*1 Wisconsin, Plaintiff-Appellant, Defendant-Respondent.† Dunn, Ronald J. Appeals Court January 4, 1984. 83-1129-CR. No. Submitted on briefs January 26, Decided (Also reported 69.) in 345 N.W.2d granted. Petition to review † *2 plaintiff-appellant
For the the cause was submitted on Harlowe, attorney, brief of Hal district and David Dabroski, attorney. assistant district defendant-respondent
For the the cause was submitted on the public brief of Jack E. Schairer, assistant state de- fender. Gartzke, P.J., Myse,
Before Dykman, J. Gordon Re- Judge. serve
DYKMAN, appeals J. The state of a com- dismissal plaint against Ronald Dunn for violation of sec. 943.02 (1) (a), Stats., building.1 arson to a We conclude the finding trial court erred in no cause and reverse. February police On 27,1983, Madison arrested defend- building. ant Testimony for arson to a at the hearing arresting was as follows: Defendant told the of- lighted ficer that he had thrown some matches into his angry roommate’s bedroom closet because he was building. the roommate. left He then The roommate’s clothes, books and floor, which had been the closet doorsill, were burned as were the closet walls, and bed- ceiling room and walls. Neither the roommate nor the given permission landlord had Dunn to set fire to their property.
The trial court concluded that because defendant’s in- tent had been to burn his roommate’s rather 943.02(1), Stats., provides part: Section following guilty Whoever does felony: of a B .Class (a) By fire, intentionally damages any building means of another his consent her] without .... [or building, than the evidence of the 943.02 elements of sec. Stats., (1) (a), was not sufficient bind defend- over supported It ant.2 considered whether the evidence charge 943.03, personal property, under sec. arson to but no found that evidence as the financial loss incurred produced.3 Consequently, had been dis- trial court complaint. missed the undisputed, we treat the facts are
Where law. for a bindover determination as v. Williams, undisputed, but of this case are The facts first, two that de- reasonable alternative inferences arise: second, fendant fire building, intended to set personal that all defendant burn was the intended to *3 deferentially property. Ordinarily, review inferences we witnesses, to view listen because trial courts can Co., Chicago 72 Title Ins. we cannot. In Laabs while (1976), 434, the 503, 509, 437 2d 241 Wis. said:4 2 by I— building, to as J a defined Elements of arson 1404, are: Criminal building by fire; damaged of First, means the that defendant intentionally; Second, did so that the defendant person; belonged Third, building another to that the building damaged the without such Fourth, that the defendant consent; owner’s belonged to Fifth, that the the knew person not did consent person other knew that the
another property. damage of the the 3 Stats., provides: 943.03, Section damages property intentionally by fire, Whoever, of means consent, person’s the building) (other another without of than a guilty more, of a or is of $100 the value of if the is felony. E Class 4 inferences. of of review may standard second There be 380, 557, 113 N.W.2d Beale, 15 Wis. Estate In of (1962), said: the court facts and to the to determine function trial court’s “As 510, 44 N.W.2d (1950), 257 Wis. them, Russell weigh Will of This court many has stated weight occasions that the testimony credibility and the of witnesses are matters by be court, determined the trial and that where more than one reasonable inference can be drawn from the evidence, reviewing credible drawn court must one the trier of fact.
Here, however, reviewing magistrate’s we are bind- magistrate over decision. The must make this decision considering without credibility In witnesses. Padilla, State v. Wis. 2d 329 N.W.2d (Ct. App. 1982), we said: At a preliminary examination, only the trier of fact’s duty is to story find that plausible has a basis. The fact, trier of engaged therefore, determining is not in merely truthfulness of the lieved, whether, state’s case but be- if story plausible has a basis fact. Truth- goes weight to the evidence, fulness. admissibility, jury and is for the to determine at trial. [Citations omitted.] purpose preliminary hearing of a is to determine only whether the defendant committed a magistrate 970.03(1), ignore Sec. Stats. The must credi- bility supports factor which our use of a deferential —the magistrate standard of may review. The not choose be- conflicting weigh tween facts or State v. evidence. Marshall, Wis. 2d magistrate whether, must determine *4 any plausible facts,
under probably set of the defendant felony. weights committed preliminary a This standard a 231, too, so, the inferences to be drawn from established facts are fact, for the trier of the in case the trial this court. Its findings respects in these not be interfered unless should with contrary great weight preponderance to the and clear (1953), 424, evidence. . . .” 420, Estate Miller 265 Wis. of 813, N.W.2d [815-16]. state, justified heavily is be hearing in favor of the but hearing protect purpose preliminary is to of a cause prose hasty, improvident, or malicious from accused Shears, cution. 2d State v. Wis. preliminary hear of a
103, 124 coarse sieve ing provided prosecutions, will therefore terminate few prosecutes only attorney cases that that the district those honestly at he or she believes can be won trial. magis- credibility removed, the With determinations drawing undis- inferences from trate’s function when puted quite facts is which is narrow. draw, supports inference to but whether either inference a a conclusion that the defendant committed supports If that conclu- reasonable inference sion, magistrate defendant. must bind over the by a must which review examine the standard we
We magistrate’s rules con- choice inferences these of magistrate cerning hearings preliminary A errs in mind. resulting when or an in release he chooses inference she is inference of a when alternative a reasonable a available. We determine whether supporting examining A record. a exists bindover necessary, de- is neither deferential of standard review magistrate’s a sirable, nor to the review amenable hearing. We con- choice of inferences in de novo. choice review that clude that we should appellate scope Because have concluded we for finding cause of a trial court’s review magis- safely analogized to review of arrest cannot be following prelimi- finding trate’s as nary examination, Drogsvold, 104 Wis. 1981), App. our statement N.W.2d regarding made of inferences standard of review our in- Drogsvold, 256, 311 2d at *5 492
applicable However, to this case. insofar as our state- ment in v. 29, State 114 Fouse, Wis. 2d 337 N.W.2d 837, App. 1983), (Ct. implies 840 that we must trial which court’s reasonable inferences lead to a conclu- sion of no other in- cause when probable cause, ferences lead to a conclusion of that statement is overruled.5 testimony
The court in heard this case unrefuted that throwing defendant admitted several matches into his roommate’s bedroom It concluded that that was closet. building. However, evidence intent to burn the person presumed was burned. A intend probable consequences natural voluntarily of acts knowingly performed. Gould, State v. 56 2dWis. 202 (1973). N.W.2d 906 determining
In
exists,
whether
court
practical
is concerned with the
and nontechnical
probabilities
everyday
Copening,
life.
564, 578,
Wis. 2d
App. 1981).
probabilities
suggest
of everyday
Practical
life
that one
expect
can
lighted
a closet to
if
burn
one throws
matches
into it.
probably
The
that
defendant
intended
the closet to burn is reasonable. The trial court was
supreme
court was faced
similar
situation in
Williams,
State v.
2dWis.
If the existence historical facts are appellate probable question an cause is a of law which may Drogsvold, independently 104 Wis. court determine. differ 311 N.W.2d 250. Historical facts at at An is an observa- from factual inferences. historical fact event An inferred fact cannot be ob- ble or condition. an event or condition which served but is believed be consequence as a of other established facts. exists reasonably can be factual Sometimes one true, draw- If that facts. drawn from the established Drogsvold, ing a matter of law. inference is the factual cir- those at Under 311 N.W.2d 2dWis. undisputed, the cumstances, facts are if other relevant all law. probable cause is existence of can inferences If, multiple factual however, appellate facts, an from the historical be drawn trial court. inference chosen must The at 247. Drogsvold, 2d at probable judge failed establish also held state 943.03, Stats., property felony under sec. arson cause as to introduced. of the was value no of the because evidence appellate court must then decide whether cause exists on the basis of the and inferred fact the historical facts. judge conducting had examination
to decide whether as to existed one ele- charged felony: “intentionally” damaging ment of the building. 943.02(1) (a), Sec. The existence Stats. damage to it are observable historical undisputed, facts are but the intent can defendant’s never be observed. Intent or state of mind in- must be ferred from other facts. *7 probably
Whether defendant intended to burn the only or in is a the the closet choice be- tween persons factual inferences as which disagree. judge can The inferred defendant’s the intent personal property. was to bum his roommate’s Under these we must the inference circumstances chosen by judge, the whether or we would have chosen the Applying by other inference. the factual inference chosen judge, probable charged the cause does as not exist to the magistrate compel however, The the majority, would apply possible a manda- faced inferences various tory choosing among presumption rather than the infer- magistrate majority would the ences. The not allow likely decide which factual most true and inference is probably felony whether committed a on the basis of inference and other If facts. of the possible supports finding inferences that the defendant felony majority committed the would re- magistrate quire legal immediately to draw the probable choosing conclusion of cause without between various factual inferences. view, antithesis, my majority’s approach is the purpose 970.03(1),
of the
sec.
to determine
Stats.:
behind
felony
has
there is
cause to
been
believe
“if
by
(Emphasis added.)
committed
defendant.”
mandatory
imposition
presumptions
of
fact-finder
Montana,
has been voided since Sandstrom v.
U.S.
Fouse, 114
Timothy Bernard Wilks, Appeals Court 14, 1983. No. December 83-737-CR. Submitted on briefs January 198 Decided (Also reported 498.) in 345 N.W.2d granted. Petition review †