State v. Serebin

350 N.W.2d 65, 119 Wis. 2d 837, 1984 Wisc. LEXIS 2614
CourtWisconsin Supreme Court
DecidedJune 29, 1984
Docket82-232-CR
StatusPublished
Cited by25 cases

This text of 350 N.W.2d 65 (State v. Serebin) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Serebin, 350 N.W.2d 65, 119 Wis. 2d 837, 1984 Wisc. LEXIS 2614 (Wis. 1984).

Opinions

[839]*839LOUIS J. CECI, J.

This review concerns a court of appeals opinion1 reversing a jury verdict finding the defendant, Stephen Serebin, guilty of homicide by reckless conduct, contrary to sec. 940.06, Stats. 1975, and guilty of twelve counts of abuse of inmates of an institution, party to a crime, contrary to sec. 940.29 (7), Stats. 1975. The court of appeals found the evidence to be insufficient to support the convictions and reversed. Because we find the evidence to be sufficient to support the conviction for abuse of inmates, but insufficient to support the homicide conviction, we reverse in part, affirm in part, and remand the cause to the court of appeals.

The offenses for which the defendant was charged allegedly took place between about December 20, 1975, and June 30, 1976, at the Glendale Convalescent Center (Glendale). The defendant was the administrator of the Glendale nursing home from 1973 to 1977. Following a 1978 John Doe investigation, criminal charges were filed against the defendant and the owners of the nursing home, alleging one count of homicide by reckless conduct and fifty-eight counts of abuse of inmates. The count of homicide by reckless conduct was based upon the incident in which one of the residents, Bruno Dreyer, wandered out of the nursing home and died from exposure to the cold, on February 7, 1976. The counts of abuse stemmed from various residents who lost weight and developed bedsores. The criminal complaints alleged that Serebin caused the death of Dreyer and the bedsores and weight loss in the other residents by failing to provide a sufficient staff and adequate diet. More facts will be developed throughout the remainder of this opinion.

A jury trial was conducted on October 12, 1981, through November 14, 1981. The jury found the defend[840]*840ant guilty of the homicide charge and guilty of twelve counts of inmate abuse. The defendant’s postconviction motion for judgment notwithstanding the verdict or, alternatively, for a new trial, was denied, and on February 8, 1982, the defendant was sentenced to serve a cumulative term of six years.

After appealing his judgment of conviction, the defendant petitioned for bypass of the court of appeals. This court denied Serebin’s petition for bypass on September 21, 1982. The court of appeals then certified the case to this court, and the certification was refused on April 22, 1988.

The court of appeals subsequently issued its decision on July 26, 1983. The court noted that for the state to convict Serebin of any of the charged crimes, it must prove beyond a reasonable doubt that a causal connection existed between his actions and the harm which resulted. State v. Serebin, 114 Wis. 2d at 317. The court stated that whether the evidence adduced at trial is sufficient to prove causation is a question of law which the appellate courts may independently review and concluded that a jury could not have reasonably inferred that the defendant’s failure to provide a sufficient staff caused Dreyer’s death. Seraphine v. Hardiman, 44 Wis. 2d 60, 65, 170 N.W.2d 739 (1969), and First Nat. Leasing Corp. v. Madison, 81 Wis. 2d 205, 208, 260 N.W.2d 251 (1977). Rather, the court concluded that,

“The most favorable inference that can be drawn from the state’s evidence is that a reasonable number of additional staff would have made it less probable that Dreyer could leave unnoticed. An unspecified degree of probability does not permit the inference of a fact beyond a reasonable doubt.” State v. Serebin, 114 Wis. 2d at 318.

Consequently, the court of appeals reversed the conviction for homicide by reckless conduct.

[841]*841Concerning the conviction for abuse of the nursing home residents, the court of appeals also concluded that the state had failed to prove the causal connection between the lack of staff and the bedsores and weight loss. The court noted that both bedsores and weight loss may be attributed to numerous medical causes. Therefore, expert testimony was required to prove that these conditions were caused by Serebin’s failure to hire a sufficient staff or provide an adequate diet. State v. Serebin, 114 Wis. 2d at 318-19, citing Kelly v. Hartford Casualty Insurance Co., 86 Wis. 2d 129, 134-85, 271 N.W.2d 676 (1978). Because none of the experts who testified at trial had examined any of the twelve residents with weight loss and bedsores, nor had any expert given a specific cause for these conditions in a specific resident, the court concluded that the evidence was insufficient to allow the jury to infer that these conditions were caused by Serebin’s neglect in failing to hire sufficient staff or provide a proper diet. Id. at 319-20. The court of appeals then reversed the abuse of inmates conviction.

The state subsequently petitioned this court for review, and we granted that petition.

There are two issues before this court on review. They are: (1) Was the evidence sufficient to support Serebin’s conviction of homicide by reckless conduct arising from a resident’s death while Serebin acted as administrator, and (2) was the evidence sufficient to support Serebin’s conviction of twelve counts of abuse of nursing home residents?2

[842]*842I.

WAS THE EVIDENCE SUFFICIENT TO SUPPORT SEREBIN’S CONVICTION OF HOMICIDE BY RECKLESS CONDUCT ARISING FROM A RESIDENT’S DEATH WHILE SEREBIN ACTED AS ADMINISTRATOR?

This court recently stated the following standard of review to be utilized when testing the sufficiency of the evidence to support a conviction in State v. Alles, 106 Wis. 2d 368, 376-77, 316 N.W.2d 378 (1982):

“ ‘We test the sufficiency of the evidence leading to the conviction by the oft-stated rules as follows: This court must affirm if it finds that the jury, acting reasonably, could have found guilt beyond a reasonable doubt. The function of weighing the credibility of witnesses is exclusively in the jury’s province, and the jury verdict will he overturned only if, viewing the evidence most favorably to the state and the conviction, it is inherently [843]*843or 'patently incredible, or so lacking in probative value that no jury could have found guilt beyond a reasonable doubt.’ Fells v. State, 65 Wis. 2d 525, 529, 223 N.W.2d 507 (1974) (dealing with conviction of attempted first-degree murder and attempted armed robbery) (footnotes omitted) (emphasis added) ; Cranmore v. State, 85 Wis. 2d 722, 774, 271 N.W.2d 402 (Ct. App. 1978); Gauthier v. State, 28 Wis. 2d 412, 416, 137 N.W.2d 101 (1965) cert. denied 383 U.S. 916 (1966). We note that our review of sufficiency of the evidence questions is limited further by the principle that ‘[i]f more than one inference can be drawn from the evidence, the inference which supports the jury finding must be followed unless the testimony was incredible as a matter of law.’ Murphy v. State, 75 Wis.

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Bluebook (online)
350 N.W.2d 65, 119 Wis. 2d 837, 1984 Wisc. LEXIS 2614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-serebin-wis-1984.