State v. Hauk
| Citation | 652 N.W.2d 393,257 Wis.2d 579,2002 WI App 226 |
| Decision Date | 01 August 2002 |
| Docket Number | No. 01-1668-CR, No. 01-1669-CR. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Kelley L. HAUK, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
On behalf of the defendant-appellant, the cause was submitted on the briefs of David D. Cook, Monroe.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Jeffrey J. Kassel, assistant attorney general.
Before Dykman, Roggensack and Deininger, JJ.
¶ 1.
Kelley Hauk appeals from two judgments of conviction for bail jumping and from two orders denying her motions for postconviction relief. With regard to the first conviction for bail jumping, Hauk presents arguments regarding the sufficiency of the evidence, the circuit court's authority to approve a stipulation, waiver of her right to a jury trial, and ineffective assistance of counsel. In addition, she argues that if we reverse the first bail jumping conviction, we should order resentencing or sentence modification on the second bail jumping conviction.
¶ 2. Although the State presented sufficient evidence to prove that Hauk committed a crime, we conclude that Hauk did not waive her right to have a jury determine all the elements of bail jumping. Accordingly, we reverse and remand for a new trial with respect to the first bail jumping conviction. Further, we conclude that the reversal of Hauk's first conviction constitutes a new factor with regard to the sentence for her second bail jumping conviction. Accordingly, we remand to allow the circuit court to exercise its discretion to determine whether the new factor justifies a sentence modification.
¶ 3. This is an unusual case with a somewhat unusual background. The events leading up to Hauk's bail jumping charge began when the State charged Hauk with interference with custody. After her arrest, Hauk was released on bond. One of her conditions of release was to not "commit any crimes or engage in any criminal activity."
¶ 4. While Hauk was free on bond, a friend of Hauk's, Cynthia Guevara, contacted the Green Bay Police Department claiming that Hauk had hired someone to murder her ex-boyfriend and his current wife. Detective Scot Miller met with Guevara later that same evening. Miller interviewed Guevara, and wrote out a statement that Guevara reviewed and signed. Guevara repeated in the statement that Hauk told Guevara that she hired Stanley Thomas, a co-worker, to kill her ex-boyfriend and his wife. However, after speaking with Guevara, Hauk had agreed to call Thomas to tell him "not to do it, to call the whole thing off."
¶ 5. Hauk called Guevara while Miller was at Guevara's home. Guevara invited Miller to listen to the conversation on another telephone without telling Hauk that he was doing so. Miller testified that the conversation was "about hiring this Mr. Thomas to kill her ex-boyfriend and his new wife and how Cindy [Guevara] had talked her out of that and that from what I can remember she was going to place a call to Mr. Thomas and have this alleged hit stopped."
¶ 6. The following day Hauk gave her own statement to Miller, in which she confessed that she had spoken with Thomas. She stated that after complaining to Thomas that her son was being sexually abused, Thomas told her "he would kill the guy." The next day Hauk told Thomas "to go ahead and make the call." However, after talking with Guevara, Hauk decided "to call it off." She contacted Thomas and told him "to stop the hit." ¶ 7. Rather than charge Hauk with attempted murder, conspiracy or solicitation, the State charged Hauk with bail jumping, contrary to WIS. STAT. § 946.49(1)(b) (1997-98).1 Although Hauk was ultimately acquitted of the interference with custody charge, she was on bond at the time her conversations with Thomas allegedly took place. The State alleged that Hauk had intentionally failed to comply with a term of her bond not to "commit any crimes or engage in any criminal activity" when she "made arrangements to have two people killed." Hauk moved to dismiss the charge on the grounds that the facts as alleged in the complaint did not provide a sufficient basis for the charged crime. The circuit court denied the motion.
¶ 8. Hauk's attorney filed a document with the court stating that the defendant wished to stipulate to some of the elements of bail jumping. The circuit court approved it on the first day of trial. As a result, the jury was not informed that Hauk was charged with bail jumping and did not decide whether Hauk was charged previously with a felony or misdemeanor, whether she was released from custody on bond, or whether she intentionally failed to comply with the terms of her bond. Instead, the jury was asked to determine only whether Hauk had committed a crime. The court, however, did not decide prior to trial which crime would be submitted to the jury.
¶ 9. After testimony from the ex-boyfriend, Miller, Guevara and a second detective,2 the circuit court concluded that it would instruct the jury on the crime of solicitation under WIS. STAT. § 939.30. The jury found Hauk guilty and the circuit court entered a judgment of conviction for bail jumping.
¶ 10. Hauk failed to appear at her sentencing hearing. As a result, the State filed a complaint against Hauk, charging her with another count of bail jumping. She pleaded no contest to the second bail jumping offense, and the circuit court sentenced her to four years in prison for the first bail jumping charge, and five years for the second bail jumping charge, to run concurrently with the first sentence. Hauk filed postconviction motions in both cases, which the circuit court denied. Hauk appeals.
[1, 2]
¶ 11. The parties agree that the standard for reviewing the sufficiency of a jury verdict was set forth in State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990). If, in viewing the evidence in the light most favorable to the conviction, no reasonable jury could have found guilt beyond a reasonable doubt, the conviction must be reversed. Id. at 501. We agree with Hauk that, under this standard, a conviction cannot be sustained on the sole basis that there is "some evidence" supporting a guilty verdict. Rather, there must be sufficient evidence to enable a reasonable jury to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317-18 (1979).
[3]
¶ 12. We disagree, however, that we must reverse the conviction if "any trier of fact" would be able to "reconcile the evidence upon any reasonable hypothesis consistent with the defendant's innocence." Hauk has confused the standard for the jury to use in determining whether reasonable doubt exists and the standard of appellate review. It is the role of the fact finder, not this court, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts. Poellinger, 153 Wis. 2d at 506. Therefore, although the jury is required to exclude every reasonable hypothesis of the defendant's innocence before returning a guilty verdict, we must affirm the jury's finding if there is any reasonable hypothesis that supports the conviction. State v. Blair, 164 Wis. 2d 64, 68 n.1, 473 N.W.2d 566 (Ct. App. 1991).
[4]
¶ 13. Under WIS. STAT. § 969.03(2), when an individual charged with a felony is released on bond, one of the conditions of release must always be that the defendant "not commit any crime." Hauk's bond required her "not [to] commit any crimes or engage in any criminal activity." Hauk contends that there was insufficient evidence to prove that she violated this condition because she was never convicted of an underlying crime.
¶ 14. We agree with Hauk that there is no substantive difference between "committing a crime" and "engaging in criminal activity." One who engages in criminal activity is by definition also committing a crime. We disagree, however, that the State must obtain a conviction for the underlying crime in order to prove that the defendant violated the bail jumping statute. In essence, Hauk's contention is that if the State wants to obtain a conviction for violating a bond by committing a crime, it must charge the defendant with both bail jumping and the underlying crime. Not only would such a requirement encourage multiple charges for the same conduct, but it is also unsupported by WIS. STAT. § 969.03(2). Hauk's bond does not prohibit her from being convicted of a crime but rather required her not to commit any crimes.
¶ 15. Hauk nonetheless contends that a conviction was required, relying on State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998), and State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993). In Hansford, the supreme court reversed a conviction for obstructing an officer because the defendant was denied his right to a jury trial under art. I, § 7 of the Wisconsin Constitution. Hansford, 219 Wis. 2d at 243. Hansford had also been charged with and convicted of bail jumping because he was on bond at the time he was arrested for obstructing, and one of his requirements was to not commit any crimes. Id. Although Hansford waived his right to a jury on this charge, the supreme court nevertheless reversed this conviction as well because "the bail jumping conviction was premised solely upon the Defendant's obstructing conviction." Id. at 245 (emphasis added).
¶ 16. Hansford does not, as Hauk suggests, hold that a conviction for the underlying crime is a prerequisite to finding that a defendant has violated a term of his or her bond by committing a crime. Rather, the circuit court in Hansford had based its finding that the defendant was guilty of bail jumping entirely on the jury's finding that the defendant was guilty of obstructing. Id. at 244-45. When the supreme court reversed...
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