State v. Franklin

• Decision Date: 01 April 2004
• Docket Number: No. 00-2426.,00-2426.
• Citation: 270 Wis.2d 271,677 N.W.2d 276,2004 WI 38
• Parties: IN RE the COMMITMENT OF Gregory J. FRANKLIN: STATE of Wisconsin, Petitioner-Respondent, v. Gregory J. FRANKLIN, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

270 Wis.2d 271

2004 WI 38

677 N.W.2d 276

IN RE the COMMITMENT OF Gregory J. FRANKLIN: STATE of Wisconsin, Petitioner-Respondent, v. Gregory J. FRANKLIN, Respondent-Appellant-Petitioner.

No. 00-2426.

Supreme Court of Wisconsin.

Oral argument December 3, 2003.

Decided April 1, 2004.

For the respondent-appellant-petitioner there were briefs and oral argument by Patrick M. Donnelly, assistant state public defender.

For the petitioner-respondent the cause was argued by Eileen W. Pray and Sally L. Wellman, assistant attorneys general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. PATIENCE D. ROGGENSACK, J.

Gregory J. Franklin was committed by Milwaukee County Circuit Court according to the provisions of Wis. Stat. ch. 980, after a jury found him to be a sexually violent person pursuant to Wis. Stat. § 980.01(7) (1997-98).¹ Franklin claims the circuit court committed reversible error when it admitted "other acts" evidence, contrary to the provisions of Wis. Stat. § 904.04(2). The court of appeals affirmed. We accepted review to clarify whether § 904.04(2) applies to evidence offered in ch. 980 commitment proceedings to prove that it is substantially probable that the respondent will commit acts of sexual violence in the future.² We conclude that during a commitment proceeding under ch. 980, § 904.04(2) does not apply to evidence offered to prove that the respondent has a mental disorder that makes it substantially probable that the respondent will commit acts of sexual violence in the future. Because we also conclude that evidence of prior conduct was properly admitted here, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 2. In March 1998, the State filed a petition pursuant to Wis. Stat. ch. 980, alleging that Franklin was a sexually violent person and that he was within 90 days of release from his sentences for sexual assault.³ The State's petition also alleged that Franklin had a mental disorder that predisposed him to engage in acts of sexual violence.

¶ 3. Prior to trial, Franklin moved to exclude the prior acts evidence, pursuant to Wis. Stat. § 904.04(2). The evidence included Franklin's adult criminal record containing crimes that he asserts are unrelated to sexual activity, pre-sentence investigation reports, department of corrections conduct reports from his periods of incarceration, evidence of his parole violations and references to his juvenile record. The circuit court analyzed the evidence pursuant to Wis. Stat. § 904.01 for relevancy; concluded that it was relevant; determined that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, pursuant to Wis. Stat. § 904.03; and admitted it. The jury found Franklin a sexually violent person, and the circuit court committed him to a secure facility.

¶ 4. Franklin appealed the commitment order on a number of grounds.⁴ The court of appeals affirmed. On the issue of the admission of what he characterized as other acts evidence, all members of the court of appeals panel agreed that the evidence was properly admitted, but each member had a different rationale for that conclusion. The application of Wis. Stat. § 904.04(2) in this ch. 980 commitment proceeding and the Wis. Stat. § 904.01 and Wis. Stat. § 904.03 questions are the issues before us.

II. DISCUSSION

A. Standard of Review

[1]

¶ 5. This case requires us to construe and apply Wis. Stat. § 904.04(2) in the context of a ch. 980 proceeding. Statutory interpretation and the application of a statute to established facts are questions of law that we review de novo. State ex. rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 121, 561 N.W.2d 729, 733 (1997); Stockbridge School Dist. v. DPI, 202 Wis. 2d 214, 219, 550 N.W.2d 96, 98 (1996); Minuteman, Inc. v. Alexander, 147 Wis. 2d 842, 853, 434 N.W.2d 773, 778 (1989).

[2, 3]

¶ 6. However, whether evidence is admissible is a discretionary decision of the circuit court. National Auto Truckstops, Inc. v. DOT, 2003 WI 95, ¶ 12, 263 Wis. 2d 649, 665 N.W.2d 198; Grube v. Daun, 213 Wis. 2d 533, 541-42, 570 N.W.2d 851 (1997); State v. Oberlander, 149 Wis. 2d 132, 140, 438 N.W.2d 580 (1989). We review discretionary decisions under the erroneous exercise of discretion standard. National Auto Truckstops, 263 Wis. 2d 649, ¶ 12.

B. Wisconsin Stat. § 904.04(2)⁵

¶ 7. The State is required to prove in a ch. 980 commitment that the respondent is "sexually violent" within the meaning of Wis. Stat. § 980.01(7) because the respondent suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence in the future. Wis. Stat. § 980.06. Here, the State introduced evidence of Franklin's past conduct both to show Franklin has a mental disorder and that it was substantially probable that he would commit acts of sexual violence in the future, thereby meeting its burden under § 980.01(7) and § 980.06.

¶ 8. Franklin contends that the admission of evidence of his past conduct is prohibited character evidence under Wis. Stat. § 904.04(2), which statute he contends is applicable. The State asserts, among other arguments, that because the definition set out in Wis. Stat. § 980.01(7) requires proof for assessing the substantial probability of future conduct, rather than proof offered in regard to disputed past conduct, § 904.04(2) is not part of the analysis for admission of the evidence received here.

[4-7]

¶ 9. Given the positions of the parties, this case requires us to interpret the use of Wis. Stat. § 904.04(2) in the context of a ch. 980 proceeding. As is usual in cases of statutory construction, we begin with the language of the statute itself. The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. Angela M. W., 209 Wis. 2d at 121; Ball v. District No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis. 2d 529, 537-38, 345 N.W.2d 389 (1984). Unless technical terms are involved, the statutory language is given its plain and ordinary meaning. Angela M. W., 209 Wis. 2d at 121; Bruno v. Milwaukee County, 2003 WI 28, ¶ 20, 260 Wis. 2d 633, 660 N.W.2d 656. If that meaning is clear on its face, we need go no further, and simply will apply it. Bruno, 260 Wis. 2d 633, ¶ 20; Ball, 117 Wis. 2d at 537-38. However, if the language is ambiguous, we may examine extrinsic sources for evidence of legislative intent. Angela M. W., 209 Wis. 2d at 121. Here, although neither party contends that the statute is ambiguous in the usual sense of disputing what it means, they do disagree about whether it is applicable in a ch. 980 proceeding for the evidence received here.

¶ 10. Wisconsin Stat. § 904.04(2) is known as the "other acts" statute and it sets out when certain types of evidence may be excluded or admitted. It provides:

Evidence 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. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In order to ascertain whether evidence of Franklin's past acts is to be evaluated under § 904.04(2), it is helpful to review the types of evidence that fall within § 904.04(2) and for what purposes use has been restricted or permitted.

¶ 11. Wisconsin Stat. § 904.04(2) evidence may be offered in a criminal trial or a civil suit. State v. Sullivan, 216 Wis. 2d 768, 783, 576 N.W.2d 30 (1998) and Daniel B. Blinka, Evidence of Character, Habit and "Similar Acts" in Wisconsin Civil Litigation, 73 Marq. L.Rev. 283, 289 (1989). It has been offered to prove the character of a person: (1) for the impermissible purpose of implying that the person committed a disputed past act⁶ that is consistent with his or her character, or (2) for a permissible purpose, such as showing the person acted with a plan, motive, absence of mistake.⁷ Its use is carefully regulated when the other acts are "bad acts" because the admission of such evidence may imply that the defendant is a bad person. Whitty v. State, 34 Wis. 2d 278, 292-97, 154 N.W.2d 557 (1967). As we said in Whitty, when other acts evidence is admitted, there can be "an overstrong tendency" to believe that a defendant is guilty of the crime charged simply because he or she is the kind of person who is likely to act a certain way, or that the defendant should be punished now, not necessarily for the crime charged, but because the defendant may have escaped punishment for a previous offense. Id. at 292.

¶ 12. Wisconsin Stat. § 904.04(2) addresses evidence offered for a prohibited use and for a permitted use. When evidence is offered for a prohibited use, it is offered as relevant proof of acts that have already occurred by attempting to show that the person has a certain character and the acts denied are consistent with his or her character. State v. Veach, 2002 WI 110, ¶ 48, 255 Wis. 2d 390, 648 N.W.2d 447. As the statute explains, "Evidence 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 . . . ." Section 904.04(2) (emphasis added). Additionally, in a permitted use of other acts evidence, e.g., to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,"⁸ § 904.04(2) evidence again is offered to prove whether the defendant did or did not do a past act. State v. Anderson, 230 Wis. 2d 121, 129-30, 600 N.W.2d 913 (Ct. App. 1999). Therefore, in each instance, § 904.04(2) looks back to analyzing proof of acts that have already occurred. It does not look forward to assess the substantial probability of future conduct, which is the relevant question here.

[8]

¶ 13. We can reasonably presume that the legislature chose the...