State v. James Lee Ballentine

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 20, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1597-CR Cir. Ct. No. 2017CF505

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES LEE BALLENTINE,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Racine County:
MARK F. NIELSEN, Judge. Affirmed.

Before Neubauer C.J., Reilly, P.J., and Gundrum, J.

¶1 GUNDRUM, J. James Lee Ballentine appeals from a judgment of
conviction for two counts of delivery of cocaine and one count of possession with
intent to deliver cocaine, all at or near a youth center. He asserts that the circuit
court erroneously exercised its discretion in limiting the evidence he could present
No. 2019AP1597-CR

at trial in support of his theory of defense that he was “framed” by his son,
Denmark James, who was acting as a confidential informant (CI) for law
enforcement. More specifically, Ballentine argues that he wanted to show, with
evidence related to a specific 2015 event, that James had the skill to successfully
hide drugs on his person so that they would not be located by law enforcement
during the pat-down searches conducted on him prior to his drug buys with
Ballentine. Ballentine claims that the questions the court did allow him to ask on
this point were insufficient.

¶2 We conclude that Ballentine forfeited the arguments he now makes
because he did not make them to the circuit court but instead gave the court every
indication at the other-acts motion hearing that its ruling regarding the evidence he
could present was “what [he] ha[d] been looking for.” We relatedly conclude that,
based upon the presentation Ballentine did make at that hearing, the court did not
erroneously exercise its discretion in ruling as it did. As a result, we affirm.

Background

¶3 Ballentine was charged with five counts related to the possession of,
delivery of, and/or possession with intent to deliver illegal drugs, three of which
counts stem directly from instances in 2016 in which he was alleged to have sold
cocaine to James, who was acting as a CI at the time. Ballentine filed a motion to
admit evidence at trial related to a 2015 arrest of James during which James
successfully concealed controlled substances on his person such that they were not
detected during a law enforcement search incident to the arrest. The substances
were only discovered when the drugs were later found on a hallway floor of the
Racine Police Department. Ballentine offered the evidence “for the purpose of
showing [James’s] motive, preparation and plan” and to raise question as to

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James’s credibility. Ultimately, Ballentine sought to introduce this 2015 evidence
to show that (1) the illegal drugs that James turned over to law enforcement after
meeting with Ballentine in 2016 could have been drugs that James skillfully hid on
his person and that law enforcement failed to find during a pre-meeting search of
James, instead of being drugs that Ballentine gave to James at the meeting; and
(2) after the meeting, James handed the drugs over to law enforcement and told
law enforcement that he had received the drugs from Ballentine in order to receive
leniency for James’s own sentencing related to his 2015 drug case.

¶4 The circuit court held a hearing on Ballentine’s motion. While
counsel for Ballentine expressed at the start of the hearing that his motion “pretty
well summarizes” Ballentine’s evidentiary request, exactly what ruling Ballentine
was seeking was unclear to the court, but after significant back and forth, greater
clarity slowly emerged:

[BALLENTINE COUNSEL]:

There [were] reports [received from the State] which
indicated that Mr. James had hidden and concealed
controlled substance[s] on his person during an arrest in
2015, where the substances were not found until he was
brought down to the police department and then after he
was placed in [an] interview [room] and led out to use the
bathroom, they were found in the hallway and other areas.

I wanted to use th[is] other instance[] of conduct to
show that Mr. James had basically motive. He had a plan
and he had the purpose to conceal these items as part of the
evidence that the State has in this case. The[re] are
recorded video[s] of Mr. James … having alleged
controlled substances delivered to him by Mr. Ballentine.

At one point in time in one of the videos Mr. James goes
into a bathroom … for basically no purpose [and] he is in
there for ten or fifteen seconds. He didn’t appear to use the
bathroom [or] … wash his hands. Didn’t appear to do
anything. [He goes] in there for a short period of time,
turned around and comes out. He [e]xits the building and
reports back to the police.

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THE COURT: Counsel, okay, frankly I did not
understand your pleadings…. Are you telling me that Mr.
James was acting as an informant against Mr. Ballentine?

[BALLENTINE COUNSEL]: Correct.

THE COURT: Okay. When was that?

[BALLENTINE COUNSEL]: …. February 2016. I
think it was the first incident.

THE COURT: All right. Was he acting as an informant
then for the police against Mr. Ballentine at the time of the
arrest where [he was] supposedly concealing these drugs?

[BALLENTINE COUNSEL]: No.

THE COURT: Then I don’t understand your
pleadings.…

… What is it supposed to be proving? If he is not a C.I.
at the time of the behavior hiding the drugs, what’s it got to
do with his behavior later on? Is that what you are offering
it on[,] his behavior later on?...

[BALLENTINE COUNSEL]: Correct. The incident
that was disclosed to me, it was in 2015 … where he was
actually under investigation himself for distributing
controlled substance[s].

….

During that incident he had controlled substances hidden
on his person. He was arrested, presumably searched at the
time he was [ar]rested[,] … [b]rought down to the police
station, placed in an interview room.…

THE COURT: I am familiar with the sequence that was
explained in your motion. I have that.

[BALLENTINE COUNSEL]: The fact that he is able to
hide controlled substances on his person, even though he
has been searched by law enforcement officers is part of
our defense in this case…. [A]fter the alleged transaction,
he goes into a restroom inside the King center. He stays in
there for like I said ten or fifteen seconds, according to the
video. He doesn’t appear to do anything in the
bathroom.… There is some rustling around. He leaves.
And then he goes, meets with the detective and provides
them with controlled substance[s].

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No. 2019AP1597-CR

THE COURT: Okay. Let me stop you. Then reframe
it. If I understand correctly, you are not offering this to
show interest as such or bias or prejudice. You are offering
the evidence to show that Mr. James had the capacity to
conceal drugs on his person. Your theory then is that on
this later date, when it was in his best interest to make it
look like Mr. Ballentine was dealing drugs, he could have
concealed the drugs on his person, which he then turned
over to the police. Hey, Ballentine gave me these drugs. Is
that the idea?

[BALLENTINE COUNSEL]: Yes.

THE COURT: All right. So it’s knowledge or capacity
of the technique ... [that] you are trying to prove?

[BALLENTINE COUNSEL]: Correct.

THE COURT: All right. I now understand your theory.
Sorry, counsel. I interrupted you.

[BALLENTINE COUNSEL]: That’s fine. I believe it’s
relevant. I believe it’s not prejudicial to the State just based
on that sequence of events that I described. None of the
videos are very clear.…

I don’t have much more to add. I apologize I wasn’t so
clear in my motion to the court in trying to express what
evidence I was trying to get admitted….

THE COURT: … What is the State’s response to this?

[STATE COUNSEL]: Your honor, it’s too tangentially
related.... I mean kind of like asking the court well drugs
were in Mr. James[’s] possession and because they were in
his possession then he had to have brought the drugs to
deal. Doesn’t make sense.

Number one, obviously the people that the State and law
enforcement are going to utilize as CIs are … [e]ither …
financially motivated … [o]r … they have drug problems.
[They have c]onvictions [and] arrests themselves[,] and
they are going to try to get out of it. So I have a concern
here that obviously we are going to put a CI on the stand.
He will be going through with him what his record consists
[of]. In fact he will be wearing orange…. He is in the jail
still from the court’s sentence. So the jury is going to still
be able to see all of that.

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No. 2019AP1597-CR

But I don’t think there is enough of a connection just
because he had been convicted of dropping drugs off at law
enforcement that he is bringing drugs to a drug deal. That
doesn’t make any sense for an other act. It hadn’t met any
of the prongs number one. It’s going to become a trial
within a trial where we are debating everything about
Mr. James.

Number two, it’s unfairly prejudicial because we are
highlighting again something that already has a mechanism
for a jury to judge credibility. That’s by asking him,
number one, if he has ever been convicted of a crime, how
many times[,] [a]nd what he is getting in consideration of
his testimony….

THE COURT: Counsel, you are suggesting that the
defendant’s attorney can’t ask Mr. James if he takes the
stand, Mr. James, you know what the process was. They
would search you. They wouldn’t find anything. … You
would go and do whatever you’re doing. You come back.
You hand him drugs. Surely you can ask that. Right?

[STATE COUNSEL]: Correct.

THE COURT: Are you suggesting that he can’t be
asked, Mr. James, you know very well how to conceal
drugs on your person so that they won’t be found in a
cursory search?

[STATE COUNSEL]: I am not saying he can’t be
asked that. But he can’t go into the substance of his
conviction much like we couldn’t do that for any other
witnesses.

THE COURT: Well you could if you brought [a] [WIS.
STAT. §] 904.04 action and I granted it. All right. What is
he supposed to do if Mr. James then during cross-
examination says no? I would never do that or no I don’t
know how to do that. Is he then allowed to get into it?

[STATE COUNSEL]: [If he] answer[s] untruthfully,
then the court can make a ruling on whether or not in
rebuttal or in plea there to [sic] untruthful response if this
would be allowed. Certainly not on direct. There isn’t
enough of a relationship.

….

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No. 2019AP1597-CR

[BALLENTINE COUNSEL]: … [W]hen he was acting
as the informant in Mr. Ballentine’s case, his case, Mr.
James’s underlying case [was pending].

THE COURT: Was still pending? Surely I don’t think
the District Attorney is trying to dispute at all your right to
go into the fact that he had a case pending. The fact that
he wanted to make a deal. The fact that it would be good
for him given this pending case if he could come back and
show the good[s] that he [had] gotten. [State’s counsel],
you’re not suggesting that any of that is out of bounds?

[STATE COUNSEL]: No. Absolutely what his job
function is to become [a] CI witness.

THE COURT: Okay.

[BALLENTINE COUNSEL]: Okay. That’s the
information that I wanted to ask him about. Obviously if
he says yes, he has done that. Then that’s the information
that I am seeking here.

[STATE COUNSEL]: Yes. That he has done what?
That he has concealed drugs?

….

….I think [Ballentine’s counsel] is looking for a ruling
on kind of specific points. Right?

THE COURT: I am a little confused on that myself.
[Ballentine’s counsel], your question[] is a good one. I
mean [State’s counsel] concedes that you can investigate a
man about it. Obviously you can. She can concede you ask
him whether he knows how to conceal drugs on his person
so that they wouldn’t be found in cursory search. And then
you get the answer you get. I will tell you if the guy says
no, well then it seems to me that the probative value of this
evidence far exceeds any prejudicial value that it may have
and it comes in. Okay.

[BALLENTINE COUNSEL]: Yes.

THE COURT: … I don’t know this evidence is
particularly necessary. It seems like common sense to me
that people can conceal drugs on their person such they
would not be found in the cursory search. That may not be
common sense to the jury. That’s why you can ask him the
question.

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No. 2019AP1597-CR

If he says no, then I will admit this evidence. However,
my analysis at this point is this. A, it’s offered for [a]
permitted purpose. B, does it tend to prove that. Yes. C,
given that it’s a fairly mundane area that I think probably
falls within simple common sense. I don’t see it
compellingly probative unless, as we have discussed, the
witness disputes it, at which point it becomes very
probative. And it may in fact be gone into by you, A, by
confronting him with it on cross-examination. Isn’t it true
on such and such a date. But B, I would then allow you to
present witnesses to the other act as well. Okay.

[BALLENTINE COUNSEL]: Yes.

THE COURT: That’s my ruling. You can go into the
area. It would be time wasting to present evidence on it if
it’s not in dispute. You will know that by the time you get
to your case because you will have done your cross-
examination. If he was conceding the point, we get your
case, I won’t let you waste time by introducing evidence on
[a] conceded point. But if it is in dispute then my ruling is
that it would be more probative than prejudicial.

[BALLENTINE COUNSEL]: That’s what I have been
looking for.

THE COURT: Covering our statutory basis. It’s
admissible under [WIS. STAT. §] 904.04 because of
permitted purpose. It’s admissible under [WIS. STAT.
§] 904.02 because it is relevant on a material point. But it
is excluded under [WIS. STAT. §] 904.03 unless he
contradicts it on cross. Is there anything that the parties
need on that point?

[STATE COUNSEL]: Not from the State.

[BALLENTINE COUNSEL]: No. I don’t think so. I
think we both understand.

(Emphasis added.)

¶5 As part of his related questioning of James at Ballentine’s trial the
following week, Ballentine’s counsel asked James, “So in the past you have
concealed drugs on your person so people can’t find them. Right?” James

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answered, “Yes.” Counsel continued, “You know how to do that so they won’t be
found during a search of your person. Right?” James answered, “Yes.”

¶6 The jury found Ballentine guilty on two of the three charges of
selling cocaine (not guilty on the third charge), guilty on the charge of possession
with intent to deliver cocaine, and not guilty on the charge of possession of
marijuana. Following sentencing, Ballentine filed this appeal.

Discussion

¶7 Ballentine’s primary point on appeal appears to be that the “details”
from the 2015 incident in which James successfully hid drugs from law
enforcement on his person would have provided significantly more “rhetorical
punch” than general testimony that James “knew how to hide drugs.”

All of these details give a weight and substance absent
from a bare, abstract statement about [James’s] knowledge
of how to hide drugs. The details more firmly establish
[James’s] proven ability to hide drugs from the police, and
make it more likely that he was able to hide drugs from the
police when they searched him before he made the alleged
controlled purchases from Ballentine.

Ballentine adds that “asking [James] about the details of his prior [2015] instance
of hiding drugs from the police would not have prolonged the trial in any
significant way. The questioning would amount to perhaps a dozen additional
questions ….”

¶8 Fatal to Ballentine’s appeal is the fact that not only did Ballentine
fail to make any such more-specific-details or limited-additional-questions
arguments to the circuit court despite the numerous opportunities he had to do so
at the motion hearing, but his counsel instead indicated that the court’s ruling was
“what I have been looking for” and would secure for counsel “the information that

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No. 2019AP1597-CR

I am seeking here.” We of course recognize that often counsel will want to show
respect to the court and not risk irritating it by belaboring a point toward which the
court has clearly shown disfavor, but that is a far cry from the circumstances here.
Counsel for Ballentine simply failed to argue with any clarity that he was seeking
to question James in a manner other than what the court was expressing as
appropriate. Instead, Ballentine left the court with the impression that its ruling
“was what [Ballentine] ha[d] been looking for.”

¶9 “Arguments raised for the first time on appeal are generally deemed
forfeited.” State Farm Mut. Auto. Ins. Co. v. Hunt, 2014 WI App 115, ¶32, 358
Wis. 2d 379, 856 N.W.2d 633 (citation omitted). “The purpose of the ‘forfeiture’
rule is to enable the circuit court to avoid or correct any error with minimal
disruption of the judicial process, eliminating the need for appeal.” State v.
Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612.

¶10 Based on the exchange between the circuit court, the prosecution,
and counsel, we conclude that Ballentine forfeited his appellate argument that the
circuit court erred by limiting evidence related to the 2015 drug-hiding incident
involving James. Ballentine argues on appeal that he wanted to ask James about
more specific details of the 2015 incident because such details would have greater
impact than just a general admission by James of “knowing” how to conceal drugs
on his person from law enforcement because the details would show that James
actually had the “skill to pull it off.” Ballentine, however, made no such argument
before the circuit court. Relatedly, he also failed to suggest to the court, as he
suggests on appeal, that he merely sought to ask “perhaps a dozen additional
questions” to provide the additional details he now claims he sought. “A
fundamental appellate precept is that we ‘will not … blindside [circuit] courts with
reversals based on theories which did not originate in their forum.’” Schonscheck

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No. 2019AP1597-CR

v. Paccar, Inc., 2003 WI App 79, ¶11, 261 Wis. 2d 769, 661 N.W.2d 476 (citation
omitted). Had Ballentine made clear to the court the arguments he now makes on
appeal, particularly his more-specific-details argument, the court could have
considered them and perhaps adjusted its ruling accordingly. See State v. Salter,
118 Wis. 2d 67, 79, 346 N.W.2d 318 (Ct. App. 1984) (“If these grounds for
admissibility had been asserted when the evidentiary arguments were made, the
[circuit] court could have addressed them in its ruling.”). Here, Ballentine failed
to make clear to the circuit court that he was asking to present more or different
evidence related to the 2015 incident than that allowed by the court’s ruling. Not
only did counsel fail to make this clear, he did the opposite by telling the court that
the ruling it was making on the issue was “what I’ve been looking for.” Thus,
Ballentine forfeited his appellate argument that the circuit court erred in ruling as
it did.

¶11 Even if Ballentine had not forfeited the arguments he now makes on
appeal, we would affirm the circuit court’s evidentiary ruling unless the court
erroneously exercised its discretion. See State v. Sullivan, 216 Wis. 2d 768, 780-
81, 576 N.W.2d 30 (1998). In light of the presentation Ballentine did make with
regard to his other-acts motion, we must conclude that he has failed to demonstrate
that the court erroneously exercised its discretion in ruling as it did. See Haskins
v. State, 97 Wis. 2d 408, 422-23, 294 N.W.2d 25 (1980) (“[W]here no explanation
was given as to why defense counsel thought the question was material, no
[erroneous exercise] of discretion can be found.”); see also Gaethke v. Pozder,
2017 WI App 38, ¶36, 376 Wis. 2d 448, 899 N.W.2d 381 (“[O]n appeal ‘it is the
burden of the appellant to demonstrate that the [circuit] court erred.’” (second
alteration in original; citation omitted)).

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No. 2019AP1597-CR

¶12 Moreover, Ballentine has failed to convince us the circuit court’s
ruling prevented him from questioning James in a more specific manner than he
did. Ballentine complains that the court’s other-acts ruling “prevented the jury
from hearing numerous relevant details beyond the abstract point that [James]
knew how to hide drugs.” Apparently referring to James’s cross-examination
testimony in which he agreed that “in the past [he] ha[d] concealed drugs on [his]
person so people can’t find them” and he “know[s] how to do that so they won’t
be found during a search of [his] person,” Ballentine states, “[James] knew how
to hide drugs from the police, not just ‘people.’ Of course, it would be more
difficult to hide drugs from a [police officer] than a [member of the lay public].”1
(Emphasis added.) He adds that during the 2015 incident, James hid the drugs
from this same police department—the Racine Police Department—“suggesting
that he knew the specific methods the police department used to search for drugs.”
These complaints go nowhere as there was nothing in the court’s other-acts ruling
that would have restricted Ballentine’s counsel from using the word “police” in his
questioning instead of “people” and, relatedly, there was nothing in the ruling that
suggested counsel could not have added yet additional specificity to his question,
such as phrasing it, “So in the past you have successfully concealed drugs on your
person so that an officer of the Racine Police Department was not able to find
them during a search of your person. Right?” Such phrasing would have been
within the bounds of the court’s other-acts ruling, and a “Yes” answer from James
would have clearly indicated to the jury that there was a specific prior instance in

1
In his brief, Ballentine mistakenly writes: “Of course, it would be more difficult to
hide drugs from a member of the lay public than a police officer.”

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No. 2019AP1597-CR

which James had been searched by an officer of the Racine Police Department
who failed to find drugs that James had skillfully hidden on his person.2

¶13 Even with counsel’s two questions asked as they were, together, we
have no doubt the jury understood that James’s “yes” answers suggested that he
previously had hidden drugs on his person from the police and not “the lay
public.” To begin, any reasonable juror would think, “Who else but the police
would be performing a search of James’s person?” Such a juror would especially
think this in light of the fact that at that point in James’s testimony, he had already
testified on direct examination that he: (1) had been convicted of a crime three
times, including a conviction for selling illegal drugs; (2) was always searched by
a police officer prior to any drug buys he performed for the police, which searches
were “from head to toe” while his clothes were on and he was “stretch[ed] out like
if I was being arrested”; (3) was searched by police before and after making all
three drug buys with Ballentine in this case; and (4) testified again, on cross-
examination, to being searched by police in connection with the three drug buys
with Ballentine, including being asked about being searched by police after
making the third “buy” just four questions before being asked, “So in the past you
have concealed drugs on your person so people can’t find them. Right?” and
“You know how to do that so they won’t be found during a search of your person.
Right?”

¶14 Based upon the foregoing, we conclude Ballentine forfeited the
arguments he makes on appeal and even if he had not forfeited the arguments, he

2
Moreover, Ballentine never indicated to the circuit court in connection with his other-
acts motion that he wanted to be able to make the suggestion to the jury that James “knew the
specific methods the police department used to search for drugs.”

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No. 2019AP1597-CR

has failed to demonstrate the circuit court erred in ruling as it did on his other-acts
motion. See Gaethke, 376 Wis. 2d 448, ¶36.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

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