COURT OF APPEALS DECISION DATED AND RELEASED December 19, 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
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No. 94-2986-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MUSTAFA ABD'ALLAH,
formerly known as
ANTHONY JONES,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DIANE S. SYKES, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER CURIAM. Mustafa Abd'Allah (formerly known as Anthony
Jones) appeals from a judgment of conviction for robbery, following a jury
trial, and for felon in possession of a firearm, following his Alford
plea. Abd'Allah also appeals from an
order denying his postconviction motion for a new trial. He claims that the trial court erred when it
allowed the State to introduce into evidence Abd'Allah's sexual threats against
the victim allegedly made “after the conclusion of the robbery.” He also claims that the trial court
erroneously exercised its sentencing discretion and that his sentence was
unduly harsh. We reject his arguments
and affirm.
D'Andrea Stallings,
testified that Abd’Allah and his friend, Larry DeArmond, demanded money from
her after the two men gave her a ride from a bus stop. Stallings testified that on October 2, 1992,
she asked Abd'Allah and his friend to drive her to pick up a $200 money order
from an apartment manager. The
apartment manager accompanied the three individuals to a check cashing agency
where Stallings received the $200 in cash.
After Abd'Allah, DeArmond and Stallings made numerous other stops,
Abd'Allah stopped the car, forcibly buckled Stallings's seatbelt and locked her
door. After confronting Stallings about
the source of her cash, jewelry and clothes, Abd'Allah punched her in the
face. Abd'Allah continued to punch the
victim until she gave him the money she kept in her shoes, her watch and her
diamond ring. Stallings testified that
when she told Abd'Allah that she had nothing of value left, Abd'Allah
“threatened to rape me and throw my body in the gutter, leave me for dead” if
she was lying to him. Stallings then
produced another $10.
Stallings testified that
after Abd'Allah again punched her, Abd'Allah “told me he was going to make me
have sex with him and Larry and then he was going to sit and watch me give Larry
oral sex because I hurt Larry's feelings.”
Abd'Allah then demanded that Stallings tell him where she got her money
and that she would have to give him her money in the future. As the car approached a restaurant,
Stallings screamed and hit Abd'Allah in the face with her elbow, forcing
Abd'Allah to stop the car. When
Stallings unfastened her seatbelt and unlocked the door in an effort to get
away, Abd'Allah grabbed her blouse, ripped it and her bra open, and demanded to
see if she was hiding any more money.
Stallings, however, then escaped.
At trial, Abd'Allah and
DeArmond denied giving Stallings a ride and denied participating in the
robbery.
Abd'Allah argues that
the trial court improperly admitted Stallings's testimony about his sexual
threats. Abd'Allah claims that the
sexual threats “occurred after the robbery had concluded,” were entirely
separate from the robbery and, therefore, were irrelevant.[1]
In motions in limine,
the trial court concluded that the sexual threats were relevant to the entire
course of conduct:
Well,
I think that's relevant to the whole course of conduct that is at issue here,
and I don't find that it is unduly prejudicial given its probative value as to
the various threats that were being made against the victim in connection with
this incident.
In
its decision on Abd'Allah's postconviction motion, the trial court further
explained:
The threats were part and parcel of the
defendant’s violent and threatening course of conduct by which he forced the
victim to give up her property in this robbery, which took place during a car
ride which began innocuously but ended violently. It was directly relevant to the elements of the offense of
robbery and was an integral part of the central facts of the case. Any prejudice to the defendant in admitting
this evidence did not outweigh the probative value of the evidence, given its
direct relevance.
Whether to admit or
exclude evidence rests within the discretion of the trial court, and this court
will not interfere with the trial court's ruling absent an erroneous exercise
of discretion by the trial court. See
State v. Clark, 179 Wis.2d 484, 490, 507 N.W.2d 172, 174 (Ct.
App. 1993). In discussing the principles of relevancy encompassed in
Rules 904.01-904.03, Stats., the Wisconsin Supreme Court has
stated:
The Wisconsin statutory definition of relevancy
requires that the evidence introduced has a tendency to make the existence of
any fact that is of consequence to the determination of the action more or less
probable. The evidence need not ...
bear directly upon one of the elements of the crime. It may ... bear on motive; or it may establish the presence of
the defendant at the scene of the crime; or it may show that the defendant did
the act involved; or it may bear upon any one of countless other facts which are
of consequence to the determination of the action.
Holmes
v. State, 76 Wis.2d 259, 268, 251 N.W.2d 56, 61 (1977). The supreme court noted that one of the
“countless other factors” was when the evidence helped “to complete the story
of the crime.” Id. at
269, 251 N.W.2d at 61.
The record contains
ample evidence to support the trial court's conclusion that the sexual threats
were part of the continuing course of conduct that comprised the robbery. Abd'Allah's threat of rape was designed to
intimidate Stallings into surrendering any additional valuables she may have
had. The threat was successful, as
Stalling gave Abd'Allah an additional $10.
Moreover, Abd'Allah's threat of forcing the victim to perform sexual
acts was immediately followed by further demands of cash. Additionally, Abd'Allah then ripped
Stallings's bra open to discover if she was hiding more money. These factors assisted the jury in helping
to complete the story of the crime. See
id. Finally, the trial
court did not erroneously exercise its discretion by refusing to exclude the
evidence under Rule 904.03, Stats.
Abd'Allah also argues
that the trial court's sentence was not supported by sufficient reasoning and
was unduly harsh. Our standard when
reviewing a criminal sentence is whether or not the trial court erroneously
exercised discretion. State v.
Wagner, 191 Wis.2d 322, 332, 528 N.W.2d 85, 89 (Ct. App. 1995). There is a strong policy against an
appellate court interfering with a trial court's sentencing determination and,
indeed, an appellate court must presume that the trial court acted
reasonably. State v. Thompson,
146 Wis.2d 554, 564, 431 N.W.2d 716, 720 (Ct. App. 1988).
The sentencing court
must consider three primary factors: (1) the gravity of the
offense; (2) the character of the offender; and, (3) the need to
protect the public. Wagner,
191 Wis.2d at 333, 528 N.W.2d at 89.
The trial court may also consider: the defendant's past record of
criminal offenses; the defendant's history of undesirable behavior patterns;
the defendant's personality, character and social traits; the presentence
investigation results; the aggravated or vicious nature of the defendant's
crime; the degree of the defendant's culpability; the defendant's demeanor at
trial; the defendant's age, educational background, and employment record; the
defendant's remorse, repentance or cooperativeness; the defendant's
rehabilitative needs; the rehabilitative needs of the victim; the needs and
rights of the public; and, the length of the defendant's pretrial
detention. See State v.
Jones, 151 Wis.2d 488, 495-496, 444 N.W.2d 760, 763-764 (Ct. App.
1989). The weight to be given to each
of the factors is within the trial court's discretion. Wagner, 191 Wis.2d at 333, 528
N.W.2d at 89.
In sentencing Abd'Allah,
the trial court first noted the seriousness of his robbery, calling it
“assaultive,” “very calculated,” and “a violation of [Stallings's] personal
integrity as well as her property.” The
court next considered Abd'Allah's background, noting a lengthy record of
assaultive offenses and property crimes.
Finally, the court found that the public interest required a substantial
prison sentence, telling Abd'Allah that he was “unwilling or unable to conform
your conduct to the requirements of the law and the community needs to be
protected from you.” Review of the
record reveals that the trial court considered the appropriate sentencing
factors and adequately explained the basis for the sentence it imposed.
Abd'Allah further claims
that the trial court's sentence was unduly harsh. When a defendant argues that his or her sentence is unduly harsh
or excessive, we will find an erroneous exercise of discretion “only where the
sentence is so excessive and unusual and so disproportionate to the offense
committed so as to shock public sentiment and violate the judgment of
reasonable people concerning what is right and proper under the
circumstances.” Ocanas v. State,
70 Wis.2d 179, 185, 233 N.W.2d 457, 461 (1975).
The court sentenced
Abd'Allah to eight years for the robbery, two years short of the maximum, and
two concurrent years time for the felon-in-possession-of-a‑firearm
offense. Thus, Abd'Allah was sentenced
to only eight years when the trial court could have imposed a sentence of
twelve years. Under these
circumstances, the sentence was not unduly harsh or excessive. See Ocanas, 70 Wis.2d
at 185, 233 N.W.2d at 461; State v. Daniels, 117 Wis.2d 9, 22,
343 N.W.2d 411, 417-418 (Ct. App. 1983) (“A sentence well within the limits of
the maximum sentence is not so disproportionate to the offense committed as to
shock the public sentiment and violate the judgment of reasonable people
concerning what is right and proper under the circumstances.”).
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Although Abd'Allah notes that he made “passing reference to the fact that this evidence may represent improper ‘other bad acts’ evidence” under Rule 904.04(2), Stats., he stated that “the main thrust of his argument is that the evidence was irrelevant to the crime charged.” Therefore, we address his challenge to the admissibility of the sexual threats under relevancy analysis.