State v. Evers, 98-1287-CR
| Decision Date | 20 October 1998 |
| Docket Number | No. 98-1287-CR,98-1287-CR |
| Citation | 222 Wis.2d 626,587 N.W.2d 458 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. State of Wisconsin, Plaintiff-Respondent, v. James M. Evers, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Shawano County: EARL SCHMIDT, Judge. Affirmed in part; reversed in part.
James Evers appeals from a judgment of conviction and a postconviction order for causing injury by the operation of a snowmobile while intoxicated, as a repeat offender, contrary to § 350.101(2)(a), STATS.; party to the crime of obstructing an officer, as a repeat offender contrary to § 946.41(1), STATS., and party to the crime of resisting a conservation warden, as a repeat offender contrary to § 29.64, STATS.
Evers argues that the prosecution arbitrarily exercised its discretion in prosecuting him for obstructing an officer, the evidence was insufficient to prove that he aided and abetted a co-defendant's false statement to a conservation warden and that he was intoxicated, 1 the jury instructions were defective, the trial court erroneously admitted evidence that the police officers suspected his statements to be false, expert testimony was inadmissible for lack of foundation, he was denied effective assistance of counsel, and he should receive a new trial in the interest of justice. Because the evidence is insufficient that he aided and abetted a co-defendant's false statement to a warden, his conviction under § 29.64, STATS., is reversed. All other issues are affirmed.
This case results from a snowmobile accident that occurred in the early morning hours 2 of February 18, 1996, in Shawano. Evers, Tammy Werdeo, Todd Paschke, Brett Arnoldussen, and Jennifer Van Pay began snowmobiling together at approximately 4 p.m on February 17. Evers and Werdeo rode together on Werdeo's snowmobile, while the others rode their own machines. Evers drove Werdeo's sled while the group snowmobiled and stopped at several taverns.
All the members of the group drank alcohol except Werdeo. A tavern stop at Quacker's was the last stop before the accident occurred. Shortly after the group left Quacker's, they discovered that Paschke was not following them. Evers and Werdeo then turned around to locate Paschke, who had pulled off the trail because he thought the others were traveling in the wrong direction. While looking for Paschke, Evers and Werdeo struck him with their snowmobile, injuring him. Both Evers and Werdeo told the police that Werdeo was driving the snowmobile. Paschke also stated that he thought Werdeo was driving the snowmobile that struck him.
After further investigation, the police concluded that when the snowmobile struck Paschke, Evers was driving the snowmobile while intoxicated. The State therefore charged Evers with obstructing an officer, resisting a conversation warden, and operating a snowmobile while intoxicated, all repeat offenses. Following a one-day trial, a jury found Evers guilty. The trial court denied his postconviction motion; Evers appealed. Additional facts will be discussed as necessary.
Evers first argues that the prosecution arbitrarily exercised its discretion when it failed to prosecute Paschke for obstructing a law enforcement officer. Evers, Werdeo, and Paschke all allegedly made statements that Werdeo was driving when the accident occurred. Evers argues that because Paschke also stated that Werdeo was driving, 3 the State's failure to also charge him with obstructing an officer was selective enforcement that violated his equal protection rights. This court disagrees.
In the absence of valid prosecutorial discretion, the Fourteenth Amendment 4 protects those accused of violating criminal statutes from persistent and intentional discrimination of a statute's enforcement. State v. Johnson, 74 Wis.2d 169, 172, 246 N.W.2d 503, 505 (1976). In Wisconsin, the district attorney has great discretion in determining whether to initiate prosecution in a particular case. Sears v. State, 94 Wis.2d 128, 133, 287 N.W.2d 785, 787 (1980). Wisconsin courts have rejected claims that broad prosecutorial discretion deprives defendants of equal protection in the absence of circumstances constituting an abuse of discretion or discriminatory prosecution. State v. Lindsey, 203 Wis.2d 423, 445, 554 N.W.2d 215, 223-24 (Ct.App.1996); see also Locklear v. State, 86 Wis.2d 603, 609-10, 273 N.W.2d 334, 336-37 (1979).
There are three ways to show discriminatory enforcement: (1) proof that the enforcement is based on an unjustifiable standard, such as race, religion, color, or other arbitrary classification, see Sears, 94 Wis.2d at 134, 287 N.W.2d at 788; (2) proof that the defendant was the only person prosecuted under a statute for a period of time, coupled with improper prosecutorial motives, see id. at 134-35, 287 N.W.2d at 788; and (3) proof of persistent and intentional discrimination of statutory enforcement in the absence of a valid exercise of prosecutorial discretion, see Locklear, 86 Wis.2d at 610, 273 N.W.2d at 337. If a defendant establishes a prima facie case of discriminatory prosecution, the burden then shifts to the State to show that it validly exercised its discretion. Johnson, 74 Wis.2d at 175, 246 N.W.2d at 507.
Evers claims that the "stark facts" of the case, that three people made statements that Werdeo was driving and only two were prosecuted, establishes a prima facie case of discriminatory prosecution. In other words, he argues that the prosecution was arbitrary, and therefore discriminatory, because Paschke was treated differently. This court rejects his argument. Different treatment, without more, does not establish an equal protection violation. See Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Rather, the different treatment must be based on an unjustifiable standard. See Sears, 94 Wis.2d at 134, 287 N.W.2d at 788. Under Evers' reasoning, different treatment is discriminatory per se, and this conclusion directly contradicts Wisconsin law. Because Evers has shown no more than different treatment and has not shown an arbitrary exercise of prosecutorial discretion, his equal protection challenge is rejected. 5
Evers next argues that the evidence was insufficient for the jury to find him guilty as a party to a crime of obstructing a conservation warden. On February 18, Evers and Werdeo told police officers that Werdeo was driving the snowmobile when the accident occurred. Then on February 21, Conservation Warden Richard Herzfeldt had phone conversations with Evers and Werdeo about the accident. Evers did not convey much information to Herzfeldt, and specifically, he did not identify Werdeo as the driver. However, Werdeo acknowledged that she was driving the snowmobile that hit Paschke. The State charged Evers for giving false information to a conservation warden during a snowmobile investigation, as a party to a crime. The State's sole argument is that based on Evers' prior statements to police that Werdeo was the driver, it was reasonable for the jury to infer that Evers was ready and willing to obstruct the warden when Werdeo gave a statement to Herzfeldt. 6
Section 29.64, STATS., provides that a person may not obstruct any warden in the performance of duty. Although Evers was charged as a party to the crime under § 939.05, STATS, the jury received only the aiding and abetting instruction. The jury was instructed, in part, that 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 assists the person who commits the crime or is ready and willing to assist and if the person who commits the crime knows of the willingness to assist. 7
This court may not reverse a conviction "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." State v. Poellinger, 153 Wis.2d 493, 500-01, 451 N.W.2d 752, 755 (1990). We do not substitute our judgment for the jury's. See id. at 507, 451 N.W.2d at 757-58. "If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt," this court may not overturn a verdict even if we believe that the trier of fact should not have found guilt based on the evidence before it. Id. at 507, 451 N.W.2d at 758. This court is bound to accept the jury's reasonable inferences unless the evidence on which the inferences are based is incredible as a matter of law. Id. at 507, 451 N.W.2d at 757. A review for sufficiency of the evidence is the same whether the evidence is direct or circumstantial. Id. at 500, 451 N.W.2d at 755.
This court agrees with Evers that the evidence is insufficient to support his conviction under § 29.64, STATS., as a party to a crime. Viewing the evidence most favorably to the State and the conviction, no trier of fact, acting reasonably, could have found Evers guilty of obstructing a warden beyond a reasonable doubt. To support the verdict, the State relies solely on Evers' previous statements to police that Werdeo was the driver. As a matter of law, it is incredible for the jury to infer that, based solely on Evers' previous statements to police that Werdeo was driving, without more, he was ready and willing to aid Werdeo in obstructing the warden and that Werdeo knew of his willingness to assist. In contrast, based on that evidence alone, it is pure speculation that Evers was ready and willing to aid Werdeo in obstructing a warden during her phone conversation with Herzfeldt. Accordingly,...
To continue reading
Request your trial