COURT OF APPEALS
DATED AND FILED
July 1, 2010
Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
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.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Roy B. Ismert,
from a judgment of the circuit court for Jefferson County: randy
r. Koschnick, Judge. Affirmed.
¶1 DYKMAN, P.J.
Roy B. Ismert appeals from a conviction following a jury trial for obstructing
an officer under Wis. Stat.
§ 946.41. Ismert argues that the evidence presented at
trial was insufficient to convict him of obstructing an officer because the evidence
did not support a reasonable finding that he knew the officer had the legal
authority to stop, question, and arrest him.
The State responds that, under the totality of the circumstances, the
jury reasonably could have found that Ismert was aware that the officer
possessed lawful authority. We conclude
that the evidence sufficiently supports the jury’s finding that Ismert knew the
officer possessed lawful authority.
Accordingly, we affirm.
¶2 The following facts are based on the trial court
testimony. On May 27, 2007, Lake
Mills Police Officer John Richardson observed a vehicle operated by an individual
he believed to be Ismert pull into the parking lot of a Lake Mills
restaurant. Richardson confirmed that there was a warrant
for Ismert’s arrest and parked his marked squad car near the vehicle.
asked Ismert if he was Roy B. Ismert. Ismert
answered “No” and told Richardson
he was Rick Lee Turk and provided a date of birth of 10-8-1953. Ismert’s actual date of birth is
7-15-1955. Richardson asked Ismert for identification,
and Ismert replied that he did not have any.
Ismert also told Richardson that he was
visiting from California. After running this information through
dispatch, as well as through California’s records, Richardson only received
“near hits,” but no one under that name and date of birth. Richardson
asked Ismert to restate his information, and Ismert repeated that he was Rick
¶4 While Richardson ran this information a second time, he
allowed Ismert to pick up his friend’s paycheck inside the restaurant. Ismert threw away his wallet, which contained
his identification, in the women’s bathroom
When he exited the restaurant, Ismert continued to claim he was Rick Lee
Turk. Richardson told Ismert he did not believe him.
Ismert eventually admitted his true
identity and stated he was “tired of running.”
¶5 A jury found Ismert guilty of obstructing an officer. Ismert appeals.
Standard of Review
¶6 Sufficiency of evidence is a question of law that we review
de novo. See State v. Booker, 2006 WI 79, ¶12, 292 Wis. 2d 43, 717 N.W.2d
676. We “may not reverse a conviction unless
the evidence, viewed most favorably to the state and the conviction, is so insufficient
in probative value and force that … as a matter of law … no trier of fact,
acting reasonable, could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153
Wis. 2d 493, 501,
451 N.W.2d 752 (1990). Therefore,
our review of the sufficiency of the evidence to support a criminal conviction
is limited. State v. Grobstick, 200
Wis. 2d 242,
249, 546 N.W.2d 187 (Ct. App. 1996).
¶7 Ismert claims that no reasonable juror could find that he
obstructed Richardson because the facts did not establish
that he knew Richardson
had legal authority to stop, question, and arrest him, or that the outstanding
arrest warrants against him were lawful. Ismert asserts that the court therefore should
not have accepted the guilty verdict. The State responds that under the totality of
circumstances, the evidence was sufficient to permit the jury to find that Ismert
possessed the lawful authority to stop, question, and arrest him. Additionally, the State claims that it does
not have the burden of proving Ismert knew his arrest warrants were
lawful. We conclude that based on the
totality of circumstances, the evidence sufficiently supported the jury’s
finding that Ismert knew Richardson
acted with lawful authority. Further, we
find no support for Ismert’s claim that the State must show that Ismert knew
his arrest warrants were lawful.
¶8 When a defendant challenges the sufficiency of the evidence
to support a conviction, “the test is whether this court can conclude that the
trier of fact could reasonably be convinced that the defendant was guilty
beyond a reasonable doubt.” State
v. Lossman, 118 Wis.
2d 526, 540, 348 N.W.2d 159 (1984) (citation omitted). “If any possibility
exists that the trier of fact could have drawn the appropriate inferences from
the evidence … to find the requisite guilt, [we] may not overturn a verdict.” Poellinger, 153 Wis. 2d at
¶9 The elements of Wis.
Stat. § 946.41 are that: the
defendant obstructed an officer, the officer was acting in an official
capacity, the officer was acting with lawful authority, and the defendant “knew
or believed that he … was obstructing the officer while the officer was acting
in [an] official capacity and with lawful authority.” State v. Caldwell, 154 Wis. 2d 683, 689-90, 454
N.W.2d 13 (Ct. App. 1990). “Acting in an
official capacity” and “acting with lawful authority” are distinct elements. Lossman, 118 Wis. 2d at 537. “Acting in an official capacity” means an
officer is acting in accordance with his or her employment as a law enforcement
officer, while “acting with lawful authority” goes to whether the officer’s
actions are in accordance with the law. Id. Here, the only issue in dispute is
whether Ismert knew Richardson
possessed lawful authority.
determining whether the evidence establishes that the defendant knew an officer
possessed lawful authority, we determine whether a jury, acting reasonably and
weighing the totality of circumstances, including what the officer and
defendant said or did, could be convinced that the defendant knew the officer
was acting with lawful authority. Id. at
544. Further, a jury may utilize
personal experience and common knowledge to find that a reasonable person would
believe an officer was acting with lawful authority. Id. A defendant may not have believed an officer
acted with lawful authority, “but the question is whether a jury, acting
reasonably, could be so convinced that the defendant knew the officer was
acting with lawful authority.” Id.
¶11 Thus, in Lossman, the supreme court held that,
based on the totality of circumstances, the jury reasonably found that the
defendant knew the officer acted with lawful authority. Id. A jury had found Lossman guilty of
obstructing an officer and the court entered a judgment of conviction. Id.
at 531. Lossman appealed, asserting that
he did not know the officer had lawful authority. Id. The record established that at the
time of the contact, the police officer was in full uniform and driving a
marked patrol car, which still had its lights flashing. Id.
at 530, 544. Additionally, the officer
testified he pulled his patrol car over on Lossman’s property as part of a
traffic stop of a third party, and that he relayed this information to Lossman,
who proceeded to attack him. Id. at
¶12 Lossman claimed the officer provided no reason for his presence
on his land, and he therefore did not know the officer possessed lawful
authority. Id. at 530-31. The Lossman court stated that the
conflict in the testimony was not fatal in establishing the sufficiency of the
evidence regarding the defendant’s knowledge of the police officer’s lawful
authority. The court stated
discrepancies in the testimony were properly resolved by the jury and that
common knowledge and experience could be taken into account when weighing such
evidence. Id. at 544. The court concluded that given the officer’s
official dress, Lossman’s admission he had seen the police insignia and gun
worn by the officer, and the officer’s testimony that he had told Lossman he
was carrying out a traffic stop, the evidence was sufficient for the jury to
conclude that Lossman knew the officer acted with lawful authority. Id. at
¶13 Similarly, in Grobstick, we found that the defendant’s
evasive behaviors constituted sufficient evidence to support the jury’s finding
that Grobstick was aware the officer had lawful authority to arrest him. Grobstick, 200 Wis. 2d at 251. There, police went to Grobstick’s home to
arrest him pursuant to a warrant. Id. at 246. The officer informed Grobstick’s girlfriend,
who answered the door, that he had a warrant for Grobstick’s arrest. Id. Grobstick then jumped out a window, returned,
and hid in a closet. Id.
We held that Grobstick’s actions supported a jury finding that
Grobstick knew the officer had lawful authority to arrest him. Id.
¶14 We conclude that Lossman and Grobstick are persuasive
on the facts before us. Like
the officer in Lossman, Officer
Richardson testified that at the time of his contact with Ismert, he was
operating a marked squad car. His
official vehicle supports the finding that a reasonable person would believe
the officer possessed the lawful authority to stop and question him or her. Ismert contends that since the jury was not
told whether Richardson
informed him of the existence of the arrest warrants at the initiation of their
contact, the jury’s finding was unreasonable. Ismert argues that his false statements,
coupled with the fact that he did not run away from the officer while he was in
the restaurant, shows Ismert did not know Richardson
had the lawful authority to arrest him.
However, while this is one inference the jury may have drawn, it was not
required to draw that inference. Ismert’s
evasive conduct, like the conduct in Grobstick, could reasonably be interpreted
as a method for preventing his lawful arrest.
¶15 Ismert also asserts that even if the evidence established that he
knew there was a warrant for his arrest, there was no evidence that he knew the
warrant was lawful, and therefore the State did not establish that he knew that
the legal authority to arrest him.
Ismert implies that because defects may invalidate warrants, rendering
them unlawful, the State has the burden to show that Ismert knew no such
defects existed here. See, e.g., Lo-Ji Sales, Inc. v. New York,
442 U.S. 319 (1979); Franks
v. Delaware, 438 U.S. 154
(1978). However, Ismert provides no authority,
nor do we find any, supporting the position that the State has this
burden. We conclude that the jury
reasonably found that Ismert’s evasive behavior stemmed from his knowledge of
the officer’s lawful authority to arrest him, supporting Ismert’s
conviction. Accordingly, we affirm.
By the Court.—Judgment affirmed.
recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.