COURT OF APPEALS DECISION DATED AND RELEASED June 12, 1996 |
NOTICE |
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. |
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No. 96-0159-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES R. COLEMAN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County:
JOSEPH E. WIMMER, Judge. Affirmed.
BROWN, J. James
R. Coleman contests the trial court's decision to admit “other acts”
evidence. The State charged Coleman
with one count of unlawful sexual contact alleging that he fondled a coworker. In support of its claim, the State
introduced testimony from three of his other coworkers who claimed that Coleman
had approached each of them in a similar fashion. We conclude that this evidence was relevant to prove Coleman's
motive and intent as well as opportunity and absence of mistake. Thus, the trial court did not abuse its
discretion in admitting this testimony.
We affirm.
The State charged
Coleman with one count of fourth- degree sexual assault. See § 940.225(3m), Stats., 1993-94. The State intended to show that Coleman
intended to touch the victim, Roxanne K., and that he did it for purposes of
sexual gratification. See § 940.225(5)(b),
1993-94.[1]
Roxanne testified as
follows. She met Coleman when he began
working at Norris Linen during the week of November 23, 1993. During his first day, Coleman turned their
conversations towards “personal” matters.
He asked Roxanne if she might know why he and his pregnant girlfriend
were having physical problems with their lovemaking. Coleman also told Roxanne how “horny” he was because he had not
been able to really enjoy sex with his pregnant girlfriend. Roxanne also described how Coleman was
“grabbing himself” while he was talking with her.
After their shifts ended
that day, Roxanne was in the plant's lunch area when Coleman sat down with her
and again started a conversation. Here,
Coleman continued describing how “horny” he was and eventually got up and
approached Roxanne from behind. Roxanne
saw, through his clothing, that his penis was erect. Coleman then told her that they could “go in the bathroom right
now and do it, nobody would know.” He
then started rubbing his penis on her back through his pants.
Roxanne also described
other encounters with Coleman. The next
day, Coleman told her that he had to wear a “jockey strap” at social events,
specifically the upcoming Thanksgiving holiday, because he could not “walk
around with a hardon all the time.”
That day Coleman also touched Roxanne's breast. Moreover, Coleman once grabbed at her
breast, asking her to show him her nipples.
Roxanne also described how Coleman was “constantly rubbing himself
across my backside either with his hand or his penis” for a two- to three-week
period following his first contact with her.
In addition to Roxanne's
testimony, the State also presented three other women who testified about their
encounters with Coleman. We will
briefly outline what each witness described.
First, Jane V. explained that she met Coleman in October 1993 while he
was working at Velvac Company. Coleman
approached Jane to ask her about the workplace; he was with a temporary agency
and was interested in getting a permanent position. After some time, however, the “conversation took a more personal
route.” Coleman expressed surprise that
Jane was the mother of two and gave her a couple of “quick pats” on her stomach
asking whether she “had them natural.”
He then came around to Jane's back, put his hands on her side and lifted
her up, asking her how much she weighed.
He then slid his arms up under her arms and sat Jane on a scale. During this time, Coleman also quickly
lifted Jane's blouse, but she pushed his hand away. Coleman left Jane when a supervisor came along.
Next, Amy B. described
her encounter with Coleman while he was stationed as a temporary worker at
Velvac. Amy explained that Coleman
accidentally bumped into her while she was in the lunchroom and
apologized. A few minutes later,
however, he approached her to again say he was sorry. He then started asking Amy questions: what was her name?; how tall was she?; how much did she
weigh? He then turned her around so that
he was behind her, put his hands on her waist, slid them up under her arms and
lifted her into the air. Coleman pulled
her close to his body when he put her back down.
Third and finally,
Paulina Z. testified that Coleman approached her while she was working at
Norris Linen. She explained that
Coleman held her from behind and pressed her close. Coleman also told Paulina that he wanted to have sex with her.
In his appeal, Coleman
claims that the trial court erred when it admitted the “other acts” testimony
described by Roxanne and the three other women. Coleman's challenge requires us to review the trial court's
discretionary authority over the admission of evidence. We will thus measure if the trial court
applied the correct legal standard and if its decision was grounded on a
logical interpretation of the facts. See
State v. Rogers, 196 Wis.2d 817, 829, 539 N.W.2d 897, 902 (Ct. App.
1995).
Coleman first alleges
that the “other acts” evidence from Jane, Amy and Paulina was not relevant.[2] Coleman claims that his alleged contacts
with these three women were “completely dissimilar” to the incident involving
Roxanne. Unlike Roxanne, none of the other
women alleged that Coleman had an erect penis when he approached them and none
of the other women claimed that Coleman touched or rubbed them to gain sexual
gratification.
Nonetheless, we agree
with the State that Coleman's contacts with these three women were relevant
because they buttressed the State's claim that he intended to touch
Roxanne. Under § 904.04(2), Stats., evidence of “other acts” may be
admissible to establish motive and intent.
Here, the similarity between Coleman's contacts with three women and his
contact with Roxanne helps a factfinder draw a conclusion that he intended to
touch Roxanne. Coleman approached each
woman at work. He first engaged each in
conversation and then moved closer to the woman, eventually grabbing each of them
from behind. These three “other acts”
show that Coleman did not grab Roxanne by mistake or accident, thus bolstering
the inference that he intended to touch her and why he intended to touch her.
We acknowledge that the
contacts are not a perfect match. Jane
and Amy each described that Coleman used the pretext of “weighing them” to
justify his contact, while Roxanne and Paulina each testified that Coleman was
more sexually explicit in his conversation.
But the basic elements of Coleman's actions—isolating a female coworker,
engaging her in some conversation and then making close, personal contact with
her from behind—are all the same. We
conclude that this evidence was relevant to the issue of Coleman's motive and
intent.
Alternatively, and
assuming this evidence was relevant, Coleman nevertheless argues that it was
prejudicial. He claims that the
probative value of this “other acts” evidence was substantially outweighed by
its prejudicial effect. He complains
that the prejudice stems from the time (several months) between the “other
acts” and the alleged crime involving Roxanne.
See State v. Roberson, 157 Wis.2d 447, 456, 459 N.W.2d
611, 614 (Ct. App. 1990) (describing how prejudice may depend on the time
relationship between “other acts” and the crime charged).
Coleman further
complains that the trial court did not engage in a balancing process when it
ruled on the prejudice issue. He claims
that the court only issued a “blanket statement” that the prejudice resulting
from the evidence did not substantially outweigh its probative value.
We disagree with
Coleman's characterization of the trial court's reasoning process and his
ultimate argument that this evidence should have been excluded. Just because evidence is prejudicial, it is
not automatically excluded. Rather, the
court must calculate whether the probative value of it is substantially
outweighed by the risk of unfair prejudice. See id.; see generally § 904.03, Stats.
It is true that the
trial court did not elaborate on why this evidence was not prejudicial to
Coleman's defense. But that does not
mean that the trial court erred. Our
review of the record shows that the trial court focused on the high probative
value of this “other acts” evidence.
Indeed, it found that the probative value of this testimony outweighed
its prejudicial effect. The court
explained that the evidence was extremely probative because it showed that
Coleman did “have a plan or motive or intent to gain such sexual gratification
from co-workers.” Moreover, the
separate instances showed that Coleman's contact with Roxanne was not just a
simple mistake.
Contrary to Coleman's
appellate argument, we also see that the court did address the issue of how the
time between the “other acts” and the charged crime could result in
prejudice. Here it explained, however,
that the several months over which the “other acts” stretched is not of great
concern because the State should be given some latitude when it attempts to
offer “other acts” evidence to prove a sex crime. See State v. Friedrich, 135 Wis.2d 1, 19-20, 398
N.W.2d 763, 771 (1987).
Lastly, on the issue of
prejudice, we observe that the trial court delivered a cautionary instruction
to the jury regarding how this “other acts” evidence could be used on four
occasions: after Jane's testimony,
after Amy's testimony, during Roxanne's testimony and at the close of all
testimony. The trial court's repeated
attention to the cautionary instruction provides another signal that it was
concerned with the potential prejudice to Coleman and evidences that it
rationally addressed any potential problem.
See State v. Johnson, 121 Wis.2d 237, 254, 358 N.W.2d at
824, 832 (Ct. App. 1984). In sum, we
approve of the trial court's approach to the issue of prejudice and reject
Coleman's argument that the trial court erred.
Next, Coleman points to “other acts”
evidence which the trial court refused to admit. During the pretrial stages of the case, the State provided an
offer of proof from Sharon H., whom it claimed would testify that she also had
contact with Coleman at Norris Linen.
Sharon reported to the police that Coleman bumped into her buttocks on
numerous occasions in the close quarters of the plant much more often than her
other coworkers. Sharon also observed
Coleman walking around the plant with an erection which was clearly visible
through his sweatpants. Sharon also
reported that Coleman used inappropriate sexual language when speaking with
her.
The State also set forth
an offer of proof from Kathryn S., who was another of Coleman's coworkers at
Norris Linen. Kathryn alleged that
Coleman approached her and began pulling on her sweatshirt, claiming that he
was trying to read it. Then he began to
rub against her buttocks until Kathryn hit him and told him to go away.
While Coleman agrees
with the trial court's decision not to admit the “other acts” testimony from
these two witnesses, he argues that they are nonetheless very similar to the
acts that were admitted, thus revealing that the trial court acted arbitrarily.
We disagree. Our review of the record shows that the
trial court declined to admit Sharon's testimony because it was not a similar
situation. It noted that Coleman's
alleged contacts with her took place in front of other persons and thus were
different from the others. With respect
to Kathryn's testimony, the trial court was “not convinced” that Coleman's
alleged contact, pulling her sweatshirt, was for the purpose of “sexual
gratification.” Based on the trial
court's stated reasoning, we conclude that it engaged in the logical assessment
of the facts which is characteristic of proper discretionary
decision-making. We affirm its rulings.
Finally, Coleman
complains that the trial court erred when it delivered one of its cautionary
instructions to the jury regarding the use of “other acts” evidence. After Jane's testimony, the trial court
stated that “evidence has been received that the defendant engaged in
inappropriate conduct with [Jane].”
Coleman claims that through the use of the term “inappropriate,” the
trial court “unfairly put the inference in the jury's mind that [he] engaged in
a bad act which infers that he is of a bad character and thus had to have
committed the charged crime.”
Coleman, however, did
not raise an objection when this instruction was given. We thus apply the general rule that a party
waives its right to appeal a jury instruction if it fails to make an objection
before the trial court. See § 805.13(3), Stats.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Both subsecs. of § 940.225, Stats., 1993-94, have been amended, but these changes are not relevant to the issues in this case. See 1995 Wis. Act 69, §§ 7, 8.
[2] The trial court also ruled that the State could introduce testimony from Angie L. She worked in a retail store and claimed that Coleman approached her and made contact with her while she was at work. Nonetheless, Angie did not testify at trial. Therefore, we have not considered whether the trial court erred in its decision to allow her testimony.