State v. Hanson

ANN WALSH BRADLEY, J.

¶ 48. {concurring). Although I agree with the majority that Hanson is not entitled to a new trial, I write separately because I am concerned that the majority's discussion of willfulness may be misconstrued in future cases.

¶ 49. The majority begins its statutory interpretation with a correct statement of the law. It acknowledges that "willful is susceptible of different meanings in different contexts." Majority op., ¶ 21. It determines that "the term willful as used in Wis. Stat. § 346.04(3) is defined by examining its use within the context of this specific statute." Id.

¶ 50. Later, however, the majority appears to paint with a broader brush. It rejects Hanson's proposed interpretation of the term willful, as used in Wis. Stat. § 346.04(3), because "it neither comports with our interpretation of willful in other contexts since Preston, nor does it support the statutory purpose of requiring compliance with directions from known law enforcement personnel." Id., ¶ 25.

¶ 51. This statement could be construed to imply that this court has uniformly interpreted the term "willful" since State v. Preston, 34 Wis. 675 (1874). Such an implication would be incorrect. In Cissell, a case that *268post-dated Preston by 90 years, this court stated: "As a general proposition, the word willful cannot be defined without reference to its use in a specific statute. In [Preston], we specifically noted that willful is susceptible of different meanings in different contexts." State v. Cissell, 127 Wis. 2d 205, 210, 378 N.W.2d 691 (1985). We have stressed that the term "willful" is ambiguous, and that no single definition of willful will be applicable in all statutes. Dep't Transp. v. Wis. Auto. & Truck Dealers Assn., 111 Wis. 2d 80, 87, 330 N.W.2d 159 (1983).1

¶ 52. Despite my concerns with the majority's analysis, I agree with its ultimate conclusion in this case. Here, Hanson had his day in court. The jury was instructed that it must find, beyond a reasonable doubt, *269that "[t]he defendant knowingly fled or attempted to elude a traffic officer by willful disregard of the visual or audible signal so as to endanger other vehicles." Hanson did not object to the instruction.

¶ 53. In presenting his theory of self-defense, Hanson was afforded the opportunity to prove that he was justified in disregarding the officer's signal. In finding Hanson guilty, the jury considered and rejected Hanson's assertion that his action was justified. Accordingly, like the majority, I conclude that Hanson is not entitled to a new trial.

Additionally, the majority confuses the standard of review. It states that an appellate court "independently review[s] whether the evidence was sufficient to sustain a jury verdict, but in so doing, we view the evidence most favorably to sustaining the conviction." Majority op., ¶ 15. This stated standard is contrary to our well-established precedent. See State v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752 (1990) (concluding that an appellate court should not review the evidence independently, because doing so would usurp the function of the trier of fact). Also, this standard is self-contradictory. How can a court review the evidence "independently" and, at the same time, "most favorably to sustaining the conviction"?

Later in the opinion, the majority sets forth the correct standard of review. Majority op., ¶ 31 (quoting Poellinger, 153 Wis. 2d at 501) ("A conviction based on a jury's verdict will be sustained 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.’").