Jan 21, 2009 –A jury in a stalking trial is permitted to learn of a defendant’s prior conviction for a violent crime because it is an element of that crime and is not unfairly prejudicial to the defendant, the Wisconsin Supreme Court held on Jan. 21.

Elements of stalking as a Class I felony are set out in Wis. Stat. § 940.32(2). Subpart (2m) elevates the crime to a Class H felony upon establishment one of five circumstances, including defendant’s previous conviction for a violent crime.

In State v. Warbelton, 2009 WI 6, the court determined that the Legislature intended a showing of a prior violent crime to be more than the basis for an enhancement of the penalty for stalking, but rather an element of a greater felony offense.

Prior to trial for stalking and other criminal charges, Jerry Warbelton agreed to stipulate that he had a 1994 conviction falling within subpart (2m). The jury was informed of this but not of the nature of the crime.

When the court instructed the jury on the elements of felony stalking “with a previous conviction for a violent crime,” it directed the jury to accept this stipulated fact as conclusively proved. The jury found Warbelton guilty, and the court sentenced him for stalking to three years imprisonment and three years of extended supervision.

On appeal, Warbelton argued that the elements of the substantive crime are set forth in § 940.32(2) and that (2m) is merely a penalty enhancer. The fact constituting a penalty enhancer is not properly admitted into evidence. As such, Warbelton said the trial court erred in admitting evidence of his previous conviction for a violent crime.

Statutory analysis

The supreme court observed that unless otherwise designated by the Legislature, a fact relevant to a conviction is presumed to be an essential element of a crime.

The court then found that the focus on the nature of the prior crime -- rather than the simple fact of a prior conviction -- demonstrated that the Legislature intended to define stalking as an aggravated crime when the perpetrator has a history of violent behavior.

Moreover, a prior conviction for a violent crime is sufficient by itself to subject a defendant to an entirely different class of felony, indicating the Legislature intended a prior conviction to be an element of the offense rather than an enhancer, the court said.

The court also noted structural differences between the habitual criminality law and the stalking statute. Specifically, the former defines penalty enhancers rather than substantive elements whereas the latter sets up three classes of stalking with increasing punishments.

Prejudice analysis

Warbelton argued that if the court concluded the prior conviction was an element of the crime, the probative value of the stipulation was outweighed by the risk of unfair prejudice and should not have been submitted to the jury.

The court was unpersuaded by Warbelton’s citation to State v. Alexander, 214 Wis. 2d 628 (1997), holding that a jury considering a charge of operating while intoxicated-third offense cannot learn of a stipulation to a defendant’s prior convictions. The Alexander court held that even if the stipulation did not disclose the nature of the convictions, jurors were likely to infer unfairly that the prior offenses were also for drunk driving and that the defendant’s current charge is part of a pattern of behavior.

In this case, the court concluded that the jury is unlikely to infer that because Warbelton was convicted of a prior violent crime, he was a stalker. The prior offense could be one of a number of violent offenses, the court reasoned. Additionally, the statute does not require multiple prior offenses so there is no risk that a jury will suspect a pattern of behavior, the court said.

Alex De Grand is the legal writer for the State Bar of Wisconsin.