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In re Commitment of Franklin4/1/2004
come 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. See State v. Davidson, 2000 WI 91, , 236 Wis. 2d 537, 613 N.W.2d 606; Wolfe, 246 Wis. 2d 233, . There is nothing unfairly prejudicial about the other acts evidence offered in this case. It is simply factual observations showing Franklin's long and consistent history of poorly controlled conduct that both experts used in coming to their conclusions. As such, we conclude that the circuit court did not erroneously exercise its discretion in admitting it.
III. CONCLUSION
. We conclude that during a commitment proceeding under ch. 980, Wis. Stat. § 904.04(2) does not apply to evidence offered to prove that the respondent has a mental disorder that makes it substantially probable that the respondent will commit acts of sexual violence in the future. Because we also conclude that such evidence was properly admitted here, we affirm the decision of the court of appeals.
By the Court. -- The decision of the court of appeals is affirmed.
. SHIRLEY S. ABRAHAMSON, C.J. (concurring).
I do not dispute the majority opinion's conclusion that Wis. Stat. § 904.04(2), which prevents "evidence of other crimes, wrongs, or acts" from being admitted to "prove the character of a person in order to show that the person acted in conformity therewith," is inapposite to a chapter 980 proceeding.
. Wisconsin Stat. § 904.04(2) is not the focus of this case. Evidence must clear the relevance hurdle, § 904.01, before its admissibility comes into question.
. The real issues in this case are twofold: First, is the testimony introduced by the probation and parole agent regarding the defendant's prior non-sexual misconduct relevant to a determination under chapter 980 that the defendant's "mental disorder . . . makes it substantially probable that the [defendant] will engage in acts of sexual violence?" Second, even if such evidence is relevant, was its probative value substantially outweighed by the danger of unfair prejudice?
. I conclude that the answer to both of these questions is no and that the circuit court erroneously exercised its discretion in failing to consider each type of evidence that the defendant sought to exclude to determine its relevance and its potential for unfair prejudice. Despite the circuit court's erroneous exercise of discretion, I concur, rather than dissent, because I agree with the State that the circuit court's error in admitting the challenged evidence in this case was harmless.
I.
. I first consider the issue of relevance. The first consideration in assessing relevance is whether the evidence relates to a fact or proposition that is of consequence to the determination of the action.
. Determining whether or not evidence is relevant lies within the discretion of the circuit court. This court has often said that "a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purposes of achieving a reasonable determination." An appellate court will affirm a circuit court's discretionary decision as long as the circuit court "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Therefore, the record on appeal must "reflect the circuit court's reasoned application of the appr
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