State v. Warrichaiet
| Decision Date | 01 March 2005 |
| Docket Number | No. 04-0669-CR, No. 04-0670-CR |
| Citation | 2005 WI App 88,695 NW 2d 903 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Arnold R. Warrichaiet, Defendant-Appellant. State of Wisconsin, Plaintiff-Respondent, v. Francis D. Warrichaiet, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before Cane, C.J., Hoover, P.J., and Peterson, J.
Francis Warrichaiet appeals a judgment of conviction, entered upon a jury's verdict, for obstructing a warden and disorderly conduct, as well as an order denying his motion for postconviction relief. We agree with Francis' essential argument that there was insufficient evidence on which to convict him of either charge and therefore reverse the judgment and order in appeal No. 04-0670-CR. Arnold Warrichaiet appeals a judgment of conviction, entered upon a jury's verdict, for assault on a law enforcement officer and disorderly conduct, as well as an order denying his motion for postconviction relief. We reject Arnold's sufficiency-of-the-evidence argument related to his charges and we affirm the judgment and order in appeal No. 04-0669-CR.1
¶ 2 On Thanksgiving Day 2001, a number of people had gathered at Francis' home, initially congregating near their vehicles parked on the road. Department of Natural Resources Wardens Frederick Peters and Michael Kitt had driven past and noted the group. The wardens parked and approached the group, inquiring how hunting was going. The wardens then specifically asked whether anyone had shot a deer, and several group members stated that no one had. The crowd gradually drifted closer to the residence, while Peters began walking along the road and looking into the parked vehicles for weapons in plain sight.
¶ 3 Peters then observed a deer carcass hanging in an open storage shed farther back on the property. He asked the group whose it was, but no one claimed ownership. Peters testified he was concerned that the deer might not be properly registered and decided to inspect the carcass. Members of the group initially demanded a search warrant, which Peters denied he needed. The group would not relent, so Peters went to his vehicle and called for assistance.
¶ 4 When Peters returned from his vehicle, Francis' grandson Phillip said he had shot the deer and then offered his license, carcass tag, and registration tag. Peters nonetheless insisted upon inspecting the carcass and asked someone to accompany him from the residence to the shed. At that point, Arnold, Francis, and other family members stepped in front of Peters to block his progress.
¶ 5 Arnold contends that Peters grabbed him by the shoulder to push him aside. Arnold raised his hands without touching Peters, who allegedly grabbed Arnold and dragged him across the lawn to arrest him for obstruction. Peters testified that Arnold first made a gesture as if he were going to push Peters, who then grabbed Arnold by the shoulder to deflect him and move him out of the way. Arnold then apparently attempted to break away from Peters' grasp, prompting the warden to reach for his pepper spray. Arnold punched Peters below the left eye.
¶ 6 By this point, other officers and wardens had arrived on the scene, including Peters' supervisor, Warden Robert Goerlinger. Goerlinger began photographing the area, ostensibly to document the assault on Peters. However, he also began photographing the shed, some forty-five yards away from the area of the assault. Francis demanded a warrant and, when that was not produced, he slapped at Goerlinger and his camera. Goerlinger ceased his investigation to prevent further confrontations or injury to the wardens.
¶ 7 Ultimately, Francis was charged with resisting Warden Kitt, obstructing Warden Goerlinger, obstructing Warden Peters, and disorderly conduct. Arnold was charged with assault on a law enforcement officer, resisting arrest, obstructing an officer, and disorderly conduct.2 The cases were joined for trial. The court dismissed Arnold's obstruction charge and the jury acquitted him on the resisting charge, but he was convicted of assault and disorderly conduct. Francis was convicted of obstructing Goerlinger and disorderly conduct but acquitted on the other two charges. The Warrichaiets filed postconviction motions challenging the sufficiency of the evidence, but the court denied them. The Warrichaiets appeal. Additional facts will be mentioned as necessary.
¶ 8 Because we resolve each appeal differently, we will discuss them separately, beginning with Francis' case. Francis was charged with obstructing Warden Goerlinger, contrary to WIS. STAT. § 29.951, for knocking the camera and causing Goerlinger to halt his investigation into Peters' assault.3 Francis contends there is no evidence Goerlinger was "acting with lawful authority"—an element, as the jury was instructed—so there is insufficient evidence to convict him.
¶ 9 When reviewing sufficiency of the evidence to support a conviction, we must uphold the conviction "unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt."4 State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). If it is a possibility the jury "could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt," we must uphold the verdict. Id. at 507.
¶ 10 The jury instruction for the obstructing a warden charge was adapted from the obstructing an officer instruction, WIS JI—CRIMINAL 1766 (2003), and neither party objected to the adaptation. As instructed the third element of this charge (Emphasis added.) Francis contends there is no evidence that Goerlinger was enforcing the hunting laws. We agree.
¶ 11 By Goerlinger's own testimony, he was taking photographs to document the assault on Peters. But Francis became confrontational only when Goerlinger began photographing the shed. The State argues that Goerlinger's photography is an extension of Peters' initial attempts to verify and enforce the tagging requirements because Goerlinger was photographing the suspicious deer that triggered the entire situation. We reject this contention. The State is essentially asking us to connect subsequent events back to an initial hunting investigation, no matter how tenuously connected.
¶ 12 The State contends that even if Goerlinger was not enforcing hunting laws, he had lawful authority to photograph the crime scene—that is, the location of the assault. Assuming Goerlinger has the authority to investigate an offense of the criminal statutes, the shed and deer were approximately forty-five yards from the location of the assault. We therefore are unconvinced that the shed was part of the crime scene.
¶ 13 Finally, the State contends that Goerlinger and the wardens "arguably" did not need a warrant to inspect the carcass or shed, having statutory authority The State never develops this argument. Moreover, we disagree with the State's reading of these statutes.
¶ 14 WISCONSIN STAT. § 29.347(2) simply requires a deer to be immediately tagged and remain tagged until the carcass is registered. Under WIS. STAT. § 29.924(4), "[t]he owner ... of any ... building used for the storage or retention of wild animals, or their carcasses, that are subject to regulation under this chapter shall permit ... [DNR] wardens to enter and examine the premises subject to s. 66.0119." However, WIS. STAT. § 66.0119(2) requires wardens to obtain a special inspection warrant, which none of the wardens had.
¶ 15 Finally, while WIS. STAT . § 29.931 allows a warden "with or without [a] warrant" to inspect a building where the warden believes an animal carcass may be held in violation of WIS. STAT. ch. 29, the warden must have probable cause to believe a violation has occurred. The carcass, by itself, does not automatically suggest a violation of hunting regulations in the same way that, as the State analogizes, marijuana plants in plain view suggest a violation of the criminal code or local ordinances. Moreover, the State fails to adequately develop an argument based on § 29.931 that would convince us there was otherwise probable cause to suspect a violation. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992).
¶ 16 We therefore conclude there is insufficient evidence from which a jury could conclude Goerlinger was in the process of enforcing hunting laws or otherwise acting with a lawful purpose when Francis tried to stop his photography. Because a lawful purpose by the warden was included as an element of the charge, Francis' conviction for obstructing a warden is reversed.
¶ 17 Under WIS. STAT. § 947.01, "[w]hoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor." Disorderly conduct may be conduct, or speech—not all speech is constitutionally protected— or both. Francis contends, however, that the charge was based strictly on his verbal confrontation and that this argument was protected speech.
¶ 18 Francis engaged in an argument with Peters and Kitt regarding the necessity of a warrant, then yelled and swore at Peters when he was struggling with Arnold. At trial, the State conceded that the speech at issue was in fact protected under the First Amendment.
¶ 19 But Francis had also blocked Peters'...
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