PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
February
29, 2000
Cornelia G. Clark
Acting Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals.
See
Wis. Stat. §808.10
and Rule 809.62.
No. 98-3105-CR
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
I
State of Wisconsin,
Plaintiff-Respondent,
v.
Dennis E. Scott,
Defendant-Appellant.
APPEAL from a judgment and an order of the circuit court for Milwaukee County:
TIMOTHY G. DUGAN, Judge. Affirmed.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
¶1. SCHUDSON, J.Dennis E. Scott appeals from the judgment of conviction for
burglary, party to a crime, and theft, party to a crime, following a jury trial, and from the
order denying his motion for postconviction relief. Challenging only the burglary
conviction,1 he argues that the trial
court erred by deferring, and later denying, his motion to dismiss following the State's
presentation of its case-in-chief. He also argues that the trial court erred in allowing the
State to impeach his defense witness by eliciting evidence of the witness's sentences and
parole eligibility date. We affirm.
¶2. Based primarily on fingerprint evidence, Scott was prosecuted for burglary
and theft stemming from a single incident: the entry to the building occupied by
Kubin-Nicholson Corporation, a printing company, and the taking of a lap-top computer from
one of the company's inner offices.2
The State's trial evidence was simple and undisputed. Kubin-Nicholson served business
clients and had no retail store; its building was not generally open to the public. On the
night of July 8-9, 1996, a lap-top computer Kubin-Nicholson had recently purchased was
stolen from one of the Kubin-Nicholson offices. Scott's fingerprint was found on the bottom
of the computer "desk dock" from which the lap-top was taken. Scott had never
been employed by Kubin-Nicholson, had not been assigned to clean the Kubin-Nicholson
offices under any subcontract, and had not been given permission to enter the
Kubin-Nicholson building or the office from which the lap-top was stolen.
I. MOTION TO DISMISS / SUFFICIENCY OF FINGERPRINT
EVIDENCE
¶3. At the close of the State's case-in-chief, defense counsel and the trial court
had the following exchange:
[DEFENSE COUNSEL]: Your Honor,
I'd like to make a motion to dismiss. I don't know if you want ... me to do it now or
tomorrow morning.
THE COURT: We'll do it-at this point, the general inclination is we'll address it
later after you proceed[] with your case, if you intend to. I can separate when the State
has ended its case and any evidence that's introduced subsequently. So I generally do
wait until later to rule on a motion to dismiss at the close of the State's case.
[DEFENSE COUNSEL]: That's fine.
(Emphasis added.) The defense then called
one witness, Vincent Lewis, whose testimony is involved in the second issue in this appeal.
Following closing arguments and jury instructions, the court then returned to the defense
motion to dismiss. Defense counsel contended:
I believe that if you look at the evidence
the way it has to be looked at for a motion to dismiss, the State clearly established that some
sort of a crime occurred here; clearly established that someone stole a laptop
computer.
The question is is there any reasonable way or sufficient inference to tie in Mr.
Dennis Scott with that theft? Essentially at the close of the State's case the evidence tying
Mr. Scott into it was a fingerprint found in close proximity to where the item was stolen.
And I would say[,] being fair to the State[,] found in a position that if the State's position is
believed ... would be a position where ... if Mr. Scott was involved his fingerprint would
end up, but I don't think the mere extent of a fingerprint at the scene of a crime ...
sufficiently ties Mr. Scott into being at that scene at that particular time that the crime
occurred nor do I think that it was established that the fingerprint was left at that location ...
at that time....
And I'd ask the Court to consider that and to dismiss based upon the very tenuous
fingerprint link to the time and place of the crime.
¶4. Denying the motion to dismiss,
the trial court explicitly limited its consideration to the evidence "[a]t the close of the
State's case" and ruled:
[T]he question comes down to whether or
not the fingerprint on its particular location was sufficient or could be sufficient from which
the jury could conclude the defendant was guilty beyond a reasonable doubt. I think taken in
the totality of the circumstances, particularly the location of that print, that being on the
bottom of the desk dock as it was commonly referred to, that that is a location in which the
laptop was pushed into to operate as a desktop computer. That system was approximately
two years old. It was located in a private office in a private corporation. The public did not
have access to it.
The area was generally cleaned each night although the computer area was dusted
merely with a dustmop or feather-type object.
It is the unique area in which it was located ... when put together with the fact the
clock was knocked away, papers were out of the[ir] normal place, the computer had been
moved, that under all of those circumstances ... the jury could conclude beyond a reasonable
doubt that the defendant entered the building ... with an intent to steal.
¶5. Scott argues that the trial court
erred in denying his motion to dismiss based on the State's evidence.3 The State first responds that Scott, "by
failing to object to the trial court's decision to reserve ruling on his motion to dismiss,"
and then by presenting evidence, waived his challenge to the denial of his motion to dismiss,
under State v. Kelley, 107 Wis. 2d 540, 319 N.W.2d 869 (1982). Scott
disagrees, maintaining, first, that regardless of his agreement to the trial court's deferral of
its decision, his motion to dismiss preserved his challenge and, second, that if, under
Kelley, he waived his challenge by failing to object to the court's
deferral, such failure was plain error. Thus, he argues, this court should address the issue,
under the discretionary authority as articulated in State v. Neuser, 191
Wis.2d 131, 140, 528 N.W.2d 49 (Ct. App. 1995) (court of appeals "may overlook
waiver where the error is so plain or fundamental as to affect the substantial rights of the
defendant").
¶6. In Kelley, the supreme court reiterated that
"where a defendant moves for a dismissal ... at the close of the prosecution's case and
when the motion is denied, `... the introduction of evidence by the defendant, if the
entire evidence is sufficient to sustain a conviction, waives the motion to
[dismiss].'" Kelley, 107 Wis. 2d at 544
(alteration in original) (quoted source omitted). Thus, a defendant has a dilemma: if the
motion to dismiss is denied, the defendant "has the option of either not presenting any
evidence on his behalf and preserving the ruling for appeal or abandoning his motion and
introducing his defense." Id. at 545. The parties agree, however,
that the instant case is distinguishable from Kelley because the trial court,
rather than denying Scott's motion at the close of the State's case, deferred its decision until
the end of the trial.
¶7. As Scott effectively argues, this distinction makes a difference. After all,
as Kelley explains, a defendant's dilemma, arising after the denial of a
motion to dismiss, is difficult. See id. But the dilemma also is
unavoidable, and fair. See id. Under Kelley, the
defendant will have to decide whether to pursue the challenge to the sufficiency of the State's
evidence on appeal, or to relinquish that issue in order to offer evidence. But under
Kelley, the defendant will do so with knowledge of the trial court's
decision. See id. The dilemma, however, is compounded,
unnecessarily and unfairly, if a defendant must make that choice without knowledge of
the trial court's decision. See generally U. S. Const.
Amend. VI; Wis. Const. Art. I, §7; State v. Dodson, 219 Wis. 2d
65, 71-72, 580 N.W.2d 181 (1998) (defendant has constitutional right to present a
defense); State v. Shegrud, 131 Wis. 2d 133, 137, 389 N.W.2d 7 (1986)
("The due process clause of the U.S. Constitution requires a defendant's waiver of
constitutional rights be knowing and voluntary.").
¶8. If, as the State suggests, the Kelley waiver rule should
apply under the circumstances of the instant case, a defendant would not be able to make a
fully informed choice about whether to offer evidence. After all, not knowing the trial
court's ruling on the motion to dismiss, the defendant would have to choose between
foregoing the opportunity to present evidence in order to preserve the motion, and presenting
evidence that might strengthen the State's case. Moreover, as Scott points out, a defendant's
dilemma becomes all the more difficult in multiple count cases where, as here, the defense
strategy may vary considerably depending on which charges, if any, the trial court
dismisses.4
¶9. Thus, unquestionably, when the defense moves to dismiss at the close
of the State's case, the better practice is for trial courts to decide the motion at
the close of the State's case. Further, unquestionably, if the defense needs to know
the court's ruling in order to determine whether to present evidence, defense counsel should
say so and, to preserve its potential appellate challenge, should object to any deferral of the
decision. Clearly, such practices make sense. They flow logically from the concerns
expressed in Kelley and are consistent with fundamental fairness to both
prosecution and defense. See Vollmer v. Luety, 156 Wis. 2d 1, 10-11,
456 N.W.2d 797 (1990) (discussing the importance of providing specific objections at trial
both to allow the trial court the opportunity to evaluate issues when possible errors may be
corrected, and to preserve issues for appeal).
¶10. Accordingly, here, where the trial court deferred its decision on Scott's
motion to dismiss, we agree with Scott's contention that we "should only examine the
evidence presented by the State when determining if sufficient evidence exists to uphold the
conviction." After all, that is the only evidence the trial court could have considered in
determining whether the State's case survived Scott's motion to dismiss. In this case,
however, our approach is eased by the manner in which the trial court ultimately considered
Scott's motion to dismiss.
¶11. The trial court, both at the time it deferred its decision and at the end of
the trial when it denied Scott's motion, clarified that it was only considering the State's
evidence. Thus, in this case, we may simply consider whether, regardless of
when it decided the motion, the trial court correctly decided the motion because,
as the State argues, "the net effect" was the same, and because "Scott has
not demonstrated actual prejudice from the trial court's deferral in denying his motion to
dismiss."
¶12. Our supreme court has declared the standard of review:
The test of the sufficiency of the
evidence on a motion to dismiss in the trial court is the same as that on appeal. It is
whether, considering the state's evidence in the most favorable light, the evidence adduced,
believed and rationally considered, is sufficient to prove the defendant's guilt beyond a
reasonable doubt.
State v. Duda, 60 Wis.
2d 431, 439, 210 N.W.2d 763 (1973); see also State v. Dahlk, 111 Wis.
2d 287, 304-05, 330 N.W.2d 611 (Ct. App. 1983). Even if we were to believe that a jury,
presented with the State's evidence, should not have found a defendant guilty, we will not
reverse a trial court's denial of a motion to dismiss as long as the jury, viewing the evidence
in the light most favorable to the State's theory, reasonably could have found the defendant
guilty beyond a reasonable doubt. See Bere v. State, 76 Wis. 2d 514,
526, 251 N.W.2d 814 (1977).
¶13. Scott argues that the State's evidence failed to preempt two alternative
theories, each of which would be consistent with his innocence of burglary: (1) his
fingerprint "was on the dock station before it entered the [Kubin-Nicholson]
building"; and (2) he "entered the building innocently enough, but once there,
saw the computer, and decided to take it." He points out that "[n]o evidence was
presented as to whether [he] worked at the company where the dock station was
purchased" and, therefore, because "the fingerprint expert testified that he could
not determine how long ago a fingerprint was created," the evidence did not preclude
the possibility that his fingerprint was deposited during such employment. Alternatively, he
also points out that no evidence directly established that he entered the building with the
requisite intent to steal. We reject Scott's argument for two reasons.
¶14. First, Scott builds his argument on a weak legal foundation. He contends
that this court, in reviewing the trial court's denial of his motion to dismiss, must consider
the evidence much as a jury would-i.e., by examining whether the circumstantial evidence is
"sufficiently strong to exclude every reasonable theory of innocence." See
State v. Shaw, 58 Wis.2d 25, 29, 205 N.W.2d 132 (1973). But that is not our
standard. As the supreme court clarified:
In reviewing the sufficiency of
circumstantial evidence to support a conviction, an appellate court need not concern itself in
any way with evidence which might support other theories of the crime. An appellate court
need only decide whether the theory of guilt accepted by the trier of fact is supported by
sufficient evidence to sustain the verdict rendered.
State v. Poellinger, 153
Wis. 2d 493, 507-08, 451 N.W.2d 752 (1990).
¶15. Second, Scott bases his argument not on reason, but on specious
speculation. Is it possible that Scott worked for the company that sold the computer dock?
Is it possible that during the course of such employment he touched this particular computer
dock, and that his fingerprint survived through delivery and use? Is it possible that Scott, for
some unknown reason, harboring no intention to steal, walked into the Kubin-Nicholson
building despite its lack of any retail or other public function? And is it possible that, after
the Kubin-Nicholson employees departed, Scott happened upon the computer and only
then decided to take it? Granted, these are all possibilities; none, however, is
reasonable. See Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772,
791, 541 N.W.2d 203 (Ct. App. 1995) (trier of fact must not base findings on conjecture or
speculation).
¶16. Here, Scott maintains that the State's evidence consisted of nothing more
than his fingerprint and, he contends, that is not enough. We need not decide, however,
whether fingerprint evidence, standing alone, would be sufficient to survive a motion to
dismiss because, as the trial court pointed out, in this case the State's evidence established
much more. It demonstrated that Scott had no business in the building, either as an
employee of Kubin-Nicholson or of a subcontractor hired to clean its offices. It
demonstrated that the Kubin-Nicholson offices were private, permitting no casual entry by
Scott or anyone else. It demonstrated that the burglary and theft were committed outside
regular business hours, logically implying that any unauthorized person entering the building
at that time was doing so with the intent to steal. Thus, the State's evidence directly led to
the reasonable inference that Scott committed the burglary. Based solely on the State's
evidence, the trial court correctly denied Scott's motion to dismiss.
II. IMPEACHMENT OF DEFENSE WITNESS / SENTENCES
AND PAROLE ELIGIBILITY
¶17. The defense called one witness-Vincent Lewis, who knew Scott because
Scott had dated the daughter of the woman with whom Lewis had had a relationship. Lewis
testified that he had committed burglaries at the Kubin-Nicholson building several times
before. He said that on July 8, 1996, he happened to meet Scott at a gas station, asked him
for a ride back to work where he had to pick up something, asked Scott for help moving a
desk in order to take the lap-top computer, and calmly carried away the computer while
giving Scott the impression that he worked at Kubin-Nicholson and was taking the computer
from his own office to work at home. Lewis testified that he later sold the lap-top to a
stranger for $800.
¶18. Lewis maintained that Scott simply had helped him without realizing that
they were "ripping off the lap-top computer." Lewis explained that he left no
fingerprints because, as he testified, "what I touched, I took." Declaring that he
alone had removed the computer from the dock, however, Lewis could not explain how
Scott's fingerprint got on the desk dock.
¶19. Lewis testified that he had come forward to admit the burglary and theft
despite knowing that he could be prosecuted for the crimes. He explained: "I don't
feel that [Scott] should be punished for something that I did, for something that he did not
know nothing about." He claimed his testimony was motivated "[m]ostly [by] the
conscience."
¶20. The State suggested that something other than conscience motivated
Lewis. Not only did Lewis know Scott through the women they had been dating, but
approximately seven months before Scott's trial, Lewis had been sentenced for three
crimes-to consecutive prison terms of life, with a parole eligibility date in 2057, forty years,
and ten years. The State sought to impeach Lewis not only with the fact of his numerous
prior convictions,5 but also with
his sentences and parole eligibility date. As the trial court observed, Lewis's sentences and
parole eligibility date were relevant to his "motive for lying" because "he
has nothing to lose ... if he were to admit this burglary and theft[;] he's not getting out of
the prison system anyway, so he would suffer no loss." Objecting, the defense
conceded that the information "may be ... relevant" but argued that "it
would be unduly prejudicial." The trial court overruled the objection,
explaining:
[T]he information is relevant.
Its probative value as to the credibility of this particular witness is substantial.
... [I]t's a reasonable conclusion that the jury may draw from a life sentence that
this witness has nothing to lose and, therefore, can make any statement that he wishes and
claim to be the person who committed any crime because there is no consequence for him.
And I think that's relevant. I don't believe that any prejudice outweighs that probative value
under these particular circumstances.
We agree.
¶21. A trial court has discretion to determine the proper scope of
cross-examination to impeach a witness. See Rogers v. State, 93 Wis. 2d
682, 689, 287 N.W.2d 774 (1980). Moreover, as the supreme court has emphasized:
"The bias or prejudice of a witness is not a collateral issue and extrinsic evidence may
be used to prove that a witness has a motive to testify falsely. The extent of the inquiry with
respect to bias is a matter within the discretion of the trial court." State v.
Williamson, 84 Wis. 2d 370, 383, 267 N.W.2d 337 (1978) (citation omitted).
We will not reverse a trial court's discretionary decision to permit cross-examination to
expose a witness's possible motive to lie unless the court's decision "represents a
prejudicial [erroneous exercise] of discretion." State v. Lindh, 161
Wis. 2d 324, 348-49, 468 N.W.2d 168 (1991), reversed sub nom. Lindh v.
Murphy, 521 U.S. 320 (1997).
¶22. On appeal, Scott argues: (1) evidence of Lewis's sentences and parole
eligibility date was not "other acts" evidence under Wis. Stat. §904.04(2)
(1997-98),6 and, therefore, was
inadmissible "character" evidence; (2) the evidence was inadmissible under Wis.
Stat. §906.09, because it went beyond the fact and number of convictions; (3) the
evidence was not relevant because it did not help to prove any element of theft or burglary;
and (4) even if relevant, the probative value of the evidence was substantially outweighed by
the danger of unfair prejudice.
¶23. The State specifically disclaims any contention that the evidence was
admissible under Wis. Stat. §904.04(2), or Wis Stat. §906.09. Further, as the
State points out, Scott did not object on the basis of relevancy; as noted, he conceded that the
evidence "may be ... relevant." See State v. Petty, 201 Wis.
2d 337, 347, 548 N.W.2d 817 (1996) (equitable doctrine of judicial estoppel "precludes
a party from asserting a position in a legal proceeding and then subsequently asserting an
inconsistent position"). Thus, we focus on whether, as Scott has consistently
maintained, the probative value was substantially outweighed by the danger of unfair
prejudice.
¶24. Wisconsin Stat. §904.03, provides, in part: "Although
relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice." Scott argues that evidence of Lewis's lengthy sentences
and parole eligibility was unfairly prejudicial because it destroyed Lewis's credibility. Scott
contends that the evidence "create[d] an inference that because Lewis was sentenced to
a long period in [prison], he [was] a bad person, who should not ... be believed." He
maintains that "[o]nce the State elicited the testimony that Lewis was a life prisoner,
the jury had to have viewed Lewis in a much different light."
¶25. Essentially, the State agrees-that is, the State also surmises that the
jury would indeed "view[] Lewis in a much different light" once it understood his
relationship with Scott in combination with his no-risk status. But the State insists that this
was fair. As the State argues:
Evidence of Lewis' lengthy incarceration
was highly probative because it provided an explanation for why Lewis could take the blame
for the burglary and theft without fear of any real, meaningful repercussions. This evidence
was used by the prosecution for the very limited purpose of attacking the credibility of
Lewis' specific testimony admitting commission of the crimes charged against Scott because
he risked nothing by his admission.
The State is correct.
¶26. Lewis claimed to be motivated by "conscience," and declared
his willingness to confess to these crimes despite knowing that, as a result of his testimony,
he could be prosecuted for them. Based on Lewis's account of his motives, the jury had a
significantly incomplete basis on which to evaluate his credibility. After all, ordinarily, a
witness's confession exculpating a defendant would be contrary to the witness's penal
interest, see State v. Lenarchick, 74 Wis. 2d 425, 429 n.1, 247 N.W.2d
80 (1976), and, therefore, could enhance the witness's credibility. But here,
where no practical, penal consequence could accrue, a jury would be
misled were it not informed of the witness's no-risk status.
¶27. Scott insists, nevertheless, that State v. Trudeau, 157
Wis. 2d 51, 458 N.W.2d 383 (Ct. App. 1990), establishes a "prohibition of further
inquiry into the nature of the crime [that] also includes the sentence received." He
misreads Trudeau. There, we considered only whether, under Wis. Stat.
§906.09(1),7 a defendant
could be impeached with the fact and number of "prior criminal acts to which he had
pled guilty, but [for which he] had not yet been sentenced." See
Trudeau, 157 Wis. 2d at 52. We held that such convictions were admissible
for impeachment. Id. Indeed, we observed that §906.09(1)
"is focused on the prior act, not the criminal sentence resulting from it" and,
further, "the criminal act and not the subsequent punishment underlies the theory that
prior convictions affect credibility." Id. at 54.
¶28. Thus, while clearly distinguishable, Trudeau, if
anything, supports the State's position by segmenting a conviction and a sentence for
purposes of analysis under Wis. Stat. §906.09(1). Similarly, we note that State
v. Rutchik, 116 Wis. 2d 61, 341 N.W.2d 639 (1984), a decision on which
Scott also heavily relies, reiterates that, once a witness is asked whether he or she "has
ever been convicted of a crime and if so how many times," §906.09 permits
"[n]o further inquiry into the nature and circumstances of the
crimes." Rutchik, 116 Wis. 2d at 76 (emphasis added).
Here, the State did not inquire into "the nature and circumstances" of Lewis's
crimes but, instead, exposed his sentences and parole eligibility in order to directly address
his possible motive to confess, without risk.
¶29. A trial, at best, is a search for the truth. See State v.
Reid, 166 Wis. 2d 139, 146, 479 N.W.2d 572 (Ct. App. 1991) (search for
truth is highest priority at trial). In this case, the trial court's discretionary determination
reasonably expanded the jury's opportunity to evaluate the credibility of a critical witness,
thus enhancing the jury's chance to discover the truth.
By the Court.-Judgment and order affirmed.
Recommended for publication in the official reports.
1 As will be apparent from the quoted portions of the record, Scott, moving to dismiss at
trial, drew no distinction between the two charges and articulated no basis for his motion.
At sentencing, defense counsel commented that he believed that at the end of the State's
case-in-chief, the evidence did not establish a "sufficient tie-in of Mr. Scott to the
situation." On appeal, Scott's arguments, with the exception of a brief reference to the
theft charge in his reply brief, relate only to whether the State's evidence, introduced in its
case-in-chief, was sufficient to establish that he intentionally entered a building without
consent, and that he did so with the intent to steal. See Wis JI-Criminal 1421
("Burglary ... is committed by one who intentionally enters a building without the
consent of the person in lawful possession and with intent to steal.").
2 Both offenses were charged as party to a crime because, as the prosecutor explained in his
opening statement, the State did not have:
any evidence to show if anybody was with
[Scott] .... So when the State has a situation where it does not know if the person who left
the fingerprint had help or not or was with others, then the party to a crime is charged
because that includes either being the direct actor or somebody who was
involved.
3 Scott acknowledges the probative value of the defense evidence and concedes
that "if all evidence is reviewed there is sufficient evidence to support the
burglary conviction."
4 As argued in Scott's brief to this court:
This is particularly true [in] Scott's case.
He was charged with theft and burglary. The evidence for burglary was but a single
fingerprint found on a movable dock station. If the motion to dismiss would have been
decided before Scott began his defense, he would have known that both the burglary charge
and the theft charge were pending. Perhaps Scott, believing that this single fingerprint could
not prove his intent as he entered the building, felt that the burglary charge would be
dismissed, and that he should offer a defense for the theft. However, if Scott would [have]
known that the burglary charge was not dismissed, perhaps he would have taken the advice
of his counsel and not have called Lewis. However, at the time he made his decision to call
Lewis, he did not know whether he had the issue regarding his motion to dismiss to preserve
for appeal.
5 Lewis admitted to between six and eight convictions in Florida, Illinois, and Wisconsin.
As Scott points out, the trial court failed to hold a hearing prior to Lewis testifying to
determine the exact number of convictions, as required by Wis. Stat. §906.09(3)
(1997-98). See Gyrion v. Bauer, 132 Wis. 2d 434, 438, 393 N.W.2d 107
(Ct. App. 1986) ("[W]hile a witness may be cross-examined regarding prior
convictions, he may not be so cross-examined until there has been a hearing on the
admissibility of the prior convictions."). Scott did not object, however, and, on
appeal, he offers no argument that the number of convictions Lewis admitted was inaccurate
or that, somehow, any prejudice resulted from the failure to hold a hearing.
6 All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise
noted.
7 Wisconsin Stat. §906.09 provides:
Impeachment by evidence of conviction
of crime or adjudication of delinquency. (1) General rule. For the purpose of
attacking the credibility of a witness, evidence that the witness has been convicted of a crime
or adjudicated delinquent is admissible. The party cross-examining the witness is not
concluded by the witness's answer.
(2) Exclusion. Evidence of a conviction of a crime or an
adjudication of delinquency may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice.
(3) Admissibility of conviction or adjudication. No question inquiring with
respect to a conviction of a crime or an adjudication of delinquency, nor introduction of
evidence with respect thereto, shall be permitted until the judge determines pursuant to s.
901.04 whether the evidence should be excluded.
(5) [sic] Pendency of appeal. The pendency of an appeal therefrom
does not render evidence of a conviction or a delinquency adjudication inadmissible.
Evidence of the pendency of an appeal is
admissible.
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