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COURT OF APPEALS DECISION DATED AND RELEASED January 18, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2586-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RICHARD C. BLACKER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Sauk County:
JAMES EVENSON, Judge. Affirmed.
Before Eich, C.J.,
Dykman and Sundby, JJ.
PER
CURIAM. Richard C. Blacker appeals from a judgment convicting
him of burglary. He contends there is
no evidence of one element of the crime, namely whether he intentionally
entered the building. We conclude that
there was sufficient circumstantial evidence of Blacker's intentional entry to
convict him of burglary. Therefore, we
affirm.
A jury found Blacker and
his co-defendant, Willard F. Espinoza, guilty of burglarizing the Meyers'
unoccupied residence, contrary to § 943.10(1)(a), Stats.[1] One of the elements of burglary requires
proof that the defendant intentionally entered a building. See § 943.10(1)(a).[2] The State concedes there was no direct
evidence of intentional entry.
[T]he
standard for reviewing the sufficiency of the evidence to support a conviction
is the same in either a direct or circumstantial evidence case. Under that standard, an appellate court may
not reverse a conviction unless the evidence, viewed most favorably to the
State and the conviction, is so insufficient in probative value and force that
it can be said as a matter of law that no trier of fact, acting reasonably,
could have found guilt beyond a reasonable doubt.
State
v. Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990)
(emphasis added).
It is the function of the trier of fact,
and not of an appellate court, to fairly resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.
In viewing evidence which could support
contrary inferences, the trier of fact is free to choose among conflicting
inferences of the evidence and may, within the bounds of reason, reject
that inference which is consistent with the innocence of the accused. Thus,
when faced with a record of historical facts which supports more than
one inference, an appellate court must accept and follow the inference drawn by
the trier of fact unless the evidence on which that inference is based is
incredible as a matter of law.
Id. at
506-07, 451 N.W.2d at 757 (citations omitted).
We summarize the circumstantial evidence on Blacker's intentional entry
which is most favorable to the conviction.
Blacker and Espinoza
operated a construction and demolition business. Espinoza was familiar with the Meyer farm and residence. Blacker and Espinoza were seen at the Meyer
residence a month before the burglary.
When questioned by a neighbor, they claimed they were interested in the
barn. However, wet footprints led to
the back door of the residence rather than to the barn. The back door of the residence was warped
and would not lock. A neighbor went
through the house and noticed that someone had rummaged through the
drawers.
On the day of the
burglary, a neighbor testified that he saw Blacker sitting in a truck with a
state-owned license plate at the Meyer residence.[3] Blacker told him that he worked for the
state and was foreclosing on Meyer's furnishings to haul to Madison for an
auction.
Later that day, Blacker
was taken into custody for a traffic offense.
When searched, police found a screwdriver, keys, two antique letter
openers and three hinge pins in Blacker's pockets. The arresting officer testified that the hinge pins appeared to
have fresh scratch marks on them.
Although these items were returned to Blacker, when asked for them later
that day, Blacker claimed to have lost them.
Searching the residence,
Meyer and the police found that three hinge pins had been removed from the
locked front door and the wood near the top of the hinges had marks which
appeared to be fresh. The deputy
sheriff testified that the hinge pins found in Blacker's pockets appeared to
match the color of the hinges from that door.
Disassembled furniture from the upstairs bedrooms was stacked
downstairs. Meyer testified that it
would require two people to disassemble and move that size furniture
downstairs. A neighbor also testified
that he saw Espinoza leave the residence, although Blacker denied having been
there that day.[4]
There is ample
circumstantial evidence to support the jury's reasonable inferences that
Blacker intentionally entered the Meyer residence. Blacker's surveying that residence on a prior occasion, his
incredible excuse that he was foreclosing on furnishings for the state,
concomitant to his denial that he was there on the date of the burglary despite
a neighbor's contrary testimony, his being found with "tools" allegedly
from the Meyer residence, and Meyer's opinion that the furnishings could not
have been moved and disassembled by one person, provide ample circumstantial
evidence from which the jury could reasonably infer that Blacker intentionally
entered the Meyer residence. Although
Blacker offers hypotheses consistent with innocence, such as carrying these
"tools" for his business, the jury found the facts, assessed the
witnesses' credibility, weighed the evidence and drew reasonable inferences
from that evidence. See Poellinger,
153 Wis.2d at 506, 451 N.W.2d at 757.
"[We] must accept and follow the inference drawn by the trier of
fact unless the evidence on which that inference is based is incredible as a
matter of law." Id.
at 507, 451 N.W.2d at 757. This evidence
is not incredible.
Because we do not
distinguish between direct and circumstantial evidence, the State need not
present direct evidence of Blacker's intentional entry. There is an abundance of circumstantial
evidence from which the jury drew reasonable inferences of Blacker's
intentional entry.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.