State v. Marty S. Madeiros

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 27, 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. 2021AP405-CR Cir. Ct. No. 2018CF1

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARTY S. MADEIROS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Dodge County: MARTIN J. DE VRIES, Judge. Reversed and cause remanded
for further proceedings.

Before Fitzpatrick, Graham, and Nashold, JJ.

¶1 GRAHAM, J. Marty Madeiros appeals a judgment of conviction
for operating a motor vehicle while intoxicated, fifth offense, and an order denying
his postconviction motion. Madeiros argues that he is entitled to a new trial
No. 2021AP405-CR

because, among other things, the circuit court erroneously admitted evidence at
trial related to Madeiros’s prior conviction for hit and run. We conclude that the
evidence of the prior hit and run was other-acts evidence governed by WIS. STAT.
§ 904.04(2)(a) (2019-20).1 We further conclude that the evidence was relevant
only to prove propensity, which is a prohibited purpose under § 904.04(2)(a), and
that the evidence was not probative of any permissible non-propensity purpose.
The State does not expressly develop any argument that any error in admitting this
propensity evidence was harmless and, based on our review of the entire record,
we are not persuaded the State could meet its burden to prove harmless error.
Accordingly, we reverse the judgment and order, and we remand for a new trial.

BACKGROUND

¶2 This appeal arises from a police investigation and arrest that
occurred in the early morning hours of December 30, 2017. We briefly
summarize the pertinent facts here, and we provide additional details as needed in
our discussion below.

¶3 On December 30, shortly after 1:00 a.m., Madeiros’s vehicle was
found abandoned on a rural highway with a flat tire and its headlights on.
Approximately one hour later, officers located Madeiros, who was intoxicated and
walking along a public trail. The temperature was seven degrees below zero that
night, and Madeiros had walked more than three miles after abandoning his
vehicle by the side of the highway.

1
All references to the Wisconsin Statutes are to the 2019-20 version.

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¶4 Officers drove Madeiros to a police garage bay, where they
questioned him about the events of that night. During the conversation that
followed, which lasted just over 20 minutes and was recorded on an officer’s body
camera, Madeiros attempted to persuade the officers that he had not committed
any drunk-driving-related offense that night. Among other things, he told the
officers that he left his vehicle because it “just stopped operating,” and he insisted
that he had not started drinking until after he left his vehicle.

¶5 At one point during the conversation, one of the officers made a
brief reference to Madeiros’s four prior convictions for OWI. At other points, the
officers also discussed a separate case, Dodge County Case No. 2017CT280, in
which Madeiros had been convicted of hit and run based on an incident that
occurred six months earlier in June 2017. Specifically, the officers mentioned
that, as a result of the hit and run conviction, Madeiros had been placed on
probation with “absolute sobriety” as a condition, and his driver’s license had been
revoked. When questioning Madeiros about his conduct on the night in question
in December 2017, one of the officers told Madeiros that he was the officer who
had investigated the June 2017 hit and run. The officer asserted that Madeiros had
done “the same thing” that night in June 2017—Madeiros “hit a car,” parked his
vehicle, and “took off running on foot.” In response to this assertion by the
officer, Madeiros suggested that this incident was different because he did not “hit
anything tonight.”

¶6 The State charged Madeiros with one count of operating a motor
vehicle while intoxicated (OWI), one count of operating a motor vehicle with a
prohibited alcohol concentration (PAC), and one count of obstructing an officer in
violation of WIS. STAT. § 946.41(1). The obstruction charge was based on the

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State’s allegation that Madeiros provided false information to the officers during
their video-recorded conversation in the garage bay.

¶7 Madeiros filed a motion to exclude other-acts evidence at trial.2
During the hearing that followed, it was clarified that the other-acts evidence in
question related to Madeiros’s prior convictions for OWI and the June 2017 hit
and run. Madeiros sought to exclude from trial any evidence of the nature of his
prior convictions, including the portions of the body camera footage in which the
officers and Madeiros discussed those offenses.

¶8 The prosecutor agreed that any mention of Madeiros’s prior
convictions for OWI was unfairly prejudicial, and the circuit court determined that
the portion of the video that mentioned those convictions was inadmissible. The
court and parties agreed that, when the prosecutor presented the video footage at
trial, he would mute the portion that mentions Madeiros’s four prior OWIs.

¶9 However, the prosecutor opposed the motion to the extent it sought
to exclude evidence about the June 2017 hit and run, and he represented that he
intended to introduce evidence about the nature of that case and its legal
consequences for Madeiros. Specifically, the prosecutor sought to admit: the fact
that Madeiros had been charged with and convicted of hit and run; that he was
placed on probation; that his driver’s license had been revoked; and that he was
prohibited from consuming alcohol as a result of that conviction. The prosecutor
argued that these facts should be admitted because they would “really … put[]

2
As discussed at greater length below, “other-acts evidence” refers to evidence of “other
crimes, wrongs, or acts” that are separated in time, place, or manner from the events alleged in
the criminal complaint, and the admissibility of such evidence is governed by WIS. STAT.
§ 904.04(2)(a) and State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

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things into perspective” for the jury and because they were relevant to Madeiros’s
intent to mislead the officers about what had occurred on the night in question.

¶10 After viewing the video, the circuit court agreed with the prosecutor,
concluding that the discussion of the June 2017 hit and run was “part of the whole
context of what Mr. Madeiros is talking about here[,]” and further, that “it does
relate to his intent to lie to the police.” In making this decision, the circuit court
did not cite State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the seminal
Wisconsin case addressing other-acts evidence. Nor did the court expressly
determine whether the probative value, if any, of the June 2017 hit and run or its
legal consequences to Madeiros outweighed the prejudicial effect of that evidence.

¶11 Following the circuit court’s determination that evidence of the
June 2017 hit and run would be admissible at trial, the attorneys agreed to craft a
stipulation providing background facts about that conviction, so as to avoid
testimony about it during the trial. At that time, the circuit court acknowledged,
and the prosecutor agreed, that Madeiros had preserved “all his appeal rights”
regarding the admission of the other-acts evidence, and that Madeiros’s counsel
would have a “continuing objection” so that he would not have to repeatedly
object to evidence about the June 2017 hit and run during trial.

¶12 Consistent with this discussion, the parties agreed on a stipulation of
facts about the June 2017 hit and run, and we summarize its pertinent provisions
as follows. One night in June 2017, Madeiros was driving his car and struck
another vehicle. Madeiros did not stop at the scene, and he instead abandoned his
damaged vehicle on the side of the road one mile from the crash. Madeiros left his
damaged vehicle on foot and did not report the crash to the police that night.
Madeiros called the police the following day, indicating that he had left his vehicle

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and walked three hours to his residence. Based on this incident, Madeiros was
convicted of hit and run and placed on probation. Madeiros was on probation for
the June 2017 hit and run on December 30, 2017, the night he was arrested for the
current charges. His conditions of probation included a prohibition against
violating any law as well as a prohibition against consuming or possessing
alcohol. Additionally, his operating privilege was revoked, with a limited
exception for permitted uses of his occupational operator’s license during certain
daytime hours. Restrictions on the occupational license included that he “maintain
absolute sobriety and not drive with an alcohol concentration greater than .02.”

¶13 At the beginning of the trial, the circuit court read these stipulated
facts and others to the jury before the State presented its witnesses. Various
officers and witnesses testified for the State, and Madeiros testified in his own
defense.

¶14 The State’s case was based on circumstantial evidence that Madeiros
had consumed alcohol to the point of intoxication before driving his vehicle and
abandoning it on the side of the road on December 30, 2017. The State introduced
the testimony of an emergency dispatcher, who received three calls about
Madeiros’s abandoned vehicle between 1:02 and 1:18 a.m. The third call came
from Emily Laufer, a retired police officer who testified at trial. Laufer testified
that she came across Madeiros’s vehicle, which was pulled to the side of the road
with its back end partially obstructing the lane of traffic. She testified that she
followed a “fresh” set of footprints to a public trail known as Wild Goose Trail,
and that, based on the patterns of the footprints in the snow, she believed that the
person leaving them was having a medical condition or was intoxicated. One of
the arresting officers testified that he looked in the window of the locked vehicle
and noticed two or three empty brown bottles in the backseat. The prosecutor

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introduced pictures from an officer’s dashboard camera, which showed Madeiros’s
footprints zigzagging up the trail, and testimony that the officers caught up with
Madeiros at 2:07 a.m. on Shady Lane, several miles from where he had abandoned
his vehicle. It is undisputed that, by that time, Madeiros was intoxicated, and a
blood sample taken several hours later showed that he had a blood alcohol
concentration of .164.

¶15 Madeiros’s defense rested in large part on the State’s inability to
provide direct proof that he consumed alcohol before driving that night, and on the
jury crediting Madeiros’s testimony that he had not consumed alcohol until after
he left his vehicle on the side of the road. Madeiros testified as follows. He had
been ice fishing on the evening in question. He started to have car trouble as he
was driving to another fishing spot and, after the engine stopped working, he
pulled his vehicle to the shoulder. He did not have his cell phone with him that
evening and was unable to flag down any passing vehicles. He left his vehicle to
walk down Wild Goose Trail toward a gas station in the nearest town to call for
help. Before leaving the vehicle, he put on his ice fishing gear, poured four beers
into an empty juice bottle, and took that bottle and a couple bottles of schnapps
with him on the trail. According to Madeiros, he did not have any alcohol prior to
abandoning his vehicle, but he consumed beer and schnapps to the point of
intoxication as he walked along the trail. He testified that the reason the police did
not find any bottles of alcohol on him at the time of his arrest was because he
disposed of some of the bottles in the woods, and he threw the remaining bottle
into the field when he saw police headlights approaching him from behind.

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¶16 The jury found Madeiros guilty of the OWI and PAC charges3 and
not guilty of obstruction. Madeiros then filed a postconviction motion, arguing
that he was entitled to a new trial based on certain errors that occurred during the
pretrial proceedings and trial. Pertinent to our discussion below, Madeiros argued
that the court erroneously admitted evidence about his June 2017 hit and run
conviction at trial.4

¶17 Following a remand from this court, the circuit court held a hearing
and denied Madeiros’s motion.5 Madeiros appeals.

3
The PAC charge was later dismissed by operation of law.
4
Madeiros also argued that the court should have declared a mistrial after the prosecutor
inadvertently failed to mute the portion of video footage in which the officer mentions Madeiros’s
four prior convictions for OWI, and that counsel was ineffective for failing to challenge, pursuant
to WIS. STAT. § 907.01, the retired police officer’s testimony that she thought Madeiros was
intoxicated based on her observations of the placement of his vehicle on the roadway and his
footprints walking away from his vehicle. We do not discuss these arguments further because our
conclusion about the admission of evidence of the June 2017 hit and run is dispositive. See
Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508
(2013) (“An appellate court need not address every issue raised by the parties when one issue is
dispositive.”).
5
Although not directly pertinent to any issue we decide in this appeal, we note that the
circuit court originally denied the postconviction motion without holding an evidentiary hearing
or explaining its reasons for concluding that a hearing was not required. Following the original
submission of this appeal to this court, we remanded for the circuit court to make findings to
address apparent gaps in the trial record. In response to our order, the circuit court held an
evidentiary hearing, supplemented the record with a transcript of proceedings that had not been
included in the record as originally presented on appeal, and made certain findings of fact. We
ordered replacement briefing in light of the information learned during the remand, and the
framing of some of the parties’ arguments has changed to account for the new evidence and
findings. We integrate the new evidence and arguments into this opinion without specifically
commenting on how the evidence and arguments have evolved in light of the proceedings that
followed our remand order.

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DISCUSSION

¶18 As discussed above, Madeiros argues that the circuit court
erroneously exercised its discretion when it admitted evidence of his June 2017 hit
and run. He contends that the evidence is other-acts evidence governed by WIS.
STAT. § 904.04(2)(a), and that the circuit court failed to conduct the proper
analysis set forth in Sullivan, 216 Wis. 2d 768, to determine whether it was
admissible for any permissible purpose under § 904.04(2)(a). Madeiros contends
that, under Sullivan, the circuit court’s discretionary decision to admit the
evidence cannot be sustained on appeal.

¶19 Our analysis proceeds in four parts. We first provide pertinent legal
background about WIS. STAT. § 904.04(2)(a), which governs the admissibility of
other-acts evidence. Second, we discuss the evidence of Madeiros’s June 2017 hit
and run that was admitted at trial, and the circuit court’s pretrial ruling to admit
that evidence. Third, we consider and reject the State’s argument that we should
sustain the circuit court’s exercise of discretion, either because the evidence of the
June 2017 hit and run is not other-acts evidence governed by § 904.04(2)(a), or
because it was admissible under that statute for a non-propensity purpose. Finally,
we consider whether Madeiros is entitled to a new trial as a result of the erroneous
admission of the evidence, and we conclude that a new trial is required because
the State has not shown that the error was harmless.

I. Other-Acts Evidence

¶20 WISCONSIN STAT. § 904.04(2)(a) governs the admissibility of
“evidence of [a defendant’s] other crimes, wrongs, or acts.” That category of
evidence, commonly referred to as “other-acts evidence,” consists of evidence
about “occurrences that are separated in time, place, or manner from the event

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No. 2021AP405-CR

alleged in” a criminal complaint. DANIEL D. BLINKA, WISCONSIN PRACTICE
SERIES; WISCONSIN EVIDENCE § 404.602 at 204 (4th ed. 2017). With one
exception that is inapplicable here, § 904.04(2)(a) provides that “evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show that the person acted in conformity therewith.”

¶21 In the context of a criminal trial, the purpose of the other-acts rule of
evidence is to prevent a jury from convicting a defendant based on a so-called
propensity inference. See Sullivan, 216 Wis. 2d at 783. A propensity inference is
an inference that a person acted “‘in conformity with a particular character trait’”
on a specific occasion. State v. Tabor, 191 Wis. 2d 482, 490, 529 N.W.2d 915
(Ct. App. 1995) (quoted source omitted). Accordingly, the prosecution cannot
introduce evidence of a “deviant character trait of the defendant” and ask the jury
to infer that the defendant acted consistently with that character trait on the
charged occasion. Id. at 491-92; see also State v. Marinez, 2011 WI 12, ¶25, 331
Wis. 2d 568, 797 N.W.2d 399 (providing that WIS. STAT. § 904.04 prohibits
evidence of character “‘as circumstantial evidence of conduct’” (quoted source
omitted)). Nor can the prosecution use evidence of a prior act by the defendant to
show that the defendant has a deviant character trait that makes it more likely that
the defendant acted in a similar way on the occasion in question. State v.
Rutchick, 116 Wis. 2d 61, 67-68, 341 N.W.2d 639 (1984) (“the jury is not
permitted to convict someone based on the inference that if he broke the law once
he is likely to do so again”).

¶22 One reason for the prohibition on propensity inferences is the
“overstrong tendency [of a jury] to believe the defendant guilty of the charge [in
the criminal complaint] merely because [the defendant] is a person likely to do
such acts.” Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557 (1967).

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Another reason is the concern that a jury will convict the defendant not because
the jury believes that the defendant is guilty of the charged offense, but rather,
because it believes that the defendant has escaped punishment for other offenses.
Id. “[A]n invitation to focus on an accused’s character” rather than on the
accused’s conduct on the charged occasion “magnifies the risk that jurors will
punish the accused for being a bad person regardless of his or her guilt of the
crime charged.” Sullivan, 216 Wis. 2d at 783 (emphasis added).

¶23 Despite the prohibition on propensity inferences, other-acts evidence
can be admissible under some circumstances. The statute governing other-acts
evidence does not require its exclusion when the evidence is offered for a purpose
other than propensity, such as to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” WIS. STAT.
§ 904.04(2)(a); see also Marinez, 331 Wis. 2d 568, ¶¶18, 33 (explaining that
§ 904.04(2)(a)’s list of permissible purposes is illustrative but not exhaustive).
However, to be admissible, the other-acts evidence must actually be relevant to
and probative of a non-propensity purpose. State v. Hurley, 2015 WI 35, ¶77, 361
Wis. 2d 529, 861 N.W.2d 174 (“‘The key is relevance: What is [the evidence]
being offered to prove, and does it have any tendency to make that proposition
more or less likely?’” (quoted source omitted)).

¶24 When deciding whether to admit evidence of a defendant’s other
acts under WIS. STAT. § 904.04(2)(a), Wisconsin courts are to apply the three-step
analytical framework set forth in Sullivan, 216 Wis. 2d at 771-73. Under
Sullivan, a court must first consider whether the evidence is offered for a proper
purpose under § 904.04(2)(a)—that is, whether the proponent has identified some
purpose other than propensity for admitting the evidence. Id. Second, the court
must then consider whether the evidence is actually relevant to and probative of

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No. 2021AP405-CR

that non-propensity purpose. Id. Third, the court must consider whether the
probative value of the evidence to the non-propensity purpose is “substantially
outweighed by the danger of unfair prejudice, confusion of the issues or
misleading the jury.” Id.

¶25 Under the Sullivan framework, the proponent of the other-acts
evidence “bears the burden of establishing that the first two prongs are met by a
preponderance of the evidence.” Marinez, 331 Wis. 2d 568, ¶19. Once the first
two prongs of the test are satisfied, the burden shifts to the opposing party “to
show that the probative value of the [other-acts] evidence is substantially
outweighed by the risk or danger of unfair prejudice.” Id.

II. The Circuit Court’s Admissibility Determination

¶26 We review a circuit court’s decision to admit other-acts evidence for
an erroneous exercise of discretion. See Sullivan, 216 Wis. 2d at 780.
Accordingly, on appeal, we assess “whether the circuit court ‘reviewed the
relevant facts; applied a proper standard of law; and using a rational process,
reached a reasonable conclusion.’” State v. Payano, 2009 WI 86, ¶41, 320 Wis.
2d 348, 768 N.W.2d 832 (quoted source omitted). “Although the proper exercise
of discretion contemplates that the circuit court explain its reasoning, when the
court does not do so, we may search the record to determine if it supports the
court’s discretionary decision.” Randall v. Randall, 2000 WI App 98, ¶7, 235
Wis. 2d 1, 612 N.W.2d 737.

¶27 At this point, we pause to observe that the evidence of the June 2017
hit and run had an obvious tendency to encourage the jury to make inferences
about Madeiros’s character and propensity, and the admission of the evidence
created a risk that the jury would convict him based upon those inferences. From

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this evidence, the jury learned that: Madeiros had previously fled the scene of a
traffic accident, presumably to avoid legal consequences; he had a criminal record
and had been placed on probation as a result of this prior incident; and he violated
the terms of his probation by drinking alcohol on the night of December 30,
2017—whether he drank it before he left his vehicle (as the State argued) or after
he left his vehicle (as Madeiros insisted). Based on those facts, the jury was
invited to draw inferences about Madeiros’s character and propensity—that he has
a problem with drinking, an overall disregard for the law, and a propensity to flee
to avoid the consequences of his crimes. From all this, the jury could readily infer
that, because Madeiros broke the law once in June 2017, it is likely that he did so
again in December 2017. These are precisely the types of inferences that are
prohibited by WIS. STAT. § 904.04(2) because they might persuade the jury to
convict Madeiros of an OWI-related offense based on evidence about his general
criminal disposition and propensity to commit OWI-related offenses, whether or
not the jury was persuaded beyond a reasonable doubt by the State’s evidence that
Madeiros committed an OWI-related offense on the evening in question.6

¶28 In ruling that evidence regarding the June 2017 hit and run was
admissible, the circuit court did not appear to consider the obvious risk that the
jury would convict Madeiros based on a propensity inference. The circuit court
did not cite Sullivan, nor did it expressly consider Sullivan’s three-step
framework. The court stated that the evidence was relevant to “context” and
“intent,” but it did not provide any on-the-record explanation of how the evidence

6
Indeed, as discussed in the section below pertaining to harmless error, the way the
prosecutor actually used the evidence of the June 2017 hit and run during the trial was to ask the
jury to draw an inference about Madeiros’s character and propensity.

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was probative of those non-propensity purposes. Nor did it weigh the probative
value of the evidence against its prejudicial effect.

III. The State’s Arguments For Admissibility

¶29 We now consider the State’s arguments that the circuit court
properly admitted evidence of Madeiros’s June 2017 hit and run. In defending the
circuit court’s exercise of discretion, the State argues that the evidence is not
other-acts evidence at all and, therefore, its admissibility is not governed by WIS.
STAT. § 904.04(2)(a) and Sullivan. In the alternative, the State argues that the
circuit court properly found that the evidence was admissible to prove context,
modus operandi, and intent. We address the State’s alternative arguments in turn.

A.

¶30 We begin with the State’s argument that the June 2017 hit and run
should not be considered other-acts evidence at all. To support this argument, the
State relies on the fact that the officers discussed the hit and run with Madeiros
during a conversation in which Madeiros allegedly obstructed the officers’
investigation by lying about his reasons for leaving his vehicle. The State explains
that it had to prove (among other things) that Madeiros knowingly provided the
officers with false information, and that he intended for the allegedly false
information to make it more difficult for the officers to investigate his actions on
December 30, 2017. See WIS. STAT. § 946.41(2)(a) (defining obstruction as
“knowingly giving false information to [an] officer … with intent to mislead the
officer in the performance of his or her duty”); see also WIS JI—CRIMINAL 1766.
According to the State, “information about [Madeiros’s June 2017] hit and run …
was a substantive part of his lie to the police, … part of the crime of obstruction
and not an ‘other act’ at all.”

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¶31 The State is wrong, both on the law and on the facts.

¶32 As for the law, the State does not point to a single case providing
that a suspect’s mention of a prior crime in the course of providing false
information to officers removes that prior crime from the realm of other acts
governed by WIS. STAT. § 904.04(2)(a) and Sullivan. Generally speaking, we
need not consider arguments that are unsupported by legal authority. See State v.
Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶33 Further, even if we were to accept the State’s premise that, under the
right circumstances, a suspect’s discussion of a prior crime could be a substantive
part of an obstruction charge, we cannot reach that conclusion here. We first
observe that the State made no showing—nor does it even suggest—that Madeiros
made an affirmative misrepresentation about the prior crime that was calculated to
obstruct the investigation into what occurred on the charged occasion. See WIS.
STAT. § 946.41(2)(a). The officers discussed the June 2017 hit and run when they
confronted Madeiros about his actions on December 30, 2017, and Madeiros
truthfully acknowledged that he had been convicted for the hit and run, that he was
on probation, that his license was revoked, and that he was subject to a probation
condition of absolute sobriety as a result of his hit and run conviction.

¶34 In its arguments to the circuit court and its briefing on appeal, the
State focuses on a single sentence during the video-recorded conversation, in
which Madeiros distinguished his actions in June 2017 from his actions on the
night in question in December 2017. As mentioned above, this exchange was
initiated by one of the officers, who compared Madeiros’s conduct in June 2017 to

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his conduct on the night in question. In response, during a clip lasting no longer
than six seconds, Madeiros asserted that he had not “hit anything tonight.”7

¶35 The State’s focus on this brief statement by Madeiros is unavailing
because the State does not (and cannot) argue that any information in this
statement was inaccurate in any way. If anything, Madeiros appeared to truthfully
acknowledge that he hit another vehicle in June 2017, and the State has never
claimed that Madeiros hit anything in December 2017.

¶36 Instead, the only facts that Madeiros allegedly misrepresented to the
officers were facts about what happened on the night in question in
December 2017. Specifically, the State argued that Madeiros attempted to mislead
the officers about when he abandoned his vehicle, his reasons for doing so, what
kind of alcohol he drank that night, and whether he drank that alcohol before he
drove or after he left his vehicle. In allegedly misrepresenting these facts to the
officers, Madeiros did not once mention the June 2017 hit and run.

¶37 Finally, the State contends that omitting all of the references to the
hit and run from the video footage would have left the jury with “isolated snippets
of the conversation that likely would have appeared disconnected and made little
sense.” Again, we disagree. The officers discussed the facts of the hit and run, the

7
Throughout its appellate briefing, the State contends that Madeiros “repeatedly tried to
sell his story” that he did not drive drunk on the night in question “by referring to his prior hit and
run conviction” and “trying to claim he had no reason to flee this time.” These assertions are not
consistent with the footage from the officer’s body camera, and we caution the State to be more
careful in its representations about the record. The footage from the body camera shows that the
June 2017 hit and run offense and its legal consequences were discussed on isolated occasions
during the conversation in the garage bay, and each time, the discussion was initiated by one of
the officers. Madeiros attempted to distinguish his conduct on the night in question from the
prior offense on just one isolated occasion, in which he told the officers that he “didn’t hit
anything tonight.”

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revocation of Madeiros’s license, and his probation status during seven discrete
clips at 3:10-55, 5:01-07, 5:20-25, 9:35-43, 10:14-45, 11:05-30, and 12:00-52. All
of these clips could have been easily excised from the footage without omitting
any of Madeiros’s alleged misrepresentations about his conduct on the night in
question.

¶38 For all of these reasons, we reject the State’s argument that the
June 2017 hit and run was “a substantive part of [Madeiros’s] lie to the police.”
The State has not shown that Madeiros misrepresented facts about the June 2017
hit and run, nor that he falsely distinguished the facts of the hit and run from the
night in question, nor has the State shown that it needed to introduce Madeiros’s
accurate statements regarding the June 2017 hit and run as part of its proof that
Madeiros misrepresented the reasons he left his vehicle on the night in question.
Accordingly, we conclude that evidence of the hit and run was other-acts evidence
governed by WIS. STAT. § 904.04(2)(a) and Sullivan.

B.

¶39 In the alternative, the State argues that information about the
June 2017 hit and run was admissible under WIS. STAT. § 904.04(2)(a) and
Sullivan for a non-propensity purpose. To the extent that the record supported a
determination that evidence about the hit and run was admissible to prove some
non-propensity purpose, we could sustain the circuit court’s exercise of discretion
based upon our independent review, despite the circuit court’s failure to explain its
reasons for admitting the evidence. See Randall, 235 Wis. 2d 1, ¶7; see also State
v. Hunt, 2003 WI 81, ¶4, 263 Wis. 2d 1, 666 N.W.2d 771 (providing that we are
required to independently review the record “if the circuit court fails to provide a
detailed Sullivan analysis”). Accordingly, we now consider whether the record

17
No. 2021AP405-CR

supports a determination that, under Sullivan, evidence of the hit and run was
admissible for one of the purposes identified by the State.

¶40 As discussed above, the first step of the Sullivan analysis requires an
acceptable non-propensity purpose for which the other-acts evidence should be
admitted. Payano, 320 Wis. 2d 348, ¶63. Our supreme court has commented that
“this ‘first step is hardly demanding.’” Id. (quoted source and emphasis omitted).
The potential admissible purposes are “‘almost infinite,’” and the party seeking
admission “‘need only identify a relevant proposition that does not depend upon
the forbidden inference of character as circumstantial evidence of conduct.’”
Marinez, 331 Wis. 2d 568, ¶25 (quoted source omitted).

¶41 Here, the State argues that evidence about the June 2017 hit and run
was admissible under WIS. STAT. § 904.04(2)(a) and Sullivan to prove context,
modus operandi, and intent.8 We acknowledge that intent and modus operandi can
be permissible purposes of other-acts evidence under § 904.04(2)(b), and we
assume without deciding that, under the correct circumstance, context could be a
permissible purpose as well. Accordingly, we conclude that the circuit court could
have properly determined that the State met its burden on the first step of the
Sullivan analysis.

¶42 The second step of the Sullivan analysis contemplates a
determination of whether the information is relevant to any of the non-propensity

8
Modus operandi is a Latin term meaning “method of operating.” Modus operandi,
BLACK’S LAW DICTIONARY (10th ed. 2014). The State did not clearly articulate modus operandi
as a permissible purpose during the pretrial hearing, but we assume without deciding that the
State has not forfeited its argument about modus operandi and that we could sustain the circuit
court’s exercise of discretion if the evidence were admissible for that purpose.

18
No. 2021AP405-CR

purposes identified by the State. To be relevant, the evidence “must relate to some
fact that is of consequence to the determination of the action, and it must have
some tendency to make that fact more or less probable than it would be without
the evidence.” State v. Davidson, 2000 WI 91, ¶64, 236 Wis. 2d 537, 613 N.W.2d
606. “However, if the other acts evidence is probative of nothing more than the
defendant’s propensity to act a certain way, the evidence is not admissible.” State
v. Barreau, 2002 WI App 198, ¶40, 257 Wis. 2d 203, 651 N.W.2d 12.

¶43 Here, the circuit court did not specifically articulate how evidence
related to the hit and run was relevant to any non-propensity purpose identified by
the State. And, for the reasons described below, we conclude that the State did not
make a sufficient showing that the evidence was actually probative of the non-
propensity purposes it has identified.

¶44 The argument most clearly articulated by the State during the pretrial
hearing was that the hit and run was helpful “context” for the jury’s consideration.
During that hearing, the State argued that the fact that Madeiros had been involved
in a prior hit and run “really … puts things into perspective”:

You know, you know, so he’s actually, [Madeiros]
is bringing up the fact he’s trying to distinguish the crash
six months ago from what happened tonight. So he’s like,
hey, tonight’s different, I didn’t hit … anybody. We’ll
have to watch the video to see his exact words. And I think
that’s a very important thing for the jury to learn that, you
know, he’s acknowledging that six months earlier there was
this incident. He’s convicted. He’s been convicted of hit
and run. He was on probation for the hit and run when this
happened. His license had been taken away for hit and run,
you know, because … this happened. So it really gives the
jury the, puts things into perspective.

¶45 However, the State did not explain why, precisely, any “perspective”
was needed about Madeiros’s prior hit and run conviction. As discussed above,

19
No. 2021AP405-CR

the State does not contend that Madeiros misrepresented any fact about the
June 2017 hit and run that would be relevant to the obstruction charge. And the
State does not identify any probative value that “perspective” about his prior hit
and run would have to the OWI and PAC charges, apart from proving that
Madeiros had broken the law once and was likely to have done so again. See
Rutchick, 116 Wis. 2d at 67-68; see also Barreau, 257 Wis. 2d 203, ¶40 (“if the
other acts evidence is probative of nothing more than the defendant’s propensity to
act a certain way, the evidence is not admissible”). Accordingly, we conclude that
the circuit court could not have properly determined that the evidence was
admissible to provide “context” or “perspective.”

¶46 So too regarding the State’s argument about modus operandi. The
State argues that Madeiros’s prior hit and run conviction was relevant to show that
he “had a particular modus operandi of how he behaves when he has committed a
traffic crime: he flees the scene, abandons the car, and then tries to make up
implausible excuses for it when police finally reach him.” Yet, this assertion is
nothing more than an argument that Madeiros’s prior conduct is relevant to show
that he acted in conformity with his prior conduct on the night in question—that is,
that the evidence can be used as propensity evidence.

¶47 We acknowledge that, under some circumstances, courts have
determined that evidence of a distinctive method of operating can be properly
admitted as other-acts evidence under WIS. STAT. § 904.04(2)(a).9 However,

9
See, e.g., State v. Rutchick, 116 Wis. 2d 61, 68, 341 N.W.2d 639 (1984) (providing
that evidence of a prior crime that “establish[es] a definite method of operation” may be
“admissible to show preparation, plan, identity and intent”); see also Whitty v. State, 34 Wis. 2d
278, 293, 149 N.W.2d 557 (1967); State v. Hammer, 2000 WI 92, ¶24, 236 Wis. 2d 686, 613
N.W.2d 629.

20
No. 2021AP405-CR

evidence of modus operandi is not necessarily admissible for its own sake, unless
it is probative of some non-propensity fact such as intent that is of consequence at
trial.10 We therefore turn to the State’s arguments about intent.

¶48 Intent is not an element of the OWI and PAC charges, and the State
does not argue that the evidence was admissible to show that Madeiros had the
intent to drive while intoxicated or with a prohibited alcohol concentration on the
night in question. Instead, the State’s arguments about intent are focused on the
obstruction charge. As mentioned above, the State argues that certain evidence
from the June 2017 hit and run conviction, and the conviction itself, was relevant
to the obstruction count to show that Madeiros had the intent to mislead the
officers about his conduct on December 30, 2017. However, the State has not
clearly articulated how the evidence of the prior hit and run was probative of
Madeiros’s intent.

¶49 During the pretrial hearing, the State’s argument about intent was
entirely conclusory:

[The hit and run] also, judge, supports the element of
intent, you know. I have [a] charge Count 3, obstructing an
officer, by giving false information.… I think it’s clear
he’s lying. Clearly the officers are doing their job. And
element number four, he intended to mislead. And I’m

10
DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES; WISCONSIN EVIDENCE § 404.717
at 247-49 & nn.2-4 (4th ed. 2017) (citing cases that discuss modus operandi evidence, and
explaining that, although “[s]ome criminals exhibit a distinctive method of operation in carrying
out various crimes[,]” “[p]roof of a distinctive ‘modus operandi’ does not … lead to automatic
admissibility. Rather, the method of operation must be probative of issues such as intent, plan, or
identity.”). Here, Madeiros’s alleged modus operandi was not admissible to prove identity
because identity was not at issue in this case—there was no dispute that it was Madeiros (and not
someone else) who abandoned his car on the side of the road, and that it was Madeiros (and not
someone else) who drank alcoholic beverages that night. Nor was there any assertion that
Madeiros planned the crimes he was charged with in this case.

21
No. 2021AP405-CR

allowed to bring in evidence of other acts that show intent.
And I think that when you, if you watch the [first] 12
minutes [of the body camera footage] … you’ll come to the
conclusion of, yeah, he is intentionally lying to the police.

This argument about intent fails for the same reasons explained above—the State
does not assert that Madeiros misrepresented any fact about the June 2017 hit and
run or its legal consequences and, therefore, the State had no reason to present
evidence about the hit and run as part of its proof that Madeiros “knowingly [gave]
false information to [an] officer … with [the] intent to mislead the officer in the
performance of his or her duty.” See WIS. STAT. § 946.41(2)(a).

¶50 The State attempts to elaborate on its argument about intent in its
appellate briefing, but the argument fares no better. On appeal, the State contends
that “the hit and run was extremely similar to the crimes with which Madeiros was
charged in this case” because, among other things, it occurred only six months
prior to the current charges and was near in place. But the State does not explain
how these similarities have any tendency to make it more probable that Madeiros
intended to mislead the officers on the night in question, except by way of an
impermissible propensity inference.11

11
Although the State does not explicitly make this argument, its submissions could be
read to imply that Madeiros’s probation status was probative of his intent to mislead the police.
Specifically, this argument (which, again, the State does not explicitly make) would be that,
because Madeiros was on probation with absolute sobriety as a condition of his probation, he
would have had more reason than the average individual to attempt to avoid the consequences of
getting caught driving while intoxicated. However, Madeiros addressed this potential argument
in his opening appellate brief, in which he cited State v. Kourtidias, 206 Wis. 2d 574, 557
N.W.2d 858 (Ct. App. 1996), for the proposition that Madeiros’s probation status was not
admissible for this purpose. The State does not address Madeiros’s argument about Kourtidias in
its response brief, thereby conceding that Madeiros’s probation status was not properly admitted
to prove his motivation to deceive the officers about whether he had been drinking on the night in
question. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279
N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed conceded).

22
No. 2021AP405-CR

¶51 For all these reasons, we conclude that evidence of the June 2017 hit
and run is not probative of any non-propensity purpose, and the circuit court could
not have properly determined that it was relevant under the second step of the
Sullivan analysis. Because the evidence is probative of “nothing more than
[Madeiros’s] propensity to act a certain way, the evidence is not admissible.”
Barreau, 257 Wis. 2d 203, ¶40.

¶52 Having concluded that evidence of the hit and run was not probative
of any non-propensity purpose, we need not dwell on whether, under Sullivan’s
third step, the risk of unfair prejudice significantly outweighed its value for a non-
propensity purpose. We pause only briefly to observe that there is a great risk of
unfair prejudice under these circumstances. See BLINKA, supra, § 404.604 at 214
(“The more attenuated its relevancy, the lower its probative value and the greater
the likelihood that the jury will misuse the other act.”). In this context, “the legal
prejudice of which we speak … is the potential harm in a jury’s concluding that
because an actor committed one bad act, he necessarily committed the crime with
which he is now charged.” State v. Fishnick, 127 Wis. 2d 247, 261-62, 378
N.W.2d 272 (1985). As we have explained, the evidence was not relevant for a
permissible purpose and was relevant only to prove propensity. Lacking any
permissible use for the hit and run evidence, which played a prominent role in the
State’s case, it is likely that, to the extent the jury considered the evidence, the jury
would use it to prejudge Madeiros’s guilt on the crime charged based on his
“general criminal disposition” and the inference that, because he broke the law

23
No. 2021AP405-CR

once in June 2017, he is likely to have done so again on the night of December 30,
2017.12 See Rutchick, 116 Wis. 2d at 67-68.

IV. Harmless Error

¶53 Although we have determined that the circuit court erroneously
admitted evidence of the June 2017 hit and run, that does not necessarily mean
that a new trial is required. “Error in admitting other acts evidence is subject to
harmless error analysis.” State v. Thoms, 228 Wis. 2d 868, 873, 599 N.W.2d 84
(Ct. App. 1999). The burden of proving that an error is harmless is on the
beneficiary of the error—here, the State. State v. Mulhern, 2022 WI 42, ¶43, 402
Wis. 2d 64, 975 N.W.2d 209; see also State v. Alexander, 214 Wis. 2d 628, 652,
571 N.W.2d 662 (1997).

¶54 As an initial matter, we observe that the State does not develop any
argument that the circuit court’s admission of evidence about the June 2017 hit

12
Although the parties do not discuss the jury instructions in their briefing on this topic,
we acknowledge that the circuit court instructed the jury as follows: “During the videos played at
trial you may have heard comments about prior convictions of the defendant. You may not
consider these comments as proof that the defendant is guilty in this case.” Although we presume
that juries follow the instructions that are given to them, we are not persuaded that the circuit
court’s instruction could have effectively mitigated the risk that the jury would draw a propensity
inference from the evidence about the hit and run. Among other things, the quoted instruction,
which referred to “comments about prior convictions” during the video, was crafted as a curative
instruction to address the comment in the video about Madeiros’s prior OWI convictions that the
prosecutor inadvertently failed to mute. The hit and run conviction and its legal consequences
were referred to not just in the video, but also in a stipulation, and as part of the prosecutor’s
opening statement and closing argument. The court instructed the jury that it had to accept the
stipulated facts as true, and it never instructed the jury about any permissible non-propensity
purpose for which the stipulated facts could be considered. Under the circumstances, it is
unlikely that the jury would have understood the above-quoted instruction to mean that the jury
was forbidden to draw character and propensity inferences from the evidence about the hit and
run.

24
No. 2021AP405-CR

and run was harmless.13 We could take the State’s failure to advance any such
argument as a concession that, if it was error to admit the evidence, the error was
not harmless. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis.
2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (addressing deemed concessions).
Yet, even without resting our conclusion on the State’s failure to develop an
argument, we are not persuaded that the State could meet its burden to prove that
the error was harmless beyond a reasonable doubt.

¶55 In assessing whether an error is harmless, the question is whether we
can confidently say, based on the entire record, that the error was harmless beyond
a reasonable doubt. State v. Nelson, 2014 WI 70, ¶28, 355 Wis. 2d 722, 849
N.W.2d 317. In so doing, we may consider a variety of factors, including

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.

State v. Mayo, 2007 WI 78, ¶48, 301 Wis. 2d 642, 734 N.W.2d 115.

¶56 As discussed, the jury’s verdicts on the OWI and PAC charges
would turn on whether the jury believed that Madeiros drank alcohol before he
drove his vehicle on the night in question, as the State argued, or whether the jury

13
This omission is notable, as the State is undoubtedly aware of the law regarding
harmless error. Indeed, in a separate section of its appellate brief, the State argues that any error
the circuit court made in addressing the inadvertently played video evidence which mentioned
Madeiros’s prior OWI convictions was harmless, in part because the mention of the prior
convictions was “brief, it did not occur during witness testimony, and [according to the State] it
was unclear whether any of the jurors even noticed it.” The same argument could not be made
about the June 2017 hit and run, which was prominently discussed multiple times during the trial.

25
No. 2021AP405-CR

believed Madeiros’s testimony that he did not start drinking until after he left his
vehicle. Generally speaking, we conclude that the State’s case was strong, if
circumstantial. The admissible evidence suggested that Madeiros had abandoned
his vehicle approximately an hour before he was found intoxicated on the trail.
The officers observed empty bottles in his vehicle. They observed footprints in
the snow leading away from his vehicle, which suggested that Madeiros had a
zigzagging gait at that time. And, blood testing showed that Madeiros had a blood
alcohol concentration of .164 several hours after he was apprehended. If we were
reviewing the sufficiency of the admissible evidence to support a conviction, we
would not hesitate to affirm.

¶57 However, a proper harmless error analysis does not turn on the
strength of the State’s case alone. We must also consider other factors, including
the nature of the State’s case, the nature of the defense, the importance of the
erroneously admitted evidence, and its place in the State’s case.

¶58 Here, the jury’s assessment of Madeiros’s credibility was central to
the State’s case and Madeiros’s defense alike. Madeiros’s defense was based on
the State’s inability to present witness testimony that he drank alcohol before
driving that night, and it was supported by Madeiros’s own testimony which, if
credited, would have resulted in an acquittal. The State’s case depended on the
jury discrediting Madeiros’s testimony, and instead believing the circumstantial
evidence that it presented which suggested that Madeiros was intoxicated when he
drove his vehicle that night. The State argues that Madeiros’s testimony that he
did not drink until after he abandoned his vehicle was “nonsensical” and “absurd,”
but the jury could have believed Madeiros’s testimony and, if it had done so, it
would have acquitted him of the OWI and PAC charges.

26
No. 2021AP405-CR

¶59 The erroneously admitted evidence of the June 2017 hit and run was
a prominent feature of the State’s case, and it allowed the State to significantly
damage Madeiros’s credibility through improper and unfairly prejudicial means.
Based on the erroneously admitted evidence, the jury was invited to compare
Madeiros’s conduct on the night of the hit and run with his conduct on the night in
question, and the jury might have naturally considered whether he acted in
conformity with his prior criminal behavior on the night in question. The State’s
introduction of this inadmissible evidence created the risk that the jury would
discredit Madeiros’s testimony based on an inference about his propensity, rather
than on the strength of the State’s circumstantial evidence about his conduct on the
night in question, and that the jury would convict him on the basis of that
propensity inference.

¶60 Indeed, that is precisely how the prosecutor used the evidence of the
June 2017 hit and run during the trial. During his closing argument, the prosecutor
argued that Madeiros’s testimony about what happened that night was not credible
and should “offend [the jury’s] intelligence.” In so doing, the prosecutor asked the
jury to “remember” that “[t]his is a person who is on probation for hit and run.” In
light of this information about Madeiros’s character and propensity, the prosecutor
argued that the jury should not believe Madeiros’s testimony about his reasons for
abandoning his vehicle, concluding his argument as follows:

[Madeiros] was running away then [in June 2017, the night
of the hit and run], he’s trying to do the same thing [in
December 2017]. He’s trying to run away from being held
accountable for his actions. This is the day he’s held
accountable. The running stops right here. I ask you to
return verdicts of guilty on [all] three counts.

¶61 Based on our review of the record as a whole, we cannot say that,
without the erroneously admitted evidence, the jury would have discredited

27
No. 2021AP405-CR

Madeiros’s testimony and convicted him of the OWI and PAC charges.
Accordingly, we cannot conclude beyond a reasonable doubt that the error was
harmless. We therefore conclude that Madeiros is entitled to a new trial, and that
evidence related to the June 2017 hit and run should not be admitted at that trial.14

By the Court.—Judgment and order reversed and cause remanded for
further proceedings.

Not recommended for publication in the official reports.

14
Because our conclusion that Madeiros is entitled to a new trial based on this
erroneously admitted evidence is dispositive, we need not consider the additional arguments
Madeiros makes concerning other errors allegedly committed by the circuit court or his trial
counsel. The additional errors he alleges, which relate to whether a mistrial should have been
granted after the prosecutor inadvertently presented inadmissible evidence to the jury and whether
his trial counsel was constitutionally ineffective for failing to object to other evidence introduced
by the State, are unlikely to recur at any trial following the remand.

28