State v. Christopher L. Dominick

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 1, 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. 2019AP1504-CR Cir. Ct. No. 2017CF97

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTOPHER L. DOMINICK,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waupaca County:
RAYMOND S. HUBER, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Kloppenburg, 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. 2019AP1504-CR

¶1 PER CURIAM. Christopher Dominick appeals a judgment of
conviction. The issue is whether the circuit court properly admitted evidence of
other acts. We affirm.

¶2 Dominick was charged with several crimes, including felon in
possession of a firearm. A sheriff’s deputy testified that the firearm was found
behind the driver’s seat in a pickup truck that Dominick was driving. The
passenger told another officer at the scene that it was hers. The circuit court
allowed the State to introduce evidence from Dominick’s Facebook account, in the
form of content written by him about having and using firearms, including what
arguably appeared to be the firearm found in the pickup that Dominick drove.
Dominick was convicted, and now appeals.

¶3 Dominick argues that the circuit court erred by admitting the
Facebook content as evidence of other acts. He contends that the court failed to
explain sufficiently its decision to admit this evidence using the test provided in
State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). His argument focuses
on the “acceptable purpose” step of the analysis. See id. at 772.

¶4 We agree that the circuit court’s discussion of the purpose for the
evidence was not detailed. We assume, without deciding, that the discussion was
inadequate. Dominick acknowledges that, if this is so, we could affirm the court’s
decision based on an independent review of the record here, so long as it includes
facts that would support the decision, had the court fully exercised its discretion.
However, he argues, the record does not contain sufficient facts to conduct such an
independent review, and therefore we must conclude the evidence was improperly
admitted. More specifically, he argues that the State did not suggest a proper

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No. 2019AP1504-CR

purpose for the evidence, and the court never identified a proper purpose for
admitting it.

¶5 We reject his argument about insufficient facts because the purpose
of the evidence was obvious. Under the definition of “possess” that is used in the
elements of felon in possession of a firearm, the State must show that the
defendant knowingly had actual physical control of the firearm, or that the firearm
was in an area over which the defendant had control and the defendant intended to
exercise control over the firearm. WIS. STAT. § 941.29(1m)(a) (2017-18).1

¶6 As described above, the passenger told police that the firearm was
hers, and it was found in a location where it plausibly could have rested without
Dominick having the required level of control over it—perhaps lacking knowledge
that it was there, or perhaps lacking intent to exercise control over it. Therefore,
an obvious potential weakness in the State’s case was proving Dominick’s
knowledge or intent regarding this firearm. Knowledge and intent are proper
purposes for admission of other-acts evidence. See WIS. STAT. § 904.04(2)(a).
The Facebook evidence at issue here was probative of both his knowledge of the
firearm’s presence in the truck and his intent to exercise control over it.

¶7 Dominick argues that there are not sufficient facts to conduct this
independent review, but it is not clear what additional facts he believes are
necessary. If his argument is that we cannot conduct an independent review unless
the State or circuit court identified a proper purpose for the evidence on the record

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

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No. 2019AP1504-CR

at the time of the court’s decision, he cites no authority for that proposition. This
resolves the only issues that he raises on appeal.2

¶8 For these reasons, we conclude that the other-acts evidence was
properly admitted.

By the Court.—Judgment affirmed.

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

2
For the first time in his reply brief on appeal, Dominick addresses aspects of the
Facebook evidence in some detail, but we do not address these references because they come too
late. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct.
App. 1998) (this court generally declines to consider arguments raised for the first time in a reply
brief for reasons of fundamental fairness). We see no good reason in this instance to depart from
our general rule against considering late, new arguments by appellants.

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