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COURT OF APPEALS DECISION DATED AND FILED September 21, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Richard Martin Kubat,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1
BACKGROUND
¶2 At trial, Marion Belcher testified he entered a truck stop and waited in line at the fuel island behind another truck driven by Kubat. After about ten minutes, Kubat pumped fuel into his truck for ten to fifteen minutes. However, Kubat did not then move his truck. Belcher knocked on the door of Kubat’s truck and politely asked him to move up. Kubat replied, “Okay,” and Belcher went back to his truck, released his brake lock, and waited. When Kubat still did not move his truck, Belcher walked back and again asked him to move.
¶3 Kubat responded, “Fuck you,” and gave Belcher the finger. Belcher replied in like kind, and continued, “Why don’t you come out here and say [that] .... You sitting up there talking that shit.” Belcher eventually detached the air hose from Kubat’s truck, stating, “Now your punk ass got to get out and get it.”[2] Belcher then turned and began walking back to his truck. Kubat exited his truck with a tire knocker, approached Belcher, and pushed him. Belcher pushed back, Kubat swung the tire knocker at Belcher, and they fought with each other on the ground. Belcher testified he was unsure when Kubat struck him in the face with the tire knocker because he recalled blocking the first swing with his arm. Belcher explained, “[A]ll during that time, he was swinging; so I’m not sure exactly when he hit me, from the beginning or when he was on the ground, but he was swinging that thing real wild at me trying to hit me.”
¶4 At the close of the State’s case, Kubat moved for a directed verdict of acquittal based on Belcher’s testimony that he was unsure when he was struck with the tire knocker. The court denied the motion, and Kubat testified in his defense. The jury convicted Kubat and he now appeals.
DISCUSSION
¶5 Kubat first argues the circuit court erroneously denied his motion for a directed verdict of acquittal following presentation of the State’s case. Kubat contends the State could not disprove self-defense because the victim stated he did not know who struck first. Our supreme court has explained:
[W]here a defendant moves for a dismissal or a directed verdict 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 direct.” In the present case, after the defendant’s motion to dismiss was denied, he proceeded to put in his defense. Therefore, on review, the appellate court must examine all the evidence in determining whether it is sufficient to sustain the conviction.
State v. Kelley, 107
¶6 Furthermore, Kubat’s brief inadequately sets forth the trial
testimony, fails to develop a coherent argument, and ignores the proper
standard of review.[3] For instance, Kubat relies on his own
testimony, suggesting Belcher’s conflicting testimony was untrue. In reviewing a sufficiency of the evidence
claim, however, we must view the evidence in the light most favorable to the
State. State v. Poellinger, 153
¶7 Kubat also fails to explain how Belcher’s testimony concerning
the tire knocker blow precluded the State from disproving self-defense. Instead, Kubat asserts, in conclusory
fashion: “The State, through the
admission of its own witness has clearly indicated that guilt, beyond a
reasonable doubt, is not possible in a situation where the alleged victim is
not sure who hit whom first, or who initiated the altercation.”[4] Because he fails to develop a properly
supported, rational argument, we reject Kubat’s challenge to the sufficiency of
the evidence. See
¶8 Kubat next argues the court erroneously instructed the jury
on provocation. A trial court has broad
discretion in deciding which jury instructions to provide the jury. State
v. Coleman, 206
¶9 As part of the self-defense instructions, the trial court
instructed the jury on provocation as follows:
“You should also consider whether [the] defendant provoked the attack. A person who engages in unlawful conduct of a type
likely to provoke others to attack and who does provoke an attack is not
allowed to use or threaten force in self-defense against that attack.” Kubat
contends:
These instructions were clearly inappropriate and a miscarriage of justice as no allegations of provocation had been made throughout the trial. Provocation, as stated by Appellant’s Counsel, requires the act of illegal conduct by the defendant to negate a self-defense argument. The testimony of both the Appellant and the alleged victim states that Appellant was sitting in his truck, no illegal conduct can be inferred from this that would merit provocation instructions.
¶10 Once again, Kubat ignores evidence and fails to develop a coherent legal argument. Belcher testified that before he engaged Kubat in the fight, Kubat had refused to move his truck so Belcher could use the fuel pump, cursed at Belcher, pursued Belcher with a tire knocker, pushed Belcher, and then swung the tire knocker at Belcher when he pushed Kubat back. These facts could reasonably support a finding of provocation. The trial court therefore did not err by giving the instruction.
¶11 Finally, Kubat contends the preceding two assertions of error
deprived him of due process. This undeveloped
assertion, unsupported by legal authority, adds nothing to Kubat’s
arguments. We therefore do not address
it further. See Flynn, 190
¶12 We sanction Kubat’s appellate counsel $250 for his filing of two false certifications and rules violations. We also sanction the State’s counsel $50 for her rules violations. Counsel shall pay their respective forfeitures to the clerk of this court within thirty days of this decision. See Wis. Stat. Rule 809.83(2).
By the Court.—Judgment affirmed; attorneys sanctioned.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are
to the 2007-08 version unless otherwise noted.
[2] Kubat explained the air hose is the connection between the tractor and the trailer that transports air to the brakes. When the hose is detached the truck cannot move.
[3] Kubat’s
appendix contains only the judgment of conviction and the criminal
complaint. These documents tell us
nothing about the issues raised on appeal.
Contrary to rule and counsel’s certification to this court, Kubat’s
appendix failed to include the circuit court’s findings or those portions of
the record essential to an understanding of the issues. See
Wis. Stat. Rule 809.19
(2)(a)-(b). “Filing a false
certification with this court is a serious infraction” justifying the
imposition of sanctions. State
v. Bons, 2007 WI App 124, ¶¶23-25, 301
The State similarly fails to provide proper record citations, omitting the record number.
[4] Kubat alternatively states his conclusory argument: “As soon as the alleged victim, the State’s primary witness, indicated that he was unsure who initiated the altercation, the State was no longer able to prove beyond a reasonable doubt that Appellant was guilty of battery and thus Appellant’s motion for directed verdict should have been granted.”
We observe Kubat’s repeated references to “appellant” throughout his brief violate Wis. Stat. Rule 809.19(1)(i), which requires reference to the parties by name, rather than by party designation.
[5] Kubat did not file a reply brief.
[6] The
State cites State v. Herriges, 155