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COURT OF APPEALS DECISION DATED AND RELEASED October 30, 1996 |
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
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No. 96-0801-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
DERICK D. BOSTICK,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Kenosha County:
S. MICHAEL WILK, Judge. Affirmed
and cause remanded.
NETTESHEIM, J. The
State appeals from a trial court order denying its motion for the admission of
“other acts” evidence at the scheduled shoplifting trial of the defendant,
Derick D. Bostick.[1] The State contends that the trial court
misused its discretion by excluding the evidence due to “unfair
prejudice.” We conclude that the trial
court did not erroneously exercise its discretion. Accordingly, we affirm the trial court’s order.
FACTS
On January 26, 1995,
Dino Zagame, a loss prevention officer at Kohl’s department store, observed
Bostick take a pair of pants and conceal them under a jacket which was draped
over his shoulder. Bostick exited the
store without paying for the merchandise.
Zagame followed Bostick to the parking lot at which point Bostick ran to
his vehicle and sped away. Bostick was
later identified in a surveillance tape as the individual who was seen taking
the pants. The surveillance tape shows
Bostick leaving the store without making any attempt to pay for the pants
concealed under his jacket. As a
result, Bostick was charged with retail theft contrary to § 943.50(1m), Stats.
Prior to trial, the
State filed a motion in limine seeking to admit evidence of two prior incidents
of retail theft involving Bostick. Both
incidents were strikingly similar to the facts alleged against Bostick in this
case. The first incident occurred in
1992. Security personnel at a Kohl's
department store in Racine county observed Bostick conceal several pairs of
blue jeans under his jacket which was draped over his shoulder. Bostick exited the store without attempting
to pay for the merchandise. The second
incident occurred in 1994. Security
personnel at a Kohl's department store in Fond du Lac county observed Bostick
stuff several pairs of blue jeans in a bag and then conceal the bag under his
jacket. In both instances, the security
personnel followed Bostick into the parking lot before Bostick entered a
vehicle and sped away. In each
incident, Bostick was eventually apprehended and convicted of retail
theft.
Although the trial court
determined that the prior incidents were admissible as “other acts” evidence
under § 904.04(2), Stats.,
it nevertheless excluded the evidence under § 904.03, Stats., concluding that the probative value of the evidence was
“substantially” outweighed by the danger of unfair prejudice. The State appeals this ruling.
DISCUSSION
Evidentiary rulings are
committed to the discretion of the trial court. See State v.
Webster, 156 Wis.2d 510, 514, 458 N.W.2d 373, 375 (Ct. App. 1990). We will affirm such a ruling if the trial
court has correctly applied the accepted legal standards to the facts of record
and, using a rational process, reached a conclusion that a reasonable judge
could reach. Id. at 515,
458 N.W.2d at 375.
In deciding whether to
admit “other acts” evidence, the trial court must apply a two-prong test. State v. Kuntz, 160 Wis.2d
722, 746, 467 N.W.2d 531, 540 (1991).
First, the court must determine whether the evidence is offered for a
purpose admissible under § 904.04(2), Stats. Kuntz, 160 Wis.2d at 746, 467
N.W.2d at 540. If so, the court must
then determine whether the probative value of such evidence is substantially
outweighed by its prejudicial impact. Id.;
§ 904.03, Stats.
Here, the trial court
determined that the State's “other acts” evidence was admissible pursuant to
§ 904.04(2), Stats., and
Bostick does not dispute that determination.
Thus, the appellate question narrows to whether the trial court misused
its discretion by concluding that the prejudicial effect of the evidence
outweighed its probative value under
§ 904.03, Stats.
In making its ruling,
the trial court expressly analyzed the “other acts” evidence under the
two-prong test set forth in Kuntz. The court first determined that the two prior shoplifting
incidents were admissible under § 904.04(2), Stats., to demonstrate Bostick’s plan, preparation, knowledge
and absence of mistake in taking the clothing.
The court, however, excluded the “other acts” evidence under the second
prong because its “probative value [was] substantially outweighed by the danger
of unfair prejudice.” See
§ 904.03, Stats.
The test under
§ 904.03, Stats., is not
whether evidence is prejudicial but whether it is unfairly prejudicial. State v. Mordica, 168 Wis.2d
593, 605, 484 N.W.2d 352, 357 (Ct. App. 1992).
Evidence is unfairly prejudicial if it has a tendency to influence the
outcome by improper means or if it appeals to the jury's sympathies, arouses
its sense of horror, provokes its instinct to punish or otherwise causes a jury
to base its decision on something other than the established propositions in
the case. See Bittner v. American
Honda Motor Co., Inc., 194 Wis.2d 122, 147-48, 533 N.W.2d 476, 486
(1995).
Here, the trial court
reasoned that, “It would be difficult to imagine the defendant being able to
come into court and try to defend the claim of retail theft of the Kohl’s store
with “other acts” evidence demonstrating that he had done exactly the same
thing on two other occasions at a Kohl’s store and has been convicted.” These remarks reflect the very kind of balancing
test required by the law. The court
reasonably saw the risk that the “other acts” evidence might so dominate the
proceedings such that the jury would convict on the basis of such extraneous
evidence to the exclusion of the evidence bearing directly on the charged
offense.
“Other acts” evidence is
admissible if its relevance hinges on something other than the forbidden
character inference proscribed by § 904.04(2), Stats. State v.
Johnson, 184 Wis.2d 324, 336, 516 N.W.2d 463, 466 (Ct. App. 1994). Although the trial court's ruling was premised
on the balancing test required by § 904.03, Stats., that determination rested on the court's reasoning
that the “other acts” evidence demonstrated Bostick's propensity to shoplift
and that he was acting in conformity with that propensity as to the charged
offense. That, of course, is exactly
what § 904.04(2) prohibits.
In further support of
its determination, the trial court noted that the “other acts” evidence was not
essential to the State’s case because the facts and other evidence available, including the videotape, were
sufficient to prove Bostick’s guilt.
The court stated: “The Court is
mindful of the fact that the facts, as alleged in the case in chief, do not
long for this extra support ¼. Kohl’s personnel observed the defendant bend
down and conceal the pants under a jacket draped over his left shoulder ¼. [Bostick], apparently, has been positively
identified by store personnel, and the defendant was identified on the video
tape by the store personnel. On that
issue, it appears that the motion should be denied.”
The case law supports
this further reasoning by the trial court.
When deciding whether to admit “other acts” evidence, the court may look
to the existing evidence available to the State. See State v. Harris, 123 Wis.2d 231, 236, 365
N.W.2d 922, 925 (Ct. App. 1985) (“[t]he availability of other evidence ... is a
factor relevant to determining the admissibility of other wrongs evidence ¼. [Other acts evidence] is not favored and
ought not be used if other proof is available.”).
In summary, the record
shows that the trial court applied the correct legal standard to the facts and,
using a rational process, reached a reasonable conclusion. See Webster, 156 Wis.2d
at 515, 458 N.W.2d at 375. Accordingly, we affirm the trial court’s
ruling.
We add a concluding
observation. “Other acts” evidentiary
issues are common to the appellate courts of this state. Usually this issue comes to us via an appeal
by a convicted defendant complaining that “other acts” evidence was improperly
admitted. Recently, we had occasion to
examine the multitude of appellate decisions on this issue. See Johnson, 184 Wis.2d
at 341 n.4, 516 N.W.2d at 468. We noted
that, with a few exceptions, we have routinely adopted the State's argument
that the trial court properly exercised its discretion by admitting the
disputed evidence. Id. We
have done so despite the concern expressed by some members of this court as to
the direction of the law in this area. See,
e.g., the concurring opinion in Johnson at 348-54, 516 N.W.2d
at 471-74; and the dissenting opinions in State v. Tabor, 191
Wis.2d 482, 497-500, 529 N.W.2d 915, 921-23 (Ct. App. 1995), and State v.
Clark, 179 Wis.2d 484, 497-500, 507 N.W.2d 172, 177-78 (Ct. App. 1993).
Here, however, we have
the rare case in which the State is appealing the trial court's exercise of
discretion in choosing to exclude “other acts” evidence. Despite the differing result, our analysis
is essentially the same as in the more traditional case—did the trial court
apply the correct law and engage in a rational process which produced a
reasonable conclusion. We are no less
likely to uphold the trial court’s use of discretion when it excludes “other
acts” evidence as when it admits it.
By the Court.—Order
affirmed and cause remanded..
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.