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COURT OF APPEALS DECISION DATED AND RELEASED February 5, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3524-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JACK L. COX,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Sheboygan County:
JAMES J. BOLGERT, Judge. Affirmed.
Before Snyder, P.J.,
Brown and Nettesheim, JJ.
SNYDER, P.J. Jack L. Cox was convicted of intentionally
failing to provide child support contrary to § 940.27(2), Stats., 1985-86. He now contends that the trial court erred
when it: (1) denied defense counsel's
request for prepaid travel expenses to secure the testimony of out-of-state
witnesses; (2) denied defense counsel's request to allow the jury to consider
the fact that the child at issue did not reside in Sheboygan County for 120
consecutive days; and (3) allowed evidence of a prior payment Cox made of $2000
as satisfaction for arrearages totaling $16,000. He also argues that the guilty verdict was not supported by
sufficient evidence. Because we conclude
that the trial court properly exercised its discretion with regard to the first
three evidentiary issues and that there was sufficient evidence to support the
verdict, we affirm.
Cox married Carol in
April 1963. During the course of their
marriage they had three children. The
third child, Dawn, was born on August 25, 1969, and is the child whose support
is at issue in this action. After Cox
left his family, Carol obtained a judgment of divorce from him in
absentia. As part of the divorce
judgment, Cox was ordered to pay $70 per week in child support. Carol received no payments from Cox until
1978 when he was picked up in Texas on a warrant for nonsupport. He was released after posting $2000 bail;
subsequent to that, Cox agreed to pay the bail money “in compromise and
settlement of arrearage[s],” and further agreed to make continued child support
payments of $50 per week. Although he made some payments over the next four
years, he was always behind in his child support obligations.
Cox was picked up again
in 1982, and as his eldest child had turned eighteen, the child support order
was modified. The first year after the
modification he made a substantial number of payments, but following that,
payments again became sporadic. In 1984
he made no payments. The period with
which he was charged with nonsupport began on October 17, 1983.[1]
Following a jury trial
and the return of a guilty verdict, Cox was sentenced and this appeal followed.
The first three issues
Cox raises on appeal all relate to the introduction or exclusion of
evidence. The admissibility of evidence
rests within the sound discretion of the trial court. See Ritt v. Dental Care Assocs., 199 Wis.2d
48, 72, 543 N.W.2d 852, 861 (Ct. App. 1995).
The issue on appeal is whether the trial court exercised its discretion
in accordance with acceptable legal standards and the facts of record. See State v. Pharr, 115
Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983).
This court will not find a misuse of discretion if there is a reasonable
basis for the trial court's determination.
See id. A
discretionary determination must be the product of a rational mental process
whereby the facts of record and the law relied upon are stated together,
leading one to conclude that the court has made a reasoned determination. See Hartung v. Hartung,
102 Wis.2d 58, 66, 306 N.W.2d 16, 20-21 (1981).
Cox first argues that
the trial court erred when it denied his counsel's request for the prepayment
of travel expenses in order to secure the testimony of four witnesses, three of
whom resided in Canada and one in Texas.
Cox was represented in this action by the state public defender's office
in accordance with ch. 977, Stats. Defense counsel submitted a pretrial motion
for funds to be provided for travel for witnesses or, in the alternative, for
telephone testimony. The trial court
denied this request.
Cox renewed his request
for funds prior to the start of the trial.
The trial court requested that defense counsel submit affidavits
detailing the evidence each witness would testify to and held the motion open
pending its review of the affidavits.
After reviewing the submitted materials, the trial court again denied
the requested authorization of prepaid funds for witness travel. We now consider whether this was an
appropriate determination by the trial court.
Two statutory sections
are relevant to this issue. Section
885.10, Stats., provides in part:
Witness
for indigent respondent or defendant. Upon satisfactory proof of the financial inability of the
respondent or defendant to procure the attendance of witnesses for his or her
defense, the judge ... may direct the witnesses to be subpoenaed as he or
she determines is proper and necessary, upon the respondent's or
defendant's oath or affidavit ....
Witnesses so subpoenaed shall be paid their fees in the manner that
witnesses for the state therein are paid. ...
[Emphasis added.]
The
other relevant statutory section, § 885.06, Stats.,
is entitled “Witness' fees, prepayment” and provides:
(2) No witness ... on behalf
of either party in any criminal action or proceeding ... shall be entitled
to any fee in advance, but shall be obliged to attend upon the service of a
subpoena as therein lawfully required.
[Emphasis added.]
The
language of these two sections clearly contemplates a discretionary
determination as to both the procurement of witnesses for an indigent defendant
and how such witnesses will be paid.
We find further support
for this interpretation in case law.
The right of an indigent defendant to compel the attendance of witnesses
“is not an unfettered right that requires the trial court to give an indigent
defendant unlimited access to blank checks ....” State ex rel. Dressler v. Circuit Court for Racine County,
163 Wis.2d 622, 639, 472 N.W.2d 532, 539 (Ct. App. 1991). In order to secure the assistance of the
trial court, a defendant must make some plausible showing of how the proposed
witnesses will be both “material and favorable to his or her defense.” Id. Neither the federal nor the state constitution creates a clear
legal duty which mandates a trial court to provide witness funds upon a general
request. Id. at 640, 472
N.W.2d at 540. Instead, the trial court
must make a discretionary determination after a defendant has made a showing of
“particularized need.” See id.
Our independent review
of the witnesses' affidavits supports Cox's failure to present the requisite
“particularized need” for prepayments.
Two of the Canadian witnesses' affidavits purport to offer evidence of
the status of Cox's business dealings for several years in the 1980's, but do
not demonstrate the basis of either individual's knowledge. The third Canadian witness, an accountant,
prepared tax returns for Cox, but none of the tax returns address the time
period at issue in this case. Neither
the Canadian affidavits nor the affidavit of the remaining witness, James Cox,
the defendant's brother and a bank vice-president in Texas, include any
statement regarding the necessity of travel or expenses prepayment in order to
obtain the witnesses' presence.[2]
We conclude that the
trial court's decision to deny Cox's request for prepayment of witness fees was
a proper exercise of its discretion.[3] A defendant's request for prepayment is but
another factor to be weighed by a trial court in making this discretionary determination. Without some showing of “particularized
need” for the prepayment, a trial court is under no obligation to prepay and
fund a witness's travel and expenses in order to compel the attendance of
defense witnesses. This was a proper
exercise of discretion.
Cox's next evidentiary
complaint relates to the trial court's denial of his request that it inform the
jury that it should exclude from its calculation of 120 days any time period
that his daughter Dawn resided outside of Sheboygan County. Defense counsel had intended to call several
witnesses who would testify that Dawn had resided outside of Sheboygan County
for portions of the time Cox was charged with nonsupport.
The trial court
correctly ruled that the crime of nonsupport occurred in Sheboygan County where
the defendant's act was required to be performed. Cox was required to make child support payments in Sheboygan
County; thus, his daughter's residence during the time period in question was
immaterial. As we stated in State
v. Gantt, 201 Wis.2d 206, 212, 548 N.W.2d 134, 137 (Ct. App. 1996), we
are not persuaded that “jurisdiction [should] not attach to the nonsupport
prosecution of a father who is in violation of a valid Wisconsin child-support
judgment simply because the child was not residing in the state during the
charged period.” Dawn's residence
during the period in question is irrelevant.
Cox next contends that
the trial court erred when it allowed evidence of a prior payment of $2000 as
satisfaction for a debt of $16,000 which was due and owing for an earlier
period of nonsupport. He maintains that
the presentation of this evidence was prejudicial and “had the effect of
showing that [he] received a prior deal and was not required to pay the full
sum of support.” Thus, he reasons that
“the jury was allowed to infer that in the present case he had not properly
paid his support for the periods at issue.”
The admissibility of
“other acts” evidence is governed by § 904.04(2), Stats. See State
v. Parr, 182 Wis.2d 349, 360, 513 N.W.2d 647, 650 (Ct. App. 1994). “Other acts” evidence is not admissible to
prove the character of the accused, but may be used to establish, inter alia,
motive and intent.[4] See id. Under the well-established two-pronged test
of admissibility, the court must first determine whether the proffered evidence
is relevant. See id. If so, the second prong is whether the
probative value of the evidence is substantially outweighed by the danger of
unfair prejudice, confusion of issues or misleading the jury. See id. Unfair prejudice refers to the risk that a
jury may conclude that because the actor committed one bad act, he or she
necessarily committed the charged crime.
See State v. Mink, 146 Wis.2d 1, 17, 429 N.W.2d 99,
105 (Ct. App. 1988).
The evidence of the
stipulation and consent order signed by Cox in which he agreed to pay $2000 in
satisfaction of more than $16,000 due and owing was relevant on several
bases. The order established the fact
that Cox was required to pay child support; this is an element of the crime of
failure to support. See §
940.27(2), Stats., 1985-86. The order also established Cox's knowledge
that he was required to make child support payments, which is another element
of the crime of failure to support. See
id. Finally, the order
was relevant to establish Cox's intent to evade paying support he knew he
owed. Cox did not contest the fact that
he had made no required child support payments in the period covered by the
present charge. Rather, he claimed that
he could not afford to make the payments, so he did not intentionally
refuse to provide support for his child.
Evidence that Cox had
earlier failed to make child support payments, when by his own admission his
business was doing well, was probative of the issue of whether his charged
failure was also intentional, despite his claimed inability to pay. In light of all of the foregoing, we
conclude that the evidence of the stipulation and consent order was relevant
and admissible on several bases and that the danger of unfair prejudice was not
outweighed by its probative value.
Thus, the trial court properly exercised its discretion in admitting
this evidence.
As a final contention,
Cox argues that the guilty verdict was not supported by sufficient
evidence. He claims that because he
offered an affirmative defense of inability to pay that “[c]learly, the record
reflected that [he] was unable to make the necessary support payments and the
jury should have acquitted him of this felony charge.”
It is the function of
the trier of fact to determine the credibility of the witnesses, weigh the evidence
and draw reasonable inferences from the facts presented. See State v. Poellinger,
153 Wis.2d 493, 504, 506, 451 N.W.2d 752, 756, 757 (1990). The evidence and any inferences which may
reasonably be drawn from it must be viewed in the light most favorable to the
verdict. See id.
at 504, 451 N.W.2d at 756. This court
may not substitute its judgment for that of the trier of fact unless the
evidence is so lacking in probative value that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt. See id. at 507, 451
N.W.2d at 757‑58.
The jury determines the
credibility of the witnesses and the weight to be given to their
testimony. See York v.
National Continental Ins. Co., 158 Wis.2d 486, 493, 463 N.W.2d 364, 367
(Ct. App. 1990). Here, the State
presented a prima facie case of failure to support. See State v. Schleusner, 154 Wis.2d 821,
824-25, 454 N.W.2d 51, 53 (Ct. App. 1990).
Cox did not contest the evidence presented by the State. Instead, he contended that during the period
for which he was charged, he was financially unable to pay any support. He offered, through his own testimony, that
he was unable to work due to back problems.
This was a credibility
issue for the jury as to the weight to be given to Cox's own testimony of his
inability to work in contrast to the State's prima facie case. See York, 158 Wis.2d at
493, 463 N.W.2d at 367 (if more than one inference can be drawn from the
evidence, the court accepts the inference drawn by the jury). The jury here concluded that Cox's testimony
on his own behalf was not as compelling as the evidence presented by the
State. Our review of the record does
not persuade us that the jury's verdict was not supported by sufficient evidence.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[2] We also note that certain information in James Cox's affidavit would be damaging to Cox. For example, the affidavit relates that “Cox paid approximately $10,000 to $12,000 a year in interest from 1980-1985.” This was for mortgage and interest payments on two pieces of Texas real estate Cox had purchased. During that same time period, State evidence indicated sporadic support payments.
[3] In examining the submitted affidavits, the trial court made the following findings: (1) the testimony of the witnesses would be relevant and favorable to Cox; (2) if the witnesses were paid before their appearances, there would be insufficient assurances they would appear; (3) granting the motion would require adjournment of the trial date; (4) most, if not all, of the information in the affidavits was corroborating testimony which the defendant could testify to, if he so desired; and (5) Cox qualified for state public defender representation, and there was no record of procedures used or reason the public defender's office would not fund the costs.
[4]
Section 904.04(2), Stats.,
provides:
(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 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.