State v. Sullivan

In State v. Sullivan, 216 Wis. 2d 768, 780, 576 N.W.2d 30 (1998), the court set out a three-part test for the admission of such evidence under Wis. Stat. 904.04(2) (1997-98). The first step considers whether the other acts evidence is offered for a permissible purpose under 904.04(2). See Sullivan, 216 Wis. 2d at 783. Among those purposes are intent, motive and plan. See id. The second step determines if the other acts evidence is relevant "to a fact or proposition that is of consequence to the determination of the action" and whether it is probative, i.e., "whether the evidence has a tendency to make a consequential fact more probable or less probable than it would be without the evidence." 216 Wis. 2d at 785-786. The final step is to determine whether the circuit court "erroneously exercised its discretion in weighing the probative value of the other acts evidence against the danger of unfair prejudice, confusion of the issues, or misleading the jury, or considerations of undue delay, waste of time or needless presentation of cumulative evidence." Id. at 789. In short, the Court delineated a three-step analysis to determine the admissibility of other acts evidence under Wis. Stat. 904.04(2). First, other acts may be admissible for the purpose of establishing "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Wis. Stat. 904.04(2). Second, the evidence must be relevant under Wis. Stat. 904.01 and 904.02. Third, its probative value must substantially outweigh the danger of unfair prejudice or confusion of issues under Wis. Stat. 904.03.