                                                              2018 WI 10

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:              2015AP648-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Anton R. Dorsey,
                                 Defendant-Appellant-Petitioner.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 373 Wis. 2d 308, 895 N.W.2d 103
                                        (2017 – Unpublished)

OPINION FILED:         January 25, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         October 23, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Eau Claire
   JUDGE:              Paul J. Lenz

JUSTICES:
   CONCURRED:          R.G. BRADLEY, J. concurs, joined by KELLY, J.
                       (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:   ABRAHAMSON, J. did not participate.

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Frederick A. Bechtold, Taylors
Falls, Minnesota.


       For the plaintiff-respondent, there was a brief filed and
an   oral       argument    by   Tiffany   M.   Winter,   assistant   attorney
general, with whom on the brief was Brad D. Schimel, attorney
general.
                                                                           2018 WI 10
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.       2015AP648-CR
(L.C. No.    2014CF204)

STATE OF WISCONSIN                               :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                        FILED
      v.                                                           JAN 25, 2018
Anton R. Dorsey,                                                     Diane M. Fremgen
                                                                  Acting 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. Dorsey,

No. 2015AP648-CR, unpublished slip op. (Wis. Ct. App. Dec. 6,
2016)     (per   curiam),    affirming   the   Eau      Claire      County     circuit

court's1 judgments of conviction for Anton R. Dorsey ("Dorsey")

for three crimes related to his domestic violence toward C.B.

      ¶2      In a criminal action by the State, Dorsey was charged

with four crimes relating to his domestic violence toward his

then-girlfriend,          C.B.:   one    count        of     strangulation           and

      1
          The Honorable Paul J. Lenz presided.
                                                          No.   2015AP648-CR



suffocation under Wis. Stat. § 940.235(1) (2013-14)2;3 one count

of misdemeanor battery under Wis. Stat. § 940.19(1); one count

of disorderly conduct under Wis. Stat. §§ 947.01 and 973.055(1);

and   one    count   of   aggravated   battery   under   §§ 940.19(6)   and

973.055(1).     All counts were charged with repeater enhancers.

      ¶3     In the circuit court, the State filed a motion to

admit other-acts evidence.        Ruling on this motion required the

circuit court to interpret, as a matter of first impression, the

recently amended language in Wis. Stat. § 904.04(2)(b)1.             After

colloquy with the parties, the circuit court held that the new

language allowed the admission of other acts of a defendant in a

domestic abuse case with greater latitude under the Sullivan4

analysis.     Given this interpretation, the circuit court admitted

the testimony of R.K.,         a former girlfriend of Dorsey's, who

testified to other acts of physical violence committed by Dorsey

against her when they were dating in 2011.                Postconviction,

Dorsey appealed.

      ¶4     The court of appeals affirmed on other grounds.             It
held that the greater latitude rule did not apply because the

text, not the title ("Greater latitude"), controls, and that the

      2
       All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise noted.
      3
       The jury found Dorsey not guilty of count one and his
appeal here involves only the judgments of conviction entered
for counts two through four. Thus, we will limit our discussion
and analysis to counts two through four.
      4
          State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).


                                       2
                                                                          No.    2015AP648-CR



text of subd. (2)(b)1. did not indicate any clear legislative

intent to adopt the greater latitude rule with regard to other

acts of domestic abuse.               The court of appeals then evaluated

admission of the other-acts evidence under a straight Sullivan

analysis   and     concluded        that   it       was    admissible,         even   without

applying greater latitude.

      ¶5    There       are   two    issues         on    this    appeal.        First,    we

consider   what     standard        for    admission         of   other-acts          evidence

applies    under    the       recently     amended         language       in    Wis.    Stat.

§ 904.04(2)(b)1.          Second, we consider whether the evidence of

Dorsey's other acts was properly admitted under § 904.04(2)(b)1.

As to the first issue, we conclude that the recently amended

language allows admission of other-acts evidence with greater

latitude under a Sullivan analysis.                       As to the second issue, we

conclude that the circuit court did not erroneously exercise its

discretion in admitting evidence of Dorsey's other acts because

the   circuit      court      applied      the        proper      legal     standard       and

admission was a conclusion that a reasonable judge could reach
based on the facts of the record.

      ¶6    Thus, we affirm the decision of the court of appeals

on other grounds.


                   I.    FACTUAL AND PROCEDURAL BACKGROUND

      ¶7    The    State       charged     Dorsey         with    the     following      four

crimes:    (1)    strangulation           and       suffocation     under       Wis.    Stat.

§ 940.235(1),      for     intentionally            impeding      normal       breathing    by
applying pressure on the throat or neck of another person; (2)

                                                3
                                                                         No.   2015AP648-CR



misdemeanor battery under Wis. Stat. § 940.19(1), for intending

to cause bodily harm to C.B., without her consent and with the

knowledge that she did not consent; (3) disorderly conduct under

Wis. Stat. §§ 947.01(1) and 973.055(1), for engaging in violent,

abusive, or otherwise disorderly conduct, under circumstances in

which      such    conduct   tended    to       cause    a    disturbance;          and   (4)

aggravated         battery   under     §§ 940.19(6)           and   973.055(1),            for

intentionally         causing    bodily     harm    to       C.B.   by     conduct        that

created a substantial risk of great bodily harm.5                         Dorsey entered

pleas of not guilty and the case was set for a jury trial.

       ¶8        Before trial, the State filed a motion to introduce

evidence of Dorsey's two convictions for domestic battery from

2011       for    other   acts   of   domestic      violence        toward      a    former

girlfriend, R.K., arguing that such evidence was admissible to

prove intent to cause bodily harm under the recently amended6

Wis. Stat. § 904.04(2)(b)1.,7 which states as follows:

       5
       The criminal complaint was filed on March 18, 2014, and
Dorsey waived his right to a preliminary hearing on April 15,
2014. On May 2, 2014, Dorsey pled not guilty and the case was
set for trial.
       6
       See 2013 Wis. Act 362, §§ 20-22, 38; see also id., § 38
(amending and renumbering Wis. Stat. § 944.33(3) as Wis. Stat.
§ 904.04(2)(b)1.).
       7
       Prior to this motion, Dorsey had filed a motion in limine,
requesting, in part, that the State be "prohibited from
introducing any evidence concerning alleged acts of criminal or
other misconduct by the defendant either prior to or following
the date of the alleged offense charged in the Complaint."     In
support of this request, Dorsey argued that "[t]he probative
value of such other misconduct evidence, if any, is out-weighed
by its prejudicial effect . . . ." The State also filed a pre-
                                                      (continued)
                                            4
                                                   No.   2015AP648-CR


         (b) Greater     Latitude. 1. In     a    criminal
    proceeding alleging a violation of s. 940.302(2) or of
    ch. 948, alleging the commission of a serious sex
    offense, as defined in s. 939.615(1)(b), or of
    domestic abuse, as defined in s. 968.075(1)(a), or
    alleging an offense that, following a conviction, is
    subject to the surcharge in s. 973.055, evidence of
    any similar acts by the accused is admissible, and is
    admissible without regard to whether the victim of the
    crime that is the subject of the proceeding is the
    same as the victim of the similar act.
Wis. Stat. § 904.04(2)(b)1.8    The State argued that this other-

acts evidence was admissible under the now-familiar three-step

analysis promulgated in State v. Sullivan, 216 Wis. 2d 768, 576

N.W.2d 30 (1998): other-acts evidence is admissible if (1) it is

offered for a permissible purpose under § 904.04(2)(a),9 (2) it

trial motion in limine, requesting, in part, that Dorsey be
prohibited from introducing "any witness' criminal record, or
other crimes, wrongs or acts, if any, unless a proper hearing is
held under Wis. [Stat.] § 904.04."
    8
       In Wisconsin, the admissibility of prior convictions for
substance   is  governed  by   Wis.  Stat.  § 904.04   and  the
admissibility of prior convictions for impeachment is governed
by Wis. Stat. § 906.09.
    9
        Wisconsin Stat. § 904.04(2)(a) states as follows:

    Except as provided in par. (b)2., 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, opportunity,
    intent, preparation, plan, knowledge, identity, or
    absence of mistake or accident.

§ 904.04(2)(a).   This list is nonexclusive.     See State v.
Shillcut, 116 Wis. 2d 227, 236, 341 N.W.2d 716 (Ct. App. 1983)
("[This list] of circumstances . . . for which the evidence is
relevant and admissible is not exclusionary but, rather,
illustrative.").


                                 5
                                                     No.   2015AP648-CR



is relevant under § 904.01,10 and (3) its probative value is not

substantially11 outweighed by the risk of unfair prejudice under

§ 904.03.12   See Sullivan, 216 Wis. 2d at 772-73.
     10
          Wisconsin Stat. § 904.01 states as follows:

     "Relevant evidence" means evidence having any tendency
     to make the existence of any fact that is of
     consequence to the determination of the action more
     probable or less probable than it would be without the
     evidence.

§ 904.01.
     11
       "The term 'substantially' indicates that if the probative
value of the evidence is close or equal to its unfair
prejudicial effect, the evidence must be admitted."     State v.
Payano, 2009 WI 86, ¶80, 320 Wis. 2d 348, 768 N.W.2d 832
(emphasis   in   original)   (quoting   State  v.   Speer,   176
Wis. 2d 1101, 1115, 501 N.W.2d 429 (1993)).
     12
          Wisconsin Stat. § 904.03 states as follows:

     Although relevant, evidence may be excluded if its
     probative value is 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.

§ 904.03.   As this language demonstrates, unfair prejudice is
not the only reason that evidence which is relevant may
nonetheless be excluded.  See also Wis. Stat. §§ 904.06-904.16.
Here, however, unfair prejudice was alleged and we limit our
review to that issue.    "Unfair prejudice" is prejudice that
results

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

Sullivan, 216 Wis. 2d at 789-90.


                                  6
                                                                        No.     2015AP648-CR



    ¶9        Under    the      first        prong,    the    State    argued    that      the

evidence was offered "to establish the defendant's intent and

motive to cause bodily harm to his victim and to control her

within    the    context        of    a    domestic     relationship."          Under      the

second prong, the State argued that the evidence was relevant

because it established Dorsey's intent and motive, which were

facts of consequence, and that the other acts were near enough

in time, place, and circumstances to have a tendency to make the

facts    of   intent      and    motive       more    probable.        Under    the   third

prong, the State noted that the defendant bore the burden to

show that the probative value is substantially outweighed by

unfair prejudice and argued that a cautionary jury instruction

would ensure that the jury only considered the evidence for the

proffered purpose, thereby avoiding any unfair prejudice.

    ¶10       On August 26, 2014, the circuit court held a hearing

on the State's motion.                    During the hearing, the court heard

arguments from the parties as to the proper interpretation of

the new language in Wis. Stat. § 904.04(2)(b)1.                               The circuit
court    ultimately       held        that    the     amended    language      "provid[es]

greater latitude . . . similar . . . to the serious sex offense

business and making it available more to be able to be used in

the case in chief than [the court] would provide."

    ¶11       The   circuit          court    then    allowed    the    evidence      to   be

admitted,       holding      that      "using       that     greater   latitude[,]         the

three-prong      analysis        of       Sullivan    is     met."     Under    the   first




                                                7
                                                                 No.     2015AP648-CR



prong, the court held that intent and motive to control were

permissible purposes.13         Under the second prong, the court held

that the other acts were relevant "because [] the similarity,

the motive to control," which although "not very, very, very

near in time, [was] within two years and in a period of time in

which the clock kind of stops ticking a little bit because the

defendant   [was]    on   probation      for     a   period     of     that   time."

Additionally, the court held that "the clear statutory language

indicates that it does not need to involve the same victim."

Under the third prong, the court held that the probative value

was   not   substantially       outweighed      by    the     danger    of    unfair

prejudice, and that a cautionary instruction would ensure that

this information goes "only to evaluate the defendant's motive

and intent."

      ¶12   On   August   28,    2014,       trial   began.      At     trial,   the

State's primary witness was C.B., the victim.                    C.B. testified

that she and Dorsey started dating in June of 2013.                    As to count

one, for strangulation and suffocation, C.B. testified that, on
the night of October 11-12, 2013, she and Dorsey got into an

argument about money on their way home from a bar after a night

      13
       In its analysis under Sullivan, the circuit court did not
specifically hold that the purposes offered by the State were
permissible under the first prong, but its discussion of the
second and third prongs rests on a holding that intent and
motive were permissible purposes. In this regard, we note that
the circuit court had "read the motion so [it had] an
understanding of what the State is looking to do," and
acknowledged the State's arguments on motive and intent in
discussing how to tailor the cautionary jury instruction.


                                         8
                                                                            No.     2015AP648-CR



out with friends.          She felt that "all [she was] good for [was]

money" and told him "[t]his is done.                             This isn't a healthy

relationship.        I'm not happy."                He then pulled the car over,

locked    the     doors,    pushed       her       head    against      the       window,     and

demanded to know "is there someone else?                           Do you have someone

else?     Is that why you don't want me here?"                         She testified that

she was able to get out of the car and that she had started

walking toward her house when he came up behind her, but she did

not remember anything else until waking up on the ground with

him saying, "[y]ou aren't F-ing doing this to me."

      ¶13   As     to     count     two,       for    misdemeanor           battery,          C.B.

testified that,         in December of 2013, she could not remember

exactly what had started the argument and caused Dorsey to be

upset with her, but she remembered telling him that she "didn't

want to talk to him . . . right now" and rolled over in the bed

to face away from him.               He responded by saying "[n]o, we're

going to talk about this," and turned her back to face him by

grabbing    her    hip;    he     then   flicked          her    lip   with       his    finger,
splitting it open and causing it to bleed.                            C.B. testified that

Dorsey then threw a tissue box at her for her bloody lip.                                      He

was     saying,    "I     don't    know        why    you       lie    to     me,       why    you

lie . . . to me all the time," to which C.B. responded that she

did not know what he was upset about.                           He then grabbed her by

the waist, bringing her toward him, pulled her hair to make her

look up at him because "he likes to have eye contact," and spit

in her face.


                                               9
                                                                      No.     2015AP648-CR



      ¶14     As to counts three and four, for disorderly conduct

and aggravated battery, C.B. testified that on March 11, 2014,

she and Dorsey were in the parking lot of a bar when Dorsey got

upset after he saw that she had been texting a man he did not

like.       (Dorsey   had    grabbed     C.B.'s       phone   from    her     during     an

argument     about    her   talking     to    her     ex.)     She    testified        that

Dorsey accused her of sleeping with this other man and that she

just kept telling him "[n]o, it's not like that.                            He's just a

friend."       She    got    out   of   the     car    and    tried    to     catch     the

attention of someone in an office next to the bar because she

was afraid of getting hit.              Dorsey got out saying, "[d]on't you

dare, don't you dare," and came up behind her, grabbed her, and

pushed her up against the side of the building demanding to know

"[w]hy are you doing this?"             A few people then came out into the

parking lot and Dorsey told her to get back in the car.

      ¶15     Nothing more happened that night, but C.B. testified

that when she woke up the next morning, Dorsey was leaning over

her just inches from her face and said, "I can't believe you're
doing this, that you keep doing this."                        She started getting

ready for work, but before she could leave, Dorsey told her to

sit   down,    that   they    "were     going    to    talk    about        this."      She

testified that she sat down on the bed and that right away he

hit her and said, "I don't believe that you're doing this."

When she tried to move away, he grabbed her hair, pulled her

back, and hit her in the head again.                    C.B. testified that her

head was ringing and she felt sick to her stomach, that she told
him she had to go to work, but that he kept hitting her.                             Dorsey
                                          10
                                                                  No.    2015AP648-CR



relented when C.B. told him that she had a meeting and that if

she was not there "they're going to wonder what's going on, and

they will send someone to the house."                   He then threw her phone

at her chest; she took it, ran down the stairs, grabbed her

keys, and got out the door and into her car.

       ¶16     The State also called R.K., a former girlfriend of

Dorsey's.           R.K.'s   testimony      regarding    Dorsey's      violent    acts

toward her is the focus of Dorsey's appeal.                       At trial, R.K.

testified about two incidents that took place in 2011.14                           The

first was in June of 2011, when R.K. was six months pregnant.

R.K. testified that she had asked Dorsey to take a paternity

test so that he could not later claim that their child was not

his.        He became upset, thinking that the real reason she wanted

the test was that she was not sure who the father was.                     He left,

but    when    he    came    back   later   that   night    he   was    yelling    and

swearing and calling her names; he flicked a lit cigarette butt

at her and tried to leave in her car.                      When she got in the

passenger side to stop him from taking the car, he pushed her
out while backing out of the driveway.                  She then testified that,

when Dorsey came back later, he yelled some more, dragged her

out of the house by her feet, causing bruising to her abdomen,

and locked her out of her house.



       14
       Although Dorsey was convicted of domestic battery for
both of these incidents, the circuit court did not allow the
State to elicit the fact of Dorsey's convictions at trial
because it "[didn't] see that it adds anything."


                                            11
                                                                       No.       2015AP648-CR



       ¶17     The second incident was in November of 2011.                              R.K.

testified that Dorsey had become upset because he felt she did

not respect him.         He asked her to leave, and R.K. testified that

she was going to go because he was sitting on the couch feeding

their daughter and she "didn't want things to escalate."                               As she

was    walking     out   the    door,     he   took   the     bottle    out       of    their

daughter's mouth and threw it at R.K., and then threw a shoe at

R.K.     He then asked R.K. to come back in the house, and when she

came back in, he locked the door, began yelling at her, pushed

her down to the ground, and started hitting her in the head with

a shoe and kicking her in the back repeatedly.                         R.K. testified

that    when    Dorsey   stopped      "after     a    while"    and    went       into    the

kitchen, she took their daughter, ran out to the car, and drove

to her mother's house.

       ¶18     Dorsey's defense was that these witnesses were making

false allegations and that the acts never happened.                          As to C.B.,

he     testified    that       he   did   not    remember      having        a     physical

altercation where he grabbed her around the neck; that he had
never tried to prevent C.B. from leaving the house; and that her

injuries in March were because she had slipped in the shower.

As to R.K., Dorsey initially testified that he never spat on

her; that he never threw a shoe or baby bottle at her; and that

he never dragged her out of the house when she was six months

pregnant.        Outside the presence of the jury, the State then

sought    to    introduce       his   convictions       for    these     incidents         to

impeach his testimony; the circuit court denied the request,
accepting Dorsey's explanation that "he misunderstood exactly
                                           12
                                                    No.   2015AP648-CR



how he was supposed to respond."       When asked again (in the

presence of the jury), Dorsey admitted that, in June of 2011, he

spat on R.K. and dragged her out of the house when she was six

months pregnant because he had been upset that the baby was

possibly not his; and that, in November of 2011, he threw a shoe

and a baby bottle at R.K., prevented her from leaving their

apartment, and hit her because he felt that R.K. had not been

respecting him.

    ¶19     At the close of evidence, the circuit court instructed

the jury.     As pertains to the issue here, the court gave a

cautionary jury instruction regarding other acts:

         Evidence has been presented regarding other
    conduct of the defendant for which the defendant is
    not on trial.

         Specifically, evidence has been presented that
    the defendant committed a battery of [R.K.] in June
    and November of 2011.   If you find that this conduct
    did occur, you should consider it only on the issue of
    motive and intent.

         You may not consider this evidence to conclude
    that the defendant has a certain character or certain
    character trait and that the defendant acted in
    conformity with that trait or character with respect
    to the offense charged in this case.

         Evidence was received on the issues of motive,
    that is, whether the defendant had the reason to
    desire the result of the offense charged, and intent,
    that is, whether the defendant acted with the state of
    mind that is required for the offense charged.

         You may consider this evidence only for the
    purposes I have described, giving it the weight you
    determine it deserves.    It is not to be used to




                                 13
                                                      No.    2015AP648-CR


     conclude that the defendant is a bad person and for
     that reason is guilty of the offense charged.[15]
     ¶20    On August 28, 2014, the jury found Dorsey not guilty

on count one,16 but found Dorsey guilty on counts two through

four.17    The circuit court sentenced Dorsey on October 24, 2014,18

and entered the judgments of conviction on October 27, 2014.

     ¶21    On March 30, 2015, Dorsey filed notice of appeal. On

December 6, 2016, the court of appeals affirmed the circuit

court on other grounds.       Contrary to the circuit court, the

court of appeals held that the greater latitude rule did not

     15
       The circuit court also instructed        the   jury    regarding
impeachment by prior conviction:

          Evidence has been received that the defendant in
     this trial has been convicted of crimes.          This
     evidence was received solely because it bears upon the
     credibility of the witness.   It must not be used for
     any other purpose, and in particular a criminal
     conviction at some previous time is not proof of guilt
     of the offense now charged.

This was in reference to Dorsey's testimony on cross-examination
that he had been convicted of crimes on ten occasions.
     16
       Count   one   was  for   Strangulation  and   Suffocation,
Repeater, under Wis. Stat. §§ 940.235(1) and 939.62(1)(b).
     17
        Count two was for Misdemeanor Battery, Repeater, under
Wis. Stat. §§ 940.19(1) and 939.62(1)(a); count three was for
Disorderly Conduct, Repeater, Domestic Abuse, under Wis. Stat.
§§ 947.01(1), 939.62(1)(a), and 973.055(1); and count four was
for   Aggravated  Battery,   Repeater,   Domestic Abuse, under
§§ 940.19(6), 939.62(1)(b), and 973.055(1).
     18
       Dorsey was sentenced as follows: on count two, to one
year imprisonment; on count three, to one year imprisonment; and
on count four, to two years, nine months imprisonment and two
years, three months extended supervision.   These sentences were
to be served concurrently.


                                  14
                                                                              No.     2015AP648-CR



apply     because    the       "text       must    control       over    [the]       title"       and

"[t]he text of Wis. Stat. § 904.04(2)(b)1. does not indicate any

clear legislative intent to make the greater latitude rule, as

developed     through          our    state's          case    law,     now    applicable         to

domestic     abuse    cases."              Dorsey,       unpublished          slip    op.,    ¶22.

Instead, the court of appeals held that the other acts were

admissible     under       a    straight          Sullivan       analysis:           first,       the

evidence    was     offered          for    the    permissible        purpose        of    proving

intent and motive "to control [C.B.] within the context of a

domestic relationship," id., ¶¶25-27, 29; second, the evidence

was relevant because intent is an element of any crime and is

thus "of consequence," even if undisputed, and the other acts

were similar enough in time,19 place, and circumstances that they

had probative value, id., ¶¶34-37; third, Dorsey did not satisfy

his burden to show that the probative value was substantially

outweighed     by    the       risk        of    unfair       prejudice       because       Dorsey

conceded     there     were      similarities,             the    evidence          was    "highly

probative     of    intent,"          and       "any    prejudicial       effect          could   be
mitigated by the use of [a] cautionary instruction," id., ¶43.

     ¶22     On January 3, 2017, Dorsey filed a petition for review

in this court.       On April 10, 2017, we granted the petition.


     19
       As in the circuit court, the court of appeals found that
the two-year gap in time did not sever the connection because
Dorsey "may have purposefully waited until his probation expired
to engage in further domestic abuse, so as to avoid probation
revocation."   State v. Dorsey, No. 2015AP648-CR, unpublished
slip op., ¶40 (Wis. Ct. App. Dec. 6, 2016) (per curiam).


                                                  15
                                                                                  No.        2015AP648-CR



                               II.       STANDARD OF REVIEW

       ¶23     Determining what standard for admission of other-acts

evidence applies under the recently amended language in Wis.

Stat.    § 904.04(2)(b)1.            requires         us    to    interpret            the     statute.

"The     interpretation            and    application             of     a     statute             present

questions       of     law    that       this     court          reviews          de        novo     while

benefitting      from        the    analyses          of   the     court          of    appeals        and

circuit       court."          State       v.     Alger,          2015       WI        3,    ¶21,      360

Wis. 2d 193, 858 N.W.2d 346.

       ¶24     Determining         whether       the       evidence       of       Dorsey's          other

acts    was    properly       admitted       under         Wis.    Stat.          § 904.04(2)(b)1.

requires us to review an exercise of discretion by the circuit

court.       See State v. Jackson, 2014 WI 4, ¶43, 352 Wis. 2d 249,

841 N.W.2d 791 ("This court will not disturb a circuit court's

decision to admit or exclude evidence unless the circuit court

erroneously       exercised         its     discretion.").                   "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.


                                      III.       ANALYSIS

       ¶25     There    are    two       issues       on    this       appeal.               First,     we

consider      what     standard       for       admission         of     other-acts            evidence

applies       under    the     recently         amended          language         in        Wis.     Stat.

§ 904.04(2)(b)1.             Second, we consider whether the evidence of

Dorsey's other acts was properly admitted under § 904.04(2)(b)1.
As to the first issue, we conclude that the recently amended

                                                 16
                                                                           No.   2015AP648-CR



language allows admission of other-acts evidence with greater

latitude under a Sullivan analysis.                    As to the second issue, we

conclude that the circuit court did not erroneously exercise its

discretion in admitting evidence of Dorsey's other acts because

the       circuit     court   applied        the    proper      legal        standard    and

admission was a conclusion that a reasonable judge could reach

based on the facts of the record.

          A.    What Standard For Admission Of Other-Acts Evidence
                   Applies Under Wis. Stat. § 904.04(2)(b)1.
      ¶26        We   consider    first      what    standard     for        admission    of

other-acts evidence applies under the recently amended language

in Wis. Stat. § 904.04(2)(b)1.                     Dorsey argues that a straight

Sullivan analysis applies, that is, that the statute does not

afford         circuit   courts   greater         latitude   to       admit      other-acts

evidence of domestic abuse.               The State argues that the amended

language should be interpreted one of two ways: one, under the

common law greater latitude rule, as affording circuit courts

greater latitude to admit other, similar acts of domestic abuse

in    a     Sullivan     analysis;      or     two,     under     a     plain        language
interpretation,          as   allowing       circuit    courts        to     admit    other,

similar acts of domestic abuse without requiring a permissible

purpose (which is required under the first prong of Sullivan).

We conclude that the recently amended language allows for the




                                             17
                                                          No.    2015AP648-CR



admission of other, similar acts of domestic abuse with greater

latitude under a Sullivan analysis.20

     ¶27     "[S]tatutory interpretation begins with the language

of the statute."      State ex rel. Kalal v. Cir. Ct. for Dane Cty.,

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.                 Wisconsin

Stat.     § 904.04(2),   entitled   "Other   crimes,   wrongs,   or   acts,"

states, in relevant part, as follows:

          (a) General admissibility. Except as provided
     in par. (b)2., 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,  opportunity,  intent,
     preparation, plan, knowledge, identity, or absence of
     mistake or accident.

          (b) Greater     latitude. 1. In     a    criminal
     proceeding alleging a violation of s. 940.302(2) or of
     ch. 948, alleging the commission of a serious sex
     offense, as defined in s. 939.615(1)(b), or of
     domestic abuse, as defined in s. 968.075(1)(a),[21] or
     20
       Although we discuss the statute in the context of
domestic abuse, our interpretation here applies with equal force
to the other circumstances listed in Wis. Stat. § 904.04(2)(b)1.
     21
          Wisconsin Stat. § 968.075(1)(a) states as follows:

          "Domestic abuse" means any of the following
     engaged in by an adult person against his or her
     spouse or former spouse, against an adult with whom
     the person resides or formerly resided or against an
     adult with whom the person has a child in common:

          1. Intentional infliction            of   physical     pain,
     physical injury or illness.

             2.   Intentional impairment of physical condition.

             3.   A violation of s. 940.225(1), (2) or (3).
                                                          (continued)
                                     18
                                                      No.   2015AP648-CR


    alleging an offense that, following a conviction, is
    subject to the surcharge in s. 973.055, evidence of
    any similar acts by the accused is admissible, and is
    admissible without regard to whether the victim of the
    crime that is the subject of the proceeding is the
    same as the victim of the similar act.
§ 904.04(2)(a), (b)1. (footnote added).

    ¶28   "If the meaning of the statute is plain, we ordinarily

stop the inquiry."   Kalal, 271 Wis. 2d 633, ¶45.       As argued by

the State, under a plain language interpretation of Wis. Stat.

§ 904.04(2)(b)1., the court could hold that evidence of other,
similar22 acts by the accused is admissible, even if the acts

relate to a different victim, if the similar acts are offered in

a criminal proceeding that alleges (1) a violation of Wis. Stat.

§ 940.302(2); (2) a violation of Wis. Stat. ch. 948; (3) the

commission of a serious sex offense, as defined in Wis. Stat.

§ 939.615(1)(b);   (4)   the   commission   of   domestic   abuse,   as

defined in Wis. Stat. § 968.075(1)(a); or (5) an offense that,


         4. A physical act that may cause the other
    person reasonably to fear imminent engagement in the
    conduct described under subd. 1., 2. or 3.

Wis. Stat. § 968.075(1)(a).    The parties do not dispute that
Dorsey's acts qualify as domestic abuse under this definition.
    22
       We note that subd. (2)(b)1. specifically requires that
the other acts be "similar acts by the accused."    Wis. Stat.
§ 904.04(2)(b)1.    This specific requirement of similarity
distinguishes subd. (2)(b)1. from para. (2)(a), but this
requirement is nonetheless satisfied when applying greater
latitude under a Sullivan analysis——the standard that we adopt
below——because the second prong of Sullivan directs circuit
courts to examine the similarity of the acts when evaluating
probative value.   We discuss this issue of similarity more
below. See infra ¶¶45, 49.


                                  19
                                                       No.     2015AP648-CR



following conviction, is subject to the surcharge in Wis. Stat.

§ 973.055.     The plain meaning interpretation would thus allow

circuit courts to admit evidence of other, similar acts without

regard to its purpose, even if the purpose is to show "that the

person    acted   in   conformity   therewith,"   (i.e.,     propensity).

§ 904.04(2)(a).23

     23
       The concurrence argues that this isolated plain meaning
of subd. (2)(b)1. should be the end of a circuit court's
analysis, that is, that "evidence of 'similar acts' in sensitive
crimes cases [is] admissible without requiring the State to
establish a permissible purpose."      Concurrence, ¶73.    This
conclusion is problematic for at least two reasons.    First, it
ignores the context of surrounding provisions within Wis. Stat.
§ 904.04.   See State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. As concluded
below, such an isolated interpretation creates a conflict in the
plain language of the statute in the context of para. (2)(a).
See infra ¶29.    Such an isolated interpretation also creates a
conflict in the plain language of the statute in the context of
subsec. (1), which embodies the general purpose of rule 904.04
"to exclude use of other misdeeds to prove character in order to
prove guilt."    See State v. Spraggin, 77 Wis. 2d 89, 94, 252
N.W.2d 94 (1977).    Subsection (1) states in relevant part as
follows:

          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 . . . .

§ 904.04(1).

     Second, and relatedly, this isolated interpretation would
effectively repeal the exclusionary purpose of the rule, which
is supported by four long-standing and oft-cited rationales:

     (1) [t]he overstrong tendency to believe the defendant
     guilty of the charge merely because he is a person
     likely to do such acts; (2) the tendency to condemn
     not because he is believed guilty of the present
                                                     (continued)
                                    20
                                                    No.   2015AP648-CR



    ¶29     Subdivision (2)(b)1. must, however, be interpreted "in

the context in which it is used; not in isolation but as part of

a whole."    Kalal, 271 Wis. 2d 633, ¶46.   And this plain language


    charge but because he has escaped punishment from
    other offenses; (3) the injustice of attacking one who
    is not prepared to demonstrate the attacking evidence
    is fabricated; and (4) the confusion of issues which
    might result from bringing in evidence of other
    crimes.

Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557 (1967).
Thus, the concurrence would have us overturn decades of common
law construction by this court and by lower courts.       But see
Antonin   Scalia    &  Bryan  A.   Garner,    Reading   Law:  The
Interpretation   of   Legal  Texts   327   (2012)   ("Repeals  by
implication are disfavored——'very much disfavored.'"); id. at
318 ("A statute will be construed to alter the common law only
when that disposition is clear.").

     Moreover, and perhaps more importantly, the concurrence
does not provide any practical guidance to circuit courts
because it does not offer a standard for admission of other,
similar acts. Under its isolated interpretation, could a court
admit acts as "similar" because they were committed in the same
month?   Is a court compelled to admit similar acts without any
assessment of reliability?     How would the court instruct the
jury regarding such other-acts evidence, or is that rendered
unnecessary because a jury can use the evidence for any purpose
it sees fit? In other words, without a standard for admission,
how could courts guarantee a fair trial?        Such an aimless
interpretation would result in appeal after appeal, and would
require opinion after opinion explaining what we did not mean to
say.    Thus, although the concurrence is unpersuaded by our
position, see Concurrence, ¶72, its skepticism reveals a
troubling lack of recognition of the practical effect that such
a simplistic interpretation will have in courtrooms across the
state. See also infra note 25. We conclude that utilizing the
time-tested analytical framework of Sullivan, but with greater
latitude, as called for by the plain meaning of the statute, is
the more prudent approach in light of our duty to provide
meaningful guidance to those who are confronted with such issues
in litigation.


                                 21
                                                                               No.     2015AP648-CR



interpretation of subd. (2)(b)1. contradicts the plain language

of para. (2)(a).             Paragraph (2)(a) only excepts subd. (2)(b)2.——

not subd. (2)(b)1.——from its general prohibition on the use of

other acts "to prove the character of a person in order to show

that the person acted in conformity therewith."                                       Wis. Stat.

§ 904.04(2)(a).          Where a specific exception is made, it implies

that no other exceptions are intended.                             See Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

107-11     (2012)        ("The       expression        of    one        thing        implies     the

exclusion of others (expressio unius est exclusio alterius).").

Thus,     we        cannot    read        subd.    (2)(b)1.        as     an     exception        to

para. (2)(a)'s general prohibition on propensity.

     ¶30       This results in ambiguity with regard to the meaning

of subd. (2)(b)1.            See Kalal, 271 Wis. 2d 633, ¶47 ("[A] statute

is ambiguous if it is capable of being understood by reasonably

well-informed persons in two or more senses.").                                  If the plain

language of a statute is ambiguous as to meaning, we consider

the scope, context, and purpose of the statute.                                  Id., ¶¶48-49.
In this regard, the title of subd. (2)(b)1., "Greater latitude,"

is   instructive.              As     a     preliminary       matter,           we    note      that

"[t]itles . . . are            not        part    of   the    statutes,"              Wis.     Stat.

§ 990.001(6),            but          are         "permissible             indicators             of

meaning . . . for the purpose of . . . relieving [] ambiguity,"

Scalia & Garner, supra ¶29, at 221-22.                       See also Aiello v. Vill.

of Pleasant Prairie, 206 Wis. 2d 68, 73, 556 N.W.2d 697 (1996)

("Although titles are not part of statutes, . . . they may be
helpful        in     interpretation.").               As    noted        above,        there     is
                                                  22
                                                                           No.      2015AP648-CR



ambiguity with regard to the meaning of subd. (2)(b)1., thus,

reference to its title is appropriate here.

      ¶31    In the context of its title, "Greater latitude," we

interpret        subd.      (2)(b)1.   as    adopting          the   common      law    greater

latitude rule to permit the admission of other, similar acts of

domestic abuse with greater latitude.                          "All words and phrases

shall be construed according to common and approved usage; but

technical words and phrases and others that have a peculiar

meaning      in    the      law   shall      be        construed      according        to    such

meaning."         Wis. Stat. § 990.01(1); see also Scalia & Garner,

supra    ¶29,     at     320   ("A   statute          that   uses    a   common-law         term,

without defining it, adopts its common-law meaning.")                                       Here,

"greater latitude" is a technical term defined in the common law

that deals with admission of other-acts evidence, thus it "shall

be construed according to such meaning."                         § 990.01(1).

      ¶32        Under      the   common     law,        the     greater      latitude      rule

allows for more liberal admission of other-acts evidence.                                   See,

e.g., State v. Hurley, 2015 WI 35, ¶59, 361 Wis. 2d 529, 861
N.W.2d 174.            It   has   traditionally           been    applied      in      cases   of

sexual abuse, particularly those involving children.                                See, e.g.,

id.     Its application in this context dates back to 1893, and it

has been so-applied in hundreds of cases since.                               See Proper v.

State,      85    Wis. 615,       630,      55        N.W. 1035      (1893)      ("A    greater

latitude of proof as to other like occurrences is allowed in

cases of sexual crimes.").                Thus, the term "greater latitude" is

a term of art in the context of other-acts evidence and its
application is well-established in the common law.
                                                 23
                                                                                No.      2015AP648-CR



       ¶33     The    greater        latitude        rule     has        been      described        as

operating to "facilitate[] the admissibility of the other acts

evidence       under       the     exceptions         set     forth       in       [Wis.       Stat.]

§ 904.04(2)[(a)]."                 State   v.    Hammer,          2000    WI       92,      ¶23,   236

Wis. 2d 686,         613    N.W.2d 629      (citing         Hendrickson            v.    State,     61

Wis. 2d 275, 279, 212 N.W.2d 481 (1973)).                                 And indeed, after

Sullivan, which set out the standard for admission of other-acts

evidence     under         para.    (2)(a),      we     clarified         that        the     greater

latitude rule is to be applied within the                                 Sullivan           analysis

(which requires a (2)(a) permissible purpose under the first

prong).         See        State     v.    Davidson,         2000        WI     91,         ¶51,   236

Wis. 2d 537,         613     N.W.2d 606.              Application             of      the     greater

latitude rule, however, is not limited to any one prong.                                           See

id.     Thus, for the types of cases enumerated under Wis. Stat.

§ 904.04(2)(b)1., circuit courts should admit evidence of other

acts    with    greater          latitude       under       the    Sullivan           analysis      to

facilitate its use for a permissible purpose.24

       ¶34     Before concluding our interpretation of the statute,
we    note   that      adopting        Dorsey's       interpretation               would       render


       24
       This conclusion is further supported by the Legislative
Reference Bureau analysis that accompanied the assembly bill:
"This bill states that, in a prosecution alleging . . . a crime
of domestic abuse . . . evidence of similar acts is generally
admissible . . . ."    Drafting File for 2013 Wis. Act 362,
Analysis by the Legislative Reference Bureau of 2013 A.B. 620,
Legislative Reference Bureau, Madison, Wis.     See Kalal, 271
Wis. 2d 633, ¶51 ("[L]egislative history need not be and is not
consulted except to resolve an ambiguity in the statutory
language . . . .").


                                                24
                                                            No.       2015AP648-CR



subd. (2)(b)1.    superfluous.         Dorsey   argues    that    a     straight

Sullivan analysis applies, that is, that circuit courts are not

permitted greater latitude to admit evidence of other acts in

domestic abuse cases.      A straight Sullivan analysis, however, is

what circuit courts apply when a party seeks to introduce other-

acts evidence under para. (2)(a).           Sullivan, 216 Wis. 2d at 772-

73.    Before    the   statute   was    amended,   this    was    the     proper

standard for admission of other acts of domestic abuse, and, in

fact, before the       amendment, the State did seek to introduce

other acts of domestic abuse under para. (2)(a).                  See, e.g.,

Sullivan, 216 Wis. 2d 768.       But the addition of subd. (2)(b)1.

provided a specific standard for admission of other acts of

domestic abuse.    Thus, to hold that a straight Sullivan analysis

is still the proper standard for admission would render the

legislature's enactment of subd. (2)(b)1. meaningless.                   This we

cannot do.    See Kalal, 271 Wis. 2d 633, ¶46 ("Statutory language

is read where possible to give reasonable effect to every word,

in order to avoid surplusage."); Scalia & Garner, supra ¶29, at
174-79 ("If possible, every word and every provision is to be

given effect (verba cum effectu sunt accipienda).                 None should

be ignored.     None should needlessly be given an interpretation

that causes it to duplicate another provision or to have no

consequence." (Footnote omitted.)).

      ¶35   In sum, we conclude that Wis. Stat. § 904.04(2)(b)1.

permits circuit courts to admit evidence of other, similar acts

of domestic abuse with greater latitude, as that standard has
been defined in the common law, under Sullivan, because it is
                                       25
                                                             No.   2015AP648-CR



the most reasonable interpretation in light of the context and

purpose    of   the   statute.       See   Kalal,    271   Wis. 2d 633,    ¶46

("[S]tatutory language is interpreted in the context in which it

is used . . . and reasonably, to avoid absurd or unreasonable

results.").     As a practical matter, not only does our analysis

afford    due   respect   to   the   words   of     this   legislation,    but

maintaining the well-established Sullivan analysis, with greater

latitude in domestic abuse cases, also provides a framework for

litigants and our courts to create a thorough record of the

arguments and rulings concerning other-acts evidence.25

     25
       We note that the concurrence does not take issue with
applying steps two and three of the Sullivan analysis. Sullivan
defines its "three-step analytical framework" in relevant part
as follows:

     (2) Is the other acts evidence relevant, considering
     the two facets of relevance set forth in Wis. Stat.
     § 904.01? . . .

     (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
     [under Wis. Stat. § 904.03]?

216 Wis. 2d at 772-73.     The concurrence agrees that "subsec.
(2)(b)1 . . . permits    the   admission    of  'similar    acts'
evidence . . . as long as the proffered evidence satisfies Wis.
Stat. § 904.01's relevance test and is not excluded under Wis.
Stat. § 904.03's unfair prejudice test." Concurrence, ¶62. The
§ 904.03 balancing test, however, subsumes permissible purpose:
the danger of unfair prejudice is exactly the rationale which
underlies   Wis.   Stat.   § 904.04's   general  prohibition   of
propensity.   See supra note 23.    Thus, it is not clear how a
party could establish relevance under Wis. Stat. § 904.01, or
pass the balancing test under § 904.03, without proffering a
"purpose" (relevance) that is "permissible" (not substantially
                                                      (continued)
                                      26
                                                                      No.     2015AP648-CR




               B.     Whether Admission Of Dorsey's Other Acts
                    Was An Erroneous Exercise Of Discretion.
       ¶36    We consider second whether the evidence of Dorsey's

other        acts      was    properly         admitted       under         Wis.   Stat.

§ 904.04(2)(b)1.         The arguments of the parties on this issue are

outlined in detail below.                In this regard, we note that our

review on this issue is limited to the arguments presented to

the    circuit       court   at   the   time      the   circuit   court        made     its

admissibility determination.                 Thus, although the parties raised
additional arguments on appeal, we limit our analysis to the

arguments they raised in the circuit court.                       We conclude that

the circuit court did not erroneously exercise its discretion in

admitting evidence of Dorsey's other acts because the circuit

court applied the proper legal standard and                       admission was a

conclusion that a reasonable judge could reach based on the

facts of the record.

       ¶37    Our analysis "begins with the understanding that the

circuit      court's     decisions      to    admit     or   exclude    evidence        are

entitled to great deference."                  Jackson, 352 Wis. 2d 249, ¶45.
We    will    uphold     a   circuit    court's       evidentiary      ruling      if   it

"examined the relevant facts, applied a proper standard of law,

used a demonstrated rational process and reached a conclusion



outweighed by the danger of unfair prejudice).   See also State
v. Hurley, 2015 WI 35, ¶62, 361 Wis. 2d 529, 861 N.W.2d 174
("Identifying a proper purpose for other-acts evidence is not
difficult and is largely meant to develop the framework for the
relevancy examination.").


                                             27
                                                                             No.    2015AP648-CR



that a reasonable judge could reach."                          Hurley, 361 Wis. 2d 529,

¶28.

       ¶38    As explained above, the proper standard for admission

of other acts of domestic abuse is one of greater latitude.                                    See

supra ¶35.           Here the record reflects that the circuit court

applied      this    legal      standard:      at    the       hearing     on      the    State's

motion to introduce other-acts evidence, the circuit court held

that    the       recently           amended    language             "provid[es]          greater

latitude . . . similar . . . to the serious sex offense business

and making it available more to be able to be used in the case

in chief than [the court] would provide."

       ¶39    The circuit court also reached a conclusion that a

reasonable        judge     could      reach   using       a    demonstrated,            rational

process.      The lodestar of admissibility of other-acts evidence

is the three-prong analysis promulgated in Sullivan: other-acts

evidence is admissible if (1) it is offered for a permissible

purpose      under       Wis.   Stat.    § 904.04(2)(a);             (2)   it      is    relevant

under Wis. Stat. § 904.01; and (3) its probative value is not
substantially outweighed by the risk of unfair prejudice under

Wis. Stat. § 904.03.             See Sullivan, 216 Wis. 2d at 772-73.

                    1.    Whether the other acts were offered
                             for a permissible purpose.
       ¶40    Under the first prong, the State offered Dorsey's "two

Battery      convictions         and    his    conduct          of    June      2011      through

November      2011 . . . to           establish      [his]      intent       and    motive      to

cause   bodily       harm       to   [C.B.]    and    to       control     her     within      the
context      of      a     domestic      relationship."                  Dorsey          did   not

                                               28
                                                                          No.       2015AP648-CR



meaningfully       argue     that   these         were    not    permissible         purposes;

rather, he focused on relevancy, which we discuss in detail

below.

      ¶41 The transcript of the motion hearing reflects that the

circuit     court      understood       the       purposes      for    which       the    State

offered the evidence.             See supra note 13.               Thus, the court was

within    its     discretion      in    holding          that   intent       and    motive   to

control were permissible purposes.                       See, e.g., State v. Veach,

2002 WI 110, ¶58, 255 Wis. 2d 390, 648 N.W.2d 447.

      ¶42    Moreover,       this      was    a    conclusion         that    a    reasonable

judge could reach.            Under Wis. Stat. § 904.04(2)(a), "motive"

and "intent" are listed as permissible purposes.                                    Thus, the

evidence was offered for a permissible purpose.                               See State v.

Payano, 2009 WI 86, ¶63, 320 Wis. 2d 348, 768 N.W.2d 832 (citing

Wis. Stat. § 904.04(2) (2007-08)) ("As long as the proponent

identifies one acceptable purpose for admission of the evidence

that is not related to the forbidden character inference, the

first    step     is     satisfied.          Consequently,         this      first    step   is
hardly    demanding."        (Footnote        omitted.)         (Citations         omitted.));

see also State v. Marinez, 2011 WI 12, ¶29, 331 Wis. 2d 568, 797

N.W.2d 399 (noting that permissible purposes under Sullivan are

not     limited     to    those     listed        in     the    statute       or     to   those

recognized in previous cases).

      ¶43    Thus,        especially     given           greater      latitude       in    this

domestic abuse case, the circuit court did not err in concluding

that Dorsey's other acts were offered for a permissible purpose.


                                              29
                                                                         No.       2015AP648-CR


                 2.     Whether the other acts were relevant to
                             the permissible purposes.
       ¶44       Under the second prong, the relevance inquiry is two-

fold:      first,       "[t]he     evidence          must    relate     to     a     fact    or

proposition        of    consequence";          second,      the   evidence        must     have

probative value, that is, "a tendency to make a consequential

fact      more    or    less     probable       than    it    would    be      without      the

evidence."             Veach,     255     Wis. 2d 390,        ¶59;     see     Wis.       Stat.

§ 904.01.

       ¶45       With regard to the first, the State argued that intent

is   of    consequence         because     it    is    an    element    of     the    charged

crimes;      it       argued     that    motive        is    of    consequence        because

"[m]otive is always relevant," in part because it is related to

intent.      With regard to the second, the State argued that the

other acts were near in time because, although two years had

passed, Dorsey was on probation for a portion of that time.                                 The

State      further      argued     that    the       other    acts     were     similar       in

circumstance because:

       • The       arguments       that     preceded         the    assaults        concerned
           Dorsey's allegations that his partners did not show him

           sufficient respect;

       • The assaults occurred when the victims were in their home

           or vehicle;

       • In both the November 2011 (R.K.) and March 2014 (C.B.)

           incidents, the assaults happened in the midst of Dorsey

           accusing the victims of lying to him; and




                                                30
                                                                       No.   2015AP648-CR



      • In both the November 2011 (R.K.) and March 2014 (C.B.)

         incidents, Dorsey restricted his victims' movements.

      ¶46   With regard to the first, Dorsey argued that intent

and   motive     were   not    of     consequence     in     this     case   because    he

planned to deny that the alleged crimes ever happened, and thus,

he was not directly disputing the issue of intent and motive.

Dorsey   also     argued      that,    to    the    extent     that    the   other-acts

evidence bolstered C.B.'s credibility, admission was improper.

With regard to the second,                  Dorsey argued that, although the

charges were similar, the victims were different people, and

that "one prior offense doesn't make the allegation of another

one more or less probable."

      ¶47   The circuit court found

      that using [] greater latitude . . . [the evidence]
      does have probative value in that it does go to,
      because of the similarity, the motive to control.
      Although it is not very, very, very near in time, it's
      within two years and in a period of time in which the
      clock kind of stops ticking a little bit because the
      defendant is on probation for a period of that time.
      And while they're similar, they do not involve the
      same victim, there is some case law that it doesn't
      need to involve the same victim, but the clear
      statutory language indicates that it does not need to
      involve the same victim.
This record reflects that the court applied the proper legal

standard to the relevant facts using a demonstrated, rational

process.

      ¶48   Moreover,       this      was    a    conclusion    that     a   reasonable

judge    could     reach.           Whether       other-acts        evidence    is     "of
consequence" asks whether it is logically related to an element


                                             31
                                                                   No.    2015AP648-CR



of the offense, that is, whether, under the substantive law, it

is related to "the ultimate facts and links in the chain of

inferences that are of consequence to the case."                     Sullivan, 216

Wis. 2d at 786.           Intent and motive are "of consequence."                   Wis.

Stat.    § 904.01.        Intent   is   an   element    of   two    of        the   three

charged    crimes    at    issue   here.26      "[A]n    element         of    a    crime

constitutes a consequential fact that the State must prove even

if the defendant does not dispute the element."                           Veach, 255

Wis. 2d 390, ¶¶61, 77 (characterizing and upholding                           Davidson,

    26
       The second charge was for Misdemeanor Battery under Wis.
Stat. § 940.19(1):

         Whoever causes bodily harm to another by an act
    done with intent to cause bodily harm to that person
    or another without the consent of the person so harmed
    is guilty of a Class A misdemeanor.

See also Wis JI——Criminal 1220 (2015).     The fourth charge was
for Aggravated Battery under Wis. Stat. § 940.19(6):

         Whoever intentionally causes bodily harm to
    another by conduct that creates a substantial risk of
    great bodily harm is guilty of a Class H felony.

See also Wis JI——Criminal 1226 (2015).        The jury was                           also
instructed on intent for each of these charges as follows:

    "Intent to cause bodily harm" means that the defendant
    had the mental purpose to cause bodily harm to another
    human being or was aware that his conduct was
    practically certain to cause bodily harm to another
    human being. . . .

    You cannot look into a person's mind to find intent
    and knowledge. Intent and knowledge must be found, if
    found at all, from the defendant's acts, words, and
    statements, if any, and from all the facts and
    circumstances in this case bearing upon intent.


                                        32
                                                                No.     2015AP648-CR



236 Wis. 2d 537, ¶65); see also Hammer, 236 Wis. 2d 686, ¶25

(citing     State     v.   Plymesser,        172   Wis. 2d 583,       594-95,    493

N.W.2d 376 (1992)) ("If the state must prove an element of a

crime, then evidence relevant to that element is admissible,

even if a defendant does not dispute the element.").                    Similarly,

although motive is not specifically an element of a crime that

the   State    must   prove,   here     it    is   logically    related    to    the

element of intent.         "Intent" is defined as having a requisite

"mental     purpose."      See,    e.g.,     Wis   JI——Criminal    1220    (2015);

supra note 26.          Motive is relevant to establishing purpose.27

See, e.g., Davidson, 236 Wis. 2d 537, ¶65 (quoting Plymesser,

172   Wis. 2d    at     594-95).      "Evidence      relevant     to    motive    is

therefore admissible, whether or not defendant disputes motive."

Id.

      ¶49     Whether other-acts evidence has probative value asks

whether the other acts are similar, that is, whether they are

      27
       Dorsey argues that his cause is distinguishable from the
considerable precedent applying the greater latitude rule and
holding that motive is relevant to establish purpose because
that precedent exclusively evaluates the relevance of motive in
the context of sexual abuse crimes, where the purpose of "sexual
gratification" is an element of the crime. See, e.g., State v.
Hammer, 2000 WI 92, ¶27, 236 Wis. 2d 686, 613 N.W.2d 629 ("[The]
testimony was properly admitted to prove motive because purpose
is an element of sexual contact.").    If we were considering a
pure question of common law, extension of the greater latitude
rule might not be a perfect analogy for domestic abuse cases but
we are not; instead, we are considering the legislature's
statutory extension of the common law greater latitude rule to
domestic abuse contexts. Thus, Dorsey's argument that evidence
of motive should not be admitted under our greater latitude
cases fails.


                                        33
                                                                               No.     2015AP648-CR



near "in time, place, and circumstance[,] to the alleged crime

or to the fact or proposition sought to be proved."                                     Sullivan,

216 Wis. 2d at 786 (citing Whitty v. State, 34 Wis. 2d 278, 294,

149 N.W.2d 557 (1967)).28                Here, the other acts tend to make the

facts       of   intent    and    motive         more      probable       because       they     are

similar as to intent and motive, namely that, in both instances,

Dorsey       became       violent        when     he       felt    like        he     was       being

disrespected        or     lied     to,    and        he    isolated       his       victims     and

restricted their movements immediately prior to the assaults.

See supra ¶45.

       ¶50       Furthermore,       to     the     extent         that     R.K.'s       testimony

operated to bolster C.B.'s credibility, we have held that "[a]

witness's         credibility       is     always          'consequential'           within       the

meaning of Wis. Stat. § 904.01."                      Marinez, 331 Wis. 2d 568, ¶34.

And we have held that credibility is particularly probative in

cases that come down to he-said-she-said.                                Id.     Moreover, the

difficult proof issues in these kinds of cases "provide the

rationale behind the greater latitude rule.                              . . . [I]t follows
that    the      greater    latitude       rule        allows     for     the       more    liberal

admission of other-acts evidence that has a tendency to assist

the jury in assessing [credibility]."                        Id. (citation omitted).

       ¶51       Thus,    especially        given          greater       latitude          in    this

domestic abuse case, the circuit court did not err in concluding

       28
       As noted above, see supra note 22, subd. (2)(b)1.
explicitly requires that the other acts be similar.       This
requirement is satisfied by the similarity analysis under this
second prong of Sullivan.


                                                 34
                                                                             No.      2015AP648-CR



that Dorsey's other acts were relevant to the purposes of intent

and motive.

  3.     Whether the probative value was substantially outweighed
                   by the risk of unfair prejudice.
       ¶52    Under the third prong, the State noted that it was

Dorsey's       burden          to     show     that     the       probative         value      was

substantially outweighed by the danger of unfair prejudice and

argued that he would not be able to do so: the probative value

of Dorsey's other acts "could not be substantially outweighed by
the danger of unfair prejudice" because of the similarities of

the    incidents.              The    State    also     argued      that       "a   cautionary

instruction [would] ensure that the jury uses the evidence []

only to evaluate the defendant's motive [and] intent."                                    Dorsey

argued       that        the    other        acts    would        unfairly      bolster        the

credibility         of    C.B.       because    "when       you    have    a    female      who's

alleging      abuse       in     a    domestic       type    situation,         the     jury    is

automatically . . . already more toward the female who's making

the    allegations."                Dorsey    also    argued      that    admitting       R.K.'s

testimony would result in a trial within a trial, confusing the
issues the jury must decide.

       ¶53    The circuit court found

       that using [] greater latitude . . . is the probative
       value substantially outweighed by the danger of unfair
       prejudice, confusion, misleading the jury, needless
       presentation of cumulative evidence, and then the
       court's consideration of delay and waste of time, I do
       not find that it is.         That with a cautionary
       instruction, it can be provided that this information
       goes only to evaluate the defendant's motive and
       intent elements.    There's going to be no claim of


                                                35
                                                                        No.    2015AP648-CR


       mistake or what have you.                  So for those reasons, I'll
       allow it in.
This record reflects that the court applied the proper legal

standard to the relevant facts using a demonstrated, rational

process.

       ¶54    Moreover,      this     was     a    conclusion    that     a    reasonable

judge could reach.           "Because the statute provides for exclusion

only     if    the     evidence's        probative      value     is      substantially

outweighed by the danger of unfair prejudice, [t]he bias is []

squarely      on     the     side      of     admissibility."            Marinez,       331

Wis. 2d 568,         ¶41     (first      alteration      in     original).             "The

evidence's      probative        value      largely     turns    on      the    relevancy

analysis      from        step   two        under    Sullivan."           Payano,       320

Wis. 2d 348, ¶81.           "If the probative value is close to or equal

to     its    unfair       prejudicial       effect,     the     evidence       must    be

admitted."         Hurley, 361 Wis. 2d 529, ¶87.                And "[t]o limit the

possibility        that    the   jury       will    convict     based     on    'improper

means[,]'     circuit       courts     may . . . edit      the    evidence."           Id.,

¶89.
       ¶55    As noted above, the circuit court found that the prior

acts and the charged acts were near in time and similar in place

and circumstance.           Additionally, the circuit court limited any

unfair prejudice by precluding admission of the fact of Dorsey's




                                              36
                                                                        No.       2015AP648-CR



convictions     for     the    other   acts29     and     by    planning       to    give   a

cautionary instruction at the close of evidence.                               We presume

that jurors follow the instructions given by the court.                                  See,

e.g.,      Marinez,    331     Wis. 2d 568,        ¶41.         Where     a       cautionary

instruction     is    not     tailored    to     the    facts    of   the      case,     "its

cautionary effect [may be] significantly diminished."                              Sullivan,

216 Wis. 2d 791; cf. id. (quoting State v. Mink, 146 Wis. 2d 1,

17, 429 N.W.2d 99 (Ct. App. 1988)) ("[A] cautionary instruction,

even if not tailored to the case, can go 'far to cure any

adverse effect attendant with the admission of the [other-acts]

evidence.'").         Here, the cautionary instruction was tailored to

the facts particular to this case——intent and motive——and was

therefore in its most effective form.                  See supra ¶19.

      ¶56    Thus,     especially        given     greater       latitude           in   this

domestic abuse case, the circuit court did not err in concluding

that the probative value of Dorsey's other similar acts was not

substantially outweighed by the risk of unfair prejudice.

      ¶57    In sum, we conclude that the circuit court's admission
of the other-acts evidence under Wis. Stat. § 904.04(2)(b)1. was

not   an    erroneous    exercise      of    discretion         because       the    circuit

court      properly     applied    greater        latitude       under        a     Sullivan


      29
       The circuit court did not decide the admissibility of the
fact of Dorsey's convictions for his other acts toward R.K. at
the motion hearing on December 22, 2014; rather, it reserved
decision on whether the convictions were relevant for when R.K.
was testifying. Ultimately, the circuit court did not allow in
the fact of Dorsey's convictions.


                                            37
                                                                   No.    2015AP648-CR



analysis, considered the relevant facts using a demonstrated,

rational process, and reached a conclusion that a reasonable

judge could reach.


                                  IV.   CONCLUSION

      ¶58    There    are   two    issues     on   this    appeal.        First,   we

consider     what    standard     for   admission     of    other-acts      evidence

applies     under    the    recently    amended     language       in    Wis.   Stat.

§ 904.04(2)(b)1.        Second, we consider whether the evidence of

Dorsey's other acts was properly admitted under § 904.04(2)(b)1.

As to the first issue, we conclude that the recently amended

language allows admission of other-acts evidence with greater

latitude under a Sullivan analysis.                As to the second issue, we

conclude that the circuit court did not erroneously exercise its

discretion in admitting evidence of Dorsey's other acts because

the   circuit       court   applied     the    proper      legal     standard      and

admission was a conclusion that a reasonable judge could reach

based on the facts of the record.
      ¶59    Thus, we affirm the decision of the court of appeals

on other grounds.



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

affirmed.

      ¶60    SHIRLEY S. ABRAHAMSON, J., did not participate.




                                         38
                                                                   No.      2015AP648-CR.rgb




      ¶61    REBECCA GRASSL BRADLEY, J.               (concurring).            Instead of

adopting     a      plain     meaning     interpretation               of     Wis.     Stat.

§ 904.04(2)(b)1, the majority chose to squeeze the new language

of subsec. (2)(b)1 back into the Sullivan1 analysis under subsec.

(2)(a) and declares that its only substantive effect arises from

its statutory title by affording greater latitude in domestic

abuse cases when admitting other-acts evidence.                             By doing so,

the   majority       renders     the    actual      text      of       subsec.       (2)(b)1

meaningless.        Under the majority's holding, admission of similar

acts evidence at specifically enumerated sensitive crimes trials

remains     bound    by    the   same   three-step      Sullivan            analysis    used

before the legislature added subsec. (2)(b)1 to the statute.                               I

disagree with the majority's interpretation.

      ¶62    I   write       separately       to     apply         a     plain       meaning

interpretation to Wis. Stat. § 904.04(2)(b)1.                          A plain meaning

analysis establishes that Sullivan does not apply to subsec.

(2)(b)1;     rather,      subsec.   (2)(b)1        operates    independently            from
subsec.     (2)(a)    and    permits    the    admission       of        "similar      acts"

evidence at the enumerated sensitive crimes trials, as long as

the proffered evidence satisfies Wis. Stat. § 904.01's relevance

test and is not excluded under Wis. Stat.                          § 904.03's unfair

prejudice test.           Applying this interpretation to the challenged

evidence in Dorsey's case, I conclude the circuit court did not

erroneously exercise its discretion in admitting the evidence;

      1
       See State v. Sullivan, 216 Wis. 2d 768, 772, 576 N.W.2d 30
(1988).


                                          1
                                                                No.    2015AP648-CR.rgb


therefore, I would affirm the decision of the court of appeals.

I respectfully concur.

                                              I

    ¶63   This      case     presents         the    court      with      the    first

opportunity    to    interpret          the       newly    revised      Wis.     Stat.

§ 904.04(2),   which       added   an    entirely         new   subsection      titled

"Greater latitude."        Wisconsin Stat. § 904.04(2) reads:

    (2) OTHER CRIMES, WRONGS, OR ACTS.

         (a) General   admissibility. Except   as  provided
    in par. (b)2., 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,   opportunity,  intent,
    preparation, plan, knowledge, identity, or absence of
    mistake or accident.

          (b) Greater latitude.

               1. In a criminal proceeding alleging a
          violation    of s.   940.302(2)   or  of ch.   948,
          alleging the commission of a serious sex offense,
          as defined in s. 939.615(1)(b), or of domestic
          abuse,    as    defined   in s. 968.075(1)(a),   or
          alleging an offense that, following a conviction,
          is subject to the surcharge in s. 973.055,
          evidence of any similar acts by the accused is
          admissible, and is admissible without regard to
          whether the victim of the crime that is the
          subject of the proceeding is the same as the
          victim of the similar act.

               2. In a criminal proceeding alleging a
          violation of s. 940.225(1) or 948.02(1), sub. (1)
          and par. (a) do not prohibit admitting evidence
          that a person was convicted of a violation
          of s. 940.225(1) or 948.02(1)   or  a  comparable
          offense in another jurisdiction, that is similar
          to the alleged violation, as evidence of the
          person's character in order to show that the
          person acted in conformity therewith.
                                         2
                                                                          No.    2015AP648-CR.rgb


    ¶64        The majority correctly sets forth the court's standard

for reviewing statutes.               Majority op., ¶¶27-28.                   It goes astray,

however,    when     it     concludes       that       interpreting             para.    (b)1     in

context    means     it     is    subject        to    the     language         of    para. (a).

Majority    op.,     ¶29.        In    a   plain       meaning       analysis,          the    court

examines the language in the statute and if "the meaning of the

statute is plain, we ordinarily stop the inquiry."                                       State ex

rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110.                The language used in para. (b)1 is

plain and its meaning should be applied as written.

    ¶65        The language of para. (b)1 plainly instructs:                                  (1) in

certain specified sensitive crime proceedings; (2) "evidence of

any similar acts by the accused is admissible"; (3) even when

the victim of the similar act is different than the victim in

the case being prosecuted.                 Wis. Stat. § 904.04(2)(b)1.                    Nothing

in this paragraph requires that the "similar acts" be admitted

for a particular purpose, and nothing says the similar acts

cannot    be    admitted         to   prove      a     person        acted      in    conformity
therewith.

    ¶66        This language arguably conflicts with para. (a), which

directly    precedes        para.      (b)1,         but    only     if    one       assumes     the

legislature cannot create an exemption from para. (a) unless it

places the text of that exemption in para. (a) and nowhere else.

Paragraph      (a)   prohibits        the    admission          of    "evidence         of     other

crimes,     wrongs        or     acts"      to        prove     propensity,             with     two

exceptions.          Such      "other       acts"          evidence       is    admissible        in
criminal prosecutions alleging the crimes set forth in para.

                                                 3
                                                                    No.   2015AP648-CR.rgb


(b)2 and such evidence is admissible for a purpose other than

propensity in any proceedings.                 By contrast, para. (a) does not

explicitly except para. (b)1 from its provisions.                             The pivotal

question        then     is     whether    para.    (a)'s      prohibition        against

propensity evidence and its requirement of a permissible purpose

apply to para. (b)1.             I conclude they do not.

       ¶67      "It is a cardinal rule of statutory construction that

when a general and a specific statute relate to the same subject

matter, the specific statute controls and this is especially

true when the specific statute is enacted after the enactment of

the general statute."                 Martineau v. State Conservation Comm'n,

46 Wis. 2d 443, 449, 175 N.W.2d 206 (1970) (citing Raisanen v.

City of Milwaukee, 35 Wis. 2d 504, 516, 151 N.W.2d 129 (1967));

City       of   Wauwatosa        v.    Grunewald,    18     Wis. 2d 83,         87,   118

N.W.2d 128 (1962); Pruitt v. State, 16 Wis. 2d 169, 173-74, 114

N.W.2d 148 (1962); Maier v. Racine Cty., 1 Wis. 2d 384, 388, 84

N.W.2d 76 (1957); see also State v. Wilson, 2017 WI 63, ¶35, 376

Wis. 2d 92,        896        N.W.2d 682      ("[W]here    a       specific     statutory
provision        leads    in     one    direction    and       a    general     statutory

provision        in      another,       the     specific       statutory        provision

controls." (quoted source omitted)); State v. Schaefer, 2008 WI

25, ¶47, 308 Wis. 2d 279, 746 N.W.2d 457.2                     Here, paras. (a) and

       2
       The majority does not apply the well-established "specific
statute controls over a general statute" rule, which has been
repeatedly adopted by this court in prior statutory construction
cases.   See, e.g., Belding v. Demoulin, 2014 WI 8, ¶17, 352
Wis. 2d 359, 842 N.W.2d 373; Emjay Inv. Co. v. Vill. Of
Germantown, 2011 WI 31, ¶38, 333 Wis. 2d 252, 797 N.W.2d 844;
Kramer v. City of Hayward, 57 Wis. 2d 302, 311, 203 N.W.2d 872
(1973). Instead, the majority applies the "expressio unius est
                                                      (continued)
                                4
                                                                 No.    2015AP648-CR.rgb


(b)1 both relate to the admission of evidence.                          Paragraph (a)

broadly covers any civil or criminal action, applies to the

defendant as well as any witness who testifies, and addresses

"crimes, wrongs, or acts."                  Paragraph (b) specifically covers

only    particular    sensitive        crimes,     applies       only    to   "similar

acts," and is limited to evidence against the defendant.                            There

can be no dispute that para. (b)1 is the more specific statute.

Thus,    the   admission       of     the     challenged     evidence      should     be

analyzed only under para. (b)1.

       ¶68   The majority says the statute is ambiguous because the

plain language of para. (a) conflicts with para. (b)1.                         It then

concludes that para. (b)1's only meaning is to give greater

latitude to the admission of other-acts evidence in domestic

violence     cases.      The        majority     gives     two   reasons      for     its

conclusion:     (1) the explicit exception referenced in para. (a)

means para. (b)1 cannot operate as an exception; and (2) the

title    "Greater     latitude"       resolves      the     ambiguity      and      gives

meaning to (b)1.      Majority op., ¶¶29-33.




exclusion alterius" canon ("The expression of one thing implies
the exclusion of others.") by citing exclusively to Reading Law:
The Interpretation of Legal Texts.     Majority op., ¶29 (citing
Antonin   Scalia  &   Bryan  A.   Garner, Reading   Law:     The
Interpretation of Legal Texts 107-11 (2012)). However, Reading
Law also instructs, consistent with well-established Wisconsin
law, that "[i]f there is a conflict between a general provision
and a specific provision, the specific provision prevails."
Scalia & Garner, supra, at 183.       Particularly pertinent to
reconciling Wis. Stat. § 904.04(2)(a) with § 904.04(2)(b)(1),
"[u]nder this [general/specific] canon, the specific provision
is treated as an exception to the general rule." Id.

                                             5
                                                                     No.    2015AP648-CR.rgb


       ¶69   The majority's interpretation, however, results in the

newly enacted para. (b)1 being swallowed by para. (a).                                  Before

the enactment of para. (b)1, all "other acts" evidence in the

specifically        enumerated       crimes       in    para.    (b)1    was     subject     to

already-existing          para.     (a).      In       other    words,     in    a    domestic

violence case like this one, if the State wanted to introduce

evidence of Dorsey's prior similar bad acts toward R.K., it

would   need      to     clear    the    three-part         Sullivan     analysis.          The

majority holds that despite the legislature's revision to Wis.

Stat. § 904.04(2), admission of other-acts evidence in sensitive

crimes cases remains subject to a Sullivan analysis.

       ¶70   The       majority      holds        Sullivan       still      controls        the

admission of evidence under the newly-enacted para. (b)1.                                    It

determines the only effect of this statutory paragraph was to

give    greater        latitude     when   admitting           other-acts       evidence    in

domestic abuse cases.              Under this construction, all of the other

statutory language of para. (b)1 is rendered superfluous.                                   The

legislature might as well have limited para. (b)1 to say "courts
shall give greater latitude under the Sullivan test in domestic

violence cases."           After all, the greater latitude rule already

applied      to    sexual        assault    crimes       before     the     enactment       of

para. (b)1.        See    State     v.     Davidson,         2000   WI     91,       ¶44,   236

Wis. 2d 537,        613    N.W.2d 606.            The       majority's     interpretation

violates      the        fundamental       rule        of      statutory        construction

requiring courts to give effect to all statutory provisions "so

that no part will be inoperative or superfluous."                                See Kalal,
271 Wis. 2d 633, ¶46; see also Clark v. Rameker, 134 S. Ct.

                                              6
                                                            No.   2015AP648-CR.rgb


2242, 2248 (2014) (quoted source omitted).                 Statutes should be

"read where possible to give reasonable effect to every word, in

order to avoid surplusage."        Kalal, 271 Wis. 2d 633, ¶46.

       ¶71   This can be done quite simply in this case by adopting

a   plain    meaning    interpretation.       Under   that    interpretation,

admission     of   other-acts    evidence     in   cases    not    specifically

enumerated in para. (b)1 will continue to be governed by the

Sullivan three-part analysis.          Those cases are confined to the

limitations set out in the language of para. (a) and evidence is

inadmissible unless a party proffers a permissible purpose (and

clears the second and third part of the Sullivan analysis).                    In

the    specifically       identified       criminal   actions       prosecuting

sensitive crimes under para. (b)1, the admission of evidence

will   not    require    a   particular    purpose    to   secure    admission.

Rather, it will be admitted if it constitutes a "similar act."

Its admission, like all proffered evidence, is subject to Wis.

Stat. § 904.01's relevancy requirement and may be excluded even

if relevant under Wis. Stat. § 904.03's unfair prejudice test.
See Davidson, 236 Wis. 2d 537, ¶34 (noting that to be admitted,

all evidence "must be relevant under" Wis. Stat. § 904.01 and




                                       7
                                                                      No.   2015AP648-CR.rgb


must clear Wis. Stat. § 904.03's unfairly prejudicial balancing

test.).3

       ¶72    I am not persuaded by the majority's position that

because para. (a) specifically excepts para. (b)2, this means

that para. (b)1 cannot operate independently from para. (a).

Paragraph      (b)1's   own        language         operates     to    except     it    from

para. (a) and this is the only interpretation of the statute

that       gives   effect     to        every       provision.         And     under    the

general/specific            canon,         the        specific         provision——here,

para. (b)1——is      treated        as    an     exception      to   the     general    rule,

embodied here in para. (a).                   Antonin Scalia & Bryan A. Garner,

Reading Law:       The Interpretation of Legal Texts 183 (2012).

       ¶73    I am also not persuaded that the only meaning given to

para. (b)1 arises from its title——"Greater latitude."                            The title


       3
       The majority says it does not know how the plain meaning
of this statute would work in conjunction with the "relevance"
and "unfair prejudice" tests: "[I]t is not clear how a party
could establish relevance under Wis. Stat. § 904.01, or pass the
balancing test under § 904.03, without proffering a 'purpose'
(relevance) that is 'permissible' (not substantially outweighed
by the danger of unfair prejudice)."    Majority op., ¶35 n.25.
The permissible purpose, of course, is to establish that the
defendant acted in conformity with the character established by
the "similar acts" evidence.     That is the same permissible
purpose the legislature authorized in subsec. (2)(b)2 (evidence
of conviction on comparable offenses admissible as "evidence of
the person's character in order to show that the person acted in
conformity therewith."). There is nothing the majority can say
on this score with respect to subsec. (2)(b)1 that would not
apply with equal force to subsec. (2)(b)2.      The majority is
obviously uncomfortable with this policy change, but our role is
not to judge the wisdom of a legislative choice. It is only to
apply it insofar as it is consistent with the Wisconsin and
United States Constitutions.


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of the statute is not part of the statute.                                     See Wis. Stat.

§ 990.001(6)           ("titles       to    subchapters,          subsections,         paragraphs

and subdivisions of the statutes and history notes are not part

of     the   statutes.").                  Although          titles    may     be     helpful       in

interpreting           a   statute,        the    "text       must    control       over     title."

Aiello v. Vill. of Pleasant Prairie, 206 Wis. 2d 68, 73, 556

N.W.2d 697        (1996).         "[A]       title       or     heading      should      never      be

allowed      to       override    the       plain       words    of   a   text."           Scalia    &

Garner, supra ¶12, at 222.                   Here, the text of the statute itself

expresses the meaning of para. (b)1, and it is the text itself,

rather than its title, that makes evidence of "similar acts" in

sensitive crimes cases admissible without requiring the State to

establish         a    permissible         purpose.            "[The]     heading       is    but    a

shorthand      reference         to    the       general       subject       matter    involved."

Scalia & Garner, supra ¶12, at 221 (quoting Brotherhood of R.R.

Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 529-29 (1947)).

Here, the title "Greater latitude" is an apt description of the

text    that      follows,       because         in     certain       criminal       proceedings,
evidence that would otherwise be inadmissible without clearing

the Sullivan hurdles is made admissible, period.                                     However, the

majority       misapplies        the       title        to    read    into    subsec.        (2)(b)1

evidentiary preconditions wholly absent from the text.

       ¶74     The majority says we must ignore the plain meaning of

subsec.      (2)(b)1        because        it    "creates        a    conflict . . . in          the

context of subsec. (1), which embodies the general purpose of

rule 904.04 'to exclude use of other misdeeds to prove character
in order to prove guilt.'"                        Majority op., ¶28 n.23.                    In one

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sense, this arguably creates a "conflict" because the scope of

Wis. Stat. § 904.04(1) after adoption of subsec. (2)(b)1 is not

as great as before.            But when the legislature adopts a new

provision that is inconsistent with an existing provision, we

don't call it a "conflict," we call it an amendment.                               Yes,

adoption    of    subsec.     (2)(b)1    limited     the     general    purpose      of

proscribing       the   use    of    "other        acts"     evidence       to     prove

propensity.       But on what authority does the majority reject this

valid legislative choice?

      ¶75   The    majority     objects       to    the     legislature's        change

because it "would effectively repeal the exclusionary purpose of

the rule, which is supported by four long-standing and oft-cited

rationales . . . ."         Majority op., ¶28 n.23.4             It is true that

the rationales are long-standing and oft-cited.                      But so what?

Do we really propose a pitched battle between our rationales and

the   legislature       regarding    a    subject      on    which     it    has     the

authority to legislate?             Even if our rationales had enjoyed

universal acclamation from the beginning of time, still they
would have no standing against the legislature's decision to

change this policy.         This discussion suggests the court rejected

the plain meaning of subsec. (2)(b)1 simply because it altered

the status quo ante that had obtained in Wis. Stat. § 904.04(1).


      4
       This significantly overstates the reach of subsec.
(2)(b)1, which is limited to the identified types of cases. But
within those types of cases, the majority is correct that it
would repeal the exclusionary purpose of the general rule. But
this repeal is accomplished by the legislature's pen, not ours,
and it is the legislature's prerogative to do so.


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      ¶76     The majority replaces the legislature's policy choices

with what it characterizes as its own "more prudent approach."

Majority      op.,    ¶28       n.23.       This     method          of     interpretation,

sometimes termed consequentialism, rejects the statutory text in

favor of a construction that will "produce sensible, desirable

results, since that is surely what the legislature must have

intended.      But it is precisely because people differ over what

is sensible and what is desirable that we elect those who will

write   our    laws——and         expect    courts       to    observe       what    has    been

written."      Scalia & Garner, supra ¶12, at 22.                                Our "duty to

provide meaningful guidance[,]" see majority op., ¶28 n.23, to

the bench and bar cannot override our duty to say what the law

is and not what we may wish it to be.                          Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177 (1803).

      ¶77     The majority also shies away from the plain meaning of

subsec. (2)(b)1 because it does not contain a comprehensive set

of    interpretive        aids     to     help    the    bench,           bar,    and    juries

understand the meaning of "similar acts."                             Majority op., ¶28
n.23.    It worries this "would result in appeal after appeal, and

would require opinion after opinion" to determine the proper

application of this provision.                    That may be true.                But that's

also the reason we are here.                      And "similar acts" is not so

ethereal or exotic that we should struggle with it more than,

say, the meaning of "comparable offenses" (subsec. (2)(b)2) that

are   "similar       to   the     alleged    violation,"         id.,        or    "pertinent

trait" (subsec. (1)(a) & (b)), or the purposes for which "other
acts"    evidence         may      be     admitted           under        subsec.       (2)(a).

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Ultimately, this objection is a category error——the judiciary

may not refuse a statutory enactment because it will require too

much future interpretative work.

    ¶78   Applying   the   plain    meaning   of   the    text   to   the

challenged evidence here, I conclude the trial court did not

erroneously exercise its discretion in allowing its admission.

For these reasons, I respectfully concur.

    ¶79   I am authorized to state that Justice DANIEL KELLY

joins this concurrence.




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