State v. Johnson

• Decision Date: 27 April 1994
• Docket Number: No. 93-1103-CR,93-1103-CR
• Citation: 516 N.W.2d 463,184 Wis.2d 324
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Donald J. JOHNSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 463

516 N.W.2d 463

184 Wis.2d 324

STATE of Wisconsin, Plaintiff-Respondent, v. Donald J. JOHNSON, Defendant-Appellant.

No. 93-1103-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 4, 1993.

Opinion Released April 27, 1994.

Opinion Filed April 27, 1994.

Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.

NETTESHEIM, Judge.

Donald J. Johnson appeals from a judgment convicting him of battery and second-degree reckless endangerment as a repeater, contrary to §§ 939.62(1)(b), 940.19(1) and 941.30(2), STATS., and from an order denying his motion for postconviction relief. On appeal, Johnson challenges the trial court's exclusion of two categories of other acts evidence buttressing his theory of defense that the victim falsely accused him of the offenses with which he was charged. He also argues that the court failed to honor his constitutional right to represent himself and that the evidence was insufficient to support his conviction for second-degree reckless endangerment.

We reverse the trial court's ruling as to one aspect of Johnson's proffered other acts evidence, and we remand for a new trial. Because of our holding, we do not address the trial court's other evidentiary ruling. However, we direct the trial court on remand to readdress this ruling in light of our reversal. We also affirm the court's ruling that Johnson's self-representation right was not violated. Finally, we hold that the evidence was sufficient to convict Johnson of second-degree reckless endangerment.

Johnson's convictions resulted from allegations by Karen Petersen, Johnson's former live-in girlfriend. Petersen contended that during an argument at their apartment Johnson threw her over some furniture, beat her head against the wall, choked her and held a knife to her throat while threatening to kill her. Based on these allegations, the State charged Johnson with battery and second-degree reckless endangerment while using a dangerous weapon. Johnson denied that these events occurred, contending instead that Petersen lied about the episode to have him arrested so that she could misappropriate certain of his personal property while he was incarcerated. The jury found Johnson guilty of battery and second-degree reckless endangerment, but acquitted him of second-degree reckless endangerment while using a dangerous weapon. Johnson appeals.

We will recite additional facts as they become relevant to our discussion of the appellate issues.

I. OTHER ACTS EVIDENCE

Johnson first argues that he was denied a fair trial by the trial court's exclusion of two categories of other acts evidence supporting his theory of defense that the victim, Karen Petersen, falsely accused him so that she could misappropriate his personal property while he was incarcerated. We reverse and remand for a new trial on this issue because the trial court's ruling excluding certain of this evidence constituted prejudicial error.

The State brought a motion in limine prior to trial to prohibit Johnson from introducing evidence of Petersen's character to support his theory of defense that Petersen lied about the offenses to have him arrested. Johnson resisted the State's motion and, via an offer of proof in which he named his potential witnesses, proffered two categories of evidence in support of his theory of defense.

One category of evidence contended that during a previous marriage, Petersen fabricated a similar story to have her ex-husband arrested so that she could misappropriate certain of his property while he was in jail. Petersen apparently failed in the endeavor, however, and her ex-husband was released a few days after the arrest and was not charged in the incident.

Another category of evidence contended that after Petersen reported to the police that Johnson had physically assaulted her and he was in custody, Petersen approached several persons who were storing property for him and attempted to claim his property as her own. Johnson explained:

We're in a situation where [Petersen] went up to people immediately after this and asked them please sign this [receipt] saying that I bought this from you. [Petersen] went and tried to get keys to [Johnson's] trailer, and finally the people said, no, we can't give you those, call the police. She talked to a police officer who was shaken and left because of the fact that she indicated that the police officer wouldn't let her have the keys. She made every effort to get her hands on all this property within hours-days, if not hours, after these events occurred. This is part and parcel of the same transaction.

Johnson argued that the evidence was probative of Petersen's knowledge and motive under § 904.04(2), STATS., and therefore admissible.

The trial court disagreed, ruling that the evidence was impermissible character evidence under § 904.04(1) and that allowing it would convert the trial into one of property division.

Section 904.04(2), STATS., provides:

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 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.

The general policy of § 904.04(2), STATS., is one of exclusion; the rule precludes proof of other crimes, acts or wrongs for purposes of showing that a person acted in conformity with a particular disposition on the occasion in question. Id.; State v. Rutchik, 116 Wis.2d 61, 67-68, 341 N.W.2d 639, 642 (1984). The rule is not limited solely to a defendant's acts; it is applicable to any "person." State v. Kimpel, 153 Wis.2d 697, 703-04, 451 N.W.2d 790, 793 (Ct.App.1989). However, other acts evidence is admissible if its relevance hinges on something other than the forbidden character inference proscribed by § 904.04(2) and the proponent of the evidence uses it for that purpose. See Rutchik, 116 Wis.2d at 67-68, 341 N.W.2d at 642-43.

In determining whether to admit other acts evidence, trial courts must apply a two-prong test. First, the court must determine whether the other acts evidence fits within one of the exceptions in § 904.04(2), STATS. See State v. Fishnick, 127 Wis.2d 247, 254, 378 N.W.2d 272, 276 (1985). This requires that the evidence be probative of some proposition (such as proof of motive, opportunity, etc other than the proposition that because the person did prior act X, he or she is of such a character and disposition to have committed present act Y. ¹ Id. The court must then determine under § 904.03, STATS., whether any prejudice resulting from the admission of such evidence substantially outweighs its probative value. Fishnick, 127 Wis.2d at 254, 378 N.W.2d at 276. A threshold question implicit within the two-pronganalysis Here, the trial court stated only that the evidence constituted impermissible character evidence under § 904.04(1), STATS., and that its admission would convert the trial into one of property division. However, the evidence was proffered as other acts evidence under § 904.04(2) and the court did not specifically perform the balancing test required under this subsection. Thus, we may independently review the evidence to determine whether it supports the trial court's ruling to exclude it. See State v. Shillcutt, 116 Wis.2d 227, 235-36, 341 N.W.2d 716, 719-20 (Ct.App.1983), aff'd, 119 Wis.2d 788, 350 N.W.2d 686 (1984).

is whether the other acts evidence is relevant to an issue in the case. Id.

We turn first to Johnson's proffered evidence concerning Petersen's attempt to obtain Johnson's property following her accusations and his resulting incarceration. As we have already explained, § 904.04(2), STATS., allows the admission of other acts if the relevance of the evidence hinges on something other than the forbidden character inference proscribed by § 904.04(2). The other act may have occurred after the particular offense at issue. See, e.g., State v. Roberson, 157 Wis.2d 447, 459 N.W.2d 611 (Ct.App.1990) (during the defendant's trial for concealing stolen property, the trial court properly admitted other acts evidence, as proof of intent, that four months after the offense at issue the defendant was found in possession of another stolen vehicle).

Here, Johnson's theory of defense was that Petersen falsely accused him of assault so that after he was incarcerated she could misappropriate certain items of his personal property. To bolster this theory, he sought to introduce evidence that within days after his arrest, Petersen approached several of the people who were storing property for Johnson and attempted to claim the property as her own. Johnson did not seek to introduce the evidence to establish Petersen's propensity to behave in a certain way; he offered it as probative of Petersen's motive for falsely accusing him of the assault. Motive has been defined as the reason which leads the mind to desire the result of an act. Fishnick, 127 Wis.2d at 260, 378 N.W.2d at 279.

We conclude that the evidence was relevant to a proposition of consequence other than Petersen's character and any inference that she acted in conformity therewith. Unlike the other category of other acts evidenceinvolving Petersen's ex-husband, this evidence, viewed from the theory of defense, is directly linked to the criminal events charged against Johnson. The probative value of other acts evidence is partially dependent on its nearness in time, place and circumstance to the alleged act sought to be proved. Id. at 261, 378 N.W.2d at 280. The evidence involved the relationship between the principal actors (Johnson and Petersen), followed on the heels of Petersen's accusations against Johnson, and, most importantly, traveled directly to Johnson's theory as to why Petersen was falsely accusing him. ²

If Johnson truly owned the disputed property...