State v. Lossman

• Court: Wisconsin Supreme Court
• Writing for the Court: HEFFERNAN; ABRAHAMSON
• Citation: State v. Lossman, 348 N.W.2d 159, 118 Wis.2d 526 (Wis. 1984)
• Decision Date: 30 May 1984
• Docket Number: No. 83-328-CR,83-328-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Thomas C. LOSSMAN, Defendant-Appellant-Petitioner.

Page 159

348 N.W.2d 159

118 Wis.2d 526

STATE of Wisconsin, Plaintiff-Respondent, v. Thomas C. LOSSMAN, Defendant-Appellant-Petitioner.

No. 83-328-CR.

Supreme Court of Wisconsin.

Argued Feb. 2, 1984.

Decided May 30, 1984.

Ruth S. Downs, Asst. State Public Defender, for defendant-appellant-petitioner.

Kirbie Knutson, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.

HEFFERNAN, Chief Justice.

This is a review of a one-judge unpublished decision of the court of appeals dated July 26, 1983, 114 Wis.2d 596, 338 N.W.2d 528, which affirmed a judgment of conviction of the circuit court for Wood county, Judge Frederic W. Fleishauer, presiding, which followed a jury verdict finding the defendant, Thomas C. Lossman, guilty of violating sec. 946.41(1), Stats., resisting or obstructing an officer. ¹

The trial court, using pattern jury instruction Wis. JI--Criminal 1765, instructed the jury that an essential element of the crime charged was that the defendant knew or believed that the officer he was resisting or obstructing was acting in his official capacity and with lawful authority. The court of appeals found that knowledge or belief of lawful authority was not a required element of the crime.

The rationale of the court of appeals is not clearly spelled out. The formulation of the court of appeals appears to be that the state was required to prove that a police officer was acting with lawful authority at the time, but whether the defendant knew, or had reason to know, that the officer was acting with lawful authority was irrelevant. The court of appeals stated that sec. 946.41(1), Stats., does not on its face require knowledge that an officer is doing an act in an official capacity and with lawful authority. It recognized that State v. Zdiarstek, 53 Wis.2d 776, 193 N.W.2d 833 (1972), required proof of knowledge by the defendant in respect to "official capacity," but it refused to extend what it referred to as the dicta of Zdiarstek to apply to the element of lawful authority. Both the state and the petitioning defendant disagree with the formulation of the court of appeals. Both agree that a defendant must be proved to have had actual knowledge or the actual belief, at the time of resisting or obstructing, that the officer was acting with lawful authority. They differ in respect to whether there was sufficient evidence adduced at trial to support the jury's verdict of guilty.

This court has never explicitly stated whether it must be proved that the defendant knew the officer was acting with lawful authority. It is that question which is posed on this appeal. We conclude that such knowledge, as an element of the crime, must be proved beyond a reasonable doubt by the state. Although we disagree with the court of appeals' conclusion in respect to what the statute requires to be proved, we agree with the decision of the court of appeals to affirm the circuit court. We affirm because we conclude that proof of the defendant's knowledge supplied by the state was sufficient to allow the jury to find that fact beyond a reasonable doubt.

The facts on which this prosecution is based are these. On September 20, 1981, at about 1:30 a.m., Deputy Sheriff Ward of the Wood County Sheriff's Department was patrolling when he saw a vehicle being driven erratically. He followed it onto Highway F on the assumption he might be dealing with a driver who was under the influence of alcohol. He saw the vehicle, later determined to be driven by Tim Tomfohrde, turn off its lights and head onto a gravel road, which was wholly on the property of Thomas Lossman. Deputy Ward at this time was in full uniform, wearing a holstered weapon, and driving a marked Wood county squad car. Immediately after the turn onto the gravel road, Deputy Ward turned on the flashing red lights on the squad car.

The gravel road extended from Highway F to Highway 10, past Lossman's Hideaway tavern. Defendant Lossman was sitting in the barroom of his tavern when he saw the flashing red lights reflected in the mirror. He stated that there had been a lot of theft and his immediate thought was that the squad car was there in respect to the thefts. Lossman identified the vehicle as a squad car, and then he got into his truck and drove down the gravel road in the direction of Highway 10 to see what was going on.

In the interim, Tomfohrde had stopped in response to the red lights on the squad car. Deputy Ward directed Tomfohrde to get out of his car and to produce his driver's license. Both Deputy Ward and Tomfohrde were out of their vehicles when Lossman drove up in his truck. During the entire episode, the area was lighted by car headlights and by the flashing red signals on the squad car. Lossman later referred to the fact that the person he saw was an officer "with a gun."

As Lossman got out of his truck, he shouted, "What are you doing here? Who are you? Why are you here? Get off my property." The deputy, according to Lossman, told him that this was none of his (Lossman's) business, to which Lossman responded, "This is my business. You are on my land. I have a right to know what's going on." Officer Ward testified that, at that juncture, Lossman told Tomfohrde, "This guy's got no business being here. You can leave."

The deputy testified that he told Lossman he was making a traffic stop and had followed Tomfohrde down the gravel road. Defendant denied that the deputy told him he was making a traffic stop. While Tomfohrde corroborated the statements made by Lossman when he first got out of his truck, he could not verify the balance of the statements during the altercation, because Deputy Ward told him to get back into his truck.

Thereafter, there ensued a struggle between the deputy and Lossman, which ended only when a state patrol officer, in response to Ward's radioed message for assistance, arrived and managed to place handcuffs on Lossman.

Lossman was charged with battery to a peace officer, in violation of sec. 940.20(2), Stats., and with resisting or obstructing a police officer, in violation of sec. 946.41. He was acquitted by the jury on the felony charge of battery but was found guilty by the same jury of resisting or obstructing an officer, a Class A misdemeanor. For this offense, he was placed on probation for eighteen months, and as a condition of his probation, he was directed to serve fifteen days in the county jail and to forfeit $200. If he performed eighty hours of community service, the forfeiture would be set aside.

Judgment was entered, and subsequently his postconviction motion for the vacation of the judgment or, alternatively, for a new trial was denied. The principal allegation on which the postconviction motion was based was the insufficiency of the evidence to show knowledge that the officer was acting with lawful authority. Because the court of appeals, erroneously we conclude, held that the proof of the defendant's knowledge that a police officer was acting with lawful authority was not an element of the crime, the evidentiary issue posed in the postconviction motion was not decided.

The question then is whether the statute makes defendant's knowledge that the officer was acting with lawful authority an element of the crime that must be proved in a prosecution pursuant to sec. 946.41(1), Stats. The trial court instructed the jury that, in order to find the defendant guilty of resisting or obstructing an officer, the state must prove beyond a reasonable doubt the following three elements:

"First, that the defendant resisted an officer.

"Second, that the officer was doing an act in his official capacity and with lawful authority.

"Third, that the defendant knew or believed that he was resisting the officer while the officer was acting in his official capacity and with lawful authority."

The trial court explained each of the elements in detail to the jury. There is no question that the trial court concluded that knowledge that the officer was acting with lawful authority was an element of the charge of resisting an officer, and the jury was properly so instructed.

The three elements of sec. 946.41(1), Stats., as set forth in the court of appeals decision are:

"(1) that defendant resisted or obstructed an officer; (2) that the officer was doing an act in his or her official capacity with lawful authority; and (3) defendant resisted or obstructed the officer knowingly; that is, that defendant knew or believed that he or she was resisting or obstructing the officer while the officer was acting in his or her official capacity and with lawful authority." (Ct.App. slip op. p. 4)

These elements are identical to those delineated by the trial court in its instructions to the jury, which are in accordance with Wis. JI--Criminal 1765. The court of appeals correctly cited State v. Zdiarstek, 53 Wis.2d 776, 786, 193 N.W.2d 833 (1972), for the proposition that an element of sec. 946.41(1), Stats., is knowledge by the defendant that the officer was acting in his official capacity. It also pointed out that no prior cases held that a defendant had to have knowledge that the officer was acting with lawful authority.

The court of appeals went on to say, rather inexplicably, that the reference in Zdiarstek, supra, to Wis. JI--Criminal 1765, insofar as it required proof of defendant's knowledge of an officer's lawful authority, was dicta. (Ct.App. slip op. at 5) It further stated that sec. 946.41(1) does not, on its face, require knowledge that an officer is doing an act in an official capacity or with lawful authority. The court also mentioned, in a footnote, that:

"Section 946.41, Stats., on its face only requires knowledge by a defendant that he or she is resisting or obstructing a police officer." (Ct.App. slip op. at 8 n. 1)

However, the court recognized it was bound by prior decisions of this court that knowledge that the officer was acting in his official capacity was an...