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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 5, 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. No.   01-CF-15
Appeal No.                                                                              02-0173-CR
STATE OF WISCONSIN                                                                                                                                      IN COURT OF APPEALS
                                                                                                                                                        DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
SCOTT D. WORSECH,
DEFENDANT-RESPONDENT.
APPEAL from orders of the circuit court for Clark County:   JON M.
COUNSELL, Judge.  Reversed and cause remanded with directions.
Before Vergeront, P.J., Deininger and Lundsten, JJ.
¶1                                                                                      PER CURIAM.    The State appeals an order which dismissed one
count of its complaint against Scott Worsech, and a subsequent order denying
reconsideration.    The  dismissed  count  alleged  that  Worsech,  while  himself  a
prisoner, had attempted to intentionally cause bodily harm to another inmate,
without the other inmate’s consent, in violation of WIS. STAT. §§ 940.20(1) and




No.   02-0173-CR
939.32  (1999-2000).1    The trial court concluded that the facts set forth in the
complaint were insufficient to establish probable cause for an attempted battery
because they did not show both that Worsech intended actual bodily harm and that
anything intervened to prevent Worsech from causing bodily harm.   We disagree
and  reverse  with  directions  that  the  dismissed  count  be  reinstated  for  further
proceedings.
BACKGROUND
¶2                                                                                          As a factual basis for the complaint, the State attached copies of
police reports by Clark County Deputies Patricia Arciszewski and Mike Koprek,
as well as statements made by Worsech and the alleged victim, Paul Pearson.
¶3                                                                                          While on duty at the Clark County Jail, Arciszewski reported having
observed  Worsech  exit his cell into a  common  area,  approach  Pearson while
appearing agitated, and then repeatedly strike Pearson in the back and head area
with both fists, while Pearson remained seated and did not react.
¶4                                                                                          Koprek also reported having observed Worsech striking Pearson in
the back and head.   Koprek further stated that he responded, removed Worsech
from the area, and placed restraints on him.   Koprek indicated that he did not
observe any injuries on Pearson, and that Pearson stated he was not injured and
did not need medical attention.
¶5                                                                                          Pearson stated that Worsech was angry with Pearson for some prior
taunting and for putting a towel over Worsech’s cell window to block his view.
1  All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise
noted.
2




No.   02-0173-CR
Pearson indicated that Worsech started “wailing” on his back while Pearson was
playing cards and that Pearson just ducked down.   Pearson said Worsech then tried
to pull him off his chair down to the floor and tried to get him to agree to go into
the  shower  area  for  a  fight,  saying  that  one  of  them                         “wouldn’t  be  leaving
standing.”
¶6                                                                                     Worsech also referred to the prior taunting and towel incidents.   He
stated that he approached Pearson and asked Pearson to step into the shower area
with him to take care of the problem, but that Pearson just sat there, so Worsech
pushed him off his chair.
DISCUSSION
¶7                                                                                     As we explained in State v. Chinavare, 185 Wis. 2d 528, 533, 518
N.W.2d 772 (Ct. App. 1994):
A criminal complaint is a written statement of the
essential  facts  constituting  the  offense  charged.    To  be
viable, a complaint must establish probable cause that a
crime  was  committed  by  the  defendant.    A  complaint
establishes probable cause if it sets forth facts sufficient to
permit an impartial judicial officer to make the judgment
that  the  charges  are  not  capricious  and  are  sufficiently
supported to justify bringing into play the further steps of
the criminal process.    The complaint need not, however,
contain all the allegations of fact which if proved would be
necessary to convict.
3




No.   02-0173-CR
(Citations omitted.)   See also WIS. STAT. §§ 968.01 and 968.03.   The sufficiency
of a criminal complaint is a question of law which this court reviews de novo.2
State v. Kordas, 191 Wis. 2d 124, 127, 528 N.W.2d 483 (Ct. App. 1995).
¶8                                                                                              The  statutes  which  are  necessary  to  understand  the  essential
elements for the alleged offense of attempted battery by a prisoner are set forth in
WIS. STAT. §§ 940.20(1), 939.22(4), and 939.32(3).   Section 940.20(1) provides:
Any prisoner  confined  to  a  state  prison  or  other
state,   county   or   municipal   detention   facility   who
intentionally causes bodily harm to an officer, employee,
visitor  or  another  inmate  of  such  prison  or  institution,
without his or her consent, is guilty of a Class D felony.
Section 939.22(4) defines “bodily harm” as “physical pain or injury, illness, or any
impairment of physical condition.”   And, finally, § 939.32(3) states:
An attempt to commit a crime requires that the actor
have an intent to perform acts and attain a result which, if
accomplished,  would  constitute  such  crime  and  that  the
actor does acts toward the commission of the crime which
demonstrate  unequivocally,  under  all  the  circumstances,
that the actor formed that intent and would commit the
crime except for the intervention of another person or some
other extraneous factor.
¶9                                                                                              The parties do not dispute that the allegations in the complaint were
sufficient to show that Worsech was aware at the time of the alleged offense that
he and Pearson were both prisoners confined to a county detention facility and that
Pearson did not consent to bodily harm.   The issues on appeal are whether the
allegations  in  the  complaint  established  probable  cause  to  believe:                     (1)  that
2  Given our de novo review of the complaint, we are not persuaded by Worsech’s
arguments that we are limited to considering only those inferences which the State explicitly
argued in the trial court.
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No.   02-0173-CR
Worsech  intended  to  cause  Pearson  bodily  harm,  and  (2)  that  Worsech  took
actions unequivocally demonstrating that he would have committed the crime but
for some intervention.
¶10    Here, there were allegations that Worsech struck Pearson multiple
times on his head and back.   Such blows could have caused some degree of pain,
even if Pearson did not consider himself to be “injured” or in need of medical
attention.   We are therefore satisfied that the observed blows, in conjunction with
Worsech’s statement that one of them  “wouldn’t be leaving standing,” supply
probable cause to believe Worsech intended to cause bodily harm.
¶11    With  regard  to  the  intervention  element,  we  see  nothing  in  the
attempt statute which requires physical intervention.    It would be fair to infer,
then, that the mere approach of the deputy could have deterred Worsech from
continuing to strike (or trying to strike) Pearson, thus constituting an intervening
event.   Moreover, Pearson himself stated that he  “ducked” some of Worsech’s
blows.   Therefore, it would also be fair to infer that Pearson’s own evasive actions
were a factor in his avoiding more serious injury or bodily harm.   Given such
permissible inferences, we are satisfied there was probable cause to believe that
Worsech would have completed a battery had Pearson not ducked and/or had the
deputy not approached Worsech in a timely manner.   Accordingly, we reverse and
remand for further proceedings consistent with this opinion.
By the Court.—Orders reversed and cause remanded with directions.
This opinion will not be published.   WIS. STAT. RULE 809.23(1)(b)5.
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