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State v. Falk6/29/2000
he evidence in that case. Using Scheidell as a guide, we conclude that the proper standard for the circuit court to apply in evaluating proffered other acts evidence concerning a third party when the charged crime is child abuse is to balance the probity of the evidence, considering the other act and the crime alleged, against the considerations contained in Wis. Stat. § 904.03 using the Sullivan framework, and using a less stringent requirement of similarity between the other act and the crime than that used when the State offers such evidence. See Scheidell, 227 Wis. 2d at 311. Because it does not appear the trial court applied this standard, we undertake a de novo review. See Sullivan, 216 Wis. 2d at 781. We conclude that the evidence contained in the offer of proof before the trial court was properly excluded.
. As previously stated, Richard argued to the trial court that the evidence was offered to show proof of Shannon's opportunity, motive, intent and absence of mistake; on appeal he focuses on the motive of frustration. Although these are all permissible purposes under Wis. Stat. § 904.06(2), we do not see how the proffered evidence is related to the opportunity to injure Laura, and its relation to motive is weak at best. However, assuming the evidence was offered for the permissible purposes of motive or intent and lack of mistake, and assuming it relates to the proposition that Shannon rather than Richard injured Laura, we are convinced that its probative value is so low as to make it irrelevant under the second part of step two in the Sullivan analysis. The bare bones offer of proof of the incident did not include injury or pain to Cody as a result of being thrown, or intent to cause him injury or pain, or frustration on Shannon's part. The probative value of other acts evidence lies in the similarity between the other act and the charged offense. See Sullivan, 216 Wis. 2d at 786. While we are mindful that this standard must be applied in a less stringent manner because Richard seeks to introduce the evidence in his defense, see Scheidell at 227 Wis. 2d at 304-05, we are satisfied that the prior act of throwing a child two or three feet onto a bed bears so little resemblance to the type of forceful act necessary to produce Laura's injuries that it is not relevant, and its exclusion does not violate Richard's constitutional right to present a defense.
INEFFECTIVE ASSISTANCE OF COUNSEL
Other Acts and Character Evidence Relating to Shannon
. The primary focus of Richard's claim of ineffective assistance of counsel is that trial counsel did not, beyond the offer of proof we have just discussed, present evidence of Shannon's behavior, attitudes or psychological make-up. This would show, he contends, that it was more likely that Shannon injured Laura than that he did. The evidence which should have been presented by trial counsel and admitted by the court, according to Richard, falls generally into these categories: (1) witnesses' accounts of Shannon's behavior and attitude toward her children both before and after the injuries, of her prior abuse of animals and of her violent temper; (2) the psychological evaluation of Shannon in the CHIPS case (children in need of protection and services); and (3) expert opinion on child abuse. Richard contends trial counsel had some information from witnesses at the time of trial but was deficient in not making sufficient offers of proof; and he did not have other information, including the psychological report and expert opinion, because of an inadequate investigation.
. The trial court held that counsel was not deficient because he correctly understood the court had ruled that he could not introduce "prior bad
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