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COURT OF APPEALS DECISION DATED AND RELEASED January 31, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2824-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In the Interest of
Charles G.K.,
A Person Under the Age
of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
CHARLES G.K.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Kenosha County:
FREDERICK P. KESSLER, Reserve Judge.
Affirmed.
SNYDER, J. Charles
G.K. appeals a juvenile court order finding him guilty of second-degree
reckless injury while armed with a dangerous weapon, contrary to § 940.23(2), Stats.[1] Charles contends that there was insufficient
evidence to support the juvenile court's finding. Because we conclude that the evidence presented was sufficient to
support the verdict, we affirm.
The juvenile court
adjudication arose from an incident in which Charles, Adam D., Joey C. and
several other youths were upstairs at Joey's residence. Adam tried to persuade
the others to go outside and ride his go-cart with him. Unable to convince anyone to accompany him, he
left and pushed the go-cart from the driveway.
The youths remaining
upstairs started fooling around with a pellet gun and fired several shots out
the window at the go-cart. Adam
testified that he heard one shot whistle by him, another hit the go-cart and
then felt a third shot hit him in the head.
The shots all occurred within a minute's time.
Adam ran back to the
house and one of the boys told him to come inside. Charles told Adam that he was sorry he hit him and that it had
been an accident. After Adam returned home
he told his brother what had happened; the police were notified and Adam was
taken to the hospital by ambulance.
The pellet had pierced
Adam's scalp and then traveled forward under the skin about an inch before
coming to rest. The emergency room
physician removed the pellet under local anesthesia.
Police investigated the
incident and Charles admitted shooting the pellet gun once at the go-cart, but
stated that Adam was about ten feet from it at the time.[2] In his statement to the police, Charles said
that after he had fired the single shot at the go-cart,[3]
Adam came running toward the house, saying he had been shot.
The juvenile court found
Charles guilty of the lesser-included offense of second-degree reckless injury
while armed with a dangerous weapon, and this appeal followed.
The single issue on
appeal is whether there was sufficient evidence presented to support the
verdict of the juvenile court. In
deciding whether a verdict was based on sufficient evidence, an appellate court
may not overturn the 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.” See State v. Poellinger,
153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990). The test of whether evidence is sufficient to support a guilty
verdict is whether this court can conclude that the trier of fact, acting
reasonably, could be convinced to the required degree of certainty by evidence
which it had a right to believe and accept as true. State v. Teynor, 141 Wis.2d 187, 204, 414 N.W.2d
76, 82 (Ct. App. 1987).
Charles contends that as
a matter of law there was insufficient evidence to support the verdict; he argues
that the injuries to Adam could not support the element of the offense “caused
great bodily harm.” This requires us to
construe the relevant statute. The
construction of a statute is a question of law which this court reviews de
novo. Wisconsin Hosp. Ass'n v.
Natural Resources Bd., 156 Wis.2d 688, 705, 457 N.W.2d 879, 886 (Ct.
App. 1990).
“Great bodily harm” is
defined in § 939.22(14), Stats.,
as “bodily injury which creates a substantial risk of death, or which causes
serious permanent disfigurement or ... other serious bodily injury.” In La Barge v. State, 74
Wis.2d 327, 334, 246 N.W.2d 794, 797 (1976), the supreme court stated that the
phrase “other serious bodily injury” had a distinct meaning and was intended to
broaden the scope of the statute. The
addition of this phrase was intended to include serious bodily injury of a kind
not encompassed in the specifics of the original statute. Id. “Serious bodily injury” are words of ordinary significance, well
understood by anyone of ordinary intelligence.
Id. at 334-35, 246 N.W.2d at 797‑98.
The juvenile court was
presented with testimony by the treating physician that he considered the
injury to Adam to be a serious injury.
When asked why he would consider it serious, he replied:
A.
Potential of this sort of injury, if it would have penetrated the skull,
it could have left a neurological injury.
If it would have hit the eye, it could have injured the eye.
....
Q.
How could it have been more serious?
A. Neurological injury to the brain, to the
eye, to the ear, or to the vital structures of the neck.
The
physician further testified that the most serious result, had the pellet struck
Adam about three inches anterior to the entrance wound, would have been death.
Additional testimony was
presented that just prior to the shooting, the gun was “pumped” six or seven
times in order to increase its power.[4] One youth testified that during target
practice, the pellet gun could penetrate both sides of an aluminum can and that
he had killed a squirrel with the pellet gun from a distance of approximately
thirty-five feet.
We conclude that the
juvenile court was presented with sufficient evidence to find that Charles' actions
caused “great bodily harm” to Adam. “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.”
Poellinger, 153 Wis.2d at 507, 451 N.W.2d at 758. The juvenile court's determination that
Charles' actions were contrary to § 940.23(2), Stats., was appropriate.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] It was originally alleged in the delinquency petition that Charles had committed the offense of first-degree reckless injury while armed with a dangerous weapon, contrary to § 940.23(1), Stats. At the conclusion of the trial, the court found Charles guilty of the lesser-included offense.