Johnny Wayne Wallace v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-01275-COA
JOHNNY WAYNE WALLACE A/K/A JOHNNY
SPENCER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
06/21/2007
HON. ROBERT LOUIS GOZA, JR.
TATE COUNTY CIRCUIT COURT
JOHN D. WATSON
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
JOHN W. CHAMPION
CRIMINAL - FELONY
CONVICTED OF COUNT I, CONSPIRACY
TO COMMIT ARMED ROBBERY, AND
SENTENCED TO FIVE YEARS, AND
COUNT II, ATTEMPTED ARMED
ROBBERY, AND SENTENCED TO
TWELVE YEARS, WITH THE SENTENCE
IN COUNT II TO RUN CONSECUTIVELY
TO THE SENTENCE IN COUNT I, ALL IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AND
WITH SENTENCES IN COUNTS I AND II
TO RUN CONCURRENTLY WITH A FIVEYEAR SENTENCE IN THE CUSTODY OF
THE WISCONSIN DEPARTMENT OF
CORRECTIONS
AFFIRMED - 11/25/2008
BEFORE MYERS, P.J., BARNES AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
In June 2007, Johnny Wayne Wallace was convicted in the Circuit Court of Tate
County of attempted armed robbery and conspiracy to commit armed robbery. Following
the denial of his motion for a judgment notwithstanding the verdict or, in the alternative, a
new trial, Wallace now appeals and raises the following issues:
I.
WHETHER THE TRIAL COURT ERRED IN ALLOWING THE
VICTIM TO MAKE AN IN-COURT IDENTIFICATION.
II.
WHETHER THE TRIAL COURT ERRED IN GRANTING THE
STATE’S REQUEST FOR WALLACE TO SHOW THE JURY HIS
GOLD TEETH.
III.
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
SUFFICIENT TO FIND WALLACE GUILTY.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On the night of September 9, 2004, Lacie Lloyd, Antonio Boyce, Marrieo Love, and
Wallace were on their way to Ollie L. Buford’s home with the intent to rob him. According
to Lloyd, the plan was to drop Boyce, Love, and Wallace off in front of Buford’s house and
then come back in fifteen or twenty minutes to pick them up.1 She did as she was told, and
once Wallace, Love, and Boyce were dropped off, they knocked on Buford’s front door.
According to plan, Love explained to Buford that his girlfriend left them stranded and asked
if he could use the telephone. Love and Boyce testified that both Wallace and Boyce had
1
Lloyd stated on cross-examination that during her guilty plea hearing she told the
trial court that she did not know that a robbery was planned.
2
guns when they went in Buford’s house. The plan further called for Love to ask Buford for
money once they reached the telephone, which was upstairs, but when Buford escorted him
to the telephone, he failed to do so. While they were upstairs, Boyce and Wallace waited
downstairs. Love claimed that on the way back downstairs, Wallace asked him if he had
gotten the money. When Love responded in the negative, Wallace pulled a pistol from his
waistband and shot Buford. Love testified that at this point the three would-be robbers ran
out the front door. However, this was the last time he saw Boyce that night.
¶3.
When Lloyd returned, an ambulance was outside Buford’s house. When she stopped,
Wallace and Love jumped in the car, but Boyce was nowhere to be found. Prior to dropping
the trio off, Lloyd did not see a gun; however, after she returned, she noticed that Wallace
had a gun. At the behest of her passengers, Lloyd drove away from the scene. While
driving, Lloyd overheard Love and Wallace talking about the botched robbery. According
to Lloyd, they were upset that they did not get any loot, and at one point, Wallace exclaimed
that he “shot [Buford] at least four or five times.” At the end of the trio’s escape they ended
up outside Love’s sister’s house on Smart Road. Love and Wallace got out of the car and
walked over to a couch on the side of the house. Love lifted the couch, and Wallace placed
the gun underneath it.2
¶4.
After hiding the pistol, Lloyd, Love, and Wallace went to Boyce’s house, which is
also on Smart Road, and waited for him to return. When Boyce did not show up, the trio
2
During a previous hearing, Love testified that he was not sure who was driving the
night of the shooting. Additionally, he previously testified that he was unsure who put the
pistol under the couch.
3
went to Wallace’s aunt’s house. Love convinced Wallace that if his aunt would drive them
to the Sardis police station, they would concoct a story and leave him out of it. Both Lloyd
and Love testified that once they arrived at the police station, they told an officer that the
man that shot Buford was outside in the car, referring to Wallace. During subsequent
questioning by Tate County Sheriff’s Department personnel, Love and Lloyd followed
through on the plan to make up a story; however, both eventually told law enforcement of
the plan to rob Buford and of Wallace’s involvement in it.
¶5.
Chief Deputy Brad Lance with the Tate County Sheriff’s Department was called to
the scene of the crime on the night of the shooting. He processed Buford’s house for
evidence and discovered multiple projectiles, fragments, and a casing. From his discussion
with Buford and the first responders, Detective Lance determined that Love and an individual
named “Steve” were involved in the shooting. Subsequently, Detective Lance interviewed
Love. Although Love ultimately gave two versions of events, “Steve” was not mentioned
in either. Detective Lance testified that Love eventually told him of the conspiracy among
himself, Lloyd, Boyce, and Wallace. Additionally, Love led Detective Lance to where the
pistol used in the shooting was hidden. It was later determined that the projectiles found in
Buford’s home were fired from the pistol found under the couch. Detective Lance also
interviewed Wallace. Although he admitted to being with Lloyd, Love, and Boyce on the
night of September 9, 2004, Wallace denied any involvement in or knowledge of the robbery
or the shooting.
¶6.
Detective Lance also interviewed Boyce. Detective Lance stated that during that
interview, Boyce admitted to being with everyone, but denied any knowledge of the robbery.
4
He also claimed that he did not have a weapon that night. However, during his testimony at
trial, Boyce testified that the plan was to rob Buford at gunpoint, and both he and Wallace
had pistols. He stated that when Love and Buford came back downstairs, Wallace asked
where the money was and then started shooting at Buford.
¶7.
Buford testified to the events of that night as follows: He stated that he knew Love
very well because he was a member of his church, participated in missionary work with him,
and was his distant cousin. According to Buford, Love rang his doorbell on the night of
September 9, 2004, and asked if he could make a telephone call because his girlfriend left
him without a ride. Buford let him in, but Love was not alone. Two other individuals
accompanied Love into Buford’s house. Buford knew one individual as Antonio Boyce, but
he did not know the other man.
¶8.
Once inside the house, Love again asked Buford to use the telephone. Less than a
minute after the men arrived at his home, Buford escorted him to the upstairs telephone,
while Boyce and Wallace sat in the living room downstairs. Buford stayed with Love as he
made his telephone call and then escorted him back downstairs. On the way down, Love
stated that he could not reach anyone. Buford explained that they could use his telephone
to make another call, but he could not drive them anywhere. With that news, the trio began
to leave; however, Buford’s guests were not done yet.
¶9.
As they approached the front door, one of the men pulled a gun, shouted something
that Buford did not understand, and began firing at Buford. As soon as he saw the weapon,
Buford defensively put up his hand and attempted to flee the scene. However, Buford did
not escape unscathed. He was shot a total of five times. Buford stated that he saw the man
5
who shot him when the three men came into his house, and he identified Wallace as the
shooter some time after the shooting and again at trial.3 Buford received medical treatment
and was released from the hospital the following evening.
¶10.
Buford remembered speaking to a police officer while waiting on an ambulance, but
stated that he was “out of it” that night as a result of the events that took place and his
injuries. Nevertheless, Buford testified that he told an officer that a man named “Steve” shot
him. However, Buford clarified that he referred to Wallace when he identified “Steve” as
his assailant. Buford stated that he distinctly remembered that Wallace had gold teeth;
however, during the investigation, he was unable to give other specifics.
¶11.
Wallace, along with Boyce, Lloyd, and Love, were indicted for conspiracy to commit
armed robbery, armed robbery, and aggravated assault. Boyce and Love subsequently pled
guilty to attempted armed robbery, and Lloyd pled guilty to conspiracy to commit armed
robbery. Wallace’s first trial ended in a hung jury. Wallace’s second trial began in June
2007. At the conclusion of his second trial, the jury found him guilty of conspiracy to
commit armed robbery and armed robbery, but not guilty of aggravated assault. The trial
court subsequently sentenced Wallace to a five-year term of imprisonment on his conviction
for conspiracy to commit armed robbery and a twelve-year term of imprisonment on his
conviction for armed robbery, all in the custody of the Mississippi Department of
Corrections.
The trial court further ordered that the above sentences were to run
3
During the trial, Detective Lance testified that Buford saw a photograph and
identified Wallace as the shooter several days after the shooting. However, during a pretrial
suppression hearing, Buford testified that he identified Wallace from the photograph
approximately five to six months after the shooting.
6
consecutively to each other, but concurrently to a sentence Wallace was currently serving in
the State of Wisconsin for a conviction of intimidating a witness. Following the denial of
Wallace’s motion for a new trial or, alternatively, a judgment notwithstanding the verdict,
he now appeals his conviction.
ANALYSIS
I.
¶12.
WHETHER THE TRIAL COURT ERRED IN ALLOWING THE
VICTIM TO MAKE AN IN-COURT IDENTIFICATION.
Prior to trial, Wallace filed a motion to suppress Buford’s out-of-court identification
and potential in-court identification of Wallace. At the conclusion of a hearing on the issue,
the trial court noted the factors established by Neil v. Biggers, 409 U.S. 188 (1972) and held
that any mention of the out-of-court identification would be improper, but the trial court
found that the photograph of Wallace was not impermissibly suggestive as to taint an in-court
identification. Additionally, the trial court held that the State would be allowed to question
Buford as to the general description of his shooter and whether he could identify Wallace as
the shooter. Wallace argues that the trial court erred in determining that the out-of-court
identification was not so impermissibly suggestive so as to preclude Buford from making an
in-court identification.
¶13.
In making the determination as to the reliability of the out-of-court identification, a
trial court must employ the Biggers factors, which include:
a. the opportunity of the witness to view the criminal at the time of the crime;
b. the witness’[s] degree of attention;
c. the accuracy of the witness’[s] prior description of the criminal;
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d. the level of certainty demonstrated by the witness at the confrontation; and
e. the length of time between the crime and the confrontation.
McDowell v. State, 807 So. 2d 413, 418-19 (¶12) (Miss. 2001) (citing Biggers, 409 U.S. at
199). The supreme court has stated that “an impermissibly suggestive pre-trial identification
does not preclude in-court identification by an eyewitness who viewed the suspect at the
procedure unless: (1) from the totality of the circumstances surrounding it, (2) the
identification was so impermissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification.” Lattimore v. State, 958 So. 2d 192, 199 (¶16) (Miss. 2007)
(quoting Nicholson v. State, 523 So. 2d 68, 72 (Miss. 1988)). After viewing the totality of
the circumstances, “[w]e will support a trial court’s finding that an in-court identification was
not tainted unless there is no substantial credible evidence supporting such a conclusion.”
Id. (citing Outerbridge v. State, 947 So. 2d 279, 282 (¶8) (Miss. 2006)).
A.
¶14.
Opportunity to View the Accused
Buford testified that he saw all three individuals who came into his home that night,
Love, Boyce, and Wallace, when they entered his illuminated living room. However, it was
for less than a minute. Buford further stated that as the men began to leave, he was able to
see Wallace again. He testified that he saw Wallace draw his gun and begin shooting.
B.
¶15.
Buford’s Degree of Attention
Buford testified that he knew Love well, and he recognized Boyce. He further stated
that he did not know who Wallace was at the time, but he immediately noticed Wallace’s
distinctive gold teeth. Therefore, it is not unreasonable to infer that Buford’s attention would
have been drawn more to an individual he did not know who had distinctive dental work.
8
C.
¶16.
Accuracy of Buford’s Prior Description of the Accused
Buford was unable to give law enforcement any description of his shooter on the night
of the attack other than that his attacker was a black male. Although, during the suppression
hearing, Buford testified that the shooter was shorter than the other two men. Additionally,
he stated that the man who shot him was named “Steve”; however, he clarified at trial that
he was referring to Wallace as the person he thought was named Steve.
D.
¶17.
Buford’s Level of Certainty at the Confrontation
Exactly how Buford came to see the photograph of Wallace is unclear, as Detective
Lance’s and Buford’s version of events were quite different. According to Detective Lance,
several days after the shooting, he visited Buford at his place of employment. Buford
identified Wallace as the shooter. Detective Lance explained that he went to Buford’s place
of business that day in an attempt to rule out a “Steve” who had surfaced during the
investigation. He stated that Love and Boyce had already identified Wallace as the shooter,
but Detective Lance wanted to show Buford a picture of Steve Mangrum to rule him out. He
intended on showing Buford only one photograph of Mangrum; however, when Detective
Lance opened the file folder containing the picture, Buford saw a picture of Wallace and
identified him as the shooter. Detective Lance stated that he had several photographs, but
they only depicted Wallace and Mangrum. Additionally, Detective Lance testified that he
never laid out any photographs.
¶18.
According to Buford, Detective Lance showed him three to five photographs. Buford
stated that he could not recall the incident very clearly, but he thought that it was
approximately five or six months after the shooting when Detective Lance came to his shop,
9
laid out several photographs of different people on a counter, and told him, “we think we’ve
identified the shooter.” Buford stated that once he saw “the facial structure and the gold that
he had in his mouth,” he identified Wallace’s picture.
E.
¶19.
Length of Time Between the Robbery and the Confrontation
As noted above, Buford stated that he identified Wallace approximately five to six
months after the shooting, while Detective Lance claimed that it occurred several days after
the shooting. However, regarding any taint that may have accompanied Buford’s photo
identification of Wallace, we note that Buford’s in-court identification occurred
approximately two years later.
¶20.
Based upon the totality of the circumstances, we find that the trial court did not err in
allowing Buford to make an in-court identification of Wallace. This issue is without merit.
II.
¶21.
WHETHER THE TRIAL COURT ERRED IN GRANTING THE
STATE’S REQUEST FOR WALLACE TO SHOW THE JURY HIS
GOLD TEETH.
The entirety of Wallace’s second argument states as follows:
The State requested that the Appellant be required to open his mouth and show
his teeth to the jury. Appellant objected. Appellant concedes that the existing
law according to Porter v. State, 519 So. 2d 1230 (Miss. 1988), states that
compelling a [d]efendant to show a body characteristic does not violate his
right against self[-]incrimination[,] and this ruling has been affirmed in
numerous other cases.
¶22.
Although Wallace raises this issue on appeal, he simultaneously concedes that it is
without merit. We agree.
III.
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
SUFFICIENT TO FIND WALLACE GUILTY OF ATTEMPTED
ARMED ROBBERY.
10
¶23.
While Wallace’s third argument is titled, “whether the verdict was against the
overwhelming weight of the evidence or the evidence was insufficient to support the
verdict,” he only argues that the evidence against him was insufficient to satisfy the elements
of armed robbery. Specifically, he claims error only for the trial court’s denial of his motion
for a judgment notwithstanding the verdict, and concludes his argument by stating,
“[a]ppellant contends that the armed robbery count should be reversed and rendered due to
the fact that there was no testimony that Buford was placed in fear.” Therefore, we will
restrict our review to the sufficiency of the evidence presented at trial against Wallace.
¶24.
A motion for a directed verdict and a motion for a judgment notwithstanding the
verdict both question the sufficiency of the evidence. Bush v. State, 895 So. 2d 836, 843
(¶16) (Miss. 2005). On review of a trial court’s denial of such motions, “the critical inquiry
is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act
charged, and that he did so under such circumstances that every element of the offense
existed; and where the evidence fails to meet this test[,] it is insufficient to support a
conviction.’” Id. (citing Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). That is not to say
that this Court should ask itself whether it agrees with the conclusion of guilt; rather, the
inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 315 (1979)).
¶25.
If, after reviewing the facts presented at trial under the above standard, we find that
“reasonable men could not have found beyond a reasonable doubt” every element of the
charged offense, our proper course of action is to reverse and render the case. Id. (quoting
11
Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)). However, if the reverse is true, and at the
conclusion of this Court’s review of the evidence we find that “reasonable fair-minded men
in the exercise of impartial judgment might reach different conclusions on every element of
the offense,” the sufficiency of the evidence will be deemed satisfactory, and the conviction
will stand. Id. (quoting Edwards, 469 So. 2d at 70).
¶26.
Wallace’s amended indictment alleged, in part, that he:
willfully, unlawfully[,] and feloniously, [took] or attempted to take from the
presence or person of Ollie Buford certain personal property, to wit: cash
money, being the personal property of Ollie Buford, against the will of Ollie
Buford, by putting Ollie Buford in fear of immediate injury to his person by
the exhibition of a deadly weapon, to wit: a pistol . . . .
(Emphasis added). The jury subsequently returned a verdict against Wallace finding him
guilty of attempted armed robbery. In order for the jury to return such a verdict, they must
have found beyond all reasonable doubt that the evidence presented against Wallace satisfied
the elements of Mississippi Code Annotated section 97-3-79 (Rev. 2006), which states:
[e]very person who shall feloniously take or attempt to take from the person
or from the presence the personal property of another and against his will by
violence to his person or by putting such person in fear of immediate injury to
his person by the exhibition of a deadly weapon shall be guilty of robbery . .
..
(Emphasis added). As is evident from the portion of the indictment quoted above, the State
limited the charge against Wallace to only include the element of fear of immediate injury.
As noted above, Wallace argues that there was insufficient evidence to support the jury’s
implied finding that Buford was put in fear of immediate injury so as to satisfy that element
of armed robbery. However, “[i]t is well settled in Mississippi that an attempt to commit a
crime consists of three elements: (1) an intent to commit a particular crime; (2) a direct
12
ineffectual act done toward its commission; and (3) the failure to consummate its
commission.” Spann v. State, 771 So. 2d 883, 891 (¶18) (Miss. 2000).
¶27.
We find that the facts of this case satisfy the elements of an attempted armed robbery.
Regarding the requisite intent, Wallace discussed robbing Buford and developed a plan to
do so. He then concealed a weapon prior to entering Buford’s home. Regarding an overt act,
once Wallace discovered that Love failed to complete the robbery, he brandished his weapon,
which caused Buford to run in fear, and then shot him. The jury could have easily inferred
that the only reason that the robbery was not completed was because Wallace’s cohorts fled
the scene once the shooting began.
¶28.
The supreme court faced a similar set of circumstances in Spann. In Spann, three
individuals decided to go to a convenience store to “get cigarettes, and . . . rob the store.”
Spann, 771 So. 2d at 891 (¶18). Two of the robbers, including Spann, armed themselves,
masked their faces, and entered the store. Id. Spann and his accomplice then opened fire on
the two clerks inside, killing one and injuring the other. Id. at 886-87 (¶2). All three robbers
immediately fled the scene as a customer simultaneously drove up. Id. at 887, 892 (¶¶2, 20).
Spann was found guilty of capital murder with the underlying crime being armed robbery.
Id. at 888 (¶7). The supreme court affirmed the jury’s verdict, holding that the facts above
satisfied the elements of armed robbery and that the jury was “free to infer that the only
reason no robbery was consummated was that [the customer] entered the parking lot.” Id.
at 892 (¶20).
¶29.
Additionally, the supreme court upheld a conviction for armed robbery in
Greenwood v. State, 744 So. 2d 767, 771 (¶21) (Miss. 1999). There, Greenwood exclaimed
13
that while he and a friend were riding around Madison County, he was talking about robbing
John Axtell. Id. at 770 (¶9). His plan was to knock on Axtell’s door and place a gun to his
head when he opened the door; however, when Axtell answered the door, Greenwood only
stated that his car was out of gasoline and asked Axtell if he could borrow some gasoline.
Id. The State introduced a statement made by Greenwood in which he admitted that after
leaving Axtell’s doorstep, he eventually threw a rock through a plate glass door and shot
Axtell through a window. Id. at 770 (¶10). Once Axtell realized he had been hit with a
projectile, he retrieved his rifle and returned fire. Id. at 769 (¶3). At this point, Greenwood
and his cohorts fled the scene. Id. The supreme court found that although Greenwood did
not carry out his plan to rob Axtell while holding him at gunpoint, his actions were clearly
sufficient overt acts to support his conviction. Id. at 770 (¶11). The supreme court noted that
the jury was free to infer that the only reason no robbery was consummated was because the
victim returned gunfire. Id.
¶30.
In the instant case, Lloyd, Love, and Boyce all testified that they, including Wallace,
talked about robbing Buford well before they arrived in front of his house. They developed
a plan in order to effectuate their collective intent that included Lloyd dropping the trio off
close to Buford’s home and gaining access to Buford’s home by telling him that Love’s
girlfriend abandoned them. Their plan worked, and on the night of September 9, 2004, Love,
Boyce, and Wallace entered Buford’s home with the intent to rob him. Both Boyce and
Wallace had pistols to facilitate their intent. Once inside, Love asked to use the telephone;
however, he did not go through with the plan to rob Buford.
¶31.
As he and Buford headed back downstairs, Wallace asked, “did you get the money?”
14
When Love said “no,” Wallace removed his pistol from his waistband and began firing at
Buford. Buford stated that he then “began to turn and run. And I guess I throwed [sic] up
this hand and that’s when he shot me though this finger here. And then he began, you know,
continually shooting.” Buford further stated, “[w]ell, after I then, you know, I just ran to
dodge the bullets. And I ran back up into the den area[,] and I fell over the coffee table.” On
cross-examination, he reiterated his testimony by saying, “[h]e stated some type of words and
when I seen [sic] the gun I just, you know, turned to flee from the gun. That’s when he
began shooting.” Boyce and Love also ran at the sound of the gunshots. Considering all of
the evidence in the light most favorable to the prosecution, it cannot be said that reasonable
and fair-minded jurors could not find that Wallace had attempted to commit the crime of
armed robbery.
¶32.
As in Spann and Greenwood, there is abundant proof that Wallace possessed the intent
to rob Buford by placing him in fear through the exhibition of a deadly weapon. Further,
similar to Spann entering the convenience store with his face masked and carrying a gun, and
Greenwood knocking on Axtell’s door and subsequently shooting him through a window,
Wallace’s actions of entering Buford’s home with a concealed pistol and shooting him once
he learned that Love failed to complete the robbery more than satisfied the requisite showing
of an overt act in furtherance of his intent to rob Buford. It is only because of his
accomplices’ apparently unexpected flight, and Buford’s survival instincts, that Wallace was
unable to complete the armed robbery. Thus, we find that this issue is without merit.
¶33. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY OF
CONVICTION OF COUNT I, CONSPIRACY TO COMMIT ARMED ROBBERY,
AND SENTENCE OF FIVE YEARS, AND COUNT II, ATTEMPTED ARMED
15
ROBBERY, AND SENTENCE OF TWELVE YEARS, WITH THE SENTENCE IN
COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND
WITH SENTENCES IN COUNTS I AND II TO RUN CONCURRENTLY WITH A
FIVE-YEAR SENTENCE IN THE CUSTODY OF THE WISCONSIN DEPARTMENT
OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO TATE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS,
BARNES, ISHEE AND CARLTON, JJ., CONCUR.
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