State v. Isabel Ortega, Jr.

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.
July 14, 2020
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. 2019AP306-CR Cir. Ct. No. 2015CF2171
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ISABEL ORTEGA, JR,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Milwaukee
County: DAVID L. BOROWSKI, Judge. Affirmed.
Before Brash, P.J., Blanchard and White, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP306-CR
¶1 PER CURIAM. Isabel Ortega, Jr., appeals a judgment of conviction
entered after a jury found him guilty of four sexual offenses against his daughter,
Rosa.1 He contends that the circuit court erroneously admitted other-acts evidence
at his trial. We affirm.
Background
¶2 In 2015, the State accused Ortega of committing multiple sexual
offenses against Rosa. According to the criminal complaint, the first incident
occurred during the period from January 1, 2005, through December 31, 2006,
while Rosa was younger than thirteen years old and in the third grade. The State
alleged that during this period, Rosa awoke during the night to discover that
Ortega was digitally penetrating her vagina. The State next alleged that during the
period from 2009 until 2010, while Rosa was younger than sixteen years old and
in the sixth grade, Ortega fondled her breasts. The State further alleged that
during the period from 2010 through 2011, while Rosa was younger than sixteen
years old and in the seventh grade, Ortega put his mouth on her breasts and that, in
the summer of the year she attended seventh grade, he began having daily sexual
intercourse with her vaginally, orally, or both, sometimes engaging in three sexual
acts in a day. Next, the State alleged that during the period from 2012 through
2013, while Rosa was younger than eighteen years old, Ortega used her bed and
engaged in sexual activity with her “almost like they were husband and wife.”
Finally, the State alleged that Ortega engaged in sexual intercourse with Rosa in
1
To protect the privacy of the victim, we refer to her as Rosa, a pseudonym. See WIS.
CONST. art. I, § 9(m), WIS. STAT. RULE 809.86(5)(2017-18). All subsequent references to the
Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
2
No. 2019AP306-CR
October 2014, some weeks after her eighteenth birthday. At the end of that
month, she moved out of his residence.
¶3 The State ultimately charged Ortega with five felonies: first-degree
sexual assault of a child who had not reached the age of thirteen years; repeated
sexual assault of a child; incest with a child; third-degree sexual assault; and
incest. Ortega pled not guilty and demanded a jury trial.
¶4 In pretrial proceedings, the State moved to admit other-acts
evidence, namely, that Ortega used controlled substances and alcohol and that he
had a past history of physically abusing Rosa and another of his daughters. As
grounds, the State asserted that the other-acts evidence provided context for the
charged crimes and established Rosa’s credibility and state of mind. In support,
the State argued that because Ortega was often under the influence of drugs or
alcohol while sexually assaulting Rosa, she excused his behavior and did not
report the incidents when they occurred. Further, the State argued that Ortega’s
physical abuse of Rosa and her sister explained why Rosa feared the consequences
of reporting his actions and also tended to refute any inference that Rosa
consented to the sexual intercourse that took place after she reached adulthood.
The circuit court granted the State’s motion over Ortega’s objection. The circuit
court added that it would give a special instruction to the jury limiting the
purposes for which it could consider the other-acts evidence.
¶5 The case proceeded to a jury trial in 2016.2 The State’s case
included the other-acts evidence referenced above. The circuit court gave a
2
The case first went to trial in 2015. The jury was unable to reach a verdict in that
proceeding, and the circuit court declared a mistrial.
3
No. 2019AP306-CR
limiting instruction, cautioning the jury that it could not use the other-acts
evidence to conclude that Ortega was a bad person or that he had a particular
character trait and acted in conformity with that trait. The instruction further
provided that the jury could use the other-acts evidence only for purposes of
considering “context or background,” “the complete picture of the evidence
related to the offenses charged,” and the “alleged victim’s state of mind.” The
jury acquitted Ortega of first-degree sexual assault of a child younger than thirteen
years old and convicted him of the other crimes. He appeals, challenging only the
admission of the other-acts evidence.
Discussion
¶6 Ortega claims that the circuit court improperly applied WIS. STAT.
§ 904.04(2). The statute provides, with an exception not relevant here, that
“evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that the person acted in conformity therewith.” See
§ 904.04(2)(a). The statute, however, “does not exclude the evidence when
offered for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” See id.
¶7 Whether to admit other-acts evidence lies within the circuit court’s
discretion. See State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998).
Accordingly, on appeal we assess “whether the circuit court ‘reviewed the relevant
facts; applied a proper standard of law; and using a rational process, reached a
reasonable conclusion.’” State v. Payano, 2009 WI 86, ¶41, 320 Wis. 2d 348, 768
N.W.2d 832 (citations omitted). Our review is deferential: if the record reveals a
basis for the circuit court’s decision, we will uphold it. See id.4
No. 2019AP306-CR
¶8 A circuit court conducts a three-step analysis to determine the
admissibility of evidence under WIS. STAT. § 904.04(2). See Sullivan, 216
Wis. 2d at 772. The analysis requires the circuit court to determine whether:
(1) the evidence is offered for a permissible purpose, as required by
§ 904.04(2)(a); (2) the evidence is relevant within the meaning of WIS. STAT.
§ 904.01; and (3) the probative value of the evidence is substantially outweighed
by unfair prejudice or other concerns enumerated in WIS. STAT. § 904.03. See
Sullivan, 216 Wis. 2d at 772-73.
¶9 Additionally, when the defendant is on trial for a sexual offense,
“ʻWisconsin courts permit a more liberal admission of other [acts] evidence....’
Accordingly, in a sex crime case, the admissibility of other acts evidence must be
viewed in light of the greater latitude test.” State v. Hunt, 2003 WI 81, ¶86, 263
Wis. 2d 1, 666 N.W.2d 771 (citation omitted). The greater latitude test, also called
the greater latitude rule, operates “to facilitate the admissibility of the other acts
evidence under the exceptions set forth in WIS. STAT. § 904.04(2)(a).”3 See State
v. Dorsey, 2018 WI 10, ¶33, 379 Wis. 2d 386, 906 N.W.2d 158 (citations and
brackets omitted). The rule applies to each prong of the admissibility analysis, see
id., and is not limited to prior acts that are similar to the charged conduct for which
3
Courts refer interchangeably to the “greater latitude test” and the “greater latitude rule.”
See, e.g., State v. Hunt, 2003 WI 81, ¶¶84-86, 263 Wis. 2d 1, 666 N.W.2d 771. We refer to the
“greater latitude rule” throughout the remainder of this opinion.
5
No. 2019AP306-CR
the defendant is on trial, see Hunt, 263 Wis. 2d 1, ¶¶26, 83-88.4 In circumstances
where the rule applies, “circuit courts should admit evidence of other acts with
greater latitude under the Sullivan analysis to facilitate its use for a permissible
purpose.” See Dorsey, 379 Wis. 2d 386, ¶33.
¶10 In this case, the circuit court preliminarily concluded that it was
required to apply the greater latitude rule in analyzing the admissibility of other-
acts evidence. We agree. Ortega faced multiple sexual offense charges, and Hunt
therefore dictated application of the rule. See id., 263 Wis. 2d 1, ¶86. Indeed,
Ortega does not argue otherwise. Accordingly, we review the circuit court’s
Sullivan analysis in light of the greater latitude rule.
¶11 The first step of the Sullivan analysis requires an acceptable purpose
for the proposed admission of the other-acts evidence. See Payano, 320 Wis. 2d
348, ¶63. The potential admissible purposes are “ʻalmost infinite,’” and the party
seeking admission “ʻneed only identify a relevant proposition that does not depend
upon the forbidden inference of character as circumstantial evidence of conduct.’”
See State v. Marinez, 2011 WI 12, ¶25, 331 Wis. 2d 568, 797 N.W.2d 3994
Pursuant to WIS. STAT. § 904.04(2)(b), courts are required to apply the greater latitude
rule to “similar” acts in trials involving enumerated types of cases. See id. However, the greater
latitude rule originated under common law, see State v. Dorsey, 2018 WI 10, ¶32, 379 Wis. 2d
386, 906 N.W.2d 158, and the State asserts that the statutory mandate in § 904.04(2)(b) “did not
abrogate the common law greater latitude rule that applies even if the charged conduct and the
other act are dissimilar.” In support, the State cites Fuchsgruber v. Custom Accessories, Inc.,
2001 WI 81, ¶25, 244 Wis. 2d 758, 628 N.W.2d 833 (stating that “[a] statute does not change the
common law unless the legislative purpose to do so is clearly expressed in the language of the
statute”). Ortega has not filed a reply brief and accordingly offers no argument to refute the
State’s contention. We take Ortega’s silence on this issue as a concession that the State is correct.
See State v. Normington, 2008 WI App 8, ¶44, 306 Wis. 2d 727, 744 N.W.2d 867.
6
No. 2019AP306-CR
(citations omitted). Accordingly, “this ‘first step is hardly demanding.’” See
Payano, 320 Wis. 2d 348, ¶63 (citation and emphasis omitted).
¶12 Here, the State proposed admitting other-acts evidence to show the
context of the crimes and to establish Rosa’s credibility and state of mind. These
are permissible bases on which to admit other-acts evidence, see Marinez,
331Wis. 2d 568, ¶27, and each proposed basis had a direct relationship to the
State’s case that did not implicate “ʻthe forbidden inference of character as
circumstantial evidence of conduct,’” see id., ¶25 (citation omitted). Specifically,
the evidence that Ortega was intoxicated while sexually assaulting Rosa
“ʻcomplete[d] the story of the crime on trial.’” See State v. Pharr, 115 Wis. 2d
334, 348, 340 N.W.2d 498 (1983)(citation and one set of quotation marks
omitted). Additionally, the evidence of his intoxication and his past history of
physically abusing his daughters described the specific context in which the
alleged sexual assaults occurred, see Hunt, 263 Wis. 2d 1, ¶58, and provided a
basis for assessing Rosa’s credibility in light of her delay in reporting the
childhood sexual assaults, cf. id., ¶¶58-59 (holding that physical abuse and
substance abuse were admissible to establish credibility of the victim and
witnesses in light of their recantation of child abuse accusations).
¶13 Ortega argues on appeal that the State did not identify a proper
purpose for admitting other-acts evidence because “the State mention[ed] off-
handedly that it wishe[d] to admit this evidence for the purpose of motive.” He
continues: “[a]s used by the State in its brief in support of this other acts evidence,
‘motive’ is given such a broad definition that it is synonymous with the definition
7
No. 2019AP306-CR
of propensity.” Ortega does not identify the place in the transcript or in any
State’s brief where the State argued that it sought to admit other-acts evidence to
show motive, and we have not located such an argument in the record.5 Moreover,
the circuit court found that the State sought to admit the evidence to show context
and to establish Rosa’s credibility and state of mind. These are proper purposes
for admission, particular in light of the greater latitude rule. See Marinez, 331
Wis. 2d 568, ¶4. Thus, even assuming that the State also improperly proposed
motive as a basis to admit other-acts evidence here, the first Sullivan prong was
satisfied because “[a]s long as the State and circuit court have articulated at least
one permissible purpose for which the other-acts evidence was offered and
accepted, the first prong of the Sullivan analysis is met.” See Marinez, 331
Wis. 2d 568, ¶25.
¶14 The second step in the Sullivan analysis requires a showing that the
proposed other-acts evidence is relevant. See id., 216 Wis. 2d at 772. “Evidence
is relevant ... if it relates to a fact or proposition that is of consequence to the
determination of the action and if it has probative value.” State v. Hammer, 2000
WI 92, ¶30, 236 Wis. 2d 686, 613 N.W.2d 629. We have observed that relevance
is “not a high hurdle.” See State v. White, 2004 WI App 78, ¶14, 271 Wis. 2d
742, 680 N.W.2d 3625
This court will not scour the record for facts supporting a party’s contentions. See
State v. Carter, 2017 WI App 9, ¶21, 373 Wis. 2d 722, 892 N.W.2d 754. We nonetheless
observe that the only mention of “motive” that we find in the State’s arguments occurred when
the State quoted the text of WIS. STAT. § 904.04 in a circuit court brief. We caution appellate
counsel that we expect litigants to pay scrupulous attention to their description of the record and
to direct this court to the precise places in the record that support the litigants’ contentions on
appeal. See WIS. STAT. RULE 809.19(1)(e) (2017-18).
8
No. 2019AP306-CR
¶15 Here, the State contended that Ortega’s prior acts of physical abuse
and Ortega’s intoxication while sexually assaulting Rosa were relevant to
resolving the question of why she did not report the alleged sexual abuse for many
years after it began. Specifically, the State argued that both the physical abuse and
the intoxication explained why Rosa excused Ortega’s actions and feared the
ramifications of reporting the crimes. Cf. Hunt, 263 Wis. 2d 1, ¶¶12-15, 58-59
(recognizing that drug use and physical abuse of family members are relevant to
explain a victim’s state of mind in light of recantations of sexual abuse
allegations). The State also argued that Ortega’s prior acts of physical abuse were
relevant to refute a claim that Rosa consented to sexual intercourse with Ortega
when she reached adulthood.6 See State v. C.V.C., 153 Wis. 2d 145, 160-62, 450
N.W.2d 463 (Ct. App. 1989) (concluding that prior violent acts were relevant to
show that the victim did not consent to sexual assault).
¶16 On appeal, Ortega first offers a one-paragraph argument that the
other-acts evidence here was not relevant because the victim testified about both
the other acts and the charged crimes. In support, he cites State v. Johnson, 74
Wis. 2d 26, 245 N.W.2d 687 (1976), which he believes requires rejection of such
testimony from a victim because “the complaining witness is simply collaborating
[sic] herself by a self-serving statement.” Ortega misunderstands Johnson.
There, the supreme court held that a defendant could not cross-examine a witness
to elicit testimony describing the defendant’s self-serving out-of-court statements
because such testimony is inadmissible hearsay. See id. at 37-38. Johnson offers
6
Before the State could obtain a conviction for third-degree sexual assault in this case,
the State was required to prove that Rosa did not consent to sexual intercourse with Ortega. See
WIS. STAT. § 940.225(3) (2013-14).
9
No. 2019AP306-CR
no assistance in analyzing the relevance of a victim’s testimony about the
defendant’s other acts.7
¶17 Second, Ortega argues that the evidence of his physical abuse and
intoxication was irrelevant because the State did not demonstrate that the other
acts and the charged crimes were similar, as measured by the “nearness in time,
place and circumstances between the other act[s] and the alleged crimes.” In
support, he cites State v. Scheidell, 227 Wis. 2d 285, 595 N.W.2d 661 (1999), but
that case does not aid him. Scheidell tied relevance to nearness in time, place, and
circumstances because in that case the State offered other-acts evidence to prove
identity. See id. at 304-05. Our supreme court has since clarified that “ʻsimilarity’
and ‘nearness’ are not talismans,” and that “[r]elevancy is not determined by
resemblance to, but by the connection with, other facts.” See Payano, 320 Wis. 2d
348, ¶70 (citations, brackets, and some quotation marks omitted). Indeed,
relevance “ʻis a common sense determination based less on legal precedent than
life experiences.... The issue of relevancy must be determined by the trial judge in
view of his or her experience, judgment and knowledge of human motivation and
conduct.’” Id. (citations and some quotations marks omitted).
7
Our supreme court considered several issues in State v. Johnson, 74 Wis. 2d 26, 245
N.W.2d 687 (1976), which involved charges of willful failure to deposit withholding taxes. See
id. at 31-33. Ortega’s citation to Johnson does not include any pinpoint citation to guide us to
the place in the opinion that Ortega considers helpful to his position. The substance of his
argument leads us to conclude, as did the State, that he relies on the Johnson court’s analysis of
the hearsay issue. We note, however, that the case also involved the issue of whether certain
exhibits were admissible as other-acts evidence. See id. at 39. The Johnson court held that the
exhibits, which reflected prior failures to deposit withholding taxes and prior accumulated
deficiencies, were relevant to show the defendant’s knowledge and the willfulness of his conduct.
See id. at 41-43. For the sake of completeness, we observe that nothing in this analysis supports
Johnson’s thesis that a victim may not testify about a defendant’s prior acts.
10
No. 2019AP306-CR
¶18 The circuit court here agreed with the State and determined that the
other-acts evidence was relevant in regard to the questions of why Rosa did not
report sexual abuse while she was a child in Ortega’s home and whether she
consented to sexual relations with Ortega when she was an adult. In light of
Payano, Hunt, and C.V.C., the circuit court reached a reasonable conclusion and,
accordingly, we will not disturb it. See Payano, 320 Wis. 2d 348, ¶41.
¶19 The third step of the Sullivan analysis required the circuit court to
determine whether the probative value of the proffered evidence was substantially
outweighed by the risk of unfair prejudice. See id., 216 Wis. 2d at 772-73. The
terms on both sides of this equation are well-understood. Specifically, probative
value is a function of relevance and of the proponent’s need for the evidence in
question. See Marinez, 331 Wis. 2d 568, ¶41. Unfair prejudice refers to “whether
the evidence tends to influence the outcome of the case by improper means.” See
id. (citations and some quotation marks omitted). “Because [WIS. STAT.
§ 904.04(2)(a)] provides for exclusion only if the evidence’s probative value is
substantially outweighed by the danger of unfair prejudice, ‘the bias ... is squarely
on the side of admissibility. Close cases should be resolved in favor of
admission.’” Marinez, 331 Wis. 2d 568, ¶41 (citation, emphasis, and brackets
omitted).
¶20 The State argued here that, due to Rosa’s substantial delay in
disclosing years of childhood sexual abuse, the other-acts evidence was necessary
for the jury to understand the “atmosphere of fear” within the home and the
rationalizations that Rosa used to excuse the conduct. Indeed, our supreme court
has recognized that where a crime involves a young victim, other-acts evidence is
“particularly relevant” to address the “ʻneed to corroborate the victim’s testimony
11
No. 2019AP306-CR
against credibility challenges.’” See State v. Hurley, 2015 WI 35, ¶59, 361
Wis. 2d 529, 861 N.W.2d 174 (citation omitted).
¶21 The circuit court agreed with the State, finding that it required the
proposed other-acts evidence to explain the context of the criminal activity and the
victim’s state of mind. The circuit court acknowledged Ortega’s concern that the
jury would use the other-acts evidence to conclude that Ortega was “a bad person
and therefore must have committed these offenses.” The circuit court determined,
however, that it could craft a limiting instruction sufficient to clarify for the jurors
that they could consider the other-acts evidence only for the purposes for which it
was offered.
¶22 On appeal, Ortega argues that “it is incredibly naïve to believe that a
viable limiting instruction could be drafted that would prevent the jury from
making a forbidden inference that Ortega is a bad man.” In support, he cites a
1932 opinion of the Second Circuit Court of Appeals and a 1949 concurring
opinion of a United States Supreme Court justice.8 Ortega’s argument does not
comport with Wisconsin law. In this state, we have long recognized that “delivery
of a limiting or curative instruction serves to eliminate or minimize the risk of
undue prejudice.” See State v. Parr, 182 Wis. 2d 349, 361, 513 N.W.2d 647 (Ct.
8
In addition to citing the 1932 and 1949 federal opinions described above, Ortega cites
United States v. Merriweather, 78 F.3d 1070 (6th Cir. 1996), to support his assertion that “one
court has explained that the ‘reverberating clang’ of other acts will drown out the ‘weaker sound’
of the evidence that the defendant committed the present act.” Ortega’s citation to Merriweather
is misleading. He offers it in the context of disputing the efficacy of a limiting instruction, but
Merriweather explains that the risk of a “ʻreverberating clang’ ... might well have been reduced
by a clear and concise instruction identifying for the jurors the specific purpose for which the
evidence was admissible and limiting their consideration of the evidence to that purpose. Of
course, no such narrowly limiting instruction was given.” See id. at 1077-78 (citation omitted).
The jury that decided Ortega’s case, however, received just such a limiting instruction.
12
No. 2019AP306-CR
App. 1994); see also Marinez, 331 Wis. 2d 568, ¶41 (reflecting the ongoing
vitality of Wisconsin’s rule regarding the effectiveness of limiting instructions).
¶23 Ortega also argues that the jurors were necessarily “improperly
swayed by the flammable [sic] things that they heard about” him, but he fails to
offer any reason to conclude that testimony about his drug and alcohol use or
about his acts of physical abuse was so horrifying as to overwhelm the jury and
prevent a fair assessment of the evidence. Indeed, the jury acquitted him of one of
the most serious charges he faced, first-degree sexual assault of a child younger
then thirteen years old. An acquittal “substantially undercuts [an] argument that
the other acts evidence was unfairly prejudicial.” See Parr, 182 Wis. 2d at 362.
¶24 In sum, the record reflects that the circuit court considered the
relevant facts, applied the correct law, and reasonably concluded that the proposed
other-acts evidence was offered for permissible purposes, relevant to serve those
purposes, and not unfairly prejudicial. We therefore conclude that the circuit court
properly exercised its discretion in admitting the evidence.
¶25 The State ends its respondent’s brief with a discussion of whether
admission of the other-acts evidence in this case constituted harmless error.
Because we are satisfied that the circuit court did not err, we need not address the
State’s contentions in this regard. See State v. Castillo, 213 Wis. 2d 488, 492, 570
N.W.2d 44 (1997) (“An appellate court should decide cases on the narrowest
possible grounds.”).
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2017-18).
13
No. 2019AP306-CR
14