COURT OF APPEALS DECISION DATED AND RELEASED July
27, 1995 |
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
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No. 94-2950-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
JERRY
MEANS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Monroe County: MICHAEL J.
McALPINE, Judge. Affirmed.
Before
Dykman, Sundby, and Vergeront, JJ.
PER
CURIAM. Jerry Means appeals from a judgment convicting him of
three counts of felony bail jumping as a repeater in violation of §§
946.49(1)(b) and 939.62, Stats.,
and one count of escape as a repeater in violation of §§ 946.42(3)(a) and
939.62, Stats. Means contends that the trial court
erroneously exercised its discretion when it allowed the State to introduce
evidence of his drug sale to minors because its probative value was
substantially outweighed by the danger of unfair prejudice. Means also contends that his constitutional
right to be free from double jeopardy was violated when he was charged with
both escape and bail jumping based upon the same incident.
We
conclude that the trial court did not erroneously exercise its discretion by
admitting the other acts evidence. We
also conclude that the "elements only" test for double jeopardy has
been satisfied. Therefore, Means's
convictions for bail jumping and escape do not violate his constitutional protection
from double jeopardy. We therefore
affirm.
BACKGROUND
On
August 6, 1993, Means was released on bond subject to several restrictions
including no consumption of alcohol, no further infractions of the law, and no
entry into bars or taverns. On August
7, Means invited several teenagers into his apartment, where he gave them
alcohol. On August 8, a police officer
observed Means entering a tavern, but delayed his arrest due to an ongoing
investigation concerning Means's alleged drug sale to minors.
Later
that night, Means was arrested and taken to the local hospital for a blood
alcohol test which revealed a .14 blood alcohol level. While Means was being escorted from the
hospital to the jail, he ran away, only to be caught about seven or eight minutes
later.
Means
was charged with four counts of felony bail jumping, based upon his consumption
of alcohol, his entering a tavern, his providing alcohol to minors, and his
escape. He was also charged with
escape. At trial, the State introduced
evidence concerning the police investigation of Means's alleged drug sale to
minors to prove an element of the escape charge. Means was acquitted of the bail jumping charge relating to his
entering a tavern, but was convicted of the remaining charges. Means appeals.
UNFAIR
PREJUDICE
Means
contends that the trial court erroneously exercised its discretion when it
allowed the State to introduce evidence of the drug sale. The decision to admit evidence of other acts
falls within the discretion of the trial court. State v. Murphy, 188 Wis.2d 508, 517, 524 N.W.2d
924, 927 (Ct. App. 1994).
The
admissibility of other acts evidence is determined by a two-prong test. State v. Johnson, 184 Wis.2d
324, 336, 516 N.W.2d 463, 466 (Ct. App. 1994).
First, the court must determine if the other acts evidence fits within
one of the exceptions in § 904.04(2), Stats. Id. Section 904.04(2) provides:
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.
These exceptions are not mutually exclusive, but
illustrative only. State v.
Johnson, 181 Wis.2d 470, 492, 510 N.W.2d 811, 818 (Ct. App. 1993).
The
evidence of the drug sale was presented at trial to show that at the time of
the escape, Means had been legally arrested.
Thus, the evidence was offered to satisfy an element of the crime of
escape rather than to show Means's character.
The admission of this evidence was therefore proper.
The
second prong requires the trial court to determine whether prejudice resulting
from the admission of other acts evidence substantially outweighs its probative
value under § 904.03, Stats. Johnson, 184 Wis.2d at 337,
516 N.W.2d at 466. The evidence of the
drug sale had substantial probative value.
It showed that the police had probable cause to legally arrest Means and
satisfied the State's burden of proving an element of the crime of escape. Means claims that the inclusion of this
evidence biased the jury and resulted in his being improperly convicted. Evidence of the drug sale, however, was but
a small part of the prosecution's case, and cautionary instructions were available
to protect Means from potential unfair prejudice. The dangers of unfair prejudice did not substantially outweigh
the probative value of the evidence.
Thus, we conclude that the trial court did not erroneously exercise its
discretion when it admitted this evidence.
DOUBLE
JEOPARDY
Means
also argues that because all of the elements of escape had to be proven in
order to convict him of bail jumping, the convictions for bail jumping and
escape constituted multiple punishment for the same offense in violation of
Means's constitutional right to be free from double jeopardy. Whether Means's double jeopardy rights were
violated is a question of law that we review de novo. State v. Harris, 190 Wis.2d
719, 723, 528 N.W.2d 7, 8 (Ct. App. 1994).
Where a single course of conduct leads to multiple charges being
prosecuted in a single trial, the "elements only" test is used to
determine whether there is a double jeopardy situation. Id. The "elements only" test involves examining the two
offenses to determine whether each offense requires proof of an additional
element which the other does not. Id.
at 723-24, 528 N.W.2d at 8.
In
Harris, we concluded that double jeopardy protection did not
prohibit charging a defendant with both bail jumping and possession of cocaine
because the latter offense satisfied an element of the bail jumping charge and
because the two charges contained different elements. Id. at 724-25, 528 N.W.2d at 8-9. The elements of felony bail jumping
are: (1) defendant was charged
with a felony; (2) defendant was released from custody under conditions;
and (3) defendant intentionally failed to comply with the conditions of
his or her release. See
§ 946.49(1)(b), Stats. The elements of escape are: (1) defendant was in custody;
(2) custody resulted from legal arrest for a crime; (3) the defendant
escaped from custody; and (4) the escape from custody was
intentional. See § 946.42(3)(a),
Stats. In comparing the elements of bail jumping and escape, the
"elements only" test is satisfied because each offense contains
elements that the other lacks.
Once
the "elements only" test has been met, multiple punishments are
presumed to be allowed unless a defendant can demonstrate contrary legislative
intent. Harris, 190
Wis.2d at 724, 528 N.W.2d at 8-9. Means
has failed to submit any evidence of a contrary legislative intent; therefore,
the charges against Means do not constitute double jeopardy.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.