COURT OF
APPEALS DECISION DATED AND
RELEASED November
27, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1419-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CHANDLER
D. HALL
a/k/a
CHANDLER D. HARRIS,
Defendants-Appellants.
APPEAL
from a judgment and an order of the circuit court for Dane County: PATRICK J. FIEDLER, Judge. Affirmed.
DEININGER,
J.[1] Chandler
Hall appeals a judgment convicting him of impersonating a peace officer and an
order for his release pending appeal which requires him to comply with all
conditions set forth by the Department of Corrections (DOC). He raises two issues: 1) whether the
evidence was sufficient to support his conviction; and 2) whether the
trial court erroneously exercised its discretion by requiring Hall to comply
with all conditions set by the DOC during his release pending appeal. We conclude that the evidence was sufficient
and that the trial court properly exercised its discretion in setting release
conditions. Accordingly, we affirm.
BACKGROUND
On
October 20, 1994, Hall was let into the home of Sandra Bauhs by a friend of
Bauhs', Peter Connor. After
ascertaining that neither of them knew Hall, they asked Hall to leave. Hall replied "No, I don't have to go
anywhere. I'm a police
officer." When Bauhs asked for
identification, Hall responded, "I don't have to show you any ID. I'm a police officer. Why don't you show me some ID. Which one of you lives here?" When Bauhs picked up her phone to call the
police, Hall took the phone from her, stated "No, I'll call the
police," dialed a number and spoke into the phone. Soon after, Hall left, taking Bauhs'
cordless telephone. At trial, Hall
admitted to being at Bauhs' home, but denied that he claimed to be a police
officer.
The
State charged Hall with impersonating a peace officer under § 946.70(1), Stats., a misdemeanor, and theft under
§ 943.20(3)(a), Stats., also
a misdemeanor. A jury found Hall guilty
on both counts.[2] At sentencing, Hall moved the trial court
for release pending appeal. Hall was
then in the custody of the DOC on a separate conviction. The trial court granted Hall's motion and
imposed two conditions: 1) that Hall "comply with all conditions of
probation and/or parole and/or Intensive Sanctions and/or anything else that
may be set by the Department of Corrections," and 2) Hall must make
all future court appearances. The order
was later modified to provide that Hall comply "with all conditions set
forth by the Department of Corrections."
ANALYSIS
Sufficiency of the
Evidence
Hall
argues that his statements claiming to be a police officer to Connor and Bauhs
are not sufficient to sustain a conviction in light of the other evidence.
The
jury is the sole arbiter of the credibility of witnesses' testimony and the
weight and sufficiency of the evidence.
State v. Webster, 196 Wis.2d 308, 320, 538 N.W.2d 810, 815
(Ct. App. 1995). We may not overturn a
jury verdict based on the sufficiency of the evidence unless "`the
evidence, considered most favorably to the conviction, is so insufficient in
probative value and force that no trier of fact acting reasonably could be
convinced beyond a reasonable doubt that the elements of the charged crime have
been proven.'" State v.
Dawson, 195 Wis.2d 161, 172, 536 N.W.2d 119, 123 (Ct. App. 1995)
(quoted source omitted).
Section
946.70(1), Stats., states:
"[W]hoever impersonates a peace officer with intent to mislead others into
believing that the person is actually a peace officer is guilty of a Class A
misdemeanor." Hall argues that a
jury could not reasonably find him guilty of impersonating a police officer
because to "impersonate" means "pretend to be" and his
statements that he was a police officer, standing alone, do not show he was
pretending to be a police officer.
We
agree that one meaning of "impersonate" is "pretend to
be." See Wis J I—Criminal 1830; and Webster's Third New International Dictionary
1133 (1993). We reject Hall's argument,
however. Both Hall and the State
requested that Wis J I—Criminal
1830 be given. The version of that
instruction submitted by the State and given by the court without objection
from Hall included the following:
The first element
of this offense requires that the defendant impersonated a peace officer. To "impersonate" means to
represent oneself to be another person without authority to do so. One may impersonate another by verbal
declarations as well as by obvious physical impersonations as in wearing a
badge or a uniform.
If the "pretend to be" alternative in Wis J I—Criminal 1830 was important to
Hall's theory of defense, he should have requested it at the instructions
conference. He did not do so. We thus review the record to determine
whether the jury reasonably found guilt under the instructions it received, as
opposed to under an alternative which Hall may now wish had been given.
The
testimony indicated that Hall entered the house of two strangers and demanded
to know who they were and which one of the two lived there. When challenged, he twice responded that he
was a police officer. He then prevented
one of the residents from phoning the police to verify his claim. The jury, if it believed Bauhs' and Connor's
testimony, could have reasonably found that Hall had represented himself to be
a police officer based on his verbal declarations.
Hall
next argues that the evidence does not support a finding that he intended to
deceive Connor and Bauhs because his verbal claim of being a police officer,
without more, is not sufficient to constitute intent. Under § 939.23(4), Stats.,
the words "with intent to" in a statute mean that "the actor ...
has a purpose to do the thing or cause the result specified." Intent "`can be evidenced ... by words
or conduct of the person who is claimed to have entertained it.'" State v. Hess, 99 Wis.2d 22,
29, 298 N.W.2d 111, 114 (Ct. App. 1980) (quoted source omitted). We conclude that the jury could reasonably
find that by claiming to be a police officer, and by his conduct at the time,
Hall had the purpose to mislead Connor and Bauhs into believing he was a police
officer.
Finally,
Hall contends that he cannot be found guilty under the statute because 1) his
actions, clothes and demeanor were inconsistent with that of a police officer,
and 2) neither Connor nor Bauhs apparently believed him when he claimed to be a
police officer. Section 946.70(1), Stats., requires only that Hall
intended to mislead, not proof that he successfully misled others into
believing that he was a police officer.
Federal courts have reached a similar conclusion regarding federal
statutes prohibiting the impersonation of an officer. See United States v. Bushrod, 763 F.2d 1051,
1053-54 (9th Cir. 1985); Pierce v. United States, 86 F.2d 949,
951-52 (6th Cir. 1936).
Thus,
neither Hall's clothes and demeanor nor the victims' apparent skepticism
regarding his statements is evidence which would render the jury's verdict
unreasonable. A convincing performance
is not necessary for conviction under § 946.70(1), Stats.
Conditions of
Release
Hall
argues that the trial court erroneously exercised its discretion by
"essentially declin[ing] to exercise discretion" when it ordered him
to comply with all conditions set by the DOC.
See McCleary v. State, 49 Wis.2d 263, 278, 182
N.W.2d 512, 520 (1971) (failure to exercise discretion constitutes abuse of
discretion).
"Persons
released on bail are subject to a number of conditions that are generally left
to the trial court's discretion." State
v. Braun, 152 Wis.2d 500, 511, 449 N.W.2d 851, 856 (Ct. App.
1989). We will uphold a trial court's
discretionary decision where the court considered the facts of the case and
reasoned its way to a conclusion that is one a reasonable judge could reach and
consistent with applicable law. Burkes
v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct. App. 1991).
Section
969.01(2)(b), Stats., provides
that a trial court shall release a defendant convicted of a misdemeanor on bond
pending appeal. Under §§ 969.01(4)
and 969.02(3) the trial court may set reasonable conditions of release to
insure the defendant's appearance in court, protect members of the community
from serious bodily harm or prevent the intimidation of witnesses.
At
the time of sentencing, Hall was in the custody of DOC serving a sentence on an
unrelated conviction. The State raised
a concern regarding a previous incident in which Hall had "go[ne] AWOL
while on field supervision." The
trial court concluded that it was bound to release Hall under
§ 969.01(2)(b), Stats., and
that it could not order monetary bond because of Hall's indigency. See State v. Lipke, 186
Wis.2d 358, 366, 521 N.W.2d 444, 447 (Ct. App. 1994). The trial court ordered, as a condition of Hall's release pending
appeal, that he comply with all conditions set by DOC for his probation or
parole on the existing sentence.
We
conclude that the trial court properly exercised its discretion. The court applied the relevant law to the
facts, including Hall's history and his current status, and came to a decision
a reasonable judge could reach. We
cannot conclude that it is unreasonable, as a condition of release pending
appeal, that a defendant comply with rules of supervision which may be in
effect as a result of his or her status on other convictions. See § 969.02(3)(a), Stats., (court may condition release of
misdemeanant by placement in custody of designated organization for
supervision).
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.