COURT OF APPEALS

DECISION

DATED AND FILED

May 25, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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.
No. 2020AP487-CR

3

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 longrunning 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.
No. 2020AP487-CR

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¶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.”4Jackson 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.

3

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

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.
No. 2020AP487-CR

5

¶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
No. 2020AP487-CR

6

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.
No. 2020AP487-CR

7

¶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.
No. 2020AP487-CR

8

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 
No. 2020AP487-CR

9

“‘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 
No. 2020AP487-CR

10

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. 
No. 2020AP487-CR

11

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,
No. 2020AP487-CR

12

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).
No. 2020AP487-CR

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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 
No. 2020AP487-CR

14

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 
No. 2020AP487-CR

15

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 
No. 2020AP487-CR

16

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.
No. 2020AP487-CR

17

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.