|
COURT OF
APPEALS DECISION DATED AND
RELEASED December
19, 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. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-2083-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES
P. MAJURY,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: Michael
Nowakowski, Judge. Affirmed.
ROGGENSACK,
J. James P. Majury appeals his misdemeanor conviction for
criminal trespass to a dwelling. Majury
claims that the trial court erred by admitting several irrelevant exhibits and
the opinion testimony of a prosecution witness, and by finding that the offense
occurred on the date alleged. However,
Majury waived any objections he may have had regarding the admissibility of
evidence by not raising them at the trial court level, and the court's finding
as to the date of the offense was not clearly erroneous. Accordingly, the judgment of the trial court
is affirmed.[1]
BACKGROUND
Majury
was charged with criminal trespass to a dwelling for breaking into a woman's
apartment under circumstances tending to create a breach of the peace. The complaint alleged that the incident
occurred on October 14, 1994. The
victim testified that she thought the incident occurred on a Saturday, because
she had been watching cartoons that morning, but that it could have been on
Sunday. The State introduced
photographs of the French doors through which the victim claimed Majury had
entered. The photographs showed the
types of locks on the doors, but indicated no damage. A neighbor, Eric Reinicke, testified that the victim had come to
his apartment to call the police, looking frightened and angry, and that he had
then observed a very drunk Majury come downstairs. After hearing the evidence, the trial court found Majury
guilty. On appeal, Majury challenges
the admission of the apartment photographs as irrelevant and the testimony of
Eric Reinicke as opinion testimony. He
also claims that the evidence does not support a finding that the incident
occurred on the date alleged in the complaint.
DISCUSSION
Scope of Review.
Evidentiary
matters such as the admissibility of exhibits or testimony are within the trial
court's discretion. Ritt v.
Dental Care Associates, S.C., 199 Wis.2d 48, 72, 543 N.W.2d 852, 861
(Ct. App. 1995). Discretionary acts
will be upheld so long as the trial court (1) examined the relevant facts, (2)
applied a proper standard of law, and (3) used a rational process to reach a
conclusion which a reasonable judge could reach. Id. In addition,
a trial court's findings of fact will be upheld unless they are clearly
erroneous. Section 805.17(2), Stats.; County of Langlade v.
Kaster, 202 Wis.2d 449, 454, 550 N.W.2d 722, 724 (Ct. App. 1996).
Evidentiary Questions.
A
trial judge does not exercise his evidentiary discretion until called upon to
make a ruling on admissibility. See
§ 901.03(1), Stats. Therefore, a trial court does not err by
admitting otherwise inadmissible evidence, when no objection is raised. Wilder v. Classified Risk Ins. Co.,
47 Wis.2d 286, 290, 177 N.W.2d 109, 113 (1970).
Majury
stated on the record that he had no objection to the admission of several
photographs of the victim's door.
Therefore, we need not analyze whether the trial court properly
exercised its discretion in receiving this evidence. No error occurred.
Likewise, Majury failed to object to the testimony of Eric Reinicke
during the trial. Because the trial
court was never called upon to rule whether Reinicke's testimony was admissible
under § 907.01, Stats., the
issue has not been preserved for review by this court.
The
trial court's determination that the offense occurred on the date alleged was a
factual finding. The victim testified
as to the week day on which she thought the break-in occurred. Majury offered no conflicting testimony, and
no calendar was introduced to correlate the day of the week with the numerical
date alleged in the complaint. The
trial court's finding was not clearly erroneous.
CONCLUSION
By
the Court—Judgment affirmed.
Not
recommended for publication in the official reports. See Rule
809.23(1)(b)4., Stats.