Vanlue v. State

Vanlue, error, Daniel Plaintiff in Wisconsin, Defendant State error-Petitioner.

Supreme Court May 6, Argued, No. 1980. Decided 1980. March 77-842-CR. (Also reported 467.) N.W.2d error-petitioner the cause was For the defendant attorney general, argued Betty Brown, assistant R. Follette, La at- Bronson with whom on the brief was C. general. torney argued by plaintiff the cause was

For the error public defender, Weiss, P. assistant state Steven Cates, public de- Richard L. state whom on the brief was fender. HANSEN, this review T. J. The issues on

CONNOR committed reversible er- relate to whether the trial court relating admitting testimony ror purpose prov- for the limited ing appeals trial court The court of held that the intent. admitting in such evidence committed reversible error judgment the of conviction. We reach and reversed the opposite conclusion. review, issues on this it is unnec

Because of the raised presented essary on the substan to restate the evidence 455, Vanlue v. tive crime. See: N.W. do, (Ct. App. 1978). however, observe 2d 115 We in to a of the record reflects addition our review gloves, crowbar, pillow jury and the could a case cotton reasonably at the time the defendant was conclude that possessed “long pocket knife” which could he a searched caseknifing door, “penknife a instead of a be used for caseknifing possibly used for a door.” could [which] Id. at 456. opinion the issue which determines this review our admitting in evidence of

is whether the trial court erred convictions of Vanlue for the limited two possessed burglarious purpose proving that he tools instrumentality with the “intent to use such device or room, depository, building into a break and to therefrom, . .”1 steal . person and another were arrested in a defendant

parking apartment building lot at the rear of an Bur- lington, Wisconsin, between 1:30 a.m. and 2:00 a.m. apparently Geneva, Vanlue lived in Lake Wisconsin. scene, When the defendant was searched at the the offi- jacket cers a crowbar the sleeve found he was pillow long wearing, pocket case and knife jacket wearing gloves. pocket, and he was cotton Initial- ly any knowledge Volkswagen the defendant denied of a nearby. parked they van parked he Later said had van person because neither he nor he was with had they driving and license, driver’s were concerned about day and without license intended to return the next up with who had a pick someone driver’s license to van. He also told the officers he intended to hitchhike Geneva, jacket friend, Lake had borrowed the from a pillow and did not know the knife and case were in the pockets. He wearing stated that he was the cot- further gloves ton because of the inclement weather up he protection had the crowbar his sleeve for while hitchhiking. The arrest occurred on March temperature degrees was about 50 at the time.

After the presentation state rested and to the defense, attorney, assistant district in the ab- jury, ruling sence of the pursuant asked for a to sec. 901.04, Stats., respect to the admission into evi- 943.12, (amended by Stats. 1975 ch. sec. of Laws 1977): “Possession tools. Whoever has in his possession any instrumentality device or designed adapted breaking any for use depository designed safekeep for the ing any building room, valuables or into or with intent to instrumentality use device or depository, such to break into building room, or therefrom, may and to steal not more fined $1,000 imprisoned than years not more than 10 or both.” prior dence of the Specifi- defendant’s criminal record. cally, requested ruling he state, on whether the for the purpose attacking credibility, defendant’s ask could had whether he ever been convicted of and, many crime if so, how times. The assistant district attorney that prior indicated the defendant had six agreed convictions. The defense counsel prior convictions, there had been six but he uncer- was tain about the nature of the crimes and their status as felonies or misdemeanors. The state did not have certi- judgments copies fied of conviction. Defense coun- agreed stipulate sel there had been two burglary. convictions of The trial court thereafter ruled defendant, on cross-examination of the the state defendant, you could ask “Have been convicted of a many crime?” and “How times?” and that the answers given by to be respectively, the defendant were “Yes.” and “Two.” attorney ruling

The assistant district then asked for a admissibility on of the nature of the convic- position tions. The state’s was that since one of the charged elements the crime was of tools with intent to use them in a burglary, were relevant to the issue of intent ad- provisions missible 904.04(2), evidence under the of sec. proper objection. Stats. Defense counsel entered a The trial court ruled that evidence of the commission sim- ilar crimes the defendant could be received for the purpose showing intent, permit and that it would testi- mony respect only pur- the two for the pose showing charged element of intent crime. The trial court also stated that it would instruct jury on the limited use of such evidence. opening defense counsel had reserved his state- beginning presentation.

ment until the of the defense opening the course of that jury: statement he told the going brought you during “There are to be facts out to my bring testimony easy client’s that are not for me to They my out. are not will favorable to client. You hear testify him probation a presently probation; that he’s on on he’s burglaries for two was occurred when he juvenile. juvenile He was waived out of court. He con- fessed to those and was sentenced for them. probation He was on at the time. . . .” However, interrogation on direct examination the the defendant was restricted to the fact that he had been convicted of Further, on two occasions. coun- questions sel made it a matter of record his concern- ing the defendant’s record were offered because ruling responded, of the trial court. The trial court stating rights that the defendant no had waived in so do- ing. jury trial court instructed the included

following limiting instruction: “Evidence been has received to the effect that the de- fendant burglaries. has heretofore been convicted of two solely This evidence was received upon because it bears the motive or intent of the defendant. You are to bear in mind that the conviction of the defendant of two bur- glaries previous at some time sug- cannot be the basis for gestive proof nor guilty that he [sic] is of the offense charged.” with which he is now appeals

The court of held that evidence of the defend- prior burglary ant’s two convictions was inadmissible 904.04(2), under sec. Stats., because such evidence mere- ly tended to that the defendant conformity acted in with his character. The court stated that the crimes evidence was not relevant to show intent, but was rele- only vant to show that the guilty defendant pos- was session of tools because he had committed burglary before and again. was about to do it Evidence of the defendant’s two convictions of clearly was relevant under the Wisconsin defi- 904.01, relevancy nition of in has been codified sec. provides: Stats. That section “904.01 Definition of ‘relevant evidence.’. “ having any ‘Relevant evidence’ evidence ten- means dency make the existence fact that of is of conse- quence probable to the determination of the action more probable

or less than it would be evidence.” without question directly in evidence bears on one of the possession elements of the of of crime tools possession pocket —intent. Mere and a crowbar knife, along pillow pair with a case and a of gloves, is not possession 943.12, violation of sec. Stats. Before 943.12, provisions such tools ais crime under the of sec. proven possession it must be that the was “with intent to instrumentality use such deposi- device or to break into a tory, building or room.” Evidence had past been convicted of is relevant element, supported by to the intent when time and place arrest, of his probable it because makes it more than it would be without the evidence that the defendant possessed requisite the tools with the intent to use them burglary. to commit a previ- Because the defendant had ously burglary, knowledge been convicted of he had necessary burglary. what tools were or could in a be used prior burglary Because evidence of convictions was sought relevant to intent was not to be introduced as proof of the character defendant order to show conformity therewith, that he acted in it was admissible (2), under 904.04 Stats. sec. 904.04(2), Stats., provides: Evidence “(2) crimes, WRONGS, OTHER OR acts. crimes, wrongs, is

other or acts not admissible to person character of a order to show that he acted in conformity therewith. This subsection does not ex- purposes, clude the when evidence offered for other such 88 opportunity, intent, preparation, plan, proof motive, as

knowledge, identity, or absence of mistake or accident.” ad This court has held other crimes evidence is proof provisions as of intent under the of sec. missible Simpson State, v. 904.04(2), 88 Wis.2d Stats. See: ; Peasley (1978) State, 266 270 N.W.2d v. 224, 233, (1978) ; King State, v. 506 75 Wis. N.W.2d 26, 43-45, (1977). Peasley 2d N.W.2d delivery prosecution supra, in a this court held cocaine, intent to deliver LSD relating drug ac the defendant’s sales was evidence of intent to de tivities admissible as his liver cocaine. jurisdictions prose

It has been held in other that in a burglarious possession for cution order to tools, general defendant, intent of the prior is evidence admissible which shows the defendant’s Caldrone, and v. larceny, State (1969) ; 651, Caldrone, 202 Kan. 451 P.2d 205 State v. 828, (1970), 205 Kan. 473 P.2d 66 den. 401 cert. 916 U.S. ; (1971) prior burglary, defendant’s convictions of State 1968) Young, (Mo. ; prior v. 425 177 S.W.2d defendant’s grand larceny, convictions for automobile theft and 1032, Medley, (1950), State v. 360 232 519 Mo. S.W.2d ; (1951) den. 340 956 defendant’s convic cert. U.S. robbery, v. Watson, tion bank State 386 24 S.W.2d ; (Mo. 1964) attempted defendant’s conviction of larceny, 415, Jerrel, State 200 Kan. v. 436 P.2d 973 ; (1968) burglaries, defendant’s commission of recent Olsen, 726, ; v. (1953) State 43 Wash.2d 263 P.2d 824 Commonwealth, Ky. Fennen v. 530, 240 42 S.W.2d 744 ; burglar, (1931) Watson, that defendant is a State v. People supra; Jefferson, 621, v. 161 Mich 126 829 N.W. ; (1910) that burglars, and the defendant associated with (Mo. 1954). v. Lorts, State 269 S.W.2d 88 See also: Hefflin, 236, (1935), v. 338 Mo. 89 State S.W.2d 938

89 Op. Atty. attorney general 1 (1912), 174 where the Gen. stated in the trial defendant burglarious tools, it be could shown before, committed and was convicted of once knowledge show his nature of tools and his of the intent to use them. State,

In Hansen v. 246 219 N.W.2d (1974), be this court considered the elements must proven person in order to a violation of convict 943.12, considering sec. element of intent Stats. this court stated: recognized by

“. It . . has been this court that: “ ‘ existing “Intent is mind the time a state of at person required If commits an intent definite offense. proof, impossible and convict, tent. The mind substantive it would be almost disclosing in- absent a culmination facts alleged offender, however, may of an conduct, fairly read from acts, his deduc- inferences all ible from the circumstances.” ....’”

However, even if crimes is admissible Stats., 904.04(2), judge under the trial must sec. exer any prejudice cise his discretion to determine whether resulting outweighs from such evidence 904.03, Stats.; value. Sec. Hammen v. Wis.2d 791, 798, (1979) ; Spraggin, 275 N.W.2d 709 State 89, 95, (1977). Wis.2d 252 N.W.2d 94 This court noted Whitty 278, in v. 34 Wis.2d 149 State, 294, N.W.2d 557 (1967), den. 390 959 (1968), cert. U.S. that the admissi bility prior depends “upon proba of crimes evidence depends part upon tive value which in in its nearness 904.03, grounds “Exclusion relevant on Stats.: of confusion, prejudice, Although relevant, of or waste of time. evi may substantially dence excluded if its value is out weighed by danger issues, prejudice, of unfair confusion of misleading jury, delay, or or waste considerations undue presentation time, or needless cumulative evidence.” place

time, alleged and circumstances to the or crime ele- sought proved.” ment to be

In prior burglary the instant case the convictions of 1975, approximately occurred November of a is year prior charged and a half to the commission of the crime, probation and the defendant was on for those charged at the time of the commission of the State, 72, 81, crime. v. 82, 76 Wis.2d Sanford (1977), passage N.W.2d 348 this court held that the year prior and a half between the occurrence of a simi- charged lar nature and the crime did not make the evi- dence proba- so remote time as to render it without prior tive value. Evidence of acts was also held admis- Lombardi, 421, sible State 440, v. 8 Wis.2d 99 N.W.2d 829 (1959), where period acts occurred from a years of six months to two to the date of the al- leged Hough crime, 814, and in (1975), 235 N.W.2d 534 where act oc- year prior curred charged one to the crime.

The nature of the convictions is similar to charged possession that of the crime of tools. In burglari- order to be convicted of tools, possess ous one must a device or instrument de- signed adapted breaking building into a and must intend to use the device or instrument to break into building with an intent to steal. To constitute the crime there must be an entry intentional building without consent and with intent to steal or com- felony mit a require therein. Both crimes an intent steal; the distinction is that one involves the actual break- ing entering building into a permission, without other, possession of an instrument or device with the in- tent to do so. places

The defendant considerable reliance on State v. supra. Spraggin, holding particular in a case must give viewed the context of the be facts rise intentionally Spraggin charged the decision. was aiding abetting delivery and of heroin. Evidence bags weapons, marijuana upon goods, and stolen found premises occupied by the defendant were admitted theory evidence on was such items aiding charged intentionally indicative of the act and — abetting delivery This of heroin. court held weapons goods and evidence of the stolen was “not an charged” individual manifestation of the crime and properly excep- pigeonholed “could not of the 904.04(2) tions sec. . . Id. at 100. Further- . more, Spraggin limiting there was no instruction cau- tioning jury solely that the evidence was received as might it bear on motive and intent and be the could not guilt. presented entirely proof Spraggin basis for an different situation than the one here under consideration. 904.04(2) 904.03, interrelationship secs. Stats., balancing probative calls for a of and value availability the need for evidence and the of other against likely proof means of the harm to result from its admission. Evidence of other crimes is not automati- cally admissible; however, there is no mechanical solu- danger tion available. The determination of whether the outweighs prejudice of undue value of the upon evidence must be based the facts of each case after availability giving consideration to the of other means of proof appropriate making factors other deci- 904.04, Stats., Advisory of this kind. Federal sions Note, Committee’s 59 Wis.2d R80.

The admission of the other crimes evidence in this case solely proof was restricted on the element of intent. facts of the case the Under the evidence was admissible. within the discretion trial It was court to deter- mine whether or the not should admitted. Hough State, supra, by v. at 815. The the determination trial court that the defendant had not of his waived rights by the admission of the evidence and ultimate giving limiting jury represents of a instruction to the an by assessment admissibility the trial court as to the any event, uphold evidence. this court will a dis cretionary decision of the trial court if the record com support tains facts to the decision of the trial court. State, supra, 800; Hammen v. at Klimas 75 Wis. 244, 247, 2d (1977). 249 N.W.2d 285 On the record case, possible prejudicial this testimony effect of the outweigh did not value. argues

On review the state also that there awas stra- tegic any alleged waiver the defendant of error result- ing from the admission of the However, evidence. since we admissible, conclude the evidence was it un- becomes necessary to consider whether there was a waiver. case,

Under the facts of this it cannot be said that trial admitting court abused its discretion in the evi- dence. judgment We therefore reinstate the of the trial court.

By appeals Court. —Decision of the court of re- is versed; cause remanded judg- for reinstatement of the ment of conviction. ABRAHAMSON,

SHIRLEY S. (dissenting). J. This presents case review; two issues on majority de- only cided issue, one majority and I think the decided important the lesser issue.

The (1) issues are: Whether the defendant’s were admissible to (2) intent and whether right challenge waived his admissibility of the convictions because he intro- duced the evidence of the convictions on direct exam- ination after the trial court held that it would allow the state to introduce the evidence on cross-examination. court majority issue. This has decided the first involving admissibility decided numerous cases clear; application rule it is the crimes evidence. The is particular which is to each fact situation rule troublesome. issue, however, im-

It more is the second which is the portant for this decide if it is to serve its one court to question, than the review function. It is this rather question admissibility evidence, conviction one, will which is a “novel have the resolution of which impact.” Peti- state-wide In re to Review Standards Appeal, (1978). tions to 85 Wis.2d xiii disagree majority’s I the first resolution of issue. Prior crime evidence if it is relevant is admissible case, intent, to the issue of and in the instant to the instrumentality issue of “intent to use device or such depository, room, to break a building, or and to (sec. 943.12, 1975). steal therefrom” I Stats. do not say think this prior that on can record we that the two burglary convictions of are relevant of to the issue intent. repeatedly admissibility

This court has said that the of prior depends “upon conduct evidence its depends upon value part time, in in nearness place alleged and circumstances to the crime or element sought proved.” Whitty State, 278, to be v. 34 Wis.2d 294, (1967), 149 N.W.2d 557 cert. denied 390 U.S. 959. As I Peasley in noted 265 (1978) (Abrahamson, N.W.2d dissenting), 506 it is J. very requirement this similarity which leaves so much room for difference opinion and accounts for the variances in admissibility the decisions on the issue of prior prove evidence of to conduct an element of charged. crime prior convictions in this case are as in not close

time charged to the offense majority in this case as the opinion indicates. The crimes evidence admitted burglaries; for two of two

here consisted (two September burglary committed was one charge), in Jan- other this years, months before six charge). this before (two two months uary years, prior bur- nature of on the is silent The record cir- the similarities glaries, and we cannot evaluate burglaries the offense between those cumstances relevant are charged if the to determine majority opinion holds intent. The the issue of reasoning “because relevant, prior convictions burglary, previously been convicted defendant had necessary knowledge tools were of what he had Knowledge burglary.” what tools could be used equivalent intent burglary is not the useful for are burglarize. be used I know what tools could reading Reports. the Wisconsin from reasoning majority’s unstated as- rests on the event the sumption tools had used assumption is burglary. an Such to commit the every an actual break- not valid. involves Not only ing. prove an prove burglary, need To the state breaking. entry; 943.- unlawful it need not 1975, provides: Stats. any “(1) intentionally follow- enters of the Whoever ing places person in lawful without the consent the felony possession therein a and with to steal or commit intent may years: imprisoned than 10 be not more “ (a) Any building dwelling; or or “(b) “(c) “(d) car; An enclosed railroad or portion vessel; any ship An enclosed or or cargo portion A or locked enclosed of a truck trailer; or “(e) any A room within of the above. “(2) (1) any Whoever violates under sub. following imprisoned may circumstances not more years: than 20 “(a) dangerous weapon; While a armed with or unarmed, “(b) but While arms himself with a dan- gerous enclosure; burglarized weapon while in the still or burglarized “(c) opens, at- the While in enclosure or tempts by open, depository explosive; to use of an or “(d) burglarized While a enclosure commits battery upon person lawfully a therein. “(3) purpose section, entry For the into a this place during open general the time when it is to the public is with consent.” In 587, 595, Gilbertson v. 230 N.W.2d (1975), necessary prove said “it we is not to the defendant gen- had to or did break enter the erating room; it includes nonbreaking, unlawful entry, which was the case here.” we not Because do if prior know the defendant in his used tools to building, prior break into a convictions not are relevant in- the instant case to building. tended to use the tools break a to into majority’s opinion also rests on as- the unstated sumption convictions for defendant’s burglary show defendant’s to intent steal. Such an as- sumption every burglary is not Not valid. involves an burglary specific intent to steal. in- the crime proved tent that must be the state is either the intent felony. to intent to steal commit The defendant’s could premised entry (but an have been on unlawful not a breaking) felony with the intent to commit other than stealing. I not do think conviction of based charged on such would be relevant to facts the crime in the instant case which is to intent use tools to break building Thus, into a to steal. order for the trial court or this court conclude convic- they admissible, tions were because were relevant building the issue intent to use tools to break 96 fact steal, more than the bare had

and show the state burglary. state had to show of a conviction for probative of their because convictions were the alleged time, place to the in circumstances “nearness Whitty sought proved.” to be crime or element supra 294. 34 at Wis.2d appeals, of the persuaded, as was the court

I am in case at of of the evidence use if And character, not intent. even tended to bar might the issue be relevant the evidence considered intent, in of this case its the circumstances danger “substantially outweighed value was prejudice” and should have been excluded. unfair 904.03, Stats. 1968), (Mo. Young, State v. S.W.2d majority authority position, as cites only conviction, because the

Missouri court reversed the possession of tools case was defendant’s previous said his The Missouri court convictions. upholds pos- it “found no case which conviction possession burglar’s tools on mere of tools session equivocal . nature . . without more on which of such appears possession to base with intent than Young at court here.” S.W.2d 182. The de- prejudice result to a defendant scribed that could holding majority court, adopted by under the of this namely previously person that a convicted of high possession ordi- stands risk of conviction on nary reasoning of tools. I find the the Missouri court persuasive to overturn conviction the instant case: merely if a “Furthermore, conviction can stand on a showing possession of tools which can used for legitimate purposes together burglary, as well as for proof prior conviction, of a no could released convict safely working ever inbe no matter tools might pp. how honest his actual Id. at intentions be.” 182, 183. In the ma- the other cases from four states cited allowing jority page opinion on as 88 of conviction, on more the convictions were based possession a evidence than the tools and con- cases, viction. either defendant was most the robbery connected occurred or which shortly charge possession before his arrest on the tools or the had in his defendant recently goods. stolen bar,

In the case at there is no such “other evidence.” vicinity reported burglary There was no were defendants arrested. The defendants were not they found under appear made it circumstances that building. testimony were about to break into a police they was that not were called to the scene investigate possible burglary similar sus other picious investigate circumstances but source of police highly loud noises. A officer testified that was it burglar unusual for a to make loud before noises com mitting the crime. When defendant and his com panion stopped by police, they attempt were did not arrest, scene; they to resist or flee from the answered although questions, always apparently officer’s not truthfully. Although might a fact-finder have reached guilty on (com verdict basis of these circumstances pare State, 541, Hansen v. 219 N.W.2d 246 (1974)) the admission of the evidence of the con victions prejudicial tainted the trial and was error. Hart Wis.2d 249 N.W.2d 810 (1976).

I would appeals affirm the decision of the court of the reasons stated herein.

I am joins authorized to state that Justice Heffernan in this dissent.

Case Details

Case Name: Vanlue v. State

Court Name: Wisconsin Supreme Court

Date Published: May 6, 1980

Citation: 291 N.W.2d 467

Docket Number: 77-842-CR

Court Abbreviation: Wis.