State v. Clucas

• Decision Date: 30 December 2022
• Docket Number: 2022AP965-CR
• Parties: STATE OF WISCONSIN, PLAINTIFF-APPELLANT, v. CLINTON D. CLUCAS, DEFENDANT-RESPONDENT.
• Court: Wisconsin Court of Appeals

STATE OF WISCONSIN, PLAINTIFF-APPELLANT,
v.
CLINTON D. CLUCAS, DEFENDANT-RESPONDENT.

No. 2022AP965-CR

Court of Appeals of Wisconsin, District IV

December 30, 2022

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

APPEAL from an order of the circuit court for Portage County: No. 2021CM153 HOMAS B. EAGON, Judge.

KLOPPENBURG, J. ^[1]

¶1 The State of Wisconsin charged Clinton Clucas, in the Portage County Circuit Court, with disorderly conduct with a

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domestic abuse enhancer and misdemeanor bail jumping. The charges concern an incident in March 2021 during which Clucas allegedly threatened his then-wife and hit her on the side of the head. Before trial, the State filed a motion, pursuant to Wis.Stat. § 904.04(2), seeking to introduce evidence at trial of other acts allegedly committed by Clucas against his then-wife and a prior girlfriend.^[2] The circuit court denied the State's motion as to three of the proffered other acts and granted the motion as to the fourth other act. The State appeals under Wis.Stat. § 974.05(1)(d)2. (allowing the State to appeal, prior to trial, an "[o]rder or judgment the substantive effect of which results in … [s]uppressing evidence").

¶2 The State argues that the circuit court erred in denying its motion to introduce evidence of the three other acts and also in saying that, should the State at trial be allowed to renew its motion, the State would be required to present that evidence through the testimony of "witnesses with personal knowledge of these incidents." For the following reasons, I affirm.

BACKGROUND^[3]

¶3 According to the criminal complaint, at approximately 7:35 p.m. on March 8, 2021, A.B. told an officer with the Stevens Point Police Department the following. She and Clucas were, at that time, married but separated and no longer

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living together. Approximately one hour earlier, she had gone to Clucas's residence in Stevens Point to pick up their two children. A.B. and the children were outside near the side porch when Clucas's father asked to say goodbye to the children. Clucas then came down the stairs and started "getting in her face" and accusing of her of spreading lies about him. She "kinda laughed" and said she had no idea what he was talking about. Clucas continued to accuse her "of things" and she told him she "wasn't doing this." Clucas walked past her and as he did he hit her with an open palm on the back left side of her head, while she was holding one of their children. The child "announced" that Clucas had hit her shortly after it happened.

¶4 The criminal complaint stated that, at the time of this incident, Clucas was out on bond in an open and pending case, Portage County Case No. 20CM180, with a condition of bond being no violent or abusive contact with A.B. In that case, Clucas was charged with disorderly conduct-domestic abuse.

¶5 The State filed the criminal complaint in this case in May 2021, charging Clucas with disorderly conduct with a domestic abuse enhancer and misdemeanor bail jumping. In February 2022, the State filed a motion seeking to introduce other-acts evidence pertaining to four separate incidents. The details of these other acts will be presented in the analysis that follows.

¶6 After briefing and oral argument by the parties, the circuit court ruled that the evidence proffered by the State pertaining to one other act was admissible and denied the motion as to the three remaining other acts. The court said that the State may renew the motion should "circumstances change during the trial," and that the State would be required to present that evidence through the

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testimony of "witnesses with personal knowledge of these incidents." The State appeals.

DISCUSSION

¶7 I begin with the legal principles that govern this court's analysis regarding the other-acts evidence at issue in this appeal. I next provide additional background pertinent to the details of that evidence and the circuit court's ruling on the State's other-acts evidence motion. I then explain my conclusion that the State fails to show that the circuit court erroneously exercised its discretion in its ruling.

I. Governing Legal Principles

¶8 "[T]he decision to admit other-acts evidence is reviewed for an erroneous exercise of discretion." State v. Lock, 2012 WI.App. 99, ¶43, 344 Wis.2d 166, 823 N.W.2d 378; see also State v. Dorsey, 2018 WI 10, ¶37, 379 Wis.2d 386, 906 N.W.2d 158 ("the circuit court's decisions to admit or exclude evidence are entitled to great deference" (quoted source omitted)); State v. Dukes, 2007 WI.App. 175, ¶26, 303 Wis.2d 208, 736 N.W.2d 515. A court properly exercises its discretion when it considers the facts of record, applies the proper legal standard, and reasons its way to a rational and legally sound conclusion. Dorsey, 379 Wis.2d 386, ¶37; State v. Payano, 2009 WI 86, ¶41, 320 Wis.2d 348, 768 N.W.2d 832; Lock, 344 Wis.2d 166, ¶43; Dukes, 303 Wis.2d 208, ¶26. This court's review is deferential; if the record reveals a basis for the circuit court's decision, this court will uphold it. See Payano, 320 Wis.2d 348, ¶41. "We generally look

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for reasons to sustain the [circuit] court's discretionary decisions." Lock, 344 Wis.2d 166, ¶43.^[4]

¶9 "[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity" with that character. Wis.Stat. § 904.04(2)(a). However, under some circumstances, "evidence of other crimes, wrongs, or acts" is admissible. In addressing a circuit court's decision to admit other-acts evidence, this court follows the three-step analysis set forth in State v. Sullivan, 216 Wis.2d 768, 771-73, 783, 576 N.W.2d 30 (1998).

¶10 The first step in the Sullivan analysis asks whether the party offers the evidence for a permissible purpose under Wis.Stat. § 904.04(2)(a). Sullivan, 216 Wis.2d at 772. Permissible purposes include "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Sec. 904.04(2)(a); Sullivan, 216 Wis.2d at 772.

¶11 Our supreme court has observed that "[t]his first step in the Sullivan analysis is not demanding." State v. Marinez, 2011 WI 12, ¶25, 331 Wis.2d 568, 797 N.W.2d 399. The court stated that "[i]dentifying proper purposes for the admission of other-acts evidence is largely meant to develop the framework for the relevancy determination [in the second step]," and that "[t]he purposes for which other-acts evidence may be admitted are 'almost infinite[,]' with the prohibition

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against drawing the propensity inference being the main limiting factor." Id. (citation omitted). Thus, the court explained, "'[t]he proponent need only identify a relevant proposition that does not depend upon the forbidden inference of character as circumstantial evidence of conduct.'" Id. (quoted source omitted). The court concluded that the first step of the Sullivan analysis is met if the proponent has "articulated at least one permissible purpose for which the other-acts evidence was offered." Id.

¶12 The second step in the Sullivan analysis asks whether the other-acts evidence is relevant. Sullivan, 216 Wis.2d at 772. Evidence of other acts is "inherently relevant to prove character" and, therefore, the issue is whether the other-acts evidence is relevant to anything other than to prove character. Payano, 320 Wis.2d 348, ¶67 (citing Daniel D. Blinka, Wisconsin Evidence, § 404.6 (3d ed.); State v. Johnson, 184 Wis.2d 324, 337 n.1, 516 N.W.2d 463 (Ct. App. 1994)). Under this second step, "the relevance inquiry is two-fold: first, '[t]he evidence must relate to a fact or proposition of consequence'; second, the evidence must have probative value, that is, 'a tendency to make a consequential fact more or less probable than it would be without the evidence.'" Dorsey, 379 Wis.2d 386, ¶44 (quoted source omitted). This court reviews whether the proponent has met its burden on both relevancy considerations under the erroneous exercise of discretion standard. See Payano, 320 Wis.2d 348, ¶79.

¶13 Whether other-acts evidence is "of consequence" asks whether it is logically related to an element of the offense, that is, whether, under the substantive law, it is related to "the ultimate facts and links in the chain of inferences that are of consequence to the case." Sullivan, 216 Wis.2d at 786. "An element of a crime constitutes a consequential fact that the State must prove." Dorsey, 379 Wis.2d 386, ¶48 (quoted source omitted). In engaging in this part of

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the relevancy consideration, the court focuses on the pleadings, which set forth the elements of the charges, and the contested issues in the case. Payano, 320 Wis.2d 348, ¶69.

¶14 "Whether other-acts evidence has probative value asks whether the other acts are similar, that is, whether they are near 'in time, place, and circumstance[,] to the alleged crime or to the fact or proposition sought to be proved.'" Dorsey, ¶49 (quoting Sullivan, 216 Wis.2d at 786). The relevancy part of the Sullivan analysis turns in part on the "'similarity between...