State v. Jones, Appeal No. 2018AP948-CR
| Decision Date | 20 August 2019 |
| Docket Number | Appeal No. 2018AP948-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Sean N. JONES, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Sean Jones appeals a judgment of conviction for armed robbery as a party to the crime, as well as an order denying his motion for postconviction relief. Jones asserts there was insufficient evidence to support the jury’s finding that Jones knew his accomplice was armed with a firearm during the commission of the offense. Additionally, Jones argues the real controversy was not fully tried because the circuit court failed to give certain jury instructions, including the instruction for the lesser-included offense of simple robbery, and because it admitted certain improper identification evidence, including evidence of Jones’s nickname, "Sneak." Finally, Jones challenges certain aspects of his sentence. He contends the court failed to explain how the specific length of Jones’s initial confinement advanced the articulated sentencing objectives, and that it also failed to award 204 days' sentence credit for the time Jones was in custody between his arrest and his sentencing after revocation of a probationary term imposed in earlier cases.
¶2 We reject Jones’s challenges to his conviction and to the circuit court’s exercise of its sentencing discretion, but we conclude Jones is entitled to the sentence credit he seeks. To explain, we conclude the jury could reasonably infer from the circumstances of the robbery that Jones knew his accomplice was armed with a firearm. We also conclude Jones is not entitled to a new trial in the interest of justice based upon either the court’s failure to give certain jury instructions or the court’s evidentiary decisions. We further reject Jones’s challenge to the court’s exercise of its sentencing discretion because the court provided the required explanation for the general range of the sentence imposed. However, because Jones was held in custody on a probation hold as a result of the armed robbery, he is entitled to sentence credit for the time he spent confined between his arrest and his sentencing after revocation. Accordingly, we affirm in part, reverse in part, and remand with directions for the circuit court to grant Jones’s motion for sentence credit.
¶3 On May 29, 2016, at approximately 2:30 a.m., two masked African-American men entered the lobby of a Rodeway Inn in Eau Claire. They approached the desk where the clerk, Elena,1 was working, and the first man—who was the shorter of the two—came behind the desk to where Elena was seated. The second, taller individual stood in front of the desk and told Elena to sit still and not move. The shorter individual emptied a nearby bag and thrust the bag at Elena, at which point she assumed she was being robbed. Elena testified that throughout the robbery, the shorter man never spoke and mostly kept his back turned to her. Elena found this movement unusual because, in this position, the man was facing a conspicuous camera in the lobby.
¶4 Elena stood and began emptying the contents of the cash drawer into the bag. The taller individual then told Elena to also empty the deposit drawer, which was where employees at the end of their shifts would deposit cash in excess of the cash drawer’s $150 starting balance. Elena told the taller individual that the deposit drawer was locked and she did not have a key. Elena testified that most hotels have a safe rather than a deposit drawer, and that for someone to know about that drawer, they would need to have worked at the Rodeway Inn or have been told of the drawer by an employee.
¶5 After being told that the deposit drawer was inaccessible, the shorter individual approached Elena and began grabbing items that remained in the cash drawer. That drawer’s contents included a white Samsung cell phone charger belonging to another employee, which Elena had wrapped in white paper on which the employee’s name was written. The shorter individual walked out from behind the desk, and Elena asked if she could sit down. The taller individual told Elena not to move, and he pulled up his shirt to reveal the handle of a handgun tucked into his pants. The robbers then left the building. Elena ran to a nearby office where the hotel owners were sleeping, and together they called 911.
¶6 Shortly before the robbery, Elena saw an older beige car slowly circling the parking lot. Elena knew the car belonged to Jones, whom she knew then only as "Sneak," and she identified Jones as the driver. At the time of the robbery, "Sneak" and Elena were staying with a mutual friend, who had also worked at the Rodeway Inn. Elena told the 911 operator about "Sneak" and told police he may have been involved in the robbery. Elena was sure the taller man was not Jones because of his voice and height, but she believed Jones might have been the shorter of the two African-American individuals she saw during the robbery.
¶7 Eau Claire police officer Benjamin Wutschke responded to the robbery and began looking for "Sneak," whom Wutschke knew to be Jones based on "past professional contacts." About one-half hour after the robbery, Wutschke located Jones driving alone in a tan vehicle approximately four to five miles away from the Rodeway Inn. Jones was taken into custody, and a search of his wallet and the vehicle yielded approximately $280 in cash, $135 of which was found in the vehicle’s cup holder. No weapon was found in the vehicle, and police did not immediately seize the vehicle. Jones’s arrest triggered a probation hold in two prior cases. The second, taller individual was never identified or apprehended.
¶8 Police subsequently returned to Jones’s vehicle, which they had left at the scene of Jones’s arrest, to attempt to match clothing found within it to the clothing seen in surveillance videos of the robbery. The clothing in Jones’s car did not match the robbers' clothing. However, Jones’s wife at the time, who picked up the vehicle after police had attempted to match the clothing, later notified police that she had found a white Samsung cell phone charger in the car. The charger had a piece of paper attached to it with a Rodeway Inn employee’s first name on it. At the time of Jones’s arrest, police had not yet been notified that a charger had been taken in the robbery, and they were looking only for money or a weapon.
¶9 Jones was tried for armed robbery as a party to the crime. At trial, surveillance video of the robbery was played for the jury. Detective Ryan Prock testified it was significant that in the video, the shorter suspect "does everything with his back to the victim[,] which leads me to believe that if they were to see each other, she would recognize him." Prock testified that he had personally viewed and photographed the piece of paper attached to the cell phone charger, but he did not know the significance of the evidence at that time and did not collect it.2 Prock showed the photograph of the paper to one of the hotel owners, who advised him that a cell phone charger had been taken during the robbery. The hotel owner stated the paper in the photograph had come from his Rodeway Inn and had the hotel’s property code on it, as well as an employee’s name. Prock then reviewed the photographs of Jones’s car taken when he was arrested. In the background of two of the photographs he noticed a white cell phone charger with a piece of paper attached to it.
¶10 The jury found Jones guilty.3 The circuit court sentenced Jones to a total bifurcated sentence of thirteen and one-half years, consisting of nine and one-half years' initial confinement and four years' extended supervision. The sentence was ordered to be served concurrent to any other sentence. The defense requested sentence credit, but the court declined to award any, stating it would set the amount of credit at zero and allow Jones to submit a future request for sentence credit with supporting authority.
¶11 Jones filed a motion for postconviction relief. He argued: (1) the evidence was insufficient to support his conviction as a party to the crime of armed robbery; (2) he was entitled to a new trial in the interest of justice because the jury should have been instructed on the lesser-included offense of simple robbery and because testimony regarding Jones’s nickname and prior police contacts "clouded the jury’s consideration" of the crucial identity issue; (3) the circuit court erroneously exercised its sentencing discretion because it failed to explain how the duration of Jones’s sentence advanced the court’s articulated sentencing objectives; and (4) he was entitled to 204 days of sentence credit for the time he spent in custody between his arrest on May 29, 2016, and December 19, 2016, when he was sentenced after probation revocation in the earlier cases.4
¶12 The circuit court denied Jones’s motion for postconviction relief. The court concluded the evidence at trial was sufficient to support inferences that Jones and his accomplice had extensively planned the robbery, that Jones knew his accomplice was armed, and that Jones had aided in the commission of the offense. The court also declined to order a new trial, observing that Jones had not requested an instruction regarding a lesser-included offense and that the evidence regarding Jones’s nickname was "relevant and admissible." Finally, the court concluded it had adequately explained the reasons for Jones’s sentence at the hearing, and it declined to award any sentence credit because Jones was not "in custody" on the armed robbery charge after his arrest and he had received sentence credit for the same time period in the earlier cases. Jones now appeals, raising the same claims he raised in his motion for postconviction relief.
¶13 As explained above, Jones challenges various aspects of his trial and sentence. For the reasons that follow, we reject his challenges to the...
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