State v. Burroughs, 01-0738-CR.

Decision Date19 December 2001
Docket NumberNo. 01-0738-CR.,01-0738-CR.
Citation2002 WI App 18,640 N.W.2d 190,250 Wis.2d 180
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Charles J. BURROUGHS, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of William F. Mross of William F. Mross, Ltd., of Racine.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Robert J. Jambois, district attorney, Kenosha county. Before Nettesheim, P.J., Brown and Anderson, JJ.

¶ 1. NETTESHEIM, P.J.

Charles J. Burroughs appeals from a judgment of conviction for kidnapping and attempted first-degree sexual assault with the use of a dangerous weapon contrary to WIS. STAT. §§ 940.31(1)(b) and 940.225(1)(b), as a habitual criminal pursuant to WIS. STAT. § 939.62(2) (1999-2000).2 Burroughs additionally appeals his life sentence without possibility of parole pursuant to the "persistent repeater" statute or "three strikes" law, § 939.62(2m)(b), (c), and the trial court's order denying his motion for postconviction relief.

¶ 2. Burroughs raises three arguments on appeal. First, Burroughs challenges the sufficiency of the evidence on the "confinement" element of the kidnapping charge. We reject Burroughs' argument. We conclude there was sufficient evidence that Burroughs confined his victim, Sharon B., by depriving her of freedom of movement and compelling her to remain where she did not wish to remain.

¶ 3. Burroughs' second and third challenges pertain to his sentence of life without the possibility of parole as a "persistent repeater" under the "three strikes" law, WIS. STAT. § 939.62(2m)(c). Specifically, Burroughs challenges the use of his conviction in 1975 in the state of Alabama for "assault with intent to murder" as one of the prior "serious felony" convictions pursuant to § 939.62(2m)(b)1. Burroughs contends the Alabama conviction was not "comparable" to any "serious felony" set out in Wisconsin law as required by § 939.62(2m)(d). Burroughs further contends that there is insufficient evidence to demonstrate that his plea underlying the Alabama conviction was entered freely and voluntarily. We reject Burroughs' arguments on this issue. We conclude that Burroughs' prior conviction is comparable to the Wisconsin felony of attempted murder and that, pursuant to State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528,reconsideration denied, 2001 WI 15, 241 Wis. 2d 214, 626 N.W.2d 810 (Feb. 7), opinion clarified, 2001 WI 6, 241 Wis. 2d 85, 621 N.W.2d 902 (Feb. 9) (No. 99-0554-CR), the trial court need not determine whether Burroughs' plea was entered freely or voluntarily because Burroughs was represented by counsel. We therefore conclude that Burroughs' Alabama conviction provided a proper basis for the repeater portion of his conviction.

¶ 4. We affirm the judgment of conviction and the order denying Burroughs' motion for postconviction relief.

FACTS

¶ 5. The evidence at the jury trial established the following facts. The crimes charged against Burroughs occurred during the early morning hours of February 10, 1996. The victim, Sharon B., had met Burroughs prior to that date through her cousin, Lisa. Sharon understood Burroughs to be Lisa's boyfriend. On February 9, Sharon's aunt called her to inform her that Lisa was missing and to ask if Sharon would help Burroughs look for Lisa. Sharon agreed and accompanied Burroughs to two bars and an apartment where he believed Lisa might be hanging out. Their search was unsuccessful and Burroughs returned Sharon to her residence. At that time, Burroughs asked Sharon if he could call her if he found Lisa so that Sharon could accompany him to bring her home. Sharon agreed, knowing that Lisa would be more likely to come home if she were present.

¶ 6. At some point in the early morning of February 10, 1996, Burroughs returned to Sharon's residence, blowing his car horn. Sharon approached the vehicle and Burroughs indicated that he had found Lisa. Sharon got into Burroughs' car and he drove to a bar. Burroughs went into the bar and returned shortly. Sharon asked where Lisa was and Burroughs took her to another residence, indicating that he needed to make another phone call. Sharon stated that she would wait in the car. However, when Burroughs reminded her that they were in a bad neighborhood, Sharon agreed to accompany him into the residence.

¶ 7. Before entering an apartment in the residence, Burroughs had to unlock the main door of the residence and the apartment door using keys. Once inside the apartment, he attempted to make a phone call while Sharon took a seat in a chair by the door. Burroughs closed the curtains, stating that there were "nosey people" outside. Burroughs then turned to Sharon, asking her why she was shaking. He said, "[I]f you tell me . . . what happen[ed] to you I can let you go." Burroughs began to hug Sharon and then raised his fists saying, "[Y]ou know what you gotta do." Sharon backed up to the middle of the room and Burroughs instructed her to take her clothes off. Sharon refused until Burroughs reached behind his back and threatened to shoot her. Believing Burroughs had a gun behind his back, Sharon then took off everything but her bra.

¶ 8. Burroughs then told Sharon to sit on a small cot in a different, smaller room. Sharon refused until Burroughs said, "I'm not playing with you, sit . . . down." Next, Burroughs ordered Sharon to lie down. She did so, and he proceeded to lie down next to her. Sharon testified that she was very upset at this point and "everytime [she] would try to raise up he would pull [her] down." Sharon cried for help and Burroughs told her to "shut up." Burroughs then said to Sharon that she would have to "give him some." Sharon understood this to mean that she would have to have sexual contact with Burroughs. Sharon then told Burroughs that she needed to go to the bathroom. Burroughs initially told her she did not need to go but then stood up and guided her to the bathroom. Burroughs stood over Sharon while she used the bathroom. When Sharon finished she tried to exit the bathroom toward a light from outside, but Burroughs guided her back into the bedroom. Once in the bedroom, Burroughs stood at the door facing her and told her to get back on the bed. When Burroughs started to take off his pants, Sharon was able to run past him. She ran screaming to the door of the separate apartment and then to the door of the house, which she had to unlock before exiting. Sharon received assistance from two people in a car she approached on the street, who later called the police.

¶ 9. The State filed a criminal complaint against Burroughs alleging attempted first-degree sexual assault as a repeat offender. Following a bindover at the preliminary hearing, the State filed an information again alleging attempted first-degree sexual assault but adding a charge of kidnapping as a persistent repeat offender. As to kidnapping, the information alleged that Burroughs confined Sharon without her consent and with intent to cause her to be held secretly against her will. However, in an amended information, the State eliminated the secrecy allegation and instead alleged that Burroughs confined Sharon without her consent and with intent to cause her to be held to service against her will pursuant to WIS. STAT. § 940.31(1)(b).3

¶ 10. Burroughs' first jury trial commenced in April 1998. The jury found Burroughs guilty of both offenses. Prior to sentencing, the trial court found that Burroughs' 1975 conviction for "assault with intent to murder" in Alabama was comparable to the Wisconsin felony of attempted first-degree intentional homicide. Therefore, Burroughs was subject to increased penalties under Wisconsin's "three strikes" law, WIS. STAT. § 939.62(2m)(b), (c), and the court sentenced Burroughs to life in prison without parole.

¶ 11. Burroughs filed a motion for a new trial on August 10, 1999, arguing, among other things, that certain testimony from his ex-wife was erroneously admitted at the jury trial. The trial court granted his motion and the matter proceeded to a second jury trial in February 2000. The jury convicted Burroughs, and he was again sentenced to life in prison without possibility of parole.

¶ 12. Burroughs filed a motion for postconviction relief on October 13, 2000, in which he renewed his argument that the Alabama conviction was not comparable to a Wisconsin offense and, therefore, could not be used as a basis for a repeater allegation. The trial court denied the motion, and Burroughs appeals.

DISCUSSION
Sufficiency of Evidence as to Confinement

¶ 13. Burroughs first argues that the evidence was insufficient to support a conviction of kidnapping. Specifically, he contends that there was insufficient evidence at trial to satisfy the "confinement" element of WIS. STAT. § 940.31(1)(b).

[1-3]

¶ 14. In determining whether the evidence is sufficient to support a conviction, we bear in mind that the burden of proof at trial is upon the State to prove every essential element of the crime charged beyond a reasonable doubt. State v. Hamilton, 120 Wis. 2d 532, 540, 356 N.W.2d 169 (1984). "The test is not whether this court or any member is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude that a trier of facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true." Id. at 540-41. In reviewing the record, we view the evidence in the light most favorable to sustaining the conviction. Id. "Reasonable inferences drawn from the evidence can be used to support a conviction; if more than one reasonable inference can be drawn from the evidence, the inference which supports the conviction is the one that the reviewing court must adopt." Id.

¶ 15. As relevant to ...

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