State v. Hayes

¶1¶ 118. {concurring). While I agree with the conclusions reached by the majority opinion, that Hayes was not required to raise a challenge to the sufficiency of the evidence during trial and that the evidence was sufficient to support the jury's verdict, I write separately because I conclude that an accused's right to challenge the sufficiency of the evidence is not grounded in Wis. Stat. § 974.02(2)1 nor is it subject to waiver if not raised at trial. Rather, it is bottomed in the requirement that the State must prove an accused's guilt beyond a reasonable *56doubt, and that to relieve the State of that burden at any point in the process undermines the fundamental constitutional principle that a defendant is presumed innocent until the State proves him or her guilty by that requisite degree of proof. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

¶2¶ 119. In the landmark case of In re Winship, 397 U.S. 358 (1970), the United States Supreme Court explained that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction unless proof beyond a reasonable doubt of the crime charged has been submitted to the fact-finder. Id. at 364. Accordingly, when a claim of insufficient evidence is raised, the evidence is examined in the view most favorable to the State, and we reverse only if the record contains no evidence from which a jury could reach a finding of guilt beyond a reasonable doubt. See Hoffman v. Wisconsin Elec. Power Co., 2003 WI 64, ¶ 9, 262 Wis. 2d 264, 664 N.W.2d 55. Appellate reversal based on insufficient evidence means that the State's case was so lacking in proof that it should not have been sent to the jury. In such a case, society has no interest in upholding the conviction. Therefore, I conclude that the better choice between applying waiver and reaching the issue of sufficiency of the evidence on the merits is the latter one. Accordingly, I respectfully concur.