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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2394-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Jeffrey Lelinski,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: KITTY K. BRENNAN, Judge. Affirmed.
SCHUDSON, J.[1] Jeffrey Lelinski appeals from the judgment
of conviction, following a jury trial, for disorderly conduct while armed. He also appeals from the trial court order
denying his motion for postconviction relief.
He argues that the evidence failed to prove venue beyond a reasonable
doubt. This court affirms.
The evidence relevant to
resolution of this appeal is undisputed.
On December 8, 1993, City of Milwaukee police officers responded to a
Brinks residential alarm at 3373 South 19th Street where they were advised that
the house belonged Lelinski, a fellow Milwaukee police officer. While standing outside the house, they heard
a gunshot. They entered the residence
and retrieved a Glock, a semi-automatic weapon issued to Milwaukee police
officers. They encountered Lelinski in
the home; he appeared despondent, upset, and intoxicated. Police investigation revealed several
gunshot holes through the kitchen window screen, a bedroom window, and the
garage. Lelinski acknowledged that he
had been suffering serious personal problems and had planned to commit suicide
that night. He admitted firing the gun.
Although several
witnesses testified that the incident occurred at 3373 South 19th Street, none
stated that this address was in the city and county of Milwaukee, state of
Wisconsin. Lelinski argues, therefore,
that the State did not prove venue beyond a reasonable doubt.
Section 971.19(1), Stats., states in relevant part,
“[c]riminal actions shall be tried in the county where the crime was
committed.” The State has the burden to
prove venue beyond a reasonable doubt. State
v. Mattes, 175 Wis.2d 572, 576, 499 N.W.2d 711, 713 (Ct. App.
1993). Venue, however, may be
established by circumstantial evidence.
Smazal v. State, 31 Wis.2d 360, 363, 142 N.W.2d 808, 809
(1966). In this case, the
circumstantial evidence of venue was overwhelming.
A detective, two
sergeants, and two officers testified that they were on duty and employed by
the City of Milwaukee Police Department when they were at 3373 South 19th
Street on December 8, 1993. One of the
officers also testified that Lelinski was conveyed to the Milwaukee County
Mental Health Center. A firearm expert
testified that he is employed by the State of Wisconsin “here in Milwaukee,”
and that the Glock was a gun issued by the Milwaukee Police Department. Lelinski testified that he believed he “had
only been discharging a weapon in the city limits, which is a violation of city
ordinance.”
No evidence suggested in
any way that the crime occurred anywhere but within the jurisdiction of City of
Milwaukee police. Venue was never
questioned; it was not at issue in the trial.
From the circumstantial evidence at the trial, a jury could only
conclude that 3373 South 19th Street was located in the city and county of
Milwaukee, state of Wisconsin.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.