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§ 943.10, Burglary – Sufficiency of Evidence – Owner’s Nonconsent

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate


¶37      Owner nonconsent, like other elements of criminal offenses, may be proved by circumstantial evidence. See Bohachef v. State, 50 Wis.  2d 694, 700-01, 185 N.W.2d 339 (1971). The test on review is whether the evidence presented was sufficient to prove guilt beyond a reasonable doubt, and the same standard applies whether the evidence relied upon is direct or circumstantial. Id. at 701.¶38      Here, the police received an alert that the Varda mat alarmed at 12:29 a.m. Service Motors placed the mat in front of its safe after hours. The only person on duty at that time of the night was the night manager/janitor. While the car lot may have been “open” to the public during nonbusiness hours, the evidence clearly established that the office was not. Champlain testified he is from Indiana, had never been in Fond du Lac before, and had arrived in Fond du Lac only half an hour before going to the Service Motors lot. Circumstantially, that placed Champlain at the Service Motors lot at a time when the office was closed. The jury reasonably could have inferred that the night manager/janitor, the person in lawful possession of the building at that time, did not himself set off the Varda alarm and had not given Champlain consent to enter the office. We conclude the circumstantial evidence was sufficient to establish nonconsent.


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