State v. Anthony Howard, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 6, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP2316-CR Cir. Ct. No. 2017CF912

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY HOWARD, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County:
CYNTHIA MAE DAVIS, Judge. Affirmed.

Before Brash, P.J., Dugan and Donald, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Anthony Howard, Jr. appeals his judgment of
conviction for three counts of physical abuse of a child by recklessly causing great
No. 2019AP2316-CR

bodily harm, and one count of child neglect causing bodily harm. Howard argues
that the trial court erred in permitting the State to introduce specific instances of
domestic violence as rebuttal character evidence during its direct examination of
Howard’s wife, T.H. The trial court allowed the evidence pursuant to WIS. STAT.
§ 904.04(1)(a) (2017-18),1 which permits character evidence of the accused to be
introduced by the State in rebuttal when the same has been offered by the accused.

¶2 The trial court also referenced WIS. STAT. § 904.05, which states that
admissible character evidence may be introduced through opinion testimony. See
§ 904.05(1). However, the statute places constraints on the introduction of specific
instances of character evidence: specific instances can only be introduced either on
cross-examination of the witness offering the opinion testimony, see id., or if the
character trait involved is an “essential element” of the charge, see § 904.05(2).
Neither of those two exceptions are applicable in this case.

¶3 Therefore, we conclude that the trial court did not properly apply WIS.
STAT. § 904.05 and, as a result, it erred in allowing the State to introduce specific
instances of character evidence. However, we further conclude that the error was
harmless. We therefore affirm.

BACKGROUND

¶4 The charges against Howard stem from injuries to Howard’s daughter,
P.M.H., who was five months old at the time. P.M.H. had been born premature,
causing developmental delays. A physical therapist, Gail Eisner, had been working

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP2316-CR

with P.M.H. to improve the motion in her joints, a condition related to her premature
birth.

¶5 Eisner came to the Howards’ home once a week to work with P.M.H.,
beginning shortly after she was born. Eisner performed various movements and
stretches with P.M.H. Eisner also showed Howard and T.H. how to do the exercises
with P.M.H., and encouraged them to work with her outside of her therapy sessions.

¶6 During a visit in February 2017, Eisner noticed that P.M.H.’s left leg
was bent to the side, and that her left thigh was swollen. Eisner brought this to the
attention of P.M.H.’s parents, but they walked away without responding. Eisner
then terminated the therapy session, and called P.M.H.’s pediatrician from her
vehicle while she was still parked at Howard’s home. The pediatrician told Eisner
that P.M.H. should be taken to the emergency room. Eisner called the parents to
give them this information; it took three calls before they answered.

¶7 P.M.H. was examined by Dr. Lynn Sheets, a child abuse pediatrician
at Children’s Hospital. P.M.H. was found to have multiple fractures to both legs,
her left arm, her right shoulder, and two ribs. Dr. Sheets reported that these types
of fractures, and their distribution, were indicative of severe physical child abuse.

¶8 Additionally, Dr. Sheets’ report stated that at least one of the leg
fractures would have been “severe and painful,” and that P.M.H. would have been
“immediately symptomatic in terms of decreased use of that extremity” and in
“significant distress.” Dr. Sheets explained that “[a]ny movement of that leg,” such
as during clothing or diaper changes, or any attempts to bear weight, would “cause
extreme pain.” As a result, Dr. Sheets opined that this fracture in particular “should
have prompted immediate medical care,” and the failure to disclose this injury
constituted “medical neglect.”

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No. 2019AP2316-CR

¶9 The police interviewed Howard, who stated that he took care of the
children, including P.M.H., while T.H. was at work. He further stated that no one
else cared for P.M.H. besides himself and T.H.

¶10 Howard initially stated he did not know how P.M.H. had been injured.
However, during a second interview, after being shown a diagram of P.M.H.’s
injuries, Howard stated that he had been performing the exercises with P.M.H. as
Eisner had shown him, which had caused the injuries to her arms and legs. With
regard to her broken ribs, Howard explained that P.M.H. would occasionally get
constipated, and that he would squeeze her stomach and ribs together with his hands
in an attempt to get her to defecate.

¶11 The matter proceeded to trial in June 2017. Dr. Sheets testified on
behalf of the State regarding her examination of P.M.H. and her findings, as well as
her conclusion that P.M.H.’s injuries were not “consistent with any sort of
unintentional or accidental mean[s.]”

¶12 Eisner also testified on behalf of the State, explaining the nature of the
exercises that she performed with P.M.H. She explained the correct way to perform
the exercises to avoid injuries, and stated that she had also explained this to Howard
and T.H. Additionally, she described discovering P.M.H.’s injured leg, and stated
that Howard’s demeanor was “calm” when she told him P.M.H. was injured, and
that he did not seem to be upset by it.

¶13 On cross-examination, Howard’s trial counsel asked Eisner whether
she had ever seen Howard act aggressively toward P.M.H. or T.H.; Eisner replied
that she had not. Counsel also noted Eisner’s comment that Howard was calm when
she informed him of P.M.H.’s injury, and asked whether this was how Eisner would
describe Howard; Eisner replied “Yes, he’s a calm person.”

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No. 2019AP2316-CR

¶14 T.H. also testified on behalf of the State. Prior to her testimony, the
State argued that trial counsel had “opened the door” regarding Howard’s “character
for aggression or violence” during counsel’s cross-examination of Eisner. Thus, the
State asserted that it could “elicit[] testimony through [T.H.] about her knowledge
of [Howard]’s violence, in particular, some specific acts of domestic violence.”
Howard’s trial counsel objected, although he did concede that his asking Eisner
about Howard “being a calm person” had opened the door for the introduction of
character evidence.

¶15 The trial court agreed that counsel asking Eisner “in general” whether
Howard was a calm person “was essentially eliciting a character trait[.]” Therefore,
the court found that under WIS. STAT. § 904.04 (1)(a), the State could offer evidence
of “a pertinent trait of [Howard]’s character to rebut the evidence elicited by [trial
counsel].”

¶16 The trial court continued its analysis, noting that pursuant to WIS.
STAT. § 904.05, the State “may elicit that testimony as well in the form of reputation
or in the form of an opinion, and on cross-examination, though, the State is also
allowed to inquire into relevant specific instances of conduct.” The court asked the
State whether it anticipated that there would be specific instances of conduct
introduced; the State replied affirmatively. The court then ruled that under its
analysis, “the State is allowed to rebut with asking, then, [T.H.] if there are specific
instances of conduct.”

¶17 The State subsequently called T.H. to testify. During the State’s direct
examination, the prosecutor asked T.H. “generally” whether she knew Howard to
be “a violent or aggressive individual[.]” T.H. replied no, that Howard “wasn’t like
that in our relationship.” The prosecutor then asked T.H. whether Howard was ever

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No. 2019AP2316-CR

violent or aggressive toward her; T.H. again replied no. After that response, the
prosecutor asked about a specific instance in February 2009 where T.H. had
contacted the police after Howard had punched her in the head with a closed fist
during an argument. Additionally, the prosecutor asked T.H. whether she knew of
other allegations of domestic violence against Howard regarding incidents with two
other women. T.H. admitted that she had heard about those incidents.

¶18 Additionally, prior to the start of trial, the State had filed a motion
seeking to introduce other-acts evidence: Howard had a previous conviction in 1999
for physical abuse of a child by recklessly causing great bodily harm. The victim
in that case was the eighteen-month-old daughter of Howard’s live-in girlfriend.
That child suffered “old and new subdural hematomas, old and new skull fractures,
retinal hemorrhaging behind both eyes, and three fractured ribs.” The examining
doctor concluded that the child had been “the victim of more than one episode of
shaken baby syndrome[.]” After conducting a Sullivan2 analysis of the evidence,
the trial court granted the State’s motion. The Milwaukee Police Department
detective involved in that investigation testified on behalf of the State regarding that
case.

¶19 Howard was the only witness called by the defense. He confirmed his
statement to police during the second interview that he was doing exercises with
P.M.H., which caused her injuries. Howard also testified that he and T.H. were the
only people who had the opportunity to cause P.M.H.’s injuries, and that he spent
more time with P.M.H. than his wife, since he cared for P.M.H. and their other
children while T.H. was at work.

2
See State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

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No. 2019AP2316-CR

¶20 The jury convicted Howard on all four counts. He was sentenced to a
total of ten years of initial confinement followed by eight years of extended
supervision. This appeal follows.

DISCUSSION

¶21 On appeal, Howard contends that the trial court erred in allowing the
State to elicit testimony from T.H. regarding the domestic violence incidents by
Howard against T.H. and two other women. Howard argues that his trial counsel
did not “open the door” for character evidence when he asked Eisner about his
“calm” demeanor, pursuant to WIS. STAT. § 904.04(1)(a). Furthermore, Howard
asserts that even if the provisions of that statute were invoked, specific instances
regarding that character evidence should not have been admitted because according
to WIS. STAT. § 904.05(1), they may be introduced only on cross-examination of
the witness who offered the opinion relating to Howard’s character—in this case,
Eisner.

¶22 “Trial courts have broad discretion to admit or exclude evidence and
to control the order and presentation of evidence at trial[.]” State v. James, 2005
WI App 188, ¶8, 285 Wis. 2d 783, 703 N.W.2d 727. As with other discretionary
decisions, we will uphold the trial court’s decision to admit or exclude evidence if
it “examined the relevant facts, applied a proper legal standard, and reached a
reasonable conclusion using a demonstrated rational process.” State v. Mayo, 2007
WI 78, ¶31, 301 Wis. 2d 642, 734 N.W.2d 115. In other words, we will not uphold
the trial court’s exercise of discretion if it “is based on an error of law.” State v.
Jackson, 2014 WI 4, ¶45, 352 Wis. 2d 249, 841 N.W.2d 791 (citation omitted).

¶23 Because trial counsel conceded that he had opened the door for
character evidence, we assume without deciding that the trial court did not err in

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No. 2019AP2316-CR

determining that trial counsel had invoked the provisions of WIS. STAT.
§ 904.04(1)(a).

¶24 As such, we then turn to the trial court’s application of WIS. STAT.
§ 904.05(1), which provides how admissible character evidence may be introduced.
We note that in its analysis regarding the admission of the evidence in question, the
court correctly referenced the constraints on introducing specific instances of
character evidence. However, it misapplied those constraints to the circumstances
of this case. The alleged character evidence regarding Howard’s demeanor was
initially elicited by the defense in its cross-examination of Eisner, which the court
ruled opened the door for the State to introduce rebuttal character evidence pursuant
to WIS. STAT. § 904.04(1)(a). The court further ruled that the State could introduce
specific instances of character evidence in its direct examination of its rebuttal
witness—T.H.—citing § 904.05(1). However, that subsection allows specific
instances to be introduced only during the cross-examination of the witness who
provided the opinion testimony of character evidence—not on the direct
examination of a different witness. See Fond Du Lac Cnty. v. Town of Rosendale,
149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989) (“One of the maxims of
statutory construction is that courts should not add words to a statute to give it a
certain meaning.”).

¶25 Rather, the only scenario which would allow for specific instances of
character evidence to be introduced by the State through T.H.’s testimony is if the
character trait the State was seeking to introduce—Howard’s tendency to be violent
with women—was an “essential element” of the charges against him. See WIS.
STAT. § 904.05(2); see also Jackson, 352 Wis. 2d 249, ¶84 (“Specific incidents of
conduct to prove character are not admissible unless ‘character or a trait of
character ... is an essential element of a charge, claim, or defense.’” (citation

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No. 2019AP2316-CR

omitted; ellipses in Jackson)). It was not. See WIS JI—CRIMINAL 2111; WIS JI—
CRIMINAL 2150. Thus, § 904.05 was not properly applied by the trial court.

¶26 The State contends that a challenge to any evidentiary error was
forfeited by Howard, and that we are obligated to apply forfeiture pursuant to WIS.
STAT. § 901.03(1)(a). However, the State did not develop that argument.
Furthermore, we note that Howard, in his initial appellant’s brief, included an
argument as to why harmless error should not apply in this case, to which the State
did not respond.

¶27 While we generally do not develop arguments for parties, see State v.
Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992), we conclude that in
this case, the trial court’s erroneous admission of the specific instances of character
evidence was a harmless error.3 The harmless error rule in Wisconsin “accords a
‘strong presumption’ that an error is subject to a harmless[]error review.” State v.
Nelson, 2014 WI 70, ¶29, 355 Wis. 2d 722, 849 N.W.2d 317 (citations omitted). Its
goal is to “‘inject reasoned judgment ... into appellate review’ to ensure retrials
occur only when the error actually affected the original trial.” State v. Monahan,
2018 WI 80, ¶34, 383 Wis. 2d 100, 913 N.W.2d 894 (citation omitted; ellipses in
Monahan). Based on this standard, we believe that conducting a harmless error
analysis is prudent here.

3
With regard to the State’s failure to present an argument for harmless error, we are not
“obligated to accept a party’s concession of law.” See State v. Carter, 2010 WI 77, ¶50, 327 Wis.
2d 1, 785 N.W.2d 516. Furthermore, this court “has the authority to raise a question of law sua
sponte[.]” Bartus v. DHSS, 176 Wis. 2d 1063, 1071, 501 N.W.2d 419 (1993). Moreover, this
court “will search the record for reasons to sustain the [trial] court’s discretionary decision,” see
State v. Thiel, 2004 WI App 225, ¶26, 277 Wis. 2d 698, 691 N.W.2d 388, and we may affirm such
a decision “on grounds different than those relied on by the trial court,” see Vanstone v. Town of
Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995).

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No. 2019AP2316-CR

¶28 “An evidentiary error is subject to a harmless error analysis and
requires reversal or a new trial only if the improper admission of evidence has
affected the substantial rights of the party seeking relief.” State v. Britt, 203 Wis.
2d 25, 41, 553 N.W.2d 528 (Ct. App. 1996). Under this test, this court “will reverse
only where there is a reasonable possibility that the error contributed to the final
result.” Id. Stated differently, an error “is harmless if it is ‘clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent
the error.’” State v. Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851 N.W.2d 434
(citations omitted). This analysis “presents a question of law for our independent
review.” Nelson, 355 Wis. 2d 722, ¶18.

¶29 To “aid” in a harmless error analysis, our supreme court set forth a
“non-exhaustive list of factors” for consideration:

the frequency of the error; the importance of the erroneously
admitted evidence; the presence or absence of evidence
corroborating or contradicting the erroneously admitted
evidence; whether the erroneously admitted evidence
duplicates untainted evidence; the nature of the defense; the
nature of the State’s case; and the overall strength of the
State’s case.

Id., ¶45 (citation omitted). However, “the purpose of harmless error review … is
concerned with the accuracy of the verdict.” Id., ¶47.

¶30 In considering these factors, we note that erroneously admitted
evidence of specific instances of violence by Howard occurred three times—when
the State elicited the evidence from T.H. regarding incidents against her and two
other women with whom Howard had been involved. There was no other evidence
corroborating or contradicting this evidence, nor did this evidence duplicate
untainted evidence. Howard’s theory of defense was that he had accidentally

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No. 2019AP2316-CR

injured P.M.H., so this evidence relating to prior violent incidents countered that
defense.

¶31 However, we conclude that these factors had a minimal effect when
compared to the overall strength of the State’s case against Howard. First, Howard
admitted that he had injured P.M.H. while doing exercises with her. Even though
he claimed it was an accident, Eisner testified that that she had shown Howard the
proper way to do the exercises with P.M.H. so that she would not be injured. Even
more compelling was Dr. Sheets’ testimony regarding her examination of P.M.H.
and her conclusions regarding the intentional nature of P.M.H.’s injuries.
Furthermore, there was evidence that Howard had previously been convicted for
child abuse, which was properly admitted and is not being challenged on appeal.

¶32 In making the determination as to whether an error is harmless, “we
weigh the effect of the inadmissible evidence against the totality of the credible
evidence supporting the verdict.” Britt, 203 Wis. 2d at 41. We conclude that the
totality of the credible evidence in this case is sufficient such that the jury would
have convicted Howard without the erroneously admitted evidence of specific
instances of character evidence. See Nelson, 355 Wis. 2d 722, ¶51. Therefore, the
trial court’s error in admitting that evidence was harmless. See id. Accordingly, we
affirm Howard’s judgment of conviction.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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