State v. Martez Columbus Fennell

COURT OF APPEALS
DECISION NOTICE
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.
May 25, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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.

Appeal No. 2020AP487-CR Cir. Ct. No. 2016CF712

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARTEZ COLUMBUS FENNELL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS and STEPHANIE ROTHSTEIN,
Judges. Affirmed.

Before Brash, P.J., Graham and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP487-CR

¶1 PER CURIAM. Martez Columbus Fennell was convicted by a jury
of first-degree reckless homicide as a party to a crime. Fennell sought
postconviction relief, alleging that his trial counsel was ineffective for not
attempting to suppress text messages that were gathered from a Kyocera cellphone
pursuant to a warrant.1 He argues that the circuit court erred by denying his
postconviction motion without a hearing and that the trial evidence was
insufficient to support his conviction. We disagree and affirm.

BACKGROUND

¶2 On November 22, 2015, at 5:07 a.m., Milwaukee police responded
to a 911 call about a shooting in an alley near 8329 West Congress Street. The
victim, T.H., had been shot several times and was pronounced dead at the scene.

¶3 At 5:11 a.m. that same morning, Fennell arrived at St. Joseph’s
Hospital with five gunshot wounds. Fennell had been driven to the hospital by his
girlfriend, Wanliz Velazquez. When police interviewed Velazquez, she indicated
that Fennell was shot near North 84th Street and West Congress. Velazquez gave
police a black Kyocera cellphone, and she told the officers that the phone
belonged to Fennell. A second cellphone was found in the pocket of the jeans
Fennell wore to the hospital; it is not clear from the record whether police ever
searched the contents of that second phone.

¶4 Police applied for and successfully obtained a search warrant for the
Kyocera cellphone. The warrant application was accompanied by the affidavit of

1
The Honorable Mark A. Sanders presided over the trial and entered the judgment of
conviction. The Honorable Stephanie Rothstein entered the order denying the postconviction
motion.

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No. 2020AP487-CR

Detective Nicholas J. Johnson, and the contents of this affidavit are addressed in
greater detail in the discussion section below. A search of the phone uncovered
four text messages that had been sent in the early morning hours leading up to the
shooting from a phone number associated with a man named Dovone Jackson.
Fennell argues that the contents of these four messages, discussed below, were the
“lynchpin” of the case against him.

¶5 The case proceeded to a four-day jury trial, and Jackson was one of
the many witnesses to testify on behalf of the State. Jackson had already been
convicted of conspiracy to commit armed robbery in connection with T.H.’s death,
and he had been sentenced to fifteen years of initial confinement. He told the jury
that he had agreed to testify at Fennell’s trial in the hopes of reducing his sentence.
Later, when reading the jury instructions, the court specifically informed the jury
that Jackson had received “concessions” for his testimony. The circuit court
instructed the jury to “consider whether [Jackson’s] hope that his testimony will
result in a reduced sentence affected the testimony and give [it] the weight you
believe it is entitled to receive.”

¶6 Jackson testified as follows. He and a man called “Breed” knew that
T.H. kept money, drugs, and other valuables in his apartment, and they had a long-
running plan to burglarize it. At some point, Jackson asked Fennell if he would
assist with the burglary, and Fennell said he would. Jackson and Fennell planned
to bring weapons to the burglary, and they had been watching T.H.’s apartment for
at least a month, looking for an opportunity to break in. On the morning that T.H.
was shot, Jackson and Fennell expected T.H. and his wife to be attending a party
at Breed’s place.

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No. 2020AP487-CR

¶7 Jackson confirmed that he sent the text messages that were found on
the Kyocera cellphone, and he testified about the circumstances under which he
sent those messages. When Jackson saw T.H. at Breed’s party, T.H. was carrying
a gun and had a large sum of cash and jewelry on him. At 3:35 a.m., Jackson
texted Fennell: “He here with a thousand singles, one pistol, and the watch.
Breed just hoed him.” Jackson testified that meant that Breed accused T.H. of
stealing from him. At 3:42 a.m., Jackson texted: “Earring. ND. And Bhain.”2
Jackson explained that he texted these updates so that Fennell would know “what
[T.H.] had on him.” At 4:47 a.m., Jackson texted: “He on his WA, take him
DMWN, go on S4TE.”3 Finally, at 4:50 a.m., Jackson texted: “rat on his … way,
to take the snake. Are you hungry? Eat.”4 Jackson confirmed that he was
referring to Fennell as the “snake” in this final text message. Jackson also
confirmed that Fennell never replied to these four text messages and that he did
not know whether Fennell had his phone on him the morning T.H. was shot.5

2
A police officer testified that he interpreted “ND Bhain” as a typo that meant “and
chain.” The officer testified that he was aware that T.H. had been wearing a large chain around
his neck when he attended Breed’s party.

The officer testified that he interpreted this message to mean “he is on his way, take
3

him down,” and possibly “go on site.”
4
The officer inferred that the “snake” referred to Fennell because Fennell has a tattoo of
a snake on his arm.
5
A report with these and other text messages was generated, marked as State’s Exhibit
88, and displayed to the jury. However, it was apparently not admitted into evidence, and it is not
a part of the record on appeal. The parties appear to agree on the spelling, capitalization, and
punctuations of the text messages that were displayed to the jury, but we are unable to confirm
their accuracy by reference to the exhibit.

The trial transcripts also include testimony about text messages sent between Fennell and
Jackson in the days leading up to the shooting. During trial, the prosecution suggested that these
texts were related to them casing the apartment and planning a burglary. Neither party discusses
these texts in any detail in their appellate briefs, therefore we discuss them no further.

4
No. 2020AP487-CR

¶8 T.H.’s wife testified as follows. T.H. had gone to a party at Breed’s
place the night before he was shot, and she stayed at home. Around 1:30 a.m.,
someone knocked on their apartment door, and she saw an unfamiliar man
wearing a red hoodie, a black jacket, dark pants, and a cap. The man told her that
he had the “wrong doorbell,” and as he walked away, he took out his phone as if
he was about to make a call. Then, at approximately 5:00 a.m., she heard
gunshots, looked out the window, and saw T.H. fighting with someone. She called
911 after discovering that T.H. had been shot.

¶9 The State introduced DNA evidence at trial that linked Fennell to
T.H.’s body and to the crime scene. Fennell’s DNA was found under T.H.’s
fingernails, and Fennell’s blood was found in the alleyway where T.H. was killed.
Fennell had been wearing a red sweatshirt when he was admitted to the hospital,
and according to DNA analysis, the blood on the sweatshirt belonged to Fennell
and to T.H. Additionally, an analyst testified that the bullet surgically removed
from Fennell’s arm had been fired from the same gun that discharged other
casings that were found at the crime scene.

¶10 Fennell testified in his defense as follows. He did not plan a
burglary with Jackson. Jackson had talked about robbing T.H., but Fennell took it
as a joke and did not take Jackson seriously. Fennell did not carry a gun that night
or any other night.

¶11 Fennell further testified that he did not go to T.H.’s apartment in the
early morning hours of November 22; instead, at approximately 1:30 a.m., he was
helping his cousin change a flat tire. Then, at about 3:00 a.m., Fennell was
playing cards and drinking at a friend’s house near 10th Street and Keefe Avenue.
Fennell, his cousins, and Velazquez left at around 4:30 a.m., and one of Fennell’s

5
No. 2020AP487-CR

cousins asked Fennell to buy him some marijuana. Fennell borrowed his cousin’s
phone to call Jackson, and Jackson told Fennell to come to 83rd Street. When
Fennell arrived, he saw Jackson and T.H. talking. As he approached, “some guys
c[a]me out” and “started shooting.” Fennell was shot during the exchange of
gunfire, and he “ran into [T.H.]” as he was “trying to get away.”

¶12 Fennell testified that he had lost track of his Kyocera cellphone that
night, and he did not know where it was or whether it was powered on or off.
Fennell did not see the text messages from Jackson when they were sent; the first
time he saw the text messages was after he was arrested when he received them
from his attorney.

¶13 On cross-examination, Fennell admitted that he spoke to police on
several occasions while being treated at the hospital, and each time, he told
officers that he had been shot by masked men who attempted to rob him near 10th
and Keefe. He indicated that, at the time he spoke with police, he was in and out
of consciousness from his wounds and did not remember that he had actually been
shot near 83rd and Congress. According to Fennell, he did not remember that he
had been shot at the scene where T.H. was killed until he received the State’s
discovery responses, which placed his DNA at the scene of the crime.

¶14 The jury found Fennell guilty of first-degree reckless homicide as a
party to a crime. The State had also charged Fennell with being a felon in
possession of a firearm, however, the jury acquitted him of that charge.

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No. 2020AP487-CR

¶15 Fennell filed a postconviction motion seeking a Machner6 hearing
and a new trial based on a claim of ineffective assistance of counsel. He alleged
that the warrant to search the Kyocera cellphone should not have been issued
because it was not supported by probable cause, that the text messages should
have been suppressed as fruits of an unlawful search, and that his trial counsel’s
failure to challenge the warrant prejudiced his defense. The circuit court rejected
Fennell’s claim that the warrant to search his phone was defective and further
concluded that there was no reasonable probability that the trial’s outcome would
have been different without the messages. The court denied the motion without a
hearing, and this appeal follows.

DISCUSSION

¶16 Fennell argues that the circuit court erred by denying his
postconviction motion without holding a Machner hearing. He also contends that
the evidence was insufficient to support a guilty verdict. WIS. STAT. § 974.02(2)
(2019-20).7 We address each argument in turn.

I. Ineffective Assistance of Counsel

¶17 A circuit court is not required to hold a Machner hearing on
allegations of ineffective assistance of counsel if, among other things, “‘the record
conclusively demonstrates that the defendant is not entitled to relief.’” State v.
Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996) (citation omitted); State

6
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
7
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP487-CR

v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. To show
ineffective assistance of counsel, a defendant must establish that their counsel’s
performance was deficient, and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). When the salient
facts are undisputed, both inquiries present questions of law that we review de
novo. State v. Scott, 230 Wis. 2d 643, 656-57, 602 N.W.2d 296 (Ct. App. 1999).

A. Deficient Performance

¶18 Deficient performance means legal representation that falls below
“‘an objective standard of reasonableness.’” State v. Breitzman, 2017 WI 100,
¶38, 378 Wis. 2d 431, 904 N.W.2d 93 (citation omitted). Where trial counsel’s
failure to litigate a Fourth Amendment issue is the basis for an allegation of
ineffectiveness, the defendant must also prove that the issue would have been
meritorious. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); State v.
Jackson, 229 Wis. 2d 328, 344, 600 N.W.2d 39 (Ct. App. 1999). Trial counsel’s
failure to challenge the admission of evidence is not deficient performance if that
challenge would have been unsuccessful. State v. Wheat, 2002 WI App 153, ¶23,
256 Wis. 2d 270, 647 N.W.2d 441.

¶19 According to Fennell, his trial counsel should have filed a motion to
suppress the text messages on the ground that the warrant to search the Kyocera
cellphone was not supported by probable cause. When asked to issue a search
warrant, a neutral and detached magistrate must determine whether there is
probable cause to believe that a search of the place described in the warrant will
uncover evidence linked to the commission of a crime. State v. Higginbotham,
162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991); State v. Herrmann, 2000 WI App
38, ¶22, 233 Wis. 2d 135, 608 N.W.2d 406. Probable cause is a “‘flexible’” and

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No. 2020AP487-CR

“‘practical commonsense decision,’” State v. Silverstein, 2017 WI App 64, ¶22,
378 Wis. 2d 42, 902 N.W.2d 550 (citations omitted), and it means a “fair
probability” that evidence of a crime will be found, Illinois v. Gates, 462 U.S.
213, 238 (1983). After a warrant has been issued, the defendant bears the burden
to prove that it was issued in error. State v. Edwards, 98 Wis. 2d 367, 376, 297
N.W.2d 12 (1980).

¶20 Fennell argues that there was no probable cause to search the
Kyocera cellphone because “there was no nexus between the cellphone … and the
homicide.” He points to the fact that the warrant application “did not state that
Mr. Fennell had this phone with him during the shooting event,” and he argues
that the fact that Velazquez possessed the phone at the hospital suggests that it was
not in Fennell’s possession at the time he was shot.

¶21 Fennell’s argument appears to be based on an unfounded premise—
that there cannot be a “fair probability” that evidence related to the homicide
would be found on the Kyocera cellphone if Fennell did not have the phone in his
physical possession when the “shooting event” occurred. We disagree with this
underlying premise, which is not supported by any of the authorities that Fennell
cites in his briefs. We conclude that the issuing magistrate had a substantial basis
for concluding that there was a fair probability that a search of the Kyocera
cellphone would uncover evidence of wrongdoing for the following reasons.

¶22 First, there was probable cause to believe that Fennell had been
injured in a shootout with T.H., and Fennell does not appear to challenge this
conclusion. As stated in Detective Johnson’s affidavit, the information known to
police suggested that Fennell and T.H. were shot at the same time and in the same
location. This information came from Velazquez, who was with Fennell before

9
No. 2020AP487-CR

and after shots were fired and drove Fennell to the hospital minutes later. This
was corroborated by the hospital security footage, which showed Velazquez’s
vehicle arriving at the hospital just four minutes after police were dispatched to the
scene of T.H.’s murder, from a direction consistent with 84th and Congress.
Velazquez confirmed the location of the shooting, and said that she heard gunshots
coming from two or three guns.

¶23 Second, officers had reason to believe that the Kyocera cellphone
belonged to Fennell. As documented in Detective Johnson’s affidavit, Velazquez
gave the phone to the officers interviewing her, and she told the officers that it
belonged to Fennell. Fennell does not challenge that Velazquez’s statement
provided probable cause that the Kyocera phone belonged to him.

¶24 Third, based on the facts discussed above, there is a fair probability
that Fennell had access to the Kyocera phone in the hours leading up to the
homicide. As stated above, Velazquez and Fennell were in the car together in the
early morning hours of November 22, 2015, both before and after T.H. and
Fennell were shot. Fennell was suspected in a crime, and there is a fair probability
that he used his phone to communicate with others about the commission of that
crime. This remains true even if the phone had been in Velazquez’s car at the
precise moment that T.H. and Fennell were shot, or if Fennell had asked
Velazquez to keep the phone in her purse.

¶25 Finally, Detective Johnson’s affidavit explained that, in his
experience, cellphones often contain information relevant to the commission of a
crime, including “the contact information for co-conspirators and associates,” and
“text messages and emails discussing crimes and inquiring about law enforcement
efforts and news reports.” Fennell does not attempt to refute any of these points.

10
No. 2020AP487-CR

He instead argues that “all cellphones theoretically could contain evidence of a
crime,” and that the logic behind the issuance of the search warrant in this case
could extend to anyone else’s cellphone. This argument fails to account for the
fact that Fennell was himself at the scene of the crime, was a suspect in the
homicide, and had access to the phone in the hours leading up to the homicide.
These particular facts supply the nexus between the crime and the phone that
officers wanted to search.

¶26 For these reasons, we conclude that the issuing magistrate made a
commonsense determination that there was probable cause that a search of the
Kyocera cellphone would uncover evidence linked to the commission of a crime.
See Silverstein, 378 Wis. 2d 42, ¶22. We now address Fennell’s remaining
arguments to the contrary.

¶27 Fennell argues that any nexus between the Kyocera cellphone and
the crime is undermined by the affiant’s failure to mention that Fennell had a
second cellphone in the pants pocket of the clothing he wore to the hospital. We
are not persuaded. It is not clear from the record when officers became aware of
the existence of a second phone, and we cannot determine whether it was before or
after they sought the search warrant. Either way, the existence of a second phone
does not undermine a finding of the probable cause to search the Kyocera
cellphone. At most, there would have been probable cause to search the contents
of both phones.

¶28 Fennell next cites Riley v. California, 573 U.S. 373 (2014). He
argues that “[m]odern cellphones are not just another technological convenience,”
and that, “[w]ith all they contain and all they may reveal, they hold for many
Americans the privacies of life.” We agree. That is why, in most circumstances,

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No. 2020AP487-CR

we require police to obtain a warrant from a neutral and detached magistrate
before searching a cellphone. Id. at 382; see also State v. Carroll, 2010 WI 8,
¶27, 322 Wis. 2d 299, 778 N.W.2d 1. However, once law enforcement has gone
through the warrant process and successfully obtained a warrant from such a
magistrate, courts should not apply a “‘grudging or negative attitude’” when
reviewing a magistrate’s decision to issue a warrant, nor should a reviewing court
invalidate a warrant “‘by interpreting the affidavit in a hypertechnical, rather than
commonsense, manner.’” Higginbotham, 162 Wis. 2d at 991, 992 (citations
omitted); see also Carroll, 322 Wis. 2d 299, ¶52.

¶29 Fennell’s final argument to the contrary is that the search warrant
was overbroad because it did not limit the search of the Kyocera phone to specific
types of data and a specific time frame. However, an overbroad search warrant
“‘can be cured by redaction.’” State v. Sveum, 2010 WI 92, ¶38, 328 Wis. 2d 369,
787 N.W.2d 317 (citation omitted). In so doing, a court will strike from the
warrant “‘those severable phrases and clauses that are invalid for lack of probable
cause or generality,’” and it will preserve “‘those severable phrases and clauses
that satisfy the Fourth Amendment.’” Id. (citation omitted). As a result, even if
the warrant to search the phone should have been limited to certain kinds of data
or a specified time frame, Fennell does not explain why this would require the
suppression of text messages that were sent in the hour and a half immediately
before the homicide. Accordingly, we address this underdeveloped argument no
further. See State v. Pettit, 171 Wis. 2d 627, 632, 492 N.W.2d 633 (Ct. App.
1992) (we need not address arguments that are insufficiently developed).

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No. 2020AP487-CR

B. Prejudice

¶30 To establish prejudice, the defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland at 694. Where, as here,
the defendant fails to show that his trial counsel rendered deficient performance,
we need not address prejudice. Id. at 700. Even so, we pause to explain why we
agree with the circuit court’s conclusion that Fennell was not prejudiced by trial
counsel’s failure to attempt to suppress the text messages.

¶31 Jackson and Fennell presented conflicting narratives at trial about
whether they had made an agreement to burglarize T.H. Fennell argues that the
case turned into a credibility contest between Jackson and Fennell and that the text
messages were the lynchpin in the case against him.

¶32 We agree with Fennell that the text messages constituted strong
evidence that he and Jackson had agreed to a plan to rob T.H. We also agree that,
based on the text messages, the jury could have inferred that the version of events
presented by Jackson’s testimony was closer to the truth than the version of events
presented by Fennell’s testimony.

¶33 However, the text messages were not the only strong evidence
implicating Fennell in the homicide—there was other equally strong evidence that
was entirely independent from the search of the Kyocera cellphone. Among other
things, Fennell told police on multiple occasions that he had been robbed and shot
by masked men near 10th and Keefe; he denied that he had been near 84th and
Congress until after he learned that police had DNA evidence placing him at the
scene of the homicide. The jurors could have inferred that Fennell fabricated the
story about masked men, and based on this fabrication, they could have drawn an

13
No. 2020AP487-CR

inference of guilty knowledge. See State v. Kreuser, 91 Wis. 2d 242, 249, 280
N.W.2d 270 (1979). Additionally, T.H.’s wife testified that a man in a red hoodie
knocked on her door several hours before her husband was shot and then claimed
to have pressed the wrong doorbell; hours later, Fennell was admitted to the
hospital wearing a red hooded sweatshirt with a combination of his and T.H.’s
blood on it. Perhaps most damning is that T.H.’s DNA was found under Fennell’s
fingernails. When asked to explain this fact, Fennell testified that he bumped into
T.H. as he was running away from a shootout, but the jury would have been left
questioning how such an encounter could have resulted in T.H.’s DNA being
transferred to Fennell’s fingernails. Based on all the above, we agree with the
circuit court that “there is no reasonable probability that the outcome of the trial
would have been different” without the text messages.

¶34 In sum, we agree with the circuit court that the record conclusively
demonstrates that Fennell is not entitled to a new trial based on his claim of
ineffective assistance of counsel. Accordingly, the court properly denied his
postconviction motion without holding a Machner hearing. Bentley, 201 Wis. 2d
at 309-10; Allen, 274 Wis. 2d 568, ¶9.

II. Sufficiency of the Evidence

¶35 We now turn to Fennell’s challenge to the sufficiency of the
evidence to support his conviction. In reviewing such a challenge, we consider the
evidence “in the light most favorable to the State,” and we will not reverse the
conviction unless the evidence is so lacking “in probative value and force that it
can be said as a matter of law that no trier of fact, acting reasonably, could have
found guilt beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493,
501, 451 N.W.2d 752 (1990). If more than one reasonable inference can be drawn

14
No. 2020AP487-CR

from the evidence, we will draw the inference supporting the verdict unless the
evidence is incredible as a matter of law. State v. Alles, 106 Wis. 2d 368, 376-77,
316 N.W.2d 378 (1982).

¶36 Fennell argues that the evidence was insufficient to support his
conviction. However, none of his arguments overcome the deference we give to
jury verdicts.

¶37 First, Fennell argues that there was no evidence that he received the
inculpatory text messages from Jackson on the morning of the homicide, and
Fennell himself testified that he did not receive them. But Fennell does not
explain why this matters. Even if the jury credited his testimony—which it was
not required to do—the jury did not have to believe that Fennell actually received
the messages to find him guilty of the charged offense. And, as Fennell implicitly
acknowledges, the text messages provide strong contemporaneous evidence that
Jackson believed he and Fennell had reached an agreement to rob T.H. This
remains true even if Fennell did not actually receive the text messages that
Jackson sent.

¶38 Second, Fennell argues that there was no physical evidence to show
that he was the shooter in this case. Fennell points to evidence that shortly after
5:00 a.m., on the morning of the homicide, Jackson attempted to give his girlfriend
a firearm and was very upset because he believed that Fennell had been killed in a
shootout. According to Fennell, this evidence suggests that Jackson was at the
crime scene and was the person who pulled the trigger.

¶39 This argument fails for two distinct reasons. The jury could have
easily drawn a reasonable inference that Fennell shot T.H. based on the direct and
circumstantial evidence provided by the State during the trial. But even if the jury

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No. 2020AP487-CR

did not draw that inference, the jury was not required to find that Fennell pulled
the trigger in order to convict him of first-degree reckless homicide as a party to a
crime. A defendant charged as a party to a crime can be found guilty based on his
co-actor’s actions if the defendant knowingly assisted the person who committed
the crime, or if the defendant was ready and willing to assist and the person who
committed the crime knew of his willingness to assist. See Mentek v. State, 71
Wis. 2d 799, 805-06, 238 N.W.2d 752 (1976). Here, the text messages and
Jackson’s testimony provide powerful evidence that Jackson knew that Fennell
was knowingly assisting Jackson with the plan to rob T.H. by gunpoint, and the
evidence was sufficient to find that the actions by Fennell or his co-actors satisfy
the elements of first-degree reckless homicide.8

¶40 Finally, Fennell argues that Jackson was the main witness against
him, and his testimony was “patently incredible.” The fact that Jackson and
Fennell’s testimony was inconsistent did not render Jackson’s testimony incredible
as a matter of law. See State v. Vollbrecht, 2012 WI App 90, ¶28 n.18, 344
Wis. 2d 69, 820 N.W.2d 443 (explaining that testimony is “inherently or patently
incredible” if it is “‘in conflict with the uniform course of nature or with fully
established or conceded facts’” (citation omitted)). It instead meant that the jury
was required to sort out the conflicts in their testimony and determine which story
was more credible. It is the province of the jury, not an appellate court, to resolve

8
There are four elements to reckless homicide: (1) that the defendant caused someone’s
death (2) by actions that created an unreasonable and substantial risk of death or great bodily
harm, (3) that the defendant was aware of the risk and (4) that the circumstances showed utter
disregard for human life. State v. Edmunds, 229 Wis. 2d 67, 75, 598 N.W.2d 290 (Ct. App.
1999). Fennell does not specifically challenge the sufficiency of the evidence to satisfy any of
these elements.

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No. 2020AP487-CR

conflicts in the evidence and decide whether to credit witness testimony.
Poellinger, 153 Wis. 2d at 503.

¶41 In sum, there is ample evidence from which a reasonable jury could
have convicted Fennell of first-degree reckless homicide as a party to a crime.

CONCLUSION

¶42 For all the reasons above, we conclude that the circuit court did not
err when it denied Fennell’s postconviction motion without a hearing, and that the
evidence was sufficient to support Fennell’s conviction. We affirm.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

17