State v. Olson
| Decision Date | 26 March 1982 |
| Docket Number | No. 80-1361-CR,80-1361-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Clint Michael OLSON, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
John E. Tradewell, Asst. State Public Defender, for defendant-appellant-petitioner.
Sally L. Wellman, Asst. Atty. Gen., for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.
This is a review of a decision of the court of appeals affirming a judgment and order entered by the Hon. Mark J. Farnum in the circuit court for Rock county. 1 Defendant-appellant-petitioner, Clint Michael Olson, was convicted of operating a motor vehicle without the owner's consent, contrary to sec. 943.23(1), Stats. Olson appealed alleging three errors, the first being that the complaint and information filed in the case did not confer subject matter jurisdiction on the trial court due to the state's failure to recite the nonabandonment of the vehicle within a twenty-four hour period. Olson's second and third allegations of error were that there was insufficient evidence to support either the bindover or the conviction and that the trial court erred in instructions to the jury by stating that the term "abandons" in sec. 943.23(2) requires a showing of voluntary relinquishment of possession of the vehicle. The appellate court affirmed holding that the complaint and information charging a violation of sec. 943.23(1) need not allege the nonabandonment of the vehicle without damage within twenty-four hours. The court of appeals also held that abandonment under sec. 943.23(2) must be a voluntary relinquishment of possession and thus the trial court's instruction on "abandonment" was not erroneous and further that the record contained sufficient evidence to support both the bindover and the conviction.
The record reflects that on June 30, 1979, Olson and several of his friends drove to a "swimming hole" in Evansville, Wisconsin. Later that evening, Olson's pickup truck broke down while he and two friends were returning to the defendant's home community of Stoughton, Wisconsin. Olson and his friends left the truck along the roadside and walked to Cooksville, Wisconsin, which is a few miles south of Stoughton. Upon arriving in Cooksville, Olson saw two pickup trucks parked outside of a welding repair shop. Olson walked over to the trucks and, while searching for a vehicle of conveyance, looked inside each of the vehicles for keys. At this time, his companions remained a distance away, along the side of the road. Olson noticed that the keys had been left in one of the trucks. He started the truck and drove out to the road where he picked up his friends and proceeded towards Stoughton.
At approximately the same time that Olson drove off with the truck, a neighbor informed Francis Hach, the repair shop owner, that someone had "taken off" with the truck. The police were promptly informed of the missing truck.
Shortly thereafter, Police Officer Gary E. Anderson, of the city of Stoughton, received a radio dispatch announcing the theft of the truck. The sergeant directed Anderson to check the area south of Stoughton for the vehicle.
While traveling west on Acker Road, Officer Anderson passed a truck traveling in the opposite direction which he believed fit the description of the stolen truck. Anderson made a U-turn and followed the pickup truck. He proceeded to the intersection of Taylor Lake and Acker Road and looked to the right and the left of that T-intersection because he had temporarily lost sight of the truck. Upon looking to his left, Officer Anderson noticed a glow just over the hill which he took to be red brake lights. He turned left, crested the hill and now saw the truck parked on the side of the road with its lights off.
As Officer Anderson approached the parked truck in his vehicle, he turned on his spotlights and focused them on two men fleeing off into a grassy area. Officer Anderson pulled the squad car behind the pickup truck, got out, checked the truck cab and found no one inside and proceeded to chase the two men in the field, approximately 100 yards away. When the two men were apprehended, one of them identified himself as Olson, the defendant, and admitted taking the truck to obtain a ride home.
A criminal complaint was filed in the Rock county circuit court charging Clint Michael Olson with a violation of sec. 943.23(1), operating a motor vehicle without the owner's consent: a felony. After Olson was bound over for trial following a preliminary hearing, an information was filed. At this time, Olson moved to dismiss the information arguing that the evidence presented at the preliminary examination was insufficient to support a bindover. The motion was denied by the trial court.
At trial, the defendant testified that he intended to take the truck to the outskirts of Stoughton and leave it at the side of the road and walk into town. Olson further explained that he left the truck with the keys in the ignition and had no intention to return to it. Olson also denied seeing a squad car from the time he took the truck until after the time he parked the truck on the side of the road. Further, he stated that his friends riding in the back of the truck did not inform him of any squad car in the vicinity until such time as they had gotten out of the truck and were walking down the roadway. The location where Olson parked the truck was approximately one-half mile from the Stoughton city limits and three-quarters of a mile from Olson's home.
Even though the squad car had no identifying decals, Officer Anderson did point out that the visibility was good on the night of June 30, 1979, as the area was well-illuminated with the light from the moon and stars. It was also established at trial that the squad car driven by Officer Anderson was equipped with a "visibar" which is a rectangular bar running across the roof of the squad car containing various reflector, spot and flashing lights, together with a siren mounted thereupon, and, thus, the squad was easily identified as a police vehicle.
One of Olson's companions who had been riding in the back of the stolen truck testified that he saw the squad car slow down after passing the truck but that he did not know if it had decided to pursue them or if it was continuing in the opposite direction. He further testified that he was unsure as to whether the squad car was pursuing them at the time Olson parked the truck along the roadway. He also stated at trial that the truck was parked in the area that he believed Olson originally intended to leave it.
After a jury trial, Olson was convicted of the offense charged in the complaint and information. The court withheld sentence and imposed a one-year period of probation. Thereafter, Olson filed a motion for post-conviction relief which was subsequently denied by the trial court.
The defendant subsequently appealed both the judgment of conviction and the order denying post-conviction relief alleging that the information did not confer subject matter jurisdiction on the trial court as the state failed to allege the element of nonabandonment of an undamaged vehicle within twenty-four hours of the original taking. Olson further argued that there was insufficient evidence to sustain either the bindover or the conviction; that the district attorney misstated the law in closing arguments and that this misstatement amounted to prejudicial error. 2 As a third alleged error, Olson contended that the trial court had erred in instructing the jury that "abandonment" as used in sec. 943.23(2) required a voluntary relinquishment of control. The appellate court affirmed the trial court holding that the complaint charging a violation of sec. 943.23(1), need not allege the defendant's failure to abandon the vehicle without damage within twenty-four hours of the original taking. The appellate court also agreed with the trial court's ruling that the court did not err in instructing the jury that "abandonment" meant a voluntary relinquishment of possession, that there was adequate evidence to sustain both the bindover and the conviction and that any error in the district attorney's closing arguments had been cured by the subsequent instruction given by the trial court.
1. Did the state's failure to allege the nonabandonment of the vehicle without damage within a twenty-four hour period of the original taking deprive the trial court of subject matter jurisdiction?
2. Did the trial court err in construing the term "abandons" as used in sec. 943.23(2), as requiring a voluntary relinquishment of possession?
3. Was the evidence presented at the preliminary hearing and at trial insufficient to support the defendant's bindover and subsequent conviction for driving a motor vehicle without the owner's consent, contrary to sec. 943.23(1)?
Sufficiency of the Complaint and Information
Olson argues that both the complaint and the information charging a violation of sec. 943.23(1) failed to confer subject matter jurisdiction on the trial court as neither the complaint nor the information alleged that he failed to abandon the vehicle without damage within a twenty-four hour period. Olson contends that sec. 943.23(2) creates an exception to the crime defined by sec. 943.23(1) and that the failure to allege the nonexistence of this exception renders the complaint and information void ab initio. Sec. 943.23 prohibits the operation of a vehicle without the owner's consent in the following manner:
The defendant in his brief relies on and argues that a complaint must recite the elements of a crime or it is...
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