State v. Whitney, 01-2660-CR
| Decision Date | 16 July 2002 |
| Docket Number | 01-2660-CR |
| Citation | 650 N.W.2d 559,257 Wis. 2d 621 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Mario V. Whitney, Defendant-Appellant. AppealSTATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I DATED AND FILED |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Milwaukee County: JOHN J. DiMOTTO, Judge. Affirmed. Cir. Ct. No. 99 CF 3833
Before Wedemeyer, P.J., Schudson and Curley, JJ.
1. PER CURIAM.
Mario V. Whitney appeals from a judgment entered after a jury found him guilty of battery and one count of first-degree sexual assault while using a dangerous weapon, contrary to Wis. Stat. 940.19(1) and 940.225(1)(b) (1999-2000).1 He also appeals from an order denying his postconviction motion. Whitney claims: (1) the evidence was insufficient to convict him of sexual assault; (2) the trial court erred by denying his motion for judgment notwithstanding the verdict on grounds of an inconsistent verdict; (3) the State's filing of additional charges against him because he withdrew his guilty plea violated his constitutional right to a jury trial; (4) the trial court erred by not removing two jurors for cause; (5) the trial court erred in its pretrial motion ruling on "other acts" evidence, thereby denying his right to present a complete defense; and (6) his thirty-five year sentence was unduly harsh and excessive. Because we resolve each issue in favor of upholding the judgment and order, we affirm.
2. On August 10, 1999, Gina G.-F. brought a complaint to the district three police station in which she claimed that on the previous night, Whitney, her boyfriend, entered her house while intoxicated, began arguing with her, hog-tied her, struck her with a wooden stick, punched her in her calf, poured beer in her nose, and threatened to kill her. Officers proceeded to Gina's residence and arrested Whitney. A search of the residence revealed a 45-caliber bolt-action rifle under a mattress in the victim's bedroom.
3. On August 12, 1999, the State filed a complaint charging Whitney with possession of a firearm contrary to an injunction, second-degree recklessly endangering safety, and battery. On August 18, 1999, during a re-interview, Gina disclosed that Whitney had forced her to engage in penis-to-vagina sexual intercourse, beer bottle-to-vagina sexual intercourse, and penis-to-anus sexual intercourse, all without her consent.
4. On August 20, 1999, the State amended its complaint, charging Whitney with a fourth count of first-degree sexual assault while using a dangerous weapon. On October 6, 1999, in exchange for the dismissal of the illegal firearm and battery charges, Whitney pled guilty to the endangering safety charge and the first-degree sexual assault charge. On March 24, 2000, the trial court allowed Whitney to withdraw his guilty pleas. The State subsequently filed an amended information in which the sexual assault charge was expanded from a single count to three separate counts.
5. A jury trial commenced on September 18, 2000, but ended in a mistrial. The second jury trial commenced on October 10, 2000, after which Whitney was found not guilty of the firearm possession charge, the recklessly endangering charge, the sexual assault (bottle-to-vagina) charge, and the sexual assault (penis-to-anus) charge; however, Whitney was found guilty of the battery charge and the sexual assault (penis-to-vagina) charge. The trial court denied his postconviction motion. Whitney now appeals.
II.DISCUSSION
6. Whitney argues that there was insufficient evidence to convict him of sexual assault. He contends that the circuit court made two errors under this issue: (1) the trial court erred by denying his motion for dismissal at the close of the State's case; and (2) the trial court erred by denying his motion for judgment notwithstanding the verdict on grounds of insufficient evidence of sexual assault. We cannot agree.
[I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.
State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) (citations omitted).
7. Whitney claims that the trial court applied the wrong standard when it denied his motion under Wis. Stat. 972.10(4) to dismiss. After Whitney made his motion, the circuit court stated the following:
Clearly the testimony of Miss G.[]-F.[], if believed, would support the allegations in the Information on file. This case really boils down to a question of credibility, and the jury will have to determine that. There's nothing inherently incredible in the testimony of Miss G.[]-F.[], so the motion to dismiss is denied.
(Emphasis added.) Whitney argues that the proper standard is whether the testimony is "believable beyond a reasonable doubt," not merely "if believed." He claims that because the trial court used an incorrect standard, the trial court erroneously exercised its discretion, requiring this court to overturn the denial of his motion. We will not reverse a ruling on a motion to dismiss unless the ruling is clearly erroneous. Olfe v. Gordon, 93 Wis. 2d 173, 186, 286 N.W.2d 573 (1980).
8. A witness's testimony does not have to be believable beyond a reasonable doubt. The reasonable doubt standard is reserved for the issue of the defendant's guilt, which is determined after credibility issues have been resolved. State v. Owens, 148 Wis. 2d 922, 933-34, 436 N.W.2d 869 (1989).
9. Moreover, Whitney claims that the error of the trial court is shown by the inconsistencies in Gina's testimony. This argument fails because there is no legal authority that requires inconsistent testimony to be deemed insufficient as a matter of law. To characterize Gina's testimony as insufficient, Whitney must show that "the testimony was incredible as a matter of law," State v. Wilson, 149 Wis. 2d 878, 894, 440 N.W.2d 534 (1989) (citing State v. Alles, 106 Wis. 2d 368, 377, 316 N.W.2d 378 (1982)), that is it "`"conflict[s] with the uniform course of nature or with fully established or conceded facts,"'" Posnanski v. City of West Allis, 61 Wis. 2d 461, 466 n.2, 213 N.W.2d 51 (1973).
10. Although Whitney identifies various conflicts in Gina's testimony,2 none of these instances conflicts with irrefutable physical evidence. See Pappasv. Jack O. A. Nelsen Agency, 81 Wis. 2d 363, 369, 260 N.W.2d 721 (1977). Furthermore, in Nabbefeld v. State, 83 Wis. 2d 515, 529, 266 N.W.2d 292 (1978), the supreme court stated that a jury may choose to believe certain parts of a witness's testimony and not others where the witness has given inconsistent testimonies. A jury does not have to either totally believe or totally disbelieve a witness. Id. Thus, the trial court properly denied Whitney's motion to dismiss the case at the end of the State's evidence.
11. Whitney contends that the State failed to provide sufficient evidence by the end of the trial to prove beyond a reasonable doubt that he committed first-degree sexual assault (penis-to-vagina). Whitney argues that because the State did not provide sufficient evidence, the trial court erred when it denied his motion for judgment notwithstanding the verdict. In the same manner as the previous subsection, Whitney once again cites various inconsistencies in Gina's testimony. And for the same reasons as in the previous section, we cannot conclude that the evidence is "incredible as a matter of law." A witness's credibility is left for the jury to resolve. Thus, Whitney's claim fails.
12. Whitney argues that each of the three sexual assault counts should be treated as a single count because each of the counts contains the common element of use or threat of use of a dangerous weapon, which had to be proven beyond a reasonable doubt. Accordingly, Whitney contends that the verdicts are inconsistent because he was found not guilty on the sexual assault (bottle-to-vagina) charge and the sexual assault (penis-to-anus) charge, but guilty on the sexual assault (penis-to-vagina) charge. We cannot agree. A jury verdict will not be reversed if there is any credible evidence to support it. Heideman v. American Family Ins. Group, 163 Wis. 2d 847, 863-64, 473 N.W.2d 14 (Ct. App. 1991).
13. Whitney's argument fails for various reasons. First, Whitney has not offered any legal authority supporting his position. An appellate court will not consider arguments that are not supported by legal authority. State v. Nicholson, 148 Wis. 2d 353, 368, 435 N.W.2d 298 (Ct. App. 1988); State v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370 (Ct. App. 1980).
14. Second, the verdicts are actually not inconsistent. Because the jury, as the trier of fact, has the duty to determine the credibility of witnesses, it may determine which parts of the testimony establish a particular charge beyond a reasonable doubt, and which do not. In this case, the jury simply decided that Gina's testimony proved beyond a reasonable doubt that Whitney was guilty of the sexual assault (penis-to-vagina) charge, but not the other two sexual assault charges.
15. Third, Whitney's argument here cannot provide him any relief because logical consistency amongst verdicts is not required:
It has been universally held that logical consistency in the verdict as between the several counts in a criminal information is not required. The verdict will be upheld despite the...
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