|
COURT OF APPEALS DECISION DATED AND RELEASED February 28, 1996 |
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. 95-2954
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
OZAUKEE COUNTY,
Plaintiff-Respondent,
v.
MICHAEL C. BLOECHER,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Ozaukee County:
JOSEPH D. MC CORMACK, Judge. Affirmed.
SNYDER, J. Michael
C. Bloecher appeals from a judgment finding him guilty of disorderly conduct
contrary to Ozaukee County, Wis.,
Ordinance 8.02.[1] Bloecher makes four claims on appeal: (1) the trial court erred when it allowed
the County to amend the citation at the time of trial, (2) the evidence
presented was insufficient to support the conviction, (3) the trial court erred
when it allowed the County to present improper rebuttal evidence, and (4) the
conviction was a miscarriage of justice.
Because we conclude that Bloecher agreed to proceed under the amended
citation, that the evidence presented was sufficient, that the introduction of
the rebuttal evidence was not improper and there was no miscarriage of justice,
we affirm.
The underlying incident
leading to the citation occurred at Bloecher's home. Ozaukee County Deputy Sheriff Brian Glocke was on routine patrol
when he observed a pickup truck that was tipped on its side near a
farmhouse. When he stopped to investigate,
two small boys appeared and told Glocke that their mother had been driving. They also said that they had been in the
truck and that their heads hurt. In
response to Glocke's questioning, the boys stated that their parents were
fighting.
Glocke then called for
assistance. During this time, the boys
ran back into the house. When Glocke
approached the house and announced his presence, Bloecher and his wife, Kalee,
came to the door. They invited Glocke
inside. Kalee then told the deputy that
she and Bloecher had had a physical confrontation and that each of them had
been hitting the other.
An ambulance, summoned
because of the boys' possible head injuries, and a squad car with two
additional officers arrived. Their
arrival was followed almost immediately by the arrival of six of Kalee's
relatives, including her brother.[2] Subsequently, Bloecher's parents
arrived. Glocke testified that at this
point the officers were “having problems containing [all of the family
members].” He further testified, in
reference to Bloecher and his wife, that “[b]oth individuals, based on my
observations, were intoxicated.”
During Glocke's
continuing interview with Kalee, Bloecher demanded to see how his boys were
doing. Glocke informed Bloecher that he
still needed to talk to him, and Bloecher stated that he was going to look out
the front window. Bloecher walked into
the next room, and within five to ten seconds, Glocke heard glass
shattering. When he got up to
investigate, he saw Bloecher walking toward the kitchen, bleeding
profusely. Bloecher told the deputy
that he had been pointing at his brother-in-law and had accidentally broken the
glass. He was then transported by
ambulance to the hospital.
Bloecher was issued a
citation for harassment, contrary to Ozaukee
County, Wis., Ordinance 8.10, and he pled not guilty. At the start of a bench trial, the County
moved to amend the citation to disorderly conduct. Bloecher, appearing pro se, did not object. He was found guilty and this appeal
followed.
Bloecher's first claim
of error is based upon the trial court's allowing the amendment of the citation
at the start of the trial. This is
governed by § 802.09(2), Stats.,
which states that amendments to the pleadings “may be made upon motion of any
party at any time.” This section goes
on to state, “The court may grant a continuance to enable the objecting party
to meet such evidence.” Id.
A review of the record
shows that the County moved to amend the citation from a charge of harassment
to a charge of disorderly conduct.[3] Although Bloecher initially expressed
confusion with the County's request, he raised no objection to the
amendment. The trial court explained
the meaning of the County's motion and Bloecher responded, “Yes, your Honor. I guess I can go ahead with that.” Lacking an objection by Bloecher, we
conclude that there was no error.
Bloecher next contends
that there was insufficient evidence to support the conviction. On reviewing a claim of insufficient
evidence, this court may not overturn the conviction unless the probative value
of the evidence presented is so insufficient 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).
If more than one reasonable inference can be drawn from the evidence,
this court must adopt the inference which supports the conviction. State v. Hamilton, 120 Wis.2d
532, 541, 356 N.W.2d 169, 173-74 (1984).
The county ordinance for
disorderly conduct Bloecher was cited as violating reads in relevant part:
(1) Whoever does any of the following ....
(a)
In a public or private place engages in violent, abusive, indecent, profane,
boisterous, unreasonably loud or otherwise disorderly conduct in which such
conduct tends to cause or provoke a disturbance.
Ozaukee County, Wis., Ordinance
8.02. Evidence was presented at trial
that the crowd of relatives gathered outside of the house presented a problem
for the officers. The officers had
already threatened to arrest Kalee's brother because he kept trying to get into
the house. Although three officers were
present, in the words of Glocke, this was “[n]ot enough,” and every one of the
relatives represented a “potential problem.”
Glocke testified that after Bloecher put his hand through the glass,
Bloecher told him that some words had been said, that he had pointed at his
brother-in-law, and that was when his arm went through the window.
Based on our review of
the record, we conclude that there was sufficient evidence presented to the
trial court that Bloecher's actions tended to “cause or provoke a
disturbance.” See id. As the court noted, “aggravating a
disturbance might be a better way of putting it because there was practically a
disturbance under way already.” The
situation outside was such that the trial court could infer that Bloecher's
actions in breaking the window would provoke the disturbance, making it more
difficult to control the family members.
The trial court was presented with sufficient evidence to find that
Bloecher was engaged in disorderly conduct when he put his hand through the
window.
Bloecher next argues
that the trial court improperly admitted evidence during rebuttal. The general rule is that the plaintiff may
meet any new facts put in by the defendant.
Karl v. Employers Ins., 78 Wis.2d 284, 296, 254 N.W.2d
255, 260 (1977). However, this rule is
not inflexible, and the court may exercise discretion. Id. at 284, 254 N.W.2d at 260‑61. An exception is generally made when the
evidence is necessary to achieve justice. Id. at 284, 254 N.W.2d at 261.
In this case, Bloecher
had testified that breaking the window was a complete accident. He stated that when he struck the window it
was an unintentional slap meant to get the attention of his wife's family. He claimed that he hit the window “just [to]
tell them to leave.”[4] He also testified that when he was looking
out the window, his wife's family was standing outside and made “gestures and
looks as I was looking at them.”
In rebuttal, Glocke's
testimony clarified some of Bloecher's statements and contradicted others. Glocke testified that after the window was
broken, Bloecher told him that he had been pointing at his brother-in-law. Bloecher also told Glocke that he did not
get along with his brother-in-law, that some words were said, and when he
pointed at his brother-in-law his whole arm went through the window. Glocke's testimony merely responded to
Bloecher's contention that the entire episode was accidental. We conclude that there was no misuse of
discretion in permitting the rebuttal testimony.
Bloecher's final claim
is that the citation should be dismissed because justice has miscarried. He bases this upon his previous three claims
of error. Because we have concluded
that those arguments are without foundation, there is no basis upon which to reverse
the judgment. See Vollmer
v. Luety, 156 Wis.2d 1, 15, 456 N.W.2d 797, 803-04 (1990).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Bloecher was originally issued a citation for harassment contrary to Ozaukee County, Wis., Ordinance 8.10. This was amended at the start of the trial.