COURT OF APPEALS
DATED AND FILED
July 1, 2010
David R. Schanker
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 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.
IN COURT OF APPEALS
Roy B. Ismert,
from a judgment of the circuit court for
¶<![if !supportFields]>1<![endif]> DYKMAN, P.J.<![if !supportFootnotes]><![endif]> Roy B. Ismert appeals from a conviction following a jury trial for obstructing an officer under Wis. Stat. § 946.41.<![if !supportFootnotes]><![endif]> 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.
¶<![if !supportFields]>2<![endif]> 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
¶<![if !supportFields]>4<![endif]> 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
¶<![if !supportFields]>5<![endif]> A jury found Ismert guilty of obstructing an officer. Ismert appeals.
Standard of Review
¶<![if !supportFields]>6<![endif]> Sufficiency of evidence is a question of law that we review
¶<![if !supportFields]>7<![endif]> Ismert claims that no reasonable juror could find that he
¶<![if !supportFields]>8<![endif]> 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
¶<![if !supportFields]>9<![endif]> 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
¶<![if !supportFields]>10<![endif]> In
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.
¶<![if !supportFields]>11<![endif]> 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.
¶<![if !supportFields]>12<![endif]> Lossman claimed the officer provided no reason for his presence
on his land, and he therefore did not know the officer possessed lawful
¶<![if !supportFields]>13<![endif]> 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
¶<![if !supportFields]>14<![endif]> 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
¶<![if !supportFields]>15<![endif]> 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
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
<![if !supportFootnotes]><![endif]> This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
<![if !supportFootnotes]><![endif]> Wisconsin Stat. § 946.41 provides:
(1) Whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority, is guilty of a Class A misdemeanor.
(a) “Obstructs” includes without limitation knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty ….
<![if !supportFootnotes]><![endif]> After
the jury returned its verdict,