State v. Norman, 01-3303-CR.
| Decision Date | 01 July 2003 |
| Docket Number | No. 01-3303-CR.,01-3303-CR. |
| Citation | 664 N.W.2d 97,2003 WI 72,262 Wis.2d 506 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. John NORMAN, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Angela Kachelski and The Shellow Group, Milwaukee, and oral argument by Angela Kachelski.
For the plaintiff-respondent the cause was argued by Edwin J. Hughes, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
¶ 1.
This is a review of an unpublished decision of the court of appeals, affirming the judgment of conviction entered by the Circuit Court for Oneida County, Douglas T. Fox, Judge.1 The defendant, John K. Norman, was charged with six counts of falsifying corporate documents, in violation of Wis. Stat. § 943.39(1) (1999-2000),2 and four counts of theft, in violation of Wis. Stat. § 943.20(1)(a) and (b). The charges stemmed from allegations that the defendant falsified retail purchase agreements and established a commission-splitting scheme while working as an employee of Shoeder's Marine and Sports Center. Following a jury trial, the defendant was convicted of six counts of falsifying documents and two counts of theft.
¶ 2. The defendant appealed his convictions, arguing for relief on four separate grounds. These same grounds from the defendant's argument in this court.
¶ 3. First, the defendant claims that the circuit court erred when it admitted the preliminary hearing testimony of a witness who was not present at trial, in violation of his constitutional right to confrontation. The defendant asserts that preliminary hearing testimony may never be admitted at a criminal trial on the ground that Wisconsin case law allows a circuit court to prohibit cross-examination of a witness about credibility.
¶ 4. The court of appeals held that that admission of the unavailable witness's preliminary hearing testimony did not violate the defendant's constitutional right to confrontation. We agree with the court of appeals. The witness's memory, credibility, or bias was not at issue at trial. Consequently, the inability of the defendant to cross-examine the witness at the preliminary hearing with questions that went to memory, credibility, or bias did not present an unusual circumstance that undermined the reliability of the witness's testimony in the present case. ¶ 5. Second, the defendant claims that the circuit court erred when it excluded the hearsay testimony of a witness that the defendant sought to introduce as a prior inconsistent statement for purposes of impeachment. The court of appeals held that the error in excluding the prior inconsistent statements introduced by the defendant was harmless because defense counsel was able to effectively communicate the relevant information to the jury by other means. We agree with the court of appeals and conclude that it is beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.
¶ 6. Third, the defendant asserts that his right to a unanimous jury verdict was violated by the jury instruction that did not require that all members of the jury agree that the documents were falsified with the same criminal intent. Whether a jury instruction violates a defendant's right to a unanimous verdict involves a multi-step analysis. We conclude that the defendant has failed to develop his assertion and is not entitled to the court's consideration of this issue. We therefore hold that the circuit court did not err in instructing the jury.
¶ 7. Fourth, the defendant argues that the evidence presented at trial was insufficient to convict him beyond a reasonable doubt. On review of the evidence, we agree with the court of appeals that the defendant did not meet his burden of proving that the evidence, viewed most favorably to the State and the conviction, is so insufficient 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.
¶ 8. The facts are as follows. The defendant began as a salesperson at Shoeder's Marine and Sports Center (Shoeder's Marine) in 1995. He was promoted twice, eventually becoming the general manager. In that position and in his prior positions with Shoeder's Marine, the defendant worked principally on commission. He also received monetary bonuses and perks, including the use of snowmobiles and boats. In 1999, the defendant was making plans to open his own snowmobile and marina business, and sales personnel and mechanics of Shoeder's Marine agreed to work for him when he opened his business. Shoeder's Marine would be affected by this competition.
¶ 9. In October 1999, Keith Shoeder, the owner of Shoeder's Marine, reported to the police that the defendant had altered sales documents to suggest that customers had purchased more products than they actually did. The defendant was arrested and a search warrant was executed for his home. The search turned up a snowmobile and a boat that Shoeder's Marine records indicated had been sold to customers of the dealership.
¶ 10. The defendant was charged with fraud for falsifying purchase agreements and with theft of Shoeder's Marine property. The fraud charges and one of the theft charges stemmed from several incidents of falsifying retail purchase agreements. The general fact pattern, however, was the same in each instance. A customer would purchase equipment from Shoeder's Marine, or trade in old equipment for new equipment, and receive a purchase agreement that accurately reflected the purchase or swap.
¶ 11. The purchase agreement for the same transaction on file with Shoeder's Marine, however, would show the purchase of additional equipment or would fail to show that an item was traded in by the customer. The defendant would then take the additional equipment or trade-in for himself. Because Shoeder's Marine bookkeepers rely on the purchase agreements to keep track of the business's sales and inventory, altering the documents allowed the additional equipment to be removed from inventory lists.
¶ 12. The final theft charge was based upon an alleged commission-splitting scheme between the defendant and Dan Krehmeyer, a Shoeder's Marine salesperson. The defendant, as general manager, received a commission on all purchases whether he was the salesperson or not. The defendant apparently took advantage of this general commission by establishing a scheme in which he would let Krehmeyer sign the purchase agreement for some of the sales the defendant made, allowing the defendant to obtain his general manager commission, and then Krehmeyer would split his fifteen percent sales commission with the defendant as well.
¶ 13. At trial, the defendant testified that he took several products from Shoeder's Marine and falsified the purchase agreements to cover those items. The defendant, however, claimed that Keith Shoeder knew of his actions and gave him permission to take the products as job perks.3 According to the defendant, changing the purchase agreement was a method of accounting for the inventory, not fraud. The defendant denied that the commission-splitting scheme existed. Keith Shoeder disputed the defendant's account of the transactions.
¶ 14. The jury convicted the defendant on all six counts of falsifying documents and on two of the four counts of theft. He was acquitted of one count of felony theft and one count of misdemeanor theft.
¶ 15. Additional facts necessary for the resolution of each particular legal issue are included in the discussion of the legal issue.
¶ 16. The first issue raised by the defendant is that the circuit court erred when it admitted into evidence the preliminary hearing testimony of a witness, Barbara Park, who was not present at trial. The defendant claims that the admission of this testimony violated his right to confrontation as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution.4
¶ 17. At the preliminary hearing, Park testified that in 1998 she purchased a new Glastar motorboat from Shoeder's Marine.5 Then, in 1999, according to Park's testimony, she exchanged her used boat for a new Tracker Topper rowboat. Park made an even trade, paying only $11 for a license, which she paid in cash at the time of the exchange. Park further testified that she obtained a receipt which reflected her trade-in. She denied seeing or receiving a receipt or purchase agreement dated June 16, 1999, indicating a total purchase price for the rowboat as $1,004.81.6 Finally, Park testified that she never dealt with the defendant, only a salesperson named "Dan."
¶ 18. The defendant asked only three questions of Park on cross-examination at the preliminary hearing. The first question confirmed that Park dealt with Dan Krehmeyer both times she was at Shoeder's Marine. The other two questions probed whether the Glastar boat had a leaking problem before it was traded in.7 ¶ 19. The defendant objects to the admission of Park's preliminary hearing testimony at trial on two grounds.
[1]
¶ 20. First, the defendant's brief asserts, in passing and without explanation, that admitting Park's preliminary hearing testimony was error because Park was not "unavailable."
¶ 21. The State's motion to allow the reading of Park's preliminary hearing testimony was supported by an affidavit from the district attorney that Park suffered from a strangulated hernia and that her doctor advised her not to drive from her home in Indiana to Rhinelander. Park also declined an offer from the State to fly her to Rhinelander.
¶ 22. Wisconsin Stat. § 908.045(1) states that the former testimony of an unavailable witness is not excluded by the hearsay rule.8 Section 908.04(1)(d) defines unavailability of a witness as including situations...
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