State v. LandrumState v. Landrum
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- Vergeront
Robert Landrum appeals from a judgment convicting him of two counts of sexual contact with a child under the age of thirteen, in violation of § 948.02(1), Stats. The issue is whether the trial court erred in admitting evidence of a sex crime for which the defendant had been tried and acquitted. We conclude that admission of the evidence did not violate Landrum‘s constitutional rights and was not an erroneous exercise of the trial court‘s discretion. Accordingly, we affirm.
I. BACKGROUND
Landrum was charged with having sexual contact with Tammy E., a nine-year-old friend of his daughter‘s, on two occasions on or about October 16 and 17, 1989. At trial, Lisa W., another friend of Landrum‘s daughter, testified that Landrum had fondled her on or about September 8, 1990, when she was ten years old. Landrum had been charged and acquitted of having sexual contact with Lisa W. The trial court allowed Lisa W.‘s testimony, over Landrum‘s objection, for the limited purpose of proving a motive, opportunity, intent, preparation or plan under § 904.04(2), STATS. 1
The jury found Landrum guilty on both counts. The trial court entered a judgment of conviction from which Landrum appeals.
II. STANDARD OF REVIEW
Landrum challenges the admission of Lisa W.‘s testimony both as a violation of constitutional law and as an improper application of §§ 904.04(2) and 904.03, Stats.
The trial court’s findings of evidentiary or historical fact relevant to whether a constitutional violation.
Subject to principles of constitutional law, the admission of evidence is a matter within the discretion of the trial court. State v. Clark, 179 Wis. 2d 484, 490, 507 N.W.2d 172, 174 (Ct. App. 1993). We will not disturb an evidentiary ruling where the trial court has exercised its discretion in accordance with accepted legal standards and the facts of record. Id.
III. FIFTH AMENDMENT
Landrum argues that Lisa W.‘s testimony was inadmissible under both the collateral estoppel component of the double jeopardy clause and the due process clause of the Fifth Amendment of the United States Constitution. We reject both arguments in light of Dowling v. United States, 493 U.S. 342 (1990).
In
Dowling,
the defendant was charged with a bank robbery in which the robber wore a ski mask and displayed a small handgun. At trial, the prosecution introduced the testimony of a witness regarding a break-in of her home which occurred several weeks after the bank robbery. According to the witness, the defendant entered her home wearing a mask and carrying a small handgun. The witness testified that she had unmasked the intruder during the break-in and identified Dowling as the intruder. Prior to the bank robbery trial, Dowling had been tried and acquitted of the offenses arising out of the break-in. The prosecution introduced . this testimony, over Dowling‘s objection, to strengthen the identification of Dowling as
On the double jeopardy issue, the Court stated that the double jeopardy clause incorporates the doctrine of collateral estoppel. The Court defined the doctrine of collateral estoppel as providing that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Dowling, 493 U.S. at 347 (quoting
Ashe v. Swenson,
397 U.S. 436, 443 (1970)). The Court then held that the doctrine of collateral estoppel did not apply for two reasons. First, the prior acquittal did not determine an ultimate issue in the bank robbery trial.
Id.
at 348. Second, although Dowling‘s acquittal may have established a reasonable doubt as to whether Dowling committed the break-in, the prosecution was not required to demonstrate that Dowling had committed the break-in beyond a reasonable doubt.
Id.
at 348. Under
On the due process issue, the Court recognized that the introduction of the witness‘s testimony had the potential to prejudice the jury or unfairly force the defendant to spend time and money relitigating matters already considered at the first trial. Dowling, 493 U.S. at 352. However, according to the Court, the question was whether the introduction of this type of evidence “is so extremely unfair that its admission violates ‘fundamental conceptions of justice.‘” Id. at 352 (quoting United States v. Lovasco, 431 U.S. 783, 790 (1977)). The Court explained that beyond the specific guarantees enumerated in the Bill of Rights, the due process clause has limited operation and that the category of infractions that violate the “fundamental fairness” test of the due process clause has been defined very narrowly. Id. at 352. The Court then concluded,
Especially in light of the limiting instructions provided by the trial judge, we cannot hold that the introduction of Henry‘s testimony merits this kind of condemnation. Plainly Henry‘s testimony was at least circumstantially valuable in proving petitioner‘s guilt.
Dowling, 493 U.S. at 353.
Applying
Dowling
to the present case, Landrum‘s double jeopardy argument must be rejected. First, Lan-drum‘s acquittal in the Lisa W. case did not determine an ultimate issue of fact in the Tammy E. case.
Accord
We also reject Landrum‘s due process argument in light of
Dowling.
Landrum argues that the admission of other act evidence is fundamentally unfair because it places a defendant in the position of having to reliti-gate an issue that has already been decided. The
Dowling
court recognized that the admission of other
Landrum also equates his acquittal with innocence and asserts that it is fundamentally unfair for the State to later argue that he is not innocent of the crime involving Lisa W. Dowling, however, made clear that an acquittal only establishes that there was a reasonable doubt in the jury‘s mind as to whether the defendant committed the prior crime, not that the defendant is innocent. Dowling, 493 U.S. at 349.
Finally, Landrum argues that “allowing the State to introduce the testimony of L.M.W. at this lesser burden in a criminal trial is contrary to the long established rule that the State must prove the defendant‘s guilt ‘beyond a reasonable doubt.‘” However, Lisa W.‘s testimony was not introduced to establish Landrum‘s criminal liability regarding his alleged sexual contact with Lisa W., but for the limited purpose of establishing motive, intent, opportunity, preparation or plan in his trial regarding Tammy E. We conclude that the introduction of Lisa W.‘s testimony did not violate the fundamental fairness test of the due process clause.
IV. WISCONSIN RULES OF EVIDENCE
In deciding whether to admit other act evidence, the trial court must apply a two-part test.
State v. Kuntz,
160 Wis. 2d 722, 746, 467 N.W.2d 531, 540
The trial court allowed Lisa W.‘s testimony, over Landrum‘s objection, for the limited purpose of proving a motive, opportunity, intent, preparation or plan under § 904.04(2), Stats. Landrum does not argue that Lisa W.’s testimony was not admitted under one of the exceptions listed in § 904.04(2). Rather, he contends that the evidence of his alleged sexual contact with Lisa W. was not relevant because a reasonable jury could not find that he committed the other act when he had been acquitted of that other act.
Under § 904.04(2), Stats., other act evidence is relevant if a reasonable jury could find by a
We next consider whether the trial court erroneously exercised its discretion in concluding that the probative value of the evidence was not substantially outweighed by the prejudicial value of the evidence. Kuntz, 160 Wis. 2d at 746, 467 N.W.2d at 540. Probative value turns on the nearness in time, place and circumstances to the crime sought to be proved. State v. Roberson, 157 Wis. 2d 447, 456, 459 N.W.2d 611, 614 (Ct. App. 1990).
The sexual contact with Tammy E. occurred on or about October 16 and 17,1989. The sexual contact with Lisa W. occurred on September 8, 1990. When examined in light of other cases involving other act evidence, the time interval of less than one year between acts is clearly not too great to be probative.
See Clark,
179 Wis. 2d at 494-95, 507 N.W.2d at 176 (three years between prior act and crime charged);
State v. Plymesser,
172 Wis. 2d 583, 596, 493 N.W.2d 367, 373 (1992) (thirteen years);
Kuntz,
160 Wis. 2d at 747-48, 467 N.W.2d at 541 (sixteen years);
State v. Mink,
146
Both incidents took place on Landrum‘s property. The sexual contacts with Tammy E. occurred in Lan-drum‘s living room, while the sexual contact with Lisa W. occurred in Landrum‘s garage. In Mink, the court found no fatal dissimilarity in the locations of sexual contacts when the contacts all occurred in the defendant‘s home. Mink, 146 Wis. 2d at 16, 429 N.W.2d at 105. In State v. Fishnick, 127 Wis. 2d 247, 378 N.W.2d 272 (1985), the court stated that two incidents occurring in the same trailer home park, either in or around the defendant‘s trailer, met the requirement of similarity in place. Id. at 261, 378 N.W.2d at 280.
Finally, the circumstances of the two incidents are substantially similar. Both of Landrum‘s victims were young girls. Tammy E. was nine and Lisa W. was ten at the time the sexual contacts with each occurred. Both girls were friends of Landrum‘s daughter. Both girls lived in the neighborhood, and both were sexually assaulted in a similar manner. 5 Both were allegedly told not to tell anyone of the sexual contact.
Landrum argues that the trial court failed “to make the appropriate findings” with respect to the weighing of the probative value of Lisa W.‘s testimony versus its unfair prejudicial effect. We reject this argument. The trial court reviewed the first part of the two-part test outlined in
State v. Mink,
146 Wis. 2d 1, 429 N.W.2d 99 (Ct. App. 1988), and other cases, and concluded that Lisa W.‘s testimony was admissible for the limited purpose of proving motive, opportunity, intent, preparation or plan under § 904.04(2), Stats. The trial
We conclude that the trial court applied the proper balancing test and did not erroneously exercise its discretion in admitting the testimony of Lisa W.
By the Court. — Judgment affirmed.
Notes
Section 904.04(2), Stats., provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person 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.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or duringtrial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Although in
Huddleston
the Court addressed
Section 904.03, Stats., provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Landrum points to a number of inconsistencies between Lisa W.‘s testimony at Landrum‘s trial for sexual contact with Lisa W., and her testimony at Landrum‘s trial for sexual contact with Tammy E. He argues that “these inconsistencies were brought to the trial court‘s attention and should have been considered when weighing the probative value of the testimony.” We reject this argument. The trial court did consider the inconsistencies in Lisa W.‘s testimony and allowed Lisa W.‘s testimony with several conditions. First, Landrum was permitted to use the trial transcript from his trial regarding Lisa W. for impeachment purposes. Second, the trial court instructed the members of the jury that they could consider the testimony