State v. Wallerman, 95-1950-CR

• Decision Date: 26 June 1996
• Docket Number: No. 95-1950-CR,95-1950-CR
• Parties: , 65 USLW 2102 STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. WALLERMAN, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 128

552 N.W.2d 128

203 Wis.2d 158, 65 USLW 2102

STATE of Wisconsin, Plaintiff-Respondent, v. Michael J. WALLERMAN, Defendant-Appellant. ^d

No. 95-1950-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs May 14, 1996.

Opinion Released June 26, 1996.

Opinion Filed June 26, 1996.

On behalf of the defendant-appellant, the cause was submitted on the brief of Glen B. Kulkoski of Carr, Kulkoski & Stuller, S.C. of New Berlin.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and James M. Freimuth, Assistant Attorney General.

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

BROWN, Judge.

Michael J. Wallerman appeals his convictions of attempted homicide, attempted sexual assault and armed burglary following a jury trial. He challenges the trial court's decision to admit "other acts" evidence, specifically, his sexual assault of a different woman which assault was otherwise unrelated to the current charges. While the State used this "other acts" evidence to prove Wallerman's motive and intent, Wallerman contends that it was nonetheless irrelevant because the sole issue at trial was identification. We reject Wallerman's contention because our review of the record convinces us that he never affirmatively conceded the issue of the attacker's motive and intent.

The facts supporting the jury's verdict are as follows. ¹ On the evening of June 10, 1994, Wallerman met with some friends at a tavern in Mukwonago. Wallerman became intoxicated. While he was at the bar, he made several comments to his friends involving some women at the tavern and his sexual desires.

At about 11:00 p.m., Wallerman left the bar with his friends and went to one of their homes in East Troy. About a half hour later, Wallerman told his friends that he was headed home.

Wallerman, however, first drove to Carolyn K.'s house. He knew Carolyn's sister from high school, but the sister was not home. Wallerman nonetheless spoke to Carolyn for some time at the front door. But when Wallerman attempted to reach out and kiss Carolyn, she told him "no" and tried to push him away. Wallerman still managed to grab at her breast before leaving. ²

After Wallerman left Carolyn, he drove to the house of another friend, Gary G. He rang the doorbell a few times until Gary's mother, Deborah, eventually came to the door. He then forced his way into the house and knocked Deborah down. Wallerman pulled out a knife, waved it in Deborah's face and tried to stab her with it. Deborah, however, was able to fend Wallerman off.

Their scuffle awoke Deborah's husband and her other son, Sean, who both came downstairs. Wallerman ran away and the two men chased after him. Although Sean caught Wallerman, he received cuts on his hand and knee from Wallerman's knife. The local police subsequently took Wallerman into custody.

In addition to the testimony from Wallerman's friends who were with him earlier that evening and Carolyn, Deborah and Sean, the State called Kristin K. She testified that Wallerman had assaulted her about four years earlier. On February 6, 1990, Kristin was walking down a road late in the evening and Wallerman grabbed her from behind. He pulled her into a backyard and groped at her breasts and genitals. Wallerman also flashed a knife. Kristin was nonetheless able to fight Wallerman off. She could identify Wallerman because they both worked at a local grocery store.

This appeal centers on the admission of Kristin's testimony and thus pertains to the trial court's discretionary control over the admission of evidence. We may not reverse unless we find that the trial court applied the wrong legal standard or applied the legal standard to the facts in an illogical manner. See State v. Rogers, 196 Wis.2d 817, 829, 539 N.W.2d 897, 902 (Ct.App.1995).

Wallerman begins by focusing on the rationale that the trial court gave during pretrial proceedings when it decided to admit the "other acts" evidence. The court accepted the State's claim that Wallerman's attack on Kristin was admissible because it revealed Wallerman's reason and purpose for attacking Deborah: a means by which to get sexual gratification. See § 904.04(2), STATS.

However, Wallerman argues that "as the case developed and concluded, motive and intent were not the affirmatively contested issues of the defense." Instead, Wallerman contends that he only pursued the theory that Deborah had identified the wrong assailant. Whatever rationale supported the admission of the "other acts" evidence before trial, Wallerman contends that the trial court erred when it later permitted the State to use this evidence because it was no longer relevant to the issues that the jury actually needed to resolve.

Alternatively, Wallerman adds that the "other acts" evidence was unfairly prejudicial. Here, he argues that as he switched to the misidentification strategy, the State's need to introduce proof on motive and intent became less significant. Moreover, as Wallerman turned the trial to the issue of identification, the State's "other acts" evidence fulfilled the improper purpose of suggesting to the jury that Wallerman was the assailant simply because he had a propensity to commit this type of crime.

In response, the State first argues that regardless of the defendant's choice of trial strategy, it may always introduce "other acts" evidence about the defendant's motive and intent. The State points to the following excerpt from State v. Plymesser, 172 Wis.2d 583, 493 N.W.2d 367 (1992), to support this claim:

The state must prove all the elements of a crime beyond a reasonable doubt, even if the defendant does not dispute all of the elements. Motive is relevant to the "purpose" element in this case. Evidence relevant to motive is therefore admissible, whether or not [the] defendant disputes motive.

Id. at 594-95, 493 N.W.2d at 372 (citation omitted) (emphasis added). The State claims that the plain language of this passage established a rule allowing the State to always introduce "other acts" evidence relevant to motive and intent even when the defendant does not dispute these issues. Accordingly, the State argues that this evidence revealing Wallerman's motive and intent was admissible regardless of how he defended the charges.

While we agree that the face of the Plymesser decision supports the State's interpretation, we conclude that the State has taken this language out of its context. Our analysis of the facts and reasoning in Plymesser reveals that there are limitations on the State's ability to admit "other acts" evidence revealing the defendant's motive and intent; therefore, this language from Plymesser does not control the outcome of this case.

Of course, this case and Plymesser share some similarities. Like Wallerman, Plymesser was also accused of sexual assault and challenged the State's use of "other acts" evidence as proof of motive and intent. Plymesser was accused of assaulting a young girl while the two were driving to a Christmas party. The State sought to introduce Plymesser's twelve-year-old conviction for assaulting another girl along with the factual details; it believed that this "other acts" evidence showed Plymesser's purpose, motive and intent on the current charges. See id. at 586, 493 N.W.2d at 369.

But Plymesser chose to defend his charges in a different manner than Wallerman and that is where the similarities between the cases diverge. Unlike Wallerman, Plymesser did not claim that the victim wrongly identified him. Rather, Plymesser acknowledged that he drove the girl in his car but denied that the assault ever occurred. Since Plymesser did not directly challenge the State's claim that he intended to assault the girl, he argued that the State's "other acts" evidence showing his motive and intent was not relevant to the trial issues. See id. at 594, 493 N.W.2d at 372.

The supreme court, however, upheld the decision to admit the evidence stating the rule which the State now wants to use against Wallerman: "Evidence relevant to motive is therefore admissible, whether or not [the] defendant disputes motive." See id. at 594-95, 493 N.W.2d at 372. Nonetheless, the State's attempt to apply this rule does not mesh with its stated rationale. The lengthier passage we cited above shows that the rule is designed to ensure that the State meets its fundamental burden of proving all the elements of a crime beyond a reasonable doubt. See id. Thus, even though Plymesser's general denial meant that he never raised a direct challenge to the State's evidence on his motive and intent, the State still needed to prove this element as part of its case against him. Otherwise, there would be a complete absence of evidence showing his mens rea and the verdict would have been flawed. See id.; see also United States v. Brown, 34 F.3d 569, 573 (7th Cir.1994) ("a defendant cannot keep ['other acts'] evidence out of his case by denying all charges."), cert. denied, 513 U.S. 1167, 115 S.Ct. 1136, 130 L.Ed.2d 1097 (1995).

But since Wallerman claims to have conceded that the State established that Deborah was attacked and that whoever was responsible did so to obtain sexual gratification, he submits that the State had no need to spend time introducing evidence on these issues to meet its burden of proof. In essence, Wallerman argues that the trial court should have excluded the State's "other acts" evidence because it was unnecessary and a waste of time. See § 904.03, STATS. In fact, while the Plymesser court seemed most concerned about the possible prejudicial effect of the State's "other acts" evidence, see 172 Wis.2d at 595, 493 N.W.2d at 373, it did write a general rule which appears to apply in this case: "If the other acts evidence is offered for a proper purpose, the evidence is subject only to the general strictures limiting admissibility such as secs. 904.02 and 904.03." Id. at 592, 493 N.W.2d at 371 (quoted source omitted). Th...