State v. Serebin

• Decision Date: 29 June 1984
• Docket Number: No. 82-232-CR,82-232-CR
• Citation: 119 Wis.2d 837,350 N.W.2d 65
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Stephen SEREBIN, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 65

350 N.W.2d 65

119 Wis.2d 837

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Stephen SEREBIN, Defendant-Appellant.

No. 82-232-CR.

Supreme Court of Wisconsin.

Argued March 28, 1984.

Decided June 29, 1984.

Kirbie Knutson, Asst. Atty. Gen. (argued), for plaintiff-respondent-petitioner; Bronson C. La Follette, Atty. Gen., on the brief.

Robert E. Sutton, Milwaukee (argued), for defendant-appellant; Sutton & Kelly, Milwaukee, on the brief.

CECI, Justice.

This review concerns a court of appeals opinion ¹ reversing a jury verdict finding the defendant, Stephen Serebin, guilty of homicide by reckless conduct, contrary to section 940.06, Stats.1975, and guilty of twelve counts of abuse of inmates of an institution, party to a crime, contrary to section 940.29(7), Stats.1975. The court of appeals found the evidence to be insufficient to support the convictions and reversed. Because we find the evidence to be sufficient to support the conviction for abuse of inmates, but insufficient to support the homicide conviction, we reverse in part, affirm in part, and remand the cause to the court of appeals.

The offenses for which the defendant was charged allegedly took place between about December 20, 1975, and June 30, 1976, at the Glendale Convalescent Center (Glendale). The defendant was the administrator of the Glendale nursing home from 1973 to 1977. Following a 1978 John Doe investigation, criminal charges were filed against the defendant and the owners of the nursing home, alleging one count of homicide by reckless conduct and fifty-eight counts of abuse of inmates. The count of homicide by reckless conduct was based upon the incident in which one of the residents, Bruno Dreyer, wandered out of the nursing home and died from exposure to the cold, on February 7, 1976. The counts of abuse stemmed from various residents who lost weight and developed bedsores. The criminal complaints alleged that Serebin caused the death of Dreyer and the bedsores and weight loss in the other residents by failing to provide a sufficient staff and adequate diet. More facts will be developed throughout the remainder of this opinion.

A jury trial was conducted on October 12, 1981, through November 14, 1981. The jury found the defendant guilty of the homicide charge and guilty of twelve counts of inmate abuse. The defendant's postconviction motion for judgment notwithstanding the verdict or, alternatively, for a new trial, was denied, and on February 8, 1982, the defendant was sentenced to serve a cumulative term of six years.

After appealing his judgment of conviction, the defendant petitioned for bypass of the court of appeals. This court denied Serebin's petition for bypass on September 21, 1982. The court of appeals then certified the case to this court, and the certification was refused on April 22, 1983.

The court of appeals subsequently issued its decision on July 26, 1983. The court noted that for the state to convict Serebin of any of the charged crimes, it must prove beyond a reasonable doubt that a causal connection existed between his actions and the harm which resulted. State v. Serebin, 114 Wis.2d at 317, 338 N.W.2d 855. The court stated that whether the evidence adduced at trial is sufficient to prove causation is a question of law which the appellate courts may independently review and concluded that a jury could not have reasonably inferred that the defendant's failure to provide a sufficient staff caused Dreyer's death. Seraphine v. Hardiman, 44 Wis.2d 60, 65, 170 N.W.2d 739 (1969), and First Nat. Leasing Corp. v. Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251 (1977). Rather, the court concluded that,

"The most favorable inference that can be drawn from the state's evidence is that a reasonable number of additional staff would have made it less probable that Dreyer could leave unnoticed. An unspecified degree of probability does not permit the inference of a fact beyond a reasonable doubt." State v. Serebin, 114 Wis.2d at 318, 338 N.W.2d 855.

Consequently, the court of appeals reversed the conviction for homicide by reckless conduct.

Concerning the conviction for abuse of the nursing home residents, the court of appeals also concluded that the state had failed to prove the causal connection between the lack of staff and the bedsores and weight loss. The court noted that both bedsores and weight loss may be attributed to numerous medical causes. Therefore, expert testimony was required to prove that these conditions were caused by Serebin's failure to hire a sufficient staff or provide an adequate diet. State v. Serebin, 114 Wis.2d at 318-19, 338 N.W.2d 855, citing Kelly v. Hartford Casualty Insurance Co., 86 Wis.2d 129, 134-35, 271 N.W.2d 676 (1978). Because none of the experts who testified at trial had examined any of the twelve residents with weight loss and bedsores, nor had any expert given a specific cause for these conditions in a specific resident, the court concluded that the evidence was insufficient to allow the jury to infer that these conditions were caused by Serebin's neglect in failing to hire sufficient staff or provide a proper diet. Id. 114 Wis.2d at 319-20, 338 N.W.2d 855. The court of appeals then reversed the abuse of inmates conviction.

The state subsequently petitioned this court for review, and we granted that petition.

There are two issues before this court on review. They are: (1) Was the evidence sufficient to support Serebin's conviction of homicide by reckless conduct arising from a resident's death while Serebin acted as administrator, and (2) was the evidence sufficient to support Serebin's conviction of twelve counts of abuse of nursing home residents? ² I.

WAS THE EVIDENCE SUFFICIENT TO SUPPORT SEREBIN'S CONVICTION

OF HOMICIDE BY RECKLESS CONDUCT ARISING FROM A

RESIDENT'S DEATH WHILE SEREBIN ACTED AS

ADMINISTRATOR?

This court recently stated the following standard of review to be utilized when testing the sufficiency of the evidence to support a conviction in State v. Alles, 106 Wis.2d 368, 376-77, 316 N.W.2d 378 (1982):

" 'We test the sufficiency of the evidence leading to the conviction by the oft-stated rules as follows: This court must affirm if it finds that the jury, acting reasonably, could have found guilt beyond a reasonable doubt. The function of weighing the credibility of witnesses is exclusively in the jury's province, and the jury verdict will be overturned only if, viewing the evidence most favorably to the state and the conviction, it is inherently or patently incredible, or so lacking in probative value that no jury could have found guilt beyond a reasonable doubt.' Fells v. State, 65 Wis.2d 525, 529, 223 N.W.2d 507 (1974) (dealing with conviction of attempted first-degree murder and attempted armed robbery) (footnotes omitted) (emphasis added); Cranmore v. State, 85 Wis.2d 722, 774, 271 N.W.2d 402 (Ct.App.1978); Gauthier v. State, 28 Wis.2d 412, 416, 137 N.W.2d 101 (1965) cert. denied 383 U.S. 916 [86 S.Ct. 910, 15 L.Ed.2d 671] (1966). We note that our review of sufficiency of the evidence questions is limited further by the principle that '[i]f more than one inference can be drawn from the evidence, the inference which supports the jury finding must be followed unless the testimony was incredible as a matter of law.' Murphy v. State, 75 Wis.2d 522, 526, 249 N.W.2d 779 (1977); See: State v. Lunz, 86 Wis.2d 695, 705, 273 N.W.2d 767 (1979); Beavers v. State, 63 Wis.2d 597, 609, 217 N.W.2d 307 (1974). These principles limiting our review are grounded on the sound reasoning that the jury has the 'great advantage of being present at the trial'; it can weigh and sift conflicting testimony and attribute weight to those nonverbal attributes of the witnesses which are often persuasive indicia of guilt or innocence. See: Gauthier v. State, supra [28 Wis.2d] at 416, . It bears repeating that we will not substitute our judgment for that of the jury unless, under all the evidence presented, the jury could not have found guilt beyond a reasonable doubt. Thus, as we view it, if any possibility exists that the jury could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, we will not overturn a verdict even if we believe that a jury should not have found guilt based on the evidence before it." (Emphasis added.)

For a jury to convict Serebin of homicide by reckless conduct, contrary to section 940.06, Stats.1975, the jury must first find that the defendant's actions constituted reckless conduct. See, Wis. J I--Criminal 1160 (1962). Section 940.06(2), Stats. (1975), states,

"Reckless conduct consists of an act which creates a situation of unreasonable risk and high probability of death or great bodily harm to another and which demonstrates a conscious disregard for the safety of another and a willingness to take known chances of perpetrating an injury...."

The state argues that the jury reasonably found that the defendant willingly undertook to staff Glendale at a level which he knew created a situation of unreasonable risk for the patients. The state maintains that Serebin's staffing decisions and the conditions which resulted from these decisions caused Bruno Dreyer's death on February 7, 1976, due to his unsupervised wandering.

When we review the record in the instant case, it reveals that Serebin was the officially designated administrator of Glendale at the time of Dreyer's death. His testimony, which had originally been given at a John Doe proceeding and was subsequently introduced at trial, indicates that he was responsible for the day-to-day operation of Glendale. He supervised the care and treatment of the residents through the licensed personnel. Serebin also stated that he discussed the staffing patterns for the different shifts on the various units with the directors of nursing, which included a discussion of the number of licensed personnel to be employed by the home. The directors...