State v. Gary M.B.

2004 WI 33, 676 N.W.2d 475, 270 Wis. 2d 62, 2004 Wisc. LEXIS 228

• Court: Wisconsin Supreme Court
• Decided: March 26, 2004
• Docket: 01-3393-CR
• Status: Published

Opinions

JON E WILCOX, J.

¶ 1. Petitioner, Gaiy M.B. (Gary), seeks a review of a published court of appeals decision, State v. Gary M.B., 2003 WI App 72, 261 Wis. 2d 811, 661 N.W.2d 435, which affirmed his convictions for three counts of first-degree sexual assault of a child in Grant County Circuit Court, Robert E VanDeHey, Judge.

I. ISSUES

¶ 2. Two issues are presented for review. First, Gary contends that the circuit court erred in admitting three of his five prior convictions for impeachment purposes under Wis. Stat. § 906.09 (1999-2000).¹ In addition, the State raises the issue of whether Gary strategically waived his objection to the admission of his prior convictions by preemptively introducing this evidence during his direct examination. We hold that Gary did not strategically waive his objection to the introduction of this evidence. Further, we hold that the circuit court did not err in admitting Gary’s prior convictions.

II. FACTUAL BACKGROUND

¶ 3. On June 23, 1999, the State filed a criminal complaint charging Gary with three counts of first-degree sexual assault of a child. The State alleged that Gary had sexual contact with a child under the age of 13 during the years 1995, 1996, and 1997. The alleged victim was the daughter of Gary's wife. The alleged incidents occurred inside the apartment where all three resided. Many of the alleged incidents occurred when other family members were present in the apartment. The allegations arose in 1998, when the victim was residing with her natural father, following the death of her mother.

¶ 4. Prior to trial, defense counsel filed a motion in limine, requesting "a hearing be held as to the number of convictions or adjudications of delinquencies that would be used as to all witnesses and as to the defendant." Defense counsel did not file a memorandum of law relating to Gary's prior convictions or those of any other witness.

¶ 5. Gary had previously been convicted of five crimes. In 1973 he was convicted of uttering in Maine and received one-year probation. In 1975 he was convicted of disorderly conduct in Maine and received a fine. In 1977 Gary was convicted of assault in Maine and received a 30-day suspended jail term and probation. Gary was also convicted of domestic abuse in Iowa during 1991 and received a fine. Finally, Gary had another conviction in Iowa during 1991 for domestic abuse with a penalty enhancement and received one-year probation.

¶ 6. During the motion in-limine hearing, defense counsel objected to the introduction of the three oldest convictions. The following colloquy took place:

Ms. Oliveto: Your Honor, we ask that the court not allow him to testify as to the convictions in the 1970's since it has been -'73, '75, and '77 — since it has been quite some time since those had occurred. I don't believe they would go towards truthfulness. I realize Wisconsin law doesn't have it but the federal law does. One is assault and the other disorderly conduct, and the bank check happened almost 20 years ago. We ask that the court not allow that to be admitted against him.

Mr. Everix: The consistent series of 73, 75, and 77, twice in '91 make it significant.

Court: The law generally in Wisconsin doesn't follow the federal law. There is no exclusion for convictions more than 10 years old. Some of these are 27 years, 25 years, 23 years. But to the extent that there is I guess a presumption in the statute and the statute allows for prior convictions to be brought in because it does say something about the person's credibility, I will allow it.

Thus, the court ruled that all five of Gary's prior convictions could be used for impeachment purposes.

¶ 7. During Gary's direct examination, defense counsel asked him if he had ever been convicted of a crime and how many times. Gary answered "yes" and "five times." The State never discussed the issue of Gary’s prior criminal record during the evidentiary phase of the trial. There was no physical evidence presented at trial regarding the allegations of sexual assault, and no witness actually observed the alleged assault. Simply put, this was a "he said, she said" case.

¶ 8. At closing argument, during rebuttal, the State brodght up the issue of Gary's prior convictions as they related to his credibility. The prosecutor cautioned "use it only in terms of whether or not he is credible, not in terms of whether something else happened." The circuit court also gave a limiting instruction to the jury before deliberation regarding Gary's prior convictions.² After three hours of deliberation, the jury informed the court that it was deadlocked. The court then read Jury Instruction 520,³ and 20 minutes later, the jury returned a verdict of guilty on all three counts.

III. PROCEDURAL POSTURE

¶ 9. Gary appealed, arguing that the circuit court improperly admitted three of his five prior convictions. The State argued that Gary had strategically waived any objection because the defense preemptively introduced the prior convictions. The court of appeals rejected the State's strategic waiver argument, relying on Vanlue v. State, 87 Wis. 2d 455, 275 N.W.2d 115 (Ct. App. 1978), rev'd on other grounds, 96 Wis. 2d 81, 291 N.W.2d 467 (1980).⁴ Gary M.B., 261 Wis. 2d 811, ¶¶ 12-13. The court reasoned that "a pre-trial ruling permitting the introduction of prior conviction evidence effectively forces the defendant to introduce the evidence preemptively, and the defendant's introduction of the evidence should not therefore constitute a waiver of his or her prior objection to its admissibility." Id., ¶ 18. In responding to the State's argument that the harm to Gary was too speculative to be considered on appeal because the State could have chosen not to introduce the number of prior convictions, the court ruled that it made no difference who introduced the evidence because "[o]nce the court ruled that all five convictions were admissible for impeachment purposes, it was reasonable for Gary to assume that the State would elicit the number of his convictions on cross-examination." Id., ¶ 21.

¶ 10. Regarding the admissibility of Gary's prior convictions, the court of appeals held that the circuit court erroneously exercised its discretion in failing to balance the probative value of the three oldest convictions to which Gary objected against the danger of unfair prejudice. Id., ¶ 27. Further, the court of appeals declined to independently review the record for evidence supporting the circuit court's ruling because "there were no evidentiary proceedings [ land only very brief argument[ 1 on the issue . ..[,]" such that it could not conclude that the circuit court would have reached the same result if the circuit court had engaged in the balancing test. Id. However, the court- of appeals nonetheless affirmed the circuit court after utilizing a harmless-error analysis. Id., ¶¶ 28, 40.

IV ANALYSIS

A. Strategic Waiver

¶ 11. Under the doctrine of strategic waiver, also known as invited error, "[a] defendant cannot create his own error by deliberate choice of strategy and then ask to receive benefit from that error on appeal." Vanlue, 87 Wis. 2d at 460-61. Thus, whether a defendant has strategically waived an objection is a question of law subject to de novo review. See State v. Ruud, 41 Wis. 2d 720, 726, 165 N.W.2d 153 (1969). One commentator has remarked that Wisconsin's strategic waiver rule:

prevents a party from counterattacking with otherwise inadmissible evidence when he has deliberately chosen not to object with the aim of using the otherwise inadmissible evidence to his own advantage... . The flip side of this coin is that a party who does object to the use of inadmissible evidence by his opponent does not forgo his right to claim error on appeal merely because he makes an effort to use the same or similar evidence in a defensive fashion after he has failed in his effort to exclude the evidence.

1 Wigmore, Evidence § 15, at 733 n.3 (Tiller's rev. 1983)(emphasis in original) (citing Vanlue, 87 Wis. 2d at 460-62). Thus, there is a distinction between a party's use of objected to evidence for his own benefit and the use of such evidence purely for defensive purposes. Id., § 18, at 836-38 & n.37 (citing Vanlue, 87 Wis. 2d at 460-62).

¶ 12. In Ruud, 41 Wis. 2d at 723, the defendant argued on appeal that certain statements given to police were not preceded by an adequate Miranda⁵ warning. However, the defense had entered into a stipulation with the State regarding the admissibility of the statements at trial. Ruud, 41 Wis. 2d at 724. On appeal, the court noted that the defendant had made a "knowing election between alternative courses of action. Instead of making any attempt to attack the validity of the statement the defense, as a matter of strategy, chose to use it to support his theory of the case." Id. at 726. In such a circumstance, a defendant is estopped from claiming error. Id.

¶ 13. In contrast, in Vanlue, 87 Wis. 2d at 457-58, the defendant objected to the circuit court's ruling allowing the State to cross-examine him regarding the nature of two previous convictions. After his objection was overruled, the defendant introduced evidence relating to the nature of his prior offenses during his case-in-chief. Id. at 460. The State claimed that the defendant had strategically waived his objection because he made a knowing election to introduce the evidence in an attempt to lessen the prejudice against him. Id. at 460-61. In rejecting the State's argument, the court of appeals distinguished Ruud, id. at 461, and reasoned:

When the defendant's objection was overruled, the evidence was going to be placed before the jury by the State. In order to lessen the prejudicial impact the evidence would have on the jury, the defense counsel had no choice but to offer the evidence himself. To decide whether to put the damaging evidence in or let the State put it in amounted to no election at all. There was no way this evidence could be used favorably by the defendant.

Id. at 462. The court concluded, "[s]ince Vanlue's counsel objected... it made no difference who placed the evidence before the jury. . . . There was no strategic waiver." Id.

¶ 14. Vanlue is directly on point with the present case. However, the State argues that we should overrule the court of appeals' holding in Vanlue regarding strategic waiver in light of Ohler v. United States, 529 U.S. 753 (2000); and State v. Frank, 2002 WI App 31, 250 Wis. 2d 95, 640 N.W.2d 198.

¶ 15. In Ohler, 529 U.S. at 755, the United States Supreme Court addressed whether, under federal law, a defendant waives her right to challenge an in-limine ruling, allowing the use.of prior crimes for impeachment purposes, when the defendant introduces the evidence during her direct examination. The Court utilized the rule that when a party objects to evidence of a certain fact and then introduces evidence of that fact through its own witness, the party has waived its objection. Id. The Court held that when a defendant objects to an in-limine ruling and that objection is overruled, the defendant's preemptive introduction of the evidence at trial constitutes waiver. Id. at 760. The court reasoned that because both parties must make tough choices at trial, there is nothing unfair about putting a party to its choice, and any harm flowing from the in-limine ruling would be wholly speculative after the defendant preemptively introduced the evidence. Id. at 757-59.

¶ 16. In Frank, 250 Wis. 2d 95, ¶¶ 1-3, a decision subsequent to Ohler, the defendant, charged with sexual contact with a child under the age of 13, objected to the State's in-limine motion to introduce other acts evidence. The defendant thereafter entered into a Wallerman⁶ stipulation, whereby he conceded intent and motive to avoid introduction of the other acts evidence. Id., ¶¶ 3-6. On appeal the defendant challenged the circuit court's ruling on the in-limine motion. Id., ¶ 1. The court of appeals held that the defendant could not challenge the in-limine ruling because, due to the Wallerman stipulation, the other acts evidence was never introduced. Id., ¶ 15. In so holding, the court of appeals relied heavily upon the Court's rationale in Ohler that a defendant cannot claim error based on a choice made at trial. Id., ¶¶ 13-15. However, the court's reliance on Ohler in Frank was not necessary to its holding. The court of appeals correctly stated that error cannot be assigned to an in-limine ruling when the evidence is never introduced at trial. Frank, 250 Wis. 2d 95, ¶ 9.

¶ 17. This court is not bound to follow Ohler. As the court of appeals noted in the instant case, Wisconsin courts are not bound by decisions of the United States Supreme Court when federal law does not govern the dispute. Gary M.B., 261 Wis. 2d 811, ¶ 11 (citing State v. King, 205 Wis. 2d 81, 93, 555 N.W.2d 189 (Ct. App. 1996)). Further, while decisions of the Supreme Court interpreting the Federal Rules of Evidence may be persuasive authority, they are not binding on this court. State v. Blalock, 150 Wis. 2d 688, 702, 442 N.W.2d 514 (Ct. App. 1989). Ohler involved a judicial formulation of the strategic waiver rule to be used in federal courts; the Court's ruling did not involve a question of federal constitutional law or a construction of the Federal Rules of Evidence. The Court's formulation of the strategic waiver rule in Ohler is contrary to the approach Wisconsin courts have utilized. Finally, as the dissent recognized in Ohler, the majority's holding is against the great weight of academic authority. See Ohler, 529 U.S. at 762-63 (Souter, J., dissenting) (collecting authority).

¶ 18. The present case is distinguishable from both Ruud and Frank. Unlike the defendant in Ruud, Gary did object to the use of the disputed evidence. Further, Gary did not introduce the evidence himself in order to further his theory of the case. Unlike the defendant in Frank, Gary was not successful in preventing the jury from hearing the objectionable testimony. Gary did nothing more than follow what the court of appeals recognized as " 'the usual trial strategy of raising the issue of defendant's prior convictions on the premise that this approach is less damaging than if the prosecutor raises the issue first.'" Gary M.B., 261 Wis. 2d 811, ¶ 22 (emphasis added, quoting State v. Pitsch, 124 Wis. 2d 628, 631, 369 N.W.2d 711 (1985)). Therefore, we conclude that the court of appeals' formulation of the strategic waiver doctrine in Vanlue was correct and hold that under Wisconsin law, a defendant does not commit strategic waiver when he unsuccessfully objects to the introduction of evidence and preemptively introduces the evidence in an attempt to mitigate its prejudicial effect.

B. Admission of Prior Convictions

¶ 19. It is within the discretion of the circuit court to determine whether to admit evidence of prior convictions for impeachment purposes under Wis. Stat. § 906.09. State v. Kruzycki, 192 Wis. 2d 509, 525, 531 N.W.2d 429 (Ct. App. 1995). This court will affirm a circuit court decision to admit evidence of prior convictions if the circuit court properly exercised its discretion, regardless of whether we would have made the same ruling. Id. In general, "[a] court properly exercises its discretion when it correctly applies accepted legal standards to the facts of record and uses a rational process to reach a reasonable conclusion." Id. We conclude that although the circuit court did not explicitly set forth its reasoning on the record, it implicitly balanced the probative value of the evidence against the danger of unfair prejudice and thus properly exercised its discretion in admitting the prior convictions.

¶ 20. Wisconsin Stat. § 906.09 governs the admission of prior criminal convictions for the purposes of impeaching a witness' character for truthfulness.⁷ Wisconsin Stat. § 906.09 provides, in pertinent part:

(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.

¶ 21. Under § 906.09, any prior conviction is relevant to a witness' character for truthfulness because Wisconsin law presumes that criminals as a class are less truthful than persons who have not been convicted of a crime. Kruzycki, 192 Wis. 2d at 524; 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 609.1, at 418 (2d ed. 2001).⁸ The exclusion in § 906.09(2) is "a particularized application" of the balancing test in Wis. Stat. § 904.03. Judicial Council Committee Note, 1974, § 906.09, Stats. In considering whether a conviction should be excluded under the balancing test, the circuit court should consider:

whether from the lapse of time since the conviction, the rehabilitation or pardon of the person convicted, the gravity of the crime, the involvement of dishonesty or false statement in the crime . . ., the probative value of the evidence of the crime is substantially outweighed by the danger of undue prejudice.

Judicial Council Committee Note, 1974, § 906.09, Stats.⁹ See also State v. Kuntz, 160 Wis. 2d 722, 752, 467 N.W.2d 531 (1991); Kruzycki, 192 Wis. 2d at 525. Further, when there are multiple prior convictions, a circuit court should also consider the frequency of the convictions. See Nicholas v. State, 49 Wis. 2d 683, 688, 183 N.W.2d 11 (1971)(noting that "the more often one has been convicted, the less truthful he is presumed to be").¹⁰

¶ 22. Gary contends that the court of appeals correctly determined that the circuit court failed to exercise its discretion in admitting three of his previous convictions because it failed to perform the balancing test. We disagree. The first question in reviewing a discretionary determination is whether the circuit court applied the correct legal standard. As noted by the court in Kuntz, 160 Wis. 2d at 750, "[t]he Wisconsin Rules of Evidence, as a general rule, permit evidence of conviction of a crime to attack the credibility of a witness." Unlike Wis. Stat. § 904.04, which presumes other act evidence is inadmissible, subject to certain exceptions, the circuit court was correct in stating that § 906.09 presumes that evidence of prior convictions is admissible to attack a witness' credibility.

¶ 23. Further, the circuit court was correct that under Wisconsin law, all prior convictions are relevant to a witness' character for truthfulness. See State v. Smith, 203 Wis. 2d 288, 294-95, 553 N.W.2d 824 (Ct. App. 1996). Under Wisconsin law:

The crimes need not have any relevance to a person's character for truthfulness[, and] it is not necessary to directly link the nature of the offense with the character trait for truthfulness; the link is provided by the fact of conviction [because] Wisconsin law ... embodies the idea that persons who have been convicted of crimes are as a class less worthy of belief than those who have no criminal record.

7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 609.1, at 417-18 (2d ed. 2001). Finally, the circuit court was correct that Wisconsin law does not follow the federal rule, which bars convictions more than ten years old. See Judicial Council Committee Note, 1974, § 906.09, Stats. In short, this case is not one, such as Smith, 203 Wis. 2d at 296-98, where the circuit court misapplied the law.

¶ 24. As the circuit court utilized the correct legal standards, the next inquiry then is whether the circuit court employed a rational process to reach a reasonable conclusion in conducting the balancing test. We note that the trial record is admittedly sparse. The circuit court's decision constitutes no more than four sentences. However, defense counsel's motion in limine is equally sparse. The motion merely asked for a hearing to determine the number of prior convictions to be admitted against Gary. The motion did not specifically identify what was the danger of unfair prejudice with regard to each conviction and why the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. At the hearing, defense counsel objected only on the grounds that three of the convictions were old and did not bear on truthfulness. We review the circuit court's determination in light of the actual objections defense counsel raised. See State v. Pharr, 115 Wis. 2d 334, 347, 340 N.W.2d 498 (1983) (noting that "defense counsel failed to specify the nature of the unfair prejudice or to pursue the matter further when the court made its ruling, and this contributed to the inadequacy of the record").¹¹

¶ 25. While the Kruzycki decision presents an example of a proper exercise of discretion under § 906.09, there are few published cases that provide guidance as to what constitutes an improper exercise of discretion under § 906.09. However, as the exclusion under § 906.09 is a "particularized application" of § 904.03, we may look to decisions involving the latter statute for guidance.

¶ 26. We begin by noting the circuit court's failure to use the words "balancing," "probative value," or "prejudicial effect" is not determinative.

The fact that the trial court did not expressly state the name of sec. 904.03, Stats., or use the words "weighing" or "balancing" or some similar word or words to describe its analysis, does not mean that the court failed to exercise its discretion. We do not recognize such a "magic words" argument.

State v. Lindh, 161 Wis. 2d 324, 361 n.14, 468 N.W.2d 168 (1991) (noting that the court's failure to use these words, at most, constitutes a failure to set forth its reasoning). Further, in conducting our analysis, if a circuit court does not explicitly engage in balancing on the record, an appellate court can nevertheless affirm, if the record indicates that balancing is implicit from the circuit court's determination. See Lindh, 161 Wis. 2d at 361 n.14; State v. Rutchik, 116 Wis. 2d 61, 74, 341 (1984); Pharr, 115 Wis. 2d at 347; State v. Locke, 177 Wis. 2d 590, 598-99, 502 N.W.2d 891 (Ct. App. 1993).¹²

¶ 27. Here, defense counsel objected to the three oldest convictions on the grounds that they were stale and bore no relation to the witness' credibility. The prosecutor responded, "[t]he consistent series of'73, '75, and '77, twice in '91 make it significant." As noted supra, when multiple convictions are present, part of the balancing test involves consideration of the repetitive nature of the convictions over a period of time. While the circuit court did not expressly agree with the prosecutor's argument on the record, its decision exhibits implicit agreement. As the court in Lindh noted, when examining a circuit court's exercise of discretion, "the appellate court should conclude that the trial court relied on the considerations expressed by the prosecutor as grounds for the court's ruling, where the court obviously acquiesced in the prosecutor's explanation, but did not expressly articulate all of its reasoning itself." Lindh, 161 Wis. 2d at 364. While Gary, in his briefs before this court, makes a lengthy argument that his prior convictions do not constitute a "pattern," counsel never made this argument to the circuit court during the hearing on this matter; nor did he argue that Gary had been "rehabilitated" with respect to the three convictions from the 1970s.¹³

¶ 28. We also note that, contrary to defense counsel's statement at trial, Gary's 1973 uttering conviction is a crime that does, in fact, involve dishonesty. While Gary is correct that "petty crimes [such as disorderly conduct] seemingly lose whatever value they possess in a much shorter period of time[,]" 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 609.1, at 419 (2d ed. 2001), it is equally true that "[w]here the witness has multiple convictions, the gap between the date of the testimony and the oldest offense on the record should be assessed in light of the intervening crimes, which belie an inference that the individual has 'changed.'" Id. Thus, Gary's 1973 conviction for uttering, which bears directly on truthfulness, must also be assessed in light of his subsequent 1975 disorderly conduct conviction, 1977 assault conviction, and two convictions for domestic abuse in 1991. We therefore conclude that the circuit court's decision displays that the court adopted the prosecutor's argument that "[t]he consistent series of '73, '75, and '77, twice in '91 make it significant."

¶ 29. Moreover, even if the circuit court did not expressly state on the record that it considered the possible danger of unfair prejudice, the fact that the court gave a limiting instruction "can reveal that the trial court considered the possibly prejudicial nature" of such evidence and was seeking to ensure that it was properly utilized by the jury in reaching its verdict." State v. Johnson, 121 Wis. 2d 237, 253-54, 358 N.W.2d (Ct. App. 1984)(finding the circuit court's use of a limiting instruction was sufficient to conclude that the circuit court had implicitly performed the § 904.03 balancing test). See also Pharr, 115 Wis. 2d at 348 (noting that the use of a cautionary instruction demonstrates "that the trial court had considered the possibly prejudicial nature of [such] evidence and was seeking to ensure that the evidence was used properly by the jury in reaching its verdict"). The circuit court in the instant case did, in fact, issue a limiting instruction to the jury regarding the evidence of prior convictions.¹⁴ Thus, we can conclude that in admitting the evidence, the circuit court considered the danger of unfair prejudice of the evidence. Therefore, we conclude that the circuit court, considering the two factors objected to by the defendant, implicitly balanced the probative value of the convictions against the danger of unfair prejudice.

¶ 30. While there is no evidence that the circuit court considered the other factors that defense counsel did not mention, we will not find error predicated upon the circuit court's failure to address factors not brought to its attention by defense counsel. The court in Kuntz, 160 Wis. 2d at 753, stated that in conducting the § 906.09 balancing test, the circuit court need not consider factors that do not apply to the case.¹⁵ As noted supra, § 906.09 presumes evidence of prior convictions is admissible, and it is not necessary to link the crime to the witness' character trait for truthfulness. Thus, the onus is on defense counsel to articulate the relevant balancing test factors and discuss why the probative value of the particular convictions is substantially outweighed by the danger of unfair prejudice. See Whitty v. State, 34 Wis. 2d 278, 290, 149 N.W.2d 557 (1967) (noting that "[t]he primary duty of trying a lawsuit is upon trial counsel, not the trial judge"). Here, the circuit court did consider the factors articulated by defense counsel.

¶ 31. Both of the dissents in their harmless error analyses provide an accurate summary of why the admission of Gary's five prior convictions was prejudicial to his case. However, before "prejudice" can be considered in the context of a harmless error analysis, the circuit court must first be found to have erred in admitting the evidence. To that extent, prior convictions cannot be excluded merely because they are prejudicial; rather, their probative value must be "substantially outweighed by the danger of unfair prejudice," Wis. Stat. § 906.09(2). As noted supra, the exclusion in § 906.09(2) is "a particularized application" of the balancing test in § 904.03. As this court has previously stated in the context of § 904.03:

Unfair prejudice results when the proffered evidence has a tendency to influence the outcome by improper means or if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case.

State v. Sullivan, 216 Wis. 2d 768, 789-90, 576 N.W.2d 30 (1998).

¶ 32. Neither dissent has explained how allowing Gary to state he had five prior convictions rather than two unfairly prejudiced his case or how that unfair prejudice substantially outweighed the probative value of the extra convictions, such that the failure to exclude these three convictions would constitute error in the first instance. Here, the jury was not provided with any additional information regarding Gary's prior convictions; they were not told the nature of his crimes or even when they occurred. Unlike gruesome photos from the scene of a crime, a witness stating the number five cannot possibly arouse the jury's sense of horror, provoke its instinct to punish, or appeal to its sympathies. The only "unfair prejudice" that could arguably result is that the jury may conclude the defendant is guilty because he is a "criminal." See 7 Daniel Blinka, Wisconsin Practice: Wisconsin Evidence § 609.1, at 418 (2d ed. 2001).

¶ 33. However, while the prosecutor in closing argument did stress Gary's prior convictions in relation to his credibility, he specifically told the jury that the prior convictions could be used only to assess Gary's credibility. More importantly, the circuit court gave a precise limiting instruction cautioning the jury that Gary's prior convictions could be used only to assess his credibility and could not be used to determine he committed the charged offenses. When a circuit court gives a proper cautionary instruction, appellate courts presume that the jury followed that instruction and acted in accordance with the law. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990); State v. Pitsch, 124 Wis. 2d 628, 644 n.8, 369 N.W.2d 711 (1985); State v. Leach, 124 Wis. 2d 648, 673, 370 N.W.2d 240 (1985); State v. Adams, 221 Wis. 2d 1, 12-13, 584 N.W.2d 695 (Ct. App. 1998).

¶ 34. As noted supra, the trial in this case was essentially a swearing contest, pitting the credibility of Gary against that of the victim. It is the duty of the jury to determine a witness' credibility. Wis JI-Criminal 300. The jury was entitled to consider Gary's prior convictions when assessing his character for truthfulness and to find him less credible because of those convictions. That is the entire point of allowing prior convictions to be admitted. In light of the circuit court's limiting instruction, which prevented the jury from utilizing the prior convictions for an impermissible purpose, and despite the circuit court's failure to explicitly engage in balancing on the record, we cannot say that allowing Gary to testify that he had five prior convictions rather than two unfairly prejudiced his case such that the circuit court erred in admitting the convictions.

¶ 35. Having reviewed the record in light of defense counsel's objections, the prosecutor's response, and the court's use of a limiting instruction, we hold that the circuit court did not erroneously exercise its discretion in admitting Gary's three oldest prior convictions because the circuit court implicitly balanced the probative value of this evidence against the danger of unfair prejudice. We note that in the future, it would be prudent for circuit courts to explicitly set forth their reasoning in ruling on § 906.09(2) matters in order to demonstrate that they considered the relevant balancing factors applicable in the case before them. Nonetheless, the record before us contains enough evidence that the circuit court implicitly balanced the probative value of Gary's prior convictions against the danger of unfair prejudice such that we cannot say the circuit court erroneously exercised its discretion in admitting the convictions. Although the court of appeals concluded that error had occurred, it ultimately concluded that the error was harmless. Gary M.B., 261 Wis. 2d 811, ¶¶ 27, 40. Thus, with regard to the issue of Gary's prior convictions, we affirm the court of appeals, although on a different basis.

V SUMMARY

¶ 36. We hold that under Wisconsin's formulation of the strategic waiver doctrine, Gary did not strategically waive his objection to the introduction of evidence regarding his prior convictions simply because he preemptively introduced this evidence after losing his objection. Further, we hold that the circuit court did not erroneously exercise its discretion in admitting Gary's three oldest prior convictions for impeachment purposes because we conclude that the circuit court implicitly balanced the probative value of the evidence against the danger of unfair prejudice.

By the Court. — The decision of the court of appeals is affirmed.

1 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

2 The court stated: "Evidence has been received that the defendant, [Gary M.B.], has been convicted of crimes. This evidence was received solely because it bears upon the credibility of a defendant as a witness. It must not be used for any other purpose and particularly you should bear in mind that a criminal conviction at some previous time is not proof of guilt of the offense now charged."

3 Wis JI-Criminal 520, Supplemental Instruction on Agreement, provides:

You jurors are as competent to decide the disputed issues of fact in this case as the next jury that may be called to determine such issues.

You are not going to be made to agree, nor are you going to be kept until you do agree. It is your duty to make an honest and sincere attempt to arrive at a verdict. Jurors should not be obstinate; they should be open-minded; they should listen to the arguments of others, and talk matters over freely and fairly, and make an honest effort to come to a conclusion on all of the issues presented to them.

You will please retire again to the jury room.

4 In overruling the court of appeals' decision in Vanlue, this court did not address the court of appeals' application of the strategic waiver doctrine. Vanlue v. State, 96 Wis. 2d 81, 96, 291 N.W.2d 467 (1980).

5 Miranda v. Arizona, 384 U.S. 436 (1966).

6 State v. Wallerman, 203 Wis. 2d 158, 167-68, 552 N.W.2d 128 (Ct. App. 1996).

7 See 7 Daniel D. Blinka, Wisconsin Practice: Wisconsin Evidence § 609.1, at 415 n.l (2d ed. 2001) (noting that the rule is not directed at credibility but, "[m]ore correctly ... is aimed at credibility through an inference from the witness' character for truthfulness").

8 See also State v. Smith, 203 Wis. 2d 288, 295, 553 N.W.2d 824 (Ct. App. 1996).

9 The State suggested that there is some confusion over whether these factors are merely elements to be considered in determining the degree to which the probative value is outweighed by the danger of unfair prejudice or whether the balancing test is a separate factor. In fact, Gary states in his brief that the degree to which the probative value is outweighed by the danger of unfair prejudice is a fifth factor. On the contrary, as the Judicial Council Committee Note makes clear, the enumerated factors are elements to be considered under this particularized application of the § 904.03 balancing test. "[A] judge should consider whether from [the listed factors] the probative value of the evidence of the crime is substantially outweighed by the danger of undue prejudice." Judicial Council Committee Note, 1974, § 906.09, Stats. Also, in State v. Kuntz, 160 Wis. 2d 722, 753, 467 N.W.2d 531 (1991), the court, after discussing some of the aforementioned factors, stated, "[n]one of the other prejudicial factors to be considered apply to this case." Thus, the listed factors are merely elements to be considered when applying the "particularized application" of the § 904.03 balancing test under § 906.09(2). See State v. Smith, 203 Wis. 2d at 296 (noting that "[tjhese factors are weighed in a balancing test to determine whether the probative value of the prior conviction evidence 'is substantially outweighed by the danger of unfair prejudice'") (quoting Wis. Stat. § 906.09(2) (1993-94)).

10 Daniel D. Blinka, Evidence of Character, Habit and "Similar Acts" in Wisconsin Civil Litigation, 73 Marq. L. Rev. 283,292 & n.29 (1989) (citing Nicholas v. State, 49 Wis. 2d 683, 688, 183 N.W.2d 11 (1971)).

11 We note that with regard to another witness, counsel's objection to his prior convictions consisted of the following: "The '74 one he was under the age of 18. We recognize the Wisconsin law but it has been some time ago."

12 Gary argues that such independent review is prohibited under Barrera v. State, 99 Wis. 2d 269, 282, 298 N.W.2d 820 (1980). Barrera does not stand for this proposition. In Barrera, we concluded that the court of appeals erred in making its own determination regarding the admission of other convictions instead of reviewing the circuit court's exercise of discretion. Id. The court in Barrera specifically concluded that the record in the case before it supported the circuit court's determination. Id.

13 See Whitty v. State, 34 Wis. 2d 278, 290, 149 N.W.2d 557 (1967) (noting that "[t]his court has not looked with favor upon claims of prejudicial error based upon the trial court's failure to act when no action was requested by counsel").

14 The court specifically stated: "[The evidence of prior convictions] must not be used for any other purpose and particularly you should bear in mind that a criminal conviction at some previous time is not proof of guilt of the offense now charged." (Emphasis added.) One commentator has noted that "[i]t would appear that the 'unfair prejudice' specified in the rule refers to the danger that the jury might use the evidence . . . .[to] conclude that the defendant is guilty because he is a 'criminal.'" 7 Daniel Blinka, Wisconsin Practice: Wisconsin Evidence § 609.1, at 418 (2d ed. 2001).

15 In the context of § 904.03, courts have repeatedly stated that a circuit court need not engage in balancing when defense counsel does not raise the objection or specifically request the court to engage in balancing. See, e.g., McClelland v. State, 84 Wis. 2d 145, 157-58, 267 N.W.2d 843 (1978); State v. Gollon, 115 Wis. 2d 592, 604-05, 340 N.W.2d 912 (Ct. App. 1983) (citing Whitty v. State, 34 Wis. 2d 278, 294-95, 149 N.W.2d 557 (1967)).