State v. Frank

• Decision Date: 11 December 2001
• Docket Number: No. 01-1252-CR.,01-1252-CR.
• Citation: State v. Frank, 250 Wis. 2d 95, 640 N.W.2d 198, 2002 WI App 31 (Wis. App. 2001)
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Ronald J. FRANK, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

250 Wis.2d 95

2002 WI App 31

640 N.W.2d 198

STATE of Wisconsin, Plaintiff-Respondent, v. Ronald J. FRANK, Defendant-Appellant.¹

No. 01-1252-CR.

Court of Appeals of Wisconsin.

Submitted on briefs December 3, 2001.

Decided December 11, 2001.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Jane Krueger Smith of Oconto Falls.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and David J. Becker, assistant attorney general.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. HOOVER, P.J.

Ronald Frank appeals a judgment of conviction for sexual contact with a child under the age of thirteen years, contrary to WIS. STAT. § 948.02(1).² He argues that (1) the trial court erred when it ruled that other acts evidence would be admissible; (2) it was plain error when the trial court admitted evidence of a polygraph examination and statements made during and immediately following that examination; and (3) the trial court's evidentiary rulings prevented the real controversy from being tried. We conclude that Frank waived his right to appeal the other acts ruling by entering into a Wallerman³ stipulation, any error regarding the polygraph examination was not plain and the real controversy was tried. See State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996). We therefore affirm the judgment.

I. BACKGROUND

¶ 2. On April 12-13, 1997, Frank attended a birthday party. Frank, a recovering alcoholic subject to blackouts, testified that he was drinking at the party but not to the point of blacking out. Frank even testified that he was not so intoxicated that he could not drive. Further, Frank testified that he had a history of drinking to the point of passing out and sleeping naked in the living room when he visited the home.

¶ 3. Two years later, Frank was charged with sexual contact with a child under the age of thirteen. The State filed a motion to introduce other acts evidence at trial to show intent and motive. The evidence involved testimony from another child under thirteen who claimed Frank improperly touched her. The trial court granted the motion after a hearing, but no written order was entered. Frank entered into a Wallerman stipulation, thereby conceding intent and motive. A jury found Frank guilty, and the trial court entered judgment and sentenced him to forty years in prison. Frank now appeals.

II. WALLERMAN STIPULATION

¶ 4. Frank argues that he was, once the trial court erroneously deemed other acts evidence admissible, "required" to enter into the Wallerman stipulation He further argues that the Wallerman stipulation deprived him of the right to present evidence that his intent was negated by voluntary intoxication, which he characterizes as his only viable defense. The State maintains that Frank was not required to enter into the Wallerman stipulation and that, by doing so, he waived his right to appeal the other acts ruling. It also contends that Frank had no viable defense precluded by the Wallerman stipulation and therefore gave up nothing.

¶ 5. We conclude that the trial court's ruling, that other acts evidence would be admissible, did not require Frank to enter into the Wallerman stipulation. However, by entering into the stipulation and rendering the other acts evidence inadmissible, Frank waived his right to appeal the other acts ruling. We conclude that other acts evidence must be introduced at trial before a criminal defendant can argue reversible error. In any event, we also agree with the State that Frank did not give up a defense by entering into the Wallerman stipulation.

¶ 6. In Wallerman, we held that a defendant can concede elements of a crime in order to avoid the introduction of other acts evidence. Id. at 167-68. Whether to allow such a stipulation is within the trial court's discretion. See id. at 168 n.4. We later concluded that an attorney's failure to know and apply Wallerman was deficient performance and prejudiced the outcome of the trial, thereby constituting ineffective assistance of counsel. State v. DeKeyser, 221 Wis. 2d 435, 443, 585 N.W.2d 668 (Ct. App. 1998).

¶ 7. Frank claims that DeKeyser "requires . . . that defense counsel enter into a Wallerman stipulation once the motion in limine to exclude such evidence has been denied. Trial counsel was therefore forced to enter into a Wallerman stipulation . . . ." DeKeyser says no such thing. Rather, DeKeyser's attorney was deficient for not knowing about Wallerman and, therefore, for failing to strategize whether the defendant should have conceded elements of a crime in order to avoid the introduction of other acts evidence. DeKeyser, 221 Wis. 2d at 443. The key phrase is that the defendant may concede. There is no requirement that a defendant must concede an element if the trial court rules that other acts evidence is admissible. Indeed, one of the issues in DeKeyser was whether the defendant would have conceded an element had his attorney known and advised him about Wallerman. See DeKeyser, 221 Wis. 2d at 443.

¶ 8. Here, the trial court ruled the other acts evidence admissible but it was not, in fact, ever admitted at trial. Frank entered into the Wallerman stipulation on the issues whether the touching that constituted the charged sexual contact "was done intentionally" and whether it was done "with the purpose to become sexually aroused or gratified." He thereby rendered the evidence inadmissible.

[3]

¶ 9. Generally, when a trial court rules that certain evidence is admissible, the admission cannot be deemed prejudicial error unless the evidence actually is admitted against the party objecting to it. We agree with the Washington Court of Appeals' observation: "Error cannot be assigned to a trial court ruling denying a motion in limine to exclude evidence because the ruling is advisory and tentative. . . . The error, if any, is committed, not at the time of the ruling, but only when evidence is improperly admitted over objection at trial." State v. Austin, 662 P.2d 872, 874 (Wash. Ct. App. 1983) (citations omitted).

¶ 10. Similarly, the Maryland Court of Special Appeals noted:

[T]here is substantial authority for the proposition that the denial of a motion in limine cannot in and of itself constitute reversible error. State v. Garrett, 183 N.W.2d 652 (Iowa 1971). The court there stated:

"It may be error (to deny a motion in limine) but cannot be reversible error. The reason is simple. The objectionable material has not yet reached the jury's ears. It may never reach the jury. . . . It is only when the (objectionable) material is offered in the jury's presence that the harm or error, if any, has been done."

Ory v. Libersky, 389 A.2d 922, 930 (Md. Ct. Spec. App. 1978); accord Harley-Davidson Motor Co. v. Daniel, 253 S.E.2d 783, 785 (Ga. Ct. App. 1979).⁴

¶ 11. Frank argues that the general rule should not be applied here because the other acts evidence was rendered inadmissible when Frank entered into the Wallerman stipulation. By that stipulation, Frank gave up his right to contest intent issues and to present the defense of voluntary intoxication with respect to those issues.

[4]

¶ 12. A defendant can avoid the impact of a pretrial ruling that evidence of his prior convictions was admissible to impeach him and preclude the State from introducing the evidence of his prior convictions by declining to take the stand in his defense. To follow that course, however, the defendant gives up his right to testify in his own defense. The Supreme Court declared in Luce v. United States, 469 U.S. 38, 39-43 (1984), that if a criminal defendant takes that course and declines to testify in response to a trial court's ruling denying his motion to forbid use of his prior conviction to impeach his credibility, he is not entitled to appellate review of that ruling.

¶ 13. The Supreme Court recently elaborated on the choice confronted by the defendant in Luce:

[H]ere petitioner runs into the position taken by the Court in a similar, but not identical, situation in Luce v. United States, 469 U.S. 38 (1984), that "[a]ny possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative." Id., at 41. Only when the government exercises its option to elicit the testimony is an appellate court confronted with a case where, under the normal rules of trial, the defendant can claim the denial of a substantial right if in fact the district court's in limine ruling proved to be erroneous. In our view, there is nothing "unfair," as petitioner puts it, about putting petitioner to her choice in accordance with the normal rules of trial.

Ohler v. United States, 529 U.S. 753, 759 (2000).

¶ 14. Precisely the same thing can be said here. Frank had a choice. He could have declined to enter into a Wallerman stipulation, thereby allowing the State to introduce the other acts evidence against him and preserving the issue of the admissibility for appellate review. Or, he could have entered into a Wallerman stipulation, thereby precluding the admission of the evidence and forfeiting his right to appellate review of the admissibility of the evidence. With respect to that choice, what the Supreme Court said in Ohler can be said here: "[T]here is nothing `unfair' . . . about putting [Frank] to [his] choice . . . ." Id.

[5]

¶ 15. According to the Supreme Court, we should not speculate whether the State would actually have introduced the other acts evidence if Frank had not entered into the Wallerman stipulation. In Luce, the Court said:

When the defendant does not testify, the reviewing court also has no way of knowing whether the Government could have sought to impeach with the prior conviction. If, for example, the Government's case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior

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