Vanlue v. State
| Citation | 291 N.W.2d 467,96 Wis.2d 81 |
| Decision Date | 06 May 1980 |
| Docket Number | No. 77-842-CR,77-842-CR |
| Parties | Daniel VANLUE, Plaintiff in error, v. STATE of Wisconsin, Defendant in error-Petitioner. |
| Court | United States State Supreme Court of Wisconsin |
Daniel L. Vanlue was convicted of possession of burglarious tools, contrary to sec. 943.12, Stats., following a jury trial in the county court of Racine county, JOHN C. AHLGRIMM, County Judge, presiding. Vanlue was sentenced to an indeterminate term not to exceed two years and has appealed from his judgment of conviction.
The court of appeals reversed the judgment of conviction and remanded the cause for a new trial. We granted the petition of the State of Wisconsin for review of the decision of the court of appeals.
Betty R. Brown, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error-petitioner.
Steven P. Weiss, Asst. State Public Defender (argued), with whom on the brief was Richard L. Cates, State Public Defender, for plaintiff in error.
The issues on this review relate to whether the trial court committed reversible error in admitting into evidence testimony relating to prior convictions of burglary for the limited purpose of proving intent. The court of appeals held that the trial court committed reversible error in admitting such evidence and reversed the judgment of conviction. We reach the opposite conclusion.
Because of the issues raised on this review, it is unnecessary to restate the evidence presented on the substantive crime. See: Vanlue v. State, 87 Wis.2d 455, 275 N.W.2d 115 (Ct.App.1978). We do, however, observe that our review of the record reflects that in addition to a crowbar, a pillow case and cotton gloves, the jury could reasonably conclude that at the time the defendant was searched he possessed a "long pocket knife" which could be used for caseknifing a door, instead of a "penknife (which) could possibly be used for caseknifing a door." Id. at 456, 275 N.W.2d at 116.
In our opinion the issue which determines this review is whether the trial court erred in admitting evidence of two prior burglary convictions of Vanlue for the limited purpose of proving that he possessed burglarious tools with the "intent to use such device or instrumentality to break into a depository, building or room, and to steal therefrom, . . ." 1
The defendant and another person were arrested in a parking lot at the rear of an apartment building in Burlington, Wisconsin, between 1:30 a. m. and 2:00 a. m. Vanlue apparently lived in Lake Geneva, Wisconsin. When the defendant was searched at the scene, the officers found a crowbar in the sleeve of the jacket he was wearing, a pillow case and long pocket knife in the jacket pocket, and he was wearing cotton gloves. Initially the defendant denied any knowledge of a Volkswagen van parked nearby. Later he said they had parked the van because neither he nor the person he was with had a driver's license, and they were concerned about driving without a license and intended to return the next day with someone who had a driver's license to pick up the van. He also told the officers he intended to hitchhike to Lake Geneva, had borrowed the jacket from a friend, and did not know the knife and pillow case were in the pockets. He further stated that he was wearing the cotton gloves because of the inclement weather and that he had the crowbar up his sleeve for protection while hitchhiking. The arrest occurred on March 30, 1977, and the temperature was about 50 degrees at the time.
After the state rested and prior to the presentation of the defense, the assistant district attorney, in the absence of the jury, asked for a ruling pursuant to sec. 901.04, Stats., with respect to the admission into evidence of the defendant's prior criminal record. Specifically, he requested a ruling on whether the state, for the purpose of attacking the defendant's credibility, could ask the defendant whether he had ever been convicted of a crime and, if so, how many times. The assistant district attorney indicated that the defendant had six prior burglary convictions. The defense counsel agreed that there had been six prior convictions, but he was uncertain about the nature of the crimes and their status as felonies or misdemeanors. The state did not have certified copies of the judgments of conviction. Defense counsel agreed to stipulate that there had been two prior convictions of burglary. The trial court thereafter ruled that on cross-examination of the defendant, the state could ask the defendant, "Have you been convicted of a crime?" and "How many times?" and that the answers to be given by the defendant were respectively, "Yes." and "Two."
The assistant district attorney then asked for a ruling on the admissibility of the nature of the prior convictions. The state's position was that since one of the elements of the crime charged was possession of tools with intent to use them in a burglary, prior convictions for burglary were relevant to the issue of intent and admissible evidence under the provisions of sec. 904.04(2), Stats. Defense counsel entered a proper objection. The trial court ruled that evidence of the commission of similar crimes by the defendant could be received for the purpose of showing intent, and that it would permit testimony in respect to the two burglaries only for the purpose of showing the intent element of the charged crime. The trial court also stated that it would instruct the jury on the limited use of such evidence.
The defense counsel had reserved his opening statement until the beginning of the defense presentation. In the course of that opening statement he told the jury:
However, on direct examination the interrogation of the defendant was restricted to the fact that he had been convicted of burglary on two occasions. Further, counsel made it a matter of record that his questions concerning the defendant's prior record were offered because of the ruling of the trial court. The trial court responded, stating that the defendant had waived no rights in so doing.
The trial court instructed the jury and included the following limiting instruction:
The court of appeals held that evidence of the defendant's two prior burglary convictions was inadmissible under sec. 904.04(2), Stat., because such evidence merely tended to prove that the defendant acted in conformity with his character. The court stated that the prior crimes evidence was not relevant to show intent, but was relevant only to show that the defendant was guilty of possession of burglarious tools because he had committed burglary before and was about to do it again.
Evidence of the defendant's two prior convictions of burglary was clearly relevant under the Wisconsin definition of relevancy which has been codified in sec. 904.01, Stats. That section provides:
The evidence in question bears directly on one of the elements of the crime of possession of burglarious tools intent. Mere possession of a crowbar and a pocket knife, along with a pillow case and a pair of gloves, is not a violation of sec. 943.12, Stats. Before possession of such tools is a crime under the provisions of sec. 943.12, it must be proven that the possession was "with intent to use such device or instrumentality to break into a depository, building or room." Evidence that the defendant had been convicted of burglaries in the past is relevant to the intent element, when supported by the time and place of his arrest, because it makes it more probable than it would be without the evidence that the defendant possessed the tools with the requisite intent to use them to commit a burglary. Because the defendant had previously been convicted of burglary, he had knowledge of what tools were necessary or could be used in a burglary.
Because evidence of prior burglary convictions was relevant to intent and was not sought to be introduced as proof of the character of the defendant in order to show that he acted in conformity therewith, it was admissible under sec. 904.04(2), Stats.
Sec. 904.04(2), Stats., provides:
This court has held that other crimes evidence is admissible as proof of intent under the provisions of sec. 904.04(2), Stats. See: Simpson v. State, 83 Wis.2d 494, 510, 266 N.W.2d 270 (1978); Peasley v. State, 83 Wis.2d 224, 233, 265 N.W.2d 506 (1978); King v. State, 75 Wis.2d 26, 43-45, 248 N.W.2d 458 (1977). In Peasley v. State, supra, this...
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