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State'S Motion To Admit "Other Acts" Evidence: Plaintiff
State'S Motion To Admit "Other Acts" Evidence: Plaintiff
FILED
07-01-2021
Clerk of Circuit Court
Kenosha County
STATE OF WISCONSIN CIRCUIT COURT KENOSHA COUNTY
2020CF000983
DA Case No.: 2020KN003907
STATE OF WISCONSIN
Plaintiff, Court Case No.:
2020CF000983
vs.
PLEASE TAKE NOTICE that the State of Wisconsin, by Assistant District Attorneys
Thomas Binger and Jason Zapf, hereby moves this court for the admission of Other Acts
evidence in the above captioned matter. Specifically, the State moves to admit evidence that
(1) the defendant assaulted a female in Kenosha on June 1, 2020 and (2) the defendant is
The defendant is charged with the offenses of First Degree Reckless Homicide, First
Degree Intentional Homicide, Attempted First Degree Intentional Homicide, two counts of First
under the age of 18, and Failure to Comply with an Emergency Management Order of a State
or Local Government. These offenses are alleged to have occurred on or about August 25,
2020.
Wisconsin courts utilize a three-prong test when confronted with other-acts evidence:
Courts must determine (1) whether the act offered is for a permissible purpose pursuant to §
904.04(2)(a)1; (2) whether the act satisfies the two relevancy requirements in § 904.01; and,
(3) whether the probative value of the evidence is substantially outweighed by the risk or
danger of unfair prejudice under § 904.03. The burden of establishing the first two prongs is
on the proponent, and then shifts to the opposing party to show the third prong. The purposes
1Wis. § 904.04(2)(a) provides that other crimes or acts is not admissible to prove conformity therewith, but
permits admission of such acts “when offered for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
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drawing the propensity inference being the main limiting factor.” State v. Marinez, 331 Wis.2d
568, 590 (2011) citing State v. Sullivan, 216 Wis.2d, 768, 783 (1998).
accident.” State v. Marinez, 331 Wis.2d 568, 584 (2011). For example, evidence may be
admissible to provide the “context of the crime and to provide a complete explanation of the
case.” State v. Hunt, 263 Wis. 2d 1, 35 (2003). In Hunt, the court also held, “The other-acts
evidence was permissible to show the victims’ state of mind, to corroborate information
provided to the police, and to establish the credibility of victims and witnesses in light of their
recantations.” Id. In State v. Dorsey, the Wisconsin Supreme Court recognized that a
defendant’s intent and motive to cause bodily harm and to control his victim within the context
of an ongoing relationship were acceptable purposes for the admission of other acts evidence.
“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.” State v. Payano, 320 Wis.2d 348 (2009)
After assessing whether an acceptable purpose for the admission of the evidence has
been offered, the court next evaluates the probative value of the evidence. The Hunt Court
reiterated well-established Wisconsin case law on this issue, “The measure of probative value
in assessing relevance is the similarity between the charged offense and the other act.
Similarity is demonstrated by showing the nearness of time, place and circumstance between
the other act and the alleged crime.” 263 Wis.2d at 38.
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claiming that he will not contest certain elements of the offense. “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.” State v. Veach, 255 Wis.2d 390, 416 (2002). Thus, in Veach,
the court did not accept the defendant’s argument that other acts evidence bearing on intent
and absence of mistake was irrelevant because the defendant claimed at trial that no physical
contact took place whatsoever. Id. at 417-23. Therefore, the court held, “as elements of the
crime, intent and motive are always facts or propositions of consequence.” Id. at 423.
The final consideration in the three-step Sullivan analysis is whether the probative value
is substantially outweighed by unfair prejudice. At the third step of the analysis, the burden
shifts to the defendant. Dorsey, 379 Wis.2d at 421. “Because the statute provides for exclusion
only if the evidence’s probative value is substantially outweighed by the danger of unfair
prejudice, the bias is squarely on the side of admissibility.” Id. at 422 (emphasized in the
original, internal quotations omitted). “If the probative value is close to or equal to its unfair
1. The Court should admit evidence that the defendant assaulted a female in
Kenosha on July 1, 2020.
The defendant is charged with multiple serious felonies, several of which require the
State to prove, among other elements, that the defendant intended to inflict a certain type of
violence upon other individuals. The prior acts of violence directed against the female subject
on July 1, 2020, are offered to show the defendant’s intent to cause bodily harm. On that date,
the defendant is seen in video footage near the lake front in Kenosha. The defendant is
present with several other people of a similar age. In the footage of this group of teenagers,
two teenaged girls are involved in what appears to be a heated argument, while the others of
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their separate ways, but something then sets off the two female teenagers, and they begin to
fight. The defendant then suddenly involves himself in the fight. The defendant grabs one of
the two female teenagers (who is wearing a black shirt) from the back as this female subject is
grappling with another female. The defendant then begins to punch her in the back repeatedly
with a closed fist. As this female teenager is pulled away from the defendant due to her on-
going struggle with the other female, the defendant chases after her and begins to punch her
in the back again. Several other individuals then rush towards the defendant to break apart the
The prior act also shows a consistent motive. In both the July 1, 2020 incident and the
August 25, 2020 incident, the defendant, an Illinois resident, willingly and intentionally put
himself in violent situations in Wisconsin that do not involve him in order to commit further acts
of violence. In the July 1, 2020 incident, rather than simply pull apart the parties or contact law
enforcement, the defendant begins violently attacking one of the female subjects involved in
the fight. In the pending case, the defendant, in violation of a curfew order and law
enforcement orders to disperse, illegally armed himself with a dangerous weapon and went to
the epicenter of a dangerous riot. There, he shot three people, two of whom died.
The second prong of the 904.04 analysis involves relevancy. Relevant evidence is
defined as evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be without
the evidence. Wisconsin Statutes Section 904.01. Determining relevance involves assessing
the similarity between the charged conduct and the offered evidence. State v. Gray, 225
Wis.2d 39, 58 (1999). Similarity is demonstrated by showing the “nearness of time, place, and
circumstance” between the other act and the alleged crime. State v. Scheidell, 227 Wis.2d
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The other act occurred on July 1, 2020, less than two months before the charged
offense. In light of case law allowing other acts evidence for incidents that were separated by
several years, the July event is recent in time for purposes of the Sullivan analysis. See e.g.,
Plymesser, 172 Wis.2d 583 (event which occurred 13 years prior admitted as other acts); State
v. Davidson, 236 Wis.2d 537 (2000) (event which occurred 9 years prior admitted as over
acts); and State v. Opalewski, 256 Wis.2d 110, 121-23 (Ct. App. 2002) (event which occurred
As stated above, the defendant, an Illinois resident, came to the downtown area of
Kenosha, Wisconsin in both incidents. The defendant then placed himself in violent situations
with which he should have had no involvement. After willingly putting himself in these violent
conflicts, the defendant responded to them both by perpetrating further acts of violence. The
other acts evidence being offered is clearly near in time and place, and is of the same
For the third prong of the 904.04 analysis, the burden shifts to the opponent of the
evidence to show that the admission of the evidence is unfairly prejudicial, Hunt, 263 Wis. 2d 1
at ¶ 69. The evidence is not unfairly prejudicial. First, a curative instruction can provide the jury
the framework on how to evaluate the other acts evidence and apply it fairly and properly.
Second, the evidence being sought is of the same nature as the charged conduct. The
evidence is not overly prejudicial, and is highly probative. The State therefore respectfully
requests the Court admit evidence that the defendant assaulted a female on July 1, 2020.
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On January 13, 2021, the State filed a motion to modify the defendant’s bond in this
case based on the fact that he went to a bar in Racine with several members of the “Proud
Boys” organization right after Court on January 5, 2021. The State incorporates that motion
and its supporting affidavit into this motion. As that motion indicated, the “Proud Boys” are a
violently racist organization whose members take pride in assaulting members of racial
minorities, particularly Black Lives Matter protesters. Over the past year, members of the
“Proud Boys” have violently attacked Black Lives Matter protesters and others in Seattle,
The State has since learned that the people with the defendant at the bar on January 5,
2021 included the leader of the Wisconsin “Proud Boys” organization and several of its
highest-ranking members, who proceeded to serenade the defendant at the bar with their
anthem, a song from the Broadway musical “Aladdin”. The defendant posed for pictures with
the leaders of the “Proud Boys” organization while flashing their “OK” sign. Obviously, the
defendant shares their beliefs and has, in fact, been named an honorary member of the
organization.
This evidence is relevant and admissible because it goes to the defendant’s motive and
intent for coming to Kenosha on August 25, 2020. The defendant claims that he wanted to
protect the Car Source business from rioting and looting that night, but that claim is highly
dubious. The defendant had no previous ties to that business. He did not work there or know
2
https://www.seattletimes.com/nation-world/proud-boys-and-black-lives-matter-activists-clashed-in-a-florida-suburb-
only-one-side-was-charged/; https://www.pbs.org/newshour/politics/proud-boys-leader-arrested-accused-of-burning-
church-banner; https://www.dispatch.com/videos/news/2021/01/06/fights-statehouse-proud-boys-pro-trump-and-blm-
protesters-meet/6569474002/; https://www.statesmanjournal.com/story/news/2021/01/01/salem-protests-black-lives-
matter-proud-boys-gov-kate-brown-residence-covid-masks/4107728001/. See also
https://www.kansascity.com/opinion/editorials/article250060744.html.
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The defendant did not illegally arm himself with a deadly assault rifle and wade into a chaotic
scene simply to protect a random downtown car lot that he had never heard of before. He did
The defendant’s motive for being there that night is a key part of this case. After the
shooting of a black man by a white Kenosha Police Officer on the evening of Sunday, August
23, 2020, many came out to protest what they perceived to be an injustice. Unfortunately,
some individuals took this opportunity to riot and destroy many businesses in the downtown
area. By the following night, many people had come to Kenosha to counter that protest and
what they perceived to be the Black Lives Matter movement behind it. The two opposing sides
escalated by Tuesday night, August 25th, when the defendant came to town. He was clearly
The defendant’s presence, as well as the presence of other armed individuals, made
the potential for violence a certainty. Rather than make things more peaceful, the defendant’s
presence increased the unrest and chaos. It is important to remember that the only people
killed in this entire saga were killed by the defendant, and the only person seriously injured in
the protests following the Jacob Blake shooting was shot by him. The defendant deliberately
aggravated the situation. It is anticipated that the defendant will attempt to assert the privilege
of self-defense at trial. His association with a violent racist group is highly relevant to that
assertion. By illegally bringing a deadly weapon to an already volatile situation, the State
Simply put, the defendant was a clear and present threat to the safety of everyone out
there that night. He was the aggressor, there with the intent to violently clash with those
opposed to his beliefs. After all, that is exactly what happened in the end. It was not the
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Much like members of the “Proud Boys” take pride in violence, the defendant is
evidently proud that he killed 2 people and seriously wounded a 3 rd. He has posed for selfies
as if he is a celebrity. His family has sold merchandise with his image on it that celebrates his
acts of violence.3 This lack of remorse on the part of the defendant strongly suggests that it
was his intent to commit violence on the night of August 25, 2020. The fact that he has since
celebrated his notoriety strongly suggests that he set out to achieve the goal of becoming
famous. Because the defendant’s association with the “Proud Boys” goes directly to his intent
and motive, as well as his claim of self-defense, the Court should admit evidence of this fact at
trial.
CONCLUSION
For the foregoing reasons, the State respectfully requests that the Court grant this
motion.
3 The State intends to introduce evidence of this fact at trial as it is relevant to the defendant’s state of mind.
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Thomas C. Binger
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