State v. Powers
| Decision Date | 20 December 1974 |
| Docket Number | No. S,S |
| Citation | 66 Wis.2d 84,224 N.W.2d 206 |
| Parties | STATE of Wisconsin, Respondent, v. Danny Edward POWERS, Appellant. tate 86. |
| Court | Wisconsin Supreme Court |
Marvin H. Davis, LaCrosse, for appellant.
Robert W. Warren, Atty. Gen., and Robert D. Martinson, Asst. Atty. Gen., Madison, for respondent.
Danny Edward Powers, the appellant (defendant), was found guilty of robbery by threatening the imminent use of force under sec. 943.32(1)(b), Stats., 1 after a trial by jury. The trial court entered a judgment of conviction and sentence on March 12, 1973, sentencing defendant to an indeterminate term of not more than 30 months at the Wisconsin State Reformatory at Green Bay. From this judgment, defendant appealed.
Two questions are raised on this appeal: (1) Did the trial court err in refusing to submit to the jury the lesser included crime of theft from a person; and (2) was there sufficient credible evidence for the jury to find the defendant guilty of the crime of robbery beyond a reasonable doubt?
On the evening of December 24, 1972, the defendant, aged 19 years, a resident of Minnesota, in the company of Alan Torgeson, also from Minnesota, came to the city of La Crosse. After an initial stop in a tavern in La Crosse, they decided to get something to eat and went to Chris' tavern in La Crosse, where they met William Callahan at about 8:00 o'clock p.m. Mr. Callahan purchased several beers for the defendant and Mr. Torgeson and drank beer and 7-Up himself. At about 10:00 o'clock p.m., the three of them decided to go somewhere to eat because Chris' did not serve food. The bartender at Chris' placed two calls in an attempt to find a restaurant that was open. The decision was made to go to the Track Shack. They went in the defendant's car and the defendant did the driving. When they arrived, the Track Shack was closed and they then went to the Amazon Tavern at about 11:00 p.m. Mr. Callahan again purchased several beers for the defendant and Mr. Torgeson. Mr. Callahan testified he suggested that the three of them go back downtown and the three of them left the Amazon Tavern and went out to the parking lot and got into the defendant's automobile. The defendant sat in the driver's seat. Mr. Callahan sat in the front seat on the right-hand side and Mr. Torgeson sat in the back seat behind Mr. Callahan. After Mr. Callahan was in the car but before they drove away, Mr. Torgeson grabbed Mr. Callahan around the head, pulling Mr. Callahan's hair. Mr. Torgeson held some object to Mr. Callahan's throat and said, 'Give us your money.' Mr. Callahan testified that he gave them what he could and that the defendant 'was helping himself on the left side,' taking money from Mr. Callahan's person. Mr. Callahan testified that he had two $10 bills in his wallet and he estimated he had a total of about $30 to $35 at the time the defendant and Mr. Torgeson took his money. He was then driven a distance of about 10 to 15 miles from the Amazon Bar, during which time Mr. Torgeson continued to hold his head back. Mr. Callahan asked for his wallet and driver's license and the defendant returned these items to him and stopped the car. Mr. Torgeson then let go of Mr. Callahan, reached down and opened the front door next to Mr. Callahan and the defendant pushed him out of the car. The defendant then drove off. Mr. Callahan started to walk up the highway and after walking about a mile, a couple stopped and picked him up; he told them he had been robbed. They let him out at LaCrescent, Minnesota, and he walked from there to the west channel bridge where he was picked up by a city of La Crosse policeman, Officer Roger Devine in a city police car. He told Officer Devine what had happened and showed Officer Devine his empty wallet.
The presence of Mr. Callahan, Mr. Torgeson, and the defendant in Chris' bar was corroborated by the bartender. The presence of those same parties at the Amazon Bar was corroborated by the owner Eileen Johnson and a bartender at the Amazon. Eileen Johnson also testified on direct and cross-examination that the defendant, Mr. Torgeson and Mr. Callahan left the Amazon Bar together at the same time around midnight. Officer Devine testified that he picked Callahan up near the west channel bridge about 2:30 a.m. December 25, 1972.
The defendant and his codefendant, Mr. Torgeson, testified in their own defense. Up to the point of leaving the Amazon bar, their testimony closely paralleled that of Mr. Callahan except that Mr. Callahan did not remember stopping at the Track Shack. Their testimony was diametrically opposed to Mr. Callahan's as to the occurrence immediately prior to leaving the Amazon tavern and what happened after that. Their testimony is that while at the Amazon the defendant decided he did not want to be driving Mr. Callahan around any more and that the two of them intended to leave Mr. Callahan at the bar and go home. Their testimony is that the defendant left first to warm up the car, was gone about three minutes and then was followed by Mr. Torgeson, who left alone, leaving Mr. Callahan at the Amazon bar. They then testified that they drove home to Minnesota and that the time of leaving was shortly before 1:00 a.m.
At the close of the defendant's case, the case was sent to the jury and the jury found the defendant and Mr. Torgeson guilty of the crime of robbery.
The first question is, did the trial court err in refusing to instruct the jury on the lesser included offense of theft from a person? 2
This court has held that theft from a person is a lesser included offense in the crime of robbery. Moore v. State (1972), 55 Wis.2d 1, 197 N.W.2d 820.
This court has often stated the test for determining when a jury should be instructed on a lesser included offense. In State v. Bergenthal (1970), 47 Wis.2d 668, pp. 674, 675, 178 N.W.2d 16, p. 20, this court said:
". . . if the evidence, in one reasonable view, would suffice to prove guilt of the higher degree beyond a reasonable doubt, and if, under a different, but reasonable view, the evidence would suffice to prove guilt of the lower degree beyond a reasonable doubt, but leave a reasonable doubt as to some element included in the higher degree but not in the lower, the court should, if requested, submit the lower degree as well as the higher. . . .'
The key word in the rule is 'reasonable.' The rule does not suggest some near automatic inclusion of all lesser but included offenses as additional options to a jury. Only if 'under a different, but reasonable view,' the evidence is sufficient to establish guilt of the lower degree and also leave a reasonable doubt as to some particular element included in the higher degree but not the lower, should the lesser crime also be submitted to the jury.'
There must be a reasonable ground in the evidence for acquittal on the greater charge and for conviction of the lesser charge in order to justify submission of an instruction on a lesser included offense.
In the recent case of Ross v. State (1973), 61 Wis.2d 160, 170, 211 N.W.2d 827, 832, this court stated:
In the case at bar, the defendant was originally charged with armed robbery, but this charge was reduced after the preliminary examination to robbery by threatening the imminent use of force. A conviction of theft from a person does not require a finding of threat of force. The submission of the lesser offense here could be justified only if the jury could have found that the defendant and Torgeson took Callahan's money from his person but did so without threatening the use of force. We conclude that this would not be a reasonable view of the evidence. Mr. Callahan's testimony, that Mr. Torgeson grabbed him from behind, held his head back, pulled his hair and held an object to his throat, demanded his money, and that while he was in this position, the defendant took money from his person, if believed by the jury, certainly supports the view that the defendant and Mr. Torgeson threatened Mr. Callahan with the imminent use of force with the intent to compel him '. . . to acquiesce in the taking or carrying away of the property . . .' When Mr. Callahan was asked what he was doing during the period of time that the object was held against his throat and his head was held...
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