State v. Nathan M. Caffero, 14AP1711-CR, District 3, 4/7/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Despite the trial testimony of Muxlow, Caffero’s girlfriend, that she was the person who caused the fire in their apartment by putting lit incense on top of a toilet paper roll, Caffero’s own admissions to the police gave the jury a basis to infer he subsequently handled the smoldering roll and that he did so negligently. Therefore, the evidence is sufficient to support his conviction for violating § 941.10.
Caffero and Muxlow initially told the police was that “we” were burning incense and “we” left it on the toilet paper roll. (¶¶3-4, 15-16). That statement permitted a reasonable inference that Caffero was involved in physically placing the incense on the toilet paper roll. Moreover, there was ample evidence Caffero “handled” the burning materials after Muxlow left the lit incense on the roll, for he told police he wet the roll with water after he discovered it smoking and warm to the touch about an hour after the incense had been lit. (¶¶3-4, 17). The court rejects the suggestion Caffero’s actions didn’t constitute “handling”:
¶18 While Caffero appears to believe there was only one incident of “handling”—which occurred when the incense was placed on or in the toilet paper roll—we reject such a restricted definition. Instead, we understand “handling” to mean “[t]o operate with the hands; manipulate[;] … [t]o deal with or have responsibility for; conduct.” State v. Bodoh, 226 Wis. 2d 718, 731, 595 N.W.2d 330 (1999) (citing The American Heritage Dictionary of the English Language at 819 (3d ed. 1992)). Whether the jury inferred Caffero picked up the toilet paper roll to wet it and placed it, still warm to his own touch, back on the floor, or that he otherwise “operated with the hands; manipulated; dealt with or had responsibility for” the incense and toilet paper during the course of the evening, it was not unreasonable to so infer.
Given the reasonable inferences that Caffero handled burning material, it is not difficult to find support for the negligence element:
¶20 …. Incense was lit, placed on or in a highly flammable roll of toilet paper, and left unattended at night on a floor (indeed, left unattended while Caffero and Muxlow slept) in a multi-unit apartment building. There was testimony that Caffero and Muxlow were aware that the toilet paper had ignited and Caffero even used water in an attempt to extinguish the burning, amply suggesting his knowledge that, if left to burn, it could cause harm. Additional testimony indicated Caffero knew the toilet paper roll was still warm to the touch, yet it was placed or left on the floor. It is undisputed that the materials rekindled in the early morning hours and eventually burned a hole through the floor of the apartment, which was located in a wood-framed building. A jury could reasonably conclude those were circumstances in which Caffero, objectively, should have realized a substantial and unreasonable risk of serious damage to another’s property was created, or that he created a substantial and unreasonable risk of death or great bodily harm to another.
The court stresses the “narrowness” of a sufficiency review. (¶¶9, 13, 21). “‘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,’ we may not overturn a verdict even if we believe that the trier of fact should not have found guilt based on the evidence before it.” (¶21, quoting State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) (emphasis added)).
