State v. Gary M.B.

N. PATRICK CROOKS, J.

¶ 37. (concurring). I agree with the majority opinion that the court of appeals' decision to uphold the conviction of Gary M.B should be affirmed. However, I write to express my *89opinion that this case is more appropriately decided under a harmless error analysis.

¶ 38. The majority uses a balancing test to determine if the circuit court erred in allowing Gary M.B.'s three older convictions to be admitted into evidence, along with two more recent ones. See majority op., ¶ 19. The majority concludes that in admitting the evidence, the circuit court correctly considered the frequency of Gary's convictions and the possibility that admitting the evidence would cause unfair prejudice, which would substantially outweigh the probative value. See Majority op., ¶ 31. Additionally, the majority reasons that the burden is on the defense counsel to state the relevant factors of the balancing test and discuss why these factors would cause such unfair prejudice. See majority op., ¶ 30. The majority also contends that error will not be predicated upon the circuit court's failure to consider factors not brought to its attention by the defense counsel. Id.

¶ 39. Under a harmless error analysis, an "error is harmless if it is 'clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" State v. Harvey, 2002 WI 93, ¶¶ 49, 51, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). While a reviewing court may initially focus on the error itself when conducting a harmless error analysis, the error should be evaluated in the context of the entire circumstances that are present. State v. Tucker, 2003 WI 12, ¶ 26, 259 Wis. 2d 484, 657 N.W.2d 374. Thus, an error that has some probative value, but is not a significant part of the case, may be deemed harmless. See State v. Weed, 2003 WI 85, ¶ 31, 263 Wis. 2d 434, 666 N.W.2d 485.

¶ 40. Applying a harmless error analysis to the case at hand, it is evident that any error in admitting *90evidence of Gary M.B.'s five prior convictions, as opposed to the two defense counsel argued for, was not outcome determinative. In its opinion in this case, the court of appeals stated, "once a jury is apprised of a witness's past criminal conduct, evidence of the exact number of the witness's prior convictions will rarely be outcome determinative." State v. Gary M.B., 2003 WI App 72, ¶ 34, 261 Wis. 2d 811, ¶ 34. I agree with that court's analysis. Gary's credibility would have been questioned by the jury based on these two convictions alone. The jurors would have doubted Gary's credibility, based on his prior criminal history and would have reached the same verdict. The difference between two convictions and five is not significant enough to have affected the jury's verdict. State v. Bowie, 92 Wis. 2d 192, 204-06, 284 N.W.2d 613 (1979).

¶ 41. In Bowie, we stated that the jury is not given special instructions to consider the number of convictions. Id. at 205. In the case at hand, the State rarely made mention of the fact that Gary had five prior convictions. This suggests that the exact number of convictions played an insignificant role in the State's case. I agree with the court of appeals that the circuit court's cautionary instruction to the jury focused the jurors' attention on Gary's past criminal conduct, not the exact number of convictions. GaryM.B., 261 Wis. 2d 811, ¶ 34. The majority spends a good deal of time articulating a balancing test that it claims the circuit judge implicitly applied in this case. A harmless error analysis provides a much more straightforward, and in my opinion more persuasive, framework and would yield the same result.

¶ 42. In this case, while not conceding that there was error, consistent with the harmless error rule enunciated in the Neder and Harvey decisions, "it is *91clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error" alleged. State v. Harvey, 2002 WI 93, ¶¶ 49, 51, 254 Wis. 2d 442, 647 N.W.2d 189.

¶ 43. For the foregoing reasons I respectfully concur.