State v. Holloway
| Decision Date | 31 May 1995 |
| Docket Number | No. 94-1257-CR,94-1257-CR |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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. Daryl Dwayne HOLLOWAY, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.
Daryl Dwayne Holloway appeals from a judgment of conviction, after a jury verdict, for two counts of first-degree sexual assault and two counts of armed burglary, contrary to §§ 940.225(1)(b) and 943.10(2)(a), Stats. He also appeals from an order denying his postconviction motion seeking sentence modification. Holloway raises the following issues for our consideration: (1) whether the evidence was sufficient to sustain the convictions; (2) whether the trial court erred in admitting evidence of a 1985 sexual assault conviction; (3) whether the line-up was impermissibly suggestive; (4) whether an additional burglary count, on which the jury returned a not guilty verdict, should have been severed from the other four counts; and (5) whether the trial court imposed an unduly harsh sentence. Because there is sufficient evidence under our standard of review to sustain the convictions; because the trial court did not err in admitting the 1985 sexual assault evidence; and because the line-up was not impermissibly suggestive, we affirm. 1
On September 2, 1992, Maria G. was assaulted in her bedroom, at knife point, at approximately 6:30 a.m. Maria G. identified Holloway as her assailant on the basis of his eyes, physical build and voice. Maria G. was only able to see Holloway's eyes, forehead and hair because he had a scarf across the rest of his face. During the assault, Holloway told Maria G. not to scream or he would kill her. After the assault, Holloway told her to put a blanket over her and demanded her money.
On September 26, 1992, Gina D. was assaulted in her bedroom at knife point, at approximately 11:30 p.m. Gina D. identified Holloway as her assailant on the basis of his build, height and voice. During the assault, Holloway told Gina D. not to scream or he would kill her. After the assault, Holloway told her to put a pillow over her head. After Holloway left, Gina D.'s roommate, Tonya B., discovered that her [Tonya] wallet was missing.
Holloway was charged with first-degree sexual assault and armed burglary with respect to each incident. He was also charged with an additional burglary that occurred on September 28, 1992. The case was tried to a jury. The jury found Holloway guilty on both sexual assault counts and both armed burglary counts, but not guilty on the additional burglary count. Holloway was sentenced to thirty years' imprisonment on each of the four counts, with each sentence imposed consecutively. Holloway's postconviction motion seeking sentence modification was denied. Holloway now appeals.
Holloway claims that the evidence was insufficient to sustain his convictions. We disagree.
[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. 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, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.
State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-58 (1990) (citations omitted). Where there are inconsistencies within a witness's or witnesses' testimony, it is the trier of fact's duty to determine the weight and credibility of the testimony. Thomas v. State, 92 Wis.2d 372, 381, 284 N.W.2d 917, 922 (1979).
The record in this case clearly demonstrates that there was sufficient evidence to sustain the convictions. At the line-up, both victims identified Holloway as the individual who assaulted them. Maria G.'s identification was based in part on recognition of Holloway's eyes and confirmed beyond doubt by his voice. Gina D.'s identification was based in part on recognition of Holloway's build, and confirmed beyond doubt by his voice. Both victims were certain of their identifications. In addition, other witnesses' testimony placed Holloway near the scenes, and his alibi defense did not cover the exact time periods of the crimes. Taking this evidence in total, a reasonable jury could have found guilt beyond a reasonable doubt. Therefore, we reject Holloway's sufficiency of the evidence claim.
Holloway next claims that the trial court erred in allowing the prosecution to introduce into evidence his 1985 sexual assault conviction. The State contends this conviction was properly introduced to prove motive and plan. The trial court agreed with the State.
Our review of evidentiary issues is limited to determining whether the trial court erroneously exercised its discretion in admitting the evidence. State v. Wollman, 86 Wis.2d 459, 464, 273 N.W.2d 225, 228 (1979). We will not find an erroneous exercise of discretion if the trial court reviewed the relevant facts, applied the relevant law and reached a reasonable conclusion. Id.
The record demonstrates that the trial court considered the facts of record and applied the appropriate two-step test, see State v. Kuntz, 160 Wis.2d 722, 746, 467 N.W.2d 531, 540 (1991) (), in reaching its decision to admit...
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Holloway v. City of Milwaukee
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