COURT OF APPEALS

DECISION

DATED AND FILED

February 11, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2019AP1989-CR Cir. Ct. No. 2018CF1223

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-APPELLANT,

 V.

OMAR S. CORIA-GRANADOS,

 DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County: 

ELLEN K. BERZ, Judge. Affirmed in part; reversed in part and cause remanded 

for further proceedings. 

Before Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.

¶1 FITZPATRICK, P.J. The State of Wisconsin has charged Omar 

Coria-Granados, in the Dane County Circuit Court, with an attempt to have sexual 
No. 2019AP1989-CR

2

contact with a person under the age of thirteen, E.,1contrary to WIS. STAT.

§§ 948.02(1)(e) and 939.32 (2015-16). The State has also charged CoriaGranados with sexual contact with M., E.’s sister, without that person’s consent,

contrary to WIS. STAT. § 940.225(3m) (2015-16). 

¶2 Pretrial, the State filed a motion, pursuant to WIS. STAT. § 904.04(2),

seeking to introduce at trial evidence of other acts allegedly committed by CoriaGranados against E. and M. Pretrial, the State also filed a separate motion

pursuant to WIS. STAT. § 908.08, seeking to introduce at trial an audiovisual

recording of a statement made by E. The circuit court denied each of the State’s 

motions, and the State appeals under WIS. STAT. § 974.05(1)(d)2.2

¶3 For the following reasons, we reverse the circuit court’s ruling 

regarding admission of the other-acts evidence, affirm the circuit court’s ruling 

that denied admission of the audiovisual recording of E.’s statement, and remand 

this matter for further proceedings consistent with this opinion.

BACKGROUND

¶4 In April 2018, E. and M. met separately with a forensic interviewer 

and, in audiovisual recorded statements, reported that a long-time adult family 

friend, Coria-Granados, touched them and performed other acts that made each 

 

1

 Pursuant to WIS. STAT. RULE 809.86(4) (2017-18), we use an initial in place of the 

alleged victims’ names. 

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

noted.

2

 WISCONSIN STAT. § 974.05(1)(d)2. allows the State to appeal, prior to trial, from an 

“[o]rder or judgment the substantive effect of which results in ... [s]uppressing evidence.” 
No. 2019AP1989-CR

3

feel uncomfortable. We next discuss the charges against Coria-Granados that 

arose from those interviews.

¶5 In one of the incidents described by E., she and Coria-Granados 

were alone in the living room at Coria-Granados’s home while E.’s father was in 

the bathroom. During that time, according to E., Coria-Granados reached his 

hands into E.’s shorts in an attempt to touch her vagina. E. stated in the interview 

that she grabbed Coria-Granados’s hand and told him to stop, and this seemed to 

anger Coria-Granados. As a result of that allegation, Coria-Granados was charged 

with attempted first-degree child sexual assault which occurred between June 1 

and August 31, 2017. E. was either ten or eleven years old on those dates. 

¶6 During her forensic interview, M. alleged that Coria-Granados

grabbed what M. referred to as her “butt” while she and Coria-Granados were 

outside his home. As a result of that allegation, Coria-Granados was charged with 

fourth-degree sexual assault which occurred between June 1 and August 31, 2017. 

M. was seventeen years old on those dates. 

¶7 During the forensic interviews, E. and M. made other allegations 

about Coria-Granados that were the subject of the other-acts motion brought by 

the State requesting admission of the acts in evidence at trial. The specifics of the 

five purported other acts will be discussed shortly. As noted, the State also filed a 

motion, pursuant to WIS. STAT. § 908.08, seeking to introduce in evidence at trial 

the recorded audiovisual statement of E. 

¶8 The circuit court ruled that the other-acts evidence proffered by the 

State is not admissible in evidence. Further, the circuit court ruled that, in light of 

the factors and standards delineated in WIS. STAT. § 908.08(4), it is not in the 

“interests of justice” to admit E.’s recorded audiovisual statement into evidence. 
No. 2019AP1989-CR

4

DISCUSSION

¶9 The State appeals the circuit court’s rulings that the other-acts 

evidence and the audiovisual recording of E.’s statement are not admissible in 

evidence at trial. We discuss each of the circuit court’s rulings in turn. 

I. Admissibility of Other-Acts Evidence.

A. Governing Principles.

¶10 We begin with the principles that govern our analysis regarding the 

other-acts evidence at issue in this appeal.

¶11 “[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). However, under some 

circumstances, “evidence of other crimes, wrongs, or acts” is admissible. To 

determine whether to admit evidence of other acts, courts engage in the three-step 

analysis set forth in State v. Sullivan, 216 Wis. 2d 768, 771-72, 783, 576 N.W.2d 

30 (1998).

¶12 The first step in the Sullivan analysis asks whether the party offers 

the evidence for a permissible purpose under WIS. STAT. § 904.04(2)(a). Sullivan, 

216 Wis. 2d at 772. Permissible purposes include “proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” 

Sec. 904.04(2)(a). The second step in the Sullivan analysis asks whether the 

other-acts evidence is relevant. Sullivan, 216 Wis. 2d at 772. The party seeking 

the admission of the other-acts evidence (in this case, the State) has the burden to 

establish the first two steps of this analysis “by a preponderance of the evidence.”

State v. Marinez, 2011 WI 12, ¶19, 331 Wis. 2d 568, 797 N.W.2d 399. 
No. 2019AP1989-CR

5

¶13 If the first two steps of the Sullivan analysis are satisfied, the burden 

then shifts to the opposing party (here, Coria-Granados) in the third step to “show 

that the probative value of the evidence is substantially outweighed by the risk” of 

confusion of the issues for the jury or unfair prejudice. Id., ¶¶19, 41; Sullivan, 

216 Wis. 2d at 772-73; see WIS. STAT. § 904.03.

¶14 In addition to “this general framework, there also exists in 

Wisconsin law the longstanding principle that in sexual assault cases, particularly 

cases that involve sexual assault of a child, courts permit a ‘greater latitude of 

proof as to other like occurrences.’” State v. Davidson, 2000 WI 91, ¶36, 236 

Wis. 2d 537, 613 N.W.2d 606 (quoted source omitted). This common law 

evidentiary rule is now partially codified in WIS. STAT. § 904.04(2)(b)1. See State 

v. Dorsey, 2018 WI 10, ¶¶31-33, 379 Wis. 2d 386, 906 N.W.2d 158. The greater 

latitude rule applies to each step of the Sullivan analysis. Marinez, 331 Wis. 2d 

568, ¶20.3 

B. The Five Other Acts.

¶15 The State requested in the circuit court that evidence regarding five 

other acts be admitted at trial. We now describe details of each purported act. E. 

and M. stated the following information about each incident to the forensic 

interviewer as described in the complaint and in the transcript of the hearing 

regarding admission of this evidence. 

 

3

 The State contends, and Coria-Granados does not dispute, that the common law greater 

latitude evidentiary rule and the codification of the greater latitude rule at WIS. STAT.

§ 904.04(2)(b)1., are applicable to each step of our analysis in these circumstances. In addition, 

the State contends, and Coria-Granados does not dispute, that both E. and M. were “children” at 

the time of the alleged other acts and that E. was a child at the time of the charged act. 
No. 2019AP1989-CR

6

1. The Milwaukee Incident.4

¶16 In the summer of 2017, Coria-Granados and his wife took E. to 

Milwaukee, and they stopped in Johnson Creek at the Old Navy store on the way. 

Coria-Granados and his wife bought two pairs of shorts and two shirts at the store 

for E., and E. changed into her new clothes before they continued their drive. 

Once in Milwaukee, Coria-Granados dropped his wife off at a hair salon and then 

drove E. to a parking spot where they could not be seen by anyone else. 

¶17 While parked, Coria-Granados talked to E. and asked her about 

school. E. told Coria-Granados that she was being bullied at school and she was 

sad about that. Coria-Granados then suddenly put his hand under her shirt and 

squeezed E.’s breast. Coria-Granados also pulled his penis out of his pants and 

insisted that E. look at it. Coria-Granados told E. that if she told her parents or his 

wife what he had done, he would tell E.’s parents that she used Snapchat,5 which 

her parents had forbidden E. to use. 

¶18 After those events, E. got some “hot Cheetos” from the El Rey 

grocery store, and E. remembered that there was a small stand where corn was 

sold outside the grocery store. 

¶19 The circuit court held a hearing on the State’s other acts motion at 

which time the court asked for further details regarding this alleged incident. In 

response to the circuit court’s inquiries, the State explained the following. E. told 

 

4

 The parties generally use the same shorthand phrase for each act, and we adopt the 

same phrases. 

5

 “Snapchat is a mobile app and service for sharing photos, videos, and messages with 

other people.” https://techterms.com/definition/snapchat (last visited Feb. 5, 2021).
No. 2019AP1989-CR

7

investigators that, at the time she was alone with Coria-Granados in the car and he 

grabbed her breast and exposed his penis, she and Coria-Granados were “in a 

parking lot by an apartment building that was close to the El Rey” grocery store. 

Also, from photographs, E. was able to identify that the grocery store was on 

Cesar Chavez Drive. E. also stated to investigators that Coria-Granados had taken 

his wife to a hair salon with “a very Hispanic name” that day, and the salon is

“across the street from a church that had a gold baby Jesus up on the top of it.” 

2. The Soccer Match Incident.

¶20 Coria-Granados and M. were watching a soccer match at an indoor 

facility when he told M. that “he liked to look at girls’ butts.” Coria-Granados

then “slapped and grabbed [M.’s] butt.” Later, Coria-Granados sent a text to M.

which stated that M. should not to tell her parents what he had done. 

¶21 At the hearing on the State’s motion to admit the other-acts 

evidence, the circuit court asked for further information concerning where this 

event occurred. The State then identified for the circuit court a specific name and 

address for the field as is detailed in the complaint. 

3. The Bra Incident.

¶22 Shortly after M. came home after a surgery, Coria-Granados was at 

her family’s home. Coria-Granados walked into her bedroom and, while they 

were alone, Coria-Granados picked up and held a bra that M. had left on a piece of 

furniture. 
No. 2019AP1989-CR

8

4. The Thigh Incident.

¶23 When M. was fifteen years old, she was a passenger in CoriaGranados’s car while driving to his home after a soccer match. At that time, he 

started to talk to M. about sex. Coria-Granados told her that “he liked to get head” 

and that, when he was younger, he had given a young girl money for oral sex. 

Coria-Granados asked M. if she wanted to touch his penis and, when she said 

“no,” Coria-Granados asked her if she was sure. Coria-Granados then put his 

hand on M.’s thigh, slid his hand up her leg, and asked her if that made her “feel 

weird.”

5. Texting to M.

¶24 Starting in 2015, and during M.’s freshman and sophomore years of 

high school, Coria-Granados sent M. sexually explicit text messages. As 

examples, the text messages Coria-Granados wrote to M. stated that he watched 

pornography and masturbated, and Coria-Granados asked M. whether she had 

engaged in sex. Coria-Granados instructed M. to delete each text, and M. did so 

because “she did not want to get into trouble.”

¶25 In the next sections, we discuss the three steps of the Sullivan

analysis in the context of this appeal.

C. Step One – Permissible Purpose.

¶26 As noted, the first step asks whether the party (here, the State) offers 

the evidence for a permissible purpose under WIS. STAT. § 904.04(2)(a). Sullivan, 

216 Wis. 2d at 772. Permissible purposes include “proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” 

Sec. 904.04(2)(a). “As long as the State and circuit court have articulated at least 
No. 2019AP1989-CR

9

one permissible purpose for which the other-acts evidence was offered and 

accepted,” this step is satisfied. Marinez, 331 Wis. 2d 568, ¶25. 

¶27 The circuit court recognized this as the first step in the Sullivan

analysis. The circuit court’s only further reference to this step was: “Why they 

would be admitted, purpose, is not an issue.” 

¶28 In briefing in this court, Coria-Granados does not dispute this 

determination of the circuit court and, in effect, Coria-Granados concedes that the 

State met its burden regarding this step and that the circuit court’s ruling was in 

favor of the State concerning the first step of the Sullivan analysis. Schlieper v. 

DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (stating that a 

proposition not disputed on appeal may be taken as admitted). 

D. Step Two – Relevance.

¶29 We now consider the second step in the Sullivan analysis; that is, an 

assessment of whether the evidence regarding the other acts is relevant under WIS.

STAT. § 904.01.6 Sullivan, 216 Wis. 2d at 772; Wisconsin v. Payano, 2009 WI 

86, ¶67, 320 Wis. 2d 348, 768 N.W.2d 832 (citing Davidson, 236 Wis. 2d 537,

¶35; 7 DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE,

§ 404.6 (3d ed. 2008)). Evidence of other acts is “inherently relevant to prove 

character” and, as a result, the issue is whether the other act is relevant to anything 

other than to prove character. Payano, 320 Wis. 2d 348, ¶67 (citing DANIEL D.

 

6

 WISCONSIN STAT. § 904.01 states: “Definition of ‘relevant evidence[.]’ ‘Relevant 

evidence’ means 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.”
No. 2019AP1989-CR

10

BLINKA, WISCONSIN EVIDENCE, § 404.6 (3d ed.); State v. Johnson, 184 Wis. 2d 

324, 337 n.1, 516 N.W.2d 463 (Ct. App. 1994)). 

¶30 There are two relevancy considerations within this second step. The 

first consideration is whether the other-acts evidence relates to a fact or 

proposition that is of consequence to the determination of the action. Id., ¶68. 

The second consideration is whether the evidence is probative; in other words, 

whether the other-acts evidence has the tendency to make a consequential fact or 

proposition more or less probable than it would be without that evidence. Id.

(citing BLINKA, WISCONSIN EVIDENCE, § 404.6 (3d ed.); Sullivan, 216 Wis. 2d at 

772). We next discuss each relevancy consideration.

1. The Other-Acts Evidence Relates to a Fact or Proposition of Consequence.

¶31 In discussing this first relevancy consideration, a court’s attention 

must be focused on the pleadings and contested issues in the case. Id., ¶69. The

pleadings set forth the elements of the charges. Id. (citing Sullivan, 216 Wis. 2d 

at 785-86 for the following proposition: “The substantive law determines the 

elements of the crime charged and the ultimate facts and links in the chain of 

inferences that are of consequence to the case.”). 

¶32 For Coria-Granados to be convicted of the charged offense

concerning E., the State must prove that he attempted to touch E.’s vagina for the 

purpose of his own sexual gratification. See WIS. STAT. §§ 948.02(1)(e) and 

948.01(5) (2015-16). Accordingly, with regard to that charge, the facts and 

propositions of consequence are whether: (1) Coria-Granados attempted to touch 

E.’s vagina; and (2) he did so for the purpose of his own sexual gratification. To 

secure a conviction on the charged offense concerning M., the State must prove 

that Coria-Granados touched M.’s bottom without her consent for his own sexual 
No. 2019AP1989-CR

11

gratification. See WIS. STAT. § 940.225(3m) and (5)(b) (2015-16). With regard to 

that charge, the facts and propositions of consequence are whether: (1) CoriaGranados grabbed M.’s bottom without her consent; and (2) he did so for the

purpose of his own sexual gratification. 

¶33 Coria-Granados does not dispute the State’s assertions that the otheracts evidence relates to facts and propositions of consequence to the determination 

of this action, and we deem that a concession on this point by Coria-Granados. 

See Schlieper, 188 Wis. 2d at 322. 

¶34 Accordingly, the State has met its burden to show that the five other 

acts are related to facts and propositions of consequence in this action.7

2. Is the Other-Acts Evidence Probative?

¶35 The second relevancy consideration is whether the evidence is 

probative; that is, whether the other-acts evidence has the tendency to make a fact 

or proposition of consequence in this action more or less probable than it would be 

without the evidence. Payano, 320 Wis. 2d 348, ¶68. This “is a common sense 

determination based less on legal precedent than life experiences.” Id., ¶70 

(quoting BLINKA, WISCONSIN EVIDENCE, § 404.6 (3d ed.)) (citing State v. Pharr, 

115 Wis. 2d 334, 344, 340 N.W.2d 498 (1983)). Our supreme court instructs that,

 

7

 Whether the State has met its burden on this first relevancy consideration is usually 

reviewed by this court under the erroneous exercise of discretion standard. See State v. Payano, 

2009 WI 86, ¶79, 320 Wis. 2d 348, 768 N.W.2d 832. However, at the only point in its ruling in 

which relevance was mentioned, the circuit court stated: “If there would be any kind of 

corroboration, even with the outside circumstances involving any of these, it would be relevant.” 

However, immediately after stating that the court said: “Relevance is not the issue.” In light of 

the circuit court’s apparently contradictory statements about relevance, and because CoriaGranados does not dispute the State’s position on this first relevancy consideration, we do not 

defer to the circuit court’s decision on this question.
No. 2019AP1989-CR

12

in determining if other-acts evidence is probative, a court is to consider whether

“the other acts are similar, that is, whether they are near ‘in time, place, and 

circumstance[,] to the alleged crime or to the fact or proposition sought to be 

proved.’” State v. Dorsey, 2018 WI 10, ¶49, 379 Wis. 2d 386, 906 N.W.2d 158

(alteration in the original) (quoting Sullivan, 216 Wis. 2d at 786). However, our 

supreme court also instructs that dissimilar events will sometimes be probative. 

See Payano, 320 Wis. 2d 348, ¶70; see also Pharr, 115 Wis. 2d at 346 

(“Relevancy is not determined by resemblance to, but by the connection with, 

other facts.” (quoted source omitted)). In addition, evidence of other acts is 

probative if the evidence “tends to undermine an innocent explanation for an 

accused’s charged criminal conduct.” Sullivan, 216 Wis. 2d at 784. And, as 

discussed, the greater latitude rule applies to the relevancy analysis. See Marinez,

331 Wis. 2d 568, ¶20. 

¶36 For purposes of the second relevancy consideration, Coria-Granados 

does not dispute the probity of the Milwaukee incident, the soccer match incident, 

or the thigh incident. Instead, Coria-Granados’s sole argument regarding this 

stage of the analysis is that the bra incident and the text messages are so dissimilar 

to the charged acts that a jury will consider those acts only for the improper 

purpose of assigning character or propensity evidence against him.

8

 

 

8

 At this second consideration of the relevancy analysis, we usually determine if the 

circuit court has erroneously exercised its discretion in ruling on this point. See, e.g., id., ¶79. 

However, other than the apparently contradictory statements regarding relevance from the circuit 

court mentioned earlier, the circuit court did not make any ruling concerning this portion of the 

analysis, and Coria-Granados concedes as much. If the circuit court fails to articulate its 

reasoning, an appellate court may review the ruling independently to determine whether there is 

any reasonable basis for the circuit court’s discretionary decision. State v. Davidson, 2000 WI 

91, ¶53, 236 Wis. 2d 537, 613 N.W.2d 606. Accordingly we take up Coria-Granados’s request 

that we consider whether a circuit court could reasonably rule in his favor on this question based 

on the facts in the record. 
No. 2019AP1989-CR

13

¶37 The State argues that the text messages are probative because the 

messages sent to M. by Coria-Granados “shed[] light on Coria-Granados’s motive 

for his behavior” and “dispenses with any attempt [Coria-Granados] may make to 

argue that the girls misunderstood his conduct.” The State asserts that the bra 

incident “rightfully” made fifteen-year-old M. “feel uncomfortable” and is 

probative of a “chain of inferences” consequential to this case. 

¶38 Coria-Granados’s probity argument regarding those two acts begins 

with the proposition that the charged acts involved actual or attempted touching of 

intimate parts of each girl either in public or in the living room of a residence. 

Coria-Granados then contends that, in contrast, the bra incident and M.’s receipt of 

the text messages are dissimilar to the charged acts because the bra incident and 

receipt of the text messages happened in private rather than when someone else 

was or might be around as is alleged with the charged acts. Separately, CoriaGranados contends that the two other acts are dissimilar to the charged acts 

because the bra incident and the text messages were only “inappropriately 

sexualized interactions,” and “non-assaultive actions” that even Coria-Granados 

describes as “somewhat creepy.” 

¶39 From each of those premises, Coria-Granados argues that those two 

acts are so dissimilar to the charged acts that the two other acts are not probative 

of a fact or proposition of consequence in this action. 

¶40 We reject Coria-Granados’s argument and conclude that evidence of 

the text messages and the bra incident is probative of a fact or proposition of 

consequence in this action. Those acts show a pattern of sexual behavior by 

Coria-Granados while he is near or in communication with M., and two 

conclusions can be drawn in this context from that fact. First, properly described 
No. 2019AP1989-CR

14

by Coria-Granados as “inappropriately sexualized interactions,” evidence of those 

two acts makes it more probable that there was an absence of mistake on CoriaGranados’s part regarding the charged act of grabbing M.’s bottom. See Sullivan, 

216 Wis. 2d at 784 (stating that evidence of other acts is probative if the evidence 

“tends to undermine an innocent explanation for an accused’s charged criminal 

conduct”). Second, those acts are similar in circumstances to the charged acts and 

have a connection with the charged acts. See Dorsey, 379 Wis. 2d 386, ¶49 

(stating that other acts are probative if near in circumstances to the alleged crime 

or a fact sought to be proved); see also Pharr, 115 Wis. 2d at 346 (stating the 

proposition that other acts are probative if there is a “connection” with other facts 

of consequence to the action). More specifically, in light of Coria-Granados’s 

inappropriately sexualized interactions, including sending sexually explicit text 

messages to the fifteen-year-old M., and the charged acts of attempting to touch 

E.’s vagina and grabbing M.’s bottom, those circumstances are sufficiently similar 

and connected and, therefore, probative. This is so because evidence of those acts 

increases the probability that the State can prove the element that Coria-Granados 

has committed the alleged crimes against E. and M. for the purpose of his own 

sexual gratification. See WIS. STAT. §§ 940.225(3m) and (5)(b), 948.01(5), and 

948.02(1)(e) (2015-16). 

¶41 For those reasons, we conclude that the State has met its burden in 

the second relevancy consideration to show that the other-acts evidence is 

probative of facts or propositions of consequence relating to the two charged 

crimes.
No. 2019AP1989-CR

15

3. Sufficient Evidence of the Other Acts.

¶42 In addition to the two relevancy considerations just discussed, the 

parties agree that, as part of the relevancy analysis, there must be a determination 

that, pursuant WIS. STAT. § 901.04(2), there is sufficient evidence from which a 

jury could find by a preponderance of the evidence that the other acts happened.9 

State v. Gray, 225 Wis. 2d 39, 59, 590 N.W.2d 918 (1999). “[I]mplicit in a 

decision that evidence of the other act is relevant is a determination that a jury 

could reasonably find by a preponderance of the evidence that the defendant 

committed the other act.” State v. Gribble, 2001 WI App 227, ¶40, 248 Wis. 2d 

409, 636 N.W.2d 488. The question is not whether the judge is convinced by a

preponderance of the evidence that the other act happened, and the judge does not 

weigh the evidence. The question is whether a reasonable jury could find by a 

preponderance of the evidence that the act occurred. State v. Ringer, 2010 WI 69, 

¶32, 326 Wis. 2d 351, 785 N.W.2d 448; see, e.g., Gray, 225 Wis. 2d 39, 59-60. 

This is a question of law that this court reviews de novo. Gribble, 248 Wis. 2d 

409, ¶40. 

¶43 The State contends that the circuit court never decided if a jury could 

reasonably find that these five other acts happened. From that, the State argues 

that the circuit court erroneously exercised its discretion by failing to rule on this 

issue. Coria-Granados contends that the circuit court did not as part of this step 

 

9

 WISCONSIN STAT. § 901.04(2) states: “RELEVANCY CONDITIONED ON FACT. When the 

relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it 

upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment 

of the condition.”
No. 2019AP1989-CR

16

conclude that no reasonable jury could find that these incidents happened.10 

Because it helps to frame our analysis of this issue, we now consider pertinent 

statements of the circuit court in order to determine if the circuit court ruled on 

this question. 

¶44 The circuit court, at the beginning of its ruling on the admissibility 

of the other-acts evidence, recognized the three steps in the Sullivan analysis and 

the greater latitude rule. After that, during its discussion of each of the five 

alleged other acts until the end of the circuit court’s ruling, it is not entirely clear 

which step of the Sullivan analysis the circuit court was analyzing. In its ruling, 

the circuit court did not explicitly recognize that the question of whether a jury 

could reasonably find that the other acts occurred is part of step two of the 

Sullivan analysis. Nonetheless, there is a sufficient basis in the record to conclude 

that the circuit court took up this specific question. 

¶45 The circuit court stated, as part of its consideration of each of the 

five purported other acts: “I should just point out that this analysis is much easier 

when one has a conviction, for obvious reasons; there is a clarity of the facts and 

we don’t have any question about whether something happened or did not 

happen.” Later, while discussing the five other acts in the aggregate, the circuit 

court stated: “There is, frankly, simply not enough in any of this to say anything 

more than this possibly happened.” Near the conclusion of its ruling, the circuit 

court stated: “If there would be any kind of corroboration, even with the outside 

circumstances involving any of these, it would be relevant.” However, as noted 

 

10

 Instead, as will be discussed later in this opinion, Coria-Granados contends that the 

determinations of the circuit court discussed in this section concern step three of the Sullivan 

analysis.
No. 2019AP1989-CR

17

earlier, immediately after saying that the circuit court said: “Relevance is not the 

issue.” Admittedly, with that last quoted sentence from the circuit court, one 

could be unsure if the circuit court specifically took up the question of whether a 

jury could reasonably find that the other acts occurred. But, on balance, the record 

shows that the circuit court did rule on this question and concluded that a 

reasonable jury could not find by a preponderance of the evidence that the five 

other acts happened.

¶46 As discussed, whether there is sufficient evidence for a jury to 

reasonably find that any of these five other acts happened is a question of law that 

this court reviews de novo. See id. For context, and because it will also inform 

our discussion at the next step of the Sullivan analysis, we will conduct our 

independent review of this issue based on purported deficiencies in the other-acts 

evidence mentioned by the circuit court.11 

¶47 First, the circuit court concluded that there is no “direct evidence” 

that any of the five other acts occurred. Our supreme court has recognized that 

testimony is “direct evidence.” In State v. Nieves, 2017 WI 69, 376 Wis. 2d 300, 

897 N.W.2d 363, the supreme court stated: “David’s testimony was salient; it was 

detailed, direct evidence of Nieves’ involvement in the crimes for which he was 

convicted.” Id., ¶53 (emphasis added); see also id., ¶58 (“David’s testimony was

powerful; it provided the jury with direct evidence of the crimes for which Nieves 

was convicted.” (emphasis added)). A leading treatise comes to the same 

conclusion: 

 

11

 For purposes of this discussion, we will assume, as have the parties and the circuit 

court, that E., M., or another person will testify before a jury consistent with the proffers of 

evidence from the State in support of its motion to admit the other acts. 
No. 2019AP1989-CR

18

The personal knowledge requirement presents a question of 

conditional relevancy under WIS. STAT. § 901.04(2): could 

a jury acting reasonably find that the witness had personal 

knowledge? The evidence may consist of the witness’s 

own testimony about having personally observed the matter 

or it can be inferred from the surrounding circumstances. 

In short, the requirement is exceedingly modest. A witness 

who asserts that [he or] she “saw” the event is sufficient. 

Lies or innocent mistakes are for the jury to ferret out.

7 DANIEL D. BLINKA, WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE,

§ 602.1 (4th ed. 2017) (footnote omitted).

¶48 As noted, the State will have witnesses testify before the jury 

concerning each purported other act. Therefore, the circuit court erred in 

concluding that there is no direct evidence that the five other acts happened.

12

 

¶49 Second, the circuit court concluded that the other acts did not happen 

because there is no corroboration of the statements of E. and M. about those acts: 

Just one piece of corroboration is all I would be – have 

been looking for. Just corroborate for me that someone 

went to a salon in Milwaukee. Just corroborate for me that 

everyone was at a particular soccer field at a particular 

game. Just corroborate for me that an app even exists on a 

phone. None of this – none of this was done. 

“It’s just more he said/she said.”13

¶50 However, it is not necessary to have the testimony of E. or M.

corroborated in order for the jury to conclude that the other acts occurred. Indeed, 

 

12

 Because there is direct evidence of each of the five other acts, we need not consider 

the circuit court’s conclusion that there is no circumstantial evidence that any of the five events 

occurred. 

13

 For purposes of this part of our analysis, we will assume, without deciding, that there 

is no corroboration of the statements of E. and M. about the purported other acts.
No. 2019AP1989-CR

19

jurors are instructed on this point: “The weight of evidence does not depend on 

the number of witnesses on each side. You may find that the testimony of one 

witness is entitled to greater weight than that of another witness or even of several 

other witnesses.” WIS JI—CRIMINAL 190. Consistent with that, our supreme 

court has stated:

In addition, the crucial element of his testimony, i.e., that 

he did not shoot at defendant as he was leaving the tavern, 

is not corroborated by any of the other state’s witnesses. 

However, the mere fact of numbers is not in and of itself 

sufficient to render the testimony of a witness inherently 

incredible. Looking at Kyles’ testimony alone, it is not 

controverted by any physical evidence or facts of definite 

certainty. It is possible that the incident could have 

occurred just as Kyles said it did.

Banks v. State, 51 Wis. 2d 145, 153, 186 N.W.2d 250 (1971); see also Ruiz v. 

State, 75 Wis. 2d 230, 234, 249 N.W.2d 277 (1977) (“The jury, as the judge of 

credibility, had the right to believe the testimony of Garcia and to disbelieve the 

unanimous testimony of witnesses to the contrary.”).

¶51 Moreover, the Wisconsin Supreme Court has held that the greater 

latitude rule applies to the Sullivan analysis. See State v. Hurley, 2015 WI 35, 

¶59, 361 Wis. 2d 529, 861 N.W.2d 174. Our supreme court has stated that there 

may not be corroboration of allegations of sexual assault against a child. “Child 

sexual assaults are difficult crimes to detect and to prosecute, as typically there are 

no witnesses except the victim and the perpetrator.” Id., ¶33. For those reasons, 

any perceived lack of corroboration about the other-acts evidence is “for the jury 

to ferret out” based on cross-examination and argument. BLINKA, WISCONSIN 

EVIDENCE, §602.1 (4th ed.). Accordingly, the circuit court erred in concluding 

that a reasonable jury could not find that the other acts happened based on a lack 

of corroboration. 
No. 2019AP1989-CR

20

¶52 Third, in support of its conclusion that there is insufficient evidence 

that the five other acts happened, the circuit court relied in part on the facts that, 

for each other act: (1) the police were not contacted at or near the time of the acts; 

(2) there were no charges brought by the State based on those alleged acts of 

Coria-Granados; and (3) Coria-Granados was not convicted of any crimes related 

to the other acts. Each of those facts mentioned by the circuit court is beside the 

point.

¶53 We are aware of no authority, and the parties cite to none, that 

requires a near-contemporaneous report to law enforcement about an alleged other 

act for evidence of that act to be admissible. Indeed, our supreme court has 

recognized that child sexual assaults may not be reported for some time after an

event: “The child may have been threatened, or, as is often the case, may harbor a 

natural reluctance to come forward. These circumstances many times serve to 

deter a child from coming forth immediately.” Hurley, 361 Wis. 2d 529, ¶33 

(internal citation omitted). In addition, the alleged other act need not be a crime or 

lead to a conviction. See Gribble, 248 Wis. 2d 409, ¶40 (“It is not necessary for 

the prior evidence to be in the form of a conviction, and other[-]acts evidence may 

consist of uncharged offenses.”); Gray, 225 Wis. 2d at 59 (“It is not necessary that 

prior-crime evidence be in the form of a conviction; evidence of the incident, 

crime or occurrence is sufficient.” (quoted source omitted)); State v. Johnson, 74 

Wis. 2d 26, 41, 245 N.W.2d 687 (1996) (noting that the other acts need not be 

wrongful or criminal); BLINKA, WISCONSIN EVIDENCE, §404.602 (4th ed.) (“Nor 

must it constitute a ‘bad’ act (although it often is).”). Therefore, the failure to 

promptly report the other acts to police, and that Coria-Granados has not been

charged or convicted of a crime related to those other acts, do not support the 

circuit court’s ruling on this issue.
No. 2019AP1989-CR

21

¶54 Fourth, the circuit court criticized the other-acts evidence proffered 

by the State because of what the circuit court perceived as a lack of investigation. 

The circuit court gave examples of the purported lack of investigation by law 

enforcement and then stated, “And I understand that [the other acts] are not the 

charges, that the investigation centered around the charges. I do understand that. 

But you cannot then ask for admission of the evidence [regarding the five other 

acts] when a full and complete investigation has not been done.” The circuit court 

cited no authority, and neither does Coria-Granados, that there is a requirement of 

a “full and complete investigation” by law enforcement concerning each purported 

other act as a prerequisite to admission of evidence about the other acts and a 

conclusion that a jury could find that the acts happened. Instead, as already noted, 

weaknesses in the evidence are subject to cross-examination and argument to the 

jury.

¶55 It is required only that a jury acting reasonably could find by a 

preponderance of the evidence that the five other acts occurred; a circuit court is 

not required to conclude that a jury must so find. See Gray, 225 Wis. 2d at 59. 

For those reasons discussed, there is sufficient evidence that could allow a 

reasonable jury to find by a preponderance of the evidence that each of the five 

other acts happened, and the circuit court erred in concluding otherwise.

¶56 Therefore, the State has satisfied the second step of the Sullivan

analysis regarding the admissibility of the other-acts evidence.

E. Step Three - Probative Value is Not Outweighed by Jury 

Confusion or Unfair Prejudice.

¶57 The burden is on Coria-Granados at the third step in the Sullivan

analysis. See Marinez, 331 Wis. 2d 568, ¶19. The inquiry is whether the party 
No. 2019AP1989-CR

22

opposing the introduction of the evidence, here, Coria-Granados, demonstrates 

that the probative value of the other-acts evidence is substantially outweighed by 

one or more reasons stated in WIS. STAT. § 904.03.14 Sullivan, 216 Wis. 2d at 

773; Payano, 320 Wis. 2d 348, ¶80. “The term ‘substantially’ indicates that if the 

probative value of the evidence is close or equal to its unfair prejudicial effect, the 

evidence must be admitted.” Payano, 320 Wis. 2d 348, ¶80 (quoting State v.

Speer, 176 Wis. 2d 1101, 1115, 501 N.W.2d 429 (1993)). In other words, “[t]he 

bias is [] squarely on the side of admissibility.” Dorsey, 379 Wis. 2d 386, ¶54

(alterations in the original) (quoting Marinez, 331 Wis. 2d 568, ¶41).

¶58 In addition, the greater latitude rule applies to this step of the 

analysis. See id. at ¶¶26, 33; Marinez, 331 Wis. 2d 568, ¶16. 

[This] more liberal standard applies in child sexual assault 

cases because of “the difficulty sexually abused children 

experience in testifying, and the difficulty prosecutors have 

in obtaining admissible evidence in such cases.” Another 

reason for this rule, which is particularly relevant in this 

case, “is the need to corroborate the victim’s testimony 

against credibility challenges.” 

Marinez, 331 Wis. 2d 568, ¶20 n.15 (internal citation omitted) (quoting Davidson, 

236 Wis. 2d 537, ¶¶40, 42).

¶59 We review the circuit court’s decision on the third step of the 

Sullivan analysis for an erroneous exercise of discretion. Id., ¶17. It is an 

erroneous exercise of discretion if the circuit court fails to delineate facts that 

influence its decision on the admissibility of the evidence. Payano, 320 Wis. 2d 

 

14

 WISCONSIN STAT. § 904.03 states: “Although relevant, evidence may be excluded if 

its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless 

presentation of cumulative evidence.”
No. 2019AP1989-CR

23

348, ¶¶41, 51. However, if the circuit court fails to articulate its reasoning, this 

court may review the ruling independently to determine whether there is any 

reasonable basis for the circuit court’s discretionary decision. Davidson, 236 Wis. 

2d 537, ¶53. It is also an erroneous exercise of the circuit court’s discretion if the 

facts of record fail to support the circuit court’s decision on the admission of 

evidence. Payano, 320 Wis. 2d 348, ¶51.

¶60 Coria-Granados argues that the probative value of the other-acts 

evidence is substantially outweighed by the danger of confusion of the issues for 

the jury, and the danger of unfair prejudice. We will address each of CoriaGranados’s arguments in turn, but we begin our discussion of step three of the 

Sullivan analysis by considering the meaning of the phrase “probative value.” We 

do so to correct misstatements about the meaning of that term in Coria-Granados’s 

briefing in this court. 

1. Probative Value.

¶61 Concerning the third step of the Sullivan analysis, our supreme court 

has held that “probative value” has the following meaning: 

Essentially, probative value reflects the evidence’s degree 

of relevance. Evidence that is highly relevant has great 

probative value, whereas evidence that is only slightly 

relevant has low probative value. See [BLINKA, WISCONSIN 

EVIDENCE, § 404.6 (3d ed.)] (“The more attenuated its 

relevancy, the lower its probative value....”). The main 

consideration in assessing probative value of other[-]acts 

evidence “is the extent to which the proffered proposition is 

in substantial dispute”; in other words, “how badly needed 

is the other act evidence?” Id.

Id., ¶81. Consistent with that, our supreme court has stated:

The other[-]acts evidence was properly admitted in Pharr

because the evidence was necessary to the prosecution’s 
No. 2019AP1989-CR

24

theory of the case, and it provided an alternative 

explanation to the defendant’s claimed innocence. Because 

the other[-]acts evidence was so important to the resolution 

of the case, the court could not say that its probative value 

was substantially outweighed by its danger of unfair 

prejudice. 

Id., ¶85 (internal citations omitted). 

¶62 Contrary to those statements from the supreme court, CoriaGranados attempts to insert a consideration of the strength of the other-acts 

evidence, as opposed to the importance of that evidence, into this third step. More 

specifically, Coria-Granados argues that, within the third step of the Sullivan

analysis, evidence that is “weakly supported” and “lacking in corroboration” has

“low” probative value. Coria-Granados cites only Davidson, 236 Wis. 2d 537, 

¶77, for that proposition. There, the supreme court briefly noted that, when otheracts evidence is based on a criminal conviction for that act, the “high degree of 

reliability of the evidence ... increased its probative value.” Id. From that 

sentence, Coria-Granados then attempts a significant leap and contends that the 

supreme court in Davidson “implicitly” held that, when other-acts evidence is 

“unreliable,” the “probative value of the other act is correspondingly decreased.” 

We reject Coria-Granados’s contention for the following reasons. 

¶63 The observation in Davidson that other-acts evidence based on a 

criminal conviction might be more reliable than an allegation by a witness does 

not “implicitly” create a wholesale re-definition of the meaning of the phrase 

“probative value” for purposes of this step of the Sullivan analysis as CoriaGranados argues. Coria-Granados’s argument regarding the meaning of 

“probative value” is directly contradicted by the supreme court’s holdings already 

noted. See, e.g., Payano, 320 Wis. 2d 348, ¶81 (“Evidence that is highly relevant 

has great probative value, whereas evidence that is only slightly relevant has low 
No. 2019AP1989-CR

25

probative value.”). There is nothing in Davidson, or any other authority, which 

leads us to the conclusion that our supreme court has done away with its definition 

of “probative value” in this context and replaced it with a definition that requires a 

discussion of the strength of the other-acts evidence.

¶64 The question of whether a reasonable jury could find by a 

preponderance of the evidence that the other act happened is part of step two of 

the Sullivan analysis and separate from whether the events have “probative value” 

as considered in step three. The probative value, as discussed in this third step, 

does not take up the strength of the other-acts evidence and whether a jury could 

reasonably give weight to that evidence. The question of “probative value” in step

three of the Sullivan analysis presents an inquiry different than the WIS. STAT.

§ 901.04(2) question of whether there is sufficient evidence to allow the jury to 

hear the other-acts evidence, and it places different demands on the facts and the 

analysis. In step three, “probative value” is gauged based on the importance of the 

evidence to the State’s case. See, e.g., Payano, 320 Wis. 2d 348, ¶96 

(“Consequently, because the other[-]acts evidence was absolutely essential to the 

State’s case, its probative value was compelling.”). Coria-Granados attempts to 

alter the analysis of step three away from the reason to admit the other-acts 

evidence and its importance to the State’s case to yet another step that weighs the

strength of the evidence. Coria-Granados’s argument fails in light of clear 

pronouncements from our supreme court.15

 

15

 In addition to those reasons to reject Coria-Granados’s argument, we observe that 

there is nothing in the circuit court’s ruling to show that the circuit court accepted CoriaGranados’s view that the “probative value” of other-acts evidence as delineated in step three 

means that there is a sliding scale of strength of that evidence. Instead, as already discussed, the 

circuit court considered, as part of step two regarding relevancy, whether a reasonable jury could 

find that the other acts happened.

(continued)
No. 2019AP1989-CR

26

¶65 With the applicable definition of “probative value” confirmed, we 

next discuss whether the probative value of the other-acts evidence is, as CoriaGranados argues, substantially outweighed by the danger of jury confusion or 

unfair prejudice. For context, we note that the State contends that the other-acts 

evidence has probative value because such evidence helps to establish that: (1) the 

charged acts of Coria-Granados were not mistakes; and (2) the charged acts were 

done for “sexual purposes.” In addition, according to the State, the other-acts 

evidence helps to bolster the credibility of E. and M. because the other acts make

it less likely that they invented or misunderstood Coria-Granados’s behavior. 

2. Jury Confusion.

¶66 The circuit court mentioned potential jury confusion because of the 

introduction of the other-acts evidence at only one point in its decision. We 

italicize the pertinent words in the following sentence: “It’s just more he said/she 

said, and it will, aside from the fact that it will completely confuse the jury as to 

what it is that they have to decide, which act is at issue in the trial, there is no 

way, given the lack of evidence, that the defense can even take any steps toward 

figuring out a defense.” (Emphasis added.) From those words in one sentence, 

Coria-Granados argues as follows in support of the circuit court’s ruling, and we 

reject each of Coria-Granados’s arguments. 

 

Further, if we would conclude that “probative value” in step three of the Sullivan

analysis concerns the strength of that evidence (and we do not come to that conclusion), we 

would reject Coria-Granados’s contention that the other-acts evidence has “low” probative value. 

Coria-Granados’s arguments on that point are identical to the determinations of the circuit court 

regarding whether a reasonable jury could find by a preponderance of the evidence that the other 

acts happened. As noted, we have already rejected those determinations of the circuit court.
No. 2019AP1989-CR

27

¶67 First, Coria-Granados contends that the circuit court weighed the 

danger of jury confusion against the probative value of the other-acts evidence. 

We reject that contention because the record does not show that the circuit court 

weighed potential jury confusion against the probative value of the other-acts 

evidence. 

¶68 Second, Coria-Granados asserts that the circuit court concluded that 

there would be jury confusion because the introduction of other-acts evidence in 

this case would cause there to be “five mini-trials.” However, that was not a basis 

for the circuit court’s decision. While the circuit court was concerned about jury 

confusion, the record does not show that the circuit court had concerns about the 

amount of evidence regarding the alleged other acts such that there would be 

multiple trials going on at the same time before the jury. 

¶69 Third, Coria-Granados argues that there is “the potential” for jury 

confusion because the other acts involve the purported victims of the charged 

offenses, and the other acts happened at about the same time as the charged 

offenses. But, after stating that proposition, Coria-Granados gives no reasoning to 

support his argument. We need not consider contentions unsupported by 

reasoning. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. 

App. 1992). In addition, the mere fact that the other acts involve the purported 

victims of the charged offenses cannot, by itself, be a basis to exclude the evidence 

because of potential jury confusion. If that were the case, other-acts evidence

involving victims of the charged offenses would be excluded as a matter of law, 

and Coria-Granados gives us no reason to conclude that is the law in Wisconsin.

¶70 Fourth, the record does not support Coria-Granados’s contention that 

there would be jury confusion if the other-acts evidence is admitted. The bra 
No. 2019AP1989-CR

28

incident and the text messages from Coria-Granados to M. are different than the 

events alleged in the two charges against Coria-Granados, and testimony about 

those distinct events is unlikely to confuse a typical juror. The Milwaukee 

incident in which E. was in a car alone with Coria-Granados when he allegedly 

grabbed her breast and exposed his penis is factually different from the charged 

offense regarding E. which allegedly took place at a residence where CoriaGranados attempted to put his hand in E.’s vagina. The same is true with the thigh 

incident concerning M. as compared to the charged offense in which M. is the 

alleged victim. The soccer match incident in which Coria-Granados allegedly 

touched M.’s bottom is, as conceded by the State, “strikingly similar to the 

charged offense” regarding M. But, in short, none of the alleged other acts are so 

similar to the charges, or in such large numbers, that a typical juror cannot 

understand the difference between the charged acts and the other-acts evidence. 

¶71 Importantly, if there is risk of confusion by the jury because of the 

introduction of other-acts evidence, there are processes available to the circuit 

court to mitigate that risk. The circuit court can give a jury instruction 

emphasizing that the other-acts evidence is used for a specific purpose and is 

separate from the charges against Coria-Granados. See State v. Shillcutt, 116 Wis. 

2d 227, 238, 341 N.W.2d 716 (Ct. App. 1993) (“[T]he cautionary instruction read 

to the jury prior to introduction of [other acts] testimony sufficiently tempered the 

prejudicial effect of this evidence so as to allow its admissibility. If an admonitory 

instruction is properly given by the court, prejudice to a defendant is presumed 

erased from the jury’s mind.”); see also WIS. STAT. § 901.06 (“When evidence 

which is admissible ... for one purpose but not admissible ... for another purpose 

is admitted, the judge, upon request, shall restrict the evidence to its proper scope 

and instruct the jury accordingly.”). The circuit court can limit potential jury 
No. 2019AP1989-CR

29

confusion by streamlining testimony. See Payano, 320 Wis. 2d 348, ¶99 

(referring to that process as “editing the evidence” (quoted source omitted)); 

BLINKA, WISCONSIN EVIDENCE, § 404.604 (3d ed.) (“The pruning of proof may 

take the form of limiting the number of witnesses and restricting their testimony 

by excluding inflammatory or extraneous details.”). Finally, the circuit court may 

mitigate potential risk of jury confusion by restricting argument regarding the 

other-acts evidence to its proper purpose. Payano, 320 Wis. 2d 348, ¶¶99, 101. 

¶72 For those reasons, Coria-Granados has not met his burden to 

establish that the danger of jury confusion of the issues is substantially outweighed 

by the probative value of the other-acts evidence and, as a result, the circuit court 

erroneously exercised its discretion in ruling that introduction of the other-acts 

evidence is barred on that basis.

3. Probative Value and Unfair Prejudice.

¶73 Coria-Granados argues that we should affirm the circuit court’s 

ruling that unfair prejudice substantially outweighs the probative value of the 

other-acts evidence. We disagree. 

¶74 In the context of the third step of the Sullivan analysis, our supreme 

court has stated: “The determination of unfair prejudice must be made with great 

care because ‘[n]early all evidence operates to the prejudice of the party against 

whom it is offered.... The test is whether the resulting prejudice of relevant 

evidence is fair or unfair.’” Id., ¶88 (alteration in the original) (quoted source 

omitted). In Sullivan, the supreme court defined unfair prejudice as follows: 

Unfair prejudice results when the proffered 

evidence has a tendency to influence the outcome by 

improper means or if it appeals to the jury’s sympathies, 

arouses its sense of horror, provokes its instinct to punish 
No. 2019AP1989-CR

30

or otherwise causes a jury to base its decision on something 

other than the established propositions in the case.

Sullivan, 216 Wis. 2d at 789-90. Put another way, unfair prejudice in the context 

of this step of the Sullivan analysis is that the jury will draw improper propensity 

inference against the defendant. See State v. Fishnick, 127 Wis. 2d 247, 261-62, 

378 N.W.2d 272 (1985) (stating that the danger of unfair prejudice when using 

other-acts evidence “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”).

¶75 Coria-Granados argues that the circuit court concluded that there is

unfair prejudice “because the vagueness of the evidence of the other acts renders it 

difficult to impossible for the defense to contradict said allegations.” 

¶76 We now consider whether the circuit court came to that conclusion 

and highlight pertinent portions of the circuit court’s ruling. After discussing what 

it considered to be weaknesses in the other-acts evidence, the circuit court stated: 

It’s just more he said/she said, and it will, aside from the 

fact that it will completely confuse the jury as to what it is 

that they have to decide, which act is at issue in the trial, 

there is no way, given the lack of evidence, that the defense 

can even take any steps toward figuring out a defense.

(Emphasis added.)

¶77 The circuit court later stated: 

The prejudice, unfair prejudice, far outweighs the 

probative value in this case. If there would be any kind of 

corroboration, even with the outside circumstances 

involving any of these, it would be relevant. Relevance is 

not the issue. Why they would be admitted, purpose, is not 

an issue. It’s just the vagaries around these are too great 

to put the defense in a position of defending not only the 

charges, but these additional allegations.
No. 2019AP1989-CR

31

(Emphasis added.) The basis for the circuit court’s conclusion that there would be 

“unfair prejudice” if the other-acts evidence is admitted is not entirely clear. But

we will assume, as Coria-Granados argues, that the circuit court equated “unfair 

prejudice” with Coria-Granados’s possible difficulty in defending against the 

other-acts evidence.

¶78 We reject Coria-Granados’s argument that there is unfair prejudice 

on that basis for three reasons.

¶79 First, Coria-Granados gives us no valid reason to define “unfair 

prejudice” in that manner and gives us no authority that defines “unfair prejudice” 

as a possible difficulty of a defendant to rebut other-acts evidence. Second, an 

explicit premise of Coria-Granados’s argument is that the other-acts evidence is 

weak. We have already discussed why the circuit court erred in concluding that 

there was a “lack of evidence” and “vagaries around” the other-acts evidence, and 

we do not repeat that discussion here. Suffice it to say that any argument about 

unfair prejudice that includes weakness of the evidence of the five other acts fails 

because any such weakness may be tested at trial by cross-examination and 

argument to the jury rather than exclusion of the evidence. Third, Coria-Granados 

never explains to this court how his defense against the other-acts evidence has 

been made difficult in this context. Instead, Coria-Granados simply states that

conclusion without any reasoning, and we reject his argument on that basis. See

Pettit, 171 Wis. 2d at 646-47.

¶80 Therefore, we reject Coria-Granados’s argument that there is unfair 

prejudice based on purported difficulty for him to defend against the other-acts 

evidence. 
No. 2019AP1989-CR

32

¶81 Finally, Coria-Granados relies on an assertion that he concedes was 

not part of the circuit court ruling and asks this court to affirm the circuit court’s 

decision for this reason. More particularly, he argues that the other-acts evidence

will “improperly influence” the jury to believe he is a person of “bad character,” 

and the jury may convict him on that basis rather than based on evidence about the 

charged offenses. This concern comes within the definition of “unfair prejudice” 

discussed above. However, we conclude that this concern about unfair prejudice 

does not substantially outweigh the probative value of the other-acts evidence. 

The State asserts that there is probative value to the other-acts evidence because it 

helps establish that the charged acts against Coria-Granados were not a mistake on 

his part and that the charged acts were done by Coria-Granados for his own sexual 

gratification, and the other-acts evidence helps to bolster the credibility of E. and 

M. Those are all important facets of the State’s case and reasonably necessary for 

the presentation of the prosecution’s case. “[A] witness’s credibility is always 

‘consequential’ within the meaning of WIS. STAT. § 904.01.” Dorsey, 379 Wis. 2d 

386, ¶50 (quoting Marinez, 331 Wis. 2d 568, ¶34). “[C]redibility is particularly 

probative in cases that come down to he-said-she-said.” Id. In addition, the 

greater latitude rule applies at this third step of the Sullivan analysis and, as such, 

we must consider the difficulty of prosecuting child sexual assault cases and the 

importance of corroborating victims’ testimony against credibility challenges. 

Finally, while there is a risk that must be mitigated, the tools available to a circuit 

court in giving a limiting instruction, streamlining evidence, and limiting argument 

(as we discussed above regarding mitigation of jury confusion) are sufficient to 

appropriately lessen that risk. See Marinez, 331 Wis. 2d 568, ¶41. In light of 

those factors, and our supreme court’s admonition that “if the probative value of 

the evidence is close or equal to its unfair prejudicial effect, the evidence must be 

admitted,” Payano, 320 Wis. 2d 348, ¶80 (emphasis omitted) (quoted source 
No. 2019AP1989-CR

33

omitted), the other-acts evidence is admissible even when balanced against the risk 

that the jury may use such evidence to find that Coria-Granados has committed the 

charged offenses. 

¶82 For those reasons, Coria-Granados has failed to meet his burden to 

establish that the probative value of the other-acts evidence is substantially 

outweighed by the danger of either jury confusion or unfair prejudice and, as a 

result, the circuit court erroneously exercised its discretion in barring the otheracts evidence on those bases.

¶83 In sum, we conclude that the other-acts evidence is admissible under 

the three steps of the Sullivan analysis.16 

II. Request to Admit E.’s Recorded Audiovisual Statement.

¶84 The State raises two purported errors of the circuit court concerning 

the State’s request to admit E.’s recorded audiovisual statement pursuant to WIS.

STAT. § 908.08(4). Those issues are: (1) Did the circuit court commit an error of 

law in rejecting the State’s request to admit the recorded statement; and (2) Were

the circuit court’s findings of fact, and the circuit court’s weighing of the facts and 

statutory factors, an erroneous exercise of discretion? For the following reasons, 

we reject the State’s arguments.

 

16

 We emphasize that our decision on the admissibility of the other-acts evidence is 

based on the state of the record at this time. The circuit court’s discretion regarding the 

admissibility of the other-acts evidence on remand is not constrained by this opinion based on 

material facts not currently in the record that may come to light after this matter is returned to the 

circuit court.
No. 2019AP1989-CR

34

A. Standard of Review and Governing Principles.

¶85 Whether a recorded statement of a child between the ages of twelve

and sixteen17 is admissible under WIS. STAT. § 908.08(4) is a decision committed 

to the sound discretion of the circuit court. See State v. Tarantino, 157 Wis. 2d 

199, 210-11, 458 N.W.2d 582 (Ct. App. 1990); see also § 908.08(3)(a)1. and 2. 

The circuit court’s findings of fact will not be overturned unless those findings are 

clearly erroneous. Tarantino, 157 Wis. 2d at 211. As with all discretionary 

decisions, the circuit court’s ruling will be upheld on appeal so long as the circuit 

court examined the relevant facts of record, applied a correct standard of law, and 

came to a conclusion that a reasonable judge could reach. See State v. 

Wiskerchen, 2019 WI 1, ¶18, 385 Wis. 2d 120, 921 N.W.2d 730.

¶86 The State’s arguments require us to interpret statutes. Questions of 

statutory interpretation are questions of law this court reviews de novo. State v. 

Stewart, 2018 WI App 41, ¶18, 383 Wis. 2d 546, 916 N.W.2d 188; see also State 

v. Mercado, 2021 WI 2, ¶43, ___ Wis. 2d ___, ___ N.W.2d ___ (“Statutory 

interpretation begins with the language of the statute.”); State ex rel. Kalal v. 

Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110

(explaining that if the plain language is clear, we stop the inquiry).

¶87 In order to determine whether the audiovisual recording of E.’s 

statement should “in the interests of justice” be admitted in evidence, the circuit 

court was required to consider the factors in WIS. STAT. § 908.08(4), which state: 

 

17

 The parties do not dispute that E. was eleven years old when the statement was 

recorded, was thirteen years old when the State sought to admit the statement, and is not yet 

sixteen years old.
No. 2019AP1989-CR

35

In determining whether the interests of justice 

warrant the admission of an audiovisual recording of a 

statement of a child who is at least 12 years of age but 

younger than 16 years of age, among the factors which the 

court or hearing examiner may consider are any of the 

following:

(a) The child’s chronological age, level of 

development and capacity to comprehend the significance 

of the events and to verbalize about them.

(b) The child’s general physical and mental health.

(c) Whether the events about which the child’s 

statement is made constituted criminal or antisocial conduct 

against the child or a person with whom the child had a 

close emotional relationship and, if the conduct constituted 

a battery or a sexual assault, its duration and the extent of 

physical or emotional injury thereby caused.

(d) The child’s custodial situation and the attitude 

of other household members to the events about which the 

child’s statement is made and to the underlying proceeding.

(e) The child’s familial or emotional relationship to 

those involved in the underlying proceeding.

(f) The child’s behavior at or reaction to previous 

interviews concerning the events involved.

(g) Whether the child blames himself or herself for 

the events involved or has ever been told by any person not 

to disclose them; whether the child’s prior reports to 

associates or authorities of the events have been disbelieved 

or not acted upon; and the child’s subjective belief 

regarding what consequences to himself or herself, or 

persons with whom the child has a close emotional 

relationship, will ensue from providing testimony.

(h) Whether the child manifests or has manifested 

symptoms associated with posttraumatic stress disorder or 

other mental disorders, including, without limitation, 

reexperiencing the events, fear of their repetition, 

withdrawal, regression, guilt, anxiety, stress, nightmares, 

enuresis, lack of self-esteem, mood changes, compulsive 

behaviors, school problems, delinquent or antisocial 

behavior, phobias or changes in interpersonal relationships.

(i) Whether admission of the recording would 

reduce the mental or emotional strain of testifying or 
No. 2019AP1989-CR

36

reduce the number of times the child will be required to 

testify.

B. The Circuit Court Did Not Commit an Error of Law.

¶88 The State argues that, in ruling on the admissibility of E.’s recorded 

audiovisual statement, the circuit court committed two errors of law. We now 

address each purported error.

¶89 In ruling on the State’s motion to admit the recording, the circuit 

court stated: “First, the child’s chronological age is 13, so she is between ages 12 

and 16, which means that the presumption is that the audiovisual recording does 

not come in. [In order to admit the statement of E.,] [t]he court must find that it is 

in the interest of justice to let it in.” The State argues that the circuit court’s use of 

the term “presumption” is an error of law that requires reversal of the circuit 

court’s decision. We disagree.

¶90 The circuit court’s use of the term “presumption” in this context may 

have been less than exact in that there is no “presumption” specifically stated in 

WIS. STAT. § 908.08, and there is no “presumption” recognized in WIS. STAT.

ch. 891 or ch. 903 that relates to the circuit court’s decision about the admissibility 

of the recorded statement. However, the use of the word “presumption” by the 

circuit court does not lead to the conclusion that the circuit court misunderstood 

how § 908.08(4) is applied in these circumstances. 

¶91 Neither party questions that E.’s recorded audiovisual statement is 

“hearsay.” See WIS. STAT. § 908.01(3) and (4) (defining hearsay statement); see

also Mercado, 2021 WI 2, ¶40 (“As an out-of-court statement, a child’s statement 

during a forensic interview is hearsay if it is offered at trial for the truth of the 

matter asserted.”). Pursuant to WIS. STAT. § 908.02, hearsay is not admissible 
No. 2019AP1989-CR

37

except as provided by the rules of evidence or by statute. See also Mercado, 2021 

WI 2, ¶40 (“However, ‘an out-of-court statement, even though hearsay, may be 

admissible if it fits within a recognized exception to the hearsay rule.’” (quoting 

Virgil v. State, 84 Wis. 2d 166, 185, 267 N.W.2d 852 (1978)). WISCONSIN STAT.

§ 908.08(3) provides in relevant part that “[t]he court ... shall admit the recording 

upon finding all of the following: ... [t]hat the trial or hearing in which the 

recording is offered will commence ... [b]efore the child’s 16th birthday and the 

interests of justice warrant its admission under sub. (4).” Sec. 908.08(3)(a)2.

(emphasis added); see also Mercado, 2021 WI 2, ¶41 (“Video-recordings of a 

child’s statements are admissible if the child is available to testify and the child’s 

statements fall into one of the provisions of []§ 908.08.”). For those reasons, and 

regardless of the use of the term “presumption,” the circuit court’s analysis was 

correct in that the recorded statement is not admissible in evidence unless and until 

the circuit court determines that the provisions of § 908.08(4) have been satisfied. 

As a result, the circuit court did not commit an error of law in making that 

determination.

¶92 Next, in a non-specific manner, the State argues that the circuit court 

committed an error of law in weighing the factors set forth in WIS. STAT.

§ 908.08(4) because the circuit court failed to heed this court’s statement in State 

v. Snider, 2003 WI App 172, 266 Wis. 2d 830, 668 N.W.2d 784: “The 

legislature’s purpose in enacting [] § 908.08 was to make it easier, not harder, to 

employ videotaped statements of children in criminal trials and related hearings.” 

Id., ¶13. That statement in Snider is correct regarding the purpose of the 

legislature in enacting § 908.08(4). However, that generalized statement about 

legislative purpose does not answer the question of whether the factors delineated 

in § 908.08(4) have been satisfied in this particular case regarding the 
No. 2019AP1989-CR

38

admissibility of E.’s recorded audiovisual statement. That question is answered by 

our review of the circuit court’s findings of fact and its weighing of the statutory 

factors. Accordingly, while mindful of the legislature’s purpose in enacting 

§ 908.08, we reject the State’s argument on that point and next consider whether 

the circuit court erroneously exercised its discretion in ruling on the admissibility 

of E.’s recorded audiovisual statement.

C. The Circuit Court Did Not Erroneously Exercise its Discretion.

¶93 In arguing that the circuit court erroneously exercised its discretion, 

the State asks us to make findings of fact and weigh the factors listed in WIS.

STAT. § 908.08(4). As the basis for this request, Coria-Granados relies on State v. 

Jimmie R.R., 2000 WI App 5, ¶39, 232 Wis. 2d 138, 606 N.W.2d 196, for the

proposition that, when the only evidence in question is a video tape, an appellate 

court is “in as good a position as” a circuit court to make findings of fact about the 

video. We decline the State’s invitation for two reasons. First, our supreme court 

has observed that, whether findings of fact drawn from a video recording must be 

made by the circuit court (and deferred to by appellate courts), or whether such 

findings of fact drawn from a video can be made by an appellate court without 

deference to the circuit court’s findings, is an open question that the supreme court 

has declined to answer to date. See State v. Reed, 2018 WI 109, ¶51 n.22, 384 

Wis. 2d 469, 920 N.W.2d 56. More importantly, and as correctly pointed out by 

Coria-Granados, there is no authority that allows this court to weigh statutory 

factors in these circumstances as the circuit court was required to do pursuant to 

§ 908.08(4).

¶94 The State’s arguments are fairly summarized as contentions about 

findings the circuit court could have, but did not, make, and how the court could 
No. 2019AP1989-CR

39

have, but did not, weigh the statutory factors. It is not necessary to summarize the 

parties’ arguments and the circuit court’s findings and conclusions here. Rather, it 

is sufficient to state that we conclude from our review of the circuit court’s ruling 

that the circuit court was aware of the applicable statutory factors, carefully 

balanced those factors based on findings of fact properly drawn from the 

audiovisual recording of E.’s statement, and reached a reasonable conclusion. 

That the circuit court could have ruled otherwise is not the question before us. 

Rather, after reviewing the circuit court’s ruling and the arguments of the parties, 

we conclude that the circuit court’s decision must be affirmed because the court 

examined the relevant facts, applied the proper legal standards, and came to a 

decision a reasonable judge could reach. See Wiskerchen, 385 Wis. 2d 120, ¶18.

¶95 In sum, we reject the State’s arguments that the circuit court made an 

error of law, or erroneously exercised its discretion, in denying the State’s request 

to admit the audiovisual recording of E.’s statement.

CONCLUSION

¶96 For those reasons, we reverse in part, and affirm in part, the circuit 

court’s order and remand this matter for further proceedings consistent with this 

opinion.

By the Court.—Order affirmed in part; reversed in part and cause 

remanded for further proceedings.

Not recommended for publication in the official reports.