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State v. Falk6/29/2000
he injuries to the legs and the arms would have occurred something like Monday night or early Tuesday morning. However, when the State recalled Chief Deputy Gaffney as a rebuttal witness, he denied discussing a "dangling theory" with Richard's mother, and said that when he spoke with her the only theory he was aware of was the one the doctors had arrived at-a systematic breaking of the child's bones.
. Dr. Keith Kahle, the orthopedic surgeon who treated Laura, testified that when he first observed all of the fractures in Laura, he theorized that they resulted from "a systematic, intentional taking each of the extremities at various locations, near the joints and just snapping them in certain moves...." Dr. Kahle relayed this theory to Detective Schrank at that time. When Detective Schrank later told Dr. Kahle how Richard described inflicting the injuries in his confession, Dr. Kahle stated that these actions could have caused the injuries he observed: Richard's description was "at least equally consistent" with the injuries as his original theory of systematic breaking of the bones.
. The State also presented evidence, over Richard's objection, that Richard had caused similar rib fractures to his son, Cody, a couple years earlier. Detective Schrank testified that he interviewed Richard again on March 6 and asked him about fractured ribs the doctors identified on an x-ray of Cody from when he was about ten months old. Detective Schrank testified that Richard "indicated that he was probably the one who did it" and that he remembered "squeezing Cody in a similar fashion that he squeezed Laura." Richard denied making those statements and testified it was Detective Schrank who said "You probably did it" to Richard on March 6. There is not a signed statement from the March 6 interview.
. The jury found Richard guilty of two counts of child abuse and he was sentenced to a twenty-five-year prison term.
. Richard brought a number of post-conviction motions, including a motion for a new trial based on ineffective assistance of counsel and in the interests of justice. After lengthy post-conviction proceedings, the trial court denied the motions in a written decision.
TRIAL COURT ERROR
State's Other Acts Evidence
. Richard contends the trial court erred in admitting Detective Schrank's testimony that Richard confessed to causing fractures to Cody's ribs two years prior to the injuries to Laura. The trial court determined the evidence was admissible under Wis. Stat. § 904.04(2), which provides:
(2) Other crimes, wrongs, or acts. 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.
The jury was instructed to consider Cody's rib fractures only for the purpose of showing "absence of mistake or accident, that is whether the defendant acted with the state of mind required for this offense."
. Whether other acts evidence is admissible under this statute is determined by using the three-step analytical framework outlined in Sullivan, 216 Wis. 2d at 772-73 (footnote omitted):
(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?
(2) Is the other acts evidence relevant, considering the two facets of
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