State v. Rasheem D. Davis ( 2023 )

2023 WI APP 25
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
2021AP1526-CR
Case No.:
2021AP1527-CR
†Petition for Review Filed
Complete Title of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RASHEEM D. DAVIS,
DEFENDANT-APPELLANT.
Opinion Filed: April 4, 2023
Submitted on Briefs: April 13, 2022
Oral Argument:
JUDGES: Donald, P.J., White and Dugan, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Christopher P. August of the Office of the State Public
Defender in Milwaukee.
Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Joshua L. Kaul and John A. Blimling of the Wisconsin
Department of Justice in Madison.
2023 WI App 25COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 4, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal Nos.
2021AP1526-CR Cir. Ct. Nos. 2020CF774
2019CF4828
2021AP1527-CR
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RASHEEM D. DAVIS,
DEFENDANT-APPELLANT.
APPEALS from judgments and orders of the circuit court for
Milwaukee County: GLENN H. YAMAHIRO and FREDERICK C. ROSA,
Judges. Affirmed.
Before Donald, P.J., Dugan and White, JJ.
¶1 DUGAN, J. Rasheem D. Davis appeals from two judgments of
conviction—one for false imprisonment and robbery with use of force, as acts of
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domestic violence, and one for fleeing or eluding an officer.1 He also appeals from
orders of the circuit court denying his motion for postconviction relief, without a
hearing. On appeal, he argues that the trial court lacked subject matter jurisdiction
because it orally dismissed his case charging false imprisonment and robbery with
use of force, without prejudice, when a witness did not appear for trial, but rescinded
that order minutes later and the case proceeded to trial that same day before a
different judge. He also argues that his trial counsel was ineffective for failing to
object to a lack of personal jurisdiction, which he argues occurred when the court
orally dismissed the case without prejudice, that he is entitled to plea withdrawal in
his case charging fleeing or eluding an officer, and that the evidence was insufficient
to support his conviction for robbery with use of force.
¶2 We conclude that the fact that the circuit court orally dismissed his
case charging false imprisonment and robbery, without prejudice, but rescinded that
order minutes later, did not result in the trial court losing subject matter jurisdiction
over Davis’s case. Consequently, we also reject Davis’s claims of ineffective
assistance of counsel and plea withdrawal, which are all premised on his claim that
the circuit court’s order dismissing the case without prejudice was a final disposition
of Davis’s case and, therefore, the trial court lost subject matter jurisdiction and
personal jurisdiction. We further conclude that the evidence introduced at trial was
sufficient to support Davis’s conviction for robbery with use of force. Accordingly,
we affirm the judgments of conviction and the circuit court’s orders denying Davis’s
postconviction motion, without a hearing.
1
The Honorable Glenn H. Yamahiro presided over Davis’s trial, plea, and sentencing.
The Honorable Frederick C. Rosa entered the orders denying Davis’s postconviction motions. We
refer to Judge Yamahiro as the trial court and Judge Rosa as the circuit court.
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BACKGROUND
¶3 The State charged Davis in two separate cases underlying this appeal.
In the first case, Milwaukee County Circuit Court Case No. 2019CF4828, on
October 30, 2019, the State charged Davis with one count each of false
imprisonment, robbery with use of force, misdemeanor battery, disorderly conduct,
and misdemeanor bail jumping, all with the domestic abuse enhancers. In the
second case, Milwaukee County Circuit Court Case No. 2020CF774, on February
19, 2020, the State charged Davis with fleeing or eluding an officer and second-
degree recklessly endangering safety, with the domestic abuse enhancer. Both cases
stemmed from incidents related to a romantic relationship Davis had with Alicia.2
As alleged in the criminal complaint in his first case, Case No. 2019CF4828, on
October 28, 2019, Davis approached Alicia after one of her classes at Milwaukee
Area Technical College (MATC), followed her into a bathroom, trapped her in a
bathroom stall, grabbed her by the neck, bit her on the face, and took her phone. In
the criminal complaint in his second case, Case No. 2020CF774, the State alleged
that on October 19, 2019, the police attempted to conduct a “welfare check” of
Alicia by stopping Alicia’s car, which was being driven by Davis. At the time of
the welfare check, Alicia was riding as a passenger in her car.
¶4 On August 3, 2020, at 9:26 a.m., the circuit court called Davis’s case
and asked if Case No. 2019CF4828 was prepared for trial. The court advised the
parties that it had several speedy trials set that morning, and it was “essentially
2
Pursuant to WIS. STAT. RULE 809.86 (2021-22), we refer to the victim in this matter
using a pseudonym. All references to the Wisconsin Statutes are to the 2021-22 version unless
otherwise noted.
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triaging the cases to see which ones are ready to go[.]”3 The State advised that it
was not prepared to move forward with the trial due to an issue with subpoenas and
inconsistent contact with Alicia. Trial counsel moved to have the case dismissed,
and the circuit court dismissed the case without prejudice. Further proceedings
regarding setting a date for Davis’s other cases then occurred off the record.4
Shortly thereafter, the court went back on the record when the State informed the
court that Alicia was present and that the State was ready to proceed to trial. The
circuit court then advised the parties that another court might be available to try
Davis’s case. The case was then set to be recalled at 10:45 a.m. to see how it would
proceed. The proceedings concluded at 9:30 a.m.
¶5 Later that day, Davis’s case was transferred to the trial court, and the
jury trial proceeded to trial that same day. At trial, Alicia and a responding officer
testified. The jury also saw photos of the bite mark on Alicia’s face, bodycam
footage from the responding officer, and surveillance video footage from MATC.
¶6 Alicia testified that she was in a romantic relationship with Davis in
October 2019, and on the day of the incident, she told Davis that she wanted to end
the relationship. She further testified that she was texting with Davis during her
class, and when she left class, Davis was waiting for her in the hallway. She stated
that Davis was mad about her ending the relationship and told her that “it wasn’t
happening.” Alicia testified that she tried to walk away, but Davis grabbed her arm.
She then tried to leave, but Davis followed her. She went into a women’s bathroom
trying to escape Davis, but Davis followed her into one of the stalls and trapped her
3
Because the court was triaging the cases, Davis, who was in custody, was not produced
at that time, and trial counsel asked that Davis’s appearance be waived.
4
Davis faced criminal charges in several other cases that are not at issue in this appeal.
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in the stall. Alicia testified that Davis grabbed her by the neck and demanded that
she use her phone to send a text saying that she was still in a relationship with Davis.
When she did not comply, Davis bit her, and she “grabbed [her] phone and gave it
to him.” However, Alicia then clarified that she took her phone out of her pocket,
and Davis grabbed her phone out of her hand and ran out of the stall.
¶7 Alicia testified that she chased after Davis. Davis told Alicia that he
threw her phone in the toilet, ran out of the bathroom, and left the building through
the fire exit, setting off the fire alarm. After Alicia confirmed that her phone was
not in the toilet, she followed Davis out to the alley. She testified that she yelled at
Davis in the alley to give her phone back to her, and that Davis attempted to give
her cigarettes and baby pictures “[t]o insure [sic] [her] that he’s coming back to give
[her the] phone.” Alicia rejected the cigarettes and baby pictures, and she told Davis
that she just wanted her phone back. Davis left and told Alicia to meet him around
the corner and he would give her phone back. She testified that Davis told her to
meet him around the corner because he was scared the police were going to pull up
because the alarms were going off. Alicia waited around the corner for thirty
minutes, but she left after Davis did not come back. She testified that, at that point,
she located a police officer to report the incident.5
¶8 The jury found Davis guilty as charged in Case No. 2019CF4828, and
following the guilty verdict, Davis then pled guilty in Case No. 2020CF774 to one
count of fleeing or eluding an officer, and the additional charge of second-degree
recklessly endangering safety was dismissed and read in for the purposes of
5
Alicia also testified about an email that she wrote to the Milwaukee County District
Attorney’s office following the report she made to the police. Her email was inconsistent with the
account that she originally gave to the police, and she testified at trial that the statements in her
email were intended to make the incident seem “less serious.”
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sentencing. Both cases proceeded to sentencing, and Davis received a global
sentence of six years and nine months of imprisonment.
¶9 Davis filed a postconviction motion in which he argued that the trial
court lacked subject matter jurisdiction to conduct the trial in Case
No. 2019CF4828, that trial counsel was ineffective for failing to object to a lack of
personal jurisdiction, and that he was entitled to withdraw his plea to the charge of
fleeing or eluding an officer in Case No. 2020CF774.6
¶10 The circuit court denied his motion. In a written order, the court
stated:
The court’s power to rescind continues at least to the point
that the order of dismissal is entered on the docket. That did
not happen in this case because the court rescinded the
dismissal only moments after it was granted. Although the
court did not expressly state that it was rescinding the
dismissal, that is effectively what the court did when the
State advised that its essential witness was actually present,
and the court set the case back on for trial before Judge
Yamahiro. Under circumstances where the motion for
dismissal was granted without prejudice, and new
information was brought to the court only moments later,
with the attorneys present, the court finds that the defendant
was not prejudiced when the court effectively rescinded the
dismissal. Jeopardy had not attached, and therefore, the
court was not without subject matter jurisdiction.
Having rejected Davis’s argument that the trial court lost subject matter jurisdiction,
the circuit court also found that Davis did not receive ineffective assistance of
counsel and that he was not entitled to plea withdrawal.
¶11 Davis now appeals.
Davis also sought additional sentence credit. The circuit court granted Davis’s request.
6
Davis’s request for sentence credit is not at issue in this appeal.
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DISCUSSION
¶12 On appeal, Davis raises four main arguments. First, he argues that the
trial court lacked subject matter jurisdiction in Case No. 2019CF4828. Second, he
argues that his trial counsel was ineffective for failing to object to a lack of personal
jurisdiction in Case No. 2019CF4828. Third, he argues that he is entitled to plea
withdrawal in Case No. 2020CF774. Fourth, he argues that the evidence introduced
at trial was insufficient to support his conviction in Case No. 2019CF4828 on the
charge of robbery with the use of force. We address each argument in turn.
I. Subject Matter Jurisdiction
¶13 Davis first argues that the trial court lacked subject matter jurisdiction
in Case No. 2019CF4828. In particular, he argues that the trial court lost subject
matter jurisdiction when his case was dismissed without prejudice after the State
advised the court that it was not prepared to move forward with the trial. He
contends that the dismissal constituted a “final disposition” of the case and caused
subject matter jurisdiction to “expire.” Thus, Davis argues that his subsequent trial
and conviction amounts to a “legal nullity.” We disagree.
¶14 “[S]ubject matter jurisdiction refers to the power of a court to decide
certain types of actions.” State v. Smith, 2005 WI 104, ¶18, 283 Wis. 2d 57, 699
N.W.2d 508. “The circuit courts in Wisconsin are courts of general jurisdiction.
They have original subject matter jurisdiction of all matters, civil and criminal, not
excepted in the constitution or prohibited by law.” Mack v. State, 93 Wis. 2d 287,
294, 286 N.W.2d 563 (1980); see also WIS. CONST. art. VII, § 8. “The circuit
court’s subject-matter jurisdiction attaches when the complaint is filed.” State v.
Aniton, 183 Wis. 2d 125, 129, 515 N.W.2d 302 (Ct. App. 1994). “Once jurisdiction
has attached it continues until final disposition.” State v. Asfoor, 75 Wis. 2d 411,
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424, 249 N.W.2d 529 (1977). Davis argues that the final disposition in Case No.
2019CF4828 occurred when the circuit court dismissed the case without prejudice,
causing the trial court to lose its subject matter jurisdiction over his case and
rendering his subsequent trial and conviction a legal nullity.
¶15 By contrast, the State argues that this is not an issue of subject matter
jurisdiction, but is rather one of competency because “a circuit court is never
without subject matter jurisdiction.” See Village of Trempealeau v. Mikrut, 2004
WI 79, ¶1, 273 Wis. 2d 76, 681 N.W.2d 190. Instead, “a court’s ‘competency,’ as
the term is understood in Wisconsin, is not jurisdictional at all, but instead, is
defined as ‘the power of a court to exercise its subject matter jurisdiction’ in a
particular case.” Smith, 283 Wis. 2d 57, ¶18 (citation omitted). Then, the State
argues that the trial court did not lack competency to proceed with Davis’s trial and
that it also had the inherent authority to reconsider its own rulings. See Butcher v.
Ameritech Corp., 2007 WI App 5, ¶44, 298 Wis. 2d 468, 727 N.W.2d 546. In
making this argument, the State emphasizes that the circuit court’s reinstatement of
the charges occurred minutes after the oral dismissal without prejudice and all the
events at issue occurred within the same hearing. The State also highlights that no
written order was ever entered, and the only order in the record was the circuit
court’s oral order of dismissal made during the hearing and the court clerk did not
enter the oral dismissal on the docket.
¶16 We review both matters dealing with a trial court’s subject matter
jurisdiction and competency de novo. City of Eau Claire v. Booth, 2016 WI 65, ¶6,
370 Wis. 2d 595, 882 N.W.2d 738. Upon review, we conclude that the trial court
never lost subject matter jurisdiction in Davis’s case, and therefore, we reject
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Davis’s argument that his conviction in Case No. 2019CF4828 was a “legal
nullity.”7
¶17 In this regard, we find United States v. Green, 414 F.2d 1174 (D.C.
Cir. 1969), and Lyles v. United States, 920 A.2d 446 (D.C. 2007), persuasive.8 In
Green, the court orally granted a defendant’s motion to dismiss the indictment that
the government had filed when an informant was not produced for questioning.
Green, 414 F.2d at 1175. The government objected to the dismissal because “it had
not been given an opportunity to argue the question,” and the court “immediately”
withdrew its oral ruling. Id. On appeal, the United States Court of Appeals for the
D.C. Circuit stated, “We hold that under these circumstances the oral ruling has no
legal significance and is not a judgment of acquittal barring further prosecution. The
oral ruling of a trial judge is not immutable, and is of course subject to further
reflection, reconsideration and change.” Id.¶18 Relying on Green, the District of Columbia Court of Appeals in Lyles
addressed a similar situation in which the trial court orally dismissed the charges
against the defendant “without prejudice” when the complaining witness failed to
appear. Lyles, 920 A.2d at 447-48. The complaining witness appeared shortly
7
We do not address the State’s argument regarding competency further. Davis reiterates
in his reply brief that this is an issue of subject matter jurisdiction, and he argues that this is not a
matter of competency. Indeed, he concedes that he is “not alleging that the circuit court failed to
abide by a statutory mandate, which would have created a loss of competency.” Given that
competency is generally considered to be a matter of compliance with statutory mandates, we do
not address the State’s argument on competency further. See City of Eau Claire v. Booth, 2016
WI 65, ¶7, 370 Wis. 2d 595, 882 N.W.2d 738.
8
We recognize that Wisconsin courts are not bound to follow case law from other
jurisdictions. See State v. Muckerheide, 2007 WI 5, ¶37, 298 Wis. 2d 553, 725 N.W.2d 930.
However, “such case law is oftentimes helpful, and may be persuasive.” Id., ¶38. Given the lack
of Wisconsin case law on point, we consider both United States v. Green, 414 F.2d 1174 (D.C. Cir.
1969), and Lyles v. United States, 920 A.2d 446 (D.C. 2007), helpful and persuasive in this
instance.
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thereafter, and the trial court rescinded its oral dismissal about an hour later and
reinstated the charges against the defendant. Id. The trial court’s rescission and
reinstatement of the charges also occurred “prior to the clerk’s entry of the oral
dismissal on the docket.” Id. at 448. The defendant there argued that the trial court
lacked jurisdiction over his case “absent a refiling of the charges.” Id. at 447. The
court concluded, “[S]ince the oral dismissal had not yet been entered on the docket,
the trial court retained the power to rescind the oral dismissal, absent undue
prejudice to the defendant.” Id.
¶19 Similar to Green and Lyles, the circuit court here made an oral ruling
to dismiss the charges against Davis without prejudice when the State indicated that
it was not prepared to move forward with the trial. Merely minutes later—and
during the same hearing—the State’s witness appeared, the State indicated that it
could move forward with the trial, and the circuit court rescinded its prior oral ruling
and reinstated the charges by transferring the case to the trial court for trial. At this
point in the proceedings, the circuit court’s oral ruling dismissing the charges
against Davis had also not yet been entered on the docket. Given the facts of this
case, we conclude that the circuit court here had the power to rescind its oral
dismissal of the charges, and we further conclude that it retained subject matter
jurisdiction in Davis’s case. There was also “no appreciable prejudice [that] resulted
from the rescission of the oral order of dismissal” given the ongoing nature of the
hearing and the short period of time that lapsed between the oral ruling dismissing
the charges and the witness’s appearance that caused the matter to move forward
with the trial. See Lyles, 920 A.2d at 450. Consequently, we conclude that Davis’s
subsequent trial and conviction was, therefore, not a legal nullity.
¶20 Furthermore, it is firmly established in Wisconsin law that a circuit
court has the inherent authority to reconsider its own rulings during ongoing
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proceedings. Butcher, 298 Wis. 2d 468, ¶44; see also State v. Schwind, 2019 WI
48, ¶¶12-19, 386 Wis. 2d 526, 926 N.W.2d 742 (providing an overview of a court’s
inherent authority). Again, evaluating the facts of this case, the circuit court made
an oral ruling at the beginning of the hearing and, due to a change in circumstances
that occurred during the same hearing, reconsidered that same ruling minutes later.
We conclude that the circuit court’s actions here were, therefore, nothing more than
an exercise of its inherent authority to reconsider its own rulings and its subject
matter jurisdiction over Davis’s case did not expire.9
¶21 As a result, we conclude that the trial court had subject matter
jurisdiction to conduct the trial in Davis’s case. We conclude that the circuit court’s
oral ruling was not a final disposition, as Davis contends, and the following jury
trial and verdict was not a legal nullity.
II. Ineffective Assistance of Counsel and Plea Withdrawal
¶22 Additionally, Davis makes two arguments for ineffective assistance
of counsel and plea withdrawal premised on the trial court’s lack of subject matter
jurisdiction and a final disposition in Case No. 2019CF4828. He argues that he is,
at the very least, entitled to a hearing on the issue of ineffective assistance of counsel
and plea withdrawal. As a result of our conclusion above, we reject Davis’s
remaining arguments for ineffective assistance of counsel and plea withdrawal.
9
Davis raises an argument based on what the circuit court described as “[t]he closest
Wisconsin case on point”—State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977)—and he
argues that it is “negative authority” that “helps to explain what a final disposition is not.” We are
not persuaded by Davis’s argument, and we do not consider Asfoor applicable to this case, given
that it does not define what constitutes a final disposition. Instead, we agree with the circuit court’s
assessment that Asfoor presents “a factual distinction … but not necessarily a legally significant
one in light of Lyles and Green.”
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¶23 In his argument for ineffective assistance of counsel, Davis argues that
his trial counsel was ineffective for failing to object to the trial court’s lack of
personal jurisdiction over him in Case No. 2019CF4828. He maintains that the
circuit court’s oral ruling dismissing the charges against him was a final disposition
and rendered the criminal complaint legally invalid. In arguing for plea withdrawal,
Davis additionally argues that he is entitled to plea withdrawal in Case No.
2020CF774 because he argues that his plea was motivated by the unfavorable jury
verdict in Case No. 2019CF4828. He further argues that, because the jury verdict
in Case No. 2019CF4828 was a legal nullity, his plea in Case No. 2020CF774 was
not entered knowingly, intelligently, and voluntarily.
¶24 Having rejected Davis’s argument that the trial court lacked subject
matter jurisdiction on the basis that his case was finally disposed of, we necessarily
must also reject Davis’s two arguments for ineffective assistance of counsel and
plea withdrawal that are similarly premised on his final disposition argument in
Case No. 2019CF4828, and the lack of a legally valid complaint to continue the
proceedings.10 We, thus, do not address Davis’s two arguments for ineffective
assistance of counsel and plea withdrawal further, as we have already concluded
that the circuit court’s oral ruling was not a final disposition of Case
No. 2019CF4828 and the further proceedings were not a legal nullity. See State v.
Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases should
be decided on the narrowest possible ground.”).
¶25 Moreover, trial counsel cannot be considered ineffective for failing to
raise a meritless claim. See State v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d
10Indeed, concerning his argument for plea withdrawal, Davis asserts in his reply brief
that he “agrees that the legal questions with respect to [Case No.] 19CF4828 are dispositive.”
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270, 647 N.W.2d 441 (“Failure to raise an issue of law is not deficient performance
if the legal issue is later determined to be without merit.”). Similarly, Davis’s plea
cannot be considered unknowing, unintelligent, or involuntary if Case
No. 2019CF4828 is not a legal nullity as he contends. Cf. State v. Dillard, 2014 WI
123, ¶39, 358 Wis. 2d 543, 859 N.W.2d 44 (noting that inaccurate information can
compromise a plea).
III. Sufficiency of the Evidence
¶26 Last, Davis argues that the evidence introduced at trial was
insufficient to support his conviction in Case No. 2019CF4828 for robbery with use
of force. Specifically, Davis argues that the evidence introduced at trial is
insufficient to establish that he had any intent to permanently deprive Alicia of her
phone. See WIS JI—CRIMINAL 1479 (listing the third element of robbery with use
of force as “[t]he defendant took the property with the intent to steal”).
¶27 A challenge to the sufficiency of the evidence to support a criminal
conviction is a question of law that we review de novo. State v. Smith, 2012 WI 91,
¶24, 342 Wis. 2d 710, 817 N.W.2d 410. State v. Poellinger sets forth the standards
that we apply when reviewing the sufficiency of the evidence to support a conviction
as follows:
[We] may not substitute [our] judgment for that of the trier
of fact unless the evidence, viewed most favorably to the
[S]tate and the conviction, is so lacking in probative value
and force that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt. If any possibility
exists that the trier of fact could have drawn the appropriate
inferences from the evidence adduced at trial to find the
requisite guilt, an appellate court may not overturn a verdict
even if it believes that the trier of fact should not have found
guilt based on the evidence before it.
Id., 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) (citations omitted). Additionally,
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[i]n reviewing the sufficiency of circumstantial evidence to
support a conviction, [we] need not concern [ourselves] in
any way with evidence which might support other theories
of the crime. [We] need only decide whether the theory of
guilt accepted by the trier of fact is supported by sufficient
evidence to sustain the verdict rendered.
Id. at 507-08. Applying this standard of review, we conclude that there was
sufficient evidence for the jury to have reasonably concluded that Davis was guilty
of robbery with the use of force and, more specifically, with the intent to
permanently deprive Alicia of her phone.
¶28 The charge of robbery with use of force required the State to prove
four elements. See WIS JI—CRIMINAL 1479. Davis challenges the State’s evidence
with regard to the third element: “The defendant took the property with the intent
to steal.” Id. “This requires that the defendant had the mental purpose to take and
carry away property of another without consent and that the defendant intended to
deprive [Alicia] permanently of possession of the property.” Id. (footnote omitted).
¶29 Davis argues that the evidence introduced at trial is insufficient to
support a finding that he intended to permanently deprive Alicia of her phone—he
specifically points to Alicia’s testimony that Davis attempted to give Alicia
collateral for the return of her phone, asked Alicia to wait for him, and eventually
did meet with Alicia to return her phone. The State counters that Davis’s conduct
and the circumstances surrounding the taking of Alicia’s phone unquestionably
provided the jury with enough evidence to be convinced that Davis had the intent to
permanently deprive Alicia of possession of her phone. We note that in Sartin v.
State, 44 Wis. 2d 138, 145, 170 N.W.2d 727 (1969) (citation omitted), our supreme
court stated, “Intent is a state of mind existing at the time a person commits an
offense.” It went on to say that “[t]he mind of an alleged offender, however, may
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be read from his acts, conduct, and inferences fairly deducible from all the
circumstances.” Id. (citation omitted).
¶30 Thus, we look to the record to determine if the jury, acting reasonably,
could have been convinced beyond a reasonable doubt by the evidence in the record,
that Davis intended to permanently deprive Alicia of her phone. At trial, Alicia
testified that Davis was mad about her ending the relationship and told her that “it
wasn’t happening.” Davis physically attacked her in the women’s bathroom,
blocked her attempts to get out of the bathroom stall, grabbed her by her neck and
demanded that she use her phone to send a text saying that she was still in a
relationship with Davis, demanded her phone, and as she was trying to get out of
the stall by crawling on the floor, he picked her up and bit her on her face, and then
grabbed her phone from her. Alicia testified that as she chased after him, Davis
threw something into the toilet, told Alicia that he threw her phone in the toilet, ran
out of the bathroom, and left the building through the fire exit, setting off the fire
alarm. After Alicia confirmed that her phone was not in the toilet, she chased after
Davis. When she caught up with Davis in the alley, she yelled at him to give her
phone back to her, and Davis attempted to give her cigarettes and baby pictures “[t]o
insure [sic] [her] that he’s coming back to give [her the] phone.” Alicia rejected the
“collateral” and she told Davis that she just wanted her phone back.
¶31 Alicia further testified that when she refused to accept Davis’s
collateral, Davis left and told Alicia to meet him around the corner because he was
“scared” the police were going to pull up because of the alarms going off and he
would give her phone back. Further, Alicia testified that she waited around the
corner for thirty minutes, but she left after Davis did not come back. At that point,
Alicia located police officers who had responded to the alarms and told them what
happened. She testified that she was still emotional from the incident when she
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talked with the officers. Alicia also said that she was going to talk with an assistant
district attorney the next day after the incident. Davis only returned Alicia’s phone
to her after Alicia told the police what happened, but before she had her meeting
with an assistant district attorney.
¶32 From this testimony, we conclude that the jury, acting reasonably,
could be convinced beyond a reasonable doubt that Davis intended to permanently
deprive Alicia of her phone, even if Alicia did eventually obtain her phone.
¶33 “The credibility of the witnesses and the weight of the evidence is for
the trier of fact.” Poellinger, 153 Wis. 2d at 504 (citation omitted). This court
may not substitute [our] judgment for that of the trier of fact
unless the evidence, viewed most favorably to the [S]tate and
the conviction, is so lacking in probative value and force that
no trier of fact, acting reasonably, could have found guilt
beyond a reasonable doubt. If any possibility exists that the
trier of fact could have drawn the appropriate inferences
from the evidence adduced at trial to find the requisite guilt,
an appellate court may not overturn a verdict even if it
believes that the trier of fact should not have found guilt
based on the evidence before it.
Id. at 507 (citations omitted). Thus, this court will not substitute our judgment here
for that of the jury because the evidence, viewed most favorably to the State and the
conviction, is not so lacking in probative value and force that no trier of fact, acting
reasonably, could have found guilt beyond a reasonable doubt.
¶34 Furthermore, we “need not concern [ourselves] in any way with
evidence which might support other theories of the crime,” and we “need only
decide whether the theory of guilt accepted by the trier of fact is supported by
sufficient evidence to sustain the verdict rendered.” Id. at 507-08. In this case,
Davis’s argument amounts to a disagreement with the inference the jury chose to
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Nos. 2021AP1526-CR
2021AP1527-CR
make from Alicia’s testimony, and we will not substitute our judgment for that of
the jury’s judgment. See id. at 507.
¶35 Consequently, we reject Davis’s argument that the State’s evidence
was insufficient to prove that Davis intended to permanently deprive Alicia of her
phone.
CONCLUSION
¶36 In sum, we conclude that the trial court had subject matter jurisdiction
to conduct Davis’s trial in Case No. 2019CF4828, and Davis’s trial that resulted in
his conviction in Case No. 2019CF4828 was not a legal nullity. The circuit court’s
oral ruling was not a final disposition, and it did not divest the trial court of subject
matter jurisdiction or cause subject matter jurisdiction to expire. Consequently, we
also reject Davis’s additional arguments for ineffective assistance of counsel and
plea withdrawal that are premised on his argument that the trial court lacked subject
matter jurisdiction and that Case No. 2019CF4828 had been finally disposed of. We
further conclude that the evidence introduced by the State at Davis’s trial was
sufficient to support the jury’s verdict for robbery with use of force, and we reject
Davis’s argument that the evidence was insufficient to prove that he had the intent
to permanently deprive Alicia of her phone. Accordingly, we affirm.
By the Court.—Judgments and orders affirmed.
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