State v. J.D.V., 2017AP1057, District 3, 2/13/18 (one-judge decision; ineligible for publication); case activity
J.D.V. (given the pseudonym “Joseph” by the court) was adjudged delinquent for punching Thomas, another juvenile, in the head outside of school. The incident was recorded by Charles, another student, using his electronic device. Based primarily on that recording the trial court rejected Joseph’s self-defense claim—rightly so, says the court of appeals.
Joseph argues the video refutes the trial court’s conclusion that he was the aggressor and shows he had reason to fear an attack from Thomas. The court of appeals sees it differently:
¶11 When evidence consists of both disputed testimony and a video recording, we review the circuit court’s findings of fact under a clearly erroneous standard. See State v. Walli, 2011 WI App 86, ¶17, 334 Wis. 2d 402, 799 N.W.2d 898. Upon review of the video, we are satisfied that it supports the circuit court’s findings of fact. The video shows Thomas turned toward Joseph when Thomas raised his fists, but it also shows Thomas attempting to walk away from Joseph through a group of students before Joseph followed him and delivered the second swing that connected with Thomas’s head. From this evidence, along with Charles’s testimony that Joseph staged the incident, the court could reasonably conclude Joseph was not acting in his own defense when he pursued and struck Thomas as Thomas walked away, but instead, was acting as the aggressor. The court could also conclude Joseph did not have a reasonable belief that the amount of force he intentionally used against Thomas was necessary to prevent or terminate any interference by Thomas. The court was entitled to decide which testimony was credible and to resolve any conflicts within the evidence. See [State v.] Poellinger, 153 Wis. 2d [493,] 503[, 451 N.W.2d 752 (1990)].
¶12 Moreover, Thomas’s first swing—the alleged unlawful interference at issue—appears on the video to be a non-threatening gesture, consistent with Thomas’s and Charles’s testimony. The circuit court was permitted to infer that Joseph did not have a reasonable belief in the existence of an unlawful interference by Thomas based upon that gesture, and that Joseph unreasonably responded to Thomas’s minor jab when Joseph threw the second punch that struck Thomas as Thomas walked away. See Wis. Stat. § 939.48(1).
