COURT OF APPEALS
DECISION
DATED AND FILED
September 28, 2000
Cornelia G. Clark
Clerk, Court of Appeals
of Wisconsin
NOTICE
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.
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
State
of Wisconsin,
Plaintiff-Respondent,
v.
Tou
D. Yang,
Defendant-Appellant.
APPEAL from judgments of the circuit court for La Crosse County: Ramona A. Gonzalez, Judge. Affirmed.
Before Dykman, P.J., Eich and Deininger, JJ.
¶1 PER CURIAM. Tou D. Yang appeals from a pair of related judgments convicting him of three counts of being party to the crime of recklessly endangering safety, one count of being party to the crime of discharging a firearm from a vehicle, and one count of fleeing from an officer. He claims the evidence was insufficient to convict him on the first four counts because he did not plan and could not have anticipated that his companions would spontaneously begin firing a gun at the occupants of another vehicle. We conclude, however, that the circuit court could reasonably have found the shooting to be a natural consequence of gang members bringing stolen firearms along on a car trip to another state, and we therefore affirm.
BACKGROUND
¶2 This case was tried to the circuit court on stipulated facts from the preliminary hearing and other documents in the record. Yang was among a group of gang members[1] who took a trip to La Crosse from St. Paul to visit a friend. One of the group supplied a gun to the occupants of each vehicle to be used “for self defense or in case something happens.” Although there was no plan to look for anyone to shoot that day, it was common for the gang members to carry weapons as protection against rival gangs, and some of them had been involved in drive-by shootings and other violent offenses in the past.
¶3 While stopped at an intersection in La Crosse, some members of Yang’s group exchanged words and gestures with the occupants of another vehicle. Two of Yang’s group then exited their vehicles and fired shots at the other car. It was undisputed that Yang was driving one of the cars, and that he did not fire any shots or know in advance that shots were going to be fired. He did, however, subsequently lead police on a chase before being pulled over.
STANDARD OF REVIEW
¶4 We will sustain the convictions unless the evidence, viewed most favorably to the State, is so insufficient in probative value that we can say as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. See State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).
ANALYSIS
¶5 A person who aids and abets the commission of a crime is responsible for any other offenses which are committed as a natural and probable consequence of the intended criminal act. See State v. Hecht, 116 Wis. 2d 605, 624, 342 N.W.2d 721 (1984). One crime is the natural or probable consequence of another if it was to be expected, rather than an extraordinary or surprising result. See Wis JI—Criminal 406. Whether the charged crime is a natural and probable consequence of an intended crime is to be determined based upon all the facts and circumstances in a particular case, not merely the abstract quality of the offenses. See State v. Ivy, 119 Wis. 2d 591, 600, 350 N.W.2d 622 (1984).
¶6 Yang admits that there was more than sufficient evidence to prove his companions discharged weapons and recklessly endangered safety. He further concedes that there was sufficient evidence to show he knowingly aided the uncharged crimes of transporting stolen firearms and illegal possession of a firearm by a minor. He adamantly maintains, however, that he should not have been found guilty as a party to the reckless endangerment and discharging a weapon charges solely because he aided the illegal transportation or possession of firearms by “giving a ride to an armed acquaintance.”
¶7 Yang argues that firing a weapon is not a natural and probable consequence of possessing or transporting a weapon, because the former offense is violent in nature, while the latter are not. He points to a number of cases where the confrontational nature of an aider-and-abettor’s intended crime was a factor in determining that a principal’s use of armed force was readily foreseeable. See, e.g., Ivy, 119 Wis. 2d at 600; State v. Asfoor, 75 Wis. 2d 411, 428-29, 249 N.W.2d 529 (1977); State v. Cydzik, 60 Wis. 2d 683, 698-99, 211 N.W.2d 421 (1973); see also State v. Noren, 125 Wis. 2d 204, 206, 208-09, 371 N.W.2d 381 (Ct. App. 1985) (interpreting analogous “natural and probable consequence” language of former felony murder statute to require the intended offense be inherently dangerous to human life).
¶8 The first problem with Yang’s analysis is his refusal to recognize that “foreseeability requires different degrees of certainty in different contexts.” Noren, 125 Wis. 2d at 207. While acts which result in death may need to be “inherently dangerous to life” to result in criminal homicide liability, id. at 208, Yang has cited no Wisconsin cases which have imposed that same level of foreseeability for crimes which did not result in death. Rather, the foreseeability question remains a factual determination dependant upon all of the facts and circumstances in a particular case. See Ivy, 119 Wis. 2d at 600. Thus, although it is certainly appropriate to consider the violent or confrontational nature of the intended crime to determine whether an armed offense was a natural and probable consequence, we do not view the case law as establishing an absolute requirement of that nature.
¶9 In any event, we are not persuaded that Yang’s intended crime was as non-confrontational as he asserts. Yang was doing more than merely “giving a ride to an armed acquaintance.” The presence of the stolen guns in the cars was intended for the protection of all of the cars’ occupants, including Yang. The guns were not merely being moved from one place to another; they were to be within reach so that they could be used in the event of any trouble. When the intersection exchange occurred, the guns were in fact used in exactly the manner the gang members had intended when they brought them along on the trip. We are satisfied that the circuit court could reasonably have found it unsurprising and unextraordinary that having gang members bring stolen weapons along on a road trip for the express purpose of using them “in case something happens” would lead to the consequence of the guns being fired at another vehicle.
By the Court.—Judgments affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.