"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story. I'll try to post excerpts from the responses as they are filed. That can be months after filing of the the appellate brief.
State v Morris V. Seaton
Appeal: 21AP1399
Filing attorney: Assistant Attorney General Sarah Burgundy
Judge: Waukesha County Circuit Judge Jennifer Dorow
A Waukesha County judge erred when she found the difference between an indoor sexual assault and an outdoor sexual assault was enough to prohibit "other-acts" testimony in a trial of the man charged with the second assault, the state is arguing on appeal.
The case already was before the state Supreme Court, but its members could not agree on whether Circuit Judge Jennifer Dorow was right or wrong. The justices sent it back to the District II Court of Appeals to figure out and directed the parties to file new briefs. The state has filed; the defense has not.
Morris V. Seaton is charged with sexual assault based on allegations by 17-year-old “Anna” that Seaton forced nonconsensual intercourse with her in her home after they had been drinking together.
The state sought to admit other-acts evidence of uncharged accusations from 17-year-old “Jane,” who claimed that less than a year earlier, Seaton forced nonconsensual intercourse with her in a Whitewater back yard after they had been drinking together.
The state sought to admit that evidence to show motive, intent, and purpose; plan, opportunity, and mode of operation; and to bolster Anna’s credibility and to undercut Seaton’s.
State law favors admission of other acts evidence as long as the proponent can show a legitimate purpose for it and the evidence supports it, Assistant State Attorney General Sarah Burgundy wrote.
The scale tips toward admission even more when, like here, the defendant is charged with sexual assault. In those cases and here, greater latitude applies to each step of the analysis to encourage admission of other acts in these often difficult-to-prove credibility contests.
Seaton allegedly assaulted Anna in her bedroom after she, her sister, Seaton, and another man were drinking at Anna's house while her mother was at work, Burgundy wrote. Anna was a student at Brookfield East High School at the time; Seaton was a recent graduate. The two knew each other, but Anna told police they never had a sexual relationship.
The assault allegedly occurred in June, 2019. Anna reported it in September of that year.
The state charged Seaton with third-degree sexual assault.
The State filed a pretrial motion to admit other-acts evidence of allegations that Seaton had sexually assaulted 17-year-old “Jane” in Whitewater in September 2018, less than a year before Anna was assaulted. Jane, who was a Brookfield East student at the time of the alleged assault, was in Whitewater helping her sister on college move-in day.
Seaton allegedly assaulted Jane in September 2018 in a back yard after they both had been drinking sometime during the day, though the brief does not specify what time the drinking occurred. Seaton was raped sometime after 10 p.m., according to the brief.
Jane reported the assault in May, 2019, "when she saw that Seaton 'was still coming around the high school' and she 'came to realize how much the assault was affecting her' ” Burgundy wrote.
The state filed a motion to admit the other-acts evidence
to show Seaton’s “motive, identity, plan, opportunity, and modus operandi,” through his pattern of choosing younger victims he knew from Brookfield East, in situations where the victim had been drinking, where the victim is isolated from friends or family; initiating intercourse; and refusing to stop when asked.
Seaton's lawyer objected, arguing that Jane’s allegations were unsupported and unfairly prejudicial, Burgundy said. He cited several cases in support, although none less than 20 years old and "none none recognizing the development and codification of the greater latitude rule," she said.
At a hearing, after the state and Seaton presented argument, the circuit court denied the state’s motion. The court stated multiple times that admission of other acts “is an exception to the general rule” of exclusion. It rejected all of the state’s proposed permissible purposes. In doing so, it noted that the fact that the alleged assault of Jane occurred outdoors while Anna was allegedly assaulted indoors rendered the two acts too dissimilar to be relevant to or probative of a permissible purpose, even with greater latitude applying.
Other-acts evidence may be admitted if serves a permissible purpose under state law, is relevant, and whether the probative value of the evidence outweighs the risk of unfair prejudice or confusion of the jury, Burgundy wrote.
Jane's allegations are admissible under those criteria, she said.
The permissibility standard has a low bar, she wrote, and precedent says that the "'purposes for which other-acts evidence may be admitted are ‘almost infinite.’ "
Permissible purposes, by statute, include " 'proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,' ” Burgundy said.
Evidence, by precedent, is considered relevant if it sheds light on the controversy at issue, she said, while the burden of establishing undue prejudice falls to the opponent in the case.
The other act involving Jane (given her age, her familiarity with Seaton, and her intoxicated state) is relevant to show that Seaton had a motive, intent, and purpose to have intercourse with Anna by getting into her bed and pressing her for sex. It further shows that he had a motive, intent, and purpose to exert power and control over a young and impaired acquaintance by engaging her after consuming alcohol together and to achieve sexual gratification from her protests. ...
Jane’s claims of Seaton’s assault of her assist the jury in assessing Anna’s and Seaton’s credibility. The other acts, if believed, corroborate the events Anna was able to describe ... It also rebuts Seaton’s defense of consent; Jane’s allegations are probative of Seaton’s state of mind as to his conduct with Anna and rebut Seaton’s implicit defense that he would have left Anna alone if she had not consented.
The other act also will help a jury make credibility determinations, Burgundy said, noting the similarities between the alleged assaults.
Sexual assault cases, often lacking physical evidence, are difficult to prove, she wrote. Prosecutors often have a hard time finding evidence to prove the crime.
Those concerns ring true here. Anna delayed reporting Seaton’s assault. Accordingly, if there was physical evidence supporting her claims of assault, it is long gone. Anna and Seaton were the only witnesses to the actual assault. The other-acts evidence is relevant to and probative of facts of consequence in this case. ... It would be admissible even without greater latitude applying; with greater latitude, its exclusion is wholly unreasonable.
Dorow incorrectly said that admission of other-acts evidence is the exception and not the rule, Burgundy said. Dorow also expressed concern that Seaton would have to defend against two allegations, not just one.
To the extent that comment reflects a concern that Jane’s allegations were uncharged and unproven, nothing in the law requires that the other acts resulted in a charge or conviction to be admissible."
There are also safeguards to protect against the risk of unfair use of the other acts, she said.
The judge's finding that the cases are too different to be relevant "cannot be squared with case law," Burgundy said.
The differences between the assaults here were no more significant than the differences one would expect to see between two separate acts: different dates, different victims, different towns. If the circuit court’s reasoning stands, it is difficult to see how any other act could be similar enough to be admitted, even though the last two decades-plus of other-acts case law and the codification of the greater latitude rule counsel otherwise.
Seaton, she said, cannot show Jane's testimony is unduly prejudicial.
"The nature of Janes allegations are no more likely to arouse horror than what Anna will be alleging," she wrote. In addition, the judge likely will instruct the jury not to use Jane's testimony for any improper purpose, she said.
The appellate court should reverse Dorow's ruling because it failed to apply the correct legal standards and reach a reasonable conclusion, Burgundy concluded.
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