COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 17, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2247-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
DEAN M. NORDALL,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Price County:
PATRICK J. MADDEN, Judge. Reversed
and cause remanded for further proceedings.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. The sole issue on appeal is whether,
following a preliminary hearing, the court erred by dismissing a felony child
abuse complaint when relying upon the child’s testimony denying that the
abusive conduct occurred as opposed to the child’s prior inconsistent statement
to a social worker detailing the abusive conduct. Because the State established the necessary probable cause for a
bindover on the felony child abuse charge, the order is reversed and the matter
is remanded to the trial court for further proceedings.
The State charged Dean
Nordall with abusing his twelve-year-old son after the son described to the Price
County social worker, Cherie Bunde, how three days earlier his father had
pushed him against a wall, thrown him on a bed, jumped on him, choked him and
blocked off his breathing by pinching his nose and covering his mouth. This occurred after the son had left his
bike on the lawn at his residence and Nordall became angry after backing over
the bike with his car, causing damage to the bike.
At the preliminary
hearing, the son denied that his father had abused him after the bike incident
and also denied that he ever told Bunde about his father physically assaulting
him. The prosecution then called Bunde
who testified as to what the son had told her earlier describing the
assault. The court denied the bindover,
concluding there was no showing of bodily harm because the son testified that
he was not assaulted.
In State v. Koch,
175 Wis.2d 684, 704, 499 N.W.2d 152, 162 (1993), the supreme court discussed
the meaning of probable cause in the context of a preliminary hearing and the
standard under which appellate courts should review bind over decisions. The court stated:
The probable cause that is required for a
bindover is greater than that required for arrest, but guilt beyond a
reasonable doubt need not be proven. State
v. Berby, 81 Wis.2d 677, 683,
260 N.W.2d 798 (1978). A preliminary
hearing is not a preliminary trial or evidentiary trial on the issue of guilt
beyond a reasonable doubt. State
v. Dunn, 121 Wis.2d 389, 396, 359 N.W.2d 151 (1984). The role of the judge at a preliminary
hearing is to determine whether the facts and reasonable inferences that may be
drawn from them support the conclusion that the defendant probably committed a
felony. The judge is not to choose
between conflicting facts or inferences, or weigh the state's evidence against
evidence favorable to the defendant.
Probable cause at a preliminary hearing is satisfied when there exists a
believable or plausible account of the defendant's commission of a felony. Id., 121 Wis.2d at 397-98, 359
N.W.2d 151; State v. Cornelius, 152 Wis.2d 272, 276, 448 N.W.2d
434 (Ct. App. 1989).
Id. at
704, 499 N.W.2d at 162.
A preliminary hearing is
intended to be a summary proceeding to determine essential or basic facts as to
probability. State v. Webb,
160 Wis.2d 622, 625 n.4, 467 N.W.2d 108, 109 n.4 (1991). Probable cause for bindover is satisfied
when evidence presents a believable or plausible account of the defendant’s
commission of a felony. State v.
Dunn, 121 Wis.2d 389, 398, 359 N.W.2d 151, 155 (1984).
Thus, the court at the
preliminary hearing is limited to determining the plausibility of a witness’
testimony, and it is not to delve into the credibility of witnesses. Id. at 397, 359 N.W.2d at
154. If a plausible account of the
commission of a felony by the defendant exists, the defendant must be bound
over for trial, even if a contrary but believable or plausible account also
exists. State v. Sorenson,
152 Wis.2d 471, 481, 449 N.W.2d 280, 284 (Ct. App. 1989). Finally, we observe that appellate review of
a bindover decision is de novo. State
v. Moats, 156 Wis.2d 74, 84, 457 N.W.2d 299, 304 (1990).
The crime of felony
child abuse is defined in § 948.03(2), Stats. It requires the State to prove that the
defendant intentionally caused bodily harm to a child less than eighteen years
of age. Bodily harm is defined as
“physical pain or injury, illness, or any impairment of physical
condition.” Section 939.22(4), Stats.
Although the son at the preliminary hearing denied that the abuse ever
took place, the State presented the son’s prior inconsistent statement to Bunde
describing the physical abuse. Bunde’s
testimony is admissible as substantive evidence of the offense. See § 908.01(4)(a)1, Stats.
(Prior oral inconsistent statement of a party’s own witness is admissible
as substantive evidence). From this
testimony, it is reasonable to draw an inference that the father’s actions
intentionally caused bodily harm to his twelve-year-old son.
Here, the court erred
when it based its refusal to bind the charge over for trial on a credibility
determination, concluding that the son’s denial the abuse occurred was more
credible than the social worker’s testimony.
Although there is conflicting testimony at the preliminary hearing,
Bunde’s testimony provided a plausible account that Nordall committed felony
child abuse.
Therefore, we are
satisfied that the State met its burden of proving probable cause at the
preliminary hearing and the court erred by denying the bindover and dismissing
the complaint. The matter is remanded
to the court with directions to enter a finding of probable cause that Nordall
committed a felony and bindover the charge for trial.
By the Court.—Order
reversed and cause remanded for further proceedings.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.