                                                                     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 – Unpublished)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

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                                                                       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.




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    No.   2011AP2698-CR.ssa




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