STATE OF WISCONSIN

: CIRCUIT COURT :

PEPIN COUNTY

STATE OF WISCONSIN, Case No. 11 CF 25 Plaintiff, -andBRADLEY KUEHN, Defendant. MOTION TO ADMIT OTHER ACTS EVIDENCE

TO:

John D. Seifert Pepin County Courthouse 315 2nd Ave W. PO Box 206 Durand WI 54736-0206

NOW COMES BRADLEY KUEHN (hereinafter, "Movant"), through his undersigned counsel in the above captioned matter, and respectfully moves the court as follows: A. OTHER ACTS EVIDENCE THE DEFENDANT SEEKS TO INTRODUCE AND PURPOSE 1. This motion is based on the affidavit of Bradley Kuehn and the affidavit of Sami Kuehn, which are on file herein. 2. The defendant seeks to introduce evidence of the following, which are supported by the aforementioned affidavits, pursuant to 904.4, 906.07 & 906.08 . 3. The affidavits and video and audio that the defendant seeks to introduce shows that the alleged victim in this matter, Scott Kircher, had a history of antagonizing the defendant and his wife, Sammi Cook-Kuehn. The evidence and testimony will be that Mr. Kircher was the initial aggressor. The evidence the defendant seeks to introduce will show that Mr. Kircher bore and continues to bear a grudge against both the defendant and his wife.

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The evidence will further show that the harassment and intimidation by Mr. Kircher started after Sammi Cook-Kuehn testified against Mr. Kirchers daughter, Eden Matchey. In the video evidence Mr. Kircher calls Mr. Kuehn a snitch and other derogatory names. The evidence will show that Mr. Kircher was charged criminally after shooting off a gun as a felon in possession of a firearm, an event that was reported by the Kuehns. 4. The evidence that the defendant seeks to introduce will be offered to show Mr. Kirchers bias against both the defendant and his wife, and that this bias was strongly felt and acted upon by Mr. Kircher. It therefore directly impacts on the alleged victims credibility. The proposed evidence also bears on motive and opportunity. The evidence set forth in the affidavit and exhibits attached thereto shows that Mr. Kircher would have motive to lie and to get the Kuehns in trouble, essentially as payback for getting him in trouble and for Sammi having pointed the finger at his daughter in her prior criminal trial. 5. The evidence that the defendant seeks to introduce also establishes context. This case involves an alleged physical confrontation between Mr. Kuehn and Mr. Kircher. There is videotaped evidence in this matter that will be presented at trail, and even the question of why the individuals are being videotaped in the first place should be placed in context by the evidence. The evidence is needed to show the strong animosity that Mr. Kircher bore for Sammi and the defendant. It shows the alleged victims state of mind as it shows the anger and hostility that Mr. Kircher showed toward the Kuehns not only on the date of the alleged incident but on prior occasions. B. LEGAL ANALYSIS 6. In, State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the Wisconsin Supreme Court created a three-pronged analysis that the trial court must conduct in deciding whether to
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admit other acts evidence. The analysis is as follows: (1) Is the evidence offered for some permissible purpose under Sec. 904.04(2), Wis. Stats. (proof of intent, plan, motive, etc.)? ; (2) Is the proffered evidence relevant?; and, if so, (3) Does the unfair prejudice of admitting the evidence outweigh its probative value? 7. The party seeking to admit the other-acts evidence bears the burden of establishing that the first two prongs are met by a preponderance of the evidence. State v. Payano, 2009 WI 86, 63, 68 n.14, 320 Wis. 2d 348, 768 N.W.2d 832; State v. Hunt, 263 Wis. 2d 1, 53. Once the proponent of the other-acts evidence establishes the first two prongs of the test, the burden shifts to the party opposing the admission of the other-acts evidence to show that the probative value of the evidence is substantially outweighed by the risk or danger of unfair prejudice. State v. Hunt, 263 Wis. 2d 1, 53; Payano, 320 Wis. 2d 348, 80 . 8. Other-acts evidence is admissible for the purpose of establishing context. Other-acts evidence is permissible to show the context of the crime and to provide a complete explanation of the case. Hunt, at 58. (citing State v. Pharr, 115 Wis.2d at 348-49 and State v, Shillcutt, 116 Wis.2d at 236). Other-acts evidence is permissible to show the victims' state of mind, to corroborate information provided to the police, and to establish the credibility of victims and witnesses in light of their recantations. Such purposes have been held to be permissible purposes in Wisconsin. Id, at 59(referring to State v. C.V.C., 153 Wis.2d 145, 450 N.W.2d 463 (Ct.App. 1989)). 9. All of the evidence that the defendant proposes to introduce is for a legitimate purpose and neither to show the character of the alleged victim nor to show that he acted in conformity therewith.

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10. Finally, the government in this case has, by prior questioning, has implied that it considers other acts evidence of the sort that the defendant seeks to introduce here as relevant. At the preliminary hearing in this matter, Deputy Kevin Glander was asked about having dealt a number of times with neighbor disputes between Mr. Kircher and Mr. Kuehn, and responded that he had, and was aware of other shouting and swearing matches. (Preliminary hearing transcript, p. 6, lines 19-25, p. 7, line 1). Wherefore, the defendant respectfully requests that the Court allow other acts evidence as set forth above. Dated this 25 day of May, 2012 at Eau Claire, Wisconsin

Post Office Address PO. Box 1111 Eau Claire, WI 54702-1111 Ph. 715.830.9982

By:

__________________________ Attorney George E. Miller State Bar ID no. 1024926 Counsel for the Defendant

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