State v. Antwan D. Hopson

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.
January 19, 2022
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. 2020AP1758-CR Cir. Ct. No. 2017CF76

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTWAN D. HOPSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Door County:
DAVID L. WEBER, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).
No. 2020AP1758-CR

¶1 PER CURIAM. Antwan Hopson appeals from a judgment of
conviction, following a bench trial, for three counts of first-degree sexual assault
of a child under the age of thirteen. Hopson challenges: (1) the sufficiency of the
evidence; (2) the introduction of other acts evidence involving similar sexual
assaults Hopson committed against three other young girls; and (3) the denial of
Hopson’s motion for a mistrial. We affirm.

¶2 Hopson’s sufficiency of the evidence challenge is meritless. The
State had to prove beyond a reasonable doubt with respect to all three counts that
Hopson had sexual contact with the victim and that she was under the age of
thirteen at the time of the alleged sexual contact. There is no dispute regarding the
victim’s age.1 As relevant here, “sexual contact” is defined as the intentional
touching by Hopson of the victim’s intimate part—her vagina. See WIS JI—
CRIMINAL 2101A (2007). Sexual contact also requires, as pertinent here, that
Hopson acted with the intent to become sexually aroused or gratified. Id.

¶3 The State presented testimony from the victim—consistent with her
forensic interview under oath, which was also introduced at trial—that Hopson
sexually assaulted her. The victim testified that he did so on three
occasions: once each on consecutive nights in the summer of 2016 when the
eleven-year-old victim awoke to Hopson fondling her vagina at the home of his
then girlfriend; and once more when Hopson woke the victim and fondled her
vagina on a Sunday night in early December 2016 at the home of a different
former girlfriend, when the victim had just turned twelve years old.

1
Evidence of Hopson’s knowledge of the victim’s age was not required, and any
mistaken belief he might have had regarding her age was not a defense. See WIS JI—CRIMINAL
2102E (2015).

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No. 2020AP1758-CR

¶4 The State’s case was corroborated by the strikingly similar accounts
of vaginal fondling described by three other acts witnesses—all of whom were
also young girls assaulted while Hopson was staying as a house guest with his
girlfriends at the relevant times. Hopson claimed, however, that he was not guilty
because everyone was lying and he was the victim. Hopson testified that all of the
victims had made up the allegations because they were angry that he was cheating
on their mothers, and their mothers coached them to repeatedly tell the same
stories. Hopson also claimed that he was not at the house when the victim in the
present case claimed he assaulted her in December 2016, because he had left in the
middle of the night to traffic drugs to an unidentified person at another girlfriend’s
house. Hopson even attempted to suggest that his son may have committed the
December assault.

¶5 The circuit court properly observed that the victim’s credibility was
“really the whole case.” The court summarized the victim’s testimony at length
and found it credible. The court relied upon the victim’s powerful testimony to
support its credibility determinations and found “the essential events are consistent
in a number of ways.” The court also noted that the victim’s credibility was
bolstered by the accounts of vaginal touching by the three other acts witnesses.

¶6 Conversely, the circuit court found Hopson’s testimony not credible
in any respect. It stated Hopson’s testimony was “[r]eally difficult to believe—I
think the bottom line is it’s difficult to believe much of what he said. And
certainly his alternative hypotheses just don’t seem believable to this Court.” The
court further stated:

The defense argues that all of these people were mad at him
for cheating and they concocted the stories to get back at
him. I just don’t find this to be credible. It would require a
huge coordination of effort to get these young girls to make

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No. 2020AP1758-CR

these allegations, to carry them through in forensic
interviews, and to testify under oath about them years later.
This is not plausible. Even if they were to get their
children involved—I’m talking about the mothers—what
are the chances that they would make the allegations of
vaginal touching all independently of each other? It’s just
not likely. And I don’t find that to be credible.

¶7 We will not substitute our judgment for the trier of fact unless the
evidence, viewed most favorably to the State and the conviction, is so lacking in
probative value and force that no trier of fact acting reasonably could have found
guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 507, 451
N.W.2d 752 (1990). We will uphold the verdict if any reasonable inferences
support it. State v. Steffens, 2013 WI 53, ¶23, 347 Wis. 2d 683, 832 N.W.2d 101.
The trier of fact is also the sole arbiter of credibility and the weight of the
evidence. Poellinger, 153 Wis. 2d at 506.

¶8 In the present case, the evidence was more than ample for the circuit
court to find beyond a reasonable doubt that Hopson sexually assaulted his
then-girlfriend’s daughter twice when she was eleven and once after she turned
twelve years old, all with the intent to become sexually aroused or gratified. The
court thoroughly explained how it arrived at the guilty verdict and, based upon the
evidence and inferences adduced at trial, it cannot be said that no rational trier of
fact acting reasonably could be convinced of Hopson’s guilt.

¶9 The circuit court also properly exercised its discretion when it
allowed the State to introduce other acts evidence from Hopson’s three other
young female victims.2 The court allowed the State to introduce this evidence
2
Hopson uses the phrase “abuse of discretion.” Since 1992, the terminology used in
reviewing a circuit court’s discretion is “erroneous exercise of discretion.” See, e.g., State v.
Plymesser, 172 Wis. 2d 583, 585-86 n.1, 493 N.W.2d 367 (1992).

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No. 2020AP1758-CR

after correctly engaging in the three-part analysis adopted by our supreme court in
State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). In that regard, the
court held that the other acts were relevant for the permissible purposes of proving
Hopson’s motive and intent to become sexually aroused when he assaulted the
victim in the present case, and relevant to bolster her credibility. See State v.
Gutierrez, 2020 WI 52, ¶¶29-31, 391 Wis. 2d 799, 943 N.W.2d 870. It also held
that the probative value of the other acts evidence was not substantially
outweighed by the danger of unfair prejudice to Hopson. See id., ¶¶29-30.

¶10 The first other acts witness testified that Hopson entered her
bedroom around her fifth birthday on several occasions and fondled her vagina
while Hopson was a guest of her mother, who was dating Hopson at the time. The
second other acts witness testified that when she was fifteen years old Hopson
entered her room and fondled her vagina at a group home run by Hopson’s then
girlfriend, where the victim was staying as a guest. The third other acts witness
testified that Hopson fondled her vagina at the age of eight on several occasions on
a couch and in her bedroom while Hopson was dating her mother.

¶11 The probative value of the other acts evidence is measured by the
factual similarities it shares with the charged conduct. Id., ¶34. Similarities make
the other acts highly probative of the charged offenses, thereby reducing the
danger of unfair prejudice. See State v. Davidson, 2000 WI 91, ¶75, 236 Wis. 2d
537, 613 N.W.2d 606. Moreover, Wisconsin allows for a greater latitude of proof
when considering the admissibility of other acts evidence in child sexual assault
cases.3 State v. Hurley, 2015 WI 35, ¶59, 361 Wis. 2d 529, 861 N.W.2d 174. The
3
The common law greater latitude rule is codified at WIS. STAT. § 904.04(2)(b)1.
(2015-16).

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No. 2020AP1758-CR

greater latitude rule liberalizes each of the Sullivan prongs in favor of admitting
similar acts of child sexual assault. Gutierrez, 391 Wis. 2d 799, ¶29.

¶12 Here, the factual similarities are obvious. The other act victims were
all young girls. The sexual contact was the same: Hopson fondled the young
girls’ vaginas. In every situation, Hopson was also a house guest of women with
whom he had a relationship. The relative dissimilarity in the victims’ ages was
not great. One was fifteen years old, whereas the victim in the present case turned
twelve shortly before Hopson assaulted her. The two remaining other acts victims
were eight and five years old, respectively. And, significantly, Hopson’s sexual
assault on one of the other acts victims occurred less than two weeks before his
sexual assault of the victim in the present case.4

¶13 The circuit court relied upon the similarities of the other acts to find
that they had indeed occurred, they were probative of Hopson’s motive and intent
to become sexually aroused when he assaulted the victim in this case, and they
bolstered the victim’s credibility. The court was able to appropriately separate the
probative value from the prejudicial effect when weighing the other acts evidence
as trier of fact. The court properly exercised its discretion, especially in light of
the greater latitude rule, when it allowed the State to introduce the other acts
testimony of Hopson’s three other young female victims.

4
Hopson argues that the allegations of the other acts victim who was five years old was
remote in time, occurring “eight years prior to the charged offense.” However, courts have held
that the passage of far more time was insignificant. See, e.g., State v. Hurley, 2015 WI 35, ¶85,
361 Wis. 2d 529, 861 N.W.2d 174 (twenty-five years); State v. Davidson, 2000 WI 91, ¶¶6, 10,
236 Wis. 2d 537, 613 N.W.2d 606 (nine years).

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No. 2020AP1758-CR

¶14 In this regard, we also emphasize that the circuit court addressed the
State’s other acts motion pretrial, at a point when the case was still on track for a
jury trial. When Hopson decided to waive a jury trial, the probative value of the
other acts evidence remained high, whereas the potential to unfairly prejudice a
jury was eliminated. When this case became a bench trial, it also became
unnecessary to give a cautionary instruction to the jury limiting the jury’s use of
the other acts evidence to its proper purpose. The potential for unfair prejudice
was thereby greatly diminished, as the concerns about whether to admit otherwise
probative evidence because it might unfairly prejudice a jury simply are not
present when the court is the trier of fact. The court in that situation is presumed
to be able to discern and weigh improper inferences and disregard extraneous
matters. See State v. Cathey, 32 Wis. 2d 79, 90, 145 N.W.2d 100 (1966).

¶15 Finally, the circuit court properly exercised its discretion when it
denied Hopson’s motion for a mistrial. After one of the other acts witnesses
finished testifying, her older brother was scheduled to testify next for the State,
presumably to corroborate her testimony. During the lunch break, however, she
and her mother visited her brother in jail and discussed her testimony in violation
of the court’s sequestration order.

¶16 The State conceded there was a violation of the sequestration order
but argued there was no prejudice. The circuit court listened to an audio recording
of the jail visit and also examined the mother and the other acts witness under
oath. The court then ordered that the brother would not be allowed to testify for
the State. However, the court declined to exclude the other acts witness’s
testimony because it found no evidence that the State was a participant in the
violation of the sequestration order or that the other acts witness’s testimony had
been tainted because she discussed her testimony with anyone before she testified.

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No. 2020AP1758-CR

¶17 It is within the circuit court’s discretion to decide whether to allow a
witness who violated the court’s sequestration order to testify. State v. Bembenek,
111 Wis. 2d 617, 637, 331 N.W.2d 616 (Ct. App. 1983). The law favors less
drastic alternatives short of a mistrial if they are available and practical. State v.
Bunch, 191 Wis. 2d 501, 512, 529 N.W.2d 923 (Ct. App. 1995).

¶18 In shaping its ruling in the present case, the circuit court
appropriately chose the available, and practical, less drastic remedy of excluding
the only witness whose testimony would have been tainted by the violation of the
sequestration order. The court sensibly chose not to exclude the other acts
witness’s testimony because she had finished testifying before the sequestration
violation occurred and there was no evidence that her testimony was tainted in any
way. As the court logically asked Hopson’s trial counsel: what good it would do
to declare a mistrial only to have another court or jury “have the exact same
situation” with the same witnesses? The court properly exercised its discretion
when it allowed this case to proceed to verdict after not allowing that witness’s
brother to testify.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

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