COURT OF APPEALS DECISION DATED AND FILED November 18, 2008 David R. Schanker Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Antoine A. Payne, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 KESSLER, J. Antoine A. Payne appeals
from a judgment of conviction for felony murder-armed robbery, criminal damage
to property and driving a vehicle without the owner’s consent, all as a party
to a crime, contrary to Wis. Stat. §§ 940.03,
943.01(2)(d), 943.23(3) and 939.05 (2005-06).[1] He argues that the evidence introduced at his trial was insufficient to support
his conviction for felony murder-armed robbery because it failed to demonstrate
that he aided or abetted the armed robbery.[2] Payne also argues that the sentence he
received is unduly harsh and that the trial court erroneously exercised its
discretion when it sentenced him. We
conclude that there was sufficient evidence to support the conviction and that
Payne waived his challenge to his sentence by not filing a motion for sentence
modification in the trial court.
Accordingly, we affirm.
BACKGROUND
¶2 This
case involves an early morning carjacking that led to the shooting death of the
car’s driver, Terrance J. Thomas. Four
individuals were driving around in a car at approximately 1:00 a.m. on August 30,
2005, after visiting several taverns. The
individuals included Payne, Dominique Grafton, Jerome Davis, and Keith L. Hughes,
Jr. As they were driving, they passed a
white Chevrolet Suburban with expensive chrome rims parked at a gas station. Grafton told the driver,
¶3 At
the gas station, Grafton exited the car with a gun, approached Thomas, fatally shot
him, forced Thomas’s companion out of the Suburban and drove the Suburban away. During this shooting, Payne had also exited
the car, and was standing at the gas station when Thomas was shot. What he was doing at the time of the shooting
is the subject of this appeal, and is addressed in greater detail below.
¶4 Grafton
drove the Suburban into an alley while Davis, Payne and Hughes followed in
their car. Grafton exited the Suburban
and entered
¶5 Payne was interviewed by the police. He denied assisting Grafton in the armed robbery, but acknowledged being present for numerous events that night. Payne was initially charged with felony murder in connection with the armed robbery and shooting of Thomas. The charges of criminal damage to property and driving a vehicle without the owner’s consent, both of which related to driving and then destroying the Suburban, were subsequently added. The case proceeded to trial.
¶6 Payne’s defense at trial was that he did not intentionally aid and abet the commission of the armed robbery. He did not testify in his own defense, but his trial counsel argued there was no evidence that Payne agreed to participate in the robbery or did anything to assist Grafton. Counsel argued that Payne only exited the car because Grafton, holding a gun, told Payne to get out of the car. Counsel asserted that all Payne did was walk to a garbage cart by the gas station, where he could not even see the shooting. Counsel also acknowledged that Payne was present when the Suburban was later stripped and that Payne had admitted handling a wrench while the tires were removed, but argued that under the facts, Payne was not guilty of any of the charged crimes.
¶7 The jury found Payne guilty of all charges. He was convicted and sentenced to a total of twenty years of initial confinement and ten years of extended supervision. This appeal followed.
DISCUSSION
¶8 On appeal, Payne challenges the sufficiency of the evidence for felony murder-armed robbery, as well as the severity of his sentence. We examine each issue in turn.
I. Sufficiency of the evidence.
¶9 Payne challenges the sufficiency of the evidence. An
appellate court must give deference to the trier of fact when considering a
criminal defendant’s challenge to the sufficiency of the evidence supporting his
or her conviction. State v. Poellinger, 153
[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.
¶10 Payne was charged with felony murder-armed robbery, as a party
to a crime. A conviction for felony
murder requires a showing that the defendant committed or attempted to commit
one of the felonies listed in Wis. Stat.
§ 940.03 (which includes armed robbery) and that a death occurred
as a result. Id.; see also State v. Krawczyk, 2003 WI App 6,
¶24, 259
¶11 At issue is whether Payne aided and abetted the crime of armed
robbery. See Wis. Stat. § 939.05(2)(b)
(defining one who is a party to a crime as one who “[i]ntentionally aids and
abets the commission of it”). The jury
was properly instructed using
A person intentionally aids and abets the commission of a crime when, acting with knowledge or belief that another person is committing or intends to commit a crime, (he) (she) knowingly either:
● assists the person who commits the crime; or
● is ready and willing to assist and the person who commits the crime knows of the willingness to assist.
See id.; see also State
v. Howell, 2007 WI 75, ¶46, 301 Wis. 2d 350, 734 N.W.2d 48 (citing with
approval
¶12 Applying these standards here, we conclude there is sufficient
evidence to support Payne’s conviction for aiding and abetting the armed
robbery. The jury heard evidence that
Payne was aware that Grafton wanted to take Thomas’s Suburban. An officer testified
¶13 Next, the jury heard evidence that Payne got out of the car
either at the same time or shortly after Grafton and stood at the gas
station. One officer testified that
Payne said he went with Grafton because he was scared of him. Another officer testified that
¶14 It is undisputed that Payne was standing near the gas station
itself during the time of the shooting. The
jury heard evidence that Payne told police he could not see Grafton robbing
Thomas. However, the jury also heard
testimony from a detective who went to the gas station and stood where
¶15 It is undisputed that after the shooting, Payne ran back to the
car and fled with Davis and Hughes.
Shortly thereafter,
¶16 We conclude that this evidence supports the jury’s verdict that
Payne assisted Grafton or was “ready and willing to assist” him. See
II. Challenge to the severity of
the sentence.
¶17 Payne argues that the trial court erroneously exercised its
discretion because his sentence for felony murder was too severe. However, as the State noted in its brief when
it argued that Payne had waived this issue,[3]
Payne did not move the trial court for sentence modification under Wis. Stat. § 809.30, and that
omission is fatal to his appeal. See State v. Chambers, 173
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Payne does not challenge his convictions for criminal damage to property and driving a vehicle without the owner’s consent.
[3] Payne
did not address the State’s waiver argument in his reply brief. “An argument asserted by a respondent on
appeal and not disputed by the appellant in the reply brief is taken as
admitted.” Fischer v. Wisconsin Patients
Comp. Fund, 2002 WI App 192, ¶1 n.1, 256