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COURT OF APPEALS DECISION DATED AND FILED May 18, 2004 Cornelia G. Clark 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 orders of the circuit court for Milwaukee County: Timothy M. Witkowiak, Judge. Affirmed.
¶1 CURLEY, J.[1] Larenzo M.C. appeals from a dispositional order after the trial court adjudged him delinquent of one count of retail theft, as a party to a crime, one count of battery, and one count of disorderly conduct, contrary to Wis. Stat. §§ 943.50(1m), 939.05, 940.19(1), and 947.01 (2001‑2002).[2] He also appeals from an order lifting a previously ordered stay of execution. Larenzo contends that there was insufficient evidence to support the trial court’s findings that he committed the crimes listed above. Because we conclude there was sufficient evidence to support all three charges, we affirm.
I. Background.
¶2 On Saturday, September 28, 2002, Jovan Williams, while working as a loss control assistant for K-Mart, observed an individual conceal items in a backpack and leave the store without paying. Williams testified that he followed the individual, who appeared to be female because of how she was dressed, out of the store, apprehended her, recovered the backpack, and removed the stolen property. He maintained custody of the suspect until the Milwaukee Police arrived.
¶3 Milwaukee Police Officer Terence Wilson testified that when he arrived at the store, Williams had an individual in custody for retail theft. He stated that the person in custody was dressed as a female and identified “herself” as Angela Ring, giving a false date of birth and address. She later admitted that “she” was not really “Angela Ring,” and was subsequently identified as Larenzo M.C. Officer Wilson further testified that the suspect told him that he stole the items because the other girls told him to do so.
¶4 Larenzo was placed in non-secure custody at St. Charles, a Milwaukee County Detention Center, to be held until his court appearance on the following Monday. On Sunday, September 29, 2002, Larenzo left St. Charles and walked to Children’s Hospital, where he called for a cab.
¶5 Jaspal Singh was the taxicab driver dispatched to Children’s Hospital. He testified that he picked up what appeared to be a female and took “her” to the requested destination. Singh testified that Larenzo gave him $3.00 and said “she” would go into the house and get the rest of the $18.00 fare from “her” mother. Singh asked Larenzo how he would know where “she” was going and “she” replied, “if you don’t believe me, just follow me.” Larenzo went up to the house and knocked, but no one came out. Singh testified that Larenzo then asked him to drive to an aunt’s house on the next block.[3] He drove to the house and followed Larenzo into an alley where Larenzo told him to wait. Singh told Larenzo he wanted his money and Larenzo told him to come into the fenced area where “she” was standing.
¶6 Once Singh entered the fenced area, a pit bull ran up and bit him on the thigh. Larenzo had been holding the rope that controlled the dog, but he released it, allowing the dog to run up and bite Singh. Singh testified that Larenzo released the rope after “she” asked him if he still wanted his money and he said “yes.” Larenzo then pulled the dog in and repeated the question, but did not release the dog a second time because Singh answered “no” and proceeded to leave the fenced area. Singh then drove to a police station, showed several police officers his dog bite, and took them to the house where the incident occurred.
¶7 Milwaukee Police Officer David Kumbier reported that he arrived at the location of the dog bite incident and identified the suspect who had released the dog as Larenzo. While he was able to identify Larenzo in court, he did state that he had first believed Larenzo was female because of how he was dressed. Officer Kumbier testified that after he read Larenzo his rights, Larenzo told him that he had taken a cab from Children’s Hospital and the driver followed him into the fenced area without permission. Larenzo said that he and the cab driver were arguing over the fare and Larenzo was scared the cab driver might attack him. Larenzo claimed that during the argument, the pit bull became excited. He said he tried to hold the dog back, but when it tried to bite him, he let it go, and the dog bit the cab driver. Larenzo told Officer Kumbier that he pulled the pit bull off the cab driver and noticed the injury to the cab driver’s leg.
¶8 On Monday, September 30, 2002, Larenzo made an initial appearance for the charge of retail theft. In October, Larenzo pled not guilty to the retail theft charge and was ordered to remain in secure detention. In November, Larenzo was additionally charged with battery and disorderly conduct in connection with the dog bite incident.
¶9 On November 21, 2002, Larenzo was tried before the court on the retail theft charge. Williams and Officer Wilson testified as to the events surrounding the retail theft. Larenzo also testified on his own behalf. He stated that he went to K-Mart with several girlfriends and had no knowledge that the other girls were going to commit retail theft. Larenzo testified that the backpack belonged to one of the other girls, and that he did not remove price tags or take any clothing. The trial court found Larenzo delinquent of the retail theft charge.
¶10 On January 16, 2003, Larenzo was tried before the court on the battery and disorderly conduct charges from the dog bite incident. Singh and Officer Kumbier testified as to the events surrounding the dog bite incident. Larenzo also testified on his own behalf. He testified that he had a twenty-dollar bill and that Singh said he did not have change. Larenzo maintained that instead of giving him the large bill, he gave Singh the exact $16.00 he asked for.[4] He testified that after he paid the driver, Singh asked him for a “blow job.” Larenzo then exited the car and Singh followed him without his permission. Larenzo testified that the dog bit his left hand while he was trying to hold it back, and that is why he let the dog go and it bit Singh.
¶11 After finding Larenzo’s version of the events incredible, the trial court found him delinquent of battery and disorderly conduct, and the matter was set for disposition. Larenzo was subsequently placed at Lincoln Hills, a secured correctional facility, for one year. He now appeals.
II. Analysis.
¶12 Larenzo insists that there was insufficient evidence to support the trial court’s finding that he committed the crime of retail theft. He contends that Williams and Officer Wilson believed they were apprehending a female, and he argues that “Officer Williams” testified that he did not even recognize Larenzo in court as the person he apprehended. He also insists that no one actually saw him take the items from the K-Mart store.
¶13 Larenzo also argues that there was insufficient evidence to support the trial court’s finding that he committed the crimes of battery and disorderly conduct. He contends that there was inconsistent evidence presented concerning the cab fare, and that there “was no contrary evidence presented to refute Larenzo’s testimony that he had inadvertently let his dog loose after being bit in the hand.” He argues that since he was dressed as a female, “it would not be unreasonable for Larenzo to be suspect of Singh’s motives when he followed him out of the car.” Larenzo insists that there was “simply no evidence” to support the trial court’s finding that he intentionally let the dog loose. This court disagrees with both contentions.
¶14 “The test for sufficiency of the evidence to convict is highly deferential. We may not reverse unless the evidence is so insufficient in probative value and force that as a matter of law, no reasonable fact finder could have determined guilt beyond a reasonable doubt.” State v. Kimbrough, 2001 WI App 138, ¶12, 246 Wis. 2d 648, 630 N.W.2d 752. Indeed, “[o]nly when the evidence is inherently or patently incredible will [the court] substitute [its] judgment for that of the factfinder.” State v. Saunders, 196 Wis.2d 45, 54, 538 N.W.2d 546 (Ct. App. 1995) (citation omitted).
¶15 As the supreme court reiterated in State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990):
The burden of proof is upon the state to prove every essential element of the crime charged beyond reasonable doubt. The test is not whether this court or any of the members thereof are convinced [of the defendant's guilt] beyond a reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by the evidence it had a right to believe and accept as true. … The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted.
Id. at 503-04 (citations omitted) (alterations and omissions in original). An appellate court gives deference to a trial court’s findings because of “the superior opportunity of the trial court to observe the demeanor of witnesses and to gauge the persuasiveness of their testimony.” Kleinstick v. Daleidon, 71 Wis.2d 432, 442, 238 N.W.2d 714 (1976). Further:
It is the function of the trier of fact, and not this court, to resolve questions as to the weight of testimony and the credibility of witnesses. This principle recognizes the trial court’s ability to assess each witness’s demeanor and the overall persuasiveness of his or her testimony in a way that an appellate court, relying solely on a written transcript, cannot. Thus, we consider the trial judge to be the “ultimate arbiter of the credibility of a witness,” and will uphold a trial court’s determination of credibility unless that determination goes against the great weight and clear preponderance of the evidence.
State v. Hughes, 2000 WI 24, ¶2 n.1, 233 Wis. 2d 280, 607 N.W.2d 621 (citations omitted).
¶16 This court cannot conclude, as urged by Larenzo, that there are no reasonable inferences that can be drawn from the evidence to support the trial court’s finding that he committed retail theft. Larenzo alleges that Williams and Officer Wilson believed they were apprehending a female, contends that “Officer Williams” did not recognize Larenzo in court as the person he apprehended,[5] and presumably argues that there is insufficient evidence to establish that he was the individual involved. Williams testified, however, that he personally saw an individual, whom he thought to be female, take the items; followed the individual to a car; apprehended “her”; and maintained custody of the individual until he turned that person over to the Milwaukee Police Department. Officer Wilson testified that he was dispatched to the store, where he met Williams and the detained individual. While Williams was unable to identify Larenzo in court, presumably because he was no longer dressed as a female, Wilson did determine at K-Mart that the detained individual was Larenzo and was able to identify him in court.
¶17 Larenzo also argues that no one actually saw him take the items that were allegedly removed from the K-Mart store; however, Williams testified, and then repeated again during cross-examination, that he physically observed the individual he apprehended “conceal items into a back pack, [and then] exit the store,” without paying for the merchandise. During redirect examination, Officer Wilson also testified that Williams told him that he had observed Larenzo take items from the store.
¶18 It is the job of the trial court to weigh any inconsistencies in the evidence and the credibility of the witnesses. The trial court found that
the juvenile [was] delinquent for the charge of retail theft, primarily based on the testimony of the officer, indicating that the juvenile was, in fact, the person who took these items. And the testimony of Mr. Williams who indicated that that was the specific person that he saw take those items.
Larenzo has failed to establish that any of the evidence was patently or inherently incredible. Accordingly, as there is credible evidence to support the finding, this court rejects Larenzo’s challenge to the sufficiency of the evidence regarding the retail theft charge.
¶19 In regard to the battery and disorderly conduct charges, the trial court was presented with some inconsistent evidence. Yet, this court cannot conclude, as urged by Larenzo, that there are no reasonable inferences that can be drawn from the evidence to support a finding of guilt.
¶20 In finding that Larenzo committed the offenses, the trial court implicitly found Singh to be a credible witness and believed his testimony, notwithstanding the inconsistencies: “To me, it is pretty clear that Mr. Singh is a victim.” The inconsistencies in Singh’s testimony do not automatically render him an incredible witness. “Even though there [may] be glaring discrepancies in the testimony of a witness at trial, or between his trial testimony and his previous statements, that fact in itself does not result in concluding as a matter of law that the witness is wholly incredible.” Ruiz v. State, 75 Wis. 2d 230, 232, 249 N.W.2d 277 (1977). Indeed, “[i]t is only where no finder of fact could believe the testimony that we would be impelled to conclude that it was incredible as a matter of law.” Id. at 235 (citation omitted). This court simply cannot conclude that no finder of fact could believe Singh’s testimony. Furthermore, the trial court found that “L[a]renzo[’s] [] testimony [was] so incredible.”
¶21 The trial court weighed and considered the credibility of all of the evidence, and returned a finding of guilt. Accordingly, as there is credible evidence to support the trial court’s determination of guilt, this court similarly rejects Larenzo’s challenge to the sufficiency of the evidence regarding the charges of battery and disorderly conduct. Accordingly, this court affirms.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2).
[2] All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
[3] There is a discrepancy amongst the testimonies of Singh, Larenzo, and the police officer regarding where Larenzo was taken in the cab. Singh testified that he first took Larenzo to the mother’s house and then to an aunt’s house. Larenzo first testified that he was dropped at his mom’s house but only his uncle was home. On cross-examination, Larenzo then admitted that he was first taken to a friend’s house where no one was home and then to his mother’s house. Larenzo also stated during cross-examination that his mother did not answer the front door, and Singh drove around to the alley when Larenzo walked around the house to enter through the back. Officer Kumbier testified that Larenzo only told him about being taken to one house. However, regardless of whose house Larenzo went to, all three witnesses agree that Singh was bitten by Larenzo’s uncle’s pit bull.
[4] Larenzo originally testified that Singh asked for $16.75 even though the meter said $18.75, and that he did not give Singh the twenty-dollar bill because the driver had no change. Larenzo was then asked how much money he gave Singh, and Larenzo replied, “the $16.00 Singh asked for.” Larenzo later testified, during cross-examination, that he did give Singh the twenty-dollar bill and although the meter said $18.75, Larenzo received $4.00 in change back and left the cab. Singh testified that the cab fare was $18.00, and Larenzo only gave him $3.00. Officer Kumbier testified, however, that Singh told him the cab fare was $16.75 and Larenzo gave him $5.50.
[5] Williams, the employee, was not able to identify Larenzo in court. The transcripts indicate, however, that Office Wilson was able to identify Larenzo in court. This court presumes that by mistakenly writing “Officer Williams,” Larenzo was in fact referring to Jovan Williams, the employee.