State v. Toliver

• Decision Date: 03 November 1981
• Docket Number: No. 80-727-CR,80-727-CR
• Citation: 104 Wis.2d 289,311 N.W.2d 591
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Oliver Robert TOLIVER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 591

311 N.W.2d 591

104 Wis.2d 289

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Oliver Robert TOLIVER, Defendant-Appellant.

No. 80-727-CR.

Supreme Court of Wisconsin.

Argued Oct. 7, 1981.

Decided Nov. 3, 1981.

Pamela McGee-Heilprin, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent-petitioner.

Donald T. Lang, Asst. State Public Defender, for defendant-appellant.

BEILFUSS, Chief Justice.

This is a review of an unpublished decision of the court of appeals. 101 Wis.2d 731, 306 N.W.2d 306. The defendant, Oliver Robert Toliver, was convicted of two felonies burglary and endangering safety by conduct regardless of life as a party to the crime after a jury trial in the Circuit Court for Milwaukee County, FREDERICK P. KESSLER, Judge.

In the court of appeals the defendant raised five issues. The court of appeals reversed both convictions. The burglary count was reversed because the trial court failed to give a requested jury instruction on intoxication. This issue is not before us. The court of appeals also reversed the conviction of endangering safety regardless of life upon the ground that the evidence was insufficient to support the verdict. This is the only issue now here for consideration.

The pertinent facts as they appear in the record are as follows:

Two Milwaukee police officers, Harry Gorecki and Wayne Malinski, testified that on May 14, 1979, at approximately 4:15 a.m., they observed a Cadillac automobile coming out of an alley with its headlights out. The officers saw two black men seated in the front seat and what appeared to be a pile of tires in the back seat. A tire store is located on the block where the car was noticed. The store abuts the alley from which the car entered the street.

The officers pursued the car approximately two car lengths behind, using their flashing red lights and siren. While attempting to flee, the car initially made a right turn, drove up over the curb, then back down the curb and onto the road. After further pursuit the vehicle appeared to be out of control, went up a curb and sidewalk, and came to a stop near some bushes and trees in a vacant lot.

The officers thought the car was stalled so they stopped their squad car and approached on foot. As they came towards the Cadillac, it started up and headed out of the lot in an easterly direction with its headlights off. The car made a sudden left turn and drove directly at Officer Malinski. He leaped out of the path of the car and testified that it missed him by approximately four feet. He stated that, while the car was coming towards him, he could make out two black males in the front seat.

Both officers fired at the fleeing vehicle and pursued it. The flashing red lights and siren of the police car were still activated. The vehicle was stopped by another officer approximately one and a half blocks down the street. Both of the occupants of the car went out of the driver's side and attempted to run away. The defendant was apprehended by other police officers on the scene, but his companion was not caught. Although defendant owned the car, no one could identify him as the driver. His testimony was that he was drunk and passed out in the front seat, while his companion drove the car.

The defendant was charged with being a party to the crime of endangering the safety of Officer Malinski and with being a party to the burglary of the tire store. It was determined that the tires in the back of defendant's car were stolen from the tire store. Defendant was convicted on both charges after a jury trial. The court of appeals reversed on the endangering safety charge, finding that the evidence was insufficient to support a conviction.

Sec. 941.30, Stats.1979, provides as follows: "Whoever endangers another's safety by conduct imminently dangerous to another and evincing a depraved mind, regardless of human life, is guilty of a Class D felony." The court of appeals held that defendant's conduct was not imminently dangerous and did not evince a depraved mind regardless of life.

The court of appeals stated that:

"During the chase, Toliver's vehicle went out of control, over a curb and into a bushy area on a vacant lot. The vehicle appeared to have become stuck or stalled near the bushes. As the officers exited their squad car and proceeded toward the Toliver's vehicle, it started up again and turned in the direction of one of the officers, who jumped out of its path and escaped being hit by about four feet. This incident occurred at 4:15 on a Monday morning a time of negligible vehicular traffic. Further, as in Wagner, the presence of the person endangered by Toliver's vehicle was not readily apparent. At 4:15 a.m. it is dark outside. The lights on Toliver's vehicle were not on and officer Malinski was not carrying a flashlight. There is no indication in the record that the vacant lot was lit in any way. It is entirely possible that Toliver or his companion could not have seen the officers."

The test for reviewing the sufficiency of the evidence has been stated as follows:

"The question to be decided then is whether the state has met its burden in proving these elements. In making this determination, we do not sit as a judge or jury making findings of fact. Such findings have already been made, in this case by a jury, and our function in reviewing those findings is simply to decide 'whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendants' guilt beyond a reasonable doubt.' Lock v. State, 31 Wis.2d 110, 114, 142 N.W.2d 183 (1966). As we have frequently observed, ' "...The test is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt but whether this court can conclude the trier of facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true. " ' Id. at 114-115; Krueger v. State, 84 Wis.2d 272, 282-83, 267 N.W.2d 602 (1978).'' State v. Ehlenfeldt, 94 Wis.2d 347, 360, 288 N.W.2d 786 (1980).

This rule is consistent with the recent decision announced by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), wherein the court held:

"After (In re) Winship (397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368) the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' Woodby v. INS, 385 U.S. (276) at 282 (87 S.Ct. 483, at 486, 17 L.Ed.2d 362) (emphasis added). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. (356) at 362 (92 S.Ct. 1620 at 1624, 33 L.Ed.2d 152). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and...