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COURT OF APPEALS DECISION DATED AND RELEASED November 9, 1995 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0236-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
GERALD WILLS,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Dane County:
MICHAEL B. TORPHY, JR., Judge. Reversed
and cause remanded with directions.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER CURIAM. The State appeals from an order dismissing
one count of a criminal complaint. The
issue is whether there was sufficient evidence to establish probable cause to
bind Wills over on the charge of arson.
Because the preliminary hearing evidence provided a plausible account of
the State's theory that Wills probably committed arson, we reverse the
dismissal order and remand for further proceedings, despite the existence of a
plausible, yet contrary account negating Wills's guilt.
The State charged Wills
with arson to a building, contrary to § 943.02(1)(a), Stats., and other crimes. Following a preliminary hearing, the trial
court dismissed the arson count for insufficient evidence, which it summarized
as follows:
[A]
fire was set at a building that was located within a securely fenced compound;
that the fire was started at some time between 3:00 p.m. and approximately 8:30
p.m.; that the defendant was seen inside this compound at approximately 8:30
p.m. and apprehended a few minutes later having scaled the fence; that the
defendant admitted trying to steal the vehicle and stealing wrenches from the
vehicle and that he had a partial book of matches in his pocket; that the
defendant further denied having started the fire.
It
concluded that "[t]he presence of the defendant at the scene of an arson,
admittedly there to steal a vehicle, ... with a partial book of matches in
his pocket does not bring this Court to the conclusion that he probably
committed arson."
The focus of the judge at a preliminary hearing
is to ascertain whether the facts and the reasonable inferences drawn therefrom
support the conclusion that the defendant probably committed a felony .... If the hearing judge determines after
hearing the evidence that a reasonable inference supports the probable cause determination,
the judge should bind the defendant over for trial. Simply stated, probable
cause at a preliminary hearing is satisfied when there exists a believable or
plausible account of the defendant's commission of a felony.
State
v. Dunn, 121 Wis.2d 389, 397-98, 359 N.W.2d 151, 155 (1984).
[A]lthough
the judge at a preliminary examination must ascertain the plausibility of a
witness's story and whether, if believed, it would support a bindover, the
court cannot delve into the credibility of a witness. The issue as to credence or credibility is a matter that is
properly left for the trier of fact.
Id. at
397, 359 N.W.2d at 154-55 (citation omitted).
We limit our review to whether the State established a plausible account
that Wills probably committed arson. See
id. at 398, 359 N.W.2d at 155.
The State contends that
the trial court impermissibly rejected a plausible account of events that
established that Wills probably committed the arson. We agree.
The trial court
neglected to recite other circumstantial and direct evidence from the
preliminary hearing. For example, an
employe testified that he was the last person to leave the building. The employe also testified that there were
no flammable liquids or chemicals stored in that building. The controller testified that the building had
no lights and was without electrical or heat sources. An expert opined that the fire was incendiary in nature; it was
not accidental, or the result of a mechanical or electrical problem.
The Fire Chief testified
that he saw Wills about thirty to forty feet from the burning building. He yelled and waved his arms at Wills, who
looked directly at him, and then ran in the opposite direction. Wills then climbed over the eight-foot chain
link, barbed wire fence. After he was
apprehended, police found two wrenches, a partially used book of matches and a
burnt match in Wills's pockets. Wills
admitted that he was trespassing and that he stole the wrenches, but denied
responsibility for the fire.[1]
Although Wills
emphasizes inconsistent and arguably exculpatory evidence, the court is
required to bind a defendant over for trial if there is a plausible account
that defendant committed a felony, "even if a contrary but believable or
plausible account also exists." State
v. Sorenson, 152 Wis.2d 471, 481, 449 N.W.2d 280, 284 (Ct. App. 1989)
(quoting Dunn, 121 Wis.2d at 400, 359 N.W.2d at 156). We conclude that Wills's trespass in a
secure area, his proximity to the fire, his flight from the fire chief, including
scaling an eight-foot barbed wire fence, and the burnt match and partially used
book of matches found in his pockets, provide a plausible account that he
probably set the building on fire.
Although the jury may reject the plausible account that Wills committed
arson, the preliminary hearing court may not.
See Dunn, 121 Wis.2d at 397-98, 359 N.W.2d at 155.
By
the Court.—Order reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.