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06/07/83 STATE WISCONSIN v. ALVIN FOUSE

June 7, 1983

STATE OF WISCONSIN, PLAINTIFF-APPELLANT,
v.
ALVIN FOUSE, JR., DEFENDANT-RESPONDENT



Appeal from an order of the Circuit Court for Racine County: Dennis D. Costello, Judge.

Scott, C.j., Voss, P.j., and Brown, J.

The opinion of the court was delivered by: Brown

The state appeals from the trial court's dismissal of receiving stolen property charges against Alvin Fouse. Following a bindover decision by the preliminary hearing magistrate, Judge Jon Skow, the trial court Judge, Dennis Costello, reviewed the preliminary hearing transcript and concluded it contained no evidence to show Fouse knew the items were stolen. Because we conclude that the inference of knowledge drawn by Judge Skow from the evidence was reasonable, was sufficient to enable him to find probable cause and was one to which Judge Costello was required to defer, we reverse.

The evidence at the preliminary hearing showed that Alvin Fouse's home was searched on April 1, 1982. Fouse lives there with his wife; at the time of the search, his eighteen-year-old son was home on break from college, and a sixteen-year-old girl was in the residence. During the search, the police seized two commercial video games, a "quota phone" and a color television set; the devices had been stolen in three separate burglaries. They also photographed and noted the serial number of a video recorder but did not confiscate it. On April 2, the police, having ascertained that the video recorder had been reported missing after a fourth burglary, returned to the Fouse home. The recorder was not in the home, and Fouse said the police had taken it the day before. When the officers told him the item had been left behind, Fouse retorted: "Well, then I guess maybe my house was burglarized and it was taken."

Judge Skow rejected a motion to dismiss on the ground that the evidence was insufficient to show probable cause Fouse knew the items were stolen. Although no direct evidence was produced on the subject, Judge Skow emphasized that four different stolen devices were discovered in Fouse's house. He apparently concluded that this factor gave rise to an inference sufficient to support a bindover. *fn1 Fouse challenged the bindover prior to trial, and judge Costello dismissed the charges, stating:

In both reading the complaint and reading the transcript of the preliminary hearing, the Court does not find that there is probable cause or any evidence at all that the defendant knew that these items were stolen.

The principal dispute between the parties is what posture Judge Costello was required to assume in reviewing the bindover decision. The state posits that a trial court is bound by the appellate standard reiterated in State ex rel. Funmaker v. Klamm, 106 Wis. 2d 624, 629, 317 N.W.2d 458, 461 (1982):

On review of a trial court's finding as to probable cause at a preliminary hearing:

". . . The reviewing court can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence."

Under this standard, the reviewing court may examine the record ab initio only if the lower court has failed to make findings of fact or where the principal facts and inferences therefrom are undisputed. See id. Fouse disagrees, arguing that a trial Judge is entitled to conduct an independent evaluation of the record and decide anew whether probable cause has been established. *fn2 He contends that a passage in State v. Hooper, 101 Wis. 2d 517, 537, 305 N.W.2d 110, 120 (1981), supports this Conclusion:

Following a bindover, it becomes the duty of the district attorney to review and weigh the preliminary hearing evidence and file charges in the information in accordance with that evidence. [Emphasis in original.] The trial court may then on a challenge to the bindover review the evidence produced at the preliminary to determine if it established probable cause to believe that a felony was committed and that the defendant committed it. However, where the challenge is not to the bindover decision, but to the specific charge recited in the information (as in this case), we hold that the trial Judge's review is only as to the question of whether the district attorney abused his discretion in issuing a charge not within the confines of and "wholly unrelated" to the testimony received at the preliminary examination. [Emphasis in original and added.]

For several reasons, we think that Fouse sees too much in this language.

First, although the court did in this language indicate that a trial court may review the preliminary hearing record, it did not specifically indicate what standard of review the trial Judge must use. Second, even if the above emphasized sentence in the Hooper quote can be read to support Fouse's position, it has little precedential impact as it is dicta. At issue before the Hooper court was the appropriate trial court standard for reviewing the charging decision of the prosecutor after the preliminary hearing, not the proper trial court posture when the defendant challenges the sufficiency of the evidence to support the bindover. Third, in addition to the above-quoted passage, there is language in Hooper supporting the state's contention that all reviewing courts (including trial courts) must employ the appellate standard:

Following the preliminary hearing, the presiding Judge is charged with the duty of weighing the evidence and determining whether it establishes probable cause to believe that a felony has been committed and that the defendant has probably committed it. [Emphasis in original.] Sec. 970.03. Thus, the decision as to whether a defendant should be bound over for trial ...


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