COURT OF APPEALS DECISION DATED AND FILED July 10, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No. 2009CF390 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Wisconsin, Plaintiff-Respondent, v. Andrew R. Ballenger, Defendant-Appellant. |
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APPEAL from a judgment and an order of the circuit court for Walworth County: John R. Race, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Gundrum, J.
¶1 PER CURIAM. Andrew Ballenger appeals from a judgment convicting him of armed robbery as party to the crime and from an order denying his postconviction motion. On appeal, Ballenger challenges the sufficiency of the evidence, the jury instructions, and the assistance provided by his trial counsel. We affirm.
¶2 The charges against Ballenger arose from the armed robbery of a Domino’s Pizza in Delavan. While Ballenger concedes that the armed robbery occurred, he argues that the evidence was not sufficient to convict him of the armed robbery as party to the crime.
¶3 The
State must prove each essential element of the crime beyond a reasonable
doubt. State v. Poellinger, 153
Wis. 2d 493, 501, 451 N.W.2d 752 (1990).
We review the sufficiency of the evidence, direct and circumstantial, to
determine whether 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.” State
v. Ray, 166 Wis. 2d 855, 861, 481 N.W.2d 288 (Ct. App. 1992) (citation
omitted). We must accept the reasonable
inferences drawn from the evidence by the jury, which is the sole arbiter of
the credibility of the witnesses. Poellinger, 153 Wis. 2d at 506-07. If more than one reasonable inference can be
drawn from the evidence, we must adopt the inference that supports the
conviction. State v. Hamilton, 120
Wis. 2d 532, 541, 356 N.W.2d 169 (1984).
¶4 Party
to the crime liability under Wis. Stat. § 939.05
(2009-10)[1]
arises when a defendant intentionally aided and abetted the commission of the
crime or was a member of a conspiracy to commit a crime. Wis
JI—Criminal 401.
A person intentionally aids and abets the commission of a crime when, acting with knowledge or belief that another person is committing or intends to commit a crime, he knowingly either:
[A]ssists the person who commits the crime; or is ready and willing to assist and the person who commits the crime knows of the willingness to assist.
Id. “To intentionally aid and abet [the crime], the defendant must know that another person is committing or intends to commit the crime … and have the purpose to assist in the commission of that crime.” Id. “A person is a member of a conspiracy if, with intent that a crime be committed, the person agrees with or joins another for the purpose of committing that crime.” Id. In contrast, a person does not aid and abet if the person “is only a bystander or spectator and does nothing to assist the commission of a crime.” Id.
¶5 The essence
of Ballenger’s challenge to the sufficiency of the party to the crime evidence
is that the jury should have believed him when he denied knowledge that a
co-actor was going to rob the Domino’s. The
jury had to weigh and assess all of the evidence, including Ballenger’s
denial. The evidence before the jury,
viewed in the light most favorable to the verdict, was as follows.
¶6 The
Domino’s Pizza store was robbed by a gun-wielding man. The employees put money in a backpack
provided by the robber. Two weeks later,
Ballenger was questioned by police about the Domino’s robbery and other similar
armed robberies. Ballenger acknowledged
that within the last two months, he had been involved in several of those
robberies with Terrence Walker, Michael Boyle and others. In an interview with police, which was played
for the jury and for which a transcript was created and admitted into evidence,
Ballenger admitted that he was involved in five prior robberies of gas stations
and a pizza place. Ballenger helped keep
records of the proceeds of the robberies and occasionally acted as the get-away
driver. In one of the gas station
robberies, Ballenger initially denied entering the gas station with Walker, but
later admitted that a photograph depicted him carrying a pipe in the gas
station while Walker threatened the clerk and took money. Ballenger viewed his role in the criminal
enterprise as informative: he instructed
his co-actors how to hold a gun and how to fight. In another robbery, Ballenger dropped off
Walker, who committed a robbery; waited for him to return; and drove him away
with the stolen cash. Ballenger
described other robberies in which he played a supporting role.
¶7 With
regard to the Domino’s robbery at issue in this case, Ballenger stated that he
and Boyle were shopping in a nearby Walmart while Walker robbed the Domino’s. Boyle parked the vehicle at the far end of
the Walmart parking lot among cars for sale.
Once parked, the vehicle was closer to the back door of the Domino’s
than it was to the front door of Walmart.
Ballenger and Boyle left Walker in the vehicle while they entered the
Walmart. Ballenger claimed he was not
aware Walker was going to rob the Domino’s.
When Walker reached him by telephone, Ballenger realized that Walker had
committed a robbery. After Walker, Boyle
and Ballenger fled the scene in the same vehicle, Walker directed them to a
dumpster where he had hidden the backpack with the money from the Domino’s
robbery. While Walker ran to the
dumpster, Ballenger and Boyle warned Walker that the police were approaching.
¶8 From
this evidence, the jury could have reasonably inferred that Ballenger was a party
to the Domino’s robbery: he either aided
and abetted the commission of the crime (i.e., his involvement in the Domino’s
robbery was greater than he admitted) or he conspired with the co-actors for
the purpose of committing the Domino’s robbery.
In addition, Ballenger assisted Walker in retrieving the backpack,
warned Walker that the police were approaching, and assisted Walker in fleeing
the scene. The jury was aware that
Ballenger had been involved in other robberies with the same co-actors. Ballenger’s admitted involvement after the
Domino’s robbery and reasonable inferences from the rest of the evidence
support the jury’s verdict that Ballenger was guilty of armed robbery as party
to the crime. The jury was not required
to give weight to Ballenger’s claim that he did not know Walker was going to
rob the Domino’s.
¶9 Ballenger
next challenges the jury instructions regarding party to the crime liability
and the elements of the crime. The party
to the crime instruction stated that to convict Ballenger, the State had to
prove beyond a reasonable doubt that Ballenger “intentionally aided and abetted
the commission of an armed robbery or
was a member of a conspiracy to commit that crime.” (Emphasis added.) Ballenger argues that, because the jury heard
evidence of other armed robberies in which Ballenger participated, telling the
jury to consider “an armed robbery” did not sufficiently emphasize that the
jury had to decide Ballenger’s guilt in the Domino’s robbery, and the jury
might have been confused. With regard to
the instructions on the elements, Ballenger argues that the circuit court’s repeated
references to “the defendant or another person” as it identified the actor in
relation to the elements could have led the jury to find that Ballenger was
guilty as party to an armed robbery by someone whom Ballenger did not aid or
abet.[2] Ballenger’s trial counsel did not object to
any of the instructions.
¶10 Ballenger
argues that the errors in the jury instructions were plain and should be
reviewed by this court. We agree with
the State that Ballenger’s failure to object to the jury instructions precludes
appellate review of the alleged errors. State
v. Pask, 2010 WI App 53, ¶9, 324 Wis. 2d 555, 781 N.W.2d 751; Wis. Stat. § 805.13(3). Allegations of plain error do not cure
Ballenger’s forfeiture. State
v. Damon, 140 Wis. 2d 297, 304, 409 N.W.2d 444 (Ct. App. 1987); Best
Price Plumbing, Inc. v. Erie Ins. Exch., 2012 WI 44, ¶37 n.11,
340 Wis. 2d 307, 814 N.W.2d 419.
¶11 In the
alternative, Ballenger argues that if the jury instructions were not plain
error, then his trial counsel was ineffective for not objecting to them. Ballenger brought an ineffective assistance
of counsel claim postconviction. The circuit
court denied relief because Ballenger did not present trial counsel to testify
about why he did not object to the instructions. Most importantly, the circuit court concluded
that the instructions were not flawed. We
agree with the circuit court that the instructions were not flawed and did not
confuse the jury. Therefore, Ballenger cannot
establish that he was prejudiced by trial counsel’s failure to object to the
instructions.
¶12 “There are two components to a claim of ineffective assistance
of counsel: a demonstration that counsel’s
performance was deficient, and a demonstration that such deficient performance
prejudiced the defendant. The defendant
has the burden of proof on both components.”
State v. Smith, 207
Wis. 2d 258, 273, 558 N.W.2d 379 (1997) (citation omitted). Whether counsel performed deficiently and
prejudiced the defendant are questions of law that we review de novo. State v. Sanchez, 201 Wis. 2d 219,
236-37, 548 N.W.2d 69 (1996). We need not consider whether trial counsel’s
performance was deficient if we can resolve the ineffectiveness issue on the
ground of lack of prejudice. Id.
¶13 To establish prejudice “the defendant must affirmatively prove that the alleged defect in counsel’s performance actually had an adverse effect on the defense.” State v. Reed, 2002 WI App 209, ¶17, 256 Wis. 2d 1019, 650 N.W.2d 885. The defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (citation omitted).
¶14 The
challenged jury instructions must be viewed in the context of all of the instructions. State v. Ellington, 2005 WI
App 243, ¶7, 288 Wis. 2d 264, 707 N.W.2d 907.
A jury instruction is not error unless “the instructions, when viewed as
a whole, misstated the law or misdirected the jury.” Id. (citation omitted).
¶15 After
considering the instructions in context, we are not persuaded that the party to
the crime jury instruction suggested to the jury that it was to assess
Ballenger’s guilt for any crime other than the armed robbery of the Domino’s. The instructions tied the elements of the
crime of armed robbery to the victims, specific employees of Domino’s. The court instructed the jury that it could
only consider evidence of other robberies on the issues of “motive,
opportunity, intent, preparation or plan, knowledge, absence of mistake or
accident, and context or background.”
The verdict form also focused the jury’s attention on the Domino’s
robbery. Finally, the evidence at trial regarding
the Domino’s robbery was limited to the actions of Ballenger, Walker, and Boyle,
so the jury could not have suspected that others were involved when the circuit
court referred to “the defendant and another person” when instructing on the
elements. The jury instructions were not
flawed and did not mislead the jury.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (2011-12).