COURT OF APPEALS DECISION DATED AND FILED November 24, 2009 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
from judgments of the circuit court for
Before
¶1 PER CURIAM. Christopher Thomas appeals judgments, entered upon a jury’s verdict, convicting him of seven counts of felony bail jumping and one count each of disorderly conduct and misdemeanor battery. Thomas challenges his bail jumping convictions as multiplicitous and unsupported by the evidence. The State concedes error with respect to five of Thomas’s seven convictions for felony bail jumping, though on different grounds than Thomas asserts. Based on the State’s concession of error, we reverse five of the seven felony bail jumping convictions. To the extent Thomas also challenges the sufficiency of the evidence to support his convictions for the remaining two bail jumping convictions, we reject Thomas’s argument and affirm those convictions.
Background
¶2 Thomas was charged with a total of twenty-one separate offenses, arising from four Iron County Circuit Court cases—three counts of disorderly conduct, two counts of second-degree reckless endangerment, three counts of stalking, four counts of battery, seven counts of felony bail jumping and one count each of false imprisonment and burglary.[1] The majority of the charges arose from domestic abuse allegations involving Thomas’s girlfriend, Carla Fahrner. The charges also included one count of misdemeanor battery to Travis Tobisch and one count of disorderly conduct involving Jeffery Peterson. After a trial, the jury found Thomas guilty of all seven bail jumping counts, misdemeanor battery of Tobisch and disorderly conduct with regard to Peterson. Thomas filed a motion for judgment notwithstanding the bail jumping verdicts. The circuit court denied the motion after a hearing and entered judgment upon the verdicts. This appeal follows.
Discussion
¶3 Thomas contends there can be only one conviction for bail
jumping because the jury found he committed only one act that violated the
conditions of his bond. We
disagree. As the State correctly
asserts, a defendant can be convicted of multiple counts of bail jumping for
committing a single act that violates a condition included in each of several
bail bonds. State v. Richter, 189
¶4 As the State notes, however, the battery of Tobisch formed
the basis for only two of the seven counts of bail jumping charged. As a condition of the bonds arising from two
separate cases, Thomas was not to commit another crime. Counts one and two of
¶5 Thomas nevertheless argues there was insufficient evidence to support the bail jumping convictions based on the battery of Tobisch. Thomas’s argument hinges on the court’s jury instruction for bail jumping. The court defined bail jumping under Wis. Stat. § 946.49(1)[3] and instructed the jury on the elements of the offense. Relevant to this appeal, the court’s instruction included the following:
Three, the Defendant intentionally failed to comply with the terms of the bond. This requires the Defendant knew of the terms of the bond and knew that his actions did not comply with those terms.
The Defendant is charged with violating a condition of bond that required that he not commit any crime. The State alleges that the Defendant committed the crime of battery. The State must prove by evidence which satisfies you beyond a reasonable doubt that the Defendant committed the crime of battery.
The crime of battery is committed by one who causes substantial bodily harm to another by an act done with the intent to cause bodily harm to that person or another. (Emphasis added.)
¶6 Thomas argues that because the evidence established Tobisch suffered only ordinary bodily harm, rather than substantial bodily harm, the State failed to satisfy its burden of proving Thomas committed the crime of battery, as it was instructed to the jury, while he was released on bond. The State concedes that Tobisch suffered only ordinary bodily harm, but nevertheless contends that the question here is not whether the evidence was sufficient to convict Thomas of the crime described in the instructions but, rather, whether it was sufficient to convict him of the crime charged in the complaint. We agree.
¶7 The test for determining the sufficiency of the evidence
assesses whether the State has met its burden of proving every essential fact
of the crime charged. Turner
v. State, 76
¶8 The State introduced evidence showing that Thomas was
released on bond in two felony cases and a condition of bond in both cases was
that Thomas not commit another crime.
¶9 Although the court ultimately misspoke by advising the jury
there had to be substantial bodily harm for a battery, we conclude the error
was harmless. As the State points out,
an earlier instruction advising the jury of the elements of the crime of
battery properly indicated that a battery is committed by causing ordinary
bodily harm. A correct statement of the
law in another part of the charge can render an incorrect statement harmless
when the charge as a whole does not misdirect the jury. State v.
By the Court.—Judgments affirmed in part; reversed in part.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Thomas was acquitted of the disorderly conduct and battery charges arising from Iron County Circuit Court case No. 2007CF29. That case is, therefore, not a part of this appeal.
[2] Although the State concedes error with respect to the five bail jumping convictions, it argues that Thomas may be retried on the five reversed counts if based on a different theory. Because that issue is not properly before us, we express no opinion on the State’s assertion.
[3] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[4] We note that Thomas offers no argument
countering the State’s harmless error analysis.
Arguments not refuted are deemed admitted. See
Charolais
Breeding Ranches Ltd. v. FPC Secs. Corp., 90