State v. Curtis L. Jackson

2014 WI 4

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2698-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Curtis L. Jackson,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 345 Wis. 2d 62, 823 N.W.2d 840
(Ct. App. – Unpublished)

OPINION FILED: January 22, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 18, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Daniel Konkol/Richard Sankovitz

JUSTICES:
CONCURRED: BRADLEY, J., concurs. (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
BRADLEY, J., joins Part I of dissent.
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by James Rebholz and Rebholz & Auberry, Wauwatosa, and oral
argument by James Rebholz.

For the plaintiff-respondent, the cause was argued by
Marguerite Moeller, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
 2014 WI 4
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2698-CR
(L.C. No. 2008CF5563)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v. JAN 22, 2014

Curtis L. Jackson, Diane M. Fremgen
Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals, State v. Jackson,

No. 2011AP2698-CR, unpublished slip op. (Wis. Ct. App. Oct. 10,
2012), that affirmed the judgment and order of the Milwaukee

County Circuit Court,1 which convicted Curtis L. Jackson

("Jackson") of second-degree reckless homicide by use of a

dangerous weapon, and denied his motion for a new trial.

¶2 Jackson's petition for review presents the narrow

question of whether a defendant in a homicide prosecution may

1
The Honorable Daniel L. Konkol presided over the pretrial
proceedings and the trial. The Honorable Richard J. Sankovitz
presided over the postconviction motion for a new trial.
 No. 2011AP2698-CR

introduce evidence of the victim's reputation for violence, when

the defendant did not know of the victim's reputation at the

time of the offense.

¶3 The issues underlying this case are more complex than

as set forth in the petition for review. Specifically, this

court must decide whether the circuit court improperly excluded

trial evidence regarding both the shooting victim's reputation

for violence and the victim's specific violent acts.

¶4 Jackson was charged with first-degree intentional

homicide by use of a dangerous weapon, contrary to Wis. Stat.

§§ 940.01(1)(a), 939.50(3)(a), and 939.63(1)(b) (2009-10),2 a

class A felony. Jackson argued that the victim was behaving in

a threatening manner, that he believed the victim was armed, and

that he killed the victim in self-defense. Jackson had neither

met the victim, nor knew of the victim's character prior to the

night of the shooting.

¶5 In support of his self-defense theory, Jackson moved

the circuit court to admit character evidence. While the motion
cited to several statutory provisions, it focused on the

admission of three specific acts to prove the victim's character

for violence. The motion did not set forth a foundational basis

for the admission of reputation testimony. The circuit court

denied the motion. Following his jury trial Jackson brought a

postconviction motion for a new trial in which he argued, in

2
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

2
 No. 2011AP2698-CR

part, that the trial court erred by not allowing Jackson to

introduce character evidence to show that the victim was the

"first aggressor" in the confrontation. The circuit court also

denied Jackson's postconviction motion, and Jackson appealed.

¶6 The court of appeals affirmed the circuit court,

relying on McMorris v. State, 58 Wis. 2d 144, 205 N.W.2d 559

(1973). In the court of appeals, Jackson conceded that the

specific acts of violence were inadmissible to prove the

character of the victim under Wis. Stat. § 904.05(2), but argued

that the victim's violent character could still have been proved

by reputation testimony under § 904.05(1).3 Jackson did not

appeal the circuit court's exclusion of other acts evidence

under Wis. Stat. § 904.04(2).4 The court of appeals affirmed the

3
Wisconsin Stat. § 904.05 provides:

(1) Reputation or opinion. In all cases in
which evidence of character or a trait of character of
a person is admissible, proof may be made by testimony
as to reputation or by testimony in the form of an
opinion. On cross-examination, inquiry is allowable
in relevant specific instances.

(2) Specific instances of conduct. In cases in
which character or a trait of character of a person is
an essential element of a charge, claim, or defense,
proof may also be made of specific instances of the
person's conduct.
4
Wisconsin Stat. § 904.04(2) provides, in relevant part:

(a) Except as provided in par. (b), 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. This
subsection does not exclude the evidence when offered
for other purposes, such as proof of motive,
3
 No. 2011AP2698-CR

circuit court, concluding that a "defendant's prior knowledge of

the victim's character, either by reputation or specific acts,

has consistently been a prerequisite to admission of such

evidence as part of a self-defense claim." Jackson, No.

2011AP2698-CR, unpublished slip op., ¶21.

¶7 Jackson petitioned this court for review, which we

granted on February 12, 2013.

¶8 We hold that the circuit court did not erroneously

exercise its discretion in denying Jackson's motion to admit

character evidence. The circuit court properly determined that

in order for specific acts of violence to be admissible,

"character or a trait of character of a person" must be "an

essential element of a charge, claim, or defense." In a

homicide case where a claim of self-defense is raised, character

evidence may be admissible as evidence of the defendant's state

of mind so long as the defendant had knowledge of the prior acts

at the time of the offense. McMorris, 58 Wis. 2d at 152. We

also conclude that the circuit court did not err in denying
Jackson's motion to admit testimony that the victim had a

reputation for violence under Wis. Stat. § 904.05(1). Jackson

failed to establish a proper foundation for the court to

determine that evidence of the victim's reputation for violence

was admissible. We further conclude that, even assuming error

opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.

4
 No. 2011AP2698-CR

occurred, that error was harmless. Therefore, we affirm the

decision of the court of appeals.

I. FACTUAL BACKGROUND

¶9 On November 4, 2008, Milwaukee Police Department

Officer Frank Galloway ("Officer Galloway") responded to a shots

fired call at 3776 North 60th Street in the City of Milwaukee.

Upon arrival, Officer Galloway was directed by witnesses to the

rear of the residence where he found the victim, Angelo McCaleb

("McCaleb"), lying on his back.

¶10 McCaleb was declared dead at the scene. His body was

later transported to the Milwaukee County Medical Examiner's

Office where an autopsy confirmed that McCaleb had died as the

result of a single gunshot wound to the chest.

¶11 While at the scene, Officer Galloway encountered

Jackson. Officer Galloway asked Jackson if he knew who had shot

the victim, to which Jackson responded: "I did it. I shot him.

The gun is over there on top of the car. Sorry, I did not mean

to do it." Officer Galloway took Jackson into custody.
¶12 Although the five witnesses to the shooting differed

on the details, the basic facts are undisputed. On the evening

of November 4, 2008, Tanya Davis ("Davis") borrowed Jackson's

car to go to a bar. While at the bar, Davis met McCaleb and his

friend Wayne Johnson ("Johnson") and had drinks with them. It

would later be established that McCaleb had a .18 blood alcohol

concentration at the time of his death. While Davis was at the

bar, Jackson left phone messages asking her to return his car.

5
 No. 2011AP2698-CR

Davis testified that McCaleb responded to these messages by

saying "fuck that nigger" in reference to Jackson.

¶13 Davis eventually returned the car to Jackson's house.

She was followed by McCaleb and Johnson. Upon arriving, McCaleb

and Johnson got into an argument with Jackson and two women,

Francheska Garcia ("Garcia") and Lawanda Knight ("Knight"), who

lived with Jackson at the time. Jackson would later testify

that, when he knocked on McCaleb's car window, McCaleb said that

Jackson "had some fuckin' nerve knockin' on somebody's car

window like that." Jackson and McCaleb then argued, "yelling

back and forth" about whether Davis would be going back out that

evening. During the course of the argument, Jackson testified

that McCaleb "lunged" at Garcia with his fist "clenched" and

"[a]nger in his face." This was corroborated by testimony from

Garcia, who stated that McCaleb stepped towards her "like to

hit" her at one point during the argument. Jackson then

retrieved a handgun from his vehicle.

¶14 Knight later testified that Jackson used that gun to
shoot McCaleb only after McCaleb got "so mad" and returned to

Johnson's car as if to retrieve something. McCaleb then walked

back towards Jackson "really fast with one hand behind his

back," saying "something for you, motherfucker." Further,

Knight told police that McCaleb was "pulling at his waistband as

if he was going for a gun." In an interview with a Milwaukee

Police Department detective following the shooting, Jackson said

that McCaleb was behaving in a threatening manner, and that he

6
 No. 2011AP2698-CR

believed McCaleb had armed himself as well. McCaleb was, in

fact, unarmed.

II. PROCEDURAL POSTURE

¶15 On November 8, 2008, Jackson made his initial

appearance. The criminal complaint alleged a single count of

first-degree reckless homicide while armed, contrary to Wis.

Stat. §§ 940.02(1) and 939.63, a class B felony. Cash bail was

set at $150,000.

¶16 On November 17, 2008, the court held Jackson's

preliminary hearing. Following testimony from a Milwaukee

Police Department detective regarding the circumstances of the

shooting, the State moved to bind Jackson over for trial.

Jackson moved to dismiss the charge, arguing that he had acted

in self-defense.5 The court denied Jackson's motion to dismiss,

granted the State's motion, and Jackson was bound over for

trial.

5
Self-defense is detailed in Wis. Stat. § 939.48(1), which
provides:

A person is privileged to threaten or
intentionally use force against another for the
purpose of preventing or terminating what the person
reasonably believes to be an unlawful interference
with his or her person by such other person. The actor
may intentionally use only such force or threat
thereof as the actor reasonably believes is necessary
to prevent or terminate the interference. The actor
may not intentionally use force which is intended or
likely to cause death or great bodily harm unless the
actor reasonably believes that such force is necessary
to prevent imminent death or great bodily harm to
himself or herself.

7
 No. 2011AP2698-CR

¶17 On December 9, 2008, Jackson was arraigned on the

Information which charged him with one count of first-degree

reckless homicide while armed. Jackson waived a reading of the

Information and pled not guilty to the charge. On February 6,

2009, the court held a pretrial conference and set a trial date

of May 4, 2009.

¶18 On February 12, 2009, the State filed an Amended

Information which charged Jackson with first-degree intentional

homicide by use of a dangerous weapon, contrary to Wis. Stat.

§§ 940.01(1)(a), 939.50(3)(a), and 939.63(1)(b), a class A

felony.

¶19 On April 7, 2009, Jackson filed a Motion to Admit

Character and Habit Evidence.6 Jackson offered three prior acts

of violence by McCaleb as evidence of his "history of violent

and assaultive behavior." First, Jackson offered McCaleb's 1995

conviction for criminal trespass and disorderly conduct for

McCaleb's role as one of a dozen individuals involved in a home

invasion altercation where McCaleb pretended to have an object
that appeared to be a firearm or other weapon and during the

invasion struck an individual repeatedly with a bar stool.

Second, Jackson offered a November 7, 2004, City of Milwaukee

6
Although mentioned in this filing, Jackson never sought to
admit evidence of a "habit" under Wis. Stat. § 904.06, nor did
the circuit court rule on the issue. Jackson's motion also
cites to Wis. Stat. § 906.08, which governs evidence of the
character of a witness, but he similarly fails to develop an
argument around that statute. This opinion, therefore, does not
address habit evidence or evidence of the character of a witness
as these issues have not been raised on appeal.

8
 No. 2011AP2698-CR

assault and battery citation McCaleb received for pushing his

girlfriend during a domestic dispute outside of a tavern.

Finally, Jackson offered a January 18, 2008, citation McCaleb

received for, after being at a party, kicking in the door of an

individual named Adam Comp ("Comp") and punching him.

¶20 Jackson argued in his pretrial motion papers that

these three prior acts of violence were admissible as other acts

evidence under Wis. Stat. § 904.04(2). Jackson also argued that

"evidence of a pertinent trait" of McCaleb's character would be

admissible under § 904.04(1).7 Jackson conceded in his motion

that:

Mr. Jackson was not acquainted with Mr. McCaleb
and was not aware of these previous acts of violence
at the time of the shooting, thus he is not able to
admit evidence of these acts pursuant to doctrines set
forth in McMorris v. State . . . which permit the
admission of specific violent acts of a victim
previously known to a defendant in a self-defense
case.

7
Wisconsin Stat. § 904.04(1) "Character Evidence Generally"
provides, in relevant part:

Evidence of a person's character or a trait of
the person's character is not admissible for the
purpose of proving that the person acted in conformity
therewith on a particular occasion, except:

. . . .

(b) Character of victim. Except as provided in s.
972.11(2), evidence of a pertinent trait of character
of the victim of the crime offered by an accused, or
by the prosecution to rebut the same, or evidence of a
character trait of peacefulness of the victim offered
by the prosecution in a homicide case to rebut
evidence that the victim was the first aggressor.

9
 No. 2011AP2698-CR

Jackson nonetheless argued that "in a self-defense case where

the violent character of the deceased is an essential element of

the defense," testimony concerning the victim's reputation for

violence is admissible. Wis. Stat. §§ 904.04(1)(b), 904.05(1).

Jackson's motion muddled its discussion of McCaleb's prior

violent acts with its reference to reputation evidence. While

mentioning reputation evidence, Jackson's motion did not offer

any foundation for the admission of reputation evidence.

Further, while Jackson's motion contained the phrase "first

aggressor," the phrase is merely a quote of the language in

§ 904.04(1)(b). Jackson never explained how first aggressor is

at issue so as to affect the admissibility of character

evidence. The pretrial motion focused on the admission of the

three specific acts Jackson sought to introduce to prove

McCaleb's character.

¶21 On April 21, 2009, the State responded to Jackson's

motion. The State opposed Jackson's motion, arguing that

McCaleb's prior acts of violence were not admissible. The State
argued that the specific acts of violence were irrelevant, being

too distant in time and too factually distinct from the

circumstances of the case. The State also argued that, assuming

the specific acts had any probative value, that value was

substantially outweighed by the prejudice that would result from

admitting them. The State asserted that these specific acts

would unfairly indicate that the victim had acted in conformity

with his past conduct. The State did not respond to Jackson's
citation to reputation evidence and, like the defendant's
10
 No. 2011AP2698-CR

motion, focused instead on the admissibility of the three

specific acts of violence.

¶22 On April 27, 2009, at the motion hearing, the circuit

court denied Jackson's motion. The court concluded that

McCaleb's prior specific acts were inadmissible under McMorris

because "[i]t's got to be something that the defendant knew.

Otherwise, it is doing something improper. So since the

defendant did not know about those acts, I don't believe that

the defense is allowed to go into those." The court further

explained that the specific acts of violence were also not

admissible as other acts evidence:

Again, you have indicated that these two people
didn't even know each other, so I don't think that
substantiates any type of motive to do something to
the defendant. I don't think it even qualifies under
the first analysis [sic] with regard to the Sullivan
analysis. So I don't even think you can get beyond
that, but even if you have, I think the probative
value would be substantially outweighed by the danger
of prejudice, unfair prejudice, so that evidence is
not admissible.
¶23 With the specific acts of violence excluded on both

character evidence and other acts evidence grounds, the record

could be read to reflect that defense counsel then made an

attempt, albeit fleeting, to admit reputation or opinion

testimony that McCaleb was a violent person:

Okay. Then I guess, first of all, I understand
the Court's ruling. Then I'm asking how the Court is
going to rule then specifically——omitting specific
acts but asking specifically I think that it is
admissible for the defense to proffer opinion and
reputation evidence of Mr. McCaleb, the witness,
assuming I can lay a foundation, I believe I can, that

11
 No. 2011AP2698-CR

Mr. McCaleb is a violent person, the witness' opinion
that he is a violent person and that McCaleb had a
reputation for violence.
This attempt, however, failed to identify a witness, establish a

foundation, or even clarify that what counsel sought to admit

was the statement "McCaleb had a reputation for violence."

¶24 The State then focused on the admissibility of

character evidence as it related to credibility and stated:

Judge, my understanding of character evidence,
the admissible character evidence is it bears on
credibility and I don't think that obviously would
bear on credibility since the victim is not here to
defend himself as to those accusations or opinions, so
I don't think they're relevant under the character
evidence statute.
The court, perhaps not fully digesting that Jackson's argument

had shifted from the admissibility of the specific acts to

admissibility of the statement "McCaleb had a reputation for

violence," replied:

All right. I agree. I don't believe that those
matters would be relevant, so they would not be
allowed.
¶25 Despite the court not specifically responding to her
reputation evidence argument, counsel did not object to the

court's rulings, or ask for a specific ruling on reputation

evidence. Further, counsel did not clarify her request and did

not request the opportunity to make a proffer. In addition,

counsel did not specifically raise the first aggressor issue.

Instead, counsel stated:

[DEFENSE COUNSEL]: All right. Okay. So the
Court is denying the defense proffer opinion and
reputation—

12
 No. 2011AP2698-CR

THE COURT: Character evidence, Number 2, I
believe that is what it is entitled.

[DEFENSE COUNSEL]: Yes.

THE COURT: And that, in its entirety, is denied.

[DEFENSE COUNSEL]: Okay. All right. Well,
there was one other matter [relating to a different
motion] . . . .
After the court had addressed the balance of the pretrial

matters, Jackson's counsel did not insist on a specific ruling

from the court, nor did she ask to make a proffer to preserve

the issue for appeal, and instead concluded:

I think that really, except for the more boilerplate
motion in limine, that we have then addressed all the
issues that the defense has raised in these two
motions.
¶26 On October 5, 2009, a six-day jury trial began.8 In

short, the State's theory was that Jackson shot and killed

McCaleb because he was jealous and angry, rather than fearful

and acting in self-defense. Jackson was the only party who was

armed during the confrontation. The State elicited testimony to

the effect that Jackson believed he was in a committed
relationship with Davis, and that he had received information

that she was hugging and kissing McCaleb the night of the

shooting. Testimony indicated that McCaleb and Jackson had been

arguing and "yelling back and forth" before the fatal shooting.

Testimony also indicated that McCaleb charged at Jackson just

before McCaleb was shot.
8
May 4, 2009, was Jackson's initial trial date. The court
was forced to reschedule Jackson's trial due to a conflict with
a prior adjourned homicide case.

13
 No. 2011AP2698-CR

¶27 Jackson contended that he was acting in self-defense.

The jury heard testimony that McCaleb, who was described as

being taller, heavier, and more muscular than Jackson, drove up

to Jackson's home in a black car with deeply tinted windows.

The jury heard testimony that McCaleb was drunk and high and

acting belligerently, and that he shouted statements such as

"you must got some fuckin' nerve knockin' on somebody's window

like that," "you don't know who the fuck I am," and "who the

fuck are you?" The jury heard that McCaleb approached one of

the witnesses "like to hit" her with his fist "clenched" and

"[a]nger in his face" during the course of the argument. The

jury also heard that McCaleb stated "you got me fucked up" and

that he had "something for you, motherfucker" just before the

fatal shot was fired. Jackson's theory of the case was entirely

focused on self-defense. Jackson testified himself, and

elicited testimony from other witnesses, that he acted in a

restrained and reasonable manner, and that he shot McCaleb only

after McCaleb charged at him.
¶28 Neither the State nor Jackson specifically argued

"first aggressor" until after all the evidence had been

presented at trial. To the extent that first aggressor was

presented at or before the trial, it was during the State's

closing arguments, when it argued "[t]his isn't one-sided. This

isn't just Angelo McCaleb acting out of control, creating chaos

and being the aggressor out there. This is an argument between

both he and Mr. Jackson."

14
 No. 2011AP2698-CR

¶29 On October 12, 2009, the jury found Jackson guilty of

the lesser-included offense of second-degree reckless homicide

while armed, contrary to Wis. Stat. §§ 940.06(1) and 939.63(1),

a class D felony. The court entered the judgment of conviction

against Jackson, and ordered a presentence investigation report.

¶30 On December 15, 2009, Jackson filed a sentencing

memorandum with the court. For the first time, in this

document, Jackson provided a foundation that Comp knew McCaleb

outside of the single violent incident on January 18, 2008,

mentioned in Jackson's motion to admit character evidence.

¶31 On January 19, 2010, the court sentenced Jackson to 15

years imprisonment, comprised of ten years of initial

confinement to be followed by five years of extended

supervision. On January 29, 2010, Jackson filed a notice of

intent to pursue postconviction relief.

¶32 On December 6, 2010, after having received two

extensions, Jackson filed a notice of appeal in the court of

appeals. Thereafter, Jackson sought to dismiss that appeal
without prejudice. On March 21, 2011, the court of appeals

granted Jackson's motion to dismiss because Jackson needed to

first raise the issues in a postconviction motion before the

circuit court. State v. Jackson, No. 2010AP2961-CR, unpublished

order (Wis. Ct. App. Mar. 21, 2011).

¶33 On June 15, 2011, Jackson filed a postconviction

motion for a new trial pursuant to Wis. Stat. § 809.30 in the

circuit court. Jackson's motion alleged that the circuit court
erred when it denied admission of "the victim's reputation and
15
 No. 2011AP2698-CR

specific prior acts of violence."9 Jackson argued that "[t]he

court's decision denying the motion was erroneous and prejudiced

Jackson because it prevented him from impeaching the prosecution

theory that Jackson was the 'aggressor' and the one 'who put all

this stuff in motion.'" He argued that the evidence pertained

to "determining who was the aggressor, and the defendant's

apprehension of danger." Jackson argued that the evidence was

admissible regardless of whether Jackson knew of the victim's

violent tendencies:

Notwithstanding the reasonable apprehension of
courts to allow character evidence to prove conduct,
some form of evidence tending to show the victim's
violent character should have been admissible for the
limited purpose of supporting the defendant's self-
defense claim that the victim was the first aggressor.
Jackson's postconviction motion was the first time that the

defense began to outline a possible foundation for reputation

testimony, citing to the sentencing memorandum. The

postconviction motion seemingly averred that through trial

counsel "[t]he defendant sought to offer the testimony of Adam

Comp and others to establish McCabe's [sic] reputation and

character for violence against strangers and others" citing to

the sentencing memorandum. Counsel failed to indicate how this

argument was properly made pretrial or how any proffer before

9
Jackson also alleged in his postconviction motion that the
jury had been improperly instructed and that he received
ineffective assistance of counsel as a result of the defective
instruction.

16
 No. 2011AP2698-CR

trial established a foundational basis for the reputation

testimony.

¶34 In his postconviction motion, Jackson did not assert

that the circuit court erred in excluding the three specific

violent acts as other acts evidence under Wis. Stat.

§ 904.04(2).

¶35 On July 21, 2011, the State responded to Jackson's

motion for a new trial. The State contended that the circuit

court's exclusion of McCaleb's prior acts of violence had been a

proper exercise of discretion. The State noted that in the

majority of jurisdictions that have adopted the Federal Rules of

Evidence, specific prior acts are inadmissible to prove a

victim's conduct if the acts are unknown to the defendant

because the acts are not relevant to an element of the offense.

The State conceded that reputation evidence may be admissible to

prove a victim's violent character, but argued that since

Jackson failed to lay a proper foundation for reputation

testimony, that evidence was properly excluded.
¶36 On October 17, 2011, the circuit court denied

Jackson's postconviction motion without an evidentiary hearing.

The court concluded that McCaleb's prior violent acts had been

properly excluded. The postconviction court reasoned that, as a

specific act, Jackson had not shown "how Mr. McCaleb's supposed

propensity for throwing the first punch was an essential element

of self-defense" and therefore admissible under Wis. Stat.

§ 904.05(2). Jackson did not assert that he knew McCaleb such
that the evidence would establish that "he had any reason to
17
 No. 2011AP2698-CR

fear Mr. McCaleb." The court noted that Jackson did not "offer

any authority for the proposition that it is essential to a

claim of self-defense to demonstrate that the victim has a

violent character." The court concluded, "[a]nd think about it

– do we generally allow defendants to put on a self-defense case

without evidence that the victim had a propensity for violence?

All the time; hence evidence of the kind Mr. Jackson wished to

introduce at trial cannot be deemed essential to his defense."

As to Jackson's argument that he needed to introduce the

specific acts in order to "impeach the prosecution theory that

Jackson was the 'aggressor' and the one 'who put all this stuff

in motion,'" the court also noted that the first aggressor issue

was not even arguably raised until closing arguments, and so it

was "too late" to introduce evidence at that point. The court

concluded that Jackson failed to raise, at any point earlier in

the trial, "any argument or evidence needed rebutting with

evidence showing that Mr. McCaleb was the first aggressor."

¶37 The postconviction court also concluded that the
specific acts evidence "does not tend to show that Mr. McCaleb

had the character of a first aggressor." The court outlined

that even assuming "specific instances of the victim's violent

past were generally admissible, the court would not have

admitted the three particular instances offered by Mr. Jackson

here." The court also outlined why each instance would be

inadmissible. The court noted the evidentiary deficiencies,

stating that the 1995 and 2004 acts "lacked sufficient probative
value." The court went on, concluding that the 2008 act "would
18
 No. 2011AP2698-CR

have triggered a satellite trial over whether . . . Mr. McCaleb

was the first aggressor or not, the kind of sideshow that courts

have long lamented as the reason for excluding character

evidence consisting of specific instances of conduct rather than

reputation or opinion testimony."

¶38 The court noted that in some circumstances a victim's

reputation for violence could be admissible, but concluded that

Werner v. State, 66 Wis. 2d 736, 226 N.W.2d 402 (1975),

precludes the use of specific acts of violence to prove the

first aggressor issue: "[e]vidence of specific acts of violence

from Mr. McCaleb's past are not admissible to prove that he has

a propensity for violence or that Mr. Jackson was acting in

self-defense."

¶39 On November 21, 2011, Jackson filed a notice of appeal

from the judgment of conviction entered on January 19, 2010, and

from the order denying his motion for a new trial entered on

October 17, 2011. Jackson renewed the arguments he raised in

his postconviction motion, but framed the evidentiary issue
differently. Rather than arguing that the three specific acts

of violence were improperly excluded, Jackson conceded that

"[i]f . . . the defendant was not acquainted with the victim or

his specific instances of violent conduct prior to their violent

encounter, the defendant is limited to introducing evidence of

the victim's violent character by way of reputation or opinion

evidence." Jackson's argument, for the first time, focused on

the exclusion of testimony as to McCaleb's reputation for
violence, rather than the exclusion of the specific prior acts.
19
 No. 2011AP2698-CR

He argued that not allowing testimony regarding McCaleb's

reputation for violence denied him the opportunity to show that

McCaleb possessed a violent character and was likely the first

aggressor. Jackson did not appeal the circuit court's exclusion

of McCaleb's prior violent conduct as other acts evidence under

Wis. Stat. § 904.04(2).

¶40 On May 9, 2012, the State filed its brief in the court

of appeals. The State noted the shift in Jackson's position,

and then argued that reputation evidence is also inadmissible

where the defendant is unaware of the victim's reputation. The

State also argued that in any event Jackson had failed to lay a

proper foundation for any reputation evidence.

¶41 On October 10, 2012, the court of appeals affirmed the

circuit court. Jackson, No. 2011AP2698-CR, unpublished slip

op., ¶¶14, 23. The court of appeals concluded with respect to

the exclusion of evidence that "a defendant's prior knowledge of

the victim's character, either by reputation or specific acts,

has consistently been a prerequisite to admission of such
evidence as part of a self-defense claim." Id., ¶21. Because

Jackson did not have knowledge of McCaleb's violent character,

the court of appeals concluded that the circuit court had

properly excluded evidence of that character. Id. Although

Jackson did not raise it in his briefing, the court of appeals

also rejected the argument that the prior acts could be admitted

to prove "McCaleb's motive, opportunity and lack of accident or

mistake," reasoning that none of those were an element of
Jackson's self-defense claim. Id., ¶22.
20
 No. 2011AP2698-CR

¶42 Jackson petitioned this court for review, which we

granted on February 12, 2013.

III. STANDARD OF REVIEW

¶43 "This court will not disturb a circuit court's

decision to admit or exclude evidence unless the circuit court

erroneously exercised its discretion." Weborg v. Jenny, 2012 WI

67, ¶41, 341 Wis. 2d 668, 816 N.W.2d 191 (citing State v.

Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448). "A

circuit court erroneously exercises its discretion if it applies

an improper legal standard or makes a decision not reasonably

supported by the facts of record." Id. (citing Johnson v.

Cintas Corp. No. 2, 2012 WI 31, ¶22, 339 Wis. 2d 493, 811

N.W.2d 756).

¶44 "[A] circuit court's erroneous exercise of discretion

does not warrant a new trial if the error was harmless."

Weborg, 341 Wis. 2d 668, ¶43 (citing State v. Harris, 2008 WI

15, ¶85, 307 Wis. 2d 555, 745 N.W.2d 397). "Application of the

harmless error rule presents a question of law that this court
reviews de novo." Id. (citing State v. Ziebart, 2003 WI App

258, ¶26, 268 Wis. 2d 468, 673 N.W.2d 369).

IV. ANALYSIS

¶45 Our analysis begins with the understanding that "the

circuit court's decisions to admit or exclude evidence are

entitled to great deference . . . ." State v. Head, 2002 WI 99,

¶43, 255 Wis. 2d 194, 648 N.W.2d 413 (citing Martindale v. Ripp,

2001 WI 113, ¶29, 246 Wis. 2d 67, 629 N.W.2d 698). This court
will reverse a discretionary decision only if the circuit
21
 No. 2011AP2698-CR

court's exercise of discretion "is based on an error of law."

Id.

¶46 In this case, the circuit court was called upon, in

part, to consider whether character evidence was admissible

under Wis. Stat. §§ 904.04 and 904.05. As a general rule,

"[e]vidence of a person's character or a trait of the person's

character is not admissible for the purpose of proving that the

person acted in conformity therewith on a particular

occasion . . . ." Wis. Stat. § 904.04(1).

¶47 An exception to this general rule is the admission of

"pertinent" character evidence of a victim offered by a criminal

defendant:

Except as provided in s. 972.11(2), evidence of a
pertinent trait of character of the victim of the
crime offered by an accused, or by the prosecution to
rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution
in a homicide case to rebut evidence that the victim
was the first aggressor.
Wis. Stat. § 904.04(1)(b).

¶48 When the exception has been satisfied, one way

character evidence may be presented is in the form of reputation

or opinion testimony. Wis. Stat. § 904.05(1). When the

exception has been satisfied and a defendant seeks to admit

specific instances of the victim's prior conduct, however, it

must be the case that "character or a trait of character" of the

victim "is an essential element of a charge, claim, or defense."

Wis. Stat. § 904.05(2).

22
 No. 2011AP2698-CR

¶49 In his pretrial motion, Jackson sought to admit three

prior violent acts by McCaleb in support of his argument that he

shot McCaleb in self-defense. Jackson argued that the prior

acts were admissible in two different ways. First, Jackson

argued that McCaleb's violent acts were admissible as other acts

evidence under Wis. Stat. § 904.04(2). Second, Jackson argued

that McCaleb's prior violent acts were admissible as evidence of

McCaleb's "character for violence" under Wis. Stat.

§§ 904.04(1)(b), 904.05(1) and (2). Although mentioned in

passing, Jackson's motion and argument never focused on the

admission of McCaleb's "reputation for violence," but rather the

argument before the circuit court focused on the admissibility

of McCaleb's specific acts. In other words, the focus of both

the pretrial and postconviction motions, and therefore the focus

of the court's attention, was on Jackson's attempt to establish

McCaleb's character for violence by introducing these three

specific acts of violence. Jackson never established a

foundation or made a proffer for the admission of the statement
"McCaleb had a reputation for violence." Jackson also never

requested a specific ruling from the court regarding the

admissibility of that evidence.

¶50 Reputation evidence, such as the statement "McCaleb

had a reputation for violence," is not proven by the admission

of testimony of specific acts. Specific act testimony has far

more persuasive value than the one-liner "X had a reputation for

violence," and so it is much more appealing to introduce
specific acts evidence. Not surprisingly then, the focus of
23
 No. 2011AP2698-CR

Jackson's counsel, the State, and the trial court was on the

admission of the three specific acts, and not general reputation

testimony.

¶51 The record reflects that counsel never clearly argued

to lay the foundation and for admissibility of reputation

testimony before the circuit court. If Jackson's counsel did

intend that reputation testimony be admitted, when it seemed the

State and the court were not following that argument, counsel

should have clarified the issue, laid the foundation, and

requested a specific ruling on reputation evidence. Instead,

the moving papers do not set forth the foundation for

admissibility, an oral proffer was not made at argument, and

thus, the issue was not properly preserved for appeal.

¶52 Pretrial, Jackson did not argue that the evidence he

sought to introduce would be "McCaleb had a reputation for

violence." He did not frame his analysis in terms of the

admission of general reputation evidence to establish first

aggressor. He did not argue that McCaleb was the first
aggressor at trial, although he claims the State argued first

aggressor in its closing argument. Jackson's first mention of

introducing general "reputation for violence" evidence to

establish first aggressor was in his postconviction motion.

Although Jackson now argues that the defect in the circuit

court's ruling was exclusion of general reputation testimony, it

is also telling that his pretrial and postconviction motions are

primarily cast in terms of the admissibility of the three
specific acts he offered in his pretrial motion. This court has
24
 No. 2011AP2698-CR

held that "all claims of error that a criminal defendant can

bring should be consolidated into one motion or appeal." State

v. Lo, 2003 WI 107, ¶44, 264 Wis. 2d 1, 665 N.W.2d 756 (emphasis

in original). Claims that are not so consolidated are barred

"absent a showing of a sufficient reason for why the claims were

not raised . . . ." Id.

¶53 Character evidence, in the form of reputation,

opinion, or specific acts, and other acts evidence may appear

intertwined, but each requires a different legal analysis for

admission. Jackson seemingly conflated character evidence, by

reputation and specific acts, and other acts evidence in his

motions before the circuit court. Even though reputation

evidence is the focus of this appeal, in an effort to clarify

the law this opinion will address other acts evidence, character

shown by reputation or opinion evidence, and character shown by

specific incidents of conduct. Each evidentiary principle

carries a unique analysis. In this case, however, we conclude

that the circuit court properly exercised its discretion in
excluding the evidence under any of these principles.

A. Other Acts Evidence

¶54 Jackson argued in his pretrial motion that three prior

acts of violence were admissible as other acts evidence under

Wis. Stat. § 904.04(2). Postconviction, Jackson has not argued

that the trial court erred in excluding the other acts evidence.

Pretrial, Jackson asserted that the 1995 disorderly conduct

conviction, the 2004 assault and battery citation, and the 2008
disorderly conduct citation were relevant to show McCaleb's
25
 No. 2011AP2698-CR

"motive, opportunity and lack of accident or mistake." The

circuit court rejected these arguments and concluded that the

evidence was not offered for an acceptable purpose, was

irrelevant to the case, and alternatively that the probative

value of the evidence was outweighed by the danger of prejudice.

¶55 The admissibility of other acts evidence is addressed

using a three-step analysis:

(1) Is the other acts evidence offered for an
acceptable purpose under Wis. Stat. § (Rule)
904.04(2), such as establishing motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident?

(2) Is the other acts evidence relevant, considering
the two facets of relevance set forth in Wis.
Stat. § (Rule) 904.01? The first consideration
in assessing relevance is whether the other acts
evidence relates to a fact or proposition that is
of consequence to the determination of the
action. The second consideration in assessing
relevance is whether the evidence has probative
value, that is, whether the other acts evidence
has a tendency to make the consequential fact or
proposition more probable or less probable than
it would be without the evidence.

(3) Is the probative value of the other acts evidence
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? See Wis. Stat. § (Rule)
904.03.
State v. Sullivan, 216 Wis. 2d 768, 772-73, 576 N.W.2d 30 (1998)

(footnote omitted).

26
 No. 2011AP2698-CR

¶56 Here, the circuit court properly excluded the evidence

of McCaleb's past violent conduct under each of the three prongs

of the Sullivan test.

¶57 First, although his motion recited the language from

Wis. Stat. § 904.04(2) and Sullivan, Jackson failed to connect

the specific instances of violence with any of the permissible

purposes described in those sources. The Sullivan court made

clear that the proponent of other acts evidence has the burden

of showing how the evidence meets each prong of the analysis.

216 Wis. 2d at 774. A separate analysis is required for each

piece of evidence. State v. Hunt, 2003 WI 81, ¶43, 263

Wis. 2d 1, 666 N.W.2d 771.

¶58 Jackson purportedly offered the evidence to show

McCaleb's "motive, opportunity and lack of accident or mistake"

but he never explained how the evidence met the criteria for

admission as other acts evidence. The circuit court determined

that "you have indicated that these two people didn't even know

each other, so I don't think that substantiates any type of
motive to do something to the defendant. I don't think it even

qualifies under the first analysis [sic] with regard to the

Sullivan analysis." Simply stated, Jackson failed to show how

the other acts evidence was related to an acceptable purpose

under the statute.

¶59 Second, we agree with the circuit court that Jackson

failed to show how the other acts evidence is relevant under

Wis. Stat. § 904.04(2). Jackson did not show that the past
conduct related to a consequential fact, nor did he show its
27
 No. 2011AP2698-CR

probative value. In a first-degree intentional homicide case,

self-defense is applicable if the defendant (1) reasonably

believed that he or she was facing a threat of "imminent death

or great bodily harm," and (2) reasonably believed the amount of

force used was "necessary to prevent" the threat. See Wis.

Stat. § 939.48(1); Wis. JI——Criminal 805. At least in part

because he was unaware of McCaleb's past conduct, the

reasonableness of Jackson's beliefs was not impacted by that

conduct. Thus, as the circuit court concluded, these specific

acts by McCaleb were irrelevant.

¶60 Third, the circuit court determined that the probative

value was substantially outweighed by the prejudice:

I don't think it even qualifies under the first
analysis [sic] with regard to the Sullivan analysis.
So I don't even think you can get beyond that, but
even if you have, I think the probative value would be
substantially outweighed by the danger of prejudice,
unfair prejudice, so that evidence is not admissible.
¶61 For purposes of other acts evidence, the circuit court

properly applied the facts before it to the proper legal

standard and excluded the three prior acts of violence. Based

on the record, we cannot conclude that the circuit court

erroneously exercised its discretion. Given that Jackson has

focused his appeal on character evidence, we can conclude that

he now agrees.

B. Character Evidence

¶62 Before the circuit court, Jackson argued that three

prior acts could be admitted to show "evidence of a pertinent
trait" of McCaleb's character under Wis. Stat. § 904.04(1).

28
 No. 2011AP2698-CR

Jackson also argued that "in a self-defense case where the

violent character of the deceased is an essential element of the

defense," testimony concerning the victim's reputation for

violence is admissible. Jackson did not identify any witnesses

in his motion who could testify that "McCaleb had a reputation

for violence," and he did not lay a foundation for the

admissibility of that general testimony. Jackson also did not

show how McCaleb's violent character was "an essential element

of a charge, claim, or defense," such that the specific acts

were admissible under Wis. Stat. § 904.05(2).

¶63 The circuit court rejected Jackson's arguments and

concluded: "I think the probative value would be substantially

outweighed by the danger of prejudice, unfair prejudice, so that

evidence is not admissible."

¶64 Generally speaking, "[e]vidence of a person's

character or a trait of the person's character is not admissible

for the purpose of proving that the person acted in conformity

therewith on a particular occasion . . . ." Wis. Stat.
§ 904.04(1). "[T]he law of evidence disdains the use of

character to show propensity to behave in a certain way." 7

Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence

§ 405.1, at 225 (3d ed. 2008). We agree.

¶65 There are, however, exceptions to this general rule,

one of which is evidence of a "pertinent character trait" of the

deceased in a homicide prosecution. Wis. Stat. § 904.04(1)(b).

When character is at issue, proof may be made at trial by

29
 No. 2011AP2698-CR

reputation testimony, opinion testimony, and by specific acts.

Wis. Stat. § 904.05(1) and (2).

¶66 Reputation testimony is one form of hearsay in which a

witness will testify about the subject's reputation within the

community. Opinion testimony permits the witness to testify

about his or her own opinion of the subject's character.

Neither reputation nor opinion testimony include evidence of

specific instances of conduct, except perhaps in cross-

examination or rebuttal.

¶67 Reputation and opinion testimony have significant

persuasive limitations before a jury because they tend to be of

a sweeping and conclusory nature. Reputation testimony, in

particular, "has been aptly but disparagingly described as the

'irresponsible product of multiple guesses and gossip.'"

Blinka, supra, § 405.2, at 226. This type of reputation

testimony, which would tend to show that "McCaleb had a

reputation for violence," does not permit the jury to hear about

specific acts of violence.
¶68 On the other hand, the introduction of specific acts

to prove character requires a different analysis. "Of the three

methods of proving character provided by the rule, evidence of

specific instances of conduct is the most convincing. At the

same time it possesses the greatest capacity to arouse

prejudice, to confuse, to surprise, and to consume time."

Advisory Committee Notes-1972 Proposed Rules, Fed. R. Evid. 405.

A court may properly consider the value of the admissibility of
specific acts against competing interests such as prejudice,
30
 No. 2011AP2698-CR

confusion, or creating a trial within a trial. In other words,

does the probative value outweigh the prejudicial effect? The

use of character evidence shown through specific acts requires

even more than the foundation required for the admission of

reputation or opinion testimony. To admit specific acts to show

character, the character or trait of character must be "an

essential element of a charge, claim, or defense." Wis. Stat.

§ 904.05(2). The circuit court still retains great discretion

in determining whether to admit the evidence.

¶69 In his pretrial motion, Jackson stated that McCaleb's

violent character was "pertinent" to his self-defense theory,

but made little effort to explain further. At the circuit court

level, Jackson had sought to prove McCaleb's character for

violence by introducing the three specific acts of violence

under Wis. Stat. § 904.05(2). Critically, Jackson never focused

his argument on the admissibility of the statement "McCaleb had

a reputation for violence" in the circuit court. Instead, he

primarily sought to prove that McCaleb was violent by
introducing specific instances of conduct. Jackson now claims

that McCaleb's violent character was relevant to determining who

the first aggressor was in their confrontation such that the

circuit court ought to have allowed testimony that "McCaleb had

a reputation for violence." On appeal, Jackson has abandoned

the argument that the circuit court erred when it denied

admission of the specific instances of conduct. Jackson's

change of heart does not afford him the relief he requests.

31
 No. 2011AP2698-CR

¶70 We first address whether Jackson laid a proper

foundation for admitting reputation evidence——"McCaleb had a

reputation for violence." Second, even though Jackson

apparently now agrees that the offered specific prior acts are

inadmissible, we address whether the circuit court erroneously

excluded evidence of McCaleb's violent character through the

specific instances offered. In each instance, we conclude that

the circuit court's exercise of discretion was not erroneous.

1. Reputation Evidence

¶71 Jackson asks this court to find that the character

evidence "McCaleb had a reputation for violence" is admissible

despite the fact that Jackson was unaware of that reputation at

the time of the shooting. We first discuss whether Jackson laid

a proper foundation for the reputation evidence. We hold that

he did not. We further conclude that Jackson failed to make a

proffer regarding reputation evidence, and so failed to preserve

the issue for appeal. Wis. Stat. § 901.03(1); State v. Winters,

2009 WI App 48, ¶¶17-19, 317 Wis. 2d 401, 766 N.W.2d 754
(holding that a party challenging a trial court's ruling

excluding evidence is obligated to make an offer of proof).

¶72 "The foundation for reputation is deliberately

simplistic. Properly framed, the reputation testimony can be

elicited in less than a minute. The streamlined foundation

befits the evidence's modest probative value." Blinka, supra,

§ 405.2, at 226. A proper foundation for reputation testimony

requires showing four elements:

32
 No. 2011AP2698-CR

• The witness belongs to, or is knowledgeable about, a
community (residential, business, or social) to
which the subject belongs.

• The subject has a reputation for a particular
character trait.

• The witness knows the reputation.

• The witness testifies to the reputation.
Id.

¶73 Despite these relative modest requirements, Jackson's

motions before the trial court failed to lay a foundation for

reputation testimony. At most, Jackson's postconviction motion

pointed to "Comp and others" as witnesses who could testify to

"[McCaleb's] reputation and character for violence." Notably,

such reference was not made at the pretrial stage. At no time

did Jackson identify the community Comp shared with McCaleb, nor

did he include any information regarding Comp's knowledge of

McCaleb beyond the single interaction the two had in January

2008. Thus, at the pretrial stage, Jackson made it less than

clear that he was seeking this general reputation testimony.

The focus was seemingly on the specific acts. Without any

foundation, the circuit court was in no position to make the

findings necessary to properly admit the reputation testimony.

¶74 At most, Comp's knowledge of McCaleb's reputation was

included for the first time as an attachment in Jackson's

sentencing memorandum. Even in Jackson's postconviction motion,

the focus remained on the specific act evidence rather than

general reputation testimony. At least the postconviction

33
 No. 2011AP2698-CR

motion began to discuss some foundation for the admission of

reputation testimony.

¶75 Additionally, assuming Jackson believed the trial

court had erred, he never requested the opportunity to proffer a

foundation for admitting McCaleb's reputation for violence.

Jackson bore the responsibility to make an offer of proof in

order to preserve the issue for appeal. Winters, 317

Wis. 2d 401, ¶19. Here, Jackson's counsel did not make a

further proffer to the court orally or in writing, nor did

counsel clarify that a reputation evidence ruling was sought

from the court.

¶76 Jackson now asks this court to consider the additional

information about Comp provided postconviction, rather than

relying on the original motion papers and argument transcript.

We decline to do so because:

Error may not be predicated upon a ruling which admits
or excludes evidence unless a substantial right of the
party is affected; and

. . .

(b) Offer of proof. In case the ruling is one
excluding evidence, the substance of the evidence was
made known to the judge by offer or was apparent from
the context within which questions were asked.
Wis. Stat. § 901.03(1); see also Winters, 317 Wis. 2d 401, ¶24.

¶77 Consequently, the circuit court did not err in

precluding admission of reputation evidence because it was never

provided with a foundation to admit that evidence, and we are
left with no proffer regarding the evidence.

34
 No. 2011AP2698-CR

¶78 Although it was not clearly raised either before the

trial or postconviction courts, Jackson now argues that

McCaleb's violent reputation, rather than evidence of his

specific past acts of violence, is relevant to determining

whether he was the first aggressor in the shooting. While it

may be the best argument Jackson now has on appeal, the record

below demonstrates that this was not the argument being advanced

by trial counsel, and was not adequately presented to the trial

court such that the court would recognize the evidence that it

was being called upon to admit. The trial court did not

erroneously exercise its discretion in not deciding a character

evidence argument that it never knew was being made to the

court.

¶79 It is certainly true that in some self-defense cases

there is a genuine factual dispute over which party started a

confrontation. In those cases, evidence of the victim's

character for violence might be admissible and the circuit court

is endowed with the discretion to make that determination. See,
e.g., Werner v. State, 66 Wis. 2d 736, 226 N.W.2d 402 (1975).

The circuit court is empowered to balance the "modest" probative

value of the reputation testimony against the prejudice and the

general prohibition against propensity evidence. Wis. Stat.

§§ 904.01, 904.03.

¶80 In this case, however, not only is the foundation for

the character evidence missing and the proffer insufficient to

preserve the issue for appeal, but the circuit court was not
specifically asked to rule on the admissibility of testimony
35
 No. 2011AP2698-CR

"McCaleb had a reputation for violence" in reference to showing

first aggressor. To the extent that the circuit court could

have perceived that counsel sought to use this reputation

evidence to address the first aggressor issue, the most relevant

testimony regarding McCaleb being the first aggressor was

already before the jury. The jury heard from five witnesses who

testified to the events that led up to the shooting and the fact

that McCaleb was undisputedly violent on the evening in

question. Hearing that "McCaleb had a reputation for violence"

would have been anticlimactic at best. Consequently, had a

proper foundation for the evidence been laid, and the circuit

court been properly presented with a request to admit testimony

that "McCaleb had a reputation for violence" on the first

aggressor issue, it could still have reasonably concluded that

it would be cumulative, that the danger of the jury drawing an

improper propensity inference and the likelihood of prejudice

outweighed the probative value.

2. Specific Acts of Violence
¶81 The State and Jackson now apparently agree that

specific acts evidence is not admissible in this case. Jackson

does not raise the issue on appeal. Nonetheless, we will

briefly address this type of character evidence. Character

evidence can be admissible in the form of specific instances of

conduct. However, the foundation for the admissibility of

specific instances of conduct is different than the foundation

for general reputation or opinion testimony. If character is
properly at issue and the exception to admissibility of
36
 No. 2011AP2698-CR

propensity evidence is met, specific acts may still be offered

only if "character or a trait of character . . . is an essential

element of a charge, claim, or defense . . . ." Wis. Stat.

§ 904.05(2). Nonetheless, even if character or a trait of

character is an essential element, the circuit court is endowed

with the authority to exercise its discretion regarding

admissibility. In this case, a character trait was not an

element that the State had to prove, nor was it an element of

Jackson's self-defense claim. Thus the circuit court properly

excluded evidence of McCaleb's prior violent acts. The court

ruled: "It's got to be something that the defendant knew.

Otherwise, it is doing something that's improper. So since the

defendant did not know about those acts, I don't believe that

the defense is allowed to go into those." The decision of the

circuit court was not clearly erroneous in excluding this

evidence.

¶82 We have held that specific prior acts of violence by

the victim may be admissible when the defendant is aware of the
acts. In the case at issue, we are not presented with

traditional McMorris evidence. In McMorris, the circuit court

concluded the prior acts of violence were known to the

defendant. As a result, the prior acts were admissible to show

that the defendant's apprehension of the threat from the victim

was reasonable, and thus, went to an essential element of self-

defense. Wis. Stat. § 904.05(2); Wis. JI——Criminal 805.

Jackson never claimed to have such knowledge in the present

37
 No. 2011AP2698-CR

case. Thus, the requested acts are not admissible as McMorris

evidence.

¶83 In McMorris, the court held:

When the issue of self-defense is raised in a
prosecution for assault or homicide and there is a
factual basis to support such defense, the defendant
may, in support of the defense, establish what the
defendant believed to be the turbulent and violent
character of the victim by proving prior specific
instances of violence within his knowledge at the time
of the incident.
58 Wis. 2d at 152.10

¶84 Specific incidents of conduct to prove character are

not admissible unless "character or a trait of

character . . . is an essential element of a charge, claim, or

defense." Wis. Stat. § 904.05(2). "[T]he law of evidence

disdains the use of character to show propensity to behave in a

certain way." Blinka, supra, § 405.1, at 225. Allowing

admission of a victim's specific prior acts of violence, unknown

to the defendant, would here invite just such an improper

propensity inference. Thus, even if Jackson had argued the

first aggressor issue to the trial court, such prior specific

acts would nonetheless be inadmissible because "character or a

10
Similarly, in State v. Head this court held "McMorris
evidence may not be used to support an inference about the
victim's actual conduct during the incident." 2002 WI 99, ¶128,
255 Wis. 2d 194, 648 N.W.2d 413. But "[i]t may be admitted
because it 'bear[s] on the reasonableness of the defendant's
apprehension of danger at the time of the incident.'" Id.
(citing McMorris, 58 Wis. 2d at 149); see also Werner v. State,
66 Wis. 2d 736, 226 N.W.2d 402 (1975).

38
 No. 2011AP2698-CR

trait of character" was not "an essential element of a charge,

claim, or defense" in this case. Apparently Jackson now agrees.

C. Harmless Error

¶85 We conclude that the circuit court did not erroneously

exercise its discretion. Nonetheless, if we were to assume that

it was error for the trial court to exclude testimony that

"McCaleb had a reputation for violence," we also conclude any

such error on the part of the court was harmless.

¶86 The State bears the burden of proving that the error

was harmless. Sullivan, 216 Wis. 2d at 792. The court deems an

error harmless if it cannot conclude "beyond a reasonable doubt

that a rational jury would have found the defendant guilty

absent the error." State v. Harvey, 2002 WI 93, ¶49, 254

Wis. 2d 442, 647 N.W.2d 189 (citing Neder v. United States, 527

U.S. 1 (1999)).

¶87 When a court has improperly admitted evidence,

reversal is not warranted "unless an examination of the entire

proceeding reveals that the admission of the evidence has
'affected the substantial rights' of the party seeking the

reversal." State v. Armstrong, 223 Wis. 2d 331, 368, 588

N.W.2d 606 (1999); see also Wis. Stat. § 901.03(1). In order to

support reversal, there must be a "'reasonable probability that,

but for . . . [the] errors, the result of the proceeding would

have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.'" Armstrong,

223 Wis. 2d at 369 (quoting Strickland v. Washington, 466 U.S.
668, 694-95 (1984)).
39
 No. 2011AP2698-CR

¶88 In this case, considering the trial as a whole, we

conclude that, if excluding "McCaleb's reputation for violence"

was error, that error was harmless.11 Even assuming the issue

had been properly before the circuit court, reputation testimony

is of "modest probative value." Blinka, supra, § 405.2, at 227.

Thus, even if it had been admitted, the general reputation

evidence "McCaleb had a reputation for violence" would have

paled in comparison to the detailed evidence that was already

before the jury.

¶89 Although the jury did not hear the sentence "McCaleb

had a reputation for violence," the jury nonetheless heard that

McCaleb was violent. The jury heard testimony that McCaleb, who

was described as being taller, heavier, and more muscular than

Jackson, drove up to Jackson's home in a black car with deeply

tinted windows. The jury heard testimony that McCaleb had a

blood alcohol content of .18 and was acting belligerently. When

referring to Jackson, McCaleb told Davis to "fuck that nigger."

He shouted statements such as "you've got some fuckin' nerve
knockin' on a car window," "you don't know who the fuck I am,"

and "who the fuck are you?" The jury heard that McCaleb came

toward one of the females "like to hit" her with his fist

"clenched" and that he had "[a]nger in his face." The jury also

11
Here, we conclude that this presumed error by the court
was harmless. In this case, it follows that counsel's errors
regarding reputation testimony could not have prejudiced
Jackson, such that counsel was ineffective. See State v.
Carter, 2010 WI 40, ¶37, 324 Wis. 2d 640, 782 N.W.2d 695 (citing
Strickland v. Washington, 466 U.S. 668, 691-93 (1984)).

40
 No. 2011AP2698-CR

heard that McCaleb got "so mad" and went back to his car as if

to get something and returned from the car "speed-walking"

toward Jackson with one of his hands behind his back yelling

"you got me fucked up" and that he had "something for you,

motherfucker" just before Jackson fired the fatal shot.

¶90 Simply adding general reputation testimony that

"McCaleb had a reputation for violence" to this substantial body

of evidence does not create the "reasonable probability" of a

different outcome. Armstrong, 223 Wis. 2d at 369. Moreover,

any reputation witness would have been subject to rigorous

cross-examination. At best, that one sentence——in light of all

the evidence presented at trial——would have been fleeting and

cumulative.

¶91 Therefore, assuming the circuit court erred in denying

admission of the "modestly" probative evidence, "McCaleb had a

reputation for violence," that error was harmless in light of

all the evidence regarding McCaleb being violent on the evening

in question.
V. CONCLUSION

¶92 We hold that the circuit court did not erroneously

exercise its discretion in denying Jackson's motion to admit

character evidence. The circuit court properly determined that

in order for specific acts of violence to be admissible,

"character or a trait of character of a person" must be "an

essential element of a charge, claim, or defense." In a

homicide case where a claim of self-defense is raised, character
evidence may be admissible as evidence of the defendant's state
41
 No. 2011AP2698-CR

of mind so long as the defendant had knowledge of the prior acts

at the time of the offense. McMorris, 58 Wis. 2d at 152. We

also conclude that the circuit court did not err in denying

Jackson's motion to admit testimony that the victim had a

reputation for violence under Wis. Stat. § 904.05(1). Jackson

failed to establish a proper foundation for the court to

determine that evidence of the victim's reputation for violence

was admissible. We further conclude that, even assuming error

occurred, that error was harmless. Therefore, we affirm the

decision of the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

42
 No. 2011AP2698-CR.awb

¶93 ANN WALSH BRADLEY, J. (concurring). I agree with

the majority and dissent when they determine that evidence of

the victim's reputation for violence offered to demonstrate the

identity of the first aggressor is relevant to a defendant's

self-defense claim. Majority op., ¶¶47-48, 65, 79; dissent,

¶¶96-97, 113.

¶94 I further determine, for reasons set forth in the

dissent, that the circuit court erroneously denied the

defendant's motion to admit evidence of the victim's reputation

without allowing the defendant an opportunity to present a

better foundation for reputation evidence. Therefore, I join

Part I of the dissent.

¶95 I ultimately conclude, however, that for reasons set

forth in the majority opinion, the error is harmless. As the

majority notes, in order to reverse a conviction based on an

erroneous evidentiary ruling, there must be a reasonable

probability that the outcome of the trial would have been
different without the error. Majority op., ¶87 (citing State v.

Armstrong, 223 Wis. 2d 331, 368, 588 N.W.2d 606 (1999)). "A

reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id. at 368 (quoting Strickland v.

Washington, 466 U.S. 668, 694-95 (1984)). I agree with the

majority that it is unlikely that the reputation evidence would

have affected the outcome in this case. Therefore, I join Part

IV. C. of the majority opinion and respectfully concur.

1
 No. 2011AP2698-CR.awb

2
 No. 2011AP2698-CR.ssa

¶96 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I agree

with the majority opinion's implicit holding that evidence of

the victim's reputation for violence is admissible on the issue

of first aggressor when a defendant raises a self-defense claim,

even when the defendant is unaware of the reputation.1 Majority

op., ¶¶47, 48, 79.
1
Wisconsin Stat. § 904.04(1)(b) provides:

(1) Character evidence generally. Evidence of a
person's character or a trait of the person's
character is not admissible for the purpose of proving
that the person acted in conformity therewith on a
particular occasion, except:

. . . .

(b) Character of victim. Except as provided in s.
972.11(2), evidence of a pertinent trait of character
of the victim of the crime offered by an accused, or
by the prosecution to rebut the same, or evidence of a
character trait of peacefulness of the victim offered
by the prosecution in a homicide case to rebut
evidence that the victim was the first
aggressor . . . .

"Exception [904.04(1)](b) makes clear that evidence in a
homicide case claiming the victim was the first aggressor
affords the prosecution the right to introduce rebutting
evidence of the peacefulness of the victim." Wisconsin Rules of
Evidence § 904.04, 59 Wis. 2d at R76 (Judicial Council
Committee's Note) (1974).

The Federal Advisory Committee's Note elaborates:

Character evidence is susceptible of being used for
the purpose of suggesting an inference that the person
acted on the occasion in question consistently with
his character. This use of character is often
described as "circumstantial." Illustrations are:
evidence of a violent disposition to prove that the
person was the aggressor in an affray . . . .
1
 No. 2011AP2698-CR.ssa

¶97 Character evidence of a victim's violent disposition

in the form of reputation evidence to prove that the victim was

the first aggressor in an affray is routinely accepted in the

evidence literature as a paradigmatic admissible use of

character evidence.2

¶98 I disagree, however, with the majority opinion's

analysis that the defendant failed to lay a proper foundation3

for the introduction of evidence of the victim's reputation and

failed to follow through with a self-defense claim that the

victim was the first aggressor. I also disagree with the

majority opinion's harmless error analysis.

In most jurisdictions today, the circumstantial use of
character is rejected but with important
exceptions: . . . (2) an accused may introduce
pertinent evidence of the character of the victim, as
in support of a claim of self-defense to a charge of
homicide . . . and the prosecution may introduce
similar evidence . . . in a homicide case, to rebut a
claim that deceased was the first aggressor, however
proved . . . .

Wisconsin Rules of Evidence § 904.04, 59 Wis. 2d at R76-R77
(Federal Advisory Committee's Note).
2
See 1A Wigmore on Evidence, § 63 at 1365 (Peter Tillers
ed., 1983) ("[T]he most frequent use of character evidence
against a victim is when a violent crime is charged, to show
that the victim was the first aggressor."); 1 McCormick on
Evidence § 193 (Kenneth S. Broun ed., 7th ed. 2013) (noting that
when "there is a dispute as to who was the first aggressor,"
"the accused can introduce evidence of the victim's character
for turbulence and violence" limited to "reputation or opinion
rather than to specific acts"); 22A Fed. Practice & Procedure:
Evidence § 5237 (Kenneth W. Graham, Jr. ed., 2d ed. 2013)
(identifying "'violent disposition' to prove that the victim was
the aggressor in an affray" as a pertinent trait admissible
under Federal Rule of Evidence 404(a)(2)).
3
See majority op., ¶¶8, 49, 51, 71-77.

2
 No. 2011AP2698-CR.ssa

I

¶99 The majority opinion mistakenly concludes that the

defendant failed to lay a proper foundation to introduce

evidence of the victim's reputation and failed to present the

issue that the victim was the first aggressor as part of his

self-defense claim.

A

¶100 The majority opinion zeroes in on the motion papers to

show that the defendant did not properly raise the issue of the

victim's reputation for violence to show that the victim was the

first aggressor. Majority op., ¶¶73-75.

¶101 On the contrary, the motion clearly sought admission

of evidence of the victim's violence in the form of reputation

evidence. Here is the relevant portion of the defendant's

motion carefully distinguishing between evidence of previous

acts and evidence of the victim's reputation for violence and

seeking admission of the latter:

3. Mr. Jackson was not acquainted with [the victim]
and was not aware of these previous acts of violence
at the time of the shooting, thus he is not able to
admit evidence of these acts pursuant to doctrines set
forth in McMorris v. State, 58 Wis. 2d 144 (1973) and
State v. Daniels, 160 Wis. 2d 85 (1991), which permit
the admission of specific violent acts of a victim
previously known to a defendant in a self defense
case. However, Wisconsin Statutes § 904.04(1)(b)
provides for the admissibility of "evidence of a
pertinent trait of character of the victim of the
crime offered by an accused, or by the prosecution to
rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution
in a homicide case to rebut evidence that the victim
was the first aggressor." Thus in a self defense case
where the violent character of the deceased is an
essential element of the defense, opinion and
3
 No. 2011AP2698-CR.ssa

reputation testimony concerning the victim's
reputation for violence is relevant and admissible and
a trial court abuses its discretion in excluding such
testimony. State v. Boykins, 119 Wis. 2d 272, 279
(Ct. App. 1984). Thus such reputation and opinion
evidence is permitted to show that the victim acted in
conformity with his character for violence (Wis. Stat.
§ 904.04(1)(b) and § 904.05(1).
¶102 Moreover, the defendant's motion papers do not

represent the defendants' entire pretrial argument on the

admission of evidence of the victim's reputation for violence.

¶103 In the pretrial hearing on the defendant's motion to
introduce evidence of the victim's character in the form of

prior acts or reputation and opinion testimony, the defendant

attempted to lay a foundation for the proposed testimony about

the victim's reputation. The result: the circuit court abruptly

and completely precluded defense counsel from laying her

foundation for testimony about the victim's reputation.

¶104 After the circuit court denied admission of the

defendant's "other acts" evidence under Wis. Stat. § 904.04(2),

defense counsel attempted to offer a foundation for evidence of

the victim's reputation.

¶105 The pertinent part of the transcript is as follows:

[DEFENSE COUNSEL]: Okay. Then I guess, first of all,
I understand the Court's ruling. Then I'm asking how
the Court is going to rule then specifically——omitting
specific facts but asking specifically I think that it
is admissible for the defense to proffer opinion and
reputation evidence of [the victim], the witness,
assuming I can lay a foundation, I believe I can, that
[the victim] is a violent person, the witness' opinion
that he is a violent person and that [the victim] had
a reputation for violence.

THE COURT: Mr. Williams?

4
 No. 2011AP2698-CR.ssa

[PROSECUTOR]: Judge, my understanding of character
evidence, the admissible character evidence is it
bears on credibility and I don't think that obviously
would bear on credibility since the victim is not here
to defend himself as to those accusations or opinions,
so I don't think they're relevant under the character
evidence statute.

THE COURT: All right. I agree [with the prosecutor].
I don't believe that those matters would be relevant,
so they would not be allowed.

[DEFENSE COUNSEL]: All right. Okay. So the court is
denying the defense proffer opinion and reputation——

THE COURT: Character evidence, Number 2, I believe
that is what it is entitled.

[DEFENSE COUNSEL]: Yes.

THE COURT: And that, in its entirety, is denied.
¶106 Defense counsel made a sufficient offer of proof.

"The offer of proof need not be stated with complete precision

or in unnecessary detail but it should state an evidentiary

hypotheses underpinned by a sufficient statement of facts to

warrant the conclusion or inference that the trier of fact is

urged to adopt." State v. Dodson, 219 Wis. 2d 65, 73, 580

N.W.2d 181 (1998) (citing Milenkovic v. State, 86 Wis. 2d 272,

284, 272 N.W.2d 320 (Ct. App. 1978)).
¶107 In any event, despite defense counsel's statement that

she could lay a foundation for the witness's testimony regarding

the victim's reputation, the circuit court accepted the

prosecutor's mistaken objection to the defendant's motion. The

prosecutor erroneously stated the reputation was character

evidence being offered for the credibility of the victim and not
relevant.

5
 No. 2011AP2698-CR.ssa

¶108 The circuit court never allowed defense counsel to lay

a better foundation, but instead simply agreed with the

prosecutor's mistaken objection and ruled that the circuit court

didn't "believe that those matters would be relevant" (emphasis

added).

¶109 Instead of addressing defense counsel's attempt to

offer evidence of the victim's reputation for violence, the

circuit court addressed evidence of specific acts, never coming

to grips with the defendant's proposed reputation testimony.

Indeed, the majority opinion concedes that the circuit court did

not digest "that Jackson's argument had shifted from the

admissibility of the specific acts to admissibility of the

statement 'McCaleb had a reputation for violence.'" Majority

op., ¶24.

¶110 The majority opinion asserts that the circuit court's

preclusion of the defendant's attempt to lay a better foundation

was not erroneous because "counsel did not object to the court's

rulings, or ask for a specific ruling on reputation evidence,"
nor did defense counsel "clarify her request [or] request the

opportunity to make a proffer." Majority op., ¶25.

¶111 Defense counsel did ask for a specific ruling on the

reputation evidence, as the transcript clearly shows. Defense

counsel obviously disagreed with the circuit court's ruling

against her. A bill of exceptions listing objections is not

needed in order to preserve an issue for appeal. Wis. Stat.

§ 805.11 explicitly bars the use of exceptions and bills of
exception: "An objection is not necessary after a ruling or

6
 No. 2011AP2698-CR.ssa

order is made. . . . Exceptions shall never be

made. . . . Evidentiary objections are governed by [Wis. Stat.]

§ 901.03."4

¶112 The transcript and majority opinion demonstrate that

the circuit court erred as a matter of law in not distinguishing

between evidence of the victim's reputation and evidence of the

victim's prior or other acts.5 The circuit court simply barred

all evidence of the victim's character.

¶113 As the majority opinion properly notes, evidence of

the victim's reputation for violence offered to demonstrate the

identity of the first aggressor is relevant to a defendant's

self-defense claim. Majority op., ¶79. Yet the circuit court

erroneously ruled that reputation evidence is categorically not

relevant in a self-defense case.

¶114 At the pretrial hearing, the circuit court certainly

knew that the defendant was raising a self-defense claim. In

fact, the prosecutor reminded the circuit court of the self-

4
Wisconsin Stat. § 901.03 provides in relevant part:

(1) Effect of erroneous ruling. Error may not be
predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is
affected; and

. . . .

(b) Offer of proof. In case the ruling is one
excluding evidence, the substance of the evidence was
made known to the judge by offer or was apparent from
the context within which questions were asked.
5
The circuit court similarly erred at the postconviction
motion hearing. See majority op., ¶¶36-37.

7
 No. 2011AP2698-CR.ssa

defense claim mere moments before the discussion regarding

reputation evidence. In opposing the defendant's pretrial

motion, the prosecutor stated, "[McMorris v. State, 58

Wis. 2d 144, 205 N.W.2d 559 (1973)] is very clear that the only

time [evidence of prior acts of violence] can be used in a self-

defense case is if the defendant knew it . . . ." (emphasis

added).

¶115 In a self-defense claim, the identity of the first

aggressor is significant. A defendant loses the privilege to

assert a claim of self-defense if he or she was the first

aggressor. See Wis. Stat. § 939.48(2); Banks v. State, 51

Wis. 2d 145, 186 N.W.2d 250 (1971) (holding that identity of

first aggressor was an essential issue that required reversal in

the interest of justice); Wayne R. LaFave, 2 Substantive

Criminal Law § 10.4(e) (2d ed. 2003) ("It is generally said that

one who is the aggressor in an encounter with another——i.e., one

who brings about the difficulty with the other——may not avail

himself of the defense of self-defense.").
¶116 As the majority opinion additionally notes,

"'[p]roperly framed, the reputation testimony can be elicited in

less than a minute.'" Majority op., ¶72 (quoting 7 Daniel D.

Blinka, Wisconsin Practice Series: Wisconsin Evidence § 405.2,

at 226 (3d ed. 2008)).

¶117 Nevertheless, the circuit court did not give the

defendant the minute. When defense counsel asked for

clarification of the circuit court's pretrial evidentiary

8
 No. 2011AP2698-CR.ssa

ruling, the circuit court stated simply that "[the character

evidence], in its entirety, is denied."

¶118 When a defendant seeks to introduce evidence regarding

a pertinent character trait of the victim, "[w]ide latitude

should be granted to defendants in the use of the victim's

character" as "circumstantial evidence of conduct." 7 Daniel D.

Blinka, Wisconsin Practice Series: Wisconsin Evidence § 404.5

(3d ed. 2008).

¶119 The circuit court failed to grant the defendant any

latitude, let alone "wide latitude," in presenting the victim's

reputation for violence as part of the defense.

¶120 Rather than eliciting a full proffer from defense

counsel, the circuit court based its evidentiary ruling on an

erroneous understanding of law. The circuit court treated

specific acts evidence and reputation evidence the same way.

The circuit court erroneously denied the defendant's motion to

admit evidence of the victim's reputation without allowing the

defendant an opportunity to present a foundation for the
reputation evidence.

¶121 Defense counsel unambiguously raised the victim's

reputation to support the defendant's self-defense claim and was

precluded from making a better proffer of "opinion and

reputation evidence of [the victim] . . . that [the victim] is a

violent person, the witness' opinion that [the victim] is a

violent person."

¶122 Defense counsel did all she could do to preserve the
issue for appeal. She made a motion to include certain evidence

9
 No. 2011AP2698-CR.ssa

and testimony and then attempted a proffer. She asked for

clarification and was rebuffed.

¶123 The circuit court stopped defense counsel from making

a better proffer and denied her motion in its entirety. The

proffer cannot be viewed as insufficient when the circuit court

precluded any proffer. The failure, if any, to lay a foundation

lies with the circuit court, not with defense counsel.

B

¶124 In addition to misstating the substance and

significance of the pretrial proceedings on the defendant's

motion to admit evidence of the victim's reputation, the

majority opinion repeatedly errs in stating that the defendant

did not raise the issue of first aggressor at trial. Majority

op., ¶¶28, 36, 52, 84.

¶125 The issue of who attacked whom first, especially in

the present case where the victim was the larger, stronger

person,6 saturates the case as an element of the self-defense

claim. The present case provides numerous instances where the
defense raised the issue that the victim was the first aggressor

at trial, even though the defense did not always use the words

"first aggressor." Nothing in the law requires the defendant to

use the specific two words "first aggressor" to raise this issue

in a self-defense claim.

¶126 The record demonstrates that the issue of who was

first aggressor was an essential part of the case for both

6
See majority op., ¶27.

10
 No. 2011AP2698-CR.ssa

parties before, during, and after the presentation of evidence.7

The issue of the identity of the first aggressor was a

consistent component of both parties' cases-in-chief.

¶127 In its opening statement, the defense stated that

"[the victim and his friend] were starting an argument and were

poised to start something violent with [the defendant] and were

basically advancing as [the defendant] was retreating."

¶128 During direct and cross-examination of witnesses, the

issue of the identity of the first aggressor was a consistent

component of both parties' questioning.

¶129 The State, in its questioning of witnesses, asked

about whether the victim or his companion had "take[n] back a

hand or a fist and take[n] a swing or slap at [the witness]."

In a sidebar with the circuit court regarding a witness's

testimony, defense counsel noted that "here, the defense is

clearly that the victim was the first aggressor, and my client

acted in self-defense. . . . And this jury is making a

determination as to who the aggressor was in this particular set
of circumstances." During defense counsel's direct examination

of a witness, defense counsel and the prosecutor disputed the

use of the word "charging" to describe the victim's approach to

the defendant.

¶130 In closing argument, the first aggressor argument was

central to the defense and was disputed by the prosecution.

7
In contrast, the majority opinion asserts that "[n]either
the State nor Jackson specifically argued 'first aggressor'
until after all the evidence had been presented at trial."
Majority op., ¶28.

11
 No. 2011AP2698-CR.ssa

¶131 Defense counsel's closing argument restated the first

aggressor argument:

Two bigger, stronger, younger men came up to the
house. They got out of the car. They were
aggressive. They were cursing. They were using the F
word. [The victim and his companion] were advancing.
[The defendants and the other witnesses] were
retreating.

At some point [the victim] ran to the car, acted like
he was getting something, came charging back. And
that's when [the defendant] fired the shot.
¶132 The State disputed this claim in its own closing

statement as follows:

Who's escalating the situation out here? You got one
exchange of wording and [the defendant] feels that I
need to go get my gun, get it out, rack it up and have
it at my side. Who is the aggressor? [The defendant]
certainly indicates that it was [the victim] and his
friend.

But when you look at the facts, what you know, that's
not the case. The aggressor is [the defendant]
(emphasis added).
¶133 The question of who was the first aggressor was the

heart of the self-defense claim and was an issue for both
parties throughout every stage of the trial, from the

defendant's pretrial motion, to the pretrial hearing on the

defendant's motion, to the presentation of evidence at trial, to

closing statements, and to the postconviction proceedings.

¶134 The majority opinion mistakenly states that the

defendant's "first mention of introducing general 'reputation

for violence' evidence to establish first aggressor was in his

postconviction motion." Majority op., ¶52. The majority
opinion further mistakenly states that "[n]either the State nor

12
 No. 2011AP2698-CR.ssa

Jackson specifically argued 'first aggressor' until after all

the evidence had been presented at trial." Majority op., ¶28;

see also majority op., ¶84. Based on the record before this

court, the majority opinion has erred.

¶135 Although the majority opines that the fault lies with

the defendant's failure to lay a foundation for evidence of the

victim's reputation and the defendant's failure to rely on the

defense that the victim was the first aggressor, I conclude on

the basis of the record that defense counsel tried to lay a

foundation, but the circuit court precluded defense counsel from

doing so. Additionally, I conclude that the record shows that

the defendant's self-defense claim rested on the premise that

the victim was the first aggressor.

II

¶136 Once again, the court relies on harmless error to deny

a criminal defendant relief.8 A conclusion of harmless error

8
Scholars have noted the tendency of courts to find errors
harmless or not based on whether the court believes the
defendant is guilty. See, e.g., Harry T. Edwards, To Err Is
Human, But Not Always Harmless: When Should Legal Error Be
Tolerated?, 70 N.Y.U. L. Rev. 1167, 1187 (1995) ("As matters now
stand, in many criminal cases an error is harmless so long as
the appellate court remains convinced of the defendant's guilt;
an error warrants reversal only where it raises doubts about the
defendant's culpability.") (footnote omitted); Keith A. Findley
& Michael S. Scott, The Multiple Dimensions of Tunnel Vision in
Criminal Cases, 2006 Wis. L. Rev. 291, 349-50 (2006) (footnotes
omitted):

Even when appellate courts do find constitutional or
procedural errors at trial, they are disinclined to
grant relief. Increasingly, the harmless error
doctrine enables and encourages appellate courts to
overlook trial error when they are satisfied that the
defendant was in fact guilty. The harmless error
13
 No. 2011AP2698-CR.ssa

requires a finding that there exists no "reasonable probability"

that the jury could have acquitted. See State v. Armstrong, 223

Wis. 2d 331, 368, 588 N.W.2d 606 (1999). If the reputation

evidence were admitted, it may well have been a deciding factor

here, particularly because the victim's aggression was at the

core of the defendant's self-defense claim.

¶137 The majority opinion asserts that the reputation

evidence would be only "modestly probative." Majority op., ¶91

(internal quotation marks omitted). Consequently, it determines

that such evidence would be "fleeting and cumulative," majority

op., ¶90, and could not have had a "reasonable probability" of

changing the jury's verdict, majority op., ¶90 (citing State v.

Armstrong, 223 Wis. 2d at 369).

¶138 Yet, the issue of first aggressor was clearly disputed

by the parties, with extensive testimony on both sides. This is

not a case where the facts or inferences are uncontroverted.

Compare State v. Wenger, 225 Wis. 2d 495, 509-510, 593

N.W.2d 467 (1999) (holding that it was harmless error when the
circuit court failed to include evidence of a victim's violent

character because it would only corroborate extensive

uncontroverted evidence); Brandt v. Mason, 256 Wis. 314, 318, 41

doctrine has long posed challenges of definition and
application for courts. Increasingly, harmless error
analysis is applied in a way that turns on an
appellate court's assessment of a defendant's guilt,
as opposed to whether the error might have had an
effect on the verdict. . . . Under this doctrine,
cognitive biases can contribute in powerful ways to a
conclusion that the defendant was indeed guilty, and
that the error was therefore harmless.

14
 No. 2011AP2698-CR.ssa

N.W.2d 272 (1950) (holding that it was harmless error to exclude

evidence when the evidence would have simply corroborated an

"undisputed" statement).

¶139 In contrast, this case was messy, with conflicting

facts and inferences. Additional evidence of the victim's

violent character might have made a difference in the outcome.

Because the identity of the first aggressor goes to the

substance of the defendant's self-defense claim and is not a

collateral issue, even modestly probative evidence can have an

impact on a jury's decision-making.

¶140 As the court noted in State v. Head, 2002 WI 99, 255

Wis. 2d 194, 648 N.W.2d 413, the exclusion of substantial

evidence regarding a self-defense claim "went beyond harmless

error to impair fundamentally the defendant's ability to present

a defense." Head, 255 Wis. 2d 194, ¶138.

¶141 Our case law has long recognized that the erroneous

exclusion of evidence that directly implicates a self-defense

claim is not harmless. See State v. Nett, 50 Wis. 524, 7
N.W. 344 (1880) (holding that reversal was required when the

circuit court erred in excluding evidence of the victim's

reputation where a defendant raised self-defense); Banks v.

State, 51 Wis. 2d 145, 186 N.W.2d 250 (1971) (holding that

reversal was required when the circuit court erred in excluding

evidence that the defendant may have been the first aggressor,

which would eliminate the privilege of self-defense); McMorris

v. State, 58 Wis. 2d 144, 205 N.W.2d 559 (holding that reversal
was required when the circuit court erred in excluding prior

15
 No. 2011AP2698-CR.ssa

acts evidence for a self-defense claim); State v. Boykins, 119

Wis. 2d 272, 279-80, 350 N.W.2d 710 (Ct. App. 1984) (holding

that reversal was required when the circuit court erred in

excluding evidence of the victim's violent character when the

"jury was denied the opportunity to evaluate [defendant's]

asserted defense in light of all relevant evidence").

¶142 I see no reason to deviate from these cases in the

instant case.

¶143 The court cannot read the jury's mind and has no way

of knowing what effect the excluded reputation testimony would

have had on the jury. We do know, contrary to the majority

opinion at ¶79, that there was a genuine dispute about whether

the victim was the first aggressor and the degree to which his

aggression might have led to the defendant's fear for his own

safety. We do know that the jury found the defendant guilty of

the lowest possible included offense, second-degree reckless

homicide.

¶144 On the basis of the facts we do know, I conclude that
there was a reasonable probability that the jury could have been

convinced by additional evidence that the victim was the first

aggressor.

¶145 For the foregoing reasons, I dissent.

16
 No. 2011AP2698-CR.ssa

1