State v. Gray
| Decision Date | 16 April 1999 |
| Docket Number | No. 96-3363-CR,96-3363-CR |
| Citation | 590 N.W.2d 918,225 Wis.2d 39 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. James E. GRAY, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs and oral argument by Helen M. Mullison, Milwaukee.
For the plaintiff-respondent the cause was argued by Mary V. Bowman, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
¶1
The defendant, James Edward Gray (Gray), was convicted of attempting to obtain controlled substances by misrepresentation. He requests that this court reverse the court of appeals' decision that the circuit court properly admitted other acts evidence, and thereby reverse his conviction. Because we conclude that the other acts evidence was relevant and its unfair prejudicial effect did not outweigh the probative value, the circuit court properly exercised its discretion in admitting the other acts evidence, and we affirm the court of appeals' decision. Gray also requests that we reverse the court of appeals' decision that the circuit court had statutory authority to modify his probation sentence before the period of probation began, to include a one-year jail term. We conclude that the plain language of the statute gives the circuit court the authority to modify the conditions of the defendant's probation before the period of probation began.
¶2 The facts relevant to this appeal are these. On July 14, 1994, a pharmacy received a prescription for Hydrocodone, a narcotic in pill form. 1 The pharmacist noticed that the handwriting on several prescriptions, including the July 14, 1994, prescription, was similar. He checked with the doctor's office that had purportedly written the prescription and discovered that the July 14, 1994, prescription was not valid. The pharmacist then notified the local police of his discovery.
¶3 On September 26, 1994, someone called into the same pharmacy to request a refill for the July 14, 1994, prescription. The pharmacist notified the police, then filled the prescription. The defendant, Gray, picked up the prescription and signed the pharmacy log, using his own name. As he was leaving the store, the police arrested him.
¶4 Gray was charged with one felony count for attempting to obtain a controlled substance by misrepresentation, as a party to the crime, in violation of Wis. Stat. §§ 161.43(1)(a) and (2), 161.16(2)(a)7, 939.05 and 939.32, one felony count for obtaining a controlled substance by misrepresentation, as a party to the crime, in violation of §§ 161.43(1)(a) and (2), 161.16(2)(a)7, and 939.05, and one misdemeanor count of attempting to obtain a controlled substance by misrepresentation, also as a party to the crime, in violation of Wis. Stat. §§ 450.11(7)(a)9, 161.18(5)(d), 939.32, and 939.05. Each count was based on activities occurring on different days. Gray was also charged with habitual criminality based on his 1992 conviction for the felony offense of attempting to obtain a controlled substance by misrepresentation.
¶5 Before trial, the State of Wisconsin (State) filed a motion to introduce other acts evidence pursuant to Wis. Stat. § 904.04(2) (reprinted below). 2 Specifically, the State requested to introduce evidence of the defendant's previous convictions for obtaining controlled substances by misrepresentation to show motive, knowledge, absence of mistake, plan, identity, and intent. 3 As the trial proceeded, the State also sought to introduce evidence of uncharged forged prescriptions.
¶6 The Milwaukee County Circuit Court, Judge Jeffrey A. Kremers presiding, granted the State's motion. The circuit court first found that the other acts evidence fit under the purposes for admissibility under Wis. Stat. § 904.04(2), specifically to show identity, plan, motive, scheme, and potentially absence of mistake. The circuit court also determined that the unfair prejudicial effect of the other crimes evidence did not outweigh its probative value. Therefore, the circuit court allowed the State to introduce other acts evidence consisting of uncharged forged prescriptions and Gray's 1990 conviction for obtaining a controlled substance by misrepresentation.
¶7 The jury convicted the defendant of all three counts. The circuit court sentenced him to 13 years in prison, consisting of three years on count three for the misdemeanor charge and 10 years on count two for obtaining a controlled substance by misrepresentation, running consecutively, followed by five years probation for count one for attempting to obtain a controlled substance by misrepresentation.
¶8 Gray filed a post-conviction motion, challenging his conviction on all three counts. The circuit court upheld the conviction on count one. The circuit court dismissed the jury verdict on count two with prejudice and granted a new trial on count three. (The State does not challenge this decision.) Because partially granting Gray's post-conviction motion frustrated the original sentencing scheme, the circuit court modified the defendant's probation sentence for count one, pursuant to Wis. Stat. § 973.09(3)(a), to include a one-year jail term.
¶9 Gray appealed his conviction on count one for attempting to obtain a controlled substance by misrepresentation. He asserted that other acts evidence consisting of the uncharged forged prescriptions was not admissible because the jury could not conclude that he was the person who had forged those prescriptions. He argued that the circuit court erred in admitting the other acts evidence, including the uncharged forged prescriptions and his prior conviction, because it did not meet the permissible purposes under Wis. Stat. § 904.04(2) and its prejudicial effect outweighed the probative value. Finally, Gray asserted that the circuit court erred in modifying the conditions of his probation to include a one-year jail term.
¶10 In an unpublished decision, 4 the court of appeals affirmed the circuit court's judgment and orders. The court of appeals concluded that because Gray did not make a specific and contemporaneous objection to the other acts evidence, he waived his right to argue on appeal that the jury could not conclude that he was the person who forged the other uncharged prescriptions. The court of appeals concluded that Gray did properly object to the other acts evidence on general relevancy grounds but nonetheless determined that the other acts evidence was admissible and its probative value outweighed the prejudicial effect. Finally, the court of appeals concluded that the circuit court had statutory authority to modify Gray's sentence of probation.
¶11 This court granted Gray's petition for review of the court of appeals' decision. Two issues are presented by this case. The first issue is whether the circuit court properly admitted other acts evidence consisting of the defendant's prior conviction and uncharged forged prescriptions. We hold that it did. The second issue is whether the circuit court had statutory authority to modify the defendant's probation before the period of probation began, to include a one-year jail term. We hold that the circuit court had such authority.
¶12 We now turn to the first issue: whether the circuit court properly admitted the other acts evidence. This issue requires that we determine whether the circuit court properly exercised its discretion. State v. Sullivan, 216 Wis.2d 768, 780, 576 N.W.2d 30 (1998). "An appellate court will sustain an evidentiary ruling if it finds that the circuit court examined the relevant facts; applied a proper standard of law; and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach." Id. at 780-81, 576 N.W.2d 30 (citing Loy v. Bunderson, 107 Wis.2d 400, 414-15, 320 N.W.2d 175 (1982)).
¶13 Over the years this court has expounded the foundation necessary to introduce other acts evidence. Generally evidence of other acts is not admissible because of the "fear that an invitation to focus on an accused's character magnifies the risk that jurors will punish the accused for being a bad person regardless of his or her guilt of the crime charged." Sullivan, 216 Wis.2d at 783, 576 N.W.2d 30. Other acts evidence may not be introduced to show that the defendant has a certain character trait and, in the present charge, acted in conformity with that trait. Id. at 781-82, 576 N.W.2d 30.
¶14 Admission of other acts evidence is governed by Wis. Stat. §§ 904.04(2) and 904.03. Section 904.04(2) sets forth exceptions to the general rule of not admitting other acts evidence. Examples of the purposes for which other acts evidence may be admissible include "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." § 904.04(2). Even if the other acts evidence is being offered for one of these acceptable purposes, it must be relevant, Wis. Stat. § 904.01, and its probative value must outweigh its unfair prejudicial effect, § 904.03.
¶15 The analysis of other acts evidence culminated in this court's recent delineation of a three-step analytical framework for attorneys and courts to follow in determining whether other acts evidence is admissible. Sullivan, 216 Wis.2d at 772, 576 N.W.2d 30.
Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § (Rule) 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?
Is the other acts evidence relevant, considering the two facets of relevance set forth in Wis. Stat. § (Rule) 904.01? [footnote omitted] The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. The second consideration in assessing relevance is whether the evidence has probative value, that is, whether...
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