State v. Calderon-Encarnacion

369 Wis.2d 222

880 N.W.2d 182 (Table)

STATE of Wisconsin, Plaintiff–Respondent,

v.Luis CALDERON–ENCARNACION, Jr., Defendant–Appellant.

No. 2014AP2252–CR.

Court of Appeals of Wisconsin.

April 12, 2016.

¶ 1 BRASH, J.

Luis Calderon–Encarnacion, Jr. appeals a judgment convicting him of first-degree recklessly endangering safety as a repeater with a domestic abuse assessment, and possession of a firearm by a felon as a repeater. Calderon makes the following arguments on appeal: (1) the circuit court erred when it admitted other acts evidence, namely that Calderon was seen with a black and silver gun within the month prior to when the alleged crime occurred; and (2) the circuit court erred when it admitted prejudicial evidence implying that Calderon was a member of a gang and had prior police contacts. We disagree and affirm.

Background

¶ 2 On February 18, 2013, at approximately 5:00 p.m., S.G. and E.W. spoke with Officer Raymond Brock of the Milwaukee Police Department regarding threats Calderon made against S.G. earlier that day. E.W. is S.G.'s father and, at the time, the two lived together at 2430 South 16th Street. S.G. informed Officer Brock that Calderon was her ex-boyfriend and that the two had a nine-month-old child together.

¶ 3 During this conversation, S.G. reported that Calderon called her at approximately 4:30 p.m. that day and stated that he was going to drive by her house later that night to “air it out.” S.G. believed this to mean that Calderon intended to shoot up her house. S.G. also reported to Officer Brock that she saw Calderon with a black and silver gun within the past month. Additionally, E.W. informed Officer Brock that after Calderon threatened S.G., E.W. observed a silver Chevy Blazer parked in front of the house. E.W. stated he recognized the vehicle as belonging to Calderon from past experience.

¶ 4 Later that same evening, Officer Brock and other officers responded to a shots fired call at S.G.'s residence. Upon arrival, S.G. informed officers that approximately five minutes before the shooting, she observed Calderon's vehicle drive by her residence. S .G. reported that she then heard multiple gunshots. S.G. further reported that her mother, father, and nine-month-old son were also in the residence when the shots were fired.

¶ 5 Additionally, a third party witness informed police that she was in front of S.G.'s residence at the time of the shooting. This witness reported to officers at the scene that she observed a silver Chevy Blazer with shiny rims and that she had seen Calderon drive this vehicle several times in the past. This witness further reported that she saw a male with a hooded sweatshirt get out of the vehicle and discharge a firearm multiple times at S.G.'s residence. The male then returned to the vehicle and drove off.

¶ 6 Approximately twenty minutes after the shots were fired, and less than two miles from the scene of the shooting, officers stopped a silver Chevy Blazer. Calderon was driving and was the only person in the vehicle. At the time of the stop, Calderon was wearing a dark hooded sweatshirt.

¶ 7 Officers searched the vehicle, finding a silver revolver with a black handle hidden in the fuse panel, within Calderon's reach. This revolver had five spent casings in the chambers. Sometime after the shooting, E.W. pointed out to investigating officers five bullet holes in his house that were not there prior to the February 18, 2013 shooting. Ballistics matched the gun found in Calderon's vehicle to at least one bullet fired into S.G.'s residence.

¶ 8 On February 22, 2013,¹ the State filed a criminal complaint against Calderon alleging one count of first-degree recklessly endangering safety as a repeater contrary to Wis. Stat. §§ 941.30(1) and 939.62(1)(c) (2013–14) as count one.² Count one included a domestic abuse assessment contrary to Wis. Stat. § 968.075(1). The complaint also alleged one count of possession of a firearm by a felon as a repeater contrary to Wis. Stat. §§ 941.29(2)³ and 939.62(1)(b) as count two.

¶ 9 On May 10, 2013, the State filed a motion seeking to introduce other acts evidence at trial. Specifically, the State sought to introduce evidence that S.G. saw Calderon with a firearm within the month prior to the shooting and that S.G. described the gun as silver with a black handle. On May 20, 2013, Calderon filed a motion in limine seeking to exclude the other acts evidence sought by the State, and to prohibit the State from introducing any evidence that Calderon had any past gang affiliations.

¶ 10 On May 28, 2013, the circuit court held a hearing on the State's other acts motion and Calderon's motion in limine. As to the State's motion, the circuit court ruled in the State's favor. Specifically, the circuit court ruled that it was proper for S.G. to testify regarding her observation of Calderon possessing a gun prior to the date of the shooting that looked like the one that was found in Calderon's vehicle. The circuit court further ruled, however, that no other witness would be permitted to testify that they previously saw Calderon with the gun. As to Calderon's motion, the circuit court ruled that there should be no mention of any kind of gang affiliation on behalf of Calderon and ordered the State to instruct its witnesses to that effect.

¶ 11 At trial, S.G. testified that she did not recall telling Officer Brock that she saw Calderon with a gun prior to the shooting. Officer Brock, however, testified that S.G. described the gun to him on the day of the shooting as being silver with a black handle. Officer Brock further testified that after the shooting, he showed S.G. pictures of different kinds of guns on the internet, and S.G. identified Calderon's gun as a revolver with a bulky cylinder on the side.

¶ 12 Additionally, the following exchange occurred between the State and Officer Matthew Tracy of the Milwaukee Police Department at trial:

Q: Okay. Did she indicate that she had met [Calderon] before?

A: Yes. She indicated to me that she had met [Calderon] once prior to this incident just briefly. She actually knew that his nickname—[Calderon's] nickname was Luigi and he was also a member of—

Before Officer Tracy could finish his statement, the State moved to strike the answer, and the circuit court complied with this request.

¶ 13 Furthermore, the following exchange occurred between the State and Officer Brock:

Q: And how did you first learn of this alleged threat?

A: We had actually, myself and my partner, actually heard the call come across the radio and while the dispatcher was giving out some of the info she had mentioned a nickname of a person that we are familiar and have dealt with in the past so we decided to go along with the original investigating squad and give them a hand.

¶ 14 Following Officer Brock's testimony, the circuit court held a sidebar outside the presence of the jury. At this sidebar, Calderon's counsel objected to Officer Tracy's testimony that Calderon was a “member of—.” Calderon's counsel further objected to Officer Brock's testimony indicating that he was familiar with and dealt with Calderon in the past. The circuit court ruled that neither statement created prejudice; the first one was stricken, and the second one did not mention specifically what the past contacts were.

¶ 15 Closing statements were made on May 30, 2013, after which the jury retired for deliberations. Later that day, the jury returned verdicts finding Calderon guilty on all counts.

¶ 16 On August 7, 2013, Calderon filed a notice of intent to pursue postconviction relief. Calderon ultimately decided not to file a postconviction motion with the circuit court. This appeal follows.

Discussion

¶ 17 On appeal, Calderon makes the following arguments: (1) the circuit court erred when it admitted other acts evidence, namely that Calderon was seen with a black and silver gun within the month prior to when the alleged crime occurred; and (2) the circuit court erred when it admitted prejudicial evidence implying that Calderon was a member of a gang and had prior police contacts. Additionally, Calderon argues that these errors were not harmless because they contributed to his convictions on both counts. We discuss each issue in turn.

I. Evidence Regarding Calderon's Prior Gun Possession

¶ 18 The decision whether to admit other acts evidence rests with the circuit court's discretion. State v. Sullivan, 216 Wis.2d 768, 780–81, 576 N.W.2d 30 (1998). We review the admission of other acts evidence under the erroneous exercise of discretion standard. See id. at 781, 576 N.W.2d 30. We will uphold a circuit court's discretionary decision to admit other acts evidence so long as the circuit court “ ‘examined the relevant facts, applied a proper standard of law, used a demonstrated rational process and reached a conclusion that a reasonable judge could reach.’ ” See State v. Hurley, 2015 WI 35, ¶ 28, 361 Wis.2d 529, 861 N.W.2d 174 (one set of quotation marks and citation omitted).

¶ 19 A party seeking to admit other acts evidence bears the burden of establishing, by a preponderance of the evidence, that the proffered evidence is being admitted for a proper purpose and that it is relevant. State v. Marinez, 2011 WI 12, ¶ 19, 331 Wis.2d 568, 797 N.W.2d 399. Once the proponent establishes the first two prongs, the burden shifts to the opponent to show that the probative value of the evidence is substantially outweighed by the risk of unfair prejudice. Id. Calderon argues that the circuit court improperly admitted the other acts evidence that S.G. saw Calderon with a black and silver gun prior to the shooting. We disagree.

A. Purpose

¶ 20 The first step under Sullivan is that the evidence must be offered for an admissible purpose. Id., 216 Wis.2d at 772, 576 N.W.2d 30. Other acts evidence is admissible when it is “offered for ... purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Wis. Stat. § 904.04(2)(a). Such...