State v. Omar S. Coria-Granados ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 11, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2019AP1989-CR Cir. Ct. No. 2018CF1223
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
OMAR S. CORIA-GRANADOS,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Dane County:
ELLEN K. BERZ, Judge. Affirmed in part; reversed in part and cause remanded
for further proceedings.
Before Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.
¶1 FITZPATRICK, P.J. The State of Wisconsin has charged Omar
Coria-Granados, in the Dane County Circuit Court, with an attempt to have sexual
No. 2019AP1989-CR
contact with a person under the age of thirteen, E.,1 contrary to WIS. STAT.
§§ 948.02(1)(e) and 939.32 (2015-16). The State has also charged Coria-
Granados with sexual contact with M., E.’s sister, without that person’s consent,
contrary to WIS. STAT. § 940.225(3m) (2015-16).
¶2 Pretrial, the State filed a motion, pursuant to WIS. STAT. § 904.04(2),
seeking to introduce at trial evidence of other acts allegedly committed by Coria-
Granados against E. and M. Pretrial, the State also filed a separate motion
pursuant to WIS. STAT. § 908.08, seeking to introduce at trial an audiovisual
recording of a statement made by E. The circuit court denied each of the State’s
motions, and the State appeals under WIS. STAT. § 974.05(1)(d)2.2
¶3 For the following reasons, we reverse the circuit court’s ruling
regarding admission of the other-acts evidence, affirm the circuit court’s ruling
that denied admission of the audiovisual recording of E.’s statement, and remand
this matter for further proceedings consistent with this opinion.
BACKGROUND
¶4 In April 2018, E. and M. met separately with a forensic interviewer
and, in audiovisual recorded statements, reported that a long-time adult family
friend, Coria-Granados, touched them and performed other acts that made each
1
Pursuant to WIS. STAT. RULE 809.86(4) (2017-18), we use an initial in place of the
alleged victims’ names.
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
WISCONSIN STAT. § 974.05(1)(d)2. allows the State to appeal, prior to trial, from an
“[o]rder or judgment the substantive effect of which results in … [s]uppressing evidence.”
2
No. 2019AP1989-CR
feel uncomfortable. We next discuss the charges against Coria-Granados that
arose from those interviews.
¶5 In one of the incidents described by E., she and Coria-Granados
were alone in the living room at Coria-Granados’s home while E.’s father was in
the bathroom. During that time, according to E., Coria-Granados reached his
hands into E.’s shorts in an attempt to touch her vagina. E. stated in the interview
that she grabbed Coria-Granados’s hand and told him to stop, and this seemed to
anger Coria-Granados. As a result of that allegation, Coria-Granados was charged
with attempted first-degree child sexual assault which occurred between June 1
and August 31, 2017. E. was either ten or eleven years old on those dates.
¶6 During her forensic interview, M. alleged that Coria-Granados
grabbed what M. referred to as her “butt” while she and Coria-Granados were
outside his home. As a result of that allegation, Coria-Granados was charged with
fourth-degree sexual assault which occurred between June 1 and August 31, 2017.
M. was seventeen years old on those dates.
¶7 During the forensic interviews, E. and M. made other allegations
about Coria-Granados that were the subject of the other-acts motion brought by
the State requesting admission of the acts in evidence at trial. The specifics of the
five purported other acts will be discussed shortly. As noted, the State also filed a
motion, pursuant to WIS. STAT. § 908.08, seeking to introduce in evidence at trial
the recorded audiovisual statement of E.
¶8 The circuit court ruled that the other-acts evidence proffered by the
State is not admissible in evidence. Further, the circuit court ruled that, in light of
the factors and standards delineated in WIS. STAT. § 908.08(4), it is not in the
“interests of justice” to admit E.’s recorded audiovisual statement into evidence.
3
No. 2019AP1989-CR
DISCUSSION
¶9 The State appeals the circuit court’s rulings that the other-acts
evidence and the audiovisual recording of E.’s statement are not admissible in
evidence at trial. We discuss each of the circuit court’s rulings in turn.
I. Admissibility of Other-Acts Evidence.
A. Governing Principles.
¶10 We begin with the principles that govern our analysis regarding the
other-acts evidence at issue in this appeal.
¶11 “[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 therewith.” WIS. STAT. § 904.04(2)(a). However, under some
circumstances, “evidence of other crimes, wrongs, or acts” is admissible. To
determine whether to admit evidence of other acts, courts engage in the three-step
analysis set forth in State v. Sullivan, 216 Wis. 2d 768, 771-72, 783, 576 N.W.2d
30 (1998).
¶12 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). The second step in the Sullivan analysis asks whether the
other-acts evidence is relevant. Sullivan, 216 Wis. 2d at 772. The party seeking
the admission of the other-acts evidence (in this case, the State) has the burden to
establish the first two steps of this analysis “by a preponderance of the evidence.”
State v. Marinez, 2011 WI 12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399.
4
No. 2019AP1989-CR
¶13 If the first two steps of the Sullivan analysis are satisfied, the burden
then shifts to the opposing party (here, Coria-Granados) in the third step to “show
that the probative value of the evidence is substantially outweighed by the risk” of
confusion of the issues for the jury or unfair prejudice. Id., ¶¶19, 41; Sullivan,
216 Wis. 2d at 772-73; see WIS. STAT. § 904.03.
¶14 In addition to “this general framework, there also exists in
Wisconsin law the longstanding principle that in sexual assault cases, particularly
cases that involve sexual assault of a child, courts permit a ‘greater latitude of
proof as to other like occurrences.’” State v. Davidson, 2000 WI 91, ¶36, 236
Wis. 2d 537, 613 N.W.2d 606 (quoted source omitted). This common law
evidentiary rule is now partially codified in WIS. STAT. § 904.04(2)(b)1. See State
v. Dorsey, 2018 WI 10, ¶¶31-33, 379 Wis. 2d 386, 906 N.W.2d 158. The greater
latitude rule applies to each step of the Sullivan analysis. Marinez, 331 Wis. 2d
568, ¶20.3
B. The Five Other Acts.
¶15 The State requested in the circuit court that evidence regarding five
other acts be admitted at trial. We now describe details of each purported act. E.
and M. stated the following information about each incident to the forensic
interviewer as described in the complaint and in the transcript of the hearing
regarding admission of this evidence.
3
The State contends, and Coria-Granados does not dispute, that the common law greater
latitude evidentiary rule and the codification of the greater latitude rule at WIS. STAT.
§ 904.04(2)(b)1., are applicable to each step of our analysis in these circumstances. In addition,
the State contends, and Coria-Granados does not dispute, that both E. and M. were “children” at
the time of the alleged other acts and that E. was a child at the time of the charged act.
5
No. 2019AP1989-CR
1. The Milwaukee Incident.4
¶16 In the summer of 2017, Coria-Granados and his wife took E. to
Milwaukee, and they stopped in Johnson Creek at the Old Navy store on the way.
Coria-Granados and his wife bought two pairs of shorts and two shirts at the store
for E., and E. changed into her new clothes before they continued their drive.
Once in Milwaukee, Coria-Granados dropped his wife off at a hair salon and then
drove E. to a parking spot where they could not be seen by anyone else.
¶17 While parked, Coria-Granados talked to E. and asked her about
school. E. told Coria-Granados that she was being bullied at school and she was
sad about that. Coria-Granados then suddenly put his hand under her shirt and
squeezed E.’s breast. Coria-Granados also pulled his penis out of his pants and
insisted that E. look at it. Coria-Granados told E. that if she told her parents or his
wife what he had done, he would tell E.’s parents that she used Snapchat,5 which
her parents had forbidden E. to use.
¶18 After those events, E. got some “hot Cheetos” from the El Rey
grocery store, and E. remembered that there was a small stand where corn was
sold outside the grocery store.
¶19 The circuit court held a hearing on the State’s other acts motion at
which time the court asked for further details regarding this alleged incident. In
response to the circuit court’s inquiries, the State explained the following. E. told
4
The parties generally use the same shorthand phrase for each act, and we adopt the
same phrases.
5
“Snapchat is a mobile app and service for sharing photos, videos, and messages with
other people.” https://techterms.com/definition/snapchat (last visited Feb. 5, 2021).
6
No. 2019AP1989-CR
investigators that, at the time she was alone with Coria-Granados in the car and he
grabbed her breast and exposed his penis, she and Coria-Granados were “in a
parking lot by an apartment building that was close to the El Rey” grocery store.
Also, from photographs, E. was able to identify that the grocery store was on
Cesar Chavez Drive. E. also stated to investigators that Coria-Granados had taken
his wife to a hair salon with “a very Hispanic name” that day, and the salon is
“across the street from a church that had a gold baby Jesus up on the top of it.”
2. The Soccer Match Incident.
¶20 Coria-Granados and M. were watching a soccer match at an indoor
facility when he told M. that “he liked to look at girls’ butts.” Coria-Granados
then “slapped and grabbed [M.’s] butt.” Later, Coria-Granados sent a text to M.
which stated that M. should not to tell her parents what he had done.
¶21 At the hearing on the State’s motion to admit the other-acts
evidence, the circuit court asked for further information concerning where this
event occurred. The State then identified for the circuit court a specific name and
address for the field as is detailed in the complaint.
3. The Bra Incident.
¶22 Shortly after M. came home after a surgery, Coria-Granados was at
her family’s home. Coria-Granados walked into her bedroom and, while they
were alone, Coria-Granados picked up and held a bra that M. had left on a piece of
furniture.
7
No. 2019AP1989-CR
4. The Thigh Incident.
¶23 When M. was fifteen years old, she was a passenger in Coria-
Granados’s car while driving to his home after a soccer match. At that time, he
started to talk to M. about sex. Coria-Granados told her that “he liked to get head”
and that, when he was younger, he had given a young girl money for oral sex.
Coria-Granados asked M. if she wanted to touch his penis and, when she said
“no,” Coria-Granados asked her if she was sure. Coria-Granados then put his
hand on M.’s thigh, slid his hand up her leg, and asked her if that made her “feel
weird.”
5. Texting to M.
¶24 Starting in 2015, and during M.’s freshman and sophomore years of
high school, Coria-Granados sent M. sexually explicit text messages. As
examples, the text messages Coria-Granados wrote to M. stated that he watched
pornography and masturbated, and Coria-Granados asked M. whether she had
engaged in sex. Coria-Granados instructed M. to delete each text, and M. did so
because “she did not want to get into trouble.”
¶25 In the next sections, we discuss the three steps of the Sullivan
analysis in the context of this appeal.
C. Step One – Permissible Purpose.
¶26 As noted, the first step asks whether the party (here, the State) 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). “As long as the State and circuit court have articulated at least
8
No. 2019AP1989-CR
one permissible purpose for which the other-acts evidence was offered and
accepted,” this step is satisfied. Marinez, 331 Wis. 2d 568, ¶25.
¶27 The circuit court recognized this as the first step in the Sullivan
analysis. The circuit court’s only further reference to this step was: “Why they
would be admitted, purpose, is not an issue.”
¶28 In briefing in this court, Coria-Granados does not dispute this
determination of the circuit court and, in effect, Coria-Granados concedes that the
State met its burden regarding this step and that the circuit court’s ruling was in
favor of the State concerning the first step of the Sullivan analysis. Schlieper v.
DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (stating that a
proposition not disputed on appeal may be taken as admitted).
D. Step Two – Relevance.
¶29 We now consider the second step in the Sullivan analysis; that is, an
assessment of whether the evidence regarding the other acts is relevant under WIS.
STAT. § 904.01.6 Sullivan, 216 Wis. 2d at 772; Wisconsin v. Payano, 2009 WI
86, ¶67, 320 Wis. 2d 348, 768 N.W.2d 832 (citing Davidson, 236 Wis. 2d 537,
¶35; 7 DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE,
§ 404.6 (3d ed. 2008)). Evidence of other acts is “inherently relevant to prove
character” and, as a result, the issue is whether the other act is relevant to anything
other than to prove character. Payano, 320 Wis. 2d 348, ¶67 (citing DANIEL D.
6
WISCONSIN STAT. § 904.01 states: “Definition of ‘relevant evidence[.]’ ‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.”
9
No. 2019AP1989-CR
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)).
¶30 There are two relevancy considerations within this second step. The
first consideration is whether the other-acts evidence relates to a fact or
proposition that is of consequence to the determination of the action. Id., ¶68.
The second consideration is whether the evidence is probative; in other words,
whether the other-acts evidence has the tendency to make a consequential fact or
proposition more or less probable than it would be without that evidence. Id.
(citing BLINKA, WISCONSIN EVIDENCE, § 404.6 (3d ed.); Sullivan, 216 Wis. 2d at
772). We next discuss each relevancy consideration.
1. The Other-Acts Evidence Relates to a Fact or Proposition of Consequence.
¶31 In discussing this first relevancy consideration, a court’s attention
must be focused on the pleadings and contested issues in the case. Id., ¶69. The
pleadings set forth the elements of the charges. Id. (citing Sullivan, 216 Wis. 2d
at 785-86 for the following proposition: “The substantive law determines the
elements of the crime charged and the ultimate facts and links in the chain of
inferences that are of consequence to the case.”).
¶32 For Coria-Granados to be convicted of the charged offense
concerning E., the State must prove that he attempted to touch E.’s vagina for the
purpose of his own sexual gratification. See WIS. STAT. §§ 948.02(1)(e) and
948.01(5) (2015-16). Accordingly, with regard to that charge, the facts and
propositions of consequence are whether: (1) Coria-Granados attempted to touch
E.’s vagina; and (2) he did so for the purpose of his own sexual gratification. To
secure a conviction on the charged offense concerning M., the State must prove
that Coria-Granados touched M.’s bottom without her consent for his own sexual
10
No. 2019AP1989-CR
gratification. See WIS. STAT. § 940.225(3m) and (5)(b) (2015-16). With regard to
that charge, the facts and propositions of consequence are whether: (1) Coria-
Granados grabbed M.’s bottom without her consent; and (2) he did so for the
purpose of his own sexual gratification.
¶33 Coria-Granados does not dispute the State’s assertions that the other-
acts evidence relates to facts and propositions of consequence to the determination
of this action, and we deem that a concession on this point by Coria-Granados.
See Schlieper, 188 Wis. 2d at 322.
¶34 Accordingly, the State has met its burden to show that the five other
acts are related to facts and propositions of consequence in this action.7
2. Is the Other-Acts Evidence Probative?
¶35 The second relevancy consideration is whether the evidence is
probative; that is, whether the other-acts evidence has the tendency to make a fact
or proposition of consequence in this action more or less probable than it would be
without the evidence. Payano, 320 Wis. 2d 348, ¶68. This “is a common sense
determination based less on legal precedent than life experiences.” Id., ¶70
(quoting BLINKA, WISCONSIN EVIDENCE, § 404.6 (3d ed.)) (citing State v. Pharr,
115 Wis. 2d 334, 344, 340 N.W.2d 498 (1983)). Our supreme court instructs that,
7
Whether the State has met its burden on this first relevancy consideration is usually
reviewed by this court under the erroneous exercise of discretion standard. See State v. Payano,
2009 WI 86, ¶79, 320 Wis. 2d 348, 768 N.W.2d 832. However, at the only point in its ruling in
which relevance was mentioned, the circuit court stated: “If there would be any kind of
corroboration, even with the outside circumstances involving any of these, it would be relevant.”
However, immediately after stating that the court said: “Relevance is not the issue.” In light of
the circuit court’s apparently contradictory statements about relevance, and because Coria-
Granados does not dispute the State’s position on this first relevancy consideration, we do not
defer to the circuit court’s decision on this question.
11
No. 2019AP1989-CR
in determining if other-acts evidence is probative, a court is to consider 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.’” State v. Dorsey, 2018 WI 10, ¶49, 379 Wis. 2d 386, 906 N.W.2d 158(alteration in the original) (quoting Sullivan, 216 Wis. 2d at 786). However, our
supreme court also instructs that dissimilar events will sometimes be probative.
See Payano, 320 Wis. 2d 348, ¶70; see also Pharr, 115 Wis. 2d at 346(“Relevancy is not determined by resemblance to, but by the connection with,
other facts.” (quoted source omitted)). In addition, evidence of other acts is
probative if the evidence “tends to undermine an innocent explanation for an
accused’s charged criminal conduct.” Sullivan, 216 Wis. 2d at 784. And, as
discussed, the greater latitude rule applies to the relevancy analysis. See Marinez,
331 Wis. 2d 568, ¶20.
¶36 For purposes of the second relevancy consideration, Coria-Granados
does not dispute the probity of the Milwaukee incident, the soccer match incident,
or the thigh incident. Instead, Coria-Granados’s sole argument regarding this
stage of the analysis is that the bra incident and the text messages are so dissimilar
to the charged acts that a jury will consider those acts only for the improper
purpose of assigning character or propensity evidence against him.8
8
At this second consideration of the relevancy analysis, we usually determine if the
circuit court has erroneously exercised its discretion in ruling on this point. See, e.g., id., ¶79.
However, other than the apparently contradictory statements regarding relevance from the circuit
court mentioned earlier, the circuit court did not make any ruling concerning this portion of the
analysis, and Coria-Granados concedes as much. If the circuit court fails to articulate its
reasoning, an appellate court may review the ruling independently to determine whether there is
any reasonable basis for the circuit court’s discretionary decision. State v. Davidson, 2000 WI
91, ¶53, 236 Wis. 2d 537, 613 N.W.2d 606. Accordingly we take up Coria-Granados’s request
that we consider whether a circuit court could reasonably rule in his favor on this question based
on the facts in the record.
12
No. 2019AP1989-CR
¶37 The State argues that the text messages are probative because the
messages sent to M. by Coria-Granados “shed[] light on Coria-Granados’s motive
for his behavior” and “dispenses with any attempt [Coria-Granados] may make to
argue that the girls misunderstood his conduct.” The State asserts that the bra
incident “rightfully” made fifteen-year-old M. “feel uncomfortable” and is
probative of a “chain of inferences” consequential to this case.
¶38 Coria-Granados’s probity argument regarding those two acts begins
with the proposition that the charged acts involved actual or attempted touching of
intimate parts of each girl either in public or in the living room of a residence.
Coria-Granados then contends that, in contrast, the bra incident and M.’s receipt of
the text messages are dissimilar to the charged acts because the bra incident and
receipt of the text messages happened in private rather than when someone else
was or might be around as is alleged with the charged acts. Separately, Coria-
Granados contends that the two other acts are dissimilar to the charged acts
because the bra incident and the text messages were only “inappropriately
sexualized interactions,” and “non-assaultive actions” that even Coria-Granados
describes as “somewhat creepy.”
¶39 From each of those premises, Coria-Granados argues that those two
acts are so dissimilar to the charged acts that the two other acts are not probative
of a fact or proposition of consequence in this action.
¶40 We reject Coria-Granados’s argument and conclude that evidence of
the text messages and the bra incident is probative of a fact or proposition of
consequence in this action. Those acts show a pattern of sexual behavior by
Coria-Granados while he is near or in communication with M., and two
conclusions can be drawn in this context from that fact. First, properly described
13
No. 2019AP1989-CR
by Coria-Granados as “inappropriately sexualized interactions,” evidence of those
two acts makes it more probable that there was an absence of mistake on Coria-
Granados’s part regarding the charged act of grabbing M.’s bottom. See Sullivan,
216 Wis. 2d at 784 (stating that evidence of other acts is probative if the evidence
“tends to undermine an innocent explanation for an accused’s charged criminal
conduct”). Second, those acts are similar in circumstances to the charged acts and
have a connection with the charged acts. See Dorsey, 379 Wis. 2d 386, ¶49
(stating that other acts are probative if near in circumstances to the alleged crime
or a fact sought to be proved); see also Pharr, 115 Wis. 2d at 346 (stating the
proposition that other acts are probative if there is a “connection” with other facts
of consequence to the action). More specifically, in light of Coria-Granados’s
inappropriately sexualized interactions, including sending sexually explicit text
messages to the fifteen-year-old M., and the charged acts of attempting to touch
E.’s vagina and grabbing M.’s bottom, those circumstances are sufficiently similar
and connected and, therefore, probative. This is so because evidence of those acts
increases the probability that the State can prove the element that Coria-Granados
has committed the alleged crimes against E. and M. for the purpose of his own
sexual gratification. See WIS. STAT. §§ 940.225(3m) and (5)(b), 948.01(5), and
948.02(1)(e) (2015-16).
¶41 For those reasons, we conclude that the State has met its burden in
the second relevancy consideration to show that the other-acts evidence is
probative of facts or propositions of consequence relating to the two charged
crimes.
14
No. 2019AP1989-CR
3. Sufficient Evidence of the Other Acts.
¶42 In addition to the two relevancy considerations just discussed, the
parties agree that, as part of the relevancy analysis, there must be a determination
that, pursuant WIS. STAT. § 901.04(2), there is sufficient evidence from which a
jury could find by a preponderance of the evidence that the other acts happened.9
State v. Gray, 225 Wis. 2d 39, 59, 590 N.W.2d 918 (1999). “[I]mplicit in a
decision that evidence of the other act is relevant is a determination that a jury
could reasonably find by a preponderance of the evidence that the defendant
committed the other act.” State v. Gribble, 2001 WI App 227, ¶40, 248 Wis. 2d
409, 636 N.W.2d 488. The question is not whether the judge is convinced by a
preponderance of the evidence that the other act happened, and the judge does not
weigh the evidence. The question is whether a reasonable jury could find by a
preponderance of the evidence that the act occurred. State v. Ringer, 2010 WI 69,
¶32, 326 Wis. 2d 351, 785 N.W.2d 448; see, e.g., Gray, 225 Wis. 2d 39, 59-60.
This is a question of law that this court reviews de novo. Gribble, 248 Wis. 2d
409, ¶40.
¶43 The State contends that the circuit court never decided if a jury could
reasonably find that these five other acts happened. From that, the State argues
that the circuit court erroneously exercised its discretion by failing to rule on this
issue. Coria-Granados contends that the circuit court did not as part of this step
9
WISCONSIN STAT. § 901.04(2) states: “RELEVANCY CONDITIONED ON FACT. When the
relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it
upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment
of the condition.”
15
No. 2019AP1989-CR
conclude that no reasonable jury could find that these incidents happened.10
Because it helps to frame our analysis of this issue, we now consider pertinent
statements of the circuit court in order to determine if the circuit court ruled on
this question.
¶44 The circuit court, at the beginning of its ruling on the admissibility
of the other-acts evidence, recognized the three steps in the Sullivan analysis and
the greater latitude rule. After that, during its discussion of each of the five
alleged other acts until the end of the circuit court’s ruling, it is not entirely clear
which step of the Sullivan analysis the circuit court was analyzing. In its ruling,
the circuit court did not explicitly recognize that the question of whether a jury
could reasonably find that the other acts occurred is part of step two of the
Sullivan analysis. Nonetheless, there is a sufficient basis in the record to conclude
that the circuit court took up this specific question.
¶45 The circuit court stated, as part of its consideration of each of the
five purported other acts: “I should just point out that this analysis is much easier
when one has a conviction, for obvious reasons; there is a clarity of the facts and
we don’t have any question about whether something happened or did not
happen.” Later, while discussing the five other acts in the aggregate, the circuit
court stated: “There is, frankly, simply not enough in any of this to say anything
more than this possibly happened.” Near the conclusion of its ruling, the circuit
court stated: “If there would be any kind of corroboration, even with the outside
circumstances involving any of these, it would be relevant.” However, as noted
10
Instead, as will be discussed later in this opinion, Coria-Granados contends that the
determinations of the circuit court discussed in this section concern step three of the Sullivan
analysis.
16
No. 2019AP1989-CR
earlier, immediately after saying that the circuit court said: “Relevance is not the
issue.” Admittedly, with that last quoted sentence from the circuit court, one
could be unsure if the circuit court specifically took up the question of whether a
jury could reasonably find that the other acts occurred. But, on balance, the record
shows that the circuit court did rule on this question and concluded that a
reasonable jury could not find by a preponderance of the evidence that the five
other acts happened.
¶46 As discussed, whether there is sufficient evidence for a jury to
reasonably find that any of these five other acts happened is a question of law that
this court reviews de novo. See id. For context, and because it will also inform
our discussion at the next step of the Sullivan analysis, we will conduct our
independent review of this issue based on purported deficiencies in the other-acts
evidence mentioned by the circuit court.11
¶47 First, the circuit court concluded that there is no “direct evidence”
that any of the five other acts occurred. Our supreme court has recognized that
testimony is “direct evidence.” In State v. Nieves, 2017 WI 69, 376 Wis. 2d 300,
897 N.W.2d 363, the supreme court stated: “David’s testimony was salient; it was
detailed, direct evidence of Nieves’ involvement in the crimes for which he was
convicted.” Id., ¶53 (emphasis added); see also id., ¶58 (“David’s testimony was
powerful; it provided the jury with direct evidence of the crimes for which Nieves
was convicted.” (emphasis added)). A leading treatise comes to the same
conclusion:
11
For purposes of this discussion, we will assume, as have the parties and the circuit
court, that E., M., or another person will testify before a jury consistent with the proffers of
evidence from the State in support of its motion to admit the other acts.
17
No. 2019AP1989-CR
The personal knowledge requirement presents a question of
conditional relevancy under WIS. STAT. § 901.04(2): could
a jury acting reasonably find that the witness had personal
knowledge? The evidence may consist of the witness’s
own testimony about having personally observed the matter
or it can be inferred from the surrounding circumstances.
In short, the requirement is exceedingly modest. A witness
who asserts that [he or] she “saw” the event is sufficient.
Lies or innocent mistakes are for the jury to ferret out.
7 DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE,
§ 602.1 (4th ed. 2017) (footnote omitted).
¶48 As noted, the State will have witnesses testify before the jury
concerning each purported other act. Therefore, the circuit court erred in
concluding that there is no direct evidence that the five other acts happened.12
¶49 Second, the circuit court concluded that the other acts did not happen
because there is no corroboration of the statements of E. and M. about those acts:
Just one piece of corroboration is all I would be – have
been looking for. Just corroborate for me that someone
went to a salon in Milwaukee. Just corroborate for me that
everyone was at a particular soccer field at a particular
game. Just corroborate for me that an app even exists on a
phone. None of this – none of this was done.
“It’s just more he said/she said.”13
¶50 However, it is not necessary to have the testimony of E. or M.
corroborated in order for the jury to conclude that the other acts occurred. Indeed,
12
Because there is direct evidence of each of the five other acts, we need not consider
the circuit court’s conclusion that there is no circumstantial evidence that any of the five events
occurred.
13
For purposes of this part of our analysis, we will assume, without deciding, that there
is no corroboration of the statements of E. and M. about the purported other acts.
18
No. 2019AP1989-CR
jurors are instructed on this point: “The weight of evidence does not depend on
the number of witnesses on each side. You may find that the testimony of one
witness is entitled to greater weight than that of another witness or even of several
other witnesses.” WIS JI—CRIMINAL 190. Consistent with that, our supreme
court has stated:
In addition, the crucial element of his testimony, i.e., that
he did not shoot at defendant as he was leaving the tavern,
is not corroborated by any of the other state’s witnesses.
However, the mere fact of numbers is not in and of itself
sufficient to render the testimony of a witness inherently
incredible. Looking at Kyles’ testimony alone, it is not
controverted by any physical evidence or facts of definite
certainty. It is possible that the incident could have
occurred just as Kyles said it did.
Banks v. State, 51 Wis. 2d 145, 153, 186 N.W.2d 250 (1971); see also Ruiz v.
State, 75 Wis. 2d 230, 234, 249 N.W.2d 277 (1977) (“The jury, as the judge of
credibility, had the right to believe the testimony of Garcia and to disbelieve the
unanimous testimony of witnesses to the contrary.”).
¶51 Moreover, the Wisconsin Supreme Court has held that the greater
latitude rule applies to the Sullivan analysis. See State v. Hurley, 2015 WI 35,
¶59, 361 Wis. 2d 529, 861 N.W.2d 174. Our supreme court has stated that there
may not be corroboration of allegations of sexual assault against a child. “Child
sexual assaults are difficult crimes to detect and to prosecute, as typically there are
no witnesses except the victim and the perpetrator.” Id., ¶33. For those reasons,
any perceived lack of corroboration about the other-acts evidence is “for the jury
to ferret out” based on cross-examination and argument. BLINKA, WISCONSIN
EVIDENCE, §602.1 (4th ed.). Accordingly, the circuit court erred in concluding
that a reasonable jury could not find that the other acts happened based on a lack
of corroboration.
19
No. 2019AP1989-CR
¶52 Third, in support of its conclusion that there is insufficient evidence
that the five other acts happened, the circuit court relied in part on the facts that,
for each other act: (1) the police were not contacted at or near the time of the acts;
(2) there were no charges brought by the State based on those alleged acts of
Coria-Granados; and (3) Coria-Granados was not convicted of any crimes related
to the other acts. Each of those facts mentioned by the circuit court is beside the
point.
¶53 We are aware of no authority, and the parties cite to none, that
requires a near-contemporaneous report to law enforcement about an alleged other
act for evidence of that act to be admissible. Indeed, our supreme court has
recognized that child sexual assaults may not be reported for some time after an
event: “The child may have been threatened, or, as is often the case, may harbor a
natural reluctance to come forward. These circumstances many times serve to
deter a child from coming forth immediately.” Hurley, 361 Wis. 2d 529, ¶33
(internal citation omitted). In addition, the alleged other act need not be a crime or
lead to a conviction. See Gribble, 248 Wis. 2d 409, ¶40 (“It is not necessary for
the prior evidence to be in the form of a conviction, and other[-]acts evidence may
consist of uncharged offenses.”); Gray, 225 Wis. 2d at 59 (“It is not necessary that
prior-crime evidence be in the form of a conviction; evidence of the incident,
crime or occurrence is sufficient.” (quoted source omitted)); State v. Johnson, 74
Wis. 2d 26, 41, 245 N.W.2d 687 (1996) (noting that the other acts need not be
wrongful or criminal); BLINKA, WISCONSIN EVIDENCE, §404.602 (4th ed.) (“Nor
must it constitute a ‘bad’ act (although it often is).”). Therefore, the failure to
promptly report the other acts to police, and that Coria-Granados has not been
charged or convicted of a crime related to those other acts, do not support the
circuit court’s ruling on this issue.
20
No. 2019AP1989-CR
¶54 Fourth, the circuit court criticized the other-acts evidence proffered
by the State because of what the circuit court perceived as a lack of investigation.
The circuit court gave examples of the purported lack of investigation by law
enforcement and then stated, “And I understand that [the other acts] are not the
charges, that the investigation centered around the charges. I do understand that.
But you cannot then ask for admission of the evidence [regarding the five other
acts] when a full and complete investigation has not been done.” The circuit court
cited no authority, and neither does Coria-Granados, that there is a requirement of
a “full and complete investigation” by law enforcement concerning each purported
other act as a prerequisite to admission of evidence about the other acts and a
conclusion that a jury could find that the acts happened. Instead, as already noted,
weaknesses in the evidence are subject to cross-examination and argument to the
jury.
¶55 It is required only that a jury acting reasonably could find by a
preponderance of the evidence that the five other acts occurred; a circuit court is
not required to conclude that a jury must so find. See Gray, 225 Wis. 2d at 59.
For those reasons discussed, there is sufficient evidence that could allow a
reasonable jury to find by a preponderance of the evidence that each of the five
other acts happened, and the circuit court erred in concluding otherwise.
¶56 Therefore, the State has satisfied the second step of the Sullivan
analysis regarding the admissibility of the other-acts evidence.
E. Step Three - Probative Value is Not Outweighed by Jury
Confusion or Unfair Prejudice.
¶57 The burden is on Coria-Granados at the third step in the Sullivan
analysis. See Marinez, 331 Wis. 2d 568, ¶19. The inquiry is whether the party
21
No. 2019AP1989-CR
opposing the introduction of the evidence, here, Coria-Granados, demonstrates
that the probative value of the other-acts evidence is substantially outweighed by
one or more reasons stated in WIS. STAT. § 904.03.14 Sullivan, 216 Wis. 2d at
773; Payano, 320 Wis. 2d 348, ¶80. “The term ‘substantially’ indicates that if the
probative value of the evidence is close or equal to its unfair prejudicial effect, the
evidence must be admitted.” Payano, 320 Wis. 2d 348, ¶80 (quoting State v.
Speer, 176 Wis. 2d 1101, 1115, 501 N.W.2d 429 (1993)). In other words, “[t]he
bias is [] squarely on the side of admissibility.” Dorsey, 379 Wis. 2d 386, ¶54
(alterations in the original) (quoting Marinez, 331 Wis. 2d 568, ¶41).
¶58 In addition, the greater latitude rule applies to this step of the
analysis. See id. at ¶¶26, 33; Marinez, 331 Wis. 2d 568, ¶16.
[This] more liberal standard applies in child sexual assault
cases because of “the difficulty sexually abused children
experience in testifying, and the difficulty prosecutors have
in obtaining admissible evidence in such cases.” Another
reason for this rule, which is particularly relevant in this
case, “is the need to corroborate the victim’s testimony
against credibility challenges.”
Marinez, 331 Wis. 2d 568, ¶20 n.15 (internal citation omitted) (quoting Davidson,
236 Wis. 2d 537, ¶¶40, 42).
¶59 We review the circuit court’s decision on the third step of the
Sullivan analysis for an erroneous exercise of discretion. Id., ¶17. It is an
erroneous exercise of discretion if the circuit court fails to delineate facts that
influence its decision on the admissibility of the evidence. Payano, 320 Wis. 2d
14WISCONSIN STAT. § 904.03 states: “Although relevant, evidence may be excluded 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.”
22
No. 2019AP1989-CR
348, ¶¶41, 51. However, if the circuit court fails to articulate its reasoning, this
court may review the ruling independently to determine whether there is any
reasonable basis for the circuit court’s discretionary decision. Davidson, 236 Wis.
2d 537, ¶53. It is also an erroneous exercise of the circuit court’s discretion if the
facts of record fail to support the circuit court’s decision on the admission of
evidence. Payano, 320 Wis. 2d 348, ¶51.
¶60 Coria-Granados argues that the probative value of the other-acts
evidence is substantially outweighed by the danger of confusion of the issues for
the jury, and the danger of unfair prejudice. We will address each of Coria-
Granados’s arguments in turn, but we begin our discussion of step three of the
Sullivan analysis by considering the meaning of the phrase “probative value.” We
do so to correct misstatements about the meaning of that term in Coria-Granados’s
briefing in this court.
1. Probative Value.
¶61 Concerning the third step of the Sullivan analysis, our supreme court
has held that “probative value” has the following meaning:
Essentially, probative value reflects the evidence’s degree
of relevance. Evidence that is highly relevant has great
probative value, whereas evidence that is only slightly
relevant has low probative value. See [BLINKA, WISCONSIN
EVIDENCE, § 404.6 (3d ed.)] (“The more attenuated its
relevancy, the lower its probative value....”). The main
consideration in assessing probative value of other[-]acts
evidence “is the extent to which the proffered proposition is
in substantial dispute”; in other words, “how badly needed
is the other act evidence?” Id.
Id., ¶81. Consistent with that, our supreme court has stated:
The other[-]acts evidence was properly admitted in Pharr
because the evidence was necessary to the prosecution’s
23
No. 2019AP1989-CR
theory of the case, and it provided an alternative
explanation to the defendant’s claimed innocence. Because
the other[-]acts evidence was so important to the resolution
of the case, the court could not say that its probative value
was substantially outweighed by its danger of unfair
prejudice.
Id., ¶85 (internal citations omitted).
¶62 Contrary to those statements from the supreme court, Coria-
Granados attempts to insert a consideration of the strength of the other-acts
evidence, as opposed to the importance of that evidence, into this third step. More
specifically, Coria-Granados argues that, within the third step of the Sullivan
analysis, evidence that is “weakly supported” and “lacking in corroboration” has
“low” probative value. Coria-Granados cites only Davidson, 236 Wis. 2d 537,
¶77, for that proposition. There, the supreme court briefly noted that, when other-
acts evidence is based on a criminal conviction for that act, the “high degree of
reliability of the evidence … increased its probative value.” Id. From that
sentence, Coria-Granados then attempts a significant leap and contends that the
supreme court in Davidson “implicitly” held that, when other-acts evidence is
“unreliable,” the “probative value of the other act is correspondingly decreased.”
We reject Coria-Granados’s contention for the following reasons.
¶63 The observation in Davidson that other-acts evidence based on a
criminal conviction might be more reliable than an allegation by a witness does
not “implicitly” create a wholesale re-definition of the meaning of the phrase
“probative value” for purposes of this step of the Sullivan analysis as Coria-
Granados argues. Coria-Granados’s argument regarding the meaning of
“probative value” is directly contradicted by the supreme court’s holdings already
noted. See, e.g., Payano, 320 Wis. 2d 348, ¶81 (“Evidence that is highly relevant
has great probative value, whereas evidence that is only slightly relevant has low
24
No. 2019AP1989-CR
probative value.”). There is nothing in Davidson, or any other authority, which
leads us to the conclusion that our supreme court has done away with its definition
of “probative value” in this context and replaced it with a definition that requires a
discussion of the strength of the other-acts evidence.
¶64 The question of whether a reasonable jury could find by a
preponderance of the evidence that the other act happened is part of step two of
the Sullivan analysis and separate from whether the events have “probative value”
as considered in step three. The probative value, as discussed in this third step,
does not take up the strength of the other-acts evidence and whether a jury could
reasonably give weight to that evidence. The question of “probative value” in step
three of the Sullivan analysis presents an inquiry different than the WIS. STAT.
§ 901.04(2) question of whether there is sufficient evidence to allow the jury to
hear the other-acts evidence, and it places different demands on the facts and the
analysis. In step three, “probative value” is gauged based on the importance of the
evidence to the State’s case. See, e.g., Payano, 320 Wis. 2d 348, ¶96
(“Consequently, because the other[-]acts evidence was absolutely essential to the
State’s case, its probative value was compelling.”). Coria-Granados attempts to
alter the analysis of step three away from the reason to admit the other-acts
evidence and its importance to the State’s case to yet another step that weighs the
strength of the evidence. Coria-Granados’s argument fails in light of clear
pronouncements from our supreme court.15
15
In addition to those reasons to reject Coria-Granados’s argument, we observe that
there is nothing in the circuit court’s ruling to show that the circuit court accepted Coria-
Granados’s view that the “probative value” of other-acts evidence as delineated in step three
means that there is a sliding scale of strength of that evidence. Instead, as already discussed, the
circuit court considered, as part of step two regarding relevancy, whether a reasonable jury could
find that the other acts happened.
(continued)
25
No. 2019AP1989-CR
¶65 With the applicable definition of “probative value” confirmed, we
next discuss whether the probative value of the other-acts evidence is, as Coria-
Granados argues, substantially outweighed by the danger of jury confusion or
unfair prejudice. For context, we note that the State contends that the other-acts
evidence has probative value because such evidence helps to establish that: (1) the
charged acts of Coria-Granados were not mistakes; and (2) the charged acts were
done for “sexual purposes.” In addition, according to the State, the other-acts
evidence helps to bolster the credibility of E. and M. because the other acts make
it less likely that they invented or misunderstood Coria-Granados’s behavior.
2. Jury Confusion.
¶66 The circuit court mentioned potential jury confusion because of the
introduction of the other-acts evidence at only one point in its decision. We
italicize the pertinent words in the following sentence: “It’s just more he said/she
said, and it will, aside from the fact that it will completely confuse the jury as to
what it is that they have to decide, which act is at issue in the trial, there is no
way, given the lack of evidence, that the defense can even take any steps toward
figuring out a defense.” (Emphasis added.) From those words in one sentence,
Coria-Granados argues as follows in support of the circuit court’s ruling, and we
reject each of Coria-Granados’s arguments.
Further, if we would conclude that “probative value” in step three of the Sullivan
analysis concerns the strength of that evidence (and we do not come to that conclusion), we
would reject Coria-Granados’s contention that the other-acts evidence has “low” probative value.
Coria-Granados’s arguments on that point are identical to the determinations of the circuit court
regarding whether a reasonable jury could find by a preponderance of the evidence that the other
acts happened. As noted, we have already rejected those determinations of the circuit court.
26
No. 2019AP1989-CR
¶67 First, Coria-Granados contends that the circuit court weighed the
danger of jury confusion against the probative value of the other-acts evidence.
We reject that contention because the record does not show that the circuit court
weighed potential jury confusion against the probative value of the other-acts
evidence.
¶68 Second, Coria-Granados asserts that the circuit court concluded that
there would be jury confusion because the introduction of other-acts evidence in
this case would cause there to be “five mini-trials.” However, that was not a basis
for the circuit court’s decision. While the circuit court was concerned about jury
confusion, the record does not show that the circuit court had concerns about the
amount of evidence regarding the alleged other acts such that there would be
multiple trials going on at the same time before the jury.
¶69 Third, Coria-Granados argues that there is “the potential” for jury
confusion because the other acts involve the purported victims of the charged
offenses, and the other acts happened at about the same time as the charged
offenses. But, after stating that proposition, Coria-Granados gives no reasoning to
support his argument. We need not consider contentions unsupported by
reasoning. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct.
App. 1992). In addition, the mere fact that the other acts involve the purported
victims of the charged offenses cannot, by itself, be a basis to exclude the evidence
because of potential jury confusion. If that were the case, other-acts evidence
involving victims of the charged offenses would be excluded as a matter of law,
and Coria-Granados gives us no reason to conclude that is the law in Wisconsin.
¶70 Fourth, the record does not support Coria-Granados’s contention that
there would be jury confusion if the other-acts evidence is admitted. The bra
27
No. 2019AP1989-CR
incident and the text messages from Coria-Granados to M. are different than the
events alleged in the two charges against Coria-Granados, and testimony about
those distinct events is unlikely to confuse a typical juror. The Milwaukee
incident in which E. was in a car alone with Coria-Granados when he allegedly
grabbed her breast and exposed his penis is factually different from the charged
offense regarding E. which allegedly took place at a residence where Coria-
Granados attempted to put his hand in E.’s vagina. The same is true with the thigh
incident concerning M. as compared to the charged offense in which M. is the
alleged victim. The soccer match incident in which Coria-Granados allegedly
touched M.’s bottom is, as conceded by the State, “strikingly similar to the
charged offense” regarding M. But, in short, none of the alleged other acts are so
similar to the charges, or in such large numbers, that a typical juror cannot
understand the difference between the charged acts and the other-acts evidence.
¶71 Importantly, if there is risk of confusion by the jury because of the
introduction of other-acts evidence, there are processes available to the circuit
court to mitigate that risk. The circuit court can give a jury instruction
emphasizing that the other-acts evidence is used for a specific purpose and is
separate from the charges against Coria-Granados. See State v. Shillcutt, 116 Wis.
2d 227, 238, 341 N.W.2d 716 (Ct. App. 1993) (“[T]he cautionary instruction read
to the jury prior to introduction of [other acts] testimony sufficiently tempered the
prejudicial effect of this evidence so as to allow its admissibility. If an admonitory
instruction is properly given by the court, prejudice to a defendant is presumed
erased from the jury’s mind.”); see also WIS. STAT. § 901.06 (“When evidence
which is admissible … for one purpose but not admissible … for another purpose
is admitted, the judge, upon request, shall restrict the evidence to its proper scope
and instruct the jury accordingly.”). The circuit court can limit potential jury
28
No. 2019AP1989-CR
confusion by streamlining testimony. See Payano, 320 Wis. 2d 348, ¶99
(referring to that process as “editing the evidence” (quoted source omitted));
BLINKA, WISCONSIN EVIDENCE, § 404.604 (3d ed.) (“The pruning of proof may
take the form of limiting the number of witnesses and restricting their testimony
by excluding inflammatory or extraneous details.”). Finally, the circuit court may
mitigate potential risk of jury confusion by restricting argument regarding the
other-acts evidence to its proper purpose. Payano, 320 Wis. 2d 348, ¶¶99, 101.
¶72 For those reasons, Coria-Granados has not met his burden to
establish that the danger of jury confusion of the issues is substantially outweighed
by the probative value of the other-acts evidence and, as a result, the circuit court
erroneously exercised its discretion in ruling that introduction of the other-acts
evidence is barred on that basis.
3. Probative Value and Unfair Prejudice.
¶73 Coria-Granados argues that we should affirm the circuit court’s
ruling that unfair prejudice substantially outweighs the probative value of the
other-acts evidence. We disagree.
¶74 In the context of the third step of the Sullivan analysis, our supreme
court has stated: “The determination of unfair prejudice must be made with great
care because ‘[n]early all evidence operates to the prejudice of the party against
whom it is offered.... The test is whether the resulting prejudice of relevant
evidence is fair or unfair.’” Id., ¶88 (alteration in the original) (quoted source
omitted). In Sullivan, the supreme court defined unfair prejudice as follows:
Unfair prejudice results when the proffered
evidence has a tendency to influence the outcome by
improper means or if it appeals to the jury’s sympathies,
arouses its sense of horror, provokes its instinct to punish
29
No. 2019AP1989-CR
or otherwise causes a jury to base its decision on something
other than the established propositions in the case.
Sullivan, 216 Wis. 2d at 789-90. Put another way, unfair prejudice in the context
of this step of the Sullivan analysis is that the jury will draw improper propensity
inference against the defendant. See State v. Fishnick, 127 Wis. 2d 247, 261-62,
378 N.W.2d 272 (1985) (stating that the danger of unfair prejudice when using
other-acts evidence “is the potential harm in a jury’s concluding that because an
actor committed one bad act, he necessarily committed the crime with which he is
now charged”).
¶75 Coria-Granados argues that the circuit court concluded that there is
unfair prejudice “because the vagueness of the evidence of the other acts renders it
difficult to impossible for the defense to contradict said allegations.”
¶76 We now consider whether the circuit court came to that conclusion
and highlight pertinent portions of the circuit court’s ruling. After discussing what
it considered to be weaknesses in the other-acts evidence, the circuit court stated:
It’s just more he said/she said, and it will, aside from the
fact that it will completely confuse the jury as to what it is
that they have to decide, which act is at issue in the trial,
there is no way, given the lack of evidence, that the defense
can even take any steps toward figuring out a defense.
(Emphasis added.)
¶77 The circuit court later stated:
The prejudice, unfair prejudice, far outweighs the
probative value in this case. If there would be any kind of
corroboration, even with the outside circumstances
involving any of these, it would be relevant. Relevance is
not the issue. Why they would be admitted, purpose, is not
an issue. It’s just the vagaries around these are too great
to put the defense in a position of defending not only the
charges, but these additional allegations.
30
No. 2019AP1989-CR
(Emphasis added.) The basis for the circuit court’s conclusion that there would be
“unfair prejudice” if the other-acts evidence is admitted is not entirely clear. But
we will assume, as Coria-Granados argues, that the circuit court equated “unfair
prejudice” with Coria-Granados’s possible difficulty in defending against the
other-acts evidence.
¶78 We reject Coria-Granados’s argument that there is unfair prejudice
on that basis for three reasons.
¶79 First, Coria-Granados gives us no valid reason to define “unfair
prejudice” in that manner and gives us no authority that defines “unfair prejudice”
as a possible difficulty of a defendant to rebut other-acts evidence. Second, an
explicit premise of Coria-Granados’s argument is that the other-acts evidence is
weak. We have already discussed why the circuit court erred in concluding that
there was a “lack of evidence” and “vagaries around” the other-acts evidence, and
we do not repeat that discussion here. Suffice it to say that any argument about
unfair prejudice that includes weakness of the evidence of the five other acts fails
because any such weakness may be tested at trial by cross-examination and
argument to the jury rather than exclusion of the evidence. Third, Coria-Granados
never explains to this court how his defense against the other-acts evidence has
been made difficult in this context. Instead, Coria-Granados simply states that
conclusion without any reasoning, and we reject his argument on that basis. See
Pettit, 171 Wis. 2d at 646-47.
¶80 Therefore, we reject Coria-Granados’s argument that there is unfair
prejudice based on purported difficulty for him to defend against the other-acts
evidence.
31
No. 2019AP1989-CR
¶81 Finally, Coria-Granados relies on an assertion that he concedes was
not part of the circuit court ruling and asks this court to affirm the circuit court’s
decision for this reason. More particularly, he argues that the other-acts evidence
will “improperly influence” the jury to believe he is a person of “bad character,”
and the jury may convict him on that basis rather than based on evidence about the
charged offenses. This concern comes within the definition of “unfair prejudice”
discussed above. However, we conclude that this concern about unfair prejudice
does not substantially outweigh the probative value of the other-acts evidence.
The State asserts that there is probative value to the other-acts evidence because it
helps establish that the charged acts against Coria-Granados were not a mistake on
his part and that the charged acts were done by Coria-Granados for his own sexual
gratification, and the other-acts evidence helps to bolster the credibility of E. and
M. Those are all important facets of the State’s case and reasonably necessary for
the presentation of the prosecution’s case. “[A] witness’s credibility is always
‘consequential’ within the meaning of WIS. STAT. § 904.01.” Dorsey, 379 Wis. 2d
386, ¶50 (quoting Marinez, 331 Wis. 2d 568, ¶34). “[C]redibility is particularly
probative in cases that come down to he-said-she-said.” Id. In addition, the
greater latitude rule applies at this third step of the Sullivan analysis and, as such,
we must consider the difficulty of prosecuting child sexual assault cases and the
importance of corroborating victims’ testimony against credibility challenges.
Finally, while there is a risk that must be mitigated, the tools available to a circuit
court in giving a limiting instruction, streamlining evidence, and limiting argument
(as we discussed above regarding mitigation of jury confusion) are sufficient to
appropriately lessen that risk. See Marinez, 331 Wis. 2d 568, ¶41. In light of
those factors, and our supreme court’s admonition that “if the probative value of
the evidence is close or equal to its unfair prejudicial effect, the evidence must be
admitted,” Payano, 320 Wis. 2d 348, ¶80 (emphasis omitted) (quoted source
32
No. 2019AP1989-CR
omitted), the other-acts evidence is admissible even when balanced against the risk
that the jury may use such evidence to find that Coria-Granados has committed the
charged offenses.
¶82 For those reasons, Coria-Granados has failed to meet his burden to
establish that the probative value of the other-acts evidence is substantially
outweighed by the danger of either jury confusion or unfair prejudice and, as a
result, the circuit court erroneously exercised its discretion in barring the other-
acts evidence on those bases.
¶83 In sum, we conclude that the other-acts evidence is admissible under
the three steps of the Sullivan analysis.16
II. Request to Admit E.’s Recorded Audiovisual Statement.
¶84 The State raises two purported errors of the circuit court concerning
the State’s request to admit E.’s recorded audiovisual statement pursuant to WIS.
STAT. § 908.08(4). Those issues are: (1) Did the circuit court commit an error of
law in rejecting the State’s request to admit the recorded statement; and (2) Were
the circuit court’s findings of fact, and the circuit court’s weighing of the facts and
statutory factors, an erroneous exercise of discretion? For the following reasons,
we reject the State’s arguments.
16
We emphasize that our decision on the admissibility of the other-acts evidence is
based on the state of the record at this time. The circuit court’s discretion regarding the
admissibility of the other-acts evidence on remand is not constrained by this opinion based on
material facts not currently in the record that may come to light after this matter is returned to the
circuit court.
33
No. 2019AP1989-CR
A. Standard of Review and Governing Principles.
¶85 Whether a recorded statement of a child between the ages of twelve
and sixteen17 is admissible under WIS. STAT. § 908.08(4) is a decision committed
to the sound discretion of the circuit court. See State v. Tarantino, 157 Wis. 2d
199, 210-11, 458 N.W.2d 582 (Ct. App. 1990); see also § 908.08(3)(a)1. and 2.
The circuit court’s findings of fact will not be overturned unless those findings are
clearly erroneous. Tarantino, 157 Wis. 2d at 211. As with all discretionary
decisions, the circuit court’s ruling will be upheld on appeal so long as the circuit
court examined the relevant facts of record, applied a correct standard of law, and
came to a conclusion that a reasonable judge could reach. See State v.
Wiskerchen, 2019 WI 1, ¶18, 385 Wis. 2d 120, 921 N.W.2d 730.
¶86 The State’s arguments require us to interpret statutes. Questions of
statutory interpretation are questions of law this court reviews de novo. State v.
Stewart, 2018 WI App 41, ¶18, 383 Wis. 2d 546, 916 N.W.2d 188; see also State
v. Mercado, 2021 WI 2, ¶43, ___ Wis. 2d ___, ___ N.W.2d ___ (“Statutory
interpretation begins with the language of the statute.”); State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110(explaining that if the plain language is clear, we stop the inquiry).
¶87 In order to determine whether the audiovisual recording of E.’s
statement should “in the interests of justice” be admitted in evidence, the circuit
court was required to consider the factors in WIS. STAT. § 908.08(4), which state:
17
The parties do not dispute that E. was eleven years old when the statement was
recorded, was thirteen years old when the State sought to admit the statement, and is not yet
sixteen years old.
34
No. 2019AP1989-CR
In determining whether the interests of justice
warrant the admission of an audiovisual recording of a
statement of a child who is at least 12 years of age but
younger than 16 years of age, among the factors which the
court or hearing examiner may consider are any of the
following:
(a) The child’s chronological age, level of
development and capacity to comprehend the significance
of the events and to verbalize about them.
(b) The child’s general physical and mental health.
(c) Whether the events about which the child’s
statement is made constituted criminal or antisocial conduct
against the child or a person with whom the child had a
close emotional relationship and, if the conduct constituted
a battery or a sexual assault, its duration and the extent of
physical or emotional injury thereby caused.
(d) The child’s custodial situation and the attitude
of other household members to the events about which the
child’s statement is made and to the underlying proceeding.
(e) The child’s familial or emotional relationship to
those involved in the underlying proceeding.
(f) The child’s behavior at or reaction to previous
interviews concerning the events involved.
(g) Whether the child blames himself or herself for
the events involved or has ever been told by any person not
to disclose them; whether the child’s prior reports to
associates or authorities of the events have been disbelieved
or not acted upon; and the child’s subjective belief
regarding what consequences to himself or herself, or
persons with whom the child has a close emotional
relationship, will ensue from providing testimony.
(h) Whether the child manifests or has manifested
symptoms associated with posttraumatic stress disorder or
other mental disorders, including, without limitation,
reexperiencing the events, fear of their repetition,
withdrawal, regression, guilt, anxiety, stress, nightmares,
enuresis, lack of self-esteem, mood changes, compulsive
behaviors, school problems, delinquent or antisocial
behavior, phobias or changes in interpersonal relationships.
(i) Whether admission of the recording would
reduce the mental or emotional strain of testifying or
35
No. 2019AP1989-CR
reduce the number of times the child will be required to
testify.
B. The Circuit Court Did Not Commit an Error of Law.
¶88 The State argues that, in ruling on the admissibility of E.’s recorded
audiovisual statement, the circuit court committed two errors of law. We now
address each purported error.
¶89 In ruling on the State’s motion to admit the recording, the circuit
court stated: “First, the child’s chronological age is 13, so she is between ages 12
and 16, which means that the presumption is that the audiovisual recording does
not come in. [In order to admit the statement of E.,] [t]he court must find that it is
in the interest of justice to let it in.” The State argues that the circuit court’s use of
the term “presumption” is an error of law that requires reversal of the circuit
court’s decision. We disagree.
¶90 The circuit court’s use of the term “presumption” in this context may
have been less than exact in that there is no “presumption” specifically stated in
WIS. STAT. § 908.08, and there is no “presumption” recognized in WIS. STAT.
ch. 891 or ch. 903 that relates to the circuit court’s decision about the admissibility
of the recorded statement. However, the use of the word “presumption” by the
circuit court does not lead to the conclusion that the circuit court misunderstood
how § 908.08(4) is applied in these circumstances.
¶91 Neither party questions that E.’s recorded audiovisual statement is
“hearsay.” See WIS. STAT. § 908.01(3) and (4) (defining hearsay statement); see
also Mercado, 2021 WI 2, ¶40 (“As an out-of-court statement, a child’s statement
during a forensic interview is hearsay if it is offered at trial for the truth of the
matter asserted.”). Pursuant to WIS. STAT. § 908.02, hearsay is not admissible
36
No. 2019AP1989-CR
except as provided by the rules of evidence or by statute. See also Mercado, 2021
WI 2, ¶40 (“However, ‘an out-of-court statement, even though hearsay, may be
admissible if it fits within a recognized exception to the hearsay rule.’” (quoting
Virgil v. State, 84 Wis. 2d 166, 185, 267 N.W.2d 852 (1978)). WISCONSIN STAT.
§ 908.08(3) provides in relevant part that “[t]he court ... shall admit the recording
upon finding all of the following: … [t]hat the trial or hearing in which the
recording is offered will commence ... [b]efore the child’s 16th birthday and the
interests of justice warrant its admission under sub. (4).” Sec. 908.08(3)(a)2.
(emphasis added); see also Mercado, 2021 WI 2, ¶41 (“Video-recordings of a
child’s statements are admissible if the child is available to testify and the child’s
statements fall into one of the provisions of []§ 908.08.”). For those reasons, and
regardless of the use of the term “presumption,” the circuit court’s analysis was
correct in that the recorded statement is not admissible in evidence unless and until
the circuit court determines that the provisions of § 908.08(4) have been satisfied.
As a result, the circuit court did not commit an error of law in making that
determination.
¶92 Next, in a non-specific manner, the State argues that the circuit court
committed an error of law in weighing the factors set forth in WIS. STAT.
§ 908.08(4) because the circuit court failed to heed this court’s statement in State
v. Snider, 2003 WI App 172, 266 Wis. 2d 830, 668 N.W.2d 784: “The
legislature’s purpose in enacting [] § 908.08 was to make it easier, not harder, to
employ videotaped statements of children in criminal trials and related hearings.”
Id., ¶13. That statement in Snider is correct regarding the purpose of the
legislature in enacting § 908.08(4). However, that generalized statement about
legislative purpose does not answer the question of whether the factors delineated
in § 908.08(4) have been satisfied in this particular case regarding the
37
No. 2019AP1989-CR
admissibility of E.’s recorded audiovisual statement. That question is answered by
our review of the circuit court’s findings of fact and its weighing of the statutory
factors. Accordingly, while mindful of the legislature’s purpose in enacting
§ 908.08, we reject the State’s argument on that point and next consider whether
the circuit court erroneously exercised its discretion in ruling on the admissibility
of E.’s recorded audiovisual statement.
C. The Circuit Court Did Not Erroneously Exercise its Discretion.
¶93 In arguing that the circuit court erroneously exercised its discretion,
the State asks us to make findings of fact and weigh the factors listed in WIS.
STAT. § 908.08(4). As the basis for this request, Coria-Granados relies on State v.
Jimmie R.R., 2000 WI App 5, ¶39, 232 Wis. 2d 138, 606 N.W.2d 196, for the
proposition that, when the only evidence in question is a video tape, an appellate
court is “in as good a position as” a circuit court to make findings of fact about the
video. We decline the State’s invitation for two reasons. First, our supreme court
has observed that, whether findings of fact drawn from a video recording must be
made by the circuit court (and deferred to by appellate courts), or whether such
findings of fact drawn from a video can be made by an appellate court without
deference to the circuit court’s findings, is an open question that the supreme court
has declined to answer to date. See State v. Reed, 2018 WI 109, ¶51 n.22, 384
Wis. 2d 469, 920 N.W.2d 56. More importantly, and as correctly pointed out by
Coria-Granados, there is no authority that allows this court to weigh statutory
factors in these circumstances as the circuit court was required to do pursuant to
§ 908.08(4).
¶94 The State’s arguments are fairly summarized as contentions about
findings the circuit court could have, but did not, make, and how the court could
38
No. 2019AP1989-CR
have, but did not, weigh the statutory factors. It is not necessary to summarize the
parties’ arguments and the circuit court’s findings and conclusions here. Rather, it
is sufficient to state that we conclude from our review of the circuit court’s ruling
that the circuit court was aware of the applicable statutory factors, carefully
balanced those factors based on findings of fact properly drawn from the
audiovisual recording of E.’s statement, and reached a reasonable conclusion.
That the circuit court could have ruled otherwise is not the question before us.
Rather, after reviewing the circuit court’s ruling and the arguments of the parties,
we conclude that the circuit court’s decision must be affirmed because the court
examined the relevant facts, applied the proper legal standards, and came to a
decision a reasonable judge could reach. See Wiskerchen, 385 Wis. 2d 120, ¶18.
¶95 In sum, we reject the State’s arguments that the circuit court made an
error of law, or erroneously exercised its discretion, in denying the State’s request
to admit the audiovisual recording of E.’s statement.
CONCLUSION
¶96 For those reasons, we reverse in part, and affirm in part, the circuit
court’s order and remand this matter for further proceedings consistent with this
opinion.
By the Court.—Order affirmed in part; reversed in part and cause
remanded for further proceedings.
Not recommended for publication in the official reports.
39