State v. Kerry J. Collins, 2010AP788-CR, District 1, 3/8/11
court of appeals decision (1-judge, not for publication); for Collins: Gary Grass; case activity
Evidence held sufficient to sustain conviction under § 941.10, court rejecting Collins’ argument that State failed to prove he was the person who set off flare in City Hall bathroom. Whatever weaknesses and discrepancies existed as to culpability merely raised questions for the jury to resolve; Collins was seen leaving the bathroom during the timeline the flare was set, and though he didn’t have an ignition device on him, he had adequate opportunity to dispose of one before being seized. As for the negligence element, the flame burned in excess of 3600 degrees and 15 minutes and could easily have spread: thus, the flare created an unreasonable risk of death or great bodily harm.
Sufficiency cases are necessarily fact-specific, so there’s little point discussing these facts in detail. Nonetheless, the proof seems a bit thin – which isn’t to say it was necessarily insufficient. Clearly, Collins’ behavior was suspicious – he went in and out of the bathroom a couple of times, and he lied about it when an officer stopped him. On the other hand, no physical evidence at all linked him to the crime, nor did he make any admissions. Is that enough? Tough call. There isn’t a goal line to tell you when one side has reached paydirt. You be the judge: what do you think? Might help to know whether anyone else was in the bathroom during the relevant time frame. Though the court doesn’t address this point, the State does, if somewhat gingerly (Resp. Br., p. 6): “According to Collins when he left the men’s room he did not see anyone else on the fifth floor.”
Otherwise: elements of offense, standard of review for sufficient evidence, recited.
Perhaps the court intentionally ommitted the relevance of Det.Hines location as being on the first floor, with Sgt. Miller.Not on the the sixth floor, as indicated by the testimony of Det. Hines. Furthermore the Honerable Judge instructed the jury to rely on their memory of testimony regarding the timeframe and location of Det. Hines. instead having him recalled to testify. How can a jury rely on memory of events not provided during tstimony? Questionable judgement at best. The reasonable and absoulute moral certainty clause givin to the jury, prior to verdict, indicating now one else could have done this was not addressed. Because the judge had the jury rely on facts not given in testimony.
A miscarriage of justice has occurred in the states haste to find a scapegoat , for this matter.