State v. Roberson

• Decision Date: 25 July 1990
• Docket Number: No. 89-2368-CR,89-2368-CR
• Citation: 459 N.W.2d 611,157 Wis.2d 447
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. David ROBERSON, Jr., Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 611

459 N.W.2d 611

157 Wis.2d 447

STATE of Wisconsin, Plaintiff-Respondent, v. David ROBERSON, Jr., Defendant-Appellant. ^d No. 89-2368-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 31, 1990.

Opinion Released July 25, 1990.

Opinion Filed July 25, 1990.

William J. Tyroler, Asst. State Public Defender, on brief, for defendant-appellant.

Donald J. Hanaway, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., on brief, for plaintiff-respondent.

Before NETTESHEIM, P.J., SCOTT, J., and Circuit Judge DANIEL P. ANDERSON, acting.

NETTESHEIM, Presiding Judge.

David Roberson, Jr. stands convicted of concealing stolen property as a repeat offender in connection with his possession of a stolen automobile engine. On appeal, Roberson argues that the trial court erred (1) when it admitted other acts evidence of his subsequent, unrelated arrest for possession of a stolen vehicle, and (2) when it submitted the case to the jury on an improper theory. We conclude that the other acts evidence was properly admitted on the issue of intent and that the language of the jury instruction, while partially incorrect, did not constitute reversible error. Accordingly, we affirm the judgment of conviction.

In September 1988, Roberson was arrested and charged with concealing stolen property when a stolen engine was discovered in his racing car. The case was tried to a jury. Roberson asserted the defense of lack of criminal intent, claiming that he did not know the engine was stolen. He testified that he purchased the used engine in Chicago from a man named Chuck Dickerson for $5000 cash and received a bill of sale. Roberson produced the bill of sale--a handwritten, notarized note, signed by Dickerson, stating that Dickerson had sold the engine to Roberson. However, Roberson did not know where Dickerson could be located. Roberson testified that he did not know the engine was stolen, even though there were no serial numbers on the motor, since such numbers are "automatically" removed anytime a motor is milled.

Over Roberson's motion in limine objection, the trial court admitted evidence of Roberson's possession of a stolen vehicle which occurred four months after the offense at issue. The court ruled that this other acts evidence was admissible pursuant to the "plan" exception of sec. 904.04(2), Stats. On cross-examination, Roberson admitted that in January 1989 he paid $6000 cash to an unidentified man in Chicago for the vehicle. Roberson also testified that he had a bill of sale for the vehicle at his home in Chicago. The trial court instructed the jury to consider this evidence solely on the issue of Roberson's alleged "preparation, plan, design or scheme." The jury found Roberson guilty of intentionally concealing stolen property.

On appeal, Roberson argues that the trial court erred in admitting the other acts evidence of his possession of a stolen vehicle. Evidence of other acts is not admissible to show a person's criminal propensity. See sec. 904.04(2), Stats. However, the rule does not exclude evidence offered for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Id. The trial court in this case ruled that the other acts evidence was admissible because it was relevant to the issue of Roberson's alleged plan.

The admission of evidence rests within the discretion of the trial court. State v. Mink, 146 Wis.2d 1, 13, 429 N.W.2d 99, 104 (Ct.App.1988). We will not find an abuse of discretion if the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of the record. Id.

The trial court must apply a two-prong test in determining whether other acts evidence is admissible: (1) whether the evidence is relevant to one of the exceptions to sec. 904.04(2), Stats.; and (2) whether any prejudice resulting from admission of the evidence substantially outweighs its probative value. Mink, 146 Wis.2d at 13, 429 N.W.2d at 103-04. Implicit in the foregoing analysis is the requirement that the other acts evidence is relevant to an issue in the case. State v. Friedrich, 135 Wis.2d 1, 19, 398 N.W.2d 763, 771 (1987).

Roberson's claim of error lies in the trial court's application of the first prong of the test. He argues that the evidence was not relevant to the "plan" exception to sec. 904.04(2), Stats. Before us, the state concedes--and we agree--that other acts evidence of Roberson's possession of the stolen vehicle was inadmissible under the "plan" rationale employed by the trial court.

Our supreme court has defined "plan" under sec. 904.04(2), Stats., to mean "a design or scheme formed to accomplish some particular purpose." State v. Spraggin, 77 Wis.2d 89, 99, 252 N.W.2d 94, 98 (1977). "Evidence showing a plan establishes a definite prior design, plan, or scheme which includes the doing of the act charged." Id. (emphasis added). While the charged offense and the other acts evidence in this case are similar in that they involve Roberson in the possession of stolen motor vehicle property, the evidence fails to show the necessary "linkage" between the two events which permits the conclusion that the latter act "led to the commission of the offense charged." Wis JI--Criminal 275.

Although the trial court articulated the wrong reason for admission of the stolen vehicle evidence, we will affirm if the ruling is proper on other grounds. See State v. Holt, 128 Wis.2d 110, 124, 382 N.W.2d 679, 687 (Ct.App.1985). The state argues that the evidence in question was relevant to the issue of Roberson's knowledge. Although closely related and many times overlapping, knowledge and intent are separate concepts. State v. Evers, 139 Wis.2d 424, 436 & n. 9, 407 N.W.2d 256, 262 & n. 8 (1987). We disagree with the state's knowledge theory, but conclude that the evidence was admissible on the issues of Roberson's criminal intent.

At trial, Roberson conceded that the engine was stolen and that he concealed it. His defense was that his concealment was without knowledge that the engine was stolen. This put at issue the question of Roberson's criminal intent and knowledge.

"The knowledge principle requires that the former possession [of stolen goods] be likely to have led to a knowledge or a warning of the stolen character of those goods, and that such warning would have naturally warned the defendant also of the stolen character of the goods in question." 2 Wigmore, Evidence sec. 324, at 286 (Chadbourn ed. 1979) (emphasis added) (citation omitted). Evidence of other similar acts, even if originally innocent, makes it unlikely that the defendant did not have the requisite state of knowledge as to the criminal character of his acts by the time of the charged crime. Evers, 139 Wis.2d at 440, 407 N.W.2d at 263.

Because the knowledge principle is based on the theory that the defendant was put on notice of the criminal nature of the charged act by virtue of his other, similar activities, it follows that the other acts must occur prior to the charged act. That is not the case here. Thus, Roberson's possession of a stolen vehicle four months after he was charged with concealing the stolen engine did not demonstrate that he had the requisite knowledge during the time he purchased and possessed the stolen engine.

Although not relevant on knowledge grounds, we conclude that the other acts evidence in this case was relevant on the question of Roberson's intent. Such evidence "tends to undermine the defendant's innocent explanation for his act." Id. at 437, 407 N.W.2d at 262 (quoting Weinstein & Berger, Weinstein's Evidence sec. 404, at 404-84 (1985)).

The reasoning of this argument is that the recurrence of a like act lessens by each instance the possibility that a given instance could be the result of inadvertence, accident, or other innocent intent. Accordingly, the argument here is that the oftener A is found in...