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COURT OF APPEALS
DECISION
DATED AND FILED
October 21, 2008
David R. Schanker
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 WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Anthony Dwayne Anderson,
Defendant-Appellant.
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APPEAL from a judgment and an order
of the circuit court for Milwaukee
County: CHARLES F. KAHN, JR. and PATRICIA D. McMAHON,
Judges. Affirmed.
Before Curley, P.J., Fine, J., and Daniel
L. LaRocque, Reserve Judge.
¶1 PER CURIAM. Anthony Dwayne Anderson
appeals from a corrected judgment of conviction for robbery, armed robbery, and
burglary, the latter two offenses as a party to the crime, and from an order
denying his postconviction motion. The issue is whether there was sufficient
evidence to prove that Anderson
had the intent to steal when he entered the victims’ apartment to support the
jury’s guilty verdict against him for burglary.
We conclude that there was sufficient circumstantial evidence and
reasonable inferences from the totality of that evidence to prove Anderson’s intent to steal
when he entered the victims’ apartment to support the jury’s guilty verdict for
burglary. Therefore, we affirm.
¶2 The following rendition of the incident is from the trial testimony
of Michael Buckett, one of the victims. Anderson knocked on the
door of Kitty Muth’s apartment, and asked to use the telephone. Buckett, Muth’s adult son, answered the door,
and told Anderson
that “my mom didn’t want them [Anderson and the three other men accompanying
him] over.” Although Anderson had been an overnight guest at the
Muth home previously, and many people used the Muth phone, Buckett “told them
my ma doesn’t want you guys over here.
She’s tired of you guys messing with her, harassing her, destroying her
property. You guys just leave her
alone. She doesn’t want to deal with you
guys.” Anderson
demanded that Muth tell him that herself, and when she did Anderson “pushed his way through the door and
then he told his buddies to come in with him.”
¶3 Buckett testified that once in Muth’s apartment, Anderson said “this is
[my] block. [I] run[] the block and that
we had to start paying him money. It was
the first of the month so he knew we got or my mother got her check.” Later Anderson
asked Buckett for a cigarette, and then “snatched the whole pack out of
[Buckett’s] hand.” Buckett continued
that Anderson
“saw I had stuff in my pockets and grabbed my pockets of my jacket I had
on. He took two packs of cigarettes out
and gave them to his buddies.” Anderson then demanded
the keys for Buckett’s truck. Buckett
initially refused, but after Anderson
threatened to “shoot” him, he gave him the keys because Buckett testified that
his “truck was not worth dying [for].”
Anderson
took Buckett’s keys, “smash[ed] the telephone, just [was] being
destructive.” Anderson told Buckett that “if I [Buckett]
called the police on him [Anderson], he would come back and find me and kill me
and my family.” Anderson then left in
Buckett’s truck, which was found by police with slashed tires, vomit in the
inside of the truck, a dented tire rim, and the alignment ruined by “plow[ing]
into the curb.” At no time while in the
Muth apartment, did Anderson
use the telephone.
¶4 Anderson
was initially charged with robbery with the threat of force as a party to the
crime; he was later charged with and tried for two counts of armed robbery, and
for burglary, as a party to each of the three crimes. A jury found him guilty of armed robbery, the
lesser-included offense of robbery (from armed robbery), and burglary. For the armed robbery, the trial court
imposed a sixteen-year sentence, comprised of nine- and seven-year respective
periods of initial confinement and extended supervision. For the robbery, the trial court imposed a
seven-year consecutive sentence, comprised of three- and four-year respective
periods of initial confinement and extended supervision. For the burglary, the trial court imposed a
seven-year sentence, comprised of three- and four-year respective periods of
initial confinement and extended supervision, to run consecutive to the
sixteen-year sentence, but concurrent to the other seven-year sentence.
¶5 Anderson
moved for postconviction relief, contending that there was insufficient
evidence to support the burglary conviction, and if the burglary conviction was
vacated (for insufficient evidence), for sentence modification on the robbery
sentence that was imposed concurrent to the (then vacated) burglary
sentence. The trial court denied the
motion, reciting the evidence that supported the jury’s verdict, and explained
why it was sufficient to prove burglary, and how that decision necessarily
disposed of Anderson’s
sentence modification claim. Anderson appeals.
¶6 Anderson
challenges the sufficiency of the evidence to support the burglary
conviction. The elements of burglary
with intent to steal require proof, beyond a reasonable doubt, that the
defendant: (1) intentionally entered a
building; (2) without the consent of the person in lawful possession of that
building; (3) knew that the entry was without consent; and (4) entered the
building with intent to steal or commit a felony. See Wis. Stat. § 943.10(1m)(a) (2005‑06);
Wis JI—Criminal 1421 (2001). Anderson’s
entire challenge is to the sufficiency of the evidence of the fourth element of
the offense, his intent to steal or commit a felony at the time he entered the
Muth home.
¶7 Focusing only on the testimony of the timing of Anderson’s intent, Buckett testified that Anderson was told not to
come in the apartment, but barged in anyhow.
Although Anderson
claimed that he wanted to use Muth’s telephone, he never used it, and
ultimately destroyed it. One of the
first things Anderson
said upon “pushing his way through the door,” was that this was “his block,”
and that he knew that Muth “got her [disability] check.” He then began taking whatever he wanted,
cigarettes, new clothes, the keys to Buckett’s truck, while threatening Buckett
and destroying personal property in Muth’s apartment.
¶8 [I]n
reviewing the sufficiency of the evidence to support a conviction, an appellate
court may not substitute its judgment for that of the trier of fact unless the
evidence, viewed most favorably to the state and the conviction, is so lacking
in probative value and force that no trier of fact, acting reasonably, could
have found guilt beyond a reasonable doubt.
If any possibility exists that the trier of fact could have drawn the
appropriate inferences from the evidence adduced at trial to find the requisite
guilt, an appellate court may not overturn a verdict even if it believes that
the trier of fact should not have found guilt based on the evidence before it.
State v. Poellinger, 153 Wis.
2d 493, 507, 451 N.W.2d 752 (1990) (citation omitted). Credibility determinations are within the
fact-finder’s province unless the evidence is incredible as a matter of
law. See
Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289
N.W.2d 813 (1980). As long as there is
sufficient evidence to convict, it is the jury’s obligation, not that of the
appellate court, to weigh the evidence and reconcile inconsistencies in the
testimony. See Poellinger, 153 Wis. 2d at
506-07.
¶9 We conclude that the entirety of the evidence and reasonable
inferences from that evidence were sufficient for the jury to find that
Anderson had the intent to steal or commit a felony when he entered, or
“push[ed] his way through the door.” He
claimed to have wanted to go into the apartment to use the telephone, but he
never used the telephone. Once in the apartment,
he immediately boasted that this was “his block,” and admitted that he knew
that Muth “got her check” on the first of the month. He then began stealing things and threatening
Buckett when he initially refused to give Anderson
the keys to his truck. The reasonable
inferences from this evidence are sufficient to prove Anderson’s intent to steal or commit a felony
when he entered Muth’s apartment. The
fact that this evidence was circumstantial as opposed to direct is not
dispositive because proof of intent generally is inferred. See State v. Bowden, 93 Wis. 2d 574, 583, 288 N.W.2d 139 (1980)
(“Direct proof is particularly rare with respect to intent, an element which,
by its very nature, is elusive.”) (citation omitted), overruled on other grounds by Poellinger,
153 Wis. 2d at
505.
¶10 Anderson
also contends that if he is successful on his sufficiency of the evidence
claim, he seeks resentencing on the robbery sentence imposed concurrently to
the burglary sentence. Our rejection of
his sufficiency of the evidence claim, obviates the need to address his
resentencing contention.
By
the Court.—Judgment and order affirmed.
This opinion will not be
published. See Wis. Stat. Rule
809.23(1)(b)5.