State v. Riemenschneider
| Decision Date | 27 September 1990 |
| Docket Number | No. 89-1748-CR,89-1748-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| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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, v. James RIEMENSCHNEIDER, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and order of the circuit court for La Crosse county: Dennis G. Montabon, Judge.
Circuit Court, La Crosse County.
AFFIRMED.
Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.
James Riemenschneider appeals from a judgment of conviction of arson with intent to defraud an insurer, sec. 943.02(1)(b), Stats., and of endangering safety by conduct regardless of life, sec. 941.30, Stats.1985, and from an order denying postconviction relief. 1
As framed by Riemenschneider, the issues are whether: (1) the criminal complaint was sufficient; (2) the evidence at the preliminary hearing was sufficient for bindover; (3) the evidence at that hearing supported an endangering safety count in the information; (4) the venue should have been changed; (5) Riemenschneider should have been granted a continuance because the state untimely provided its witness list; (6) the jury should have been sequestered; (7) the court should have permitted use of prior misdemeanor convictions to impeach a prosecution witness; (8) the endangering safety count should have been dismissed when the prosecution rested; (9) the evidence at trial was insufficient to convict Riemenschneider on the endangering safety count; (10) the court abused its discretion in sentencing; and (11) trial counsel was ineffective.
We conclude that the trial court committed no reversible error. We therefore affirm.
Riemenschneider argues that the complaint sets forth only circumstantial evidence which does not exclude every reasonable theory of innocence. A criminal complaint must state facts which in themselves or with reasonable inferences drawn from them allow a reasonable person to conclude that the defendant probably committed a crime. State v. Hoffman, 106 Wis.2d 185, 197, 316 N.W.2d 143, 151 (Ct.App.1982).
Riemenschneider relies on the former standard to review a criminal conviction supported only by circumstantial evidence, as stated in Stewart v. State, 83 Wis.2d 185, 191-93, 265 N.W.2d 489, 492-93 (1978). The Stewart court held that the circumstantial evidence must exclude every reasonable theory of innocence. Stewart and similar cases have been overruled. State v. Poellinger, 153 Wis.2d 493, 504-05 & n. 5, 451 N.W.2d 752, 756-57 (1990).
The complaint alleged as follows: On January 7, 1986, fire damaged Oscar's Little Chicago bar and restaurant in Onalaska, Wisconsin. Riemenschneider told investigators he bought the business, including the land and building, in January, 1985 for $385,500.00. The building was insured for approximately $600,000 and was encumbered by outstanding mortgages of about $310,000.
The fire department received a report of the fire at about 5:46 a.m. All of the doors to the building were locked. The fire was burning in the basement, and the basement door was locked and had to be forced. Visibility in the basement was poor. After the firefighters entered the building, a large hole from the fire below developed in the floor of the first story. The fire ultimately spread throughout the first and second stories.
A dispatcher called Riemenschneider about the fire at 5:53 a.m. He arrived at Oscar's at about 6:00 a.m. He told investigators that he had been home with the flu all the previous day, and on that evening a girlfriend, whom he refused to identify, was with him until 1:00 a.m. All others having a key to Oscar's had an alibi.
Experts investigated the fire. They determined that its source was in the basement maintenance room. A floor polisher in that room had burns on the wheel at floor level. A drum against a wall had burns underneath. The burns were consistent with a flammable liquid having run underneath and having been ignited.
The maintenance room contained an electric space heater. Michael Schilling, the maintenance man, stated that the heater had not been close to anything it could have ignited. He stated that a metal gallon-size can of thinner or solvent had been on a shelf in the corner of the room. If the can had been there during the fire, that area and the ceiling above it would have been more heavily burned than it had been. The burn pattern suggested a liquid being poured or flowing on the floor.
An expert examined the space heater. He concluded that the heater had not malfunctioned and thereby caused the fire. Another expert stated that since no electrical or mechanical defect had caused the fire, it must have been set. Since the doors were locked and could only be locked from the outside, the person setting the fire must have had a key.
Wood samples from one of the maintenance room walls were chemically analyzed. The samples contained xylene, a flammable material which is used as a solvent.
Individuals connected with Oscar's testified at the fire marshal's hearing or were interviewed by investigators. One was a woman who had attended a party at Oscar's two days before the fire. She had arrived with Michael Schilling. At one point she had facetiously told Riemenschneider, "We can trash the place 'cause Mike's got to clean it." Riemenschneider responded, "Hell, let's burn it down."
Employees at Oscar's stated that the restaurant had suffered cash flow problems shortly before the fire. Creditors were paid in cash. The employee in charge of ordering supplies was told that he would receive money for supplies on the day before the fire. When Riemenschneider did not go to work due to illness, the employee called him. Riemenschneider said he would give the employee the money the next day.
Schilling stated that Riemenschneider had asked him to do two things in the maintenance room, both of which Schilling considered unusual. He had been asked to stain a wood shelf and to test the space heater's fan. Riemenschneider told Schilling to plug the heater in, turn it on, and leave it. Schilling had not been aware of a problem with the fan, and other employees stated that they knew of nothing wrong with it. The employee to be benefited by the shelf had not asked for one.
Riemenschneider asked another employee out to dinner shortly after the fire. He told her what he had asked Schilling to do with the space heater. At another point in their conversation, Riemenschneider said he was hoping he would be able to buy an alibi.
We conclude that the trial court properly denied Riemenschneider's motion to dismiss the complaint. A reasonable person could conclude from reading the complaint that Riemenschneider probably committed a crime, arson with intent to defraud an insurer, sec. 943.02(1)(b), Stats., 1985. The circumstances alleged in the complaint permit an inference that the restaurant fire had been intentionally caused and that Riemenschneider caused it. His financial circumstances strengthen those inferences. His behavior before and after the fire incriminates him.
Riemenschneider argues that the evidence at his preliminary hearing was insufficient to bind him over. He states that the evidence closely tracked the allegations of the criminal complaint.
A trial court must bind a defendant over for trial if the evidence at the preliminary hearing is sufficient to establish that a felony probably has been committed and that the defendant probably committed it. State v. Dunn, 121 Wis.2d 389, 393, 359 N.W.2d 151, 153 (1984). We decide as a matter of law whether probable cause was shown. Id. at 398-99, 359 N.W.2d at 155.
We conclude that probable cause existed to bind Riemenschneider over. His arguments concerning the circumstantial nature of the case against him are as inapposite here as they are concerning the criminal complaint.
The information charged Riemenschneider with arson with intent to defraud, sec. 943.02(1)(b), Stats., and endangering safety by conduct regardless of life, sec. 941.30, Stats.1985. He moved to dismiss the latter count on grounds that the evidence at the preliminary hearing did not support it. The trial court denied the motion. The sufficiency of the information is a question of law which we decide de novo. State v. Fawcett, 145 Wis.2d 244, 250, 426 N.W.2d 91, 94 (Ct.App.1988).
We need not review the evidence presented at the preliminary hearing to determine whether it supports the reckless endangerment charge in the information.
The challenge to a prosecutor's charging discretion in the information is not a second opportunity to dispute whether probable cause exists to believe the defendant committed a felony.... Once probable cause has been found, the purpose of the preliminary examination has been satisfied and further criminal proceedings are justified. Pursuant to sec. 971.01(1), Stats., it then becomes the duty of the prosecutor to examine the transactions or facts considered or testified to at the preliminary examination to determine the charges to be brought in the information.
We conclude a prosecutor may bring additional charges in the information so long as the charges are not wholly unrelated to the transactions or facts considered or testified to at the preliminary examination, irrespective of whether direct evidence concerning the charges had been produced at the preliminary examination.
State v. Burke, 153 Wis.2d 445, 456-57, 451 N.W.2d 739, 744 (1990) (citations omitted). 2
The reckless endangerment charge is related to the transactions and facts considered or testified to at the preliminary examination. The charge arises out of the same fire at the same time and place and involves the same defendant and the same witnesses.
The trial court properly denied the motion to dismiss that...
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