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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                            This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
December 23, 2002
A party may file with the Supreme Court a
                                                                                           Cornelia G. Clark                                                  petition to review an adverse decision by the
                                                                                           Clerk of Court of Appeals                                          Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                              and RULE 809.62.
                                                                                                                                                              Cir. Ct. Nos.   01 JV 653, 01 JV 653A
Appeal No.                                                                                 02-1437
STATE OF WISCONSIN                                                                                                                                            IN COURT OF APPEALS
DISTRICT I
IN THE INTEREST OF BRITTEN A.B.,
A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
BRITTEN A.B.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Milwaukee County:
CHRISTOPHER R. FOLEY, Judge.  Affirmed.
¶1                                                                                         SCHUDSON, J.1    Britten   A.B.   appeals   from   the   amended
dispositional order adjudging him delinquent of physical abuse of a child and
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e), (3) (1999-
2000).  All references to the Wisconsin Statutes are to the 1999-2000 version.




No.   02-1437
disorderly conduct, both as party to a crime, following a court trial.   He argues
that: (1) the charges should have been dismissed because the State failed to timely
file the delinquency petition; (2) the trial court’s decision finding him guilty “was
not  supported  by  the  weight  of  the  evidence”;  and                               (3)  convictions  for  both
physical abuse of a child and disorderly conduct, party to the crimes, violate his
double jeopardy rights.   This court rejects his arguments and affirms.
I. BACKGROUND
¶2                                                                                      According  to  the  delinquency  petition  and  portions  of  the  trial
testimony, on December  14,  2000, Michael, five years old, was staying at the
home of relatives where Britten, his twelve-year-old uncle, was living.   Michael
was playing with Britten and three of Britten’s brothers, Brushae, Jordan, and
Jovan, who ranged in age from eight to eleven.    When the four boys became
irritated with Michael, they grabbed his arms and legs, stepped on his stomach,
covered and then duct-taped his mouth, and then burned his penis and scrotum,
and one of his legs, with a cigarette lighter.   As a result, Michael suffered first-
degree burns.
¶3                                                                                      Between January 31 and February 5, 2001, a delinquency petition
charging Britten and his brothers was prepared but, due to administrative fumbles
following the reassignment of the assistant district attorney who had reviewed the
case, the petition was not filed.    When, on March  16,  2001, that mistake was
discovered, a new petition was prepared and filed.
¶4                                                                                      Britten was tried on charges of being party to the crimes of first-
degree sexual assault, physical abuse of a child, and disorderly conduct.   The trial
evidence consisted of testimony both implicating and potentially exculpating him.
The court had to sift through prior statements from Michael and one of his uncles,
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No.   02-1437
alleging that Britten was the primary perpetrator who actually burned him, and
their  testimonial  recantations.    The  trial  court  acquitted  Britten  of  the  sexual
assault  charge,  concluding  that  the  evidence  had  not  proven                           “the  requisite
elements of sexual degradation or sexual humiliation,” but convicted him of the
other two offenses.
II. DISCUSSION
A. Timeliness of the Petition
¶5                                                                                            Britten  argues  that  the  case  should  have  been  dismissed  with
prejudice because the delinquency petition was not timely filed as required by
WIS. STAT. § 938.25(2)(a).   Britten contends, as he did before the trial court, that
he was prejudiced by the filing delay because, during that period of delay, his
mother was murdered and she would have been a “key exculpatory witness.”   The
trial court denied the defense motion to dismiss, concluding: “If this child was
involved in this behavior  …, there are issues that need to be addressed in this
child’s life.   So the suggestion because somebody put [the petition] in the wrong
place in the DA’s office I should dump this case, I just don’t buy it.”   The trial
court was correct.
¶6                                                                                            The  most  salient  facts  are  undisputed:                             (1)  the  State  had  until
February  5,  2001 to timely file the petition;  (2) the State prepared a petition
charging Britten by February 5 but inadvertently failed to file it;  (3) the State
learned of its error on March 16, prepared a new petition, and filed it on March 20,
2001; (4) Britten’s mother was shot on February 26, and survived on life-support
until March 24, 2001, when she died.
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No.   02-1437
¶7                                                                                         Where, as here, the State fails to timely file a delinquency petition
under  WIS.  STAT.  § 938.25,  a  court  still  may  exercise  jurisdiction  over  the
subsequently filed petition upon “a showing of good cause …, taking into account
the request or consent of … the parties, the interests of the victims and the interest
of the public in the prompt disposition of cases.”   WIS. STAT. § 938.315(2).   As we
have explained, in determining whether a court may proceed on a tardy petition:
[T]he   best   interest   of   the   child   is   the   paramount
consideration.    We are to liberally construe the juvenile
code to effect its objectives and to serve this end.…
In addition to the paramount consideration of the
best  interest  of  the  child,  we  conclude  that  additional
relevant factors to a  “good cause” determination are:  (1)
that the party seeking the enlargement of time has acted in
good  faith;                                                                               (2)  that  the  opposing  party  has  not  been
prejudiced; and (3) whether the dilatory party took prompt
action to remedy the situation.
State v. F.E.W., 143 Wis. 2d 856, 861, 422 N.W.2d 893 (Ct. App. 1988) (citations
and footnote omitted).   In this appeal, Britten does not allege that the State acted in
bad faith or failed to take prompt action once it discovered its mistake; he argues
only that he has been prejudiced by the delay.
¶8                                                                                         Britten maintains that Michael’s mother would have testified that she
did not believe Michael’s allegation and thought that he was exaggerating.   He
contends,  therefore,  that  he  was  prejudiced  by  the  filing  delay  because          “the
testimony of the mother would have been enough to dismiss the charges … or not
find him guilty beyond a reasonable doubt.”   Britten’s claim fails for two equally
compelling reasons.
¶9                                                                                         First, as the State explains, the  chronology of  events—the filing
deadline, the actual filing, the typical timeline for processing delinquency cases,
and the dates of Michael’s mother’s shooting and death—establish the virtual
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No.   02-1437
certainty that Michael’s mother would not have been available to testify even if
the filing had been timely.   Second, in what defense counsel characterized as a
stipulation that was “exculpatory in nature,” the prosecutor advised the trial court
that Michael’s mother would have testified that Michael “recanted to her.”   Thus,
simply  stated,  Britten  was  not  prejudiced  by  the  unavailability  of  Michael’s
mother because, in effect, her testimony was received.
¶10    Accordingly, this court concludes that the trial court properly denied
Britten’s motion to dismiss the charges.    Primarily focusing on Britten’s best
interests,  the  court  correctly recognized  that  no  interests  would  be  served  by
“dump[ing] this case.”
B. Sufficiency of the Evidence
¶11    Britten argues that the trial court’s “decision” was “not supported by
the  weight  of  the  evidence.”    In  a  somewhat  disjointed  argument,  his  brief
emphasizes that “at no time did the victim state explicitly, under oath, that Britten
was involved in burning him,” that at trial the victim  “stated that Britten was
sleeping at the time of the attack,” and that “the prosecution could not come up
with witnesses in court who identify Britten as the perpetuator [sic].”
¶12    In effect, Britten is challenging the sufficiency of the evidence to
support the trial court’s guilty verdicts.   This court applies a rigorous standard in
reviewing a challenge to the sufficiency of evidence:
[I]n reviewing the sufficiency of the evidence to support a
conviction,  an  appellate  court  may  not  substitute  its
judgment for that of the trier of fact unless the evidence,
viewed most favorably to the state and the conviction, is so
lacking in probative value and force that no trier of fact,
acting  reasonably,  could  have  found  guilt  beyond  a
reasonable doubt.   If any possibility exists that the trier of
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No.   02-1437
fact could have drawn the appropriate inferences from the
evidence  adduced  at  trial  to  find  the  requisite  guilt,  an
appellate  court  may  not  overturn  a  verdict  even  if  it
believes that the trier of fact should not have found guilt
based on the evidence before it.
State  v. Poellinger,  153  Wis.  2d  493,  507,  451 N.W.2d  752  (1990)  (citation
omitted).                                                                                            “‘The credibility of the witnesses and the weight of the evidence is for
the trier of fact.’”   Id. at 504 (quoted source omitted).   This court will substitute its
judgment for that of the trial court only when “the fact finder relied upon evidence
that was inherently or patently incredible—that kind of evidence which conflicts
with the laws of nature or with fully-established or conceded facts.”    State v.
Tarantino, 157 Wis. 2d 199, 218, 458 N.W.2d 582 (Ct. App. 1990).
¶13    Here,  the  trial  court  had  to  consider  trial  testimony  from  both
Michael  and  one  of  his  uncles  effectively  recanting  their  prior  statements
implicating Britten.   The court did not have to do so, however, in a vacuum; it
could compare the trial testimony to the prior statements, and consider all the
statements in combination with the additional circumstantial evidence.   Doing so,
the trial court reached well-reasoned verdicts.
¶14    As the trial court explained, “the only significant dispute” in the trial
was one of “identification”—“just Jordan and Jovan did this, or … Jordan, Jovan,
Britten and Brushae  [did] this.”    Logically,  the court concluded  “beyond any
question” that all four were involved.2   The court explained that, quite obviously,
Michael was being “tortured in a manner from which you can only infer that he
2 Britten emphasizes that the trial court, at one point in its decision, stated: “So as to both
charges, and this really is kind of a guess, as caveat to this, I have resolved the identification
issue.”                                                                                              (Emphasis added.)  This court concedes that the trial court’s comment is, at the very least,
confusing and that, in isolation, it would seem to undermine the verdicts.   The balance of the
decision, however, reveals no guesswork; the court’s resolution of the “identification” dispute
was logical and solidly grounded in the evidence.
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No.   02-1437
was in excruciating pain” that would have caused him “to struggle and to resist
mightily.”   The court tried to visualize two boys, eight to ten years old, attempting
to hold  down  Michael while,  at the  same  time,  “manipulating a  lighter”  and
“controlling his genitals area.”   The court understood the virtual impossibility of
that and the need for all four boys to have been involved.
¶15    The trial court also carefully considered factors affecting Michael’s
credibility—in his original allegation and his recantation—including “attempts to
influence his testimony.”   The court reasonably found that Michael’s allegations
were credible and that his recantation was not.   Britten offers no factual or legal
basis on which this court could reject the reasonable manner in which the trial
court weighed Michael’s contradictory statements, in light of all the evidence.   See
Poellinger, 153 Wis. 2d at 503 (within the bounds of reason, the fact finder may
reject evidence and testimony suggestive of innocence).    Therefore, this court
concludes that sufficient evidence supported the trial court’s two guilty verdicts.
C. Double Jeopardy
¶16    Finally, Britten argues that convictions for both physical abuse of a
child and disorderly conduct, as a party to the crimes, violate his double jeopardy
rights.   Obviously, however, the crimes have different elements and, therefore,
suggest no apparent double-jeopardy issue.  See United States v. Blockburger, 284
U.S. 299, 304 (1932); State v. Sauceda, 168 Wis. 2d 486, 493-96, 485 N.W.2d 1
(1992)                                                                                   (articulating  the   “elements-only”  test  for  measuring  double  jeopardy
challenges).   Britten elaborates only: “Given the facts of [his] case, these three
statutes by implication do not require proof of an additional element of the crime
because that analysis was not performed at the trial level [sic].   All of the charges
seemed to be lumped with the conduct.”
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No.   02-1437
¶17    Britten’s double jeopardy challenge is amorphous and insufficiently
developed.                                                                      This  court  need  not  consider                                      “amorphous  and  insufficiently
developed” arguments.   Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392
(Ct. App. 1995).
By the Court.—Order affirmed.
                                                                                This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                       (b)4.
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