COURT OF APPEALS DECISION DATED AND RELEASED December 12, 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. 95-3172-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TIMOTHY L. BAHLER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Columbia County: JOHN R. STORCK, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Timothy L. Bahler appeals from a judgment of
conviction and order denying his motion for postconviction relief. We affirm.
A jury convicted Bahler
of several felonies, only one of which is relevant to this appeal. Bahler argues that the evidence is
insufficient to support his conviction for battery during a burglary, contrary
to § 943.10(2)(d), Stats. As argued by Bahler, the issue is narrow:
whether the battery was "a natural and probable consequence" of the
burglary. See
§ 939.05(2)(c), Stats. We affirm a conviction unless the evidence,
viewed most favorably to the State, is so insufficient in probative value that,
as a matter of law, no reasonable trier of fact could have found guilt beyond a
reasonable doubt. State v.
Poellinger, 153 Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990).
Although the jury
specifically asked for an instruction on the meaning of the term "natural
and probable consequence," the court stated it could not locate a
definition in the case law, so it referred the jury to the instructions they
had already been given and declined to give an additional instruction. Defense counsel did not object. Both Bahler and the State argue that we
should base our review of the sufficiency of the evidence on the meaning of
"natural and probable consequence" as found in relevant law and
available jury instructions. But since
it does not make sense to base our review on instructions not given to the
jury, we consider instead what reasonable jurors may have concluded using
common meanings of the term.
In that light, we
believe a reasonable fact finder could conclude that the battery was a natural
and probable consequence of the burglary.
The burglary was committed by several people entering the house of an
elderly woman during the early morning hours.
Some of these same persons, including Bahler, previously attempted a
burglary at the same residence at that hour but abandoned the plan when the
occupant awakened. Before the second
burglary, the parties to the crime discussed the possibilities for preventing
the victim from seeing them. This constituted
sufficient evidence.
Bahler next argues that
we should use our power of discretionary reversal under § 752.35, Stats., on the ground that the real
controversy was not fully tried. He
argues that his trial counsel's failure to request an instruction on the term
"natural and probable consequence" precluded a full trial. We reject the argument. While the jury may not have applied the
precise legal definition that the complete instruction would have provided, the
legal definition is not so far removed from the ordinary meaning that we can
conclude the real controversy was not fully tried.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.