COURT OF APPEALS DECISION DATED AND RELEASED October 3, 1995 |
NOTICE |
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. |
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No. 95-1360-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GREGORY C. KIRST,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
DANIEL L. KONKOL, Judge. Affirmed.
SCHUDSON, J.[1] Gregory
Kirst appeals from a judgment of conviction following a bench trial for
battery, contrary to § 940.19(1), STATS.
He argues that there was insufficient evidence to support his
conviction. This court disagrees and
affirms.[2]
The trial court
convicted Kirst of causing bodily harm to Stephen M. Baker by hitting him in
the ribs with an anti-theft device called “The Club.” Kirst argues that Baker's testimony that he closed his arm over
“The Club” while defending himself could constitute nothing more than a
defensive grabbing of “The Club.” He
contends, therefore, that because independent witness Joseph Catanese did not
see him strike Baker and City of Milwaukee Police Officer Reginald Hampton did
not observe any injuries to Baker, the evidence was insufficient to prove
battery.
The test for sufficiency
of evidence is whether a reasonable trier of fact could be convinced of guilt
beyond a reasonable doubt. See State
v. Wachsmuth, 166 Wis.2d 1014, 1022-1023, 480 N.W.2d 842, 846 (Ct. App.
1992). This court must view the
evidence in a light most favorable to the trier of fact’s verdict and indulge
every reasonable inference that may be drawn, and if more than one reasonable
inference may be drawn, this court must adopt an inference that supports the
finding made by the trial court. Id.
at 1023, 480 N.W.2d at 846. This court
will not disturb a conviction “unless 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. Poellinger, 153
Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990).
Further, it is the function of the trier of fact to assess the weight
and credibility of testimony, and this court will only substitute its judgment
when the trier of fact relied upon evidence that was inherently or patently incredible
as a matter of law. Wachsmuth,
166 Wis.2d at 1023-1024, 480 N.W.2d at 846-847.
Baker testified that on
November 6, 1993, he began chasing Kirst after observing him smash out the
windows in Baker’s vehicle with “The Club.”
Following a brief chase, Kirst pulled “The Club” from his jacket and
began swinging it at Baker. After
avoiding Kirst’s first two swings, Baker was struck in the ribs with “The
Club.” A struggle ensued during which
Kirst struck and kicked him “many times.”
Baker also testified that he suffered pain and coughed up blood.
The State also elicited
testimony from Joseph Catanese, a citizen who observed a portion of the
altercation while driving his vehicle.
Catanese testified that he saw Baker chasing Kirst and also saw Baker and
Kirst wrestling over “The Club.”
Catanese approached the men, took “The Club,” and secured it in his
vehicle.
The State also
introduced the testimony of City of Milwaukee Police Officer Reginald
Hampton. Hampton testified that upon
arriving at the scene he observed Baker and Catanese attempting to subdue
Kirst. Hampton noted that Baker had
visible bruises and was coughing up blood.
Kirst bases his argument
on the following portion of Baker's testimony:
The defendant swung—charged me and swung the Club
at me a couple times. I avoided
it. He swung it at me in the ribs
underneath the left arm, at which time I closed my arm over it and held on to
his arm and the Club and managed to wrestle him to the ground, at which point
another person jumped out of his car and asked us to stop fighting.
Kirst,
however, conveniently ignores not only the logical inferences that may be drawn
from this testimony in combination with the other evidence, but also other
portions of Baker's testimony including the following, on cross-examination:
Q:... Did you get hit in the head that
night?
A:Yes, I got hit all over.
Q:Where else did you get hit?
A:All over my whole body.
....
Q:And this man [Kirst] seated to my right
struck you many times?
A:Yes, he did.
....
Q:So when you testified today that you
were struck or that you blocked a couple times and then you managed to get the
instrument away, is that correct, that's a total of three; blocked two and
grabbed it on the third one?
A:No.
The defendant swung at me several times. I do not remember how many times. He charged me. He made
contact with the Club once, hit me under the arm, at which point I was able to
grab on to the Club, and he would not let go, and then I managed to get him
onto the ground eventually. I was very
concerned that he was going to hit me with the Club again. The other gentleman, after I pleaded with
him, removed the Club from the defendant's hand.
....
Q:Did you get struck many, many times in
an altercation that lasted a long time, or did you get hit once?
A:No.
I got hit with hands and feet many times.
Q:Mr. Kirst struck you with his hands and
his feet?
A:Yes.
Q:What was going on with the Club at the
time? How could he do anything with his
feet?
A:Well, since I had one of my hands on
the Club and one of my hands on the arm holding the Club, Mr. Kirst had two
free feet and one free arm to do with what he chose.
Q:What did he do?
A:He chose to hit me in the head, chose
to hit me in the arms and the body. He
kicked me a couple times. I mean—
Q:Did you tell the police that?
A:I
don't remember whether I did or not. I
remember telling them that he hit me with the Club. I remember telling them that the Club was in the other person's
car.
This court concludes
that the State presented sufficient evidence for a trier of fact to return a
guilty verdict. The fact that Baker
testified that he closed his arm over “The Club” is not so inconsistent with
his overall description of the attack as to make his testimony incredible as a
matter of law. Additionally, while
neither Catanese nor Hampton actually observed Kirst hit Baker in ribs, their
testimony corroborated Baker’s account.
Finally, the record contains sufficient evidence from Baker and Officer
Hampton to support the trial court’s conclusion that Baker suffered bodily
injuries from Kirst’s use of “The Club.”
The totality of evidence was sufficient in probative value and force
that the trier of fact, acting reasonably, could have found guilt beyond a
reasonable doubt. See Poellinger,
153 Wis.2d at 501, 451 N.W.2d at 755.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.