State v. Zolkoske
| Decision Date | 18 November 1987 |
| Docket Number | CR-NM |
| Citation | 142 Wis.2d 939,419 N.W.2d 359 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.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, Plaintiff-Respondent, v. DIANE ZOLKOSKE, Defendant-Appellant. 85-2110- |
| Court | Wisconsin Court of Appeals |
Circuit Court, Winnebago County
Affirmed
Appeal from a judgment of the circuit court for Winnebago county: William E. Crane, Judge.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
On November 5, 1985, Diane Zolkoske filed a notice of appeal from a judgment convicting her of child abuse, party to a crime, in violation of secs. 939.05 and 940.201, Stats., and of intimidating a witness in violation of sec. 940.43(3), Stats., Subsequently, Zolkoske's counsel filed a no merit report pursuant to Rule 809.32, Stats., and Anders v. California, 386 U.S. 738, reh'g denied, 388 U.S. 924 (1967).
On August 22, 1986, this court issued an order staying further proceedings related to the no merit report pending release of the Wisconsin Supreme Court's decision in State ex rel. McCoy v. Wisconsin Court of Appeals, case no. 86-0172-W, which presented a challenge to the constitutionality of Rule 809.32(1), Stats., and the no merit procedure. The supreme court subsequently issued its decision on these issues, holding that the rule and procedure are constitutional. McCoy, 137 Wis.2d 90, 91, 403 N.W.2d 449, 450 (1987). We have therefore now considered the no merit report filed in this case. Upon consideration of the report and an independent review of the record, we conclude that further proceedings would be without merit.
Zolkoske's counsel discusses several issues which were raised in the trial court and are arguably presented by this appeal. The first issue is whether the trial court erred in denying Zolkoske's motion to dismiss the complaint. Zolkoske sought dismissal on the ground that the complaint failed to set forth sufficient facts to permit the inference that she committed the crimes charged.
A criminal complaint must describe the conduct alleged to constitute the charged offense and must contain sufficient facts to persuade a neutral and detached magistrate that the charged crime has probably been committed by the accused. Ritacca v. Kenosha County Court, 91 Wis.2d 72, 81-82, 280 N.W.2d 751, 756 (1979). In other words, the complaint itself must set forth the grounds for probable cause. State ex rel. Evanow v. Seraphim, 40 Wis.2d 223, 226, 161 N.W.2d 369, 370 (1968). The test to be applied in determining the sufficiency of the complaint is the same as that required for issuance of a search warrant, requiring that enough information be presented to the magistrate to permit him to make the judgment that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal process. State ex rel. Cullen v. Ceci, 45 Wis.2d 432, 442, 173 N.W.2d 175, 179 (1970). The test has been described as one of minimal adequacy, not in a hypertechnical but in a common sense evaluation, in setting forth the essential facts establishing probable cause. State v. Gaudesi, 112 Wis.2d 213, 219, 332 N.W.2d 302, 305 (1983).
A complaint adequately establishes probable cause when it answers the following five questions: (1) who is charged; (2) what is the person charged with; (3) when and where did the alleged offense take place; (4) why is this particular person being charged; and (5) who says so or how reliable is the informant. Id. at 220, 332 N.W.2d at 305.
In this case, the complaint alleges that Zolkoske aided and abetted her boyfriend, Jeffrey Smolinski, in subjecting Zolkoske's three-year-old daughter, Tonya, to cruel maltreatment in violation of secs. 939.05 and 940.201, Stats. It further alleged that Zolkoske attempted to dissuade her friend, Laura Mischler, from giving testimony at an inquest into Tonya's death by express threats of violence in violation of sec. 940.43(3), Stats.
In support of the charges, the complaint indicated that Dr. E. Robert Taake, an emergency room physician at a Menasha hospital, treated Tonya for a spiral fracture of her leg on March 5, 1984 and concluded to a reasonable degree of medical certainty that a fracture of this nature was not consistent with the history given by Zolkoske, which indicated that Tonya caught her leg inside a couch and twisted it. Dr. Taake suspected child abuse and reported it to the social services department at the time.
The complaint further indicated that Dr. Taake next examined Tonya on May 8, 1984, when he removed her leg cast. He indicated that Zolkoske reported at the time that Tonya was vomiting and complaining of headaches, but that when he attempted to examine Tonya she whimpered and cowered, behavior which, based on his medical experience, was associated with victims of child abuse.
The complaint further alleged that a CAT scan was scheduled for Tonya for May 9, 1984, but that Zolkoske called shortly before the appointment time and rescheduled it for the following day. In addition, on May 9, 1984, an ambulance was called to the residence of Zolkoske and Smolinski in response to a call indicating that Tonya was unconscious and having difficulty breathing. Smolinski indicated in the call that Tonya had fallen down the steps and banged her head. The complaint indicated that Tonya subsequently was pronounced brain dead on May 10, 1984, by her pediatrician, Dr. John Swanson. Dr. Swanson further indicated to a reasonable degree of medical certainty that Tonya died because of severe brain injury which was not consistent with a fall down the steps.
The complaint also set forth information received from Dr. Robert Huntington III, a physician specializing in forensic pathology, who indicated that he found twelve to fifteen separate bruised areas on Tonya's scalp and that her death was due to blunt force trauma or violent shaking. Dr. Huntington further indicated that the amount of bleeding and swelling in Tonya's brain indicated that Tonya was either injured or reinjured shortly before being taken to the hospital on May 9 and that the injuries were not consistent with a fall down the stairs.
The complaint set forth statements from Jeffrey Smolinski indicating that Tonya had been vomiting and complaining of headaches for two weeks prior to May 9. In addition, the complaint contained statements from Laura Mischler, who was deemed by the affiant police investigator to be reliable because she was a citizen informant and witness to a crime.
Mischler indicated that she had seen numerous bruises and injuries to Tonya in the two months preceding Tonya's death. She indicated that in March 1984 she observed approximately fifteen small round bruises on Tonya's back and buttocks and that when she discussed it with Zolkoske, Zolkoske told her that 'every kid gets bruises when they are disciplined.' Mischler further stated that in late April or early May 1984 she observed bruises on Tonya's eyelid, cheekbone and back, and a red, blistered burn on her back comprised of a three-inch vertical line and horizontal lines stemming from it, resembling a kitchen spatula. Mischler also stated that Zolkoske told her she did not know how the burn occurred but thought it was from leaning against a heat register.
In her statement, Mischler also stated that Zolkoske told her that Smolinski would grab Tonya by the bottom and pick her up and shake her when he was angry, and that he would shake her if she did not eat. Mischler also indicated that on May 8, 1984, she spoke to Zolkoske at Zolkoske's residence. She stated that Zolkoske was crying and told Mischler that she was crying because Smolinski had asked her to move out. Mischler indicated that Zolkoske had told her in the past that she thought Smolinski would marry her if she did not have Tonya. Mischler also stated that Zolkoske told her on May 8 that she thought Smolinski had broken Tonya's leg, after previously indicating that she did not know how it happened but that it might have happened when Tonya was bumped by a grocery cart or fell off the couch.
Mischler also stated that on July 3, 1984, two days before Mischler was scheduled to testify at an inquest into Tonya's death, she received a telephone call from Zolkoske in which Zolkoske stated that if anyone 'said anything against' Zolkoske or Smolinski, 'they're dead.' Mischler stated that she had previously told Zolkoske that she had been subpoenaed to testify at the inquest and that Zolkoske further told Mischler that 'she [Zolkoske] and Jeff had contacted a couple of guys that were going to take care of things if anything happened to them.'
Based on the information contained in the complaint, the trial court could clearly find that probable cause existed to believe that Zolkoske attempted to dissuade Mischler from testifying at a court inquest by an express threat to cause violent injury to Mischler. Consequently, the complaint was clearly sufficient to justify further criminal proceedings against Zolkoske based on a violation of sec. 940.43(3), Stats.
The complaint was also sufficient to justify further proceedings related to the charge of aiding and abetting child abuse in violation of secs. 939.05 and 940.201, Stats. Child abuse within the meaning of sec. 940.201 constitutes torturing a child under sixteen years of age or subjecting the child to cruel maltreatment, including severe bruising, fractured bones, burns or internal injuries. Moreover, a person is guilty of aiding and abetting child abuse if she undertakes conduct that as a matter of objective fact aids another in the execution of the crime and she consciously desires or intends that her conduct will yield such assistance. See State v. Hecht, 116 Wis.2d 605, 619-20, 342 N.W.2d 721, 729 (1984). A parent may be guilty of aiding and abetting abuse of her own child if she is present...
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