State v. Charbarneau

• Decision Date: 05 April 1978
• Docket Number: No. 76-016-CR,76-016-CR
• Parties: STATE of Wisconsin, Respondent, v. Douglas Thor CHARBARNEAU, Appellant.
• Court: Wisconsin Supreme Court

Page 227

264 N.W.2d 227

82 Wis.2d 644

STATE of Wisconsin, Respondent, v. Douglas Thor CHARBARNEAU, Appellant.

No. 76-016-CR.

Supreme Court of Wisconsin.

Submitted on Briefs March 8, 1978.

Decided April 5, 1978.

Howard B. Eisenberg, State Public Defender, and Jack E. Schairer, Asst. State Public Defender, on brief, for appellant.

Bronson C. La Follette, Atty. Gen., and Wm. L. Gansner, Asst. Atty. Gen., on brief, for respondent.

HEFFERNAN, Justice.

The action was commenced by the filing of a criminal complaint on December 29, 1975, charging the defendant with burglary, contrary to sec. 943.10, Stats., and theft, contrary to sec. 943.20. An information was filed on January 13, 1976, charging the defendant with these crimes. The defendant was arraigned on January 19, 1976, and pleaded not guilty to both charges. Jury trial was waived.

The prosecutor became aware, before trial, that he would only be able to make out a case against this defendant on a party-to-a-crime theory, under sec. 939.05, Stats. As a result, on February 20, 1976, he filed an amended information, charging the defendant with the same two substantive counts, but specifying the reliance on sec. 939.05 as to each count. Trial was held to the court on February 24, 1976. Before the commencement of the trial, defense counsel objected to proceeding on the amended information without a new arraignment. As a result, the prosecutor withdrew the amended information, and trial proceeded on the original information.

At the conclusion of the trial, the trial judge found the defendant guilty of both counts. Four year sentences were imposed on each count, the sentences to run concurrently. Judgment of conviction was entered on March 1, 1976. Appeal is from this judgment.

Two issues are involved in this appeal: First, did the prosecutor, by withdrawing the amended information at the beginning of the trial, thereby waive reliance on the party-to-a-crime theory? Second, if this theory was not waived, was the evidence adduced at trial sufficient to sustain the convictions?

No contention is made in this case that the evidence was sufficient to convict the defendant on any other theory than party-to-a-crime. If the prosecutor waived his reliance on that theory, the convictions must be reversed.

Sec. 939.05, Stats., provides for prosecution, as a principal, of anyone "concerned in the commission of a crime," whether that person directly committed the crime, aided and abetted in its commission, or conspired to commit it. The purpose of the statute was to abolish the common-law distinction between principals and accessories. State v. Shears, 68 Wis.2d 217, 239, 229 N.W.2d 103 (1975). The statute makes one person vicariously liable for a substantive offense committed by another. State v. Nutley, 24 Wis.2d 527, 554, 129 N.W.2d 155 (1964), cert. denied, 380 U.S. 918, 85 S.Ct. 912, 13 L.Ed.2d 803 (1965).

This court has repeatedly commended the practice of referring to sec. 939.05, Stats., by number, in the information when the prosecutor knows that the proof is such that a conviction can only be based on a party-to-a-crime theory. La Vigne v. State, 32 Wis.2d 190, 195, 145 N.W.2d 175 (1966); Bethards v. State, 45 Wis.2d 606, 617, 173 N.W.2d 634 (1970); Hardison v. State, 61 Wis.2d 262, 271, 212 N.W.2d 103 (1973). This practice is not, however, mandatory. Bethards, supra; Hardison, supra. The statute by its terms authorizes charging the defendant as a principal. La Vigne, supra; Harrison v. State, 78 Wis.2d 189, 208, 254 N.W.2d 220 (1977). In the absence of a detrimental effect on the defendant, the failure to specifically refer to sec. 939.05 in the information is harmless error. Bethards, supra, 45 Wis.2d at 618, 173 N.W.2d 634; Hardison, supra, 61 Wis.2d at 271, 212 N.W.2d 103.

The present record does not support a claim of detrimental effect on the defendant. The criminal complaint in this case, which was quite lengthy, spelled out the crimes alleged, by reference to facts which lead to conviction only on a party-to-a-crime theory. These facts are the same facts which were adduced at trial.

Moreover, before trial, the prosecutor filed an amended information, specifying reliance on sec. 939.05, Stats. This amended information was withdrawn when the defendant's attorney objected to proceeding without a new arraignment. There could be no reasonable claim, however, that the defendant was not put on notice of the theory of the prosecutor. Defendant's claim to the contrary is unfounded in light of the following discussion at the time the amended complaint was withdrawn:

"MR. MONTABON (Prosecutor): That Amended Information was filed for the purpose of making very clear to the defendant that the acts that the evidence in this case would show that he was guilty of this crime by being a party to the crime but not directly committing it. I believe that the Supreme Court cases say that it is a better practice for the prosecution, when they are aware that this is what their case is based on, that the defendant be informed of this, although it is not mandatory that this be done. . . .

". . .one "COURT: May I inquire of the District Attorney, do you want Are you asking leave to withdraw the Amended Information and to proceed on the original Information?

"MR. MONTABON: I think according to case law, we can very well proceed on the original Information yes.

"COURT: Is that your request then?

"MR. MONTABON: Yes, Your Honor.

"COURT: You are asking leave to withdraw the Amended Information?

"MR. MONTABON: Correct. If he is objecting to that Information, I do not want that to interfere with these proceedings.

"COURT: Any objection to that request as made?

"MR. NIENOW (Defense Counsel): No.

". . .E (

"COURT: I do believe that able counsel for the defendant is acquainted with the laws that pertain to a charge law pertaining to charges of this kind in that I do understand the law to be that our Supreme Court has stated there is no real necessity to allege in the criminal charges in any criminal charge to make reference in that criminal charge under Section 939.05 as he has done in this instance.

"MR. NIENOW: I recognize that, but he said he was going to make it more specific, et cetera, and so on. It is my point he hasn't done that, referring to 939.05. It doesn't mean anything.

"COURT: And the particular case that I made note of was 61 Wis. 262

"MR. NIENOW: I recognize those cases."

This colloquy belies any claim that the withdrawal of the amended information led the defendant to believe that the prosecutor would attempt to prove that the defendant directly committed the crimes charged. No detrimental effect to the defendant is shown on this record as a result of the failure to refer to sec. 939.05, Stats., in the original information.

Similarly, the discussion quoted above indicates clearly that, in withdrawing the amended information, the prosecutor had no intention of waiving reliance on the party-to-a-crime theory, nor could the defendant reasonably have believed that he did. The "waiver" theory advanced by the defendant is without support in the record.

The convictions were amply supported by the evidence. The test on review of the sufficiency of the evidence in a criminal case has been capsulated as follows:

"Several rules applied in appellate review of the sufficiency of the evidence in criminal cases have been stated so frequently in our late cases that they need no citation of authority to support them. The burden of proof is upon the state to prove every essential element of the crime charged beyond reasonable doubt. The test is not whether this court or any of the members thereof are convinced beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true. A criminal conviction can stand based in whole or in part upon circumstantial evidence. The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted. Our review of the record in response to a challenge to the sufficiency of the evidence is so limited by these rules." Bautista v. State, 53 Wis.2d 218, 223, 191 N.W.2d 725, 727 (1971).

Accord, Taylor v. State, 55 Wis.2d 168, 176-77, 197 N.W.2d 805, (1972); Whitmore v. State, 56 Wis.2d 706, 713, 203 N.W.2d 56 (1973).

The convictions in this case can only be sustained on a party-to-a-crime theory, under sec. 939.05, Stats. There are two different party-to-a-crime theories embodied in the statute. Sec. 939.05(2)(b) relates to guilt as an aider and abettor, while sec. 939.05(2)(c) relates to guilt as a conspirator.

There are several different ways in which liability as an aider and abettor has been described. In State v. Nutley, supra, 24 Wis.2d at 554-55, 129 N.W.2d at 167, the liability was described as follows:

"Under the complicity theory of sec. 939.05(2)(b), a person is liable for the substantive crime committed by another if (1) he undertakes conduct (either verbal or overt action) which as a matter of objective fact aids another person in the execution of a crime, and further if (2) he consciously desires, or 'intends' that his conduct will yield such assistance."

To like effect, see, Hawpetoss v. State, 52 Wis.2d 71, 187 N.W.2d 823 (1971). Wis. J.I.-Criminal, Part I, 400(A) provides:

"A person intentionally aids and abets the commission of a crime when, acting with knowledge or belief that another person is committing or intends to commit a crime, he knowingly either

"(a) renders aid to the person who commits the crime, or

"(b) is ready and willing to render aid,...