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COURT OF APPEALS DECISION DATED AND RELEASED June 22, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3249-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES W. MCMILLEN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Vernon County:
MICHAEL J. ROSBOROUGH, Judge. Affirmed.
GARTZKE, P.J.[1] A
jury found James W. McMillen guilty of violating a domestic-abuse
injunction. See
§ 813.12(8), Stats. He was acquitted of solicitation of murder,
causing bodily harm to another, intentional damage to physical property, and
criminal trespass. The trial court
imposed a fine and costs totaling $1300.00.
The state public
defender appointed Michael J. Devanie to represent McMillen on appeal. Attorney Devanie has filed a no-merit report
pursuant to Rule 809.32, Stats., and Anders v. California,
386 U.S. 738 (1967). McMillen received
a copy of the no-merit report and was advised of his right to file a
response. He has not responded.
The no-merit report
addresses whether there was sufficient evidence to prove that McMillen violated
the domestic-abuse injunction. An
appellate court will affirm a conviction if, viewing the evidence in the light
most favorable to the conviction, it concludes that a jury, acting reasonably,
could find guilt beyond a reasonable doubt based on the evidence. State v. Barksdale, 160 Wis.2d
284, 289-90, 466 N.W.2d 198, 200 (Ct. App. 1991). A charge of violating a domestic-abuse injunction requires the
existence of an injunction, an act that violates the injunction, and the
defendant's knowledge of the first two elements. Wis J I—Criminal
2040.
McMillen acknowledged he
knew that his ex-wife had obtained a domestic-abuse injunction against
him. The injunction was in effect at
the time of the incident and it ordered McMillen to avoid his ex-wife's
"residence and/or any premises temporarily occupied" by her. The only issue is whether he knew he was
acting in violation of the injunction.
McMillen's mother
testified that in late February 1993, he visited her in Milwaukee and told her
he was moving to Florida. She testified
that they agreed she would sell the farm on which he had been living in
Viroqua. On March 9, 1993, McMillen's
ex-wife, mother, and daughter drove to the farm to prepare the property for
sale. Two days later, McMillen and five
friends drove to the farm. There is no
dispute that when McMillen left Milwaukee, he did not know his ex-wife was at
the farm.
McMillen
and his friends arrived around 2:00 a.m. and noticed a car in the
driveway. In response to the
investigating officer's question about seeing his ex-wife's car, McMillen said,
"So I see a car[;] she has two vehicles." One of McMillen's friends testified that as they drove up to the
house, McMillen made some comment about the "bitch's" car being
there. McMillen testified that the car
was snow covered, that it was similar to his ex-wife's, that he did not know
why it would be there, that he did not realize she was in the house, and that
she had two cars and he thought maybe she just parked one there. He testified that he said he hoped "the
bitch ain't here."
"Knowing"
requires only that an actor believe the fact exists. Section 939.23(2), Stats. From the testimony, a jury could reasonably
conclude that McMillen recognized the car and that he knew his ex-wife was
likely to be in the farmhouse.
Consequently, the jury's verdict was supported by the evidence.
Another possible issue
is whether the trial court should have suppressed McMillen's statement. The police officer who responded to the call
about a shooting at the farm questioned McMillen, who was shot in the leg,
before medical personnel arrived. The
trial court concluded that the statement was voluntary and that McMillen was
not in custody at the time.
To the extent a trial
court's decision on a suppression motion involves findings of evidentiary or
historical facts, those findings will not be overturned unless they are clearly
erroneous. State v. Krier,
165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct. App. 1991). Application of constitutional and statutory
principles to the facts found by a trial court, however, presents a matter for
independent review by an appellate court.
Id.
The trial court's
finding that McMillen was not in custody is supported by the evidence. The investigating officer testified that at
the time of the questioning, he considered McMillen the victim. The officer testified that after surveying
the house for weapons, he spoke with McMillen to determine what had
occurred. A challenge to the trial
court's decision on the suppression motion lacks arguable merit.
This court's independent
review of the record did not disclose any additional potential issues for
appeal. Therefore, any further
proceedings on McMillen's behalf would be frivolous and without arguable merit
within the meaning of Anders and Rule 809.32(1), Stats. Accordingly, the judgment of conviction is
affirmed, and Attorney Devanie is relieved of any further representation of
McMillen on this appeal.
By the Court.—Judgment
affirmed.