State v. David G. Alexander

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SUPREME COURT OF WISCONSIN Case No.: 96-1973-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent, v. David G. Alexander, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 207 Wis. 2d 643, 559 N.W.2d 925 (Ct. App. 1996) UNPUBLISHED Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: December 18, 1997 October 9, 1997 Circuit Milwaukee Timothy G. Dugan JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Christopher A. Mutschler, Michele A. Tjader, and Barry S. Cohen, S.C., Elkhart Lake and oral argument by Dennis M. Melowski. For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. No. 96-1973-CR NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 96-1973-CR STATE OF WISCONSIN : IN SUPREME COURT FILED State of Wisconsin, Plaintiff-Respondent, DEC 18, 1997 v. Marilyn L. Graves Clerk of Supreme Court Madison, WI David G. Alexander, Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 WILLIAM A. BABLITCH, Alexander (Alexander) operating a motor concentration of seeks vehicle 0.08 or § 346.63(1)(b) (1993-94).1 offense is that the J. review The defendant of while having more, in Affirmed. his David conviction a prohibited violation of G. for alcohol Wis. Stat. One of the three elements of this defendant must have two or more prior convictions, suspensions or revocations as counted under Wis. Stat. § 343.307(1). ¶2 The issue is whether the circuit court erroneously exercised its discretion when it allowed the introduction of evidence of revocations two as or more counted prior under convictions, Wis. Stat. suspensions § 343.307(1), or and further submitted that element to the jury when the defendant 1 All references to the Wisconsin Statutes are to the 199394 version unless otherwise indicated. 1 No. 96-1973-CR fully admitted to the element and the purpose of the evidence was solely to prove that element. Because we conclude that the purpose of the evidence was solely to prove the element of two or more prior convictions, probative value prejudice to was the far suspensions outweighed defendant. We by or revocations, the conclude danger that of its unfair admitting any evidence of the element of prior convictions, suspensions or revocations and submitting the element to the jury in this case was an erroneous exercise of discretion. However, because of the overwhelming nature of the evidence as to the defendant s guilt in this harmless. ¶3 case, we also conclude that the error was Accordingly, we affirm. This case was heard before a jury in the circuit court for Milwaukee County, Timothy G. Dugan, judge, presiding. The arresting officer, Officer Gallagher of the Oak Creek Police Department, was the State of Wisconsin s (State s) only witness. He testified as follows. In the early morning hours of October 27, 1995, Officer Gallagher was driving northbound on South 27th Street in the City of Oak approaching from behind. right driving vehicle was lane left vehicle, he noticed a vehicle the in two-lane divided the right far highway lane and which the was a The vehicle approaching Officer Gallagher s car from nearly when Officer Gallagher was driving in the approaching turning lane. moved of Creek the turning striking lane front of median the in strip and the officer s then moving forward as Officer Gallagher did a quick turn snap into the left lane to avoid a collision. 2 After going through the No. 96-1973-CR intersection, Officer Gallagher observed the vehicle for about two more blocks. fog line The vehicle went back and forth across the (the far right illuminated line painted on the street), straddled the fog line, and struck the far right curb. ¶4 After these stop the vehicle. the vehicle, observations, the officer attempted to Driving approximately two car lengths behind Officer Gallagher flashers of his squad car. turned on the red lights The vehicle did not stop. and After several blocks, the officer turned on the siren and the vehicle pulled over. ¶5 When Officer Gallagher approached the vehicle the driver had opened the window and the officer smelled a strong odor of intoxicants on the driver s breath. Officer Gallagher noticed the driver had slurred speech and his eyes were red and glassy. At the officer s request, the driver readily produced his identification. defendant, Mr. The officer identified the driver as the David G. Alexander. In response to Officer Gallagher s questions, Mr. Alexander said that he had had a few drinks. Officer Gallagher asked Mr. Alexander to recite the alphabet. Mr. Alexander went through letters deliberately, correctly saying all those letters. A to F very Mr. Alexander then stopped, looked up at the officer and said, You got me. ¶6 The officer sobriety tests. gently sloped then conducted three standard field It was drizzling and the street surface was upward, but the surface was generally flat. Although Mr. Alexander had no difficulty exiting his vehicle, he 3 No. 96-1973-CR failed each of the field sobriety tests. Officer Gallagher informed him that he was under arrest for operating a motor vehicle while intoxicated (OWI). The officer then transported Mr. Alexander to the Oak Creek Police Department. ¶7 At the police station, Officer Gallagher went over the informing the accused understood form with each section and had Mr. him Alexander, sign the ensured form. he This document informs the arrested person that he is under arrest for drunk driving and that he has implied his consent to provide a sample of his breath, blood or urine at the officer s request. The officer observed Mr. Alexander for 20 minutes as required by Wis. Admin. Code § Trans 311.06(3)(a) and then performed the Intoxilyzer .24. test. The defendant s alcohol concentration was The officer then wrote a second citation for driving with a prohibited alcohol concentration. ¶8 After issuing the second citation, Officer Gallagher completed the alcoholic influence report which, among other things, informs the defendant of his Miranda rights. The alcoholic influence report also contains a series of questions which the officer posed to the defendant. In response to the questions, Mr. Alexander stated that he did not know where he was coming from when he was stopped; that he was stopped at 11:00 p.m. (when he was really stopped at 3:05 a.m.); that he had been drinking beer; and that he was under the influence of an alcoholic beverage at the time questions. 4 he was answering these No. 96-1973-CR ¶9 The defendant also testified at the trial. His testimony materially conflicted with the officer s testimony in only a few respects. Alexander testified that the turning lane in which he was driving continues through the intersection as a third lane. He stated that he did not quickly move to the left as he was going through the intersection. Also, rather than drizzling, he stated that it was raining fairly hard from the time he saw the officer s vehicle through performing the field sobriety tests. Alexander also attempted to explain his actions during his arrest. He explained that when he told the officer, You got me, he meant the officer caught him not being able to say the alphabet because he was so nervous. Alexander testified that his eyes were probably red and glassy because he had been awake for about 20 hours and he had been at a restaurant/bar with an open kitchen and smoky grill and people were smoking cigarettes. He further testified that he was not able to complete two of the field sobriety tests because his right knee has been operated on seven times over the years. Also, when asked if he was incapacitated when he was stopped, Alexander replied, I didn t believe so. ¶10 I felt fine. counsel Before the final pre-trial conference the defendant s filed a motion in which the defendant offered to stipulate that his driving record correctly sets forth that he has two prior OWI convictions. defendant also filed a With this offer to stipulate the motion in limine requesting that the court order the State to refrain from introducing any evidence regarding the defendant s prior OWI convictions. 5 Alexander also No. 96-1973-CR moved to modify the substantive jury instructions. The thrust of the defendant s proposals, as noted in the State s brief, was to eliminate the element regarding his prior convictions as a matter for the jury to determine at trial, and to have this element considered only by the court at sentencing. The State agreed to stipulate to the existence of the defendant s prior OWI convictions, but it refused to waive that portion of the jury trial which would be relevant to making a finding on that element. ¶11 The circuit court denied the defendant s motion and concluded that the State can be required to stipulate to the fact that the defendant has two prior convictions, suspensions or revocations under Wis. Stat. § 343.307(1) but that the State cannot be forced Therefore, to evidence waive regarding any the portion of element the of the jury trial. defendant s prior convictions, suspensions or revocations was presented to the jury although the extent of information that the State could introduce was limited. ¶12 parties After the judge s ruling on the defendant s motion the agreed to the judge s proposed jury instruction regarding their stipulation to the prior convictions: The District Attorney and defendant s stipulated to the following facts: attorney have On the date and time in question in this case that the defendant had two or more convictions, suspensions or revocations as counted under section 343.307(1) of the Wisconsin Statutes. 6 No. 96-1973-CR The judge also proposed giving the following cautionary instruction: Evidence has been received that the defendant has two or more convictions, suspensions or revocations as counted under section 343.307(1) of the statutes. This evidence is received solely because it bears upon the second element that the State must prove for the offense of driving with a prohibited alcohol concentration. It must not be used for any other purpose and, particularly, you should bear in mind that conviction, suspension or revocation as counted under section 343.307(1) at some previous time is not proof of the guilt of the offense now charged. The parties agreed to this instruction as well. ¶13 The judge instructed the jury during both his preliminary and final instructions as to the elements of the offense including the element of two or more prior convictions, suspensions or revocations under Wis. Stat. § 343.307(1). the State rested instructions, the its judge case and informed twice the during jury of his the When final parties stipulation regarding the prior convictions and gave the above cautionary instruction. ¶14 The jury returned verdicts finding the defendant guilty of both charges: driving while under the influence of an intoxicant and driving with a prohibited alcohol concentration. The court granted the State s motion conviction and sentenced the defendant. pending appeal. The court of for judgment on the The sentence was stayed appeals concluded in an unpublished decision that it was error for the circuit court to allow the State to submit evidence of the prior convictions to the jury but that the error was harmless. 7 No. 96-1973-CR ¶15 Alexander challenges the verdict finding him guilty of driving with a prohibited alcohol concentration in violation of Wis. Stat. arguments. § 346.63(1)(b) (reprinted below).2 He makes two First, the circuit court erroneously exercised its discretion by allowing the jury to hear any evidence regarding his prior convictions. Second, the circuit court erroneously exercised its discretion by submitting to the jury the element that the defendant has two or more prior convictions, revocations or suspensions under Wis. Stat. § 343.307(1). issue presented by this case is whether the circuit The court erroneously exercised its discretion when it admitted evidence of the element of two or more prior convictions, suspensions or revocations under § 343.307(1) and submitted the element to the jury when the defendant fully admitted to the element and the purpose of the evidence was solely to prove that element. ¶16 The question of whether to admit evidence is within a circuit court s discretion. See State v. Brecht, 143 Wis. 2d 297, 320, 421 N.W.2d 96 (1988). This court will reverse a discretionary circuit decision when the court erroneously exercises its discretion because it bases its decision upon an error of law. See Marten Transport v. Hartford Specialty, 194 Wis. 2d 1, 13, 533 N.W.2d 452 (1995) (citing Jesse v. Danforth, 169 Wis. 2d 229, 246, 485 N.W.2d 63 (1992)). 2 Operating under influence of intoxicant or other drug. (1) No person may drive or operate a motor vehicle while: . . . (b) The person has a prohibited alcohol concentration. Wis. Stat. § 346.63(1)(b). 8 No. 96-1973-CR ¶17 The Prohibited crime Alcohol elements. The of Operating Concentration first element a of is Motor 0.08 that operated a motor vehicle on a highway. Vehicle or a more with has defendant a three drove or The second element is that at the time a defendant drove or operated a motor vehicle, he or she had two or more prior convictions, suspensions or revocations as counted under Wis. Stat. § 343.307(1). JIï£§Criminal Wis. 2d 132, § 343.307(1) 2660B 141, (1993); 536 includes see N.W.2d also 392 convictions State (Ct. for v. App. OWI, See Wis. Ludeking, 1995). and 195 Section convictions, suspensions or revocations for refusal to submit to the chemical tests for alcohol. See Wis. JIï£§Criminal 2660B, n.10. The third element of this offense is that a defendant had a prohibited alcohol concentration at the time he or she drove or operated the motor vehicle. See Wis. JIï£§Criminal 2660B. If a defendant has two or more prior convictions, suspensions or revocations under § 343.307(1), the prohibited alcohol concentration is 0.08 grams or more of alcohol in 210 liters of the person s breath, or 0.08 percent or more by weight of alcohol in the person s blood. See Wis. § 340.01(46m)(b). JIï£§Criminal If a 2660B; defendant has see also only one Wis. or no Stat. prior convictions, suspensions or revocations under § 343.307(1), the prohibited alcohol concentration is 0.10 or more of alcohol in 210 liters of the person s breath, or 0.10 percent or more by weight of alcohol in the person s blood. 2660A; see also § 340.01(46m)(a). 9 See Wis. JIï£§Criminal No. 96-1973-CR ¶18 The issue in this case hinges on the exercise of the circuit court s discretion under Wis. Stat. § 904.03 (reprinted below).3 This statute, which is parallel to Federal Rule of Evidence 403 (reprinted below),4 provides that relevant evidence may be excluded if its probative value is substantially outweighed by its unfair prejudicial effect. ¶19 As evidence which relevant. the a threshold serves matter, to prove there an is no element question of a that crime is Evidence is relevant if it has any tendency to make 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. Wis. Stat. § 904.01. In this case, the defendant s offer to stipulate to his prior OWI convictions was essentially an admission that he met the second element of the charged alcohol concentration. ¶20 simply crime - operating with a prohibited This admission is relevant evidence. To be excludable, the relevant evidence must not be prejudicial. Nearly all of the prejudicial to the defendant in some way. State s evidence is See State v. Murphy, 3 Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Wis. Stat. § 904.03 4 Although relevant, evidence may be excluded if probative value is substantially outweighed by the danger unfair prejudice, confusion of the issues, or misleading jury, or by considerations of undue delay, waste of time, needless presentation of cumulative evidence. FRE 403 10 its of the or No. 96-1973-CR 188 Wis. 2d 508, 521, 524 N.W.2d 924 (Ct. App. 1994). To be excludable, the evidence must be unfairly prejudicial. ¶21 The term unfair prejudice, as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. Old Chief v. United States, 117 S.Ct. 644, 650 (1997) (citations omitted);5 see also State v. Patricia A.M., 176 Wis. 2d 542, 500 N.W.2d means 289 an basis, (1993). undue commonly, Unfair prejudice tendency to suggest though not necessarily, within decision an this context an improper on emotional one. Christensen v. Economy Fire & Cas. Co., 77 Wis. 2d 50, 61 n.11, 252 N.W.2d Notes). 81 (1977) (quoting FRE 403, Advisory Committee Where prior convictions is an element of the charged crime, the risk of a jury using a defendant s prior convictions as evidence of his or her propensity or bad character is great. And where the prior offense is similar or of the same nature or character as the charged crime, the risk of unfair prejudice is particularly great. ¶22 The See Old Chief, 117 S.Ct. at 652. Wisconsin Criminal Jury Instructions Committee (Committee) recognized the inherent danger of unfair prejudice to a defendant of admitting any evidence of the defendant s prior convictions, suspensions or revocations under Wis. Stat. § 343.307(1) and submitting the element to the jury. 5 See Wis. Because we rely on Old Chief, we will discuss that opinion in more detail later in this opinion. 11 No. 96-1973-CR JIï£§Criminal 2660-2665 Introductory Comment at 7. The Committee suggested court that at the defendant s request the give a cautionary instruction to the jury explaining that evidence of the prior offenses is relevant only as to the status of the defendant s driving record and should not be used for any other purpose. See Wis. JIï£§Criminal 2660B. The Committee recognized, however, that the potential prejudice to the defendant may be significant and instruction. at 7. may not be adequately cured by a limiting Wis. JIï£§Criminal 2660-2665 Introductory Comment We agree with the Committee s concerns. ¶23 Evidence of prior convictions may lead a jury to convict a defendant for crimes other than the charged crime, convict because a bad person deserves punishment rather than based on the evidence presented, or convict thinking that an erroneous conviction is not so serious because the defendant See Old Chief, 117 S.Ct. at 650- already has a criminal record. 651 (citations omitted); see also Whitty v. State, 34 Wis. 2d 278, 292, 149 N.W.2d 557 (1967); State v. Landrum, 191 Wis. 2d 107, 122, 528 N.W.2d 36 (Ct. App. 1995). A jury is likely to rely on the prior convictions as evidence of a defendant s bad character against (quoting a so as to deny particular Michelson v. him a charge. United fair Old opportunity Chief, States, 335 117 U.S. to S.Ct. 469, defend at 651 475-76 (1948)). ¶24 In Old Chief, the accused was charged with assault with a dangerous weapon and unlawful possession of a firearm after being convicted of a crime punishable by more than one 12 No. 96-1973-CR year. Because the defendant s prior conviction was for assault causing serious bodily injury, he was particularly concerned that information regarding his previous assault conviction would improperly influence the jury in the current assault charge. ¶25 In the present case informing the jury of the parties stipulation that suspensions or the defendant revocations had as two or counted more under convictions, Wis. Stat. § 343.307(1) was certainly less prejudicial than introducing the defendant s driving record would have been. Nonetheless, as we discuss later in this opinion, in a case where the defendant is charged with driving with a prohibited alcohol concentration and the jury is informed that he or she has two or more prior convictions, suspensions or revocations, it is highly probable that the jury will infer that the prior offenses are driving offenses and likely OWI offenses. ¶26 The element that the defendant has two or more prior convictions is a status element of the offense which places him See Old or her in a certain category of alleged offenders. Chief, 117 admission S.Ct. to his at 649. prior OWI Any evidence convictions of has the defendant s little probative value as to whether the defendant was operating a motor vehicle with a prohibited alcohol concentration. completely dependent on some The status element is judgment rendered wholly independently of the concrete events of later criminal behavior charged against [the defendant]. Id. at 654-55. If evidence is admissible for some other reason, such as proving motive or intent, Wis. Stat. § 904.04(2) regarding other crimes evidence 13 No. 96-1973-CR guarantees the State the opportunity to seek its admission. id. at 655. that At oral argument, counsel for the State conceded evidence admissible See for of the any defendant s purpose prior under convictions § 904.04(2). We is not agree. Accordingly, there is no probative value to this evidence other than to prove the defendant s status. Evidence of the status element is wholly independent of the concrete events that make up the gravamen of the offense, operating a motor vehicle with a prohibited alcohol concentration. ¶27 There seems little doubt that the evidence of the defendant s prior convictions, suspensions or revocations should be excluded and the status element not submitted to the jury because the probative value of the defendant s admission is substantially outweighed by the danger of unfair prejudice to the defendant. However, the State makes three arguments to support its position that the circuit court did not erroneously exercise its discretion when it admitted evidence of the defendant s prior convictions, suspensions or revocations under Wis. Stat. § 343.307(1) and submitted that status element to the jury. First, the State argues that not submitting the element to the jury was, in effect, a partial jury waiver which required the State s consent. Second, the State argues that the evidence had to be admitted to fulfill juror s expectations. the State argues that the evidence is necessary for Finally, a full evidentiary narrative which allows the State its right to a fair trial and opportunity to convict. in turn. 14 We will address each argument No. 96-1973-CR ¶28 The State asserts that not submitting element to the jury is a partial jury waiver. the status The State argues that a defendant has no right to a trial by a judge alone and therefore, has no right element. to a trial only by a judge on one The State s argument, however, is misplaced: this is not an issue of jury waiver. We agree that the defendant cannot waive a jury trial on the case or any part of the case without the State s consent and the court s approval. Stat. § 972.02(1). See, e.g., Wis. If the parties agree to a full or partial jury waiver, the case or portion of the case is tried before the court. See State v. Livingston, 159 Wis. 2d 561, 565-66, 464 N.W.2d 839 (1991). However, Alexander does not propose that the element of his prior convictions be taken from the jury and determined by the judge alone. that he has revocations two under or more Wis. He admits to the status element prior Stat. convictions, § 343.307(1). suspensions His or admission dispenses with the need for proof of the status element, either to a jury or to a judge. See, e.g., State v. Wideman, 206 Wis. 2d 90, 104, 556 N.W.2d 737 (1996) (citing State v. Meyer, 258 Wis. 326, 338-39, 46 N.W.2d 341 (1951) (both cases regarding penalty enhancer statutes). Accordingly, this is not an issue of partial jury waiver, but one where the defendant has given up his right to a trial on that element. ¶29 The State also argues that evidence of the defendant s prior convictions is necessary to fulfill jurors expectations. We agree that jurors bring certain expectations and knowledge to the courtroom. The State argues that if the jury is not told 15 No. 96-1973-CR why the prohibited alcohol concentration for Mr. Alexander is 0.08 or more instead concentration of .10 of more more, or the common the jury alcohol concentration is a mistake. prohibited may think alcohol the lower Alternatively, the jury might think that Mr. Alexander is being unfairly singled out for harsher treatment. puzzled by Also, the State asserts that jurors may be a story interrupted by gaps of abstraction, and jurors asked to rest a momentous decision on the story s truth can feel put upon at being asked to take responsibility knowing Old Chief, 117 that more could be said than they have heard. S.Ct. at 654. The jury could draw a negative inference against the disappoints party who them and react with a not guilty verdict even though they are fully satisfied of all the elements of the crime. See Old Chief, 117 S.Ct. at 654 (citing Saltzburg, A Special Aspect of Relevance: Countering Negative Inferences Associated with the Absence of Evidence, 66 Calif. L.Rev. 1011, 1019 (1978)). ¶30 We are not persuaded by the State s argument. First, jurors are frequently told what the law is and are asked to apply it. If the jury is instructed that the prohibited alcohol concentration is 0.08, it is presumed that they will follow that instruction. See State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). Second, the State provides no support for its it assertion prohibited defendant that alcohol pointed is common concentration out at oral knowledge is .10. argument, that As there the counsel are usual for different prohibited alcohol concentrations for different circumstances. 16 No. 96-1973-CR For example, the prohibited alcohol concentration for commercial drivers is 0.04 (Wis. Stat. § 343.305(4m)(a)), but an alcohol concentration of 0.00 is a condition of an occupational license for second and subsequent offenders. Wis. Stat. § 343.10(5)(a)2. ¶31 The State also argues that any unfair prejudicial impact of admitting evidence and submitting the status element of the defendant s prior convictions to the jury is minimal because the jurors do not have the foggiest idea what kind of convictions, suspensions § 343.307(1) of the or revocations Wisconsin are Statutes. counted We under disagree. A strength of our jury system is that jurors . . . bring their experiences, philosophies, and common sense to bear in their State v. Messelt, 185 Wis. 2d 254, 264, 518 deliberations. N.W.2d 232 (1994). It is highly likely that jurors experiences and common sense would tell them that when a defendant is charged with driving with a prohibited alcohol concentration, the prior convictions, suspensions or revocations as counted under § 343.307(1) of the Wisconsin Statutes must be driving offenses and likely drunk-driving offenses. The words suspensions or revocations in a case where the defendant is charged with driving with a prohibited alcohol concentration, in particular raise the inference that the prior offenses are also driving offenses. The unfair prejudicial impact of the evidence and status element itself is not minimal. ¶32 necessary Finally, for the the State State s argues full 17 that evidentiary the evidence narrative is which No. 96-1973-CR allows the State its right to a fair trial and opportunity to convict. In general, we agree. probative value against the When a court balances the unfair prejudicial effect of evidentiary alternatives, the court must also be cognizant of and consider a party s need for evidentiary richness narrative integrity in presenting a case . . . . 117 S.Ct. at 651. and Old Chief, To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight. Id. at 653 (quoting Dunning v. Maine Central R. Co., 39 A. 352, 356 (1897)). The persuasive power of a narrative story is an essential ingredient to the State s evidence right with to prosecute. abstract Substituting assertions substitute for telling a complete story. is concrete an tangible unsatisfactory [A] piece of evidence may address any number of separate elements, striking hard just because it shows so much at once . . . . . Old Chief, 117 S.Ct. at 653. Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. Id. A descriptive narrative assists the jury in ascertaining what the defendant has thought and done and establishes human significance. ¶33 the Evidence may be particularly important to fill gaps in narrative. complete the [O]ther story of crimes the crime 18 evidence on is trial admissible by proving to its No. 96-1973-CR immediate context of happenings near in time and place. State v. Pharr, 115 Wis. 2d 334, 348, 340 N.W.2d 498 (1983) (quoting Bailey v. State, 65 Wis. 2d 331, 347, 222 N.W.2d 871 (1974)). ¶34 Nevertheless, we conclude, as did the Court in Old Chief, that the prosecution s need for evidentiary depth to tell a continuous story has . . . virtually no application when the point at issue is a defendant s legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him. Chief, 117 S.Ct. at 654-55. an element operating entirely a motor concentration. other than Old Proof of a status element goes to outside the vehicle gravamen with a of the offense: prohibited alcohol The evidence has no place in the State s story, to lead the jurors to think that because the defendant has two prior convictions, suspensions or revocations, he was probably driving while intoxicated on the date in question. ¶35 We conclude that introducing evidence of the defendant s prior convictions, suspensions or revocations served no purpose other than to prove the status element of the charged offense. Admitting this evidence to prove this status element, and submitting the status element to the jury adds nothing to the State s evidentiary depth or descriptive narrative. nothing to fulfill a juror s expectations. It does This evidence and element does, however, tell a juror that the defendant has had a problem in the past, probably with drinking and driving. It raises an inference that the defendant has a bad character and a 19 No. 96-1973-CR propensity to drink and drive, and that is the very result prohibited by the rules of evidence. ¶36 We recognize that in Old Chief the Court excluded the name and nature of the defendant s prior felony conviction as unfairly prejudicial but allowed offense to go to the jury. the element of the prior See Old Chief, 117 S.Ct. at 655. The most obvious reason the Court did not consider excluding the element entirely is that the defendant did not raise that as an issue. Before the trial the defendant moved for an order that the government be restricted from offering any information about the defendant s prior felony conviction except to say that he had been convicted exceeding one year. of a crime punishable See id. at 648. by imprisonment It is also likely that the Court did not exclude the status element entirely because it recognized the government s need to introduce the element to complete its story. a firearm. In most states it is not illegal to possess If, in Old Chief, the government only proved that the defendant possessed a firearm, most jurors would probably wonder what crime had been committed. To complete its story, the government needed to prove that the defendant had a prior felony conviction. Specifically, the government needed to explain that while most people may possess firearms legally, it is illegal for convicted felons to possess firearms. ¶37 Weighing the probative value of the evidence of the defendant s prior convictions, suspensions or revocations against the unfair prejudicial effect to the defendant, where the sole purpose of the evidence is to prove the status element, 20 No. 96-1973-CR we conclude that the probative value is virtually nil. Second, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Because the prior convictions are of the same nature and character of the charged offense, the jury is likely to engage in propensity or bad character reasoning. ¶38 Accordingly, we hold that when the sole purpose of introducing any evidence of a defendant s prior convictions, suspensions or revocations under Wis. Stat. § 343.307(1) is to prove the status element and the defendant admits to that element, its probative value is far outweighed by the danger of unfair prejudice to the defendant. We hold that admitting any evidence of the defendant s prior convictions, suspensions or revocations and submitting the status element to the jury in this case was an erroneous exercise of discretion. ¶39 When a circuit court is faced with the circumstances presented in this case, the circuit court should simply instruct the jury that they must find beyond a reasonable doubt that: 1) the defendant was driving or operating a motor vehicle on a highway; and 2) the defendant had a prohibited alcohol concentration at the time he or she drove or operated the motor vehicle. The prohibited alcohol concentration means 0.08 grams or more of alcohol in 210 liters of the person s breath or 0.08 percent or more by weight of alcohol in the person s blood. See Wis. JIï£§Criminal 2660B. instruction. The jury is charged to follow the See Poellinger, 153 Wis. 2d at 507. 21 No. 96-1973-CR ¶40 The Wisconsin Court of Appeals has held that admitting evidence of a defendant s prior convictions is proper because prior convictions, suspensions or revocations is an element of the charged crime. See Ludeking, 195 Wis. 2d at 141. Although we agree that prior convictions, suspensions or revocations is an element of the crime of driving with a prohibited alcohol concentration, third offense, we do not agree that it automatically follows that admitting evidence of this element in this case is proper. To the extent that any language in Ludeking is inconsistent with our holding in this case, it is overruled. ¶41 We next turn to the question of whether allowing any evidence regarding suspensions or the revocations defendant s under Wis. prior Stat. convictions, § 343.307(1) and submitting the status element to the jury was harmless error. We conclude that because of the overwhelming nature of the evidence as to the defendant s guilt, admitting any evidence regarding his prior convictions, suspensions or revocations, and submitting the status element to the jury was harmless error. ¶42 The test for harmless error is: whether there is a reasonable possibility that the error contributed to the conviction. If it did, reversal and a new trial must result. The burden of proving no prejudice is on the beneficiary of the error, here the state. The state s burden, then, is to establish that there is no reasonable possibility that the error contributed to the conviction. State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985) (citations omitted). The analysis focuses on whether the error 22 No. 96-1973-CR undermines confidence in the outcome. Id. at 545 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). ¶43 the In this case there is no reasonable possibility that error, prior admitting any evidence convictions, suspensions or regarding the revocations, defendant s and submitting the status element to the jury, contributed to the conviction. The officer testified that that Alexander quickly changed lanes, causing the collision. officer to make a quick turn snap to avoid a The officer also testified that he saw Alexander s vehicle weave back and forth across the fog line, straddle the fog line and strike the curb. When the officer stopped Alexander s car and approached the vehicle, he noticed a strong smell of intoxicants on the defendant s breath. eyes were red and his speech was slurred. Alexander s Alexander could not recite the alphabet and stated to the officer, You got me. Alexander also Intoxilyzer failed test the field that showed three sobriety Alexander had tests. an The alcohol concentration of .24 - three times the applicable legal limit. Finally, in response to questions on an alcoholic influence report, Alexander stated that he did not know where he was coming from when he was stopped. He admitted that he had been drinking beer and that he was under the influence of alcohol at the time he was answering the questions. ¶44 Given the overwhelming evidence against Alexander, we conclude that there is no reasonable possibility that admitting any evidence revocations and of his prior submitting the 23 convictions, status suspensions element to the or jury No. 96-1973-CR contributed to his conviction alcohol concentration. for driving with The error was harmless. a prohibited Therefore, we affirm the decision of the court of appeals. By the Court. The decision affirmed. 24 of the court of appeals is 1

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