State v. Evers

• Decision Date: 22 June 1987
• Docket Number: No. 86-0413-CR,86-0413-CR
• Citation: 407 N.W.2d 256,139 Wis.2d 424
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Thomas M. EVERS, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 256

407 N.W.2d 256

139 Wis.2d 424

STATE of Wisconsin, Plaintiff-Respondent, v. Thomas M. EVERS, Defendant-Appellant-Petitioner.

No. 86-0413-CR.

Supreme Court of Wisconsin.

Argued April 1, 1987.

Opinion Filed June 22, 1987.

Paul M. Cornett, Little Chute, for defendant-appellant-petitioner.

William Gansner, Asst. Atty. Gen., argued, for plaintiff-respondent; M. Cathleen Huber, Asst. Dist. Atty., Appleton, on brief.

HEFFERNAN, Chief Justice.

This is a review of an unpublished court of appeals decision dated August 19, 1986, 133 Wis.2d 476, 394 N.W.2d 920, which affirmed a judgment of conviction of the circuit court for Outagamie county, Nick F. Schaefer, Circuit Judge, convicting Thomas M. Evers of the crime of misdemeanor theft of a vehicle and imposing a sentence of two years as a repeat offender.

On this review the defendant asserts that he was prejudiced by the introduction of evidence of prior crimes, which evidence, he asserts, was not admissible under the exceptions provided by sec. 904.04(2), Stats., and was therefore utilized for the purpose specifically barred by sec. 904.04(2), "to prove the character of a person in order to show that he acted in conformity therewith." He also asserts that the error in the admission of this testimony was not harmless.

We agree that the admission of the prior crimes evidence was erroneous, but we conclude that, in the context of the entire record, the error was harmless. Accordingly, we affirm the decision of the court of appeals which upheld the conviction.

It is also asserted that the trial judge abused his discretion in imposing a two-year sentence of imprisonment, because he had not sufficiently stated his reasons for imposing the sentence and that, therefore, in the event the conviction is sustained, the defendant asks that the cause be remanded for the imposition of a proper sentence. After a complete examination of the entire record and transcript of trial and the sentencing hearing, we conclude that the sentence was imposed in the exercise of appropriate judicial discretion. The sentence is affirmed.

The facts show that Tom Evers and two other persons removed a race car from the track of the Wisconsin International Raceway in Outagamie county in the early evening of September 25, 1984.

The vehicle had been raced by its owner, Doug Brown, at the raceway on September 23, 1984. After the race, Brown left the vehicle at the track, intending to pick it up at a later time. When he arrived to do so on the evening of September 25, 1984, at about 9:45 p.m., the vehicle was missing.

Investigation revealed that the vehicle had been towed away by the joint efforts of the defendant Tom Evers, his brother Joseph Evers, and Jeff Vandenberg. Following investigation, all these persons were charged with theft. Only the charge against Tom Evers is involved in this appeal.

Evers' defense at trial was that he was not guilty of theft, charged in sec. 943.20(1)(a) and (3), ¹ because he believed the damaged car was abandoned property and, hence, he could not have the requisite intent to deprive the owner of possession of the property.

Evers attempted to adduce evidence at trial that would support his lack of culpable intent. He asserted that there had been a public announcement that drivers were to remove their vehicles within two days after the race or they were considered to be abandoned. There was overwhelming contrary testimony that the announcement made was not to the effect that the vehicles were to be considered ownerless after the passage of two days but that such vehicles then became the property of the speedway and would be turned over to a salvage yard. We need not finally resolve the effect of this announcement for, when the owner of the car, Doug Brown, returned within the two-day period, the vehicle had already been picked up by Tom Evers (Evers) and his companions. It does appear, however, that the jury found that there was no credible evidence that would lead to the conclusion that, after the lapse of two days, the vehicle was ownerless. It is clear from the evidence that the vehicle either belonged to the original owner or to the race track. ²

Although the evidence is rather clear that a reasonable person would not, on the basis of the evidence in respect to the public announcement, have believed that the property was ownerless or abandoned, in a criminal case of this sort, the test is the subjective intent of the accused person. ³ The defendant sought to convince the jury that, on the basis of his interpretation and recollection of the announcements and his knowledge of the practices of the race track, he could not have intended to deprive the owner of possession.

Evers' defense was quite specific. He admitted hauling the car away but argued that he believed the car to be abandoned. Thus, the only issue was Evers' intent or knowledge, i.e., did he intentionally steal the car knowing it belonged to another or did he believe the car was abandoned.

Only evidence to show his intent or knowledge was relevant to the disposition of the contested issue in the case. To assist in its proof of intent, the state decided to introduce evidence of prior crimes of theft. Before trial, it gave notice to the defendant and to the court that it would introduce such evidence on rebuttal in the event the defendant asserted the defense of lack of intent. The prosecutor asserted that such evidence would be introduced only for the purpose of showing intent and not to show that, because the defendant had previously committed theft, he therefore had the propensity to commit the presently charged crime. ⁴

During trial the defense of lack of intent was raised and the state, true to its word, in rebuttal offered evidence of one conviction and three read-in charges dating from 1982. They involved incidents which occurred in 1980. The only information given the judge and the jury was:

"[T]hat on December 14, 1982, Mr. Evers was convicted of an offense involving theft. The offense occurred on ... September 2, 1980, and he was convicted of that theft offense. There was additionally three additional counts of theft were dismissed and read in for sentencing purposes, one of November 20, 1979, alleging theft of scrap metal, one of March 20, 1980, alleging theft of scrap metal, and one of September 2, 1980, alleging theft of car batteries."

Defense counsel objected. Out of the presence of the jury, he stated that the convictions had occurred more than three and one-half years ago and were of little probative value for any purpose. Additionally, he stated:

"The incidents are quite different and there has been no showing that the circumstances were those similar to those in the present where the property was kept for a period of time in an area which anybody could gain access to ... [and] where announcements had been made that property was going to be turned over to other people if not claimed ... I think the evidence would tend to simply show that the defendant was a thief and an evil person and that's precisely the sort of impression that 904.04 is supposed to prevent a jury from receiving...."

The court decided to admit the other acts evidence. It found the evidence to be probative on the issue of Evers' intent or lack of mistake. In the presence of the jury, the state asked the court to take judicial notice of the fact that Evers had been convicted of theft in 1982 and that three other theft charges had been dismissed and read-in at the time Evers was sentenced for that offense. Although the prosecutor stated that the three read-ins were for theft of scrap metal and batteries, the jury was not told what Evers had stolen that had resulted in the actual conviction. In addition, no mention was made of the circumstances surrounding any of the four prior acts. The jury was simply informed of the fact of the conviction and the read-ins. The court then cautioned the jury that the prior acts were admitted solely on the issue of intent and lack of mistake. During her closing argument, the prosecutor told the jury that the prior acts and conviction were "society's notice" to the defendant that he had better determine that he had a right to take property before he in fact took it. The trial court included a cautionary instruction on other crimes evidence in the general instructions read to the jury.

Conviction followed, and Evers was sentenced to a two-year prison term under the repeat-offender provisions of sec. 939.62(1)(a), Stats. On appeal, the court of appeals held that the prior crimes evidence was properly admitted and sentence was appropriate.

The only rationale for its conclusion in respect to prior crimes was expressed tersely and without explication. The court of appeals stated:

"[I]t is not necessary to know more details of the prior thefts to draw a relevant connection between them and the present offense. Each incident involved a violation for the offense of larceny in violation of sec. 943.20(1)(a).... There was therefore a sufficient showing that the prior incidents were similar in time, place, and circumstance to justify admissibility." 133 Wis.2d 476, 394 N.W.2d 920 (table).

It is an accepted principle that evidence of a defendant's prior criminal acts is not admissible, in the course of a prosecution for a subsequent offense, in order to show that the defendant was a "bad person" with a propensity to commit crimes and that therefore he must have committed the charged offense. ⁵ Such evidence may be admitted however, when it is relevant to such issues as a defendant's motive, plan, knowledge, identity, or intent in committing the charged offense. ⁶

Wisconsin's prior acts rule is set out in sec. 904.04(2), Stats.:

(2) OTHER CRIMES, WRONGS, OR ACTS. Evidence 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. This subsection does not exclude the evidence when...