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Other acts evidence was harmless and PTAC amendment during trial was not prejudicial

State v. Sean T. Pugh, 2013AP1522-CR, District 3, 10/21/14 (not recommended for publication); case activity

If the trial court erred in admitting evidence that Pugh had a prior conviction for an offense similar to the ones he was on trial for, the error was harmless, given the overwhelming evidence against him. In addition, the trial court properly allowed the state to amend the information to add party-to-a-crime modifiers because Pugh wasn’t prejudiced by the amendment.

Other acts evidence

Pugh was charged with possession with intent to deliver THC and cocaine, keeping a drug trafficking place, and possession of a firearm by a felon. (¶2). The state successfully sought to admit evidence that Pugh had been convicted of delivery of cocaine some 10 years earlier. (¶6). Assuming this was not proper other-acts evidence (¶11), “there was such overwhelming evidence of Pugh’s guilt that admission of the other acts evidence could not have reasonably affected the outcome of the trial.” (¶14). Pugh did not dispute the identity or amount of drugs recovered from his residence and place of employment; nor did he dispute that whoever possessed the drugs intended to deliver them. Instead, Pugh’s defense was that he did not exercise control over the drugs. But eyewitnesses to his drug dealing and fingerprint evidence linking him to various appurtenances of the drug trade found in his home and business (cutting agent and baggies with drug residue, for example) convinces the court of appeals beyond a reasonable doubt that the admission of evidence that Pugh previously dealt drugs did not affect the verdict. (¶¶15-21).

In a concurrence Judge Cane says the prior conviction was improper other-acts evidence under State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), because it was not offered for an acceptable purpose:

¶32      …. In attempting to show the evidence was offered for an acceptable purpose, the State simply parrots the statutory language governing that inquiry, Wis. Stat. § 904.04(2). Without any accompanying analysis, save two block quotations that are equally conclusory, the State asserts the evidence was offered to show intent, knowledge, absence of mistake, identity, and a common plan or scheme to commit the present offense.

¶33      This is clearly insufficient. … Sullivan, 216 Wis. 2d at 784 (merely offering list of proper purposes potentially applicable to other acts evidence is too broad). The State has an obligation to clearly articulate its reasoning for seeking admission of the other acts evidence and “must apply the facts of the case to the analytical framework.” Sullivan, 216 Wis. 2d at 774. It has not done so….

Nor does a review of the record provide reasons to sustain the trial court’s discretionary decision. In particular, there is nothing to support the main reason offered by the state—to prove identity—because Pugh’s prior case and the charges in this case don’t share “a concurrence of common features.” (¶¶35-36, citing State v. Kuntz, 160 Wis. 2d 722, 746, 467 N.W.2d 531 (1991)). Even if the evidence was offered “for no other reason than to show [Pugh] is a drug dealer,” however, Judge Cane agrees the error was harmless. (¶37).

Amendment of information

Pugh was not prejudiced by the addition of the party-to-a-crime modifiers. First, Pugh was not surprised by the State’s request (the State indicated at the pretrial conference that it would seek the amendment if Pugh introduced evidence suggesting someone else had committed the drug crimes). More importantly, he doesn’t demonstrate he would have had to prepare differently to defend against party-to-a-crime liability because even before the amendment, Pugh would not have been relieved from liability simply because others may have had possession or control of the drugs or drug trafficking place, given that more than one person may “possess” the drugs; instead, a successful trial strategy—both before and after amendment—had to include an attempt to dissociate Pugh from both the drugs and the places where the drugs and associated items were recovered. Bethards v. State, 45 Wis. 2d 606, 618, 173 N.W.2d 634 (1970). (¶¶25-29).

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