State v. Jose A. Arevalo-Viera

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.
July 25, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP1937-CR Cir. Ct. No. 2017CF2900

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSE A. AREVALO-VIERA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: JOSEPH R. WALL, Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

¶1 WHITE, J. Jose A. Arevalo-Viera appeals from a judgment, entered
upon a jury’s verdict, for four counts of first-degree sexual assault, one count of
second-degree sexual assault, one count of kidnapping as a party to a crime, and
one count of armed robbery. Arevalo-Viera argues that the trial court erred when
it admitted other-acts evidence of attempted similar conduct. We conclude that
No. 2021AP1937-CR

the trial court’s decision to admit the evidence was within its discretion.
Accordingly, we affirm.

BACKGROUND

¶2 This case arises out of M.D.’s allegations that she was forcibly
abducted on June 16, 2017, when Arevalo-Viera, armed with a box cutter and
hammer, entered her vehicle after she exited Interstate 794.1 According to the
criminal complaint, Arevalo-Viera ordered M.D. to drive to Chicago, but near the
Milwaukee County border, he ordered her to stop and abandon her car, and forced
her into the backseat of his co-actor’s dark gray pickup truck. Arevalo-Viera
repeatedly asked M.D. if she “wanted to live”; held a box cutter up to her throat;
and touched her thighs, breasts, and genital area without her consent. While his
co-actor drove the truck, Arevalo-Viera ordered M.D. to lay in the back seat, and
then forced a finger into her vagina and slapped and punched her face multiple
times. Arevalo-Viera threatened to shoot M.D. if she did not remove her clothing.
Arevalo-Viera inserted his penis in her vagina; she yelled and Arevalo-Viera’s co-
actor turned the radio louder. After the assaults, Arevalo-Viera’s co-actor stopped
the truck and Arevalo-Viera allowed M.D. to exit, but he demanded her purse and
mobile telephone. She eventually found a truck driver who allowed to her call 911
from his phone.

¶3 The complaint further alleged Milwaukee police located and
processed M.D.’s vehicle, which had been towed from the interstate. A fingerprint

1
To protect the privacy and dignity of the crime victims in these matters, we refer to
them by initials. See WIS. STAT. RULE 809.86 (2021-22). All references to the Wisconsin
Statutes are to the 2021-22 version unless otherwise noted.

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No. 2021AP1937-CR

was lifted from a resealable plastic bag in the vehicle; a comparison of the print
showed it matched Arevalo-Viera’s right middle finger.

¶4 The complaint further alleged that the police investigation
discovered three unauthorized credit card transactions on M.D.’s credit card: two
at a restaurant in Chicago, Illinois, and one at a gas station near Louisville,
Kentucky, all on June 17, 2017. The police also obtained a warrant for Google
Location Services data, which showed that at the relevant times to M.D.’s account
of the abduction, only one cellular telephone was using that service at the site of
the abduction in downtown Milwaukee, along the interstate near West Layton
Avenue, and at the address of the Chicago restaurant where M.D.’s credit card was
used. Google also provided subscriber information, which showed a subscriber
name similar to Arevalo-Viera’s first and middle name, as well as provided the
cellular telephone number.

¶5 Using the name generated by the fingerprint, the police investigation
located a woman believed to be Arevalo-Viera’s mother, who lived in Louisville,
and had a gray pickup truck registered in her name. Law enforcement in
Kentucky went to her listed address and observed a vehicle parked outside with a
for sale sign listing the cellular telephone number provided by Google. A search
of the cellular number showed the number was associated with a carpentry
business in Louisville that had Arevalo-Viera and his mother’s names in the
business title. Arevalo-Viera and his co-actor were arrested and charged.2

2
Arevalo-Viera’s co-actor was tried separately and his case is not in appeal before us in
this matter.

3
No. 2021AP1937-CR

¶6 In February 2019, the State moved to admit other-acts evidence,
specifically an incident from Kenosha County earlier on the same day that M.D.
was abducted. In that incident, a pickup truck was closely following K.T.’s
vehicle after she left a restaurant. When both cars were stopped at a light, the
driver of the pickup truck exited the car, approached K.T.’s car, and knocked on
the window. K.T. refused to lower the window, and told the man she was calling
the police. The man pulled a gun from the pickup truck and K.T. sped away,
fearing for her safety. The pickup truck again followed K.T.’s vehicle, and when
stopped, a man exited the passenger side of the truck with a baseball bat. K.T.
again sped away and called 911. She positively identified Arevalo-Viera as one of
the individuals inside the pickup truck that followed her.

¶7 The State argued that the Kenosha evidence established Arevalo-
Viera as the perpetrator of each offense based on his unique method of operation.
Further, it argued that the Kenosha evidence would dispel any claims by Arevalo-
Viera that the sexual acts were consensual, demonstrate Arevalo-Viera’s motive
and intent, and establish that M.D. was not mistaken in her claims.

¶8 At the final pretrial, the court heard the State’s motion to admit
other-acts evidence. Arevalo-Viera objected that there was not a unique method
of operation: M.D. alleged she had been kidnapped using a hammer and
threatened with a box cutter, in contrast, the Kenosha allegations involved a
baseball bat and a gun, and there was no abduction. The trial court assessed the
situation and noted that the acceptable purposes for other-acts evidence included
method of operation, as well as identity and motive. The court stated that the
Kenosha evidence “actually identifies the defendant,” and the court expected that
“part of the defense is going to be that [M.D.] has the wrong person.” The court
found that the evidence was offered for an acceptable purpose—identity. It then

4
No. 2021AP1937-CR

concluded that the evidence was relevant because identity was a “matter of
consequence.” Further, the court concluded that the Kenosha evidence had
probative value because the allegations were similar and happened very close in
time, within hours of the charged conduct. The court concluded the evidence was
relevant.

¶9 The court then weighed the probative value against the prejudicial
effect of the evidence, noting that the Wisconsin Supreme Court held that “if the
probative value of the evidence is close or equal to its unfair prejudicial effect, the
evidence must be admitted” in State v. Speer, 176 Wis. 2d 1101, 1115, 501
N.W.2d 429 (1993). The court found that there was nothing in the Kenosha
evidence that would shock the conscience of the jury or cause them to make a
decision based on outrage. The court concluded that the prejudicial nature of the
other-acts evidence could be dealt with through trial procedure and jury
instructions.

¶10 Arevalo-Viera’s counsel informed the trial court that identity would
not be an issue with the defense and Arevalo-Viera did not deny being in the
vehicle. The court then considered that “method of operation” would be an
acceptable purpose, with the similarities of an intrusive interaction and threatening
conduct. The prosecutor responded that the State may offer evidence to establish
identity, even if it was not contested by the defendant, relying upon State v.
Plymesser, 172 Wis. 2d 583, 594-95, 493 N.W.2d 367 (1992). Second, the
prosecutor argued that the Kenosha evidence would be relevant to respond to the
defense claim that this was a consensual encounter. Instead, the State argued that
Kenosha evidence would show an absence of mistake on the part of M.D. that this
was a violent assault.

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No. 2021AP1937-CR

¶11 The court concluded that “the absence of mistake … the intent and
the method of his operation here … all comports with the very same analysis” that
the court discussed for identification as an acceptable purpose of the other-acts
evidence. The court ultimately concluded that the Kenosha evidence was
admissible as other-acts evidence.

¶12 The case proceeded to a jury trial in June 2019. At trial, the State
called Milwaukee Police Department (MPD) officers, detectives, analysts, and
forensic investigators, who testified about physical evidence found on and in
M.D.’s vehicle, DNA evidence, and cell phone tracking evidence.3 There was also
police testimony about the Google Location Services search methods,
corresponding surveillance images of Arevalo-Viera throughout June 15 and 16,
2017, and video footage at various points along the alleged abduction route that
showed M.D.’s vehicle and the dark gray pickup truck.

¶13 The State further presented the truck driver who found M.D. in the
industrial complex parking lot near where she alleged Arevalo-Viera had released
her, the security guard who met M.D. and the truck driver, and the Pleasant Prairie
police officer who first interviewed M.D. M.D. testified in great detail about
Arevalo-Viera’s invasion of her vehicle, his threats to hurt her and his physical
assaults punching her in the face, Arevalo-Viera’s sexual assaults on her body, and
her efforts to secure help after Arevalo-Viera and his co-actor let her leave the
vehicle. The Sexual Assault Nurse Examiner (SANE) testified about injuries on
M.D.’s person and the collection of physical evidence.

3
We note that the State’s case was substantially similar to what had been alleged in the
criminal complaint and we recite a limited set of facts to give context to the other-acts evidence.

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No. 2021AP1937-CR

¶14 Relevant here, the State also asked to present the other-acts evidence
by testimony from two women in the car allegedly followed by Arevalo-Viera in
Kenosha. After reviewing the evidence, the court concluded that it would instruct
the jury on motive and intent. The court instructed the jury:

[T]his evidence is being given to you for the purpose of
looking at and assessing this defendant’s motive and that is
defined as whether the defendant has a reason to desire the
result of the offenses charged in this case, motive in this
case, as well as intent, this defendant’s intent, that is
whether the defendant acted with the state of mind that is
required for the offenses charged in this case. The intent
element. And that is what it’s being offered for and solely
for those purposes for you to consider.

You are not to consider this evidence to include that
this defendant has any certain character or character trait.
And that he acted in conformity with that character or
character trait in terms of the charged offenses in this case.
It is being received only for the purposes that I have
described. And, again, that is his motive in this case and
his intent in this case. And that is the only purpose for
which you are to consider it.

¶15 The State called two women who alleged they had been followed by
Arevalo-Viera in Kenosha hours before the abduction of M.D. First, K.T. testified
that she and her friend, S.J., left a Kenosha restaurant around 11:00 p.m. on
June 15, 2017. The State played her 911 call. She testified that a dark gray truck
followed her very closely; she sped up and the truck was still so close she could
not see the truck’s headlights behind her. She tried to let the truck pass, but the
truck pulled up next to her and a man, whom she later identified to police as
Arevalo-Viera in a photographic array, got out of the truck and knocked on her
window. When she would not roll down her window, the man returned to his
truck and pulled out a long object that she feared was a gun. K.T. drove away and
the truck continued to chase her; eventually, the passenger in the truck gets out of
the vehicle wearing a mask and carrying a baseball bat. K.T. testified that she was

7
No. 2021AP1937-CR

terrified and called 911 as she drove away quickly.4 The testimony from the
second witness, S.J., was substantially similar.

¶16 For the defense case, Arevalo-Viera presented testimony of an MPD
officer that M.D.’s car window had not been broken. Arevalo-Viera testified in
his own defense and portrayed a drastically different consensual encounter with
M.D. He also recalled trying to interact with the two women in Kenosha, but
driving away when they were not interested.

¶17 To correct several small technical issues with the information, the
State filed an amended information on the last day of trial, which then matched the
seven counts that appeared on the verdict forms. The counts all arose on June 16,
2017, involved M.D. as the victim, and occurred between East Clybourn Street in
Milwaukee and an industrial complex parking lot in Pleasant Prairie, where M.D.
was able to call 911: (1) first-degree sexual assault, forcibly aiding and abetting,
as to penis-to-vagina sexual intercourse in the pickup truck; (2) kidnapping, carries
forcibly, as a party to a crime; (3) first-degree sexual assault, forcibly aiding and
abetting, as to hand-to-breast sexual contact in M.D.’s vehicle; (4) first-degree
sexual assault, forcibly aiding and abetting, as to hand-to-vagina sexual contact in
the pickup truck; (5) first-degree sexual assault, forcibly aiding and abetting, as to
finger-to-vagina sexual intercourse in the pickup truck, (6) first-degree sexual
assault, forcibly aiding and abetting, as to hand-to-breast sexual contact in the
pickup truck; and (7) armed robbery, as a party to a crime.

4
The police analysis of the location data also showed Arevalo-Viera in the same vicinity
as K.T. and S.J. on June 15.

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No. 2021AP1937-CR

¶18 The jury reached a verdict, finding Arevalo-Viera guilty of all seven
counts, although count three was a guilty verdict for the lesser charge of second-
degree sexual assault. In August 2019, the trial court imposed concurrent and
consecutive sentences totaling 105 years of imprisonment, bifurcated as sixty-five
years of initial confinement and forty years of extended supervision.

¶19 Arevalo-Viera appeals.

DISCUSSION

¶20 Arevalo-Viera argues that the trial court erroneously exercised its
discretion when it admitted the other-acts evidence about the Kenosha incident
involving K.T. and S.J. on June 15, 2017. Arevalo-Viera argues that the court
failed to demonstrate its reasoning, referencing specific facts in the record, when it
applied the necessary analytical framework. For the reasons explained below, we
reject Arevalo-Viera’s arguments.

¶21 “A decision to admit or exclude evidence is within the [trial] court’s
discretion.” State v. Gutierrez, 2020 WI 52, ¶17, 391 Wis. 2d 799, 943 N.W.2d
870. We review the trial court’s decision on the admissibility of “other-acts
evidence for an erroneous exercise of discretion.” State v. Marinez, 2011 WI 12,
¶17, 331 Wis. 2d 568, 797 N.W.2d 399. We will sustain an evidentiary ruling if
the trial court “examined the relevant facts, applied a proper standard of law, used
a demonstrated rational process, and reached a conclusion that a reasonable judge
could reach.” State v. John Hunt, 2003 WI 81, ¶34, 263 Wis. 2d 1, 666 N.W.2d
771. If the trial court fails to set forth a basis for its ruling, we will “independently
‘review the record to determine whether it provides an appropriate basis for the
[trial] court’s decision.’” Marinez, 331 Wis. 2d 568, ¶17 (citation omitted).

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No. 2021AP1937-CR

¶22 Generally, “[e]vidence 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.” WIS. STAT. § 904.04(2)(a). Evidence of other crimes,
wrongs, or acts may be admitted under a three-prong analysis if: (1) the evidence
was offered for an acceptable purpose under § 904.04(2); (2) the evidence was
relevant under WIS. STAT. § 904.01; and (3) the probative value of the evidence is
not substantially outweighed by the danger of unfair prejudice, confusion, or delay
under WIS. STAT. § 904.03. State v. Sullivan, 216 Wis. 2d 768, 772-73, 576
N.W.2d 30 (1998).

¶23 The State moved to admit the Kenosha incident for the purposes of
identity, motive, intent and absence of mistake, in other words, to show Arevalo-
Viera’s method of operation. While “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,” however, this rule “does not exclude the evidence
when offered for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” WIS.
STAT. § 904.04(2)(a). Arevalo-Viera concedes that the first prong of Sullivan, the
acceptable purpose of the evidence, was satisfied by the State. See id, 216 Wis. 2d
at 772-73.

¶24 Arevalo-Viera argues that the court erred when it analyzed the
second and third Sullivan prongs because it focused on identification and the court
did not individually analyze how any other acceptable purposes of the evidence
were relevant and that the probative value of the evidence substantially
outweighed the danger of unfair prejudice. Arevalo-Viera asserts that because he

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No. 2021AP1937-CR

did not challenge his identity as the person with M.D., the probative value of the
Kenosha evidence is diminished and the risk of unfair prejudice is heightened.5

¶25 The State argues that the trial court did conduct the relevant analysis.
The record reflects that the court responded to Arevalo-Viera’s trial counsel’s
statement that identification was not at issue, discussed absence of mistake,
motive, and intent and how that was related to method of operation, and concluded
that the other acceptable purposes “comport[ed] with the very same analysis.”
Therefore, we reject Arevalo-Viera’s broad argument that the court did not
conduct a Sullivan analysis for the other acceptable purposes. Further, our inquiry
would not stop if we concluded that the trial court failed to set forth its reasoning.
In such a case, this court independently reviews “the record to determine whether
it provides an appropriate basis for the [trial] court’s decision.” John Hunt, 263
Wis. 2d 1, ¶34.

¶26 For the second Sullivan prong, we consider relevancy.
WISCONSIN STAT. § 904.01 defines relevant evidence as “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” We make two inquiries. First, “whether the other acts
evidence relates to a fact or proposition that is of consequence to the determination
of the action.” Sullivan, 216 Wis. 2d at 772. Second, “whether the evidence has
probative value, that is, whether the other acts evidence has a tendency to make

5
“The [S]tate must prove all the elements of a crime beyond a reasonable doubt, even if
the defendant does not dispute all of the elements.” State v. Plymesser, 172 Wis. 2d 583, 594-95,
493 N.W.2d 367 (1992). Therefore, Arevalo-Viera’s admission that he was with M.D. that night
does not negate the State’s need to prove his identity as the defendant.

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No. 2021AP1937-CR

the consequential fact or proposition more probable or less probable than it would
be without the evidence.” Id.

¶27 The record reflects that the trial court concluded that the Kenosha
incident was relevant to the State’s proffered purposes: identity, motive, intent,
and absence of mistake. The State argued that the other-acts evidence
demonstrated Arevalo-Viera’s unique method of operation, which encompassed
several acceptable purposes in WIS. STAT. § 904.04(2)(a).6 Although Arevalo-
Viera appears to ask this court to see the purpose and relevance of the other-acts
evidence to require discrete analysis, there is no such requirement in Wisconsin
law. See State v. Rutchik, 116 Wis. 2d 61, 68, 341 N.W.2d 639 (1984) (“We
conclude that the evidence of the prior crime established a definite method of
operation and was therefore admissible to show preparation, plan, identity and
intent.”). As our supreme court explained, “WISCONSIN STAT. § 904.04(2)(a)
contains an illustrative, and not exhaustive, list of some of the permissible
purposes for which other-acts evidence is admissible[.]” Marinez, 331 Wis. 2d
568, ¶18. As has been often repeated, we do not require the trial courts to use
magic words, but instead, to demonstrate rational decision-making. See State v.
Ziller, 2011 WI App 164, ¶13, 338 Wis. 2d 151, 807 N.W.2d 241. The record
reflects that reasoning occurred here.

6
Further, although Arevalo-Viera is not disputing his presence, he is disputing
committing the charged conduct. Our supreme court has recognized that evidence of method of
operation falls under an identification purpose, discussing that evidence that shows “the alleged
perpetrator’s modus operandi, or mode or method of operation,” may be admissible to prove the
identity of the person who committed the charged conduct. State v. Hammer, 2000 WI 92, ¶24,
236 Wis. 2d 686, 613 N.W.2d 629. “Method of operation, while not specifically enumerated in
[WIS. STAT. §] 904.04(2), is one of the factors ‘that tends to establish the identity of the
perpetrator.’” Hammer, 236 Wis. 2d 686, ¶24 (citations and one set of quotations omitted).

12
No. 2021AP1937-CR

¶28 Arevalo-Viera posits that identity had low probative value because
he admitted he was with M.D. that night, offering an alternative, innocent
explanation of a consensual encounter that ended unpleasantly when M.D. insisted
on leaving his truck. However, Arevalo-Viera ignores that the question of identity
is more than his presence, but asks who committed the charged conduct.

¶29 Other-acts evidence admitted for the purpose of identity looks at “a
concurrence of common features and so many points of similarity with the crime
charged that it ‘can reasonably be said that the other acts and the present act
constitute the imprint of the defendant.’” State v. Kuntz, 160 Wis. 2d 722, 746
467 N.W.2d 531 (1991) (citation omitted). “The threshold measure for similarity
with regard to identity is nearness of time, place, and circumstance of the other act
to the crime alleged.” Id. at 746-47. The determination of similarity is “left to the
sound discretion of the trial courts.” Id. at 747.

¶30 Arevalo-Viera disputes the similarity between the Kenosha incident
and charged counts, pointing out significant differences, namely no allegations of
kidnapping, sexual assault, or robbery. However, our examination of the record
indicates that the similarities strongly show the identity of the perpetrator:
Arevalo-Viera and his co-actor travelled together in a pickup truck late at night.
They followed a woman driving a car, at close distance, and pulled up beside her
car. Arevalo-Viera exited the truck and approached the woman’s car to attempt to
make contact. Each woman felt threatened by Arevalo-Viera’s approach. The
events occurred just hours apart. We conclude that the similarity in “nearness of

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No. 2021AP1937-CR

time, place, and circumstance” demonstrate the “imprint” of the perpetrator of
these acts. See Kuntz, 160 Wis. 2d at 746-47.7

¶31 Turning to the exceptions for intent and motive, the State argues that
the other-acts evidence was probative of the elements of the charged crimes.
Although Arevalo-Viera initially argued that intent was not an issue in the sexual
assault charges, he concedes that intent was an element in five of the seven counts:
the three sexual assault charges based on sexual contact, kidnapping, and armed
robbery. “The admissibility of [other-acts evidence] to prove motive ‘is purely a
function of relevance: How does the other act help the trier of fact to understand
why the person acted as he [or she] did?” State v. Hurley, 2015 WI 35, ¶71, 361
Wis. 2d 529, 861 N.W.2d 174 (citation omitted). Therefore, the probative value of
the other-acts evidence was that the Kenosha incident showed that Arevalo-
Viera’s motive and intent was not as he described, to get drinks with a woman, but
shows it was more likely that Arevalo-Viera intended to gain access to M.D.’s
vehicle and have non-consensual sexual contact with her.

¶32 Finally, Arevalo-Viera argues that the State’s use of the “absence of
mistake” purpose was in error. He asserts that this purpose is intended to dispute a
defendant’s claim that he committed the conduct by accident. However, his
interpretation of this purpose is too narrow. “The exception of absence of mistake
is closely tied to intent.” State v. Gray, 225 Wis. 2d 39, 56, 590 N.W.2d 918
(1999). “If a like occurrence takes place enough times, it can no longer be
attributed to mere coincidence. Innocent intent will become improbable.” State v.

7
A major difference between the two events is that Arevalo-Viera succeeded in entering
M.D.’s vehicle and he was not successful in Kenosha. His failure in Kenosha does not diminish
the similarity of the incidents or the probative value of the Kenosha evidence.

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No. 2021AP1937-CR

Evers, 139 Wis.2d 424, 443, 407 N.W.2d 256 (1987). “Other[-]acts evidence is
properly admitted to show absence of mistake if it tends to undermine a
defendant’s innocent explanation for his or her behavior.” Gray, 225 Wis. 2d at
56. Arevalo-Viera testified that his actions were innocent—that he saw the
women in each scenario and wanted to have drinks. The young women’s
testimony of their terror and fear during their interaction with Arevalo-Viera in
Kenosha demonstrated that it was more likely that his conduct was not innocent.
We conclude that the other-acts evidence was probative to the question of whether
Arevalo-Viera’s conduct was intended to be benign or harmful to the women
involved here.

¶33 Ultimately, we conclude that the second prong of Sullivan was
satisfied for the proffered purposes of the other-acts evidence. The State had the
burden to prove beyond a reasonable doubt the identification of the perpetrator of
the charged crimes. “If the state must prove an element of a crime, then evidence
relevant to that element is admissible, even if a defendant does not dispute the
element.” State v. Hammer, 2000 WI 92, ¶25, 236 Wis. 2d 686, 613 N.W.2d 629.
Therefore, while the other-acts evidence has probative value to identify Arevalo-
Viera as the person in the truck with M.D., we conclude that the probative value of
the evidence was much greater when offered to identify Arevalo-Viera as the
perpetrator of the charged conduct. We conclude that the four proffered
acceptable purposes combine to show Arevalo-Viera’s method of operation, which
was highly relevant to the elements of the State’s case. The other-acts evidence
was relevant to show Arevalo-Viera’s identity or imprint, his intent, his motive,
and his lack of innocent mistake. See Sullivan, 216 Wis. 2d at 772. Additionally,
the other-acts evidence had probative value to understand what happened on
June 16, 2017. See id.

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No. 2021AP1937-CR

¶34 Next, we turn to the third Sullivan prong, whether the probative
value was substantially outweighed by the danger of unfair prejudice. Nearly all
of the State’s evidence in a criminal case is prejudicial, so our inquiry is not
whether there was simple harm to the defense, “but rather ‘whether the evidence
tends to influence the outcome of the case by improper means.’” Hurley, 361
Wis. 2d 529, ¶87 (citation omitted). Here, the trial court concluded that the other-
acts evidence would not shock the conscience or horrify jurors, and under the
balancing test, the probative value was not substantially outweighed by the danger
of unfair prejudice, satisfying the third prong and WIS. STAT. § 904.03. Here,
Arevalo-Viera fails to make a distinct argument about unfair prejudice beyond his
position that the probative value was low because he did not contest identity.

¶35 We conclude that the trial court’s analysis of the third prong
considered the relevant facts under the proper standard of law and demonstrated
rational decision making. See John Hunt, 263 Wis. 2d 1, ¶34. The probative
value of the other-acts evidence was high, as shown above in our analysis of the
relevance. Further, the trial court instructed the jury in three ways to reduce the
danger of unfair prejudice—it gave two instructions to the jury prior to K.T. and
S.J. testifying, and it gave an instruction during the final jury instructions. The
trial court’s instructions complied with the established process in Wisconsin law to
“limit the possibility that the jury will convict based on ‘improper means[.]’”
Hurley, 361 Wis. 2d 529, ¶89 (citation omitted).

¶36 The record reflects that the trial court warned the jury not to consider
the other-acts evidence as evidence that Arevalo-Viera had a certain “character or
character trait” or to conclude that he was a “a bad person and for that reason is
guilty of the offenses charged.” Although Arevalo-Viera contends that the
cautionary instructions were overbroad, he fails to explain how they fell short and

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No. 2021AP1937-CR

only speculates that they were ineffective. The reviewing court presumes that
“juries comply with properly given limiting and cautionary instructions, and thus
consider this an effective means to reduce the risk of unfair prejudice to the party
opposing admission of other[-]acts evidence.” Marinez, 331 Wis. 2d 568, ¶41.
Therefore, we conclude that the third prong of Sullivan was satisfied by the trial
court’s analysis and safeguarded by the court’s cautionary instructions to the jury.

¶37 To the extent that the trial court’s analysis focused on identification
alone as an acceptable purpose for the other-acts evidence, we conclude that any
error was harmless. The probative value of the other-acts evidence to establish
Arevalo-Viera’s identity as the person in the truck with M.D. was limited because
he did not deny being there. While Arevalo-Viera concedes that there was an
acceptable purpose to the other-acts evidence under the first Sullivan prong, going
so far as to admit those exceptions were “identity, intent, motive, and absence of
mistake,” he contends that the danger of unfair prejudice outweighed any limited
probative value and the error was not harmless.

¶38 “The erroneous exclusion of testimony is subject to the harmless
error rule.” State v. James Hunt, 2014 WI 102, ¶26, 360 Wis. 2d 576, 851
N.W.2d 434. “Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected.”
WIS. STAT. § 901.03(2). “To assess whether an error is harmless, we focus on the
effect of the error on the jury’s verdict.” State v. Weed, 2003 WI 85, ¶29, 263
Wis. 2d 434, 666 N.W.2d 485. “The error is harmless if it is ‘clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent
the error.’” James Hunt, 360 Wis. 2d 576, ¶26 (citation omitted).

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No. 2021AP1937-CR

¶39 Our inquiry into harmless error in the evidentiary context relies on
several non-exclusive factors. State v. Monahan, 2018 WI 80, ¶35, 383 Wis. 2d
100, 913 N.W.2d 894. Those factors include the “the frequency of the error;” the
importance of the evidence to the State’s case; “the presence or absence of
evidence corroborating or contradicting the erroneously included … evidence;”
the nature of both the defense and the State’s case; and “the overall strength of the
State’s case.” Id.

¶40 Here, our primary consideration is the overall strength of the State’s
case. The State presented overwhelming evidence of Arevalo-Viera’s guilt. It
presented detailed testimony from M.D. about the kidnapping and assault, and
then provided corroborating, consistent testimony via the cell phone location data,
the surveillance camera footage, the DNA evidence, the 911 call, the SANE
testimony, and M.D.’s descriptions of the events to the witness she first
encountered; the semi-truck driver, the security guard, Pleasant Prairie police, the
SANE examination, and lastly, the MPD’s investigative officers and detectives.

¶41 Further, the other-acts evidence was presented in a limited fashion,
with cautionary instructions, and it was used by the State to corroborate the other
evidence in the case. Additionally, Arevalo-Viera’s testimony in defense did not
deny an encounter with the young women in Kenosha. When reviewed overall,
there is no possibility that a rational jury would have found Arevalo-Viera not
guilty, if the other-acts evidence had been excluded from the trial.

CONCLUSION

¶42 For the reasons stated above, we conclude that the trial court acted
within its discretion when it admitted the other-acts evidence of the Kenosha
incident. Our examination of the record supports that the three prongs of Sullivan

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No. 2021AP1937-CR

were satisfied. The evidence was offered for acceptable purposes: identity, intent,
motive, and absence of mistake, to show Arevalo-Viera’s method of operation.
The other-acts evidence was relevant to the State’s case. The probative value of
the other-acts evidence was not substantially outweighed by the danger of unfair
prejudice. To the extent that the court’s focus on identification as an acceptable
purpose was in error because Arevalo-Viera admitted to being with M.D. or that
any of the other-acts evidence was not properly admitted, we conclude any error
was harmless.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

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2021AP1937-CR(C)

No. 2021AP1937-CR(C)

¶43 DUGAN, J. (concurring). Consistent with the rule that an appellate
court should decide cases on the narrowest possible grounds, I concur with the
Majority’s conclusion that even if the trial court erred in admitting the other acts
evidence, any error was harmless. See Majority, ¶¶37-41; see also State v.
Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (“An appellate court should
decide cases on the narrowest possible grounds.”). Therefore, I do not join in the
Majority’s analysis and decision related to the merits of whether the court erred in
admitting the other acts evidence.