COURT OF APPEALS DECISION DATED AND FILED July 13, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Joshua L. Wells,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Joshua Wells appeals his judgment of conviction for one count of second-degree sexual assault, and an order denying his postconviction motion. Wells argues the circuit court erred by allowing the State to introduce prohibited “other acts” evidence at his trial. We affirm.
BACKGROUND
¶2 On August 6, 2007, Wells met Melissa N., who is
learning-disabled, on a
¶3 At the trial, Wells objected to Melissa’s testimony that he told her another girl accused him of rape. He argued the testimony was other acts evidence. The circuit court permitted the testimony. It concluded the testimony was not other acts evidence, that it was relevant to Melissa’s state of mind, and that its probative value substantially outweighed its prejudicial effect.
¶4 The jury found Wells guilty of one count of second-degree sexual assault and acquitted him on the remaining charges. Wells then moved for postconviction relief, arguing the circuit court erred by admitting Melissa’s testimony about why she was afraid of him. The court denied the motion.
DISCUSSION
¶5 The only issue in this appeal is whether the court erred by
permitting Melissa to testify that Wells told her he had previously been
accused of rape. We review a circuit
court’s decision to admit evidence for the erroneous exercise of
discretion.
¶6 Wells argues Melissa’s testimony about his statement to her should
not have been admitted because it was prejudicial other acts evidence. The State counters that the testimony was not
other acts evidence, but that even if it was, the court properly exercised its
discretion in admitting it. We agree.
¶7
¶8 But even if Melissa’s testimony were evidence of other acts, it
would still be admissible. Evidence of
other crimes, wrongs or acts is admissible “when offered for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.”
Wis. Stat. § 904.04(2). This list is illustrative, not
exhaustive. State v. Schillcutt, 116
¶9 Here, the circuit court concluded Melissa’s testimony was
offered for a proper purpose: to show her
state of mind. “What the State seeks to
introduce isn’t that the defendant raped another woman ... [but that] a statement
made allegedly by the defendant during the course of events ... impacted the
witness’ state of mind and influenced the decisions that she made subsequent to
the statement.”
¶10 The State further argues that even if the circuit court erred,
any error was harmless because Wells’ acquittal on three of the four charges
indicated the jury did not construe Melissa’s testimony as evidence of his bad
character. We could also affirm on this
basis because Wells failed to file a reply brief refuting that argument. He therefore concedes the issue. See Charolais Breeding Ranches, Ltd. v. FPC
Secs. Corp., 90
By the Court.— Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.