COURT OF APPEALS DECISION DATED AND RELEASED September
13, 1995 |
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. 95-0711-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
CITY
OF NEW BERLIN,
Plaintiff-Respondent,
v.
KENNETH
POLLICH,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Waukesha County: PATRICK L. SNYDER,
Judge. Affirmed.
SNYDER,
J. Kenneth
Pollich appeals from a judgment finding him in violation of New Berlin, Wis., Municipal Code §
9.15, designated “Destruction of Property Prohibited.” Pollich contends that the evidence was not
sufficient to support the jury verdict.
He further contends that because he was appearing pro se and failed to
object to inadmissible evidence, the verdict was not based on credible
evidence. We disagree and affirm the
trial court.
Pollich
resides in New Berlin. On August 10,
1993, a New Berlin police officer, Chris Jaekl, was dispatched to Pollich's
residence after an anonymous phone call was received. The caller indicated that Pollich had scooped up newly-laid
gravel from the roadbed in front of his house and placed it in his gravel
driveway.
When
Jaekl arrived, he observed that there was clean, white gravel along the
shoulder of the street, except in front of Pollich's property. The officer also observed patches of white
gravel in Pollich's gravel driveway.
When questioned by the officer, Pollich seemed nervous and evasive and
only concerned with the identity of the individual who had made the
complaint. Pollich was issued a
citation for a violation of New Berlin,
Wis., Municipal Code § 9.15(1), which states:
No person shall injure or intentionally deface, destroy,
take, or meddle with any property belonging to the City or any of its
departments or to any private person without the consent of the owner or proper
authority.
Richard
Hause, a street supervisor for the City of New Berlin, was subsequently asked
to inspect Pollich's property. He
observed that there was no gravel in front of the property, and the drop from
the new asphalt to the shoulder was more than three inches. The contractor was to place gravel along the
shoulder wherever the drop exceeded two inches. Hause also observed that the grass along the shoulder in front of
Pollich's property was a pale yellow color.
When limestone gravel is placed on grass, the lime in the gravel burns
the grass, turning it a pale yellow color.
The appearance of the grass in front of Pollich's house led Hause to
conclude that gravel had been placed there.
Pollich
appeared pro se and was found guilty in a bench trial in New Berlin municipal
court of violating § 9.15(1) of the municipal code. Pollich appealed to the Waukesha County Circuit Court, requesting
a jury trial. That trial was de novo
and Pollich again appeared pro se. A
jury of six found Pollich guilty and this appeal followed.
Pollich
contends that the jury verdict was not based on sufficient credible
evidence. When a verdict has the
approval of the trial court, it will not be upset unless there is no credible
evidence to support it. See York
v. National Continental Ins. Co., 158 Wis.2d 486, 493, 463 N.W.2d 364,
367 (Ct. App. 1990). If more than one
reasonable inference can be drawn from the evidence, the court accepts the
inference drawn by the jury. Id. This standard of review is the same whether
the evidence presented is testimonial or circumstantial. See Krueger v. State,
84 Wis.2d 272, 283, 267 N.W.2d 602, 607, cert. denied, 439 U.S. 874
(1978).
Pollich
contends that there was not sufficient evidence on which to base the jury
verdict. The jury heard Jaekl testify
that he received an anonymous phone call from a neighbor, stating that Pollich
had scooped up the fresh gravel and put it in his driveway. If hearsay evidence is admitted without
objection, the jury may rely on it. Caccitolo
v. State, 69 Wis.2d 102, 113, 230 N.W.2d 139, 145 (1975). Jaekl testified that he observed
freshly-laid gravel in front of every other house on the block except
Pollich's. There was testimony that
there were clean, white gravel patches in Pollich's driveway. When Pollich was questioned, Jaekl observed
that he was evasive and nervous, suggesting to Jaekl that Pollich was not being
honest.
Hause
also visited the Pollich property and was of the opinion that there had been
gravel in front of Pollich's house, but it had been moved. He based this on the fact that the grass had
turned a pale yellow color, as would be expected if burned by the lime in the
gravel. Hause also testified that the
three-inch drop from the new asphalt to the shoulder would have required the
contractor to place gravel there.
In
contrast to this testimony, the jury heard Pollich testify that he did not
remove any gravel. The jury determines
the credibility of the witnesses and the weight given to their testimony. York, 158 Wis.2d at 493, 463
N.W.2d at 367. Based on all the
evidence presented to the jury, a question of fact existed. The jury heard the testimony and reached a
verdict. There was sufficient evidence
to support the finding of the jury and we affirm.
The
second issue raised in the appeal is a contention that some of the evidence
heard by the jury was not admissible, and therefore not credible. Pollich directs this court's attention to
the evidence of the content of the anonymous call and to the reference made to
the outcome of the municipal trial.
While this evidence may or may not have been ruled admissible by the
trial court, Pollich's failure to object when it was offered precluded a ruling
on admissibility. There must be an
objection when evidence is offered for the admission of evidence to later be
reversible error. Chitwood v.
A.O. Smith Harvestore Prods., Inc., 170 Wis.2d 622, 636, 489 N.W.2d
697, 704 (Ct. App. 1992). This court
will not review issues raised for the first time on appeal. Bank One, Appleton, NA v. Reynolds,
176 Wis.2d 218, 222, 500 N.W.2d 337, 339 (Ct. App. 1993). Any objection to evidence must be made at
the time the evidence is introduced; otherwise the court will deem any contest
to the evidence waived. Bennett
v. State, 54 Wis.2d 727, 735, 196 N.W.2d 704, 708 (1972).
Pollich
did not object to any of the evidence offered at trial. The trial court is under no obligation to
represent a pro se defendant and offer objections to suspect testimony or
evidence. Because Pollich did not
challenge the admissibility of the evidence in court, he is precluded from
bringing this issue on appeal. The
issue of admissibility is waived, and we affirm the judgment of the trial
court.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.