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Fleeing, § 346.04(3); Evidence – Character Trait of Victim

State v. Daniel H. Hanson, 2010 WI App 146 (recommended for publication), affirmed 2012 WI 4; for Hanson: Chad A. Lanning; case activity

Fleeing, § 346.04(3)

Can you criminally “flee” the police, if what you’re actually doing is driving to the nearest police station to escape what you believe to be a beating at the hands of the officer you’re fleeing? Yep.

¶13      Here, Hanson contends that the State could not prove that he was “knowingly fleeing or attempting to elude” the police.  We understand Hanson to argue that there can be no fleeing-and-eluding charge if police know that he is going to stop his vehicle at a police station.  The theory is simply that he cannot be fleeing and eluding police if he calls 911 and tells the police where he is going.  However, the plain language of Wis. Stat. § 346.04 undermines Hanson’s position.  While Hanson speaks generally of fleeing “the police,” the statute expressly makes it a violation of the law to elude “any traffic officer.”  Sec. 346.04(3).  We agree with the State that the objectives of the statute are readily discerned from its language.  It seeks to foster cooperation with individual officers at the time of the initial stop while also discouraging unsafe driving.  Thus, as long as Hanson, after having received a visual or audible signal from a traffic officer or marked police vehicle, fled or attempted to elude that officer, it makes no difference under § 346.04(3) that he was fleeing to a police station.  We therefore turn to whether there was sufficient evidence at trial to support Hanson’s conviction for eluding an officer.

The issue is raised as a challenge to the sufficiency of proof. Hanson was pulled over for a traffic stop, and things escalated from there. The dispute at trial was whether Hanson or the cop (Klinkhammer) was the aggressor. No dispute that Hanson took off in his car, and called 911 to report that Klinkhammer had struck him, that Hanson feared for his life; and to ask for the nearest police station. The matter in factual dispute can’t be resolved by the appellate court, of course, so Hanson is constrained to take the undisputed facts and argue that as a matter of law they show lack of elemental proof. Nothing in the opinion suggests that self-defense, or some comparable defense, wasn’t available to Hanson; to the contrary, the court alludes to self-defense having been argued to the jury, ¶8. That issue, turning as it did on the disputed question of who was the aggressor, would have been solely for the fact-finder to resolve.

Evidence – Character Trait of Victim

The court rejects an interest-of-justice argument that exclusion of evidence of Klinkhammer’s character for aggressiveness violated § 904.04(1)(b) (relating to admissibility of pertinent character trait of “victim”):

¶20      The admission of character evidence under Wis. Stat. § 904.04(1)(b) depends, as does all evidence, on its relevance.  Here, the trial court found that the “label” of victim did not apply to Klinkhammer under the facts of this case and, therefore, § 904.04(1)(b) did not apply.  The court stated, “The charges here of fleeing an officer and two counts of obstructing to this Court’s way of thinking are victimless crimes….  It’s a question of whether, in his actions, [Hanson] created a victim.  I don’t see in this set of facts where a victim was created.”  We see no error in the trial court’s analysis.  While the testimony underlying Hanson’s defense clearly portrayed Klinkhammer as the aggressor, the evidence did not support a finding that Klinkhammer suffered injury, sustained losses or was otherwise victimized so as to make relevant the proffered character evidence.  The trial court’s exclusion of the § 904.04(1)(b) victim character evidence was not error.  The record reflects that the court considered the facts, applied the correct law, and reached a reasonable determination. See Alsteen, 108 Wis. 2d at 727.

¶21      Further, the exclusion of this character evidence did not prevent the real controversy from being tried.  The jury heard Hanson’s testimony that Klinkhammer screamed “at the top of his lungs,” took out his baton, acted “gruffly” and “angrily” in taking Hanson’s license, grabbed him, ripped his shirt, and struck him on the back of the head. The jury also heard testimony from four character witnesses that Hanson is a truthful and fair person.  We agree with the State that the exclusion of testimony from a single witness as to Klinkhammer’s reputation for being “hot-headed” did not prevent the real controversy from being fully tried.

State v. Haase, 2006 WI App 86 (police department not entitled to restitution for damages incurred to squad car in pursuit of fleeing driver, because “the officers,” not the department, were the “direct victims” of the offense), distinguished: “That an officer can be a victim of the crime of eluding an officer for purposes of restitution does not mean that an officer is victimized as a result of every such crime,” ¶19. The court’s analysis seems a bit pat; not that it’s necessarily wrong, just that it isn’t so obviously correct that a toss-away line carries the day. “Victim” is broadly defined, at least in § 950.02(4)(a), as any “person against whom a crime has been committed” (well, sure; but sometimes belaboring the obvious is a necessary exercise).  Also, State v. Howard-Hastings, 218 Wis. 2d 152, 156, 579 N.W.2d 290 (Ct. App. 1998), favorably cites the dictionary definition (again, for restitution purposes) as a “person or thing killed, injured etc. as a result of another’s deed, or accident, circumstances etc.” But we’re simply left wondering why “victim” would have a broad meaning in the criminal code and a different and narrower one in the evidence code. True, Klinkhammer doesn’t seem to have been physically injured – but what if he’d sought restitution for counseling due to emotional trauma suffered in the event? He’d have at least a colorable claim to status as a “victim” for restitution purposes. The court doesn’t reject such a possibility, indeed appears to concede that the officer in a fleeing case can be a victim, ¶19. In the court’s view, “victim” means one thing with respect to restitution, another with respect to character evidence; again, the court may well be right, but the reason for treating “victim” differently depending on the context isn’t quite that self-evident.

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