COURT OF APPEALS
DATED AND FILED
May 17, 2011
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Cir. Ct. No. 2008CF3191
STATE OF WISCONSIN
IN COURT OF APPEALS
STATE OF WISCONSIN,
ISAAC HUGHES, SR.,
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DANIEL L. KONKOL, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
CURLEY, P.J. Isaac Hughes, Sr., appeals from a judgment
convicting him of escaping from the Felmers Chaney Correctional Center
He also appeals from the trial court’s order denying his
postconviction motion. Hughes argues that we must reverse the judgment and
order because the evidence at trial was insufficient to convict him. Specifically,
according to Hughes, there was no evidence that he was in custody at Chaney as a
result of being sentenced for a crime, the second of the four elements of escape;
this is because Hughes’s previous judgment of conviction—pursuant to which
Hughes was in custody at Chaney in the first place—was never published for the
jury, although it was in fact received into evidence. In other words, Hughes
argues that because the jury never actually saw the judgment of conviction, it had
no basis to determine that he had been previously sentenced for a crime. Hughes
further argues that trial testimony regarding his status as an inmate at Chaney, and
testimony describing his previous judgment of conviction, cannot establish that he
was in custody as a result of being sentenced for a crime because the evidence
does not specify for which crime he had been previously convicted. We disagree
with Hughes’s contentions. We hold that the testimony adduced at trial in this
case sufficiently established the second element of escape, regardless of whether
the jury actually saw the certified judgment of conviction. Moreover, we conclude
that there is no requirement that a prosecutor must establish exactly which crime a
defendant was sentenced for in order to prove the second element of escape.
Accordingly, we affirm.
Hughes was charged with escape, contrary to WIS. STAT. § 946.42(3)
(2007-08).1 According to the complaint, on May 13, 2008, Hughes, who was
serving time at Chaney after being convicted of being a felon in possession of a
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
firearm and for resisting or obstructing an officer, was seen running out the north
hall door. Prior to his escape, Hughes had been placed and secured in Chaney’s
temporary lockup room; however, when the door was opened, he exited the room
and the building. According to the complaint, “he left on his own and did not
return … thus violating the rules and conditions governing the defendant at
[Chaney].” Furthermore, “no one in authority gave [Hughes] permission to be
absent … and no one gave any explanation for [Hughes’s] absence.” Hughes pled
not guilty to the escape charge and his case went before a jury.
In his opening statement, Hughes’s attorney explained to jurors that
of the various elements of escape, the elements requiring that Hughes be in
custody, and in custody as a result of being sentenced for a crime, were not in
[Y]ou will see evidence, perhaps hear it as well,
from correctional officers that May 13 was the day that Mr.
Hughes supposedly left the Felmers Chaney Center,
which he did leave on that day, but … there are other
elements, not just that he was in custody, and not just that
he was in custody after being sentenced to a crime. The
State is going to prove that. We’re not hiding that he was
in custody for a crime he previously committed….
Instead, trial counsel explained that the elements at issue were
whether Hughes had permission to leave Chaney and whether Hughes intended to
[The State] also [has] to prove that he escaped from
custody, which means to leave without any lawful
Key on those words, without lawful
permission or authority. You have to find that he had no
permission or authority to leave.
They [also] have to show that he intentionally left
that facility [with] the mental purpose to escape from there.
That’s the other area of doubt. Judge for yourselves, using
your common sense. You can’t look into Mr. Hughes’
mind, but using your own common sense, judge whether
you think that Mr. Hughes thought of or had the mental
purpose to intentionally escape from Felmers Chaney. And
that’s what this case is about.
At trial, three Chaney employees testified, including Captain Eloise
McPike. McPike testified that on May 13, 2008, her control sergeant and her floor
sergeant informed her that Hughes—an inmate at Chaney—had escaped from
temporary lockup. Hughes had been placed in temporary lockup in preparation for
his removal from Chaney, a minimum security prison, to a more secure facility
because he violated one of Chaney’s rules. A corrections officer had left the
lockup door open after bringing Hughes a glass of water, and Hughes had
somehow gotten out of his handcuffs, exited the room, sprinted down the corridor,
and jumped the fence.
McPike further testified that after Hughes went missing from
Chaney, she ordered an “escape packet” pertaining to Hughes.
McPike testified: “Once [an] inmate has been gone, leaves our facility without
permission, we order an escape packet that I have to put together for the assistant
D.A.” (Punctuation added.) She further explained that the escape packet includes
a judgment of conviction for the missing inmate.
After McPike described the escape packet containing Hughes’s
judgment of conviction, the prosecutor moved it into evidence without objection.
The prosecutor then addressed the trial court, saying, “I would like to publish this
to the jury, but we could wait for a later time if that is more convenient.” The trial
court responded, “All right. It’s not going to happen at this time.” Although the
escape packet containing Hughes’s judgment of conviction was received into
evidence, it was never published to the jury.
Additionally, another of the State’s three witnesses, Sergeant
Elizabeth Knaack, who saw Hughes in temporary lockup shortly before he
absconded, testified that she never gave Hughes permission to leave Chaney and
she never told Hughes that his sentence was over.
The jury convicted Hughes of escape, and Hughes was sentenced.
Hughes filed a postconviction motion, arguing that there was insufficient evidence
to prove the second element of escape, namely, that Hughes was in custody “as the
result of having been convicted and sentenced for a crime.” The trial court denied
Hughes’s motion, and Hughes now appeals.
On appeal, Hughes challenges the sufficiency of the evidence
regarding the second element of escape. We cannot reverse a criminal conviction
unless the evidence, viewed most favorably to the State and the conviction, “‘is so
insufficient in probative value and force that it can be said as a matter of law that
no trier of fact, acting reasonably, could have found guilt beyond a reasonable
doubt.’” State v. Booker, 2006 WI 79, ¶22, 292 Wis. 2d 43, 717 N.W.2d 676
(citation omitted); State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752
(1990). If there is any possibility that the jury could have drawn the appropriate
inferences from the trial evidence to find guilt, we may not overturn a verdict—
even if we believe that the jury should not have convicted the defendant on the
evidence presented. Poellinger, 153 Wis. 2d at 507. We review sufficiency of the
evidence claims in the light most favorable to the jury’s verdict. Booker, 292
Wis. 2d 43, ¶22; Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971).
Reasonable inferences drawn from the evidence can support a finding of fact and,
if more than one reasonable inference can be drawn from the evidence, we must
adopt the inference that supports the verdict. Poellinger, 153 Wis. 2d at 506-07.
Furthermore, a conviction can be based in whole or in part upon
circumstantial evidence. State v. Hirsch, 2002 WI App 8, ¶5, 249 Wis. 2d 757,
640 N.W.2d 140. Circumstantial evidence is often more probative than direct
evidence; indeed, circumstantial evidence alone may be sufficient to convict.
Poellinger, 153 Wis. 2d at 501.
We agree with the trial court that, when considered in light of all the
other evidence adduced at trial, McPike’s testimony sufficiently allowed the jury
to conclude beyond a reasonable doubt that Hughes was serving a sentence for a
crime that he was convicted of when he left Chaney without permission. McPike
testified that Hughes was an “inmate” at Chaney, a minimum security prison. She
also testified that on May 13, 2008, her control sergeant and floor sergeant advised
her that Hughes had escaped from the temporary lockup. McPike further testified
that after Hughes escaped, she ordered an escape packet, which contained
Hughes’s judgment of conviction, and Knaack testified that she never told Hughes
that his sentence was over. Viewing this testimony in the light most favorable to
the verdict, as we are required to do, see Poellinger, 153 Wis. 2d at 506-07, we
hold that the knowledge that Hughes was an inmate at a prison whose sentence
had not yet expired and that McPike had received a judgment of conviction
pertaining to him was sufficient for the jury to conclude that the reason Hughes
was at Chaney was because he was serving a sentence, regardless of whether the
jury actually saw the judgment of conviction.
Moreover, we find Hughes’s arguments on appeal unavailing. First,
for the reasons explained above, we find Hughes’s primary argument, that the only
evidence that could have established that he was in custody as the result of being
sentenced for a crime was either the judgment of conviction or testimony from the
judge who previously sentenced him, unconvincing.
In this particular case,
McPike’s and Knaack’s testimony sufficed. See Booker, 292 Wis. 2d 43, ¶22;
Poellinger, 153 Wis. 2d at 506-07. Second, we are not persuaded by Hughes’s
contention that the testimony was insufficient because: (a) it did not establish
which specific crime Hughes was sentenced for; and (b) McPike did not use the
word “sentence” when she discussed Hughes’s judgment of conviction. There are
four elements to an escape charge under WIS. STAT. § 946.42(3)(a) (2007-08):
(1) that the defendant was in custody; (2) that the custody was the result of being
sentenced for a crime; (3) that the defendant escaped from custody; and (4) that
the escape was intentional.
See also WIS JI—CRIMINAL 1774; WIS. STAT.
§ 946.42(1) (defining “escape” and “custody”). Nowhere does the statute require
the State to prove exactly which crime the defendant was sentenced for, nor does it
require utterance of the word “sentence” in any testimony offered to prove the
second element, see Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103,
¶14, 294 Wis. 2d 274, 717 N.W.2d 781 (we construe statutes to effect their plain,
ordinary meanings), and Hughes points us to no authority for these contentions.2
See State v. McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322
(“[W]e may choose not to consider arguments unsupported by references to legal
We also note that although Captain McPike may not have testified that Hughes was
“sentenced,” Sergeant Knaack did testify that she never told Hughes that his “sentence” was over.
authority, arguments that do not reflect any legal reasoning, and arguments that
lack proper citations to the record.”).
Finally, we note that the State invites us to hold, in keeping with the
trial court’s denial of Hughes’s postconviction motion,3 that Hughes forfeited his
right to challenge the sufficiency of the evidence. Because it is not necessary to
the determination of the issue before us, we decline to do so. See State v. Blalock,
150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be decided
on narrowest possible ground). See also State v. Gaines, 197 Wis. 2d 102, 110
n.5, 539 N.W.2d 723 (Ct. App. 1995) (We may affirm a trial court’s ruling on
different grounds if the effect of our holding is to uphold the trial court’s ruling.).
For all of the foregoing reasons, we cannot say that the jury had
insufficient evidence upon which to find that Hughes was in custody at Chaney as
a “result of being sentenced for a crime,” nor can we say that the trial court erred
in denying Hughes’s postconviction motion. Accordingly, we affirm.
By the Court.—Judgment and order affirmed.
Recommended for publication in the official reports.
The trial court denied Hughes’s postconviction motion on two bases: (1) that he
waived his right to challenge the sufficiency of the evidence; and (2) even if Hughes did not
waive his right to challenge the sufficiency of the evidence, the evidence was sufficient to convict