COURT OF APPEALS DECISION DATED AND RELEASED January 21, 1997 |
NOTICE |
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. 95-0655-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TROY W. JACKSON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: JOHN A. FRANKE, Judge. Reversed and cause remanded for a new
trial.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Troy W. Jackson appeals from a judgment of conviction
for first-degree intentional homicide, as party to a crime. See §§ 940.01(1) and 939.05, Stats.
He also appeals from an order denying his postconviction motion. In State v. Smith, 203 Wis.2d
288, 553 N.W.2d 824 (Ct. App. 1996), we reversed Jackson's co-defendant's
conviction for first-degree intentional homicide, as party to a crime and
remanded for a new trial because the trial court improperly refused to permit
Smith to impeach a state witness under Rule 906.09,
Stats. See Smith, 203 Wis.2d at 294-302, 553 N.W.2d
at 827-830. Smith and Jackson were
tried together. We are bound by Smith. See In re Court of Appeals of
Wisconsin, 82 Wis.2d 369, 371, 263 N.W.2d 149, 149–150 (1978) (per
curiam) (a published decision by one district of the court of appeals is
binding on the court of appeals).
Accordingly, we must reverse Jackson's conviction and remand for a new
trial as well.
Although we reverse
Jackson's conviction, the preservation of Jackson's right to freedom from
double jeopardy requires that we review the sufficiency of the evidence.[1] See State v. Ivy, 119
Wis.2d 591, 609-610, 350 N.W.2d 622, 631-632 (1984). “The standard for reviewing the sufficiency of the evidence to
support a conviction is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” State v. Rushing, 197 Wis.2d
631, 641, 541 N.W.2d 155, 159 (Ct. App. 1995).
The standard of review when the defendant challenges the sufficiency of
the evidence to support a conviction is the same whether it is a direct or
circumstantial evidence case. State
v. Poellinger, 153 Wis.2d 493, 501-502, 451 N.W.2d 752, 755
(1990).
The essential elements
of first-degree intentional homicide are:
(1) causing the death of another person; and (2) doing so with the
intent to kill that person. See
§ 940.01(1), Stats. A person is a party to a crime if he or she
directly commits the crime, intentionally aids and abets the commission of the
crime, or is a party to a conspiracy to commit a crime. See § 939.05(2), Stats.
Jackson's conviction
arises from the shooting of Travis Craig, who was killed while he stood at a
phone booth with his uncle, George Owens.
The State's theory was that Owens was the intended target of the
shooting and that Jackson and his co-defendant Walter Smith, as parties to a
crime, killed Craig while shooting at Owens.
The State further theorized that animosity between Jackson and Owens
over the quality of cocaine Jackson sold to Owens' girlfriend, Myrtle
Robertson, provided a motive for Jackson's involvement in the shooting. Although no physical evidence or eyewitness
testimony linked Jackson to the shooting, circumstantial evidence was supplied
through the testimony of Robertson.
At trial, Robertson
testified that on the day of the shooting, she saw Jackson and his girlfriend
outside her apartment. After she went
inside her apartment, she heard a gunshot.
She went outside and was informed by her friends that there was an
altercation between Jackson and Owens.
After she went back inside, Jackson and Smith came to her door looking
for Owens. Smith told her that she
would be shot if she did not tell him where to find Owens. Robertson stated that it appeared as if both
Smith and Jackson had guns; Smith's gun appeared to be an Uzi. Robertson walked with Smith and Jackson to
Owens' uncle's apartment in an attempt to find Owens. After failing to gain entry into the apartment, Robertson, Smith
and Jackson returned to Robertson's apartment.
Smith told Robertson that they really did not want Owens, they wanted
his son because Owens was not worth killing. Smith and Jackson then left the
apartment.
Later that evening,
while Robertson was on the phone, Jackson, his girlfriend and Smith knocked on
her door. Smith told Robertson that the
police may be coming by to question her but he warned her not to give the
police his name, threatening to kill her if she did. When the police arrived, she told them that it was Jackson, not
Smith, who had a gun when they first came to her apartment. She gave a second statement in which she said
Jackson had an Uzi-type gun. She later
gave a third statement in which she said that both Jackson and Smith were
carrying guns.
Jackson's challenge to
the sufficiency of this evidence centers on the absence of any direct evidence
linking him to the crime. We need not,
however, concern ourselves with the evidence that is missing. “If any possibility exists that the trier of
fact could have drawn the appropriate inferences from the evidence adduced at
trial to find the requisite guilt, an appellate court may not overturn a
verdict even if it believes that the trier of fact should not have found guilt
based on the evidence before it.” Poellinger,
153 Wis.2d at 507, 451 N.W.2d at 758.
The above evidence was sufficient for the jury to reasonably infer that
Jackson participated in the murder of Craig.
By the Court.—Judgment
and order reversed and cause remanded for a new trial.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.