State v. Jones
| Decision Date | 21 June 1989 |
| Docket Number | No. 88-2291-CR,88-2291-CR |
| Citation | 151 Wis.2d 488,444 N.W.2d 760 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Elijah JONES, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Donald J. Hanaway, Atty. Gen., and Paul Lundsten, Asst. Atty. Gen., on the briefs, for plaintiff-respondent.
William J. Tyroler, Asst. State Public Defender, on the briefs, for defendant-appellant.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
Elijah Jones (Jones) appeals from a judgment convicting him of one count of sexual assault, in violation of sec. 940.225(1)(d), Stats., and from an order denying his sec. 809.30, Stats., motion for modification of his ten-year prison sentence, which was imposed pursuant to his conviction. We conclude that the trial court did not abuse its discretion by admitting certain "other acts" evidence at trial. Furthermore, the record before this court establishes that the trial court committed no abuse in determining Jones' sentence. Therefore, the judgment and order must be affirmed.
This case stems from events which occurred in the early morning hours of September 10, 1986. Testimony at trial established that Jones returned home after an evening of heavy drinking with friends. His wife, Jennifer, was asleep on a couch in the living room, and her eleven-year-old daughter, K.T., and her two sons were asleep in their bedroom. K.T. testified that she was awakened by Jones. He already had removed her clothing, told her to put on her bathrobe, and motioned for her to go into his exercise room, where he often slept. Over objection by defense counsel, K.T. stated that she knew Jones wanted to do "[w]hat he always do to me." K.T. went into Jones' room, where she claimed he placed his penis in her vagina. This sexual activity continued for approximately fifteen to twenty minutes, until Jones and K.T. heard Jennifer's movements in the next room. K.T. stated that Jones told her to leave his room, and that he left to find her mother.
Jennifer testified that she heard a child's whimper, awoke, and found that K.T. was in neither her bedroom nor the adjoining bathroom. Jennifer was met by Jones in the living room, and when she later went back into K.T.'s room, K.T. was in her bed. K.T. informed her mother of Jones' actions, and Jennifer brought her to Children's Hospital in Milwaukee for treatment. A physical examination established that K.T.'s vaginal diameter was three times the normal diameter of a girl her age, and that the area below her vaginal opening showed signs of trauma. No semen or other physical evidence was found. Jones was later arrested, and charged with sexually assaulting K.T.
As noted above, K.T. maintained at trial that Jones had assaulted her on more than one occasion. Specifically, K.T. testified that Jones had placed his penis in her vagina on six or seven prior occasions. Jones' arresting officer testified that when initially arrested, Jones made statements to the effect that he had not engaged in intercourse with K.T., but that he had inserted his finger into her vagina and had done so on prior occasions when intoxicated. The prosecution was allowed to introduce this evidence of "other acts" to determine motive, plan and the general scheme of the crime. At trial, Jones denied any sexual contact with K.T. whatsoever.
The jury returned a guilty verdict on March 22, 1988. Judgment was entered accordingly and Jones was sentenced on July 1, 1988. In sentencing Jones to ten years of imprisonment, the trial court noted that both K.T. and her mother were devastated by Jones' conduct, so much that the family moved away from the community. The court also recognized that Jones: (1) had no prior record; (2) had no history of undesirable behavior patterns; (3) did not appear to be a vicious person; (4) was seeking help for his alcoholism; (5) had improved his employment record; (6) was twenty-nine years old; and (7) had limited education. The court also noted that until the sentencing hearing itself, Jones denied committing the assault against K.T., and thus took no responsibility for his actions and expressed no remorse.
The trial court also discussed the vicious and aggravated nature of Jones' crime. The court described it as "conduct that's so devastating to children and an innocent parent that it just cannot be allowed in a civilized society." The court also noted that "[t]here's an entire school of thought with regard to the therapist and behavioral people that the first step of rehabilitation as far as the damaged victim is a substantial period of incarceration for the offender." One of the court's conclusory remarks was that it was "trying to tailor a sentence here to meet the needs of the defendant, the community and this little victim and her mother,...."
On November 22, 1988, Jones filed a motion to modify his sentence, pursuant to sec. 809.30, Stats. In support of his motion, Jones argued that the trial court abused its discretion by considering the "rehabilitative needs of the victim" factor in determining his sentence. This motion was denied in an order entered on December 6, 1988.
Jones now appeals from his judgment of conviction and sentence, and from the order of December 6, 1988. Jones brings two issues before this court: (1) whether the trial court abused its discretion by admitting the "other acts" evidence; and (2) whether the trial court abused its discretion by considering the above-noted sentencing factor.
Appellant argues that evidence of his alleged prior sexual contacts with K.T. was wrongfully admitted by the trial court, because K.T. did not elaborate on the specific circumstances surrounding those contacts by providing the court with time and place details. Our review of this issue is governed by the "abuse of discretion" standard, and the trial court's decision to admit the "other acts" evidence will be upheld if it is in accordance with legal standards and facts of record, if the trial court undertook a reasonable inquiry and examination of the underlying facts, and if there exists a reasonable basis for the determination. 1
Section 904.04(2), Stats., "does allow admission of other acts evidence if used for specific purposes, such as proof of motive or identity." 2 To be admissible, the other acts evidence must be relevant to one of the statutory exceptions, and its probative value must substantially outweigh its prejudicial effect. 3 We note that "[t]he prejudice which must be avoided is the potential harm of a jury reaching the conclusion that because the defendant committed a bad act in the past, the defendant necessarily committed the current crime." 4 However, we further note that "Wisconsin historically has allowed the introduction into evidence of prior sexual acts by the accused with the same person who was the victim in the case being prosecuted." 5 Also, "a greater latitude of proof is to be allowed in the admission of other acts evidence in sex crime cases, particularly those involving a minor child." 6
Our review of the record illustrates that the trial court reasonably inquired into the facts of the case, examined them and then applied the facts to proper legal standards. K.T.'s assertion that she had been assaulted six or seven times in the same manner as the assault which led to Jones' arrest is relevant to motive, plan and the general scheme of the crime. K.T.'s testimony suggested that on prior occasions, Jones sought sexual gratification by placing his penis into her vagina. These assaults took place in the home Jones shared with his wife and her three children.
Any possible prejudicial effect of the "other acts" evidence was offset by the trial court's instructions, which explained to the jury that such evidence was "admitted solely on the issue of opportunity, preparation or plan." Furthermore, the jury was informed of the State's burden to establish the truth of the other occurrences, and that the alleged other contacts could not be used to evaluate Jones' character. Finally, the jury was instructed that K.T.'s inability to remember particulars about Jones' prior sexual contacts could be used to assess her credibility.
Therefore, there exists a reasonable basis for admission of evidence of Jones' alleged prior sexual contacts with K.T., and we must affirm the trial court's decision. We also note that given the strength of the evidence against Jones, which included the testimony of K.T. and Jennifer, and the physical evidence produced from K.T.'s medical examination, if the trial court had been in error for admitting the "other acts" evidence, such error would have been harmless because there is no reasonable probability that the error contributed to Jones' conviction. 7
Appellant next argues that the trial court abused its discretion by considering the rehabilitative needs of K.T. as a sentencing factor. Appellant asserts that the "rehabilitative needs of the victim" is not a factor supported by legal precedent, and should thus not have been considered.
It is a well-settled principle of law in Wisconsin that sentencing is left to the discretion of a trial court, and that appellate review is limited to determining if an abuse of discretion has occurred. 8 The three primary sentencing factors a trial court must consider are: (1) the gravity of the offense; (2) the character of the offender; and (3) the need for the protection of the public. 9 Additional factors that the trial court may take into consideration are: (1) the past record of criminal offenses; (2) any history of undesirable behavior patterns; (3) the defendant's personality, character and social traits; (4) the results of a presentence investigation; (5) the vicious or aggravated nature of the crime; (6) the degree of the defendant's culpability; (7) the defendant's demeanor at trial; (8)...
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