Evidence — victim’s character — harmless error

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Wisconsin Court of Appeals

Criminal

Evidence — victim’s character — harmless error

Although it was ineffective assistance of counsel for an attorney not to object to the victim’s mother testifying about his character, the defect was not prejudicial.

“We begin by pointing out that the mother’s testimony was not admissible because it was not relevant. See WIS. STAT. §§ 904.01, 904.02. To be relevant, evidence must ‘make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Sec. 904.01. In order to convict Jacobs of a violation of WIS. STAT. § 940.09(1)(am) or (b), the State had to prove the following: (1) that the defendant operated a vehicle, (2) that the defendant’s operation of a vehicle caused the death of the victim, and (3) that the defendant had a prohibited alcohol concentration (for § 940.09(1)(b)) or a detectable amount of a restricted controlled substance (for § 940.09(1)(am)) in his or her bloodstream at the time the defendant operated the vehicle. See WIS JI—CRIMINAL 1186-87; see also State v. Heft, 185 Wis. 2d 288, 296-97, 517 N.W.2d 494 (1994). While much, if not all, of the mother’s testimony regarding the victim’s character may have been relevant at the sentencing stage, nothing about the victim’s personal history was relevant to Jacobs’ guilt in this case.”

“Jacobs’ argument that he was not impaired and did exercise due care misses the mark. He simply did not exercise due care. He blew the stop sign. We agree with the State that ‘a person exercising due care does not run through a clearly visible stop sign.’ But for running the stop sign, the accident would never have occurred. Jacobs tries to turn the statutory affirmative defense on its head by evidence that the victim was speeding and, but for the speeding, the accident would not have happened. But regardless of this evidence, he cannot get around the fact that his running of the stop sign was a substantial factor in causing the collision, even if the victim’s speeding was also a factor. There is no reasonable probability that, even if trial counsel had objected and even if the mother did not testify to her son’s character, it would have made any difference.”

Affirmed.

Recommended for publication in the official reports.

2011AP1852-CR State v. Jacobs

Dist. II, Washington County, Gonring, J., Brown, J.

Attorneys: For Appellant: Rosen, Mark S., Waukesha; For Respondent: Wellman, Sally L., Madison; Bensen, Mark, West Bend