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COURT OF APPEALS DECISION DATED AND FILED November 15, 2005����������� Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from a judgment and an order of the circuit court for Shawano County:� thomas g. grover, Judge.� Affirmed.�
����������� Before Cane, C.J., Hoover, P.J., and Peterson, J.��
�1����������������������� PER CURIAM. Duane Carpenter appeals a judgment convicting him of kidnapping, false imprisonment, and possession of a firearm by a felon.� He also appeals an order denying his postconviction motion.� He argues that:� (1) the trial court erred by denying Carpenter�s motion to exclude any evidence of Carpenter�s prior convictions; (2) the court improperly allowed the prosecutor to read into the record the victim�s preliminary hearing testimony; and (3) the court misused its discretion when it imposed concurrent sentences totaling twenty years� initial confinement and ten years� extended supervision.� Because we conclude the first and third issues lack merit and the second issue was not properly preserved, we affirm the judgment and order.
�2����������������������� Carpenter was charged with kidnapping and falsely imprisoning his estranged wife, Jodi, and threatening her with a gun.� Jodi died before trial and her preliminary hearing testimony was read to the jury without objection.� Defense counsel introduced other statements Jodi made to witnesses regarding the incident.� Carpenter testified on his own behalf, denying the allegations.� Based on the trial court�s denial of Carpenter�s motion in limine to exclude any evidence of his prior convictions, Carpenter�s attorney elicited on direct examination that Carpenter had been convicted of six crimes.� Other witnesses gave varying accounts of the incident and the source of an injury to Jodi�s throat, and Carpenter�s purchase of a gun.� The jury convicted Carpenter of all charges.�
�3����������������������� The trial court properly exercised its discretion when it allowed evidence of Carpenter�s prior convictions.� Carpenter argues that the convictions should have been excluded because they were �old.�� Whether to admit prior convictions into evidence to attack a witness�s credibility is left to the trial court�s discretion.� See State v. Smith, 203 Wis. 2d 288, 295, 553 N.W.2d 824 (Ct. App. 1996).� The court should consider the lapse of time since the conviction, the witness�s rehabilitation, the gravity of the crime, and whether the crime involved dishonesty.� Id. at 295-96.� The evidence should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.� See Wis. Stat. � 906.09.[1]�
�4����������������������� Carpenter�s convictions were highly relevant as they relate to his credibility and to an element of felon in possession of a firearm.� Carpenter�s convictions occurred between 1972 and 1982.� One of the crimes, theft, the oldest of the offenses, involves dishonesty.� The sheer number of offenses suggests lack of rehabilitation.� A person who has been convicted of a crime is presumed less likely to be a truthful witness than a person who has not been convicted.� See State v. Kruzycki, 192 Wis. 2d 509, 524, 531 N.W.2d 429 (Ct. App. 1995).� The more often one has been convicted, the less truthful he is presumed to be.� Nicholas v. State, 49 Wis. 2d 683, 688, 183 N.W.2d 11 (1971).� In addition, because Carpenter was charged with possession of a firearm by a felon, the State was required to prove that he had a prior felony conviction, regardless of the lapse of time since the conviction.� The brief mention of his six prior convictions does not create a prejudicial effect that substantially outweighs the probative value of this evidence.�
�5����������������������� We need not determine whether the trial court properly allowed the prosecutor to read Jodi�s preliminary hearing testimony to the jury because that issue was not properly preserved for appeal.� Error may not be predicated on a ruling that admits evidence unless a timely objection or motion to strike appears of record.� See Wis. Stat. � 901.03(1)(a).� Carpenter notes that this trial occurred before the Supreme Court�s decision in Crawford v. Washington, 541 U.S. 36 (2004).� Therefore, any objection concerning Carpenter�s right to cross-examine witnesses would have been overruled.� Making objections that are overruled is a prerequisite for challenging evidentiary rulings on appeal.� A subsequent change in the law does not relieve a party of his obligation to make a contemporaneous objection to preserve an issue for appeal.
�6����������������������� Finally, the trial court properly exercised its discretion when it sentenced Carpenter to twenty years� initial confinement and ten years� extended supervision.� The court appropriately considered the seriousness of these offenses, Carpenter�s prior convictions including violent offenses, his past prison experience, lack of truthfulness in his trial testimony, gambling and alcohol problems and a pending charge of domestic abuse that exhibited a pattern of violence and criminality.� See State v. Tew, 54 Wis. 2d 361, 367-68, 195 N.W.2d 615 (1972).� Because Carpenter had �been through the system,� and the court knew of no other programs that might successfully rehabilitate him, the court appropriately imposed a substantial sentence.� The sentence is not so excessive as to shock public sentiment.� See Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975).�
����������� By the Court.�Judgment and order affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.