessary to terminate
such interference, and thus he acted in self-defense.
3. In resolving these issues, the jury will necessarily be required to evaluate Mr. Ochoa’s
claim that both L.G. and F.L. were the first and primary aggressors in any conflict which
resulted in Mr. Ochoa’s asserted acts of self-defense.
4. In support of such claims that L.G. and F.L. were the first and primary aggressors and that
both L.G. and F.L. engaged in unprovoked acts, individually and collectively, that
manifested an intent to then and there cause great bodily harm to and/or the death of him,
Mr. Ochoa wishes to introduce evidence of his knowledge of prior specific acts of violence
committed by L.G. and F.L.
5. Specifically, between the years of 1993 and 1998 or 1999, Mr. Ochoa personally observe
approximately three-to-four instances of L.G. and F.L. engaging jointly in what he learned
to be pre-emptive, violent and brutal attacks against third parties that involved kicking and
punching the third parties to the ground during a night of drinking alcohol at Plaza Santa
Maria de Torres in their home community in Mexico during rodeo events. During the
same period of time and place, Mr. Ochoa personally observed L.G. in two-to-three
separate instances launch similar style of attacks against third parties. Mr. Ochoa observed
third parties, including the relatives of the owners of the Plaza Santa Maria de Torres,
Chino Morales, intervene to break up the fights, and red cross workers attend to the injured
third parties, whose faces were often cut and who were sometimes left unconscious, after
L.G. and/or F.L. fled. Mr. Ochoa was aware that L.G. and F.L. would provoke the fights
by intervening with a male who was dancing with his girlfriend to provoke him to fight,
or threw Model beer cans at one or more males. In one instance, Mr. Ochoa recalls that
L.G. stole a <chicharra>>, or an electrical wire used to shock bulls that would sometimes
be used by those trying to break up fights, and used it to shock the person who he was
fighting to inflict additional carnage. Mr. Ochoa would indicate that although other males
in his peer group would also pick fights at these types of events, he was aware of L.G. and
F.L.’s reputation for behaving extremely violently and aggressively when drinking. Mr.
Ochoa was also aware during the same relevant years that L.G. and F.L. would fight with
others at annual fiestas, including festivals at San Sebastial el Grande in San Agustin and
in Santa Maria in Tlajomulco, as well as Santa Anita in Tlaquepaque. Mr. Ochoa indicates
that he was aware that L.G. and F.L. would use unconventional weapons such as rocks
and broken beer bottles during these fights to inflict maximum carnage. From 1999
through 2017, both L.G. and F.L. on various occasions would reminisce in Mr. Ochoa’s
presence about their violent exploits in Mexico, ganging up and beating people in tandem,
as well as fights they had been involved in while living in the United States, including
California and Wisconsin. Mr. Ochoa never witnessed any of the fights in the United
States, which L.G. and F.L. described themselves as having been violent and successfully
2 of 4
189
Case 2017CF000478
Document 119
Filed 05-08-2019
Page 3 of 3
ganging up on and beating up other individuals in a manner similar to what Mr. Ochoa
had personally observed or been told about third hand.
6. As further grounds, Mr. Ochoa would cite the same legal authority contained in his Motion
In Limine No. 13. McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973).
WHEREFORE, the Defendant, Mr. Sergio Ochoa, by and through counsel, respectfully
requests that the Court grant Mr. Ochoa’s Motion.
Dated this 8th day of May, 2019.
Respectfully Submitted,
KAEHNE, COTTLE,
PASQUALE & ASSOCIATES, S.C.
Electronically signed by:
/s/ Corey G. Mehlos
______________________________________
Corey G. Mehlos
Attorney for Defendant
State Bar No.: 1088417
Prepared by:
KAEHNE, COTTLE,
PASQUALE & ASSOCIATES, S.C.
608 North Sixth Street
Sheboygan, Wisconsin 53081
Telephone: (920) 459-8490
Facsimile: (920) 459-8493
3 of 4
190
Appendix 10
191
Case 2017CF000478
Document 202
Filed 10-02-2019
STATE OF WISCONSIN CIRCUIT COURT
BRANCH IV
Page 1 of 7
SHEBOYGAN COUNTY
FILED
10-02-2019
Sheboygan County
Clerk of Circuit Court
2017CF000478
STATE OF WISCONSIN,
Plaintiff,
v.
Case No.: 17 CF 478
SERGIO OCHOA,
Defendant.
________________________________________________________________________________
DEFENDANT’S NOTICE OF MOTION AND MOTION TO
RECONSIDER MOTION TO ADMIT MCMORRIS EVIDENCE
________________________________________________________________________________
TO:
District Attorney Joel Urmanski
Sheboygan County District Attorney's Office
615 North Sixth Street
Sheboygan, Wisconsin 53081
NOTICE OF MOTION
PLEASE TAKE NOTICE that Mr. Sergio Ochoa, Defendant, appearing specially by Kaehne,
Cottle, Pasquale & Associates, S.C., specifically Attorney Corey G. Mehlos, and reserving the right
to challenge the court’s jurisdiction, will move the Sheboygan County Circuit Court Branch, IV,
before the Honorable Rebecca Persick, presiding judge, on October 4, 2019 at 2:30 p.m., for
reconsideration of the Defendant’s Motion In Limine, specifically Paragraph 13, filed April 30, 2019,
whereby the court denied the admission of McMorris evidence and, further, for an order to reverse
the court's prior ruling and for a grant of such motion to allow such evidence to be admitted at trial.
MOTION
COMES NOW, Mr. Sergio Ochoa, Defendant, appearing specially by Kaehne, Cottle,
Pasquale & Associates, S.C., specifically Attorney Corey G. Mehlos, and reserving the right to
challenge the Court’s jurisdiction, hereby moves the Court for reconsideration of the Defendant’s
Motion In Limine, specifically Paragraph 13, filed April 30, 2019, whereby the court denied the
admission of McMorris evidence and, further, for an order to reverse the court's prior ruling and for
a grant of such motion to allow such evidence to be admitted at trial.
1 of 7
192
Case 2017CF000478
Document 202
Filed 10-02-2019
Page 2 of 7
AS GROUNDS FOR THIS MOTION, Mr. Sergio Ochoa asserts:
1. That Mr. Ochoa previously filed in this case a Defendant’s Motion In Limine, specifically
Paragraph 13, filed April 30, 2019, together with the Defendant’s Brief in Support of
McMorris Evidence [In] Defendant’s Motion In Limine No. 13, filed May 8, 2019 (“Defense
Motion in Limine No. 13”).
2. Defense Motion in Limine No. 13 sought to admit McMorris Evidence, that is, past acts of
violence by LG. (D.O.B.: 04/24/75) and F.L. (D.O.B.: 10/20/73) which were personally
known to Mr. Ochoa during the events that form the basis of the charges in this matter. See
generally McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (1973).
3. For the sake of brevity, Mr. Ochoa incorporates his prior filings concerning Defense Motion
In Limine No. 13 herein, including all factual offers of proof and supporting legal arguments,
as if setout fully herein.
4. The court, on August 30, 2019, denied the Defense Motion in Limine No. 13. The primary
bases of the court’s ruling was that the proffered McMorris evidence by Mr. Ochoa was
temporally remote, factually dissimilar to the alleged event in this case, and admission of the
McMorris evidence was “more prejudicial than probative.” Oral Ruling, trans. pp. 24-30.
5. The standard for a motion for reconsideration is that a party must either present newly
discovered evidence or establish a manifest error of law or fact. Koepsell's Olde Popcorn
Wagons, Inc. v. Koepsell's Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275
Wis.2d 397, 685 N.W.2d 853. A manifest error of law occurs when the circuit court disregards,
misapplies, or fails to recognize controlling precedent. Id. A motion for reconsideration may
also present a "new issue." State v. Edwards, 2003 WI 68, ¶ 6, 262 Wis. 2d 448, 453, 665
N.W.2d 136, 139.
6. The Wisconsin Supreme Court encourages litigants to request the trial courts for
reconsideration as a method of correcting errors. Kochel v. Hartford Accident & Indemnity
Co., 66 Wis.2d 405, 418, 225 N.W.2d 604, 611 (1975).
7. Under both the federal and state constitutions, a fundamental element of due process of law is
the accused's right to present the testimony of witnesses in his own defense and a right to
testify in his or her own behalf. See State v. Boykins, 119 Wis. 2d 272, 279, 350 N.W.2d 710,
714 (Ct. App. 1984); U.S. Const. amends. VI and XIV; Wis. Const. art. 1, § 7; Chambers v.
Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); Washington v.
Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).
8. The accused right to testify in his or her own behalf includes the right present his own
testimony which concerns prior violent confrontations with the decedents. Boykins, 119 Wis.
2d at 279.
9. Mr. Ochoa relies on both the federal and state constitutions and contends that the court
committed constitutional error when it excluded the McMorris evidence in this case. In
Boykins, the court held, inter alia, that the trial court had deprived the defendant of his right
2 of 7
193
Case 2017CF000478
Document 202
Filed 10-02-2019
Page 3 of 7
to present a defense when it precluded him from presenting his own complainant's prior
violent and assaultive acts. 119 Wis.2d at 277-80. The Boykins court reversed the trial court
and ordered a new trial. Id. at 279-80.
10. The Court excluded the McMorris evidence on the grounds that it was temporally remote. In
reaching this ruling, the court noted that the McMorris case cited the Delaware case of State
v. Gordon, 37 Del. 219, 222, 223, 181 A. 361, 362 (1935), for which made passing reference
to the notion that such evidence may be excluded in the “proper case for remoteness.”
11. Firstly, there is no express indication that the McMorris court intended to include temporal
remote in the analysis or, even if it did, what would constitute a “proper case for remoteness.”
However, the McMorris court did explicitly observe:
The past conduct of a person markedly affects what others may reasonably expect from
him in the future. When the accused maintains self-defense, he should be permitted to
show he knew of specific prior instances of violence on the part of the victim. It
enlightens the jury on the state of his mind at the time of the affray, and thereby assists
them in deciding whether he acted as a reasonably prudent person would under similar
beliefs and circumstances.
Id. at 151 (emphasis supplied). And also:
When self-defense is asserted in a prosecution for assault or homicide, there is no
substantial reason for the exclusion of particular violent acts of the victim, known to
the defendant prior to the incident from which the charges arose.
Ibid. (emphasis supplied).
12. The McMorris court made these broad statements without any qualification. The McMorris
court’s “no substantial reason for the exclusion” of the evidence language must be given effect
by this court. This language, viewed inversely, means that McMorris evidence should not be
excluded but for a “substantial reason.” In turn, McMorris evidence should not be treated the
same as an ordinary “other acts” motions but rather it must be analyzed under a liberal
standard of admission. Cf. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 253, 648 N.W.2d 413,
442 (holding McMorris evidence relating back as much as 16 years was admissible and, in
doing so, the court never once addressed the notion of temporal remoteness as a possible basis
for exclusion).
13. While the Head court noted that “[a]dmissibility in not automatic,” the court made such
comment in the context of providing a basis when such evidence is not admissible: “As a
general rule, McMorris evidence may not be used to support an inference about the victim's
actual conduct during the incident.” Id. at ¶128. Rather, it may be admitted when “it bears on
the reasonableness of the defendant's apprehension of danger at the time of the incident.” Ibid.
(citing McMorris, 58 Wis.2d at 149, 205 N.W.2d 559. In other words, in order to be
admissible, the McMorris evidence, quite simply, should be “probative of the defendant's
beliefs in relation to [his] defense[]” and “the court should admit it as it would any other
relevant evidence, excluding it only if its “probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.” Head, ¶129.
(emphasis added).
3 of 7
194
Case 2017CF000478
Document 202
Filed 10-02-2019
Page 4 of 7
14. In this case, Mr. Ochoa sought to admit the McMorris evidence for state-of-mind and how it
informed his beliefs when he allegedly acted in this case. Indeed, the State has never
contended that Mr. Ochoa sought to admit the evidence for any other purpose other than stateof-mind. Mr. Ochoa has made a sufficient offer of proof that past acts of violence by LG.
(D.O.B.: 04/24/75) and F.L. (D.O.B.: 10/20/73), which were personally known to him during
the events that form the basis of the charges in this matter, informed and influenced his stateof-mind.
15. Second, Mr. Ochoa respectfully contends that the Court did not apply the governing legal
standard of remoteness to the facts of this case. While the court acknowledged the State v.
Mink case in its ruling, that is, a 22-year lapse in time between other acts was not remote, it
only factually distinguished that case from this one and did not apply the applicable legal
principle concerning remoteness in a substantive manner. As the Mink court succinctly stated:
“[R]emoteness in time does not necessarily render the evidence irrelevant, but it may do so
when the elapsed time is so great as to negate all rational or logical connections between
the fact to be proven and the other acts evidence. 146 Wis. 2d 1, 16, 429 N.W.2d 99, 105
(Ct. App. 1988)(bolding supplied for emphasis).
16. Here, Mr. Ochoa has offered McMorris evidence and advised that it did, in fact, impact his
state-of-mind and the evidence thus bears on the reasonableness of the defendant's
apprehension of danger at the time of the incident. In fact, there has been no evidence
presented on this record to the contrary. It was error for this court to rule that any gap in time
was “so great as to negate all rational or logical connections” between Mr. Ochoa’s state-ofmind when acting in self-defense and the prior violent and assaultive acts of the decedents,
especially when Mr. Ochoa has contended otherwise (i.e. that Mr. Garcia and Lara-Lopez
regularly reminded him of their violent assaults through the year prior to the incident), and
there has been no competing evidence in this record to controvert that contention. To find
otherwise, would mean that the Court is making a finding that Mr. Ochoa is lying when he
indicates that he was aware of the other violent acts and that awareness impacted his
apprehension of danger.
17. Moreover, in terms of evidentiary showing to be admissible, other acts evidence need only be
such that a reasonable jury could find the acts by a preponderance of the evidence; it is
improper for the trial court to engage in fact-finding or otherwise determine or weigh
credibility or veracity of the defendant’s version of events on other acts evidence. See
generally Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988);
and State v. Landrum, 191 Wis.2d 107, 117, 528 N.W.2d 36 (Ct. App. 1995). Thus, it was
improper for this court to make a factual finding that “I don't believe [the proffered McMorris
evidence] reasonably bear on the defendant's apprehension of danger.” Oral Ruling, trans. pp.
29. That is an issue for the jury to solely resolve, no different than the Court often indicates
when finding sufficiency of the evidence following a preliminary hearing.
18. With all due respect to the Court, recognizing the volume of issues litigated in this matter and
that other judges have commented to undersigned counsel that this Court has had a lot on its
docket recently, Mr. Ochoa respectfully contends that reconsideration is warranted because
the Court’s prior rationale did not adequately examine the relevant facts, apply the proper
standard of law, and use a demonstrated, rationale process to reach a conclusion that a
reasonable judge could reach when it excluded the McMorris evidence on ground of temporal
remoteness.
4 of 7
195
Case 2017CF000478
Document 202
Filed 10-02-2019
Page 5 of 7
19. This court next excluded the McMorris evidence on the grounds that it was dissimilar from
the circumstances of this case. However, the court did not explain how that matters in the
context of McMorris evidence and the circumstances of this case. While similarity of acts
might be highly important in some instances or when viewed under the proponent’s theory of
admissibility in other cases, it is not particularly important for McMorris evidence. For
example, other acts evidence offered to prove modus operandi, intent, lack of mistake or
accident would necessarily be tied to the charged crime by factual uniqueness and similarity.
Such as, a burglary conviction in which the person used an extremely unique modus operandi
may be relevant in a case where the evidence shows the charged burglary was committed in a
same or similar manner; however, a prior burglary conviction with no unique facts would not
be relevant to show a person now committed a burglary with no unique facts either.
20. McMorris evidence goes to state-of-mind, and that is its basis for admission and how it is to
be examined for relevancy. When the known, prior violent and assaultive acts of the
decedent’s actually impact an accused’s state-of-mind in a self-defense case, it necessarily
bears on the reasonableness of his apprehension of danger at the time of the incident and is
therefore relevant – no matter how factually dissimilar. This is so because reasonable persons
know and understand that a person who has engaged in specific acts of physical violence in
the past, irrespective of circumstances or context, is more likely to erupt in violent behaviors
during a tumultuous confrontation than someone who has not. Comparatively, a reasonable
person will view a violent threat or physically threatening behavior as a much more credible
threat when it comes from someone who has previously engaged in violent acts than a person
who has no history of violent acts. This knowledge and understanding informs a person’s
state-of-mind and his beliefs on danger or the chances of a violent attack, and thereby
“enlightens the jury on the state of his mind at the time of the affray, and thereby assists them
in deciding whether he acted as a reasonably prudent person would under similar beliefs and
circumstances.” McMorris, at 151.
21. Compare this case to the McMorris itself where the defendant’s charge for assault stemmed
from “fighting” with the complainant and ultimately stabbing her while at a card game at a
private home. Id. at 146-47. The proffered prior violent acts of the complainant in that case
consisted of the complainant “walking in taverns and bust[ing] people upside the head with
beer bottles,” shooting at her brother-in-law, pulling guns on her brother-in-law, and shooting
her husband. Id., at 147-48. Those proffered other acts, such as use of a beer bottle in a bar,
pulling and shooting guns at family members, were indisputably factually dissimilar to the
allegations of a physical fight during a card game in a private home. Nevertheless, the
McMorris court held those prior violent acts admissible and granted a new trial. Id. at 152.
22. Also compare to Head, where the defendant’s proffered prior violent acts included: her
husband’s 16-year-old threat to kill her should she file for divorce (i.e., a threat contingent on
an event certain and for which was not present at the time); her husband’s threat to a work
supervisor; her husband’s road rage; her husband’s assault of a neighbor; and her husband’s
retaliation against a little boy who cursed at him. Id. at 137. There can be no legitimate
argument that those other acts were highly factually dissimilar to the defendant’s charges and
her alleged version of events in that case. Nevertheless, Head court held those prior violent
acts admissible and granted a new trial. Id. at 152.
23. In any event, while the court highlighted some of the factual dissimilarities between Mr.
Ochoa’s proffered prior acts evidence and the alleged victim’s violent and threatening
5 of 7
196
Case 2017CF000478
Document 202
Filed 10-02-2019
Page 6 of 7
behavior in this case, it did not address the similarities of the other acts. This would include
but not be limited to Mr. Ochoa’s knowledge of prior violent and assaultive acts of L.G. and
F.L when they were together and would act in tandem, especially while under the influence
of substances, such as alcohol. At a minimum, these factual features of the proffered McMorris
evidence certainly share similarities to the alleged events in this case. It is worth emphasizing
that it was known to Mr. Ochoa that L.G. and F.L. would engage in violence and substantially
assault other persons when they were together; and a reasonable person would consider that
fact highly important when presented with circumstances in which these men happened to be
together and making threats of harm while together. Furthermore, the McMorris evidence
explains why F.L., who is L.G.’s friend, would jointly participate in an attack against Mr.
Ochoa during L.G.’s argument against Mr. Ochoa, who is L.G.’s cousin.
24. With all due respect, Mr. Ochoa respectfully contends that this court failed to examine the
relevant facts, apply the proper standard of law, and use a demonstrated, rationale process to
reach a conclusion that a reasonable judge could reach when excluded the McMorris evidence
on ground of dissimilarity to guarantee his right to present a complete defense in a case
alleging two counts of First Degree Intentional Homicide.
25. Lastly, this court excluded the McMorris evidence on the conclusory ground that admission
of the McMorris evidence was “more prejudicial than probative.” Mr. Ochoa respectfully
contends that this is not the governing legal standard.
26. The governing standard is that the “probative value is substantially outweighed by the danger
of unfair prejudice,” rather than “more prejudicial than probative.” Wis. Stat. § 904.03.
Perhaps the Court misspoke; nonetheless, the difference in wording is legally and factually
significant.
27. Secondly, whereas most evidence is prejudicial to the opposing party in a criminal trial, it is
only the “unfair” variety that counts. Wis. Stat. § 904.03. This Court did not explain how
McMorris evidence, in a self-defense case, is unfairly prejudicial to the extent that it
substantially outweighs probative value, especially in light of the caselaw that provides the
opposite conclusion.
28. With all due respect, it is respectfully contended that this court failed erred when it excluded
the McMorris evidence on ground of prejudice.
WHEREFORE the Defendant, Mr. Sergio Ochoa, by and through counsel, hereby requests
that the court reconsider its denial of the Defendant’s Motion In Limine, specifically Paragraph 13,
and, accordingly, reverse its prior ruling and grant the motion to admit McMorris evidence.
6 of 7
197
Case 2017CF000478
Document 202
Filed 10-02-2019
Page 7 of 7
Dated this 2nd day of October, 2019.
Respectfully Submitted,
KAEHNE, COTTLE,
PASQUALE & ASSOCIATES, S.C.
Electronically signed by:
/s/ Corey G. Mehlos
______________________________________
Corey G. Mehlos
Attorney for Defendant
State Bar No.: 1088417
Prepared by:
KAEHNE, COTTLE,
PASQUALE & ASSOCIATES, S.C.
608 North Sixth Street
Sheboygan, Wisconsin 53081
Telephone: (920) 459-8490
Facsimile: (920) 459-8493
7 of 7
198
Appendix 11
199
Case 2017CF000478
Document 92
Filed 05-01-2019
STATE OF WISCONSIN CIRCUIT COURT
BRANCH IV
Page 1 of 3
SHEBOYGAN COUNTY
FILED
05-01-2019
Sheboygan County
Clerk of Circuit Court
2017CF000478
STATE OF WISCONSIN,
Plaintiff,
v.
Case No.: 17 CF 478
SERGIO OCHOA,
Defendant.
________________________________________________________________________________
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.