State v. Jones
State v. Jones
Opinion of the Court
Elijah Jones (Jones) appeals from a judgment convicting him of one count of sexual assault, in violation of sec. 940.225(l)(d), Stats., and from an
This case stems from events which occurred in the early morning hours of September 10, 1986. Testimony at trial established that Jones returned home after an evening of heavy drinking with friends. His wife, Jennifer, was asleep on a couch in the living room, and her eleven-year-old daughter, K.T., and her two sons were asleep in their bedroom. K.T. testified that she was awakened by Jones. He already had removed her clothing, told her to put on her bathrobe, and motioned for her to go into his exercise room, where he often slept. Over objection by defense counsel, K.T. stated that she knew Jones wanted to do "[w]hat he always do to me." K.T. went into Jones' room, where she claimed he placed his penis in her vagina. This sexual activity continued for approximately fifteen to twenty minutes, until Jones and K.T. heard Jennifer's movements in the next room. K.T. stated that Jones told her to leave his room, and that he left to find her mother.
Jennifer testified that she heard a child's whimper, awoke, and found that K.T. was in neither her bedroom nor the adjoining bathroom. Jennifer was met by Jones in the living room, and when she later went back into K.T.'s room, K.T. was in her bed. K.T. informed her mother of Jones' actions, and Jennifer brought her to Children's Hospital in Milwaukee for treatment. A physical examination established that K.T.'s vaginal diameter was three times the normal diameter of a girl her age,
As noted above, K.T. maintained at trial that Jones had assaulted her on more than one occasion. Specifically, K.T. testified that Jones had placed his penis in her vagina on six or seven prior occasions. Jones' arresting officer testified that when initially arrested, Jones made statements to the effect that he had not engaged in intercourse with K.T., but that he had inserted his finger into her vagina and had done so on prior occasions when intoxicated. The prosecution was allowed to introduce this evidence of "other acts" to determine motive, plan and the general scheme of the crime. At trial, Jones denied any sexual contact with K.T. whatsoever.
The jury returned a guilty verdict on March 22, 1988. Judgment was entered accordingly and Jones was sentenced on July 1, 1988. In sentencing Jones to ten years of imprisonment, the trial court noted that both K.T. and her mother were devastated by Jones' conduct, so much that the family moved away from the community. The court also recognized that Jones: (1) had no prior record; (2) had no history of undesirable behavior patterns; (3) did not appear to be a vicious person; (4) was seeking help for his alcoholism; (5) had improved his employment record; (6) was twenty-nine years old; and (7) had limited education. The court also noted that until the sentencing hearing itself, Jones denied committing the assault against K.T., and thus took no responsibility for his actions and expressed no remorse.
The trial court also discussed the vicious and aggravated nature of Jones' crime. The court described it as "conduct that's so devastating to children and an innocent parent that it just cannot be allowed in a civilized
On November 22, 1988, Jones filed a motion to modify his sentence, pursuant to sec. 809.30, Stats. In support of his motion, Jones argued that the trial court abused its discretion by considering the "rehabilitative needs of the victim" factor in determining his sentence. This motion was denied in an order entered on December 6, 1988.
Jones now appeals from his judgment of conviction and sentence, and from the order of December 6, 1988. Jones brings two issues before this court: (1) whether the trial court abused its discretion by admitting the "other acts" evidence; and (2) whether the trial court abused its discretion by considering the above-noted sentencing factor.
ADMISSION OF "OTHER ACTS" EVIDENCE
Appellant argues that evidence of his alleged prior sexual contacts with K.T. was wrongfully admitted by the trial court, because K.T. did not elaborate on the specific circumstances surrounding those contacts by providing the court with time and place details. Our review of this issue is governed by the "abuse of discretion" standard, and the trial court's decision to admit the "other acts" evidence will be upheld if it is in accordance with legal standards and facts of record, if the trial court undertook a reasonable inquiry and examination of
Section 904.04(2), Stats., "does allow admission of other acts evidence if used for specific purposes, such as proof of motive or identity."
Our review of the record illustrates that the trial court reasonably inquired into the facts of the case, examined them and then applied the facts to proper legal standards. K.T.'s assertion that she had been assaulted six or seven times in the same manner as the assault
Any possible prejudicial effect of the "other acts" evidence was offset by the trial court's instructions, which explained to the jury that such evidence was "admitted solely on the issue of opportunity, preparation or plan." Furthermore, the jury was informed of the State's burden to establish the truth of the other occurrences, and that the alleged other contacts could not be used to evaluate Jones' character. Finally, the jury was instructed that K.T.'s inability to remember particulars about Jones' prior sexual contacts could be used to assess her credibility.
Therefore, there exists a reasonable basis for admission of evidence of Jones' alleged prior sexual contacts with K.T., and we must affirm the trial court's decision. We also note that given the strength of the evidence against Jones, which included the testimony of K.T. and Jennifer, and the physical evidence produced from K.T.'s medical examination, if the trial court had been in error for admitting the "other acts" evidence, such error would have been harmless because there is no reasonable probability that the error contributed to Jones' conviction.
ABUSE OF SENTENCING DISCRETION
Appellant next argues that the trial court abused its discretion by considering the rehabilitative needs of
It is a well-settled principle of law in Wisconsin that sentencing is left to the discretion of a trial court, and that appellate review is limited to determining if an abuse of discretion has occurred.
By the Court — Judgment and order affirmed.
State v. Mink, 146 Wis. 2d 1, 13, 429 N.W.2d 99, 104 (Ct. App. 1988).
Id. at 13,429 N.W.2d at 103; State v. Schindler, 146 Wis. 2d 47, 51-52, 429 N.W.2d 110, 112 (Ct. App. 1988); See sec. 904.03, Stats.
Mink, 146 Wis. 2d at 17, 429 N.W.2d at 105.
State v. Conley, 141 Wis. 2d 384, 399, 416 N.W.2d 69, 75 (Ct. App. 1987).
Mink, 146 Wis. 2d at 13, 429 N.W.2d at 104.
See State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222, 231-32 (1985).
State v. Larsen, 141 Wis. 2d 412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987).
Concurring Opinion
(concurring). Although I agree with most of the majority decision, I write separately to expand on one point, the use of victim impact considerations in sentencing, and to clarify another, the scope of Rule 904.04(2), Stats.
In discussing sentencing factors, the majority holds that the rehabilitative needs of the victim "may be considered by a trial court where appropriate." Majority opinion at page 496 (emphasis in original). I believe that
" 'Two lives — the defendant's and the victim's — are profoundly affected by a criminal sentence. The court cannot make an informed decision on a just punishment if it hears only from one side.' " McLeod, Victim, Participation at Sentencing, 22 Crim. L. Bull. 501, 506-507 (1986) (quoting President's Task Force on Victims of Crime, Victims of Crime (1982) [hereinafter President's Task Force]). In a similar vein, the United States Sentencing Commission has written that any sentence "should be effective, just, and efficient for the defendant, the victim, and society." United States Sentencing Commission, Revised Draft Sentencing Guidelines 2 (Jan., 1987).
Crime takes a terrible toll on its victims. A 1985 survey of crime victims in Kentucky, for example, reported the typical devastation left in crimé's wake:
Results made from the victimization study suggest that in the short term (within a year of the incident) victims of crime were significantly more depressed and more fearful than non-victims, victims of violent crime reported the highest level of depression and fear, and victims of multiple incidents of crime during one year reported higher levels of depression and fear than did those who reported only one crime incident or no crime. In the long term, the level of fear in victims continued to be higher than the level of fear in non-victims and the long-term effects of violence on fear of crime are more pronounced than are the long-term effects of experiencing property crime.
7 Criminal Justice Statistic Ass'n, Inc., The CJSA Forum 2 (May, 1989). The heart of the matter is a perception of helplessness that infuses victims with a sense of their own vulnerability. Zehr & Umbreit, Victim
Any sentencing decision must assess not only the crime and the criminal but the needs of the community as well. See In re Judicial Administration: Felony Sentencing Guidelines, 120 Wis. 2d 198, 201, 353 N.W.2d 793, 795 (1984). As our decision in this case acknowledges, we serve the community by accommodating the rehabilitative needs of victims. Majority opinion at page 496.
Punishment tends to right the scales of justice that have been set askew by crime. See President's Task Force, supra, at 76-78. Charles E. Silberman has put it this way: "We punish criminals, in short, because justice, i.e., fairness, requires it; punishment is a way of restoring the equilibrium that is broken when someone commits a crime." C. Silberman, Criminal Violence, Criminal Justice 188-189 (1978). The efficacy of punishment thus extends beyond the utilitarian goals of deterrence, incapacitation, and rehabilitation:
*499 "It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive, and*500 nothing else . . .. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not."
C. Silberman, supra, at 185 (quoting Lord Justice Den-ning of Great Britain). Thus, the Supreme Court has "long recognized that retribution itself is a valid peno-logical goal of the death penalty," South Carolina v. Gathers, 490 U.S. —, —, 109 S. Ct. 2207, 2214 (O'Connor, J., dissenting), and that it " 'is an element of all punishments society imposes.' " Ibid, (quoting Spaziano v. Florida, 468 U.S. 447, 462 [1984]).
A victim's suffering is not only a good measure of the crime's seriousness but, indeed, is a useful gauge with which to determine appropriate punishment. See President's Task Force, supra, at 76-78. Thus, felony victims in Wisconsin are entitled "[t]o have the court provided with information pertaining to the economic, physical and psychological effect of the crime" and to "have the information considered by the court." Sec. 950.04(2m), Stats, (emphasis added).
1 — 1 HH
In discussing Rule 904.04(2), Stats., the majority states: "To be admissible, the other acts evidence must be relevant to one of the statutory exceptions . . .." Majority opinion at page 493. This is misleading because it implies that the listed exceptions are exclusive rather than illustrative.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he 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.
Rule 904.04(2), Stats., (emphasis added). Thus, for example, State v. Pharr, 115 Wis. 2d 334, 340 N.W.2d 498 (1983), recognized "that other crimes evidence is admissible '[t]o complete the story of the crime on trial by proving its immediate context of happenings near in time and place,' " Id. at 348, 340 N.W.2d at 504 (quoting Bailey v. State, 65 Wis. 2d 331, 347, 222 N.W.2d 871, 880 (1974)), even though complete-the-story evidence is not within the rule's listed examples. Accord, Shillcutt, 116 Wis. 2d at 236-237, 341 N.W.2d at 720.
The utilitarian aspects of punishment are clear:
A study conducted by Kenneth Wolpin (then at Yale) compared*499 what would happen if imprisonment was increased by 1% with what would happen if probation was increased by 1%. The conclusion was that twice as many crimes would be deterred by increasing imprisonment. Similarly, a study by Michael Block at the University of Arizona concluded that moving a typical property offender from probation to a two-year prison sentence would prevent 80 property crimes.
Abell, The Costly Crisis in Corrections, Wall St. J., Mar. 21,1989, editorial page. Incarceration not only reduces crime, it is cost effective as well. Thus, a National Institute of Justice study has shown that imprisonment of an additional 1,000 dangerous criminals would cost $25 million more per year but would prevent about 187,000 felonies, saving some $430 million in social costs attributable to those crimes not committed. E. Zedlewski, Making Confinement Decisions, National Institute of Justice, 4 (July, 1987).
The conclusion [that the costs of crime far exceed the costs of incarceration to prevent it] holds even if there are large errors in the estimates: Doubling the annual cost of confinement, halving the average crimes per offender, and halving the average cost per crime would indicate that $50 million in confinement investments would avert $107 million in social costs.
Ibid. In contrast, efforts at non-coercive rehabilitation have failed.
No approach to rehabilitation seems to work. Whether offenders are given traditional one-to-one psychotherapy or newer methods of group therapy, they return to crime at about the same rate as those given no therapy at all. Nor are recidivism rates affected by education, vocational training, social work counseling, or any other approach that has yet been tried.
C. Silberman, supra, at 184. In fiscal year 1985, Wisconsin spent a mere 1.5% of state and local direct expenditures for "corrections," which "includes costs and employment for jails ["with authority to hold prisoners beyond arraignment"], prisons, probation, parole, pardon, and correctional administration." Bureau of Justice Statistics, U.S. Department of Justice, Justice Expenditure and Employment, 1985, 6, 8 (Mar. 1987).
Rule 32(c)(2)(D) of the Federal Rules of Criminal Procedure also requires that federal sentencing courts be given "an assessment of the financial, social, psychological, and medical impact upon, and cost" of the crime to the victim. Ibid. More than two/ thirds of the states have similar provisions. McLeod, supra, at 507-508 n. 22.
On August 3, 1989, after this opinion was released, sec. 972.14(3), Stats., was enacted. 1989 Wis. Act. 31, sec. 2858e. Section 972.14(3)(a) provides: "Before pronouncing sentence in a felony case, the court shall also allow a victim or family member of a homicide victim to make a statement or submit a written statement to be read in court. The court may allow any other person to make or submit a statement under this paragraph. Any statement
The United States Supreme Court has prohibited consideration of so-called "victim impact statements" in capital cases. Booth v. Maryland, 482 U.S. 496, 502-503 (1987). This five to four decision was specifically limited by the majority to cases where the death penalty is at issue, id. at 507 n. 10, 509 n. 12. Booth's demise, however, may be just below the horizon. Four justices have questioned its analysis, Gathers, 490 U.S. at —, —, 109 S. Ct. at 2212, 2217 (O'Connor, J., dissenting, joined by Rehnquist, C.J. and Kennedy, J.; Scalia, J., dissenting), and Justice White, a dissenter in Booth, 482 U.S. at 515, joined with the majority in Gathers only because the Court was not yet ready to overrule Booth. See Gathers, 490 U.S. at —, 109 S. Ct. at 2211 (White, J., concurring). Neither Booth nor Gathers, however, con
The majority's statement is borrowed almost verbatim from State v. Mink, 146 Wis. 2d 1, 13, 429 N.W.2d 99, 103 (Ct. App. 1988): "Other acts evidence must pass a two-step test prior to being admissible. First, the evidence must be relevant to one of the statutory exceptions." Id. at 13, 429 N.W.2d at 103 (citation omitted). Mink cites State v. Danforth, 129 Wis. 2d 187, 202, 385 N.W.2d 125, 131 (1986) in support of this proposition. Danforth phrased the test's first prong in similar language: "First, the trial court must fit the evidence within one of the sec. 904.04(2), Stats., exceptions," Danforth, 129 Wis. 2d at 202, 385 N.W.2d at 131, as did State v. Alsteen, 108 Wis. 2d 723, 729, 324 N.W.2d 426, 429 (1982), upon which the Danforth court relied. None of these cases, however, concerned a situation where "other acts" evidence was excluded because it did not fit one of the designated cubbyholes.
Reference
- Full Case Name
- STATE of Wisconsin, Plaintiff-Respondent, v. Elijah JONES, Defendant-Appellant
- Cited By
- 30 cases
- Status
- Published