Hicks v. State

• Decision Date: 28 April 1970
• Docket Number: No. S,S
• Citation: 176 N.W.2d 386,47 Wis.2d 38
• Parties: George L. HICKS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 149.
• Court: Wisconsin Supreme Court

Page 386

176 N.W.2d 386

47 Wis.2d 38

George L. HICKS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 149.

Supreme Court of Wisconsin.

April 28, 1970.

Rehearing Denied June 26, 1970.

On November 18, 1967, at approximately 8:05 p.m., the Milwaukee police department responded to a Merchant Police Alarm at the Manpower, Inc., building, located at 826 North Plankinton avenue. Upon arrival Officer Larry Godager observed a subject alongside the building, who, after dropping two objects, fled to the rear of the building.

Upon a search of the area, George Hicks (hereinafter the 'defendant') was found hidden in a large dipsy dumpster garbage container. In addition, two typewriters were found on the ground near a fire escape in the area where the subject was first seen by Officer Godager. Four other typewriters, as well as two tape recorders and a copying machine, were found on the fire escape outside the sixth floor of the building.

Following his arrest the defendant waived a jury trial and was convicted of burglary in violation of sec. 943.10(1)(a), ¹ Stats. He now seeks review of an order denying his motion for a new trial.

Additional facts will be stated in the opinion.

Michael Skwierawski, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty. of Milwaukee Co., Allen L. Samson, Asst. Dist. Atty., Milwaukee, for defendant in error.

HANLEY, Justice.

The sole issue presented on this appeal is whether the evidence was sufficient to prove defendant's guilt beyond a reasonable doubt.

In reviewing the sufficiency of the evidence, the test applied by this court '* * * is not whether this court is convinced of the defendant's guilt beyond a reasonable doubt but whether the trier of facts, acting reasonably, could be convinced to the required degree of certitude. * * *' Berg v. State (1969), 41 Wis.2d 729, 743, 165 N.W.2d 189, 196.

Thus the evidence adduced at the defendant's trial must have been sufficient for the trier of fact to determine beyond a reasonable doubt that the defendant's conduct included the three essential elements of burglary:

'(1) Intentional entry of building,

'(2) (W)ithout consent of the person in lawful possession, and

'(3) (W)ith intent to steal.' Strait v. State (1969), 41 Wis.2d 552, 555, 164 N.W.2d 505, 507.

It is the defendant's position on this appeal that the evidence is insufficient to establish either of the first two elements. Proof necessary to establish the third element was recently explained by this court in State v. Holmstrom (1969), 43 Wis.2d 465, 168 N.W.2d 574. However, no challenge is now made with reference to that element of burglary.

Although there is no direct evidence establishing the first element, i.e., that the defendant had entered the building, this court has stated that the '* * * degree of certainty required to sustain a criminal conviction may be attained upon circumstantial evidence as well as upon direct evidence.' State v. Johnson (1960), 11 Wis.2d 130, 136, 104 N.W.2d 379, 382. In the instant case, Mr. David Twells, a Manpower employee in charge of the building and its contents, testified that the itmes found outside the building had been used in a training school on the sixth floor of the building. From this testimony, coupled with the fact that a rear window on the second floor was open and that an alarm had been activated, the trier of fact could infer that someone had entered the building.

The defendant, however, contends that there was insufficient identification of the party whom Officer Godager saw flee to the rear of the building and that, therefore, even assuming such person had entered the building, the defendant cannot be equated with the individual who had entered the building.

It is true Officer Godager testified that when he arrived at the building it was dark (approximately 8:05 p.m.) and that when he first saw the subject drop the articles he was about 50 to 75 feet away. It is also true that upon cross-examination Officer Godager testified that he had lost sight of the subject for a moment, as the subject ran around the corner to the rear of the building, and that he had never seen the subject's face. However, there is circumstantial evidence which identifies the defendant as the subject and connects him with the entry of the building.

Officer Godager also testified that both the subject, whom he originally observed fleeing, and the defendant were wearing long black coast and scarfs, such as those used to preserve a process, on their heads. This identification, although obviously imperfect, coupled with:

(1) The fact that the area to which the subject ran had no means of egress other than that blocked by Officer Godager;

(2) The fact that the defendant was found in a large garbage can located in the area to which the subject ran; and

(3) The fact that no one else was found in the area,

is sufficient to justify the trial court's finding that the defendant had, in fact, been the subject who had entered the building.

The defendant's second contention that there is no evidence that entry into the building was without consent is premised on the trial court's sustainment of an objection to the following testimony of Mr. Twells:

'Q Did you on November 18, 1967, give this defendant, George Hicks, the consent to go into your (building) at 826 North Plankinton Avenue to remove therefrom articles of personal property...