State v. Sean N. Jones ( 2019 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 20, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP948-CR Cir. Ct. No. 2016CF898
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
SEAN N. JONES,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Eau Claire County: MICHAEL A. SCHUMACHER, Judge. Affirmed in part;
reversed in part and cause remanded with directions.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 HRUZ, J. Sean Jones appeals a judgment of conviction for armed
robbery as a party to the crime, as well as an order denying his motion for
postconviction relief. Jones asserts there was insufficient evidence to support the
No. 2018AP948-CR
jury’s finding that Jones knew his accomplice was armed with a firearm during the
commission of the offense. Additionally, Jones argues the real controversy was
not fully tried because the circuit court failed to give certain jury instructions,
including the instruction for the lesser-included offense of simple robbery, and
because it admitted certain improper identification evidence, including evidence of
Jones’s nickname, “Sneak.” Finally, Jones challenges certain aspects of his
sentence. He contends the court failed to explain how the specific length of
Jones’s initial confinement advanced the articulated sentencing objectives, and
that it also failed to award 204 days’ sentence credit for the time Jones was in
custody between his arrest and his sentencing after revocation of a probationary
term imposed in earlier cases.
¶2 We reject Jones’s challenges to his conviction and to the circuit
court’s exercise of its sentencing discretion, but we conclude Jones is entitled to
the sentence credit he seeks. To explain, we conclude the jury could reasonably
infer from the circumstances of the robbery that Jones knew his accomplice was
armed with a firearm. We also conclude Jones is not entitled to a new trial in the
interest of justice based upon either the court’s failure to give certain jury
instructions or the court’s evidentiary decisions. We further reject Jones’s
challenge to the court’s exercise of its sentencing discretion because the court
provided the required explanation for the general range of the sentence imposed.
However, because Jones was held in custody on a probation hold as a result of the
armed robbery, he is entitled to sentence credit for the time he spent confined
between his arrest and his sentencing after revocation. Accordingly, we affirm in
part, reverse in part, and remand with directions for the circuit court to grant
Jones’s motion for sentence credit.
2
No. 2018AP948-CR
BACKGROUND
¶3 On May 29, 2016, at approximately 2:30 a.m., two masked African-
American men entered the lobby of a Rodeway Inn in Eau Claire. They
approached the desk where the clerk, Elena,1 was working, and the first man—
who was the shorter of the two—came behind the desk to where Elena was seated.
The second, taller individual stood in front of the desk and told Elena to sit still
and not move. The shorter individual emptied a nearby bag and thrust the bag at
Elena, at which point she assumed she was being robbed. Elena testified that
throughout the robbery, the shorter man never spoke and mostly kept his back
turned to her. Elena found this movement unusual because, in this position, the
man was facing a conspicuous camera in the lobby.
¶4 Elena stood and began emptying the contents of the cash drawer into
the bag. The taller individual then told Elena to also empty the deposit drawer,
which was where employees at the end of their shifts would deposit cash in excess
of the cash drawer’s $150 starting balance. Elena told the taller individual that the
deposit drawer was locked and she did not have a key. Elena testified that most
hotels have a safe rather than a deposit drawer, and that for someone to know
about that drawer, they would need to have worked at the Rodeway Inn or have
been told of the drawer by an employee.
¶5 After being told that the deposit drawer was inaccessible, the shorter
individual approached Elena and began grabbing items that remained in the cash
1
Consistent with the policy underlying WIS. STAT. RULE 809.86 (2017-18), we refer to
the victim using a pseudonym. All references to the Wisconsin Statutes are to the 2017-18
version unless otherwise noted.
3
No. 2018AP948-CR
drawer. That drawer’s contents included a white Samsung cell phone charger
belonging to another employee, which Elena had wrapped in white paper on which
the employee’s name was written. The shorter individual walked out from behind
the desk, and Elena asked if she could sit down. The taller individual told Elena
not to move, and he pulled up his shirt to reveal the handle of a handgun tucked
into his pants. The robbers then left the building. Elena ran to a nearby office
where the hotel owners were sleeping, and together they called 911.
¶6 Shortly before the robbery, Elena saw an older beige car slowly
circling the parking lot. Elena knew the car belonged to Jones, whom she knew
then only as “Sneak,” and she identified Jones as the driver. At the time of the
robbery, “Sneak” and Elena were staying with a mutual friend, who had also
worked at the Rodeway Inn. Elena told the 911 operator about “Sneak” and told
police he may have been involved in the robbery. Elena was sure the taller man
was not Jones because of his voice and height, but she believed Jones might have
been the shorter of the two African-American individuals she saw during the
robbery.
¶7 Eau Claire police officer Benjamin Wutschke responded to the
robbery and began looking for “Sneak,” whom Wutschke knew to be Jones based
on “past professional contacts.” About one-half hour after the robbery, Wutschke
located Jones driving alone in a tan vehicle approximately four to five miles away
from the Rodeway Inn. Jones was taken into custody, and a search of his wallet
and the vehicle yielded approximately $280 in cash, $135 of which was found in
the vehicle’s cup holder. No weapon was found in the vehicle, and police did not
immediately seize the vehicle. Jones’s arrest triggered a probation hold in two
prior cases. The second, taller individual was never identified or apprehended.
4
No. 2018AP948-CR
¶8 Police subsequently returned to Jones’s vehicle, which they had left
at the scene of Jones’s arrest, to attempt to match clothing found within it to the
clothing seen in surveillance videos of the robbery. The clothing in Jones’s car
did not match the robbers’ clothing. However, Jones’s wife at the time, who
picked up the vehicle after police had attempted to match the clothing, later
notified police that she had found a white Samsung cell phone charger in the car.
The charger had a piece of paper attached to it with a Rodeway Inn employee’s
first name on it. At the time of Jones’s arrest, police had not yet been notified that
a charger had been taken in the robbery, and they were looking only for money or
a weapon.
¶9 Jones was tried for armed robbery as a party to the crime. At trial,
surveillance video of the robbery was played for the jury. Detective Ryan Prock
testified it was significant that in the video, the shorter suspect “does everything
with his back to the victim[,] which leads me to believe that if they were to see
each other, she would recognize him.” Prock testified that he had personally
viewed and photographed the piece of paper attached to the cell phone charger, but
he did not know the significance of the evidence at that time and did not collect it.2
Prock showed the photograph of the paper to one of the hotel owners, who advised
him that a cell phone charger had been taken during the robbery. The hotel owner
stated the paper in the photograph had come from his Rodeway Inn and had the
hotel’s property code on it, as well as an employee’s name. Prock then reviewed
the photographs of Jones’s car taken when he was arrested. In the background of
2
Prock testified he gave the note back to Jones’s wife after viewing it during their initial
encounter. Later, police obtained a search warrant for the vehicle and during its execution
retrieved the paper from the glove compartment; the paper was introduced into evidence at
Jones’s trial. The cell phone charger was not recovered.
5
No. 2018AP948-CR
two of the photographs he noticed a white cell phone charger with a piece of paper
attached to it.
¶10 The jury found Jones guilty.3 The circuit court sentenced Jones to a
total bifurcated sentence of thirteen and one-half years, consisting of nine and one-
half years’ initial confinement and four years’ extended supervision. The sentence
was ordered to be served concurrent to any other sentence. The defense requested
sentence credit, but the court declined to award any, stating it would set the
amount of credit at zero and allow Jones to submit a future request for sentence
credit with supporting authority.
¶11 Jones filed a motion for postconviction relief. He argued: (1) the
evidence was insufficient to support his conviction as a party to the crime of
armed robbery; (2) he was entitled to a new trial in the interest of justice because
the jury should have been instructed on the lesser-included offense of simple
robbery and because testimony regarding Jones’s nickname and prior police
contacts “clouded the jury’s consideration” of the crucial identity issue; (3) the
circuit court erroneously exercised its sentencing discretion because it failed to
explain how the duration of Jones’s sentence advanced the court’s articulated
sentencing objectives; and (4) he was entitled to 204 days of sentence credit for
the time he spent in custody between his arrest on May 29, 2016, and
3
Jones elected to proceed pro se with standby counsel on the second day of trial. He
cross-examined the State’s witnesses and presented his own witnesses, but he elected not to
testify. At the jury instruction conference, he consented to have the testimony of one of his
witnesses stricken after the State presented evidence of fabrication to the court.
6
No. 2018AP948-CR
December 19, 2016, when he was sentenced after probation revocation in the
earlier cases.4
¶12 The circuit court denied Jones’s motion for postconviction relief.
The court concluded the evidence at trial was sufficient to support inferences that
Jones and his accomplice had extensively planned the robbery, that Jones knew his
accomplice was armed, and that Jones had aided in the commission of the offense.
The court also declined to order a new trial, observing that Jones had not requested
an instruction regarding a lesser-included offense and that the evidence regarding
Jones’s nickname was “relevant and admissible.” Finally, the court concluded it
had adequately explained the reasons for Jones’s sentence at the hearing, and it
declined to award any sentence credit because Jones was not “in custody” on the
armed robbery charge after his arrest and he had received sentence credit for the
same time period in the earlier cases. Jones now appeals, raising the same claims
he raised in his motion for postconviction relief.
DISCUSSION
¶13 As explained above, Jones challenges various aspects of his trial and
sentence. For the reasons that follow, we reject his challenges to the conduct of
his trial and the sufficiency of the circuit court’s sentencing rationale, and we
affirm those aspects of the circuit court’s decision. However, we conclude Jones
is entitled to the sentence credit he seeks. We therefore reverse that portion of the
4
Jones was sentenced in this case on March 1, 2017, several months after his sentencing
after probation revocation. Jones’s postconviction motion raised an issue regarding the DNA
surcharge imposed at sentencing. Jones does not resurrect that argument on appeal, and we will
not discuss it further.
7
No. 2018AP948-CR
circuit court’s order and remand with directions for the court to grant Jones’s
motion for sentence credit.
I. Sufficiency of the Evidence
¶14 The standard for reviewing the sufficiency of the evidence to support
a conviction is highly deferential to the jury’s verdict. State v. Beamon, 2013 WI
47, ¶21, 347 Wis. 2d 559, 830 N.W.2d 681. We will not reverse a conviction
unless the evidence, viewed most favorably to the State and the conviction, is “so
insufficient in probative value and force that it can be said as a matter of law that
no trier of fact, acting reasonably, could have found guilt beyond a reasonable
doubt.” State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). The
defendant bears the “heavy burden” of showing that the evidence could not have
reasonably supported a finding of guilt. Beamon, 347 Wis. 2d 559, ¶21.
¶15 Jones was charged with armed robbery as a party to the crime.
Armed robbery, under the circumstances here, requires proof that a person took
the property of another, with intent to steal, by threatening the imminent use of a
dangerous weapon against the owner or another who is present with intent to
compel that person to acquiesce in the taking. See WIS. STAT. § 943.32(1)(b), (2).
A person is a party to a crime if he or she directly committed the crime or
intentionally aided and abetted the commission of the offense. See WIS. STAT.
§ 939.05(2); WIS JI—CRIMINAL 400 (2005). The State’s theory was that Jones
was the shorter individual who kept his back to Elena and did not speak. Given
8
No. 2018AP948-CR
that the shorter individual never displayed a firearm, the State appears to have
consistently relied upon aider and abettor liability as the theory for Jones’s guilt.5
¶16 To obtain a conviction based on aiding and abetting a crime, the
State must prove that the defendant: (1) undertook conduct, either verbal or overt
action, that as a matter of objective fact aided another person in the execution of a
crime; and (2) desired or intended that his or her conduct would yield such
assistance. State v. Ivy, 119 Wis. 2d 591, 598, 350 N.W.2d 622 (1984).6 An aider
and abettor may be guilty not only of the crime that he or she knows the
accomplices intend to commit, but also of different crimes committed that are a
natural and probable consequence of the particular act that the defendant
knowingly aided or encouraged. Id. at 596-97.
¶17 The application of these principles to crimes involving the use of
firearms presents unique challenges for the prosecution in proving the defendant
had the requisite intent to assist in the offense. Actual knowledge that the
accomplice intended to use or threaten the use of a weapon is certainly sufficient,
and it is a fact question for the jury. See id. at 599-600. Even absent such actual
5
The jury was instructed that one can aid and abet an offense by directly committing that
offense. Thus, the jury was not precluded from considering whether Jones was the individual
who displayed the firearm, but the State does not appear to have advanced any such theory at
trial.
6
The circuit court instructed the jury in accordance with WIS JI—CRIMINAL 400 (2005),
stating the following regarding aider and abettor liability:
A person intentionally aids and abets the commission of a crime
when, acting with knowledge or belief that another person is
committing or intends to commit a crime, he knowingly either
assists the person who commits the crime or is ready and willing
to assist and the person who … commits the crime knows of the
willingness to assist.
9
No. 2018AP948-CR
knowledge, a defendant may be found guilty of aiding and abetting armed robbery
if the facts and circumstances of the case show that armed robbery was a natural
and probable consequence of the robbery. Id. at 600. A weapon is so likely to be
used in some types of robberies such that constructive knowledge is sufficient.
See id. at 600-01.7
¶18 Here, Jones argues the trial evidence provided no reasonable basis
for the jury to infer or otherwise find that Jones knew his accomplice was armed.
Jones observes that there was no evidence he possessed a firearm during the
commission of the offense, and he contends there was no evidence that he saw his
accomplice show the weapon to Elena. The accomplice appears not to have
brandished the weapon in an overt fashion, and no firearm was recovered by
police. Jones emphasizes there was no evidence that, during the commission of
the crime, the taller man said anything suggesting he had a weapon. Additionally,
Jones observes that none of his post-arrest statements suggest he knew the second
man was armed. Jones also argues that in considering Elena’s testimony about the
shorter man’s movements in light of the surveillance video footage, it is not
reasonably possible that the shorter individual was in a position to see the weapon
during the brief moment that the taller individual raised his shirt.
7
The jury instruction here was based solely on actual knowledge:
To intentionally aid and abet armed robbery by use or threat of
use of a dangerous weapon, the defendant must know that
another person is committing or intends to commit the crime of
armed robbery by use or threat of use of a dangerous weapon and
have the purpose to assist the commission of that crime.
The omission of the “natural and probable consequence” instruction is the subject of one of
Jones’s interest-of-justice challenges, which we address later.
10
No. 2018AP948-CR
¶19 We reject Jones’s assertion that the jury used “sheer speculation or
guesswork” to conclude he had the requisite knowledge that his accomplice was
armed. At trial, the evidence showed that the robbery had been planned to such a
degree that Jones and his accomplice did not need to speak to one another at all
during the crime. Surveillance video showed that the two individuals stood
together in the parking lot for more than ten minutes before entering the hotel
lobby together. Once they entered the lobby, they immediately commenced
performing what appear to be their predetermined roles in the robbery. Jones
emptied a bag, and he and Elena filled it with money and items from the cash
drawer, all while the taller individual stood in front of Elena and issued commands
to her.
¶20 Jones acknowledges this evidence, but he argues that for it to be
probative of his knowledge, the State also needed to present direct evidence that
their plan included the use, or threat of use, of a firearm. In other words, Jones
seeks a general rule that “evidence showing a plan to commit a robbery cannot by
itself provide a basis to prove the extra elements necessary to prove aiding and
abetting an armed robbery.” We reject such a blanket proposition. When the
commission of a robbery involves the use or threat of use of a firearm, the degree
of the perpetrators’ planning—as evidenced by their conduct both before and
during the robbery or by direct evidence of their plan—may give rise to a
reasonable inference that a particular defendant had actual knowledge that his or
her accomplice was armed during the robbery.
¶21 The evidence also does not confirm Jones’s assertion that based on
his position and the direction he was facing during the incident, it was impossible
that he could have seen his accomplice show the gun to Elena. This court has
reviewed the surveillance video of the robbery that was presented at trial. Because
11
No. 2018AP948-CR
of the lobby camera’s position, the taller man is obscured from view and it is
difficult, if not impossible, to discern when he flashed the weapon, let alone to
determine what Jones could see from his position at various times. Based upon
the video, we cannot deem the jury to have engaged in unsupported speculation.
¶22 Moreover, because Elena’s testimony described in a general fashion
the sequence in which things happened, not precisely when they occurred,
combining her testimony with the video does not establish that it was impossible
for Jones to see that his accomplice was armed. Elena was specifically asked
whether, from her perspective, Jones could have been aware the other individual
was carrying a gun. She answered, “I can’t say.” Elena later stated she could not
testify as to what Jones may or may not have seen. Contrary to Jones’s assertions,
Elena’s testimony does not definitively establish that Jones could not see the
firearm.8 Based upon the totality of the trial evidence, the jury could reasonably
infer that Jones had actual knowledge that his accomplice was armed and might
use or threaten the use of the weapon.
¶23 Accordingly, we reject Jones’s assertion that the inference of
knowledge the jury drew was not supported by the facts of record. Jones presents
a plausible view of the evidence that would have allowed the jury to draw an
inference in favor of acquittal, but it decided not to do so. The jury is free to
8
While Jones did not testify at his trial, he posits on appeal that as he was exiting from
behind the desk and leaving the lobby, his view of his accomplice was “blocked by desk cabinets
and his hood” and therefore he could not see the weapon. He cites only the surveillance video for
this proposition, which (as we have discussed) is insufficient to form a conclusion about when his
accomplice showed Elena a firearm or what Jones could see as the accomplice did so. Moreover,
there is no testimony or evidence regarding what areas of the lobby were obscured from Jones’s
view at any particular time. The “guesswork and speculation” in this case appears to exist solely
on Jones’s part.
12
No. 2018AP948-CR
choose among conflicting inferences and may, within reason, reject the inference
which is consistent with the accused’s innocence. Poellinger, 153 Wis. 2d 506. If
the record supports more than one reasonable inference, we must accept the
inference drawn by the trier of fact, unless that evidence is incredible as a matter
of law. Id. at 506-07. That is not the case here.9
II. New Trial in the Interest of Justice
¶24 Jones requests that we invoke our discretionary authority to order a
new trial in the interest of justice on the basis that the real controversy has not
been fully tried. See WIS. STAT. § 752.35. We exercise our discretionary reversal
power sparingly and only in exceptional cases. See Vollmer v. Luety, 156 Wis. 2d
1, 11, 456 N.W.2d 797 (1990). When determining whether a new trial is
warranted because the real controversy has not been fully tried, we need not
consider the probability that a retrial would produce a different outcome. Id. at
19.
¶25 Jones argues the real controversy regarding his guilt for armed
robbery was not fully tried for two reasons. First, he argues the jury should have
been given two additional instructions: (1) an instruction on the lesser-included
offense of simple robbery; and (2) an instruction regarding the “natural and
probable consequence” method of determining aider and abettor liability for an
9
Having concluded there was sufficient trial evidence for the jury to infer that Jones had
actual knowledge his accomplice used or threatened to use a firearm in the commission of the
offense, we need not consider whether, under the circumstances of this case, Jones had
constructive knowledge of the firearm because going armed was a “natural and probable
consequence” of the robbery. We typically decide cases on the narrowest possible grounds, and
we generally do not address issues that are not dispositive. Ehlinger v. Hauser, 2010 WI 54,
¶66, 325 Wis. 2d 287, 785 N.W.2d 328.
13
No. 2018AP948-CR
offense involving an accomplice’s use of a firearm. Second, he argues the trial
testimony regarding his nickname and prior police contacts should have been
excluded, and its inclusion improperly caused the jury not to focus on the actual
trial issues but, rather, on Jones having the kind of bad character likely to have
been involved in a robbery.
A. Simple Robbery and “Natural and Probable Consequences”
Jury Instructions
¶26 Jones first asserts that, based upon the lack of evidence suggesting
that he knew his accomplice possessed a firearm during the robbery, the jury
should have been given two additional instructions. First, he argues the jury
should have been instructed regarding the lesser-included offense of simple
robbery. The second instruction proposed by Jones, WIS JI—CRIMINAL 406
(2005), would have told the jury how to determine if the armed robbery was a
natural and probable consequence of the robbery that Jones helped commit.
Jones’s argument seems to be impliedly rooted in the notion that these instructions
were necessary for the jury to be able to validly adjudicate Jones’s guilt in relation
to the Rodeway Inn robbery.
¶27 A circuit court has broad discretion when instructing a jury. State v.
McKellips, 2016 WI 51, ¶30, 369 Wis. 2d 437, 881 N.W.2d 258. The instructions
given must accurately state the law. Id. We analyze the instructions as a whole to
determine their accuracy, viewing them in the context of the overall charge. Id.As Jones observes, a proper jury instruction is a “crucial component” of the
fact-finding process, and the validity of the jury verdict depends upon the
completeness of the instructions. See State v. Perkins, 2001 WI 46, ¶40, 243
Wis. 2d 141, 626 N.W.2d 762.
14
No. 2018AP948-CR
¶28 Our interest-of-justice review is focused not on the circuit court’s
exercise of discretion in instructing the jury, but rather on whether the omission of
the instructions caused the real controversy not to be fully tried. We need not
reach the merits of this review because Jones concedes that he did not request
either instruction at trial. The State acknowledges that had Jones requested these
instructions, the court likely would have given them. However, the court was not
required to give the instructions sua sponte. And although we may review an
interest-of-justice claim even though the error has been waived, we note that under
typical circumstances, “[t]he failure to request an instruction or to object
effectively waives any right to review.” Bergeron v. State, 85 Wis. 2d 595, 605,
271 N.W.2d 386 (1978).
¶29 To explain his failure to request the instructions, Jones leans heavily
on his pro se status at the time of the jury instruction conference. However, the
circuit court conducted a thorough colloquy with Jones about the risks of
self-representation, including advising Jones that he would be held to the same
standards as a lawyer. See Waushara Cty. v. Graf, 166 Wis. 2d 442, 452, 480
N.W.2d 16 (1992). At one point the court advised Jones that it believed he was
“making a huge mistake.”10 Jones stated he wished to proceed, and the court
found he “voluntarily and freely waived his right to be represented by counsel and
is making a deliberate choice to proceed without counsel.”
10
Despite the circuit court’s concerns, our review of the trial record shows Jones, as a
general matter, performed creditably as his own attorney, particularly when cross-examining the
State’s witnesses.
15
No. 2018AP948-CR
¶30 Jones acknowledges that this court is not inclined to exercise its
discretionary power of reversal in instances where the challenged error consists of
a pro se defendant’s conduct during trial. As we have previously explained:
Inherent in a defendant’s decision to represent himself is
the risk that a defense not known to him will not be
presented during trial. When a defendant undertakes pro se
representation[,] that is the risk he knowingly assumes. If
his strategy in proceeding pro se results in a valid defense
being waived, it reflects the hazards of his decision to
waive counsel. To rescue this defendant from the folly of
his choice to represent himself would diminish the serious
consequences of the decision he made when he elected to
waive counsel.
State v. Clutter, 230 Wis. 2d 472, 477-78, 602 N.W.2d 324 (Ct. App. 1999).
Moreover, ordering a new trial in the interest of justice based upon a defendant’s
own conduct would “encourage defendants to proceed pro se believing that they
would have an opportunity to have a second trial with counsel if they were
dissatisfied with the first verdict.” Id. at 478.
¶31 Even aside from Jones’s failure to request the instructions, there is
no basis on the merits to conclude the real controversy was not fully tried in this
case. With respect to the “natural and probable consequences” instruction, the
defense theory at trial was that Jones was not one of the perpetrators. Jones’s
closing argument focused on inconsistencies in the witness testimony, certain
witness opinions that he did not match the appearance of the shorter robber, and
the lack of physical evidence linking him to the robbery. At no point did Jones
argue in the alternative that he could be acquitted based upon his lack of
knowledge that his accomplice was armed. Regardless of whether the instruction
would have benefitted Jones in the manner he now argues, its omission—even
16
No. 2018AP948-CR
combined with the other issues Jones now raises in favor of a new trial—does not
rise to the level of the real controversy not being fully tried.11
¶32 With respect to the lesser-included instruction, we observe that Jones
was tried for armed robbery. The instructions the jury was given “fully and fairly
inform[ed] the jury of the rules of law applicable to the case and assist[ed] the jury
in making a reasonable analysis of the evidence” as it related to the offense of
being a party to the crime of armed robbery, even if the additional instructions
Jones suggests might have been arguably beneficial to him. See State v. Schultz,
2007 WI App 257, ¶6, 306 Wis. 2d 598, 743 N.W.2d 823. In this respect, we note
the absence of the lesser-included instruction may have actually benefitted Jones,
as it allowed for a complete acquittal if the jury concluded he did not know his
accomplice was armed. In all, we perceive no grounds for reversal based upon the
absence of the two jury instructions.
B. Trial Testimony Regarding Jones’s Nickname
¶33 Prior to trial, the prosecution notified the circuit court about potential
issues regarding how police knew who “Sneak” was. Jones then requested that no
reference be made to his nickname at trial. The court ruled that Jones could be
identified as “Sneak” if that is how the witness knew him, but the prosecution
could not inquire as to whether Jones had been previously arrested or convicted.
¶34 During the first day of trial, Jones objected to Elena’s testimony in
which she referred to Jones as “Sneak.” Consistent with its pretrial ruling, the
11
If anything, the failure to give the “natural and probable consequences” instruction
could have benefitted Jones, as that instruction would have given the jury a means to find Jones
guilty of armed robbery even if the jury did not unanimously agree that he knew that his
accomplice was armed and was going to use or threaten to use a weapon.
17
No. 2018AP948-CR
circuit court overruled the objection, reasoning that if Elena did not know Jones by
his real name, it was “fair to allow the State to continue to use the name that she
does know.” Thereafter, Elena, two police officers, and the attorneys for both the
State and Jones each made references to Jones as “Sneak.” Additionally, one of
the two police officers, Wutschke, testified that he knew who “Sneak” was based
upon “past professional contacts” as a law enforcement officer.
¶35 On appeal, Jones argues his nickname had only limited relevance,
which was to lay a foundation for Elena’s identification of Jones and to establish
how the police knew to investigate Jones. But, he argues, because Elena knew
Jones by his real name at the time of the trial, the subsequent references to his
nickname were cumulative and not relevant. Jones also asserts that his nickname
“carries highly inflammatory connotations of thievery and dishonesty,” making the
subsequent references unfairly prejudicial. He argues all subsequent references
should have been excluded under WIS. STAT. § 904.03, which permits the circuit
court to exclude evidence for which the risk of unfair prejudice substantially
outweighs any probative value.
¶36 Jones’s evidentiary assertions, while perhaps relevant to the
interest-of-justice analysis, do not establish that reversal is warranted. Rather,
Jones must demonstrate that “the jury had before it evidence not properly admitted
which so clouded a crucial issue that it may be fairly said that the real
controversy was not fully tried.” State v. Hicks, 202 Wis. 2d 150, 160, 549
N.W.2d 435 (1996) (emphasis added). Jones argues that “[w]hile one or two
unnecessary references to Jones as ‘Sneak,’ or to his prior police contacts would
not cloud the central issue at trial in this case, the multiple references had a
cumulative impact that did.” Jones therefore urges us to consider the collective
18
No. 2018AP948-CR
effect of the alleged errors on the jury’s ability to adjudicate his guilt for armed
robbery.
¶37 We conclude there was no error in the admission of the evidence,
and certainly none that would warrant the exercise of our formidable power of
discretionary reversal. The testimony regarding Jones’s nickname or how police
knew him was plainly relevant. “[I]t has been held that an alias is admissible
when it forms part of the background of the case.” State v. Bergeron, 162 Wis. 2d
521, 530, 470 N.W.2d 322 (Ct. App. 1991). Here, as even Jones acknowledges,
his nickname and information regarding his prior police contacts were relevant
contextual evidence to explain whom Elena suspected of being involved in the
offense and how the police knew to look for Jones based upon the information she
provided. The references to Jones’s nickname at trial were only in the context of
describing how Elena knew Jones and how the police came to suspect Jones’s
involvement, and the nickname was not used gratuitously as a general reference to
Jones outside of those purposes. The fact that the witness learns of the
defendant’s real name after the crime occurred is of no moment when the
witness’s testimony concerns past events, at which time the witness only knew the
defendant by an alias. These considerations are especially pertinent where, as
here, the defense theory at trial concerns identity.
¶38 We specifically reject Jones’s argument that the testimony about his
nickname was “highly inflammatory” because it carried connotations of thievery
and dishonesty. Jones also posits that the nickname “suggest[ed he had] a
propensity to steal and [led] the jury away from an assessment of the evidence.”
We have affirmed a circuit court’s discretionary determination to admit similar
evidence of an alias, both under WIS. STAT. § 904.03 and the “other acts” statute,
WIS. STAT. § 904.04. See Bergeron, 162 Wis. 2d at 530-32. The fact that the
19
No. 2018AP948-CR
defendant chooses or otherwise has an alias that carries negative connotations is of
no significance as long as the evidence is relevant and admitted for a proper
purpose, such as context or identity. See id. at 532.12
¶39 Jones also argues the testimony that officers knew him through past
professional contacts was the “functional equivalent of saying Jones has
committed other bad acts.” We disagree. It was important for the prosecution to
draw a connection between Jones and the nickname “Sneak” in the context of
confirming Jones’s identity as one of the robbers, and the testimony regarding past
professional contacts supplied that nexus. By framing the source of their
knowledge in this way, the officers supplied an ambiguous explanation that
allowed for innocent inferences, such as that Jones was a victim of a crime or a
confidential informant. In any event, the brief references to the source of the
officers’ knowledge, even if combined with the testimony regarding Jones’s
nickname, did not so cloud the issue that we can conclude the real controversy was
not fully tried. Again, this information went directly toward proving that one of
the robbers was correctly identified.
III. Sufficiency of the Sentencing Rationale
¶40 Jones next argues that the circuit court erroneously exercised its
sentencing discretion. A circuit court’s discretionary decision-making “must
depend on facts that are of record or that are reasonably derived by inference from
12
Jones argues State v. Bergeron, 162 Wis. 2d 521, 470 N.W.2d 322 (Ct. App. 1991), is
inapposite because, unlike the defendant there, Jones did not provide an alias in an attempt to
conceal his participation in a crime. However, the Bergeron court observed that the defendant’s
alias “also constituted part of the background facts of the case.” Id. at 530. The same is true
here, regardless of the timing or motive for Jones’s adoption of an alias.
20
No. 2018AP948-CR
the record,” and the court must reach “a conclusion based on a logical rationale
founded upon proper legal standards.” McCleary v. State, 49 Wis. 2d 263, 277,
182 N.W.2d 512 (1971). Judges must explain the reasons for the particular
sentence they impose, although how much explanation is necessary will vary from
case to case. State v. Gallion, 2004 WI 42, ¶39, 270 Wis. 2d 535, 678 N.W.2d
197.
¶41 A sentencing court’s analysis should generally proceed as follows.
The court must specify the objectives of the sentence on the record and identify
the objectives of the greatest importance. Id., ¶¶40-41. Sentencing objectives can
include the protection of the community, punishment or rehabilitation of the
defendant, and deterrence of others from committing similar offenses. Id., ¶40.
The court should describe the facts relevant to these objectives and explain, in
light of the facts of the case, why the particular component parts of the sentence
imposed advance those objectives. Id., ¶42. “Courts must also identify the factors
that were considered in arriving at the sentence and indicate how those factors fit
the objectives and influence the decision.” Id., ¶43. In each case, the sentence
imposed shall call for the minimum amount of custody or confinement that is
consistent with the protection of the public, the gravity of the offense, and the
rehabilitative needs of the defendant. Id., ¶44.
¶42 Here, Jones acknowledges the circuit court “explicitly referred to the
primary sentencing factors.” In the court’s view, the objectives of the greatest
importance were protection of the community and punishment. The court noted
several aggravating factors, including the potentially violent nature of the offense
given that Jones’s accomplice was armed, the fact that Jones concealed his
identity, and the apparent planning that had taken place prior to the crime. The
court also stated, “I haven’t given up hope for rehabilitation of the defendant.” It
21
No. 2018AP948-CR
remarked that Jones was a “bright guy” who had competently represented himself
despite the fact that he had not attended law school.
¶43 Nevertheless, Jones also had “a long history of criminal offenses
dating back to 1998” and had “wasted some potential.” The circuit court stated
that “[i]f there’s a light at the end of the tunnel here it’s that at some point you’ll
be out, and I would hope that you’d make good use of the skills and talents that
you have.” The court inquired as to Jones’s age and his educational and
employment history, and it remarked upon Jones’s apparent lack of remorse. The
court explicitly considered and rejected probation as a sentence for a variety of
reasons.
¶44 According to the circuit court, the sentence Jones received would
involve “a significant period” of imprisonment and was designed to advance the
objectives it had identified. The court stated: “And I just didn’t pick numbers out
of the air. Thinking this through, this [sentence] is going to put you, when all of
this is done and you’re no longer incarcerated, you’re no longer on supervision,
you’ll be around 50.” Accordingly, the court imposed nine and one-half years’
initial confinement and four years’ extended supervision, for a total bifurcated
sentence of thirteen and one-half years.
¶45 Jones concedes the circuit court “provided a lengthy statement of its
sentencing rationale, one which clearly supports the court’s decision to impose a
prison sentence as opposed to some other disposition.” Still, he argues the court’s
explanation “fell short in one narrow but important way.” According to Jones, the
court did not adequately explain why the duration of each part of Jones’s
bifurcated sentence advanced the sentencing objectives it had articulated. Jones
further asserts the court “failed to explain why the sentence it imposed is the
22
No. 2018AP948-CR
minimum amount of custody or confinement that is consistent with the primary
sentencing factors.”
¶46 We reject Jones’s challenge to the sufficiency of the circuit court’s
sentencing remarks. Jones appears to challenge only the length of his initial
confinement, not the total length of his imprisonment. For example, he argues that
the court’s goal to place him under supervision until he was fifty years old could
have been achieved by imposing a shorter term of initial confinement—
specifically, “six or seven years”—and a longer period of extended supervision.
He also summarily asserts that “the goals of significant punishment for Jones and
protection of the public can be achieved by a shorter term of [initial]
confinement.” As a result, Jones appears to be arguing the court was required to
justify, with precision, why the specific length of his initial confinement was
necessary to meet the articulated sentencing objectives.
¶47 Jones’s argument is not supported by existing sentencing law, which
recognizes “that the exercise of discretion does not lend itself to mathematical
precision.” Gallion, 270 Wis. 2d 535, ¶49. Indeed, our supreme court stated it did
not expect circuit courts to explain, for example, the difference between sentences
of fifteen and seventeen years. Id. This appears to be precisely the type of
explanation Jones seeks here. All that is required is “an explanation for the
general range of the sentence imposed,” id., which the circuit court provided. The
requirement of an on-the-record explanation of the sentence imposed “is not
intended to be a semantic trap for circuit courts.” Id. Here, the court expressly
wanted to protect the public by keeping Jones out of the community—i.e.,
incarcerated—for a period of time. Plainly, the court determined nine and
one-half years to be the appropriate amount of time to accomplish that goal, while
23
No. 2018AP948-CR
still allowing Jones the opportunity to lead a productive life following his release
into the community.
IV. Sentence Credit
¶48 Jones’s final argument, which we find meritorious, is that he is
entitled to 204 days of sentence credit under WIS. STAT. § 973.155. Jones was
arrested on May 29, 2016. At the time of his arrest, he was on probation in
Eau Claire County case Nos. 2015CF396 and 2015CF455. In each of those cases,
the circuit court had withheld sentence and placed Jones on probation for four
years. Jones’s arrest for the armed robbery triggered a probation hold in those
cases.
¶49 The circuit court set (and Jones signed) a signature bond in the
present case, but Jones remained in custody on the probation hold throughout the
probation revocation proceedings. On September 2, 2016, Jones’s probation was
revoked, and he was returned to the circuit court for sentencing after revocation in
each of those cases. On December 19, 2016, the court entered judgments of
conviction imposing concurrent three-year sentences in each case. Jones was
awarded 212 days of sentence credit in each case, which included the period of his
confinement from May 29, 2016, to December 19, 2016.
¶50 Jones asserts he is entitled to sentence credit in the present case for
the time period he was in custody between May 29 and December 19, 2016, even
though that time was also credited to the sentences imposed after revocation in
case Nos. 2015CF396 and 2015CF455. Jones observes there is no dispute he was
in custody during that time, and that dual credit may be awarded because the
sentence in this case was ordered to run concurrent to the sentences imposed after
revocation, which Jones was serving at the time he was sentenced in the present
24
No. 2018AP948-CR
case. See State v. Rohl, 160 Wis. 2d 325, 330, 466 N.W.2d 208 (Ct. App. 1991)
(holding that dual credit may be granted only when sentences are concurrent).
Whether a defendant is entitled to sentence credit requires that we interpret WIS.
STAT. § 973.155, which presents a question of law. State v. Johnson, 2009 WI
57, ¶22, 318 Wis. 2d 21, 767 N.W.2d 207.
¶51 Under WIS. STAT. § 973.155(1)(a), “[a] convicted offender shall be
given credit toward the service of his or her sentence for all days spent in custody
in connection with the course of conduct for which the sentence was imposed.”
“Actual days spent in custody” includes confinement related to an offense for
which the defendant is ultimately sentenced, or for any other sentencing arising
out of the same course of conduct, which occurs while the defendant is awaiting
trial, being tried, or awaiting imposition of sentence after trial. Id. Such
confinement includes custody of the convicted defendant which is, in whole or in
part, the result of a probation hold. Sec. 973.155(1)(b).
¶52 The parties generally agree on the cases interpreting WIS. STAT.
§ 973.155 that are relevant to this issue. Most notably, in State v. Hintz, 2007 WI
App 113, 300 Wis. 2d 583, 731 N.W.2d 646, we concluded that the defendant was
entitled to sentence credit for time spent in custody on an extended supervision
hold, if the hold was at least in part due to the conduct resulting in the new
conviction. Id., ¶8. Under Hintz, the fact that a defendant was “released” on a
signature bond with respect to the new offense does not sever the factual
connection between the continued custody and the new offense. Id., ¶11. As this
court reasoned, “just because a judicial officer released Hintz on a signature bond
does not mean that Hintz’s [probation] agent could not take the alleged behavior
into account when placing the hold.” Id.
25
No. 2018AP948-CR
¶53 Subsequently, in Johnson, our supreme court explained that in
deciding whether a defendant is entitled to a particular amount of sentence credit,
a circuit court must make two determinations: (1) whether the offender was in
custody under WIS. STAT. § 973.155; and (2) whether all or part of the custody for
which sentence credit is sought was “in connection with the course of conduct for
which sentence was imposed.” Johnson, 318 Wis. 2d 21, ¶27. The connection
between presentence custody and the sentence imposed must be factual; a mere
procedural connection will not suffice. Id., ¶33. However, any connection
between a defendant’s custody on a probation hold and a subsequent offense is
severed when the defendant is sentenced after revocation, regardless of whether he
or she is still awaiting trial on the subsequent offense. State v. Beets, 124 Wis. 2d
372, 378-79, 369 N.W.2d 382 (1985). A sentence after revocation generally
begins on the date sentence is imposed. WIS. STAT. § 973.15.
¶54 Based upon these legal authorities, the State argues Jones is entitled
to only seventy-three days of sentence credit. The State concedes credit is due to
Jones for the time he was in custody between the date of his arrest and August 10,
2016, when he was given a signature bond in the present case. The State reasons
that “[t]he signature bond severed any connection that [Jones’s] custody had with
the armed robbery case.” The State also argues that there was merely a procedural
connection, not a factual connection, between Jones’s custody and the armed
robbery case. It argues that although Hintz supports Jones’s interpretation of WIS.
STAT. § 973.155(1)(b), Johnson and one of the cases discussed therein, State v.
Beiersdorf, 208 Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997), demonstrate that
he is not entitled to the full sentence credit he seeks.
¶55 We reject the State’s arguments, principally because they fail to
square with Hintz, by which we are bound. See Cook v. Cook, 208 Wis. 2d 166,
26
No. 2018AP948-CR
189-90, 560 N.W.2d 246 (1997) (“[O]nly the supreme court … has the power to
overrule, modify or withdraw language from a published opinion of the court of
appeals.”). In Hintz, we recognized that the imposition of a signature bond does
not relieve the defendant of the consequences of an administrative hold based on a
subsequent crime. See Hintz, 300 Wis. 2d 583, ¶11. As a result, we agree with
Jones that “[n]othing about the signature bond in the armed robbery case altered”
the factual basis on which the probation hold was issued, nor did it alter the fact
that the sentences imposed in each of the three cases were factually connected
with the same course of conduct.
¶56 Neither Johnson nor Beiersdorf compel a different conclusion. In
Beiersdorf,13 the defendant appeared before the circuit court on a charge of
second-degree sexual assault of a child, pled guilty to that offense, and was
released on a personal recognizance bond. Id. at 494. Prior to sentencing and
while free on bond, Beiersdorf was alleged to have again had sexual intercourse
with the child and was charged with bail jumping and two counts of misdemeanor
sexual intercourse with a child. Id. at 495. Beiersdorf pled guilty to the bail
jumping charge, in exchange for which the prosecution dismissed the two
misdemeanor sexual intercourse charges. Id. Beiersdorf was sentenced to a
ten-year prison term for the sexual assault charge, with an imposed and stayed
five-year sentence on the bail jumping charge and five years’ probation
consecutive to the ten-year sentence. Id.
13
The State’s use of State v. Johnson, 2009 WI 57, 318 Wis. 2d 21, 767 N.W.2d 207,
appears merely to be that of a post-Hintz case that serves as a conduit to State v. Beiersdorf, 208
Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997), a pre-Hintz case. The Johnson decision briefly
discussed Beiersdorf, see Johnson, 318 Wis. 2d 21, ¶¶34-35, and in other instances cited to that
case, id. ¶¶27, 33, 45, 49.
27
No. 2018AP948-CR
¶57 Beiersdorf was awarded forty-four days’ sentence credit on the bail
jumping charge for the time he was in custody between his arrest and sentencing,
but he subsequently sought forty-four days’ credit against his sexual assault
sentence for the same time period. Id. We concluded no such credit was
warranted under WIS. STAT. § 973.155 because “although in rather obvious ways
Beiersdorf’s bail jumping was figuratively ‘related to’ his second-degree sexual
assault, his ‘custody’ literally was not ‘confinement related to’ the sexual assault
for purposes of sentence credit.” Beiersdorf, 208 Wis. 2d at 498. Merely because
a defendant perceives a nexus between his or her confinement and another crime
does not mean a factual connection exists for purposes of statutory sentence credit.
Id.¶58 The State appears to mistakenly perceive Jones’s argument to be that
any causal relationship between a particular crime and confinement is sufficient to
warrant an award of sentence credit under WIS. STAT. § 973.155. To the contrary,
Jones concedes that, under Beiersdorf, when a defendant is released on bond for a
particular offense, and he or she subsequently is arrested for bail jumping for a
new course of conduct, the confinement for the conduct resulting in the bail
jumping charge is not factually connected to the first offense, even though the
custody related to bail jumping would not have occurred but for the existence of
the bond.
¶59 Jones’s situation is materially distinguishable from the
circumstances in Beiersdorf. In Beiersdorf, the defendant’s custody on the bail
jumping charge had only a procedural connection to the earlier sexual assault
offense, in the sense that the State could not have charged bail jumping absent the
bond. Here, the course of conduct related to the armed robbery triggered both the
probation hold in the earlier cases and the new charges. This factual connection
28
No. 2018AP948-CR
between the course of conduct in the present case and Jones’s confinement is no
less in existence after the signature bond was given and signed than it was before
that moment.14 See Hintz, 300 Wis. 2d 583, ¶11. Thus, it can be fairly said that
Jones was in custody in connection with the present offense until the date on
which he was sentenced after revocation in the earlier cases.
¶60 Accordingly, we conclude Jones is entitled to the 204 days of
sentence credit that he seeks on his sentence for armed robbery. We reverse the
circuit court’s determination on that issue and remand with directions for the court
to grant Jones’s motion for sentence credit. We affirm the judgment of conviction
and the postconviction order on all other issues.
By the Court.—Judgment and order affirmed in part; reversed in part
and cause remanded with directions.
Not recommended for publication in the official reports.
14
By conceding that Jones is entitled to sentence credit in the present case between the
time of his arrest and the time he was “released” on a signature bond, the State necessarily agrees
that a factual connection existed during that time between Jones’s custody and the armed robbery
for which he was ultimately sentenced. Nonetheless, it is undisputed that Jones remained in
custody due to the probation hold as a result of his arrest for armed robbery. Under these
circumstances, it is the State that urges us to place dispositive weight upon a procedural
mechanism, while failing to provide any authority for the notion that a factual connection
between a particular course of conduct and a probation hold is severed by a signature bond on
new charges related to that course of conduct.
29