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COURT OF APPEALS
DECISION
DATED AND FILED
June 30, 2009
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 III
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State of Wisconsin,
Plaintiff-Respondent,
v.
Michael A. Ferguson,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Brown County: PETER
NAZE, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Michael Ferguson appeals
his judgment of conviction. Ferguson was found guilty
upon a jury verdict of stalking, attempted first-degree intentional homicide
and obstructing an officer. Ferguson
argues on appeal there was insufficient evidence to convict him of attempted first-degree
intentional homicide. We reject Ferguson’s arguments and affirm the
conviction.
Factual
Background
¶2 In February 2006, Amy Johns moved out of the residence she shared
with Ferguson
for approximately a year. Amy and Ferguson had an “on again,
off again” relationship that produced a son, and Amy also had a daughter from
another relationship. With her father’s
help, Amy moved into an apartment in Green
Bay with her children.
Between March 1 and March 15, 2006, Ferguson called her incessantly. After Amy changed her telephone number, Ferguson began calling her
father with threatening and abusive messages.
¶3 During the early morning hours of March 21, 2006, Amy was
awakened by loud noises and pounding on the door. She attempted to turn on the lights and look
at her alarm clock but realized the power was off to her apartment. She tried to use her telephone, but discovered
it was also out of service. Amy located
her cellular phone and called 911, and police were dispatched. When the officers arrived, they pried the
outside lock of the multi-family apartment complex and attempted to determine
where Amy’s apartment was located in the building.
¶4 The officers realized the apartment was on the second floor
and one officer went up the north stairs and another ascended the south
stairs. The officers found Ferguson at the top of the
steps ten feet or less from Amy’s apartment door holding a knife over his head.
With their service weapons drawn, the
officers repeatedly ordered Ferguson
to drop the knife, but instead he opened his jacket and stabbed himself
twice.
¶5 After stabbing himself, Ferguson
continued to disobey police orders to drop the knife and get on the ground. One officer attempted without success to
taser him. The officers struck Ferguson twice with batons
in order to restrain him. In Ferguson’s rear pants
pocket they found a letter, stating, “dear Amy, you got yours ….”
¶6 Prior to these events, Ferguson
had left numerous messages on Mr. Paul Johns’ telephone answering machine threatening
to kill him and Amy. The telephone
messages stated, among other things “Prepare your daughter’s funeral,” “you
will be buying her casket,” “You can’t protect her,” “Forewarned she’s dead and
your house will burn,” and “You’re too late.”
Discussion
¶7 Ferguson
argues the State failed to offer sufficient evidence to prove beyond a
reasonable doubt that he intended to kill Amy. Ferguson
asserts no homicidal inferences can be drawn because when confronted by police he
was not at Amy’s apartment door, attempting to enter her door, or threatening Amy. Ferguson
also contends the messages left on Mr. Johns’ answering machine are not
indicative of intent to commit first-degree intentional homicide because none
of the statements read alone suggest intent to kill. According to Ferguson, the messages “are indicative of an
intoxicated state and of a frustration over losing property that he believed
belonged to him.”
¶8 Ferguson also argues the calls
“were an attempt to get Mr. Johns to phone Ferguson and to get Mr. Johns to make his
daughter, Amy Johns, phone him. It was
all about Ferguson
wanting a phone call from Ms. Johns.” He
further claims the “switching off of the power, the cutting of the telephone
lines and the banging on the door, in light of all of Ferguson’s other acts,
could only have meant that he was trying to frighten Ms. Johns and get her
attention so that she would talk to him.” Ferguson
insists the messages about buying a coffin, preparing for her funeral, and
burning down Mr. Johns’ house “were taken out of context by the prosecution.”
¶9 We may overturn a verdict on grounds of insufficiency of
evidence only if the jury could not possibly have drawn the appropriate
inferences from the evidence adduced at trial to find the requisite guilt. State v. Poellinger, 153 Wis. 2d 493, 507,
451 N.W.2d 752 (1990). We review the
evidence in the light most favorable to the verdict. The credibility of witnesses and the weight
of the evidence are for the jury. Id. at
503-04. It is also proper for a jury to
draw logical inferences from the evidence, “connecting its dots into a coherent
pattern.” See State v. Sarnowski,
2005 WI App 48, ¶12, 280 Wis.
2d 243, 694 N.W.2d 498.
¶10 Here, Ferguson’s
course of conduct was more than sufficient to allow the jury to infer the
necessary elements of attempted first-degree intentional homicide. The overall theme of the evidence was Ferguson’s increasing
agitation and violence after Amy moved out of their residence. The jury heard evidence of Ferguson’s escalating threats to Amy spanning
a number of weeks. On January 30,
2006, Ferguson
threatened to kill their son. By late
February, Amy had obtained a new apartment and Ferguson accosted Amy’s father in the parking
lot and threatened to kill him, Amy and his granddaughter.
¶11 Ferguson’s
threatening behavior escalated to the point of 609 phone calls to Amy’s cell
phone between March 1 and March 15, 2006.
On March 9, Ferguson
called 193 times. The evidence also
showed that after March 16, when Amy changed her cell phone number and obtained
a land line, Ferguson
started making threatening or harassing telephone calls to Mr. Johns. The messages contained threats to kill Amy
and her father and to “burn the house and blow up the car.” Another message said, “I know where you are
now, you can’t protect her now, and she’s done for.”
¶12 On March 18, 2006, Ferguson
accosted Amy in a Wal-Mart store on the west side of Green Bay, but he fled before the police
arrived. On March 21, Ferguson was hiding in Amy’s basement and
made twenty-one calls to Mr. Johns between 4:16 and 4:59 a.m., threatening to
kill Mr. Johns, Amy and himself. The
final call, before Ferguson
went up to Amy’s apartment door, stated that it was “too late” for her father
to save her life. Before proceeding to Amy’s
apartment door, Ferguson
slashed with his knife some of her property stored in the basement, turned off her
electricity and cut her telephone line. The
police found Ferguson
a short distance from Amy’s door wielding a knife. He refused repeated orders to drop the knife
despite the officers having drawn their weapons and, even after stabbing
himself, appeared to be in “attack posture.”
When he was arrested, a note was found in Ferguson’s pocket that said, “dear Amy, you
got yours ….”
¶13 Ferguson’s
arguments merely offer alternative inferences that can be drawn from the
evidence, contrary to our standard of review.
In the light most favorable to the verdict, it is disingenuous to insist
the evidence could only be viewed to mean that Ferguson was trying to frighten
Amy and get her attention so that she would talk to him. Indeed, the fact that he cut her phone line
critically undercuts his argument that he only wanted to speak to her. The fact that Ferguson
cut the power to her apartment further supports the prosecution theory that Ferguson wanted to
terrorize and isolate Amy before his final attack. By twice stabbing himself with a ten-inch
filet knife, Ferguson
also evidenced the extreme violence of which he was capable.
¶14 We need not concern ourselves with evidence which might suggest
an alternative inference or theory of defense.
We need only decide whether the theory accepted by the jury was
supported by sufficient evidence to sustain the verdict rendered. Poellinger, 153 Wis. 2d at 507-08. It was, and the conviction is affirmed.
By the
Court.—Judgment affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.