COURT OF APPEALS
DECISION
DATED AND FILED
November 25, 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.
Larry Darnell Redmond,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Affirmed.
Before
Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Larry Darnell Redmond appeals
from a corrected judgment of conviction for kidnapping and false imprisonment,
and from a postconviction order denying his motion for sentence
modification. The issues are whether
there was sufficient evidence to support the guilty verdicts, and whether the
trial court actually relied on inaccurate information when it sentenced Redmond. We conclude that there was sufficient
credible evidence to support both guilty verdicts, and that Redmond has not shown that the trial court
actually relied on the inaccuracy in his prior record when it imposed
sentence. Therefore, we affirm.
¶2 Redmond
was charged with kidnapping, false imprisonment, and the attempted
second-degree sexual assault of a child for an April 10, 2006 incident during
which he abducted a fifteen-year-old girl to his home, where he confined her in
a closet. A jury found him guilty of
kidnapping and false imprisonment, but was unable to reach a unanimous verdict
on the attempted sexual assault charge.
The trial court imposed a sixteen-year sentence for the kidnapping,
comprised of twelve- and four-year respective periods of initial confinement
and extended supervision, and a four-year concurrent sentence for the false
imprisonment, comprised of two-year periods of initial confinement and extended
supervision. Redmond moved for sentence modification,
claiming that he was sentenced on inaccurate information, and that his mother
was in poor health. The trial court
denied the motion. Redmond appeals, challenging the sufficiency
of the evidence, and seeking resentencing.
¶3 Redmond contends that there was insufficient
credible evidence to support the guilty verdicts for kidnapping and false
imprisonment. Specifically, Redmond challenges the
testimony of the victim, who he contends was not credible. To convict the defendant of kidnapping, the
State must prove beyond a reasonable doubt, that the defendant: (1) transported
the victim from one place to another; (2) with imminent force or the threat of
imminent force; (3) without the victim’s consent; and (4) with the intent to
secretly confine the victim. See Wis.
Stat. § 940.31(1)(a) (2005-06); Wis JI—Criminal 1280 (2006). To convict the defendant of false
imprisonment, the State must prove beyond a reasonable doubt, that the
defendant: (1) confined the victim; (2) intentionally; (3) without the victim’s
consent; (4) without any lawful authority for the confinement; and (5) knew
that the victim did not consent to the confinement and that the defendant knew
that he or she had no legal authority for the confinement. See Wis. Stat. § 940.30; Wis JI—Criminal 1275 (2006).
¶4 The victim testified to the elements of each offense. Additionally, two witnesses testified, who
had viewed the kidnapping from across the street. Desiree Kerner testified that she saw a man
grab a girl from a car and then saw the girl being dragged from the car. She heard the assailant call the victim by name,
telling her to “shut up.” Kerner then
asked someone to call the police. Larry
Horst testified that he heard someone yell that her sister was being kidnapped
and he saw a man “pulling [the victim] up the alley,” while the victim was
“[t]rying to get away.” The victim’s
testimony, corroborated by Kerner and Horst, was sufficient to prove
kidnapping. Milwaukee Police Detective
Steve Wells testified that he was dispatched to look for the victim of an
abduction. Once at the defendant’s
house, he searched until Redmond
finally led him to a closet with tires propped against the door, where the
detective found the victim, acting and looking “terrified.” The victim’s testimony, corroborated by
Detective Wells, was sufficient to prove false imprisonment.
¶5 [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.
¶6 The evidence is sufficient to support the convictions for
kidnapping and false imprisonment. As
noted, Redmond
does not challenge the sufficiency of the evidence, as much as he challenges
the credibility of the victim. We reject
this challenge. First, the victim’s testimony
is corroborated on both offenses.
Second, matters of credibility are peculiarly within the jury’s
province. See Johnson, 95 Wis. 2d at 151-52. The victim’s testimony was not
incredible as a matter of law, and, although unnecessary, her testimony was
corroborated. There was sufficient
credible evidence to support the guilty verdicts.
¶7 Redmond
moved for resentencing, contending that he was sentenced on inaccurate
information, namely that instead of being convicted in 1992 of burglary and
shoplifting, those charges had been dismissed.
“A defendant who requests resentencing due to the
[trial] court’s use of inaccurate information at the sentencing hearing ‘must
show both that the information was inaccurate and that the court actually
relied on the inaccurate information in the sentencing.’” Once actual reliance on inaccurate
information is shown, the burden then shifts to the state to prove the error
was harmless.
State v. Tiepelman, 2006
WI 66, ¶26, 291 Wis.
2d 179, 717 N.W.2d 1 (citations omitted).
¶8 At sentencing, the prosecutor mentioned that Redmond’s criminal history included “a
burglary count from 1992 that was amended to a misdemeanor.” This information, however, was inaccurate
because that offense was, in fact, dismissed.
Defense counsel did not correct this inaccurate information at
sentencing and characterized Redmond’s
prior history as “miniscule.” The trial
court considered Redmond’s
criminal history at sentencing. It said:
I know
the defendant believes that the victim was lying about the whole thing, but as
I pointed out, there’s more evidence that’s been presented than simply the
victim’s statements. These are some very
serious offenses. What is also
disconcerting is I look at the defendant’s character. He has a prior conviction for battery in
1987. That’s a crime of violence and a
crime against person. On April 10, 2006
he was again involved in violence and a crime against person. Additionally on his record he has the two
prior bail jumpings and a retail theft.
Again, they’re quite dated except to the extent that that violence has
reoccurred again on April 10, 2006.
Redmond acknowledges that the trial court did
not specifically address the 1992 burglary in its sentencing remarks.
¶9 In its postconviction order denying this claim, the trial
court stated that it
considered only [Redmond’s]
prior conviction for battery from 1987, two prior bail jumpings, and a retail
theft. It placed no weight whatsoever on
a 1992 burglary purportedly amended to a misdemeanor, and did not consider it
at all for purposes of sentencing. Given
that the court did not rely on inaccurate information at the time of
sentencing, it denies the defendant’s motion.
¶10 Although the inaccurate information was presented at
sentencing, it was not emphasized by the prosecutor, who characterized Redmond’s record as
“[not] noteworthy.” The trial court did
not mention the 1992 burglary in its sentencing remarks, and explained in its
postconviction order that it did not rely on that inaccurate information,
although at sentencing it did consider a retail theft that it characterized as
“quite dated,” and then focused on Redmond’s past conduct involving violence,
which did not include the retail theft.
The trial court’s focus at sentencing was about Redmond’s actions involving “violen[ce],”
although it credited him with having “a good reputation,” and found the
kidnapping and false imprisonment to be conduct that was “very much out of
character.” Redmond has not persuaded us that the trial
court actually relied on this inaccurate information when it imposed sentence;
it did not mention the 1992 burglary, and was focused on prior acts involving
violence.
By the
Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.