State v. Alsteen

• Decision Date: 05 October 1982
• Docket Number: No. 81-345-CR,81-345-CR
• Citation: 108 Wis.2d 723,324 N.W.2d 426
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. James ALSTEEN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 426

324 N.W.2d 426

108 Wis.2d 723

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. James ALSTEEN, Defendant-Appellant.

No. 81-345-CR.

Supreme Court of Wisconsin.

Argued Sept. 9, 1982.

Decided Oct. 5, 1982.

Kirbie Knutson, Asst. Atty. Gen., for plaintiff-petitioner; Bronson C. La Follette, Atty. Gen., on brief.

Steven D. Phillips, Asst. State Public Defender, for defendant-appellant.

CALLOW, Justice.

This is a review of a decision of the court of appeals reversing a judgment of conviction for second-degree sexual assault and remanding the matter to the circuit court for a new trial. The judgment of conviction was entered by the Oneida county circuit court, Hon. Timothy L. Vocke, Circuit Judge for Vilas county, presiding. We affirm the decision of the court of appeals, 105 Wis.2d 763, 318 N.W.2d 22.

On the evening of December 1, 1979, the complainant Tammy Norton, then fifteen years of age, and her boyfriend, Michael Justice, rode from the town of Sugar Camp to nearby Rhinelander with the defendant, James Alsteen. After spending some time in Rhinelander, Alsteen agreed to take Norton and Justice home. Alsteen dropped Justice off first at approximately 1 a. m. on December 2, 1979. Upon leaving Justice's house, Alsteen proceeded to a rural road where he had sexual intercourse with Norton. ¹ Alsteen then drove Norton home at about 3:30 a. m. When she got home, Norton told her mother that Alsteen had raped her. On December 3, 1979, a criminal complaint was filed alleging that Alsteen had committed second-degree sexual assault in violation of sec. 940.225(2)(e), Stats. ² Alsteen admitted having sexual intercourse with Norton but claimed that she consented to the act.

Prior to trial the state gave notice of its intent to introduce evidence of Alsteen's other crimes and sexual misconduct. Four prospective witnesses were presented by the state. After hearing voir dire and arguments of counsel, Judge Vocke permitted two of the witnesses to testify to their knowledge of Alsteen's prior acts. This testimony was apparently admitted under one of the exceptions to sec. 904.04(2), Stats. ³ Judge Vocke did not, however, state clearly on the record which specific exception applied.

The first witness, R. B., testified that on May 15, 1972, he arrived home early from work to find Alsteen in bed with his eleven-year-old daughter. She was nude, lying under Alsteen. R. B. first testified that Alsteen was fully clothed except that his pants were undone. On cross-examination however, R. B. said that he could not be sure if Alsteen's pants were undone. When R. B. walked into the room, Alsteen quickly jumped up and left the premises.

The second witness was Linda Slack. She testified that on September 23, 1976, both she and Alsteen were at a party at the Starks Town Hall. Slack got into a fight with her boyfriend and left the party at about midnight. She ran down the road outside the hall and fell, spraining her ankle. Alsteen later drove by and offered her a ride. Slack accepted. After driving only a short distance, Alsteen stopped the car and had sexual intercourse with Slack, despite her objections and resistance. After the incident, Alsteen drove Slack home.

On June 7, 1980, the jury found Alsteen guilty of second-degree sexual assault in violation of sec. 940.225(2)(e), Stats. On August 25, 1980, the trial court entered a judgment of conviction and sentenced Alsteen to a prison term of five years. On February 18, 1981, Alsteen filed a notice of appeal from the judgment of conviction.

On appeal Alsteen argued, among other things, that the trial court erred in admitting the testimony relating to his other acts of sexual misconduct. The court of appeals reversed the judgment of the trial court and remanded the matter for a new trial on the ground that Judge Vocke's admission of the testimony of R. B. and Linda Slack was prejudicial error within sec. 904.04(2), Stats. We granted the state's petition for review.

The sole issue presented on this review is whether it was error for the trial court to admit evidence concerning prior acts of sexual misconduct allegedly committed by the defendant.

In reviewing evidentiary issues, "[t]he question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." State v. Wollman, 86 Wis.2d 459, 464, 273 N.W.2d 225 (1979). This court will not find an abuse of discretion if there is a reasonable basis for the trial court's determination. Boodry v. Byrne, 22 Wis.2d 585, 589, 126 N.W.2d 503 (1964). However, "there should be evidence in the record that discretion was in fact exercised and the basis of that exercise of discretion should be set forth." State v. Hutnik, 39 Wis.2d 754, 764, 159 N.W.2d 733 (1968).

"Unless there is evidence that the trial judge has undertaken a reasonable inquiry and examination of the facts as the basis of his decision, his decision will be disregarded by this court. Such a decision on its face shows an abuse of discretion for failure to exercise discretion."

McCleary v. State, 49 Wis.2d 263, 277-78, 182 N.W.2d 512 (1971).

In the instant case the record indicates that, while the trial court considered relevant Wisconsin case law in finding the evidence of Alsteen's prior acts admissible, it failed to identify the specific exception to sec. 904.04(2), Stats., upon which it based its decision. Nor did the trial court set forth a reasoned explanation for its conclusion that such evidence was relevant or that its probative value outweighed its prejudicial effect. The failure of the trial court to set forth its reasoning requires us to independently review the evidence to determine whether it supports the trial court's decision. McCleary v. State, supra at 277, 182 N.W.2d 512; see also Hammen v. State, 87 Wis.2d 791, 800, 275 N.W.2d 709 (1979).

The general rule in Wisconsin is that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Sec. 904.04(2), Stats. In Whitty v. State, 34 Wis.2d 278, 292, 149 N.W.2d 557 (1967), cert. denied, 390 U.S. 959, 88 S.Ct. 1056, 19 L.Ed.2d 1155 (1968), this court set forth four reasons for excluding such evidence:

"(1) The overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present charge but because he has escaped punishment from other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated; and (4) the confusion of issues which might result from bringing in evidence of other crimes."

There are, however, several exceptions to the general rule prohibiting evidence of other misconduct. Sec. 904.04(2), Stats., provides that such evidence is admissible as "proof of motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident."

We have held that trial courts must apply a two-prong test in determining whether "other crimes" evidence is admissible. State v. Spraggin, 77 Wis.2d 89, 95, 252 N.W.2d 94 (1977); Hammen v. State, 87 Wis.2d at 798, 275 N.W.2d 709. The first prong requires the trial court to find that the evidence fits within one of the exceptions stated in sec. 904.04(2), Stats. Under the second prong, the trial court must exercise its discretion to determine whether any prejudice resulting from such evidence outweighs its probative value. Sec. 904.03, Stats. ⁴ These are not, however, the only determinations that the trial court must make before admitting evidence of other crimes or acts. Implicit within our two-prong analysis is the requirement that other crimes evidence be relevant to an issue in the case. Indeed, in order to be properly admissible, all evidence must meet this standard of relevance. In Shapiro v. Klinker, 257 Wis. 622, 626-27, 44 N.W.2d 622 (1950), this court adopted portions of 1 Jones, Evidence sec. 137 (4th ed. 1938), including the following:

" 'In determining a dispute concerning the relevancy of proffered evidence, the question to be resolved is as to whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case.' "

See also Hart v. State, 75 Wis.2d 371, 386, 249 N.W.2d 810 (1977). This statement is in accord with our current Rules of Evidence. Sec. 904.01, Stats., provides:

" '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 without the evidence." (Emphasis added.)

In discussing this rule, we stated that "[a]ny fact which tends to prove a material issue is relevant." Rogers v. State, 93 Wis.2d 682, 688, 287 N.W.2d 774 (1980). Under sec. 904.02, Stats., however, "[e]vidence which is not relevant is not admissible." ⁵ Therefore, evidence which does not have a tendency to prove any fact that is of consequence to a material issue in the case is irrelevant and should be excluded.

After reviewing the record, we conclude that evidence of Alsteen's prior acts was improperly admitted by the trial court. The testimony of R. B. and Linda Slack was not relevant to any issue in the case. Because Alsteen admitted having sexual intercourse with Norton, the only issue was whether Norton consented to the act. Evidence of Alsteen's prior acts has no probative value on the issue of Norton's consent. Consent is unique to the individual. "The fact that one woman was raped ... has no tendency to prove that another woman did not consent." Lovely v. United States, 169 F.2d 386, 390 (4th Cir. 1948). Thus the testimony of R. B. and ...