STATE of Wisconsin, Plaintiff-Respondent, v. Thomas M. EVERS, Defendant-Appellant-Petitioner.
No. 86-0413-CR
Supreme Court
Argued April 1, 1987. — Decided June 22, 1987.
407 N.W.2d 256 | 139 Wis. 2d 424
For the plaintiff-respondent the cause was argued by William Gansner, assistant attorney general, and a brief filed in the court of appeals by M. Cathleen Huber, assistant district attorney, Appleton.
HEFFERNAN, CHIEF JUSTICE. This is a review of an unpublished court of appeals decision dated August 19, 1986, which affirmed a judgment of
On this review the defendant asserts that he was prejudiced by the introduction of evidence of prior crimes, which evidence, he asserts, was not admissible under the exceptions provided by
We agree that the admission of the prior crimes evidence was erroneous, but we conclude that, in the context of the entire record, the error was harmless. Accordingly, we affirm the decision of the court of appeals which upheld the conviction.
It is also asserted that the trial judge abused his discretion in imposing a two-year sentence of imprisonment, because he had not sufficiently stated his reasons for imposing the sentence and that, therefore, in the event the conviction is sustained, the defendant asks that the cause be remanded for the imposition of a proper sentence. After a complete examination of the entire record and transcript of trial and the sentencing hearing, we conclude that the sentence was imposed in the exercise of appropriate judicial discretion. The sentence is affirmed.
The facts show that Tom Evers and two other persons removed a race car from the track of the Wisconsin International Raceway in Outagamie county in the early evening of September 25, 1984.
Investigation revealed that the vehicle had been towed away by the joint efforts of the defendant Tom Evers, his brother Joseph Evers, and Jeff Vandenberg. Following investigation, all these persons were charged with theft. Only the charge against Tom Evers is involved in this appeal.
Evers’ defense at trial was that he was not guilty of theft, charged in
Evers attempted to adduce evidence at trial that would support his lack of culpable intent. He asserted that there had been a public announcement that drivers were to remove their vehicles within two days after the race or they were considered to be abandoned. There was overwhelming contrary testimony that the announcement made was not to the effect that the vehicles were to be considered ownerless after
Although the evidence is rather clear that a reasonable person would not, on the basis of the evidence in respect to the public announcement, have believed that the property was ownerless or abandoned, in a criminal case of this sort, the test is the subjective intent of the accused person.3 The defendant sought to convince the jury that, on the basis of his interpretation and recollection of the announcements and his knowledge of the practices of the race track, he could not have intended to deprive the owner of possession.
Evers’ defense was quite specific. He admitted hauling the car away but argued that he believed the car to be abandoned. Thus, the only issue was Evers’ intent or knowledge, i.e., did he intentionally steal the car knowing it belonged to another or did he believe the car was abandoned.
During trial the defense of lack of intent was raised and the state, true to its word, in rebuttal offered evidence of one conviction and three read-in charges dating from 1982. They involved incidents which occurred in 1980. The only information given the judge and the jury was:
“[T]hat on December 14, 1982, Mr. Evers was convicted of an offense involving theft. The offense occurred on ... September 2, 1980, and he was convicted of that theft offense. Thеre was additionally three additional counts of theft were dismissed
Defense counsel objected. Out of the presence of the jury, he stated that the convictions had occurred more than three and one-half years ago and were of little probative value for any purpose. Additionally, he stated:
“The incidents are quite different and there has been no showing that the circumstances were those similar to those in the present where the property was kept for a period of time in an area which anybody could gain access to ... [and] where announcements had been made that property was going to be turned over to other people if not claimed ... I think the evidence would tend to simply show that the defendant was a thief and an evil person and that‘s precisely the sort of impression that 904.04 is supposed to prevent a jury from receiving ....”
The court decided to admit the other acts evidence. It found the evidence to be probative on the issue of Evers’ intent or lack of mistake. In the presence of the jury, the state asked the court to take judicial notice of the fact that Evers had been convicted of theft in 1982 and that three other theft charges had been dismissed and read-in at the time Evers was sentenced for that offense. Although the prosecutor stated that the three read-ins were for theft of scrap metal and batteries, the jury was not told what Evers had stolen that had resulted in the actual conviction. In addition, no mention was made of the circumstances surrounding any of the four prior acts. The
Conviction followed, and Evers was sentenced to a two-year prison term under the repeat-offender provisions of
The only rationale for its conclusion in respect to prior crimes was expressed tersely and without explication. The court of appeals stated:
“[I]t is not necessary to know more details of the prior thefts to draw a relevant connection between them and the present offense. Each incident involved a violation for the offense of larceny in violation of
sec. 943.20(1)(a) .... There was therefore a sufficient showing that the prior incidents were similar in time, place, аnd circumstance to justify admissibility.” Opinion at page 3.
It is an accepted principle that evidence of a defendant‘s prior criminal acts is not admissible, in the course of a prosecution for a subsequent offense, in order to show that the defendant was a “bad person” with a propensity to commit crimes and that therefore he must have committed the charged offense.5 Such
Wisconsin‘s prior acts rule is set out in
(2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The rule and its exceptions have been addressed in numerous recent cases. The exceptions to the prohibitions of
Strongly entrenched among many American traditions is the concept that man should not be judged strenuously by reference to the awesome spectre of his past life. When one faces trial for a specific crime, he should not be held to answer for the scandal that his earlier vices would most certainly produce. Though he has committed many crimes under circumstances which would increase the probability that he has committed the crime charged, it is remains an unalterable fact that members of the jury, of nobler root, will lend excessive weight to a record of crime. Evidence of other crimes and misdeeds is not excluded because of an inherent lack of probative value, but is withheld as a precaution against inciting prejudice. Adherents to the common law have for centuries boasted of a certain Anglo-Ameriсan solicitude for the prisoner, contrasting their accusatorial methods with the inquisitorial devices of continental jurists.1 [Footnote omitted.]
In State v. Spraggin, 77 Wis. 2d 89, 94-95, 252 N.W.2d 94 (1977), this court discussed Wisconsin‘s prior acts rule:
In Wisconsin the admission of evidence relating to other crimes, wrongs or acts of the accused is now governed by
sec. 904.04(2), Wisconsin Rules of Evidence .“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subsection does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
The general rule is therefore to exclude use of other misdeeds to prove character in order to prove guilt. The reason for the exclusion of such evidеnce was explained by our court in Whitty v. State, 34 Wis.2d 278, 292, 149 N.W.2d 557 (1967):
“The character rule excluding prior-crimes evidence as it relates to the guilt issue rests on four bases: (1) The overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present charge but because he has escaped punishment from other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated; and (4) the
However, the statute provides exceptions to the general rule prohibiting evidence of other conduct, namely, such evidence is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Even if the evidence of other conduct is admissible under one of the exceptions, the trial judge must exercise his or her discretion to determine whether any prejudice resulting from such evidence outweighs its probative value.
Sec. 904.03, Wis. Rules of Evidence ;5 Whitty v. State, 34 Wis.2d 278, 149 N.W.2d 557 (1967), cert. den. 390 U.S. 959, 88 S. Ct. 1056, 19 L. Ed.2d 1155; Kwosek v. State, 60 Wis.2d 276, 208 N.W.2d 308 (1973). [Footnotes omitted.]
Accordingly, other crimes evidence must be subjected to a two-step analysis before being admitted. First, the evidence must be introduced for the purpose of proving an element listed in
From the time when advancing civilization began to recognize that the purpose and end of a criminal trial is as much to discharge the innocent accused as to punish the guilty, it has been held that evidence against him should be confined to the very offense charged, and that neither general bad character nor commission of other specific disconnected acts, whether criminal or merely meretricious, could be provеd against him. This
ty may not preclude the jury from relying on a defendant‘s apparent propensity toward criminal behavior.55 Accordingly, most recent authority recognizes that the problem is not merely one of pigeonholing, but of classifying and then balancing.56 In deciding whether the danger of unfair prejudice and the like substantially outweighs the incremental probative value, a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.57 [Footnotes omitted.]
See, also, Weinstein & Berger, Weinstein‘s Evidence, sec. 404[08] (1985). They observe:
“... counsel must be prepared to 1) identify the consequential fact to which the proffered evidence of other crimes, wrongs or acts is directed ... 2) prove the other crimes, wrongs or acts ... and 3) articulate precisely thе evidentiary hypothesis by which the consequential fact may be inferred from the proffered evidence ... Evidence which passes muster up to this point must, in addition, satisfy the balancing test ... which requires the probative value of the other crimes evidence to outweigh the harmful consequences that might flow from its admission.”
The probative value of other crimes evidence, which is to be determined as part of the second step of the admissibility analysis, depends on the prior acts’ “nearness in time, place and circumstances to the alleged crime or element sought to be proved.” Whitty v. State, 34 Wis. 2d 278, 294 (1967); State v. Rutchik, 116 Wis. 2d 61, 68, 341 N.W.2d 639 (1984) (citing Whitty). In order to get to the second phase of thе test, the prior acts should have some similarity to the offense for which the defendant is being tried.
Where a defendant‘s intent or knowledge, as in the instant case, is an element of the crime charged, other acts evidence may be introduced on that issue if such evidence is more probative than prejudicial. Most commentators treat knowledge and intent as separate categories, although it seems difficult to make a precise distinction and there appears to be some overlap.9 Because Evers’ defense that he believed Doug Brown‘s car was abandoned and thus available for him to take appears to involve both intent (in the sense that intent is an element of theft—the item
On the issue of intent, Weinstein and Berger comment that “evidence of another crime which tends to undermine defendant‘s innocent explanation for his act will be admitted” (p. 404-84) because “the oftener a like act has been done, the less probable it is that it could have been done innocently.” (Emphasis supplied.) (PP. 404-84 — 404-87.) Repetition of an act implies that a defendant “must have arrived at a mental state inconsistent with innocence by the time of the charged act.” Id. These commentators note, however, that the party offering the other crimes evidence must convince the court that the proffered evidence alters the probability that the defendant had the requisite state of mind at the time he committed the charged offense. They observe that “[c]ourts often stress the similarity of the charged and uncharged acts, and sometimes go so far as to say that in order to be probative the [prior] offense must be similar to the charged act in the sense that the essential physical elements of the two crimes must be alike.” Id. at 404-88 and 404-90.
Wigmore explains that intent involves knowledge, hostile feeling, or “the absence of accidеnt, inadvertence, or casualty—a varying state of mind which is the contrary of an innocent state of mind ....” See, 2 Wigmore, Evidence, sec. 300, p. 238 (Chadbourn rev. 1979). He discusses in detail the theory behind the intent exception to the general prohibition on admissibility of prior acts evidence. Such evidence is admissible, he states, because of the
“Thus, if A while hunting with B hears the bullet from B‘s gun whistling past his head, he is willing to accept B‘s bad aim or B‘s accidental tripping as a conceivable explanation; but if shortly afterwards the same thing happens again, and if on the third occasion A receives B‘s bullet in his body, the immediate inference (i.e., as a probability, perhaps not a certainty) is that B shot at A deliberately; because the chances of an inadvertent shooting on three successive similar occasions are extremely small; or (to put it in another way) because inadvertence or accident is only an abnormal or occasional explanation for the discharge of a gun at a given object, and therefore the recurrence of a similar result (i.e., discharge towards the same object, A) excludes the fair possibility of such an abnormal cause and points out the cause as probably a more natural and usual one, i.e., a deliberate discharge at A. In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with
The similarity of the prior acts to the charged offense is the crucial factor that makes other acts evidence probative on the issue of a defendant‘s intent. Wigmore writes:
“[I]t is at least necessary that prior acts should be similar. Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance.” Id. at sec. 302, p. 245.
Wigmore is critical of the tendency of some courts to err in favor of the prosecution, noting the “numerous instances of actual violation of the character rule by admitting evidence of dissimilar crimes claimed to prove intent.” Id. p. 247 n. 5. Unless the crimes are similar, “the inference of intent arises only if the inference of bad character is first drawn.” See, id. p. 247 n. 5.
Wisconsin cases have also discussed the intent exception. In State v. Spraggin, 77 Wis. 2d 89 (1977), the court found that possession of marijuana (the prior crime) was not probative of intentionally aiding and abetting the delivery of heroin (the charged offense). 77 Wis. 2d at 97. Instead, it could only show that the defendant had dealt in drugs before and was likely to do so again. Thus, the prior crime evidence went only to the prohibited issue of propensity. 77 Wis. 2d at 97 n. 6. The prosecution had failed to connect the prior crime to the charged crime or to explain or demonstrate why the prior crime made an element of the charged offense more likely. See, 77 Wis. 2d at 96.
Wigmore explains the theory under which prior acts are admissible to show a defendant‘s knowledge:
“When fact X is used to show a person‘s knowledge of fact A, it is assumed (a) that through fact X there probably was received an impression by the person; and (b) that this impression would probably result in notice of warning of fact A.” 2 Wigmore, Evidence, sec. 301, p. 239 (Chadbourn ed. 1979).
The rationale which permits the admission of this type of evidence is that:
“The other act will probably have resulted in some sort of warning or knowledge; this warning or knowledge must probably have led to the knowledge in question.” Id.
“[I]f A‘s knowledge of the stolen character of a bar of iron is to be shown, аnd the fact is offered that he has also received and possessed a stolen bicycle, then our inference must assume (a) that A‘s receipt of the bicycle was under such circumstances as to suggest its vendor or pledgor to be a thief, or as to result in a reclamation by the owner and a warning to the defendant; so that (b) when the bar of iron was offered to A, by the same or another vendor or pledgor, the circumstances were such that the former transaction would naturally suggest that this bar of iron was also stolen.” Id.
Thus, the prior act must have resulted in the defendant being more likely to have the state of knowledge that is in dispute in the charged case. Because the admission of the evidence did not make the state of the defendant‘s intent or knowledge more likely, the trial court erred in admitting the prior acts evidence in the present case. There was no testimony, either in the presence of the jury or before the trial judge, as to the similarity of the prior acts and the charged offense. The record rеveals nothing at all regarding the theft for which Evers was convicted in 1982. We do not know what was taken, and we do not know the circumstances under which the theft took place. As for the three read-ins, we know only in a general sense what was taken. We know, and the jury was told, that Evers was charged with taking scrap metal twice and batteries once. We do not know the circumstances under which these items were taken.
Evers’ defense was lack of intent to deprive an owner of a possessory interest, or the corollary theory that he mistakenly believed that the property was abandoned, because he lacked full knowledge of the facts.
There is no evidence of record that the prior crimes were at all factually similar to the offense with which Evers was charged. Absent any mention of similarity or discussion of the reasons why the prior crimes were relevant to the issue of intent or knowledge, the prior acts evidence went only to Evers’ propensity to commit theft. Such propensity evidence
The prior acts were not probative on the issue of Evers’ intent. Similarity of the prior acts and the charged offense are critical for purposes of applicability of the intent exception. We repeat that this is because the intent exception is based on the “doctrine of chances” or the “improbability of a like result being repeated by mere chance.” See, Wigmore, supra, sec. 302, p. 245. If a like occurrence takes place enough times, it can no longer be attributed to mere coincidence. Innocent intent will become improbable. Such an inference cannot reasonably cоme into play, however, where the circumstances surrounding the prior acts are neither known nor mentioned and only the fact of conviction is revealed to the jury. There is no way that the jury could have evaluated the probability of a like result being repeated, or the effect of the prior crimes on Evers’ mental state when he took the car, without knowing something about the prior crimes. Beyond the barebones statement that there was a theft conviction and three read-in thefts—two of scrap metal and one theft of a battery—the trial judge was kept in ignorance of the facts upon which his discretion was to be exercised.
Nor did the prosecutor demonstrate that the prior acts were probative of Evers’ knowledge. For the knowledge exception to come into play, the prosecution must show that the circumstances surrounding the prior crimes indicate that the defendant acquired certain knowledge (or a state of knowledge) that is inconsistent with the defendant‘s innocence in the charged offense. The prosecution never explained what knowledge Evers had acquired as the result of the prior acts. It could not have done so, because even
When we apply these standards and the rational basis justifying the exceptions pertinent to intent, knowledge, and absence of mistake, it is apparent that the trial court erred in admitting the prior crimes evidence and that the court of appeals glossed over that error without critical analysis.
We also comment on the prosecutor‘s justification to the jury of the use of prior crimes evidence. She stated:
“The fact that the defendant knows and has been convicted before and has been told by the public or told by society that you can‘t take what belongs to someone else, that you better make sure that you‘ve got a right to it before you take it, that‘s why that testimony was offered at this time.”
Finally, we have no way of knowing whether Evers’ other crimes evidence put him on notice in the manner suggested by the prosecution. Had Evers been previously convicted of taking property that had been left out in a public place, he might indeed have been put on special notice that such property is not always available to be taken by whomever wants it. Had the facts surrounding the prior crimes been different, however, no such notice or knowledge regarding “potentially abandoned” property would have resulted. Unfortunately, the prosecution either failed to investigate or present the facts surrounding the prior acts. We do not know what type of “notice” was provided by the prior conviction and read-ins. Thus, the trial court erred in ruling that the prior crimes
While we have no doubt that prior crimes evidence was improperly admitted, the question remains whether such error was harmless. We conclude that it was.
In the recently decided case of State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985), we discussed harmless error and outlined the test for harmless error:
“We conclude that, in view of the gradual merger of this court‘s collective thinking in respect to harmless versus prejudicial error, whether of omission or commission, whether of constitutional proportions or not, the test should be whether there is a reasonable possibility that the error contributed to the conviction. If it did, reversal and a new trial must result. The burden of proving no prejudice is on the beneficiary of the error, here the state. Billings, 110 Wis. 2d at 667. The state‘s burden, then, is to establish that there is no reasonable possibility that the error contributed to the conviction.” 124 Wis. 2d at 543 (footnote omitted).
In Dyess, the court observed that:
“Where the error affects rights of constitutional dimension or where the verdict is only weakly supported by the record, the reviewing court‘s confidence in the reliability of the proceeding may be undermined more easily than where the error was peripheral or the verdict strongly supported by evidence untainted by error.” 124 Wis. 2d at 545.
Because there is overwhelming evidence, even absent the prejudicial and erroneously admitted prior crimes evidence, to support Evers’ conviction, the trial court‘s error was harmless in the sense that the evidence of guilt was clearly sufficient. Cоnversely, there is no reasonable possibility that the prior crimes evidence contributed to the conviction or that a trial without the evidentiary error would have a different result.
Also, it should be noted that there was little exploitation by the state of the erroneously admitted evidence. The prior crimes record did not come in until rebuttal, and then the prosecutor merely asked that the court, by judicial notice, allow the prior crimes record to be brought to the attention of the jury. No elaboration was attempted. There was merely the recitation that, in 1982, Evers was convicted of one count of theft, nature unstated, and upon his plea to that theft count, three read-in thefts were dismissed, two for theft of scrap metal and one for theft of an automobile battery.
In principal oral argument to the jury, the only reference to the prior crimes was the statement, “He‘s been in trouble for theft before, but he went ahead and did it anyway.” The reference to the prior crimes in the state‘s rebuttal argument appears earlier in this opinion.
Additionally, the trial court twice cautioned the jury about the proper and improper uses of prior acts evidence in the course of the one-day trial. Immediately after the prosecutor asked the court to take judicial
“... and I will tell you, members of the jury, that the evidence is admitted solely on the issues of intent and the absence of mistake or accident. And I will give you a complete instruction regarding that matter very shortly because I don‘t think it‘s necessary to tell you the full instruction now and then to repeat it in a few minutes’ time. I‘d ask that you look for that instruction as I will give it to you then as soon as I give you the complete instructions.”
The trial court read that jury instruction on other crimes evidence before the jury began its deliberations. That instruction recited:
“Evidence has been received regarding other crimes committed by the defendant for which he is not on trial. Specifically, evidence has been reсeived that the defendant has been involved in prior thefts. Such evidence was admitted solely on the issues of intent and the absence of mistake or accident. You may not consider such evidence to conclude that the defendant has a certain character or a certain character trait and to further conclude that he acted in conformity with that trait or character with respect to the offense charged in this case. If you find that the defendant did such act, you must not conclude that it is proof that he committed the offense with which he is now charged. The evidence was received on the issues of intent; that is, whether the defendant acted with a state of mind that‘s required for this offense. I have instructed you on the particular state of mind required before the defendant may be found guilty of the offense charged. The evidence also has been received on the issue of absence of
mistake or accident; that is, whether the defendant acted with the state of mind required for the offense. And I hаve instructed you regarding the state of mind required to be shown. “So you may consider the evidence of other crimes by the defendant only for the purposes I have described assigning the evidence such weight as you determine it deserves. You must not consider this evidence to determine whether the defendant is probably guilty of this offense because of his prior conduct.”
These cautionary instructions reduce the risk that the jury would find Evers guilty simply because he was a “bad person” who had previously committed crimes. Had the evidence been properly admissible (i.e., more probative of Evers’ intent than prejudicial), these cautionary instructions nevertheless would have been required. Character evidence must always face the test of multiple admissibility. Thus, even if the evidence were highly probative of intent in the instant case and therefore admissible, it is necessary for the jury to be informed that the prior crimes rule allows the evidence to be considered only as it is relevant to, and probative of, an element of the crime being charged and is not to be considered as evidence of bad character evincing a propensity to commit the crime presently being charged. In addition, the leeway of discretion in determining whether the evidence is more probative than prejudicial lies in the direction of the rule, rather than the exception. McCormick, Law of Evidence, sec. 158 at 332 (1954 ed.). Thus, the court should “exclude the other crimes evidence, even when it has substantial independent relevancy, when in [its] judgment its probative value for this purpose is outweighed by the danger that it will stir such passion
The record shows that the prior crimes evidence did not loom large in the state‘s presentation of the case. On the other hand, the evidence of guilt was overwhelming. There was evidence that one of the three persons who removed the car from the raceway was told by the track manager not to do it. The owner‘s name, Doug Brown, was рainted on the car. The car was operable despite dents and scrapes. From this the jury could infer that Evers knew that the car was not “abandoned.” When Evers was arrested, he acknowledged that what he had done was wrong, but said he had done it for a friend who wanted a car. There was a full acknowledgment that he physically participated in the removal of the car. In the final analysis, the failure of Evers’ defense resulted not from the introduction of the nonprobative prior crimes evidence, but from the lack of credence that the jury surely placed in his explanation, quite apart from the evidence of the previous thefts that had nothing to do with the charged taking of allegedly abandoned property. It also should be pointed out that defense counsel at trial ably stressed the fact that, where there were no circumstances stated that would demonstrate a similarity between the previous thefts and the instant one, the prior criminal record proved nothing about intent or mistake in stealing or removing “abandoned” property. The defense counsel stated that whatever intent Tom Evers had at the time of the 1980 thefts had nothing to do with “what was going through Tom‘s mind in September of 1984.”
Additionally, the defendant complains that the prison sentence of two years evinces an abuse of discretion, when the other participants in the crime received minimum sentences. He also asserts that consideration should have been given at sentencing to the fact that he would have reaped no monetary reward as the result of this theft—he did it for a friend.
A trial judge in this state must give the reason for imposing a particular sentence. State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633 (1984); Melby v. State, 70 Wis. 2d 368, 383, 234 N.W.2d 634 (1975). The judge must consider, in the course of deciding what sentence to impose, such factors as the defendant‘s criminal record, his attitude and demeanor, whether he shows remorse, the length of time needed for
In the course of its remarks at sentencing, the trial court indicated the various factors that it had considered and found to be relevant. These include Evers’ culpability,11 his poor performance while on probation and parole for a previous offense,12 the court‘s belief that Evers was becoming a drifter, with little ambition or interest in planning for his future,13 the need for protection of society,14 and Evers’ prior criminal record.15 After consideration of these factors, the court agreed with the parole agent‘s recommendation that Evers receive a two-yeаr prison term.
While we cannot uphold, or give our stamp of approval to, the rationale employed by the court of appeals in its conclusion that the prior crimes evidence was admissible, we nevertheless affirm the decision of the court of appeals because the erroneous admission of the prior crimes evidence was harmless and because the sentence imposed, as the court of appeals correctly concluded, was imposed only after the рroper exercise of discretion.
By the Court.—Decision affirmed.
STEINMETZ, J. (concurring). I write separately because the majority view of what “other crimes” evidence is relevant is too narrow. The “other crimes” evidence introduced in rebuttal was clearly thefts, and the crime charged here is a theft. The elements of the prior crimes matched the elements of the crime charged. There is no need for all the factual circumstances to match for admission of this evidence.
I would find that the trial court did not abuse its discretion in admitting such evidence on the issue of intent.
Notes
Acts. Whoever does any of the following may be penalized as provided in sub. (3):
(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without his consent and with intent to deprive the owner permanently of possession of such property.
Subsection (3) provides that theft of property worth $500 or less is a class A misdemeanor. Doug Brown‘s car was worth no more than $300.
“I believe the fact that he has broken into and has been convicted of offenses and made confessions to those offenses where he has broken into different residences in the past with an intent to steal and, in fact, was convicted and agreed to the read-in of several other counts where he did intentionally take property from another individual with the intent to deprive that person is relevant to the issue of whether he could have mistakenly believed that this property belonged to him and also whether there was an intent to deprive the person which is one of the considerations with respect to the issue of mistake.”
When the sole purpose of the other crimes evidence is to show some propensity to commit the crime at trial, there is no room for ad hoc balancing. The evidence is then unequivocally inadmissible—this is meaning of the rule against other crimes evidence.54 But the fact that there is an accepted logical basis for the evidence other than the forbidden one of showing a proclivity for criminali-
It is thus clear that sentencing is a discretionary judicial act and is reviewable by this court in the same manner that all discretionary acts are to be reviewed.
In the first place, there must be evidence that discretion was in fact exercised. Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning. This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards. As we pointed out in State v. Hutnik (1968), 39 Wis. 2d 754, 764, 159 N.W.2d 733, “... there should be evidence in the record that discretion was in fact exercised and the basis of that exercise of discretion should be set forth.” 49 Wis. 2d at 277.
We have frequently stated that we will remand for sentencing or modify the sentence only when an abuse of discretion clearly appears. By this we mean that this court should review and reconsider an allegedly excessive sentence whenever it appears that no discretion was exercised in its imposition or discretion was exercised without the underpinnings of an explained judicial reasoning process. Where the judicial sentencing discretion is exercised on the basis of clearly irrelevant or improper factors, an abuse of discretion also results. 49 Wis. 2d at 278.