State v. Wolff

SUNDBY, J.

(dissenting). The court concludes that the defendant waived objection to the admission of other acts evidence because he did not object at trial that such evidence was inadmissible under sec. 904.04(2), Stats. However, defendant did object at trial that such evidence was inadmissible because it was irrelevant or lacked foundation. He has, therefore, preserved his objection, and because he renews his objection here, we must consider his argument. I conclude that the evidence was inadmissible and that any marginal relevance was outweighed by its unfair prejudicial effect. Therefore, I dissent.

Shortly before the fire which consumed her personal property and for which defendant was charged, defen*171dant's live-in friend, Nancy Goike, moved to a shelter for women called Passages, Inc. On cross-examination the prosecutor asked the defendant: "What was the incident that precipitated her leaving?" Defense counsel objected that the question asked for irrelevant evidence. The trial court overruled the objection stating, "[T]his was gone into extensively on direct." However, on direct examination, the defendant simply testified that Goike left and went to Passages. Defendant further testified that Goike returned frequently, finally moved back on approximately April 26th and continued to live with him on the farm until August 1990, when she bought a home in Richland Center. The defendant did not testify as to the reason Goike left, either before the fire or in August 1990.

Having established that he could explore what caused Goike to leave, the prosecutor questioned defendant about an incident in which defendant shot an aquarium when Goike's children were present. The prosecutor described this as "mental abuse." He then extensively explored an incident in which the defendant backed into Goike's car on a logging road and knocked it over the bank. The defendant claimed that this was an accident. The prosecutor introduced photographs showing the damaged vehicle and was allowed to present them to the jury.

In rebuttal, the prosecutor called the executive director of Passages. The prosecutor asked her the following question: "Is it seen, in talking to and counseling women who have been the victims of domestic abuse, is it often seen that they will return to the abuser on one or more occasions before they finally ... break the connection?" Defense counsel objected on grounds of lack of foundation and relevancy. The trial court overruled *172counsel's objection without stating the reasons for its ruling.

The court here states that, by failing to object to the challenged testimony on "other wrongs" grounds, defendant failed to preserve that objection. However, the defendant objected at trial that the evidence was irrelevant and lacked foundation. Whatever conclusion the court may reach as to this evidence, it may not dismiss consideration of it on the grounds that the defendant did not object to the evidence in the trial court on the proper grounds.

I conclude that not only was the evidence irrelevant, but it was unfairly prejudicial to the defendant. Goike's testimony as to the aquarium and car incidents and the Passages director's testimony as to the battered-woman syndrome had little or no relevance to the issue in this case. The issue was whether Goike had given the defendant permission to burn her property which was stored in the barn. The aquarium and car incidents occurred long before the barn burning.

Of course, unless otherwise explained, the jury could have concluded that Goike's voluntary continuation of her association with the defendant cast doubt on her claim that she did not give the defendant permission to burn her property, which was stored in the barn. The state sought to explain that Goike stayed with defendant because she was a battered woman. However, there was no testimony from anyone, including Goike, that defendant had ever physically abused Goike. Nonetheless, the state suggests that defendant physically abused Goike. It cites the Passages director's testimony that "domestic violence" tends to start with a "violent incident" followed by a honeymoon period which culminates in another "violent incident" and that "physical abuse" is often accompanied by other forms of abuse. The state *173argues that: "evidence of the abusive nature of the relationship" put Goike's conduct into its proper context; Goike's resumption of her relationship showed only that she had difficulty extricating herself from her relationship with "an abusive partner in spite of periodic episodes of violence"; "evidence that the defendant previously committed violent acts" against Goike is admissible; defendant "acted violently toward [Goike] in the past"; "evidence of previous violence" was admissible to explain Goike's waiver of her right to restitution; and evidence of the "prior incidents of violence" — the aquarium incident and the car incident — was admissible to show that defendant lied when he denied threatening Goike to get her to waive her right to restitution.

The Passages director was permitted to testify over defendant's objection as to the reaction of women who have been victims of domestic abuse. She referred to the "cycle of violence," the point where "violence explodes again," "the violent episode," "the violence increases," "physical violence" as a symptom in a larger picture, and "breaking of] the cycle of violence." While the witness was not permitted to testify that what Goike had experienced fit into the pattern or syndrome, the jury could not help but conclude that Goike was the victim of domestic violence, including physical violence, directed at her by the defendant.

I conclude that the objected-to evidence was unfairly prejudicial to the defendant and should have been excluded under sec. 904.03, Stats.

Evidence is unfairly prejudicial if it has "a tendency to influence the outcome by improper means" or if it "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish" or otherwise causes a jury "to base its decision on something other than the established propositions in the case."

*174State v. Gulrud, 140 Wis. 2d 721, 736, 412 N.W.2d 139, 145 (Ct. App. 1987) (quoting Lease Am. Corp. v. Insurance Co. of N. Am., 88 Wis. 2d 395, 401, 276 N.W.2d 767, 770 (1979)).

The state does not claim that the admission of the objected-to evidence, if error, was harmless. I conclude that the error of admitting the evidence was not harmless. Therefore, I respectfully dissent from the court's decision. I would reverse and remand for a new trial at which such evidence should be excluded.