Willis v. State, S

• Decision Date: 29 June 1973
• Docket Number: No. S,S
• Citation: 208 N.W.2d 403,60 Wis.2d 158
• Parties: James WILLIS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 66.
• Court: Wisconsin Supreme Court

Page 403

208 N.W.2d 403

60 Wis.2d 158

James WILLIS, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 66.

Supreme Court of Wisconsin.

June 29, 1973.

Morton Gollin, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for defendant in error.

ROBERT W. HANSEN, Justice.

The principal contention of the defendant is that the evidence adduced at trial was insufficient to support the jury verdict of guilty on the charge of attempted aggravated battery. The test on appeal of the sufficiency of the evidence to convict is whether the 'evidence adduced, entitled to belief, and rationally considered by a jury was sufficient to prove the defendant's guilt beyond a reasonable doubt.' ¹ The test is 'not whether this court is convinced of the defendant's guilt but whether the jury acting reasonably could be so convinced.' ² Stating the rule conversely for the sake of clarity, the evidence "when considered most favorably to the state and the conviction must be so insufficient in probative value and force that it can be said as a matter of law that no trier of the facts acting reasonably could be convinced to that degree of certitude which the law defines as 'beyond a reasonable doubt."' ³ It is, therefore, the evidence that supports the jury verdict, and inferences reasonably drawn therefrom, that are to be reviewed on the issue raised by the defendant.

IDENTIFICATION OF DEFENDANT.

There is ample evidence in this record establishing the positive identification that person or another may be fined not more than $2,500 or imprisoned not assaulted him. The victim of the assault had ample opportunity to observe the three who attacked him. He observed the three assailants as they first walked away with the woman who had stone in hand. He observed the three when they came back and walked up to him with one asking, 'What happened?' He observed them during the assault or beating. He recognized the three of them, defendant included, when he saw them in the restaurant. He recognized two of the three, the defendant one of the two, when the squad car drove by them on May 13th. He testified that the lighting in the vicinity of the apartment and assault was adequate, with a 50-watt bulb eight feet away and street lights one-half block away, plus light on the street from a tavern across from the apartment. While he testified that he 'never saw them before,' apparently referring to seeing them before the night of the assault, he had several opportunities to observe them on the night he was attacked, and he was positive in his identification of the defendant as one of the three assailants.

INTERRUPTION OF ASSAULT.

Defendant would have us view the assault as a completed act of battery from which the three assailants walked away, rather than as an assault interrupted by the appearance of two ladies on an upstairs porch and shouts from them or someone else. Asked why the men stopped the beating and kicking, the complaining witness answered that a lady tenant, living in an upstairs apartment, and her aunt came out on the porch. He further testified that he heard somebody shout but that he could not tell, as he was being kicked and beaten, exactly where the shouts came from. It is an entirely reasonable inference from this testimony that the tenant lady and her aunt did the shouting. Even if the shouts came from someone or somewhere else, it is an equally reasonable inference that the ladies appearing on the upstairs porch and the shouting, either or both, led the three assailants to stop their kicking and beating and leave the scene. The evidence as to the assault being interrupted is circumstantial, but this court has said that circumstantial evidence 'can be as forceful as eyewitness testimony and can form a rational basis for conviction.' ⁴

INTENT TO DO GREAT BODILY HARM.

Defendant's brief contends that the state failed 'to prove that this defendant had the intent to commit the crime of aggravated battery.' The intent required for conviction of the crime of aggravated battery ⁵ or the crime of attempted aggravated battery ⁶ is the 'intent to cause great bodily harm.' The crime of aggravated battery contains 'three elements: The intention to cause great bodily harm, the causation by some act, and the degree of harm suffered by someone other than the actor.' ⁷ Where, as here, the conviction is for attempted aggravated battery, the intent requirement is that 'the defendant must have the intent to cause bodily harm which would have become great bodily harm if his actions had not been interrupted by the intervention of another person or some other extraneous factor.' ⁸ Such intent can be proved by circumstantial evidence. Indeed, circumstantial evidence is 'generally the only way intent can be proved.' ⁹

As an objective test to determine such subjective intent on the part of a doer of a deed, the courts rely upon a presumption. It is that 'an accused is presumed to intend the natural and probable consequences of his acts, voluntarily and knowingly performed.' ¹⁰ A person need not 'foresee or intend the specific consequences of his act in order to possess the requisite criminal intent.' ¹¹ This presumptive intent 'must be evidenced by inferences from the words and conduct of the actor and the circumstances surrounding the act.' ¹² So it is to the conduct of the defendant, and circumstances surrounding the assault to which we must direct our attention to determine if 'intent to cause great bodily harm' is inferable, as we would do to determine if 'intent to kill' was established in a murder or attempted murder case. ¹³

In determining whether it is a reasonable inference from the facts and circumstances of this case that the defendant (1) had an intent to cause great bodily harm; and (2) committed a battery which, except for the intervention of an extraneous factor or interruption, would have resulted in great bodily harm to another human being, it is a murder case that aids in the listing of facts and circumstances relevant to the presumption of intent. ¹⁴ In fact, the circumstances that, in the murder case, were sufficient to establish the required intent to kill are remarkably similar to those present in the record before us. They will be listed, and the two cases compared, circumstance by circumstance.

TIME AND PLACE. In the murder case, the time was 9:30 a.m. on a Sunday morning; the place, the porch of the rooming house where the victim lived. In the case before us, the time was 1:00 a.m.; the place, the front of the building in which the victim lived in a basement apartment. In both cases, the time and place selected by the assailants was one 'when it is predictable that the victim will be alone.' ¹⁵

AGE OF VICTIM. In the murder case, the victim was an eighty-one-year-old man, living alone. In the case before us, the victim of the assault was a sixty-nine-year-old staying at a basement apartment. In both cases, the victims were senior citizens 'living alone and suffering the infirmities of advancing years.' ¹⁶

NATURE OF ASSAULT. In the murder case, the assailant clubbed the victim to the floor, jumped on him as he lay prone, and continued or renewed beating him about the head. In the case before us, one of the three assailants knocked the victim to the ground and, as he lay helpless, all three jumped on him and beat and kicked him. In both cases, we deal with a two-stage assault and, as to the second stage, 'it cannot be contended that the blows were intended or required to remove the possibility of spirited resistance by the . . . victim, by then knocked prone, rendered helpless. . . .' ¹⁷

TYPE OF WEAPON. In the murder case, the weapon of the single assailant was a family-sized soda water bottle, used to rain blows at the head of the aged victim. In the case before us, the weapons were the fists and, more injury-inflicting, the boots or shoes of the three assailants used to rain kicks at the prostrate body of their aged victim. As to both pop bottles and shoes, it is correct to observe that the harm-inflicting aspect of each 'derives from the manner and circumstances surrounding its use as much as from its physical properties.' ¹⁸

MOTIVE FOR ASSAULT. In the murder case, the motive for the assault was robbery, the defense contention being that the assailant intended to take the victim's money, not his life. In the case before us, there is no motive apparent for a senseless and savage beating and kicking in a completely unprovoked assault. In both cases, there was an 'immediate resort to violence' ¹⁹ which in the case before us is not explainable at all if it was not intended to inflict physical harm.

EXTENT OF INJURIES. In the murder case, the victim sustained four scalp lacerations and a skull fracture and subsequently died from the head injuries inflicted. In the case before us, before the continuing attack was interrupted by the appearance of the two ladies on the porch and the shouting, the victim received two broken ribs from the kicking or stomping and was confined to a hospital from April 18 to April 23. In the murder case, the court rejected defendant's contention that he 'must be held to have intended only to take his victim up to the doorstep of death. . . .' ²⁰ So, in the case before us, the contention must be rejected that the three assailants, if not interrupted, must be held to have intended no more bodily harm than they had in fact inflicted at the time of the interruption.

INTERRUPTION OF ASSAULT. In the murder case, the assailant did not stop beating the old man until he became aware that he was being observed by a bystander who was approaching, hammer in hand. In the case before us, the three assailants stopped beating and kicking the old man at the exact time when the two ladies stepped on the porch and the shouting began. In both cases, it is an entirely reasonable inference that the beating stopped or were...