State v. Schwerdtfeger, Appeal Nos. 2018AP1322-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: PER CURIAM.
• Citation: 949 N.W.2d 879 (Table),394 Wis.2d 187,2020 WI App 60
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Chadwick P. SCHWERDTFEGER, Defendant-Appellant. State of Wisconsin, Plaintiff-Respondent, v. Paula L. Schwerdtfeger, Defendant-Appellant.
• Decision Date: 26 August 2020
• Docket Number: 2018AP1323-CR,Appeal Nos. 2018AP1322-CR

394 Wis.2d 187
949 N.W.2d 879 (Table)
2020 WI App 60

STATE of Wisconsin, Plaintiff-Respondent,
v.
Chadwick P. SCHWERDTFEGER, Defendant-Appellant.

State of Wisconsin, Plaintiff-Respondent,
v.
Paula L. Schwerdtfeger, Defendant-Appellant.

Appeal Nos. 2018AP1322-CR
2018AP1323-CR

Court of Appeals of Wisconsin.

DATED AND FILED August 26, 2020

PER CURIAM.

¶1 Chadwick P. Schwerdtfeger and Paula Schwerdtfeger, husband and wife, each appeal from a judgment of conviction and order awarding restitution payments to the victims of their crimes and from an order denying their postconviction motion for stay of restitution. The Schwerdtfegers raise numerous challenges to the sufficiency of the evidence, evidentiary rulings, and restitution. We reject each and affirm.

BACKGROUND

The Land Contract, Eviction, and Damages

¶2 Most of the material facts are not in dispute. Additional facts will be provided as needed.

¶3 After residing in a Town of Whitewater property under a lease for a year, the Schwerdtfegers agreed to buy the property, in December 2007, pursuant to a land contract from the vendors, GP and AP, for $350,400.¹ The Schwerdtfegers began making monthly payments on January 1, 2008. The outstanding balance was due May 1, 2023. The land contract said nothing about the personal property that the vendors left at the premises, such as a plasma TV, a hot tub, an above-ground swimming pool, a pool table, and kitchen appliances.

¶4 About two years passed without incident. But, by late 2010, the Schwerdtfegers had begun falling behind on payments. Consequently, in March 2011, the vendors commenced a foreclosure action, which immediately resulted in a March 10, 2011 order enjoining the Schwerdtfegers from causing any damage to any part of the property.² Per the order, no person could remove or damage "personal property left on the above-described real property by [vendors]," and it specifically identified a few items, such as the TV and hot tub. It required that a copy of the order "be served upon [the Schwerdtfegers] along with an authenticated copy of the Summons and Complaint." Per that action, on September 22, 2011, the court concluded that the defendants were in default, entered a judgment of strict foreclosure, and reiterated its prior order that no damage or waste should be committed on or to the property.

¶5 In April 2011, the vendors inspected the Whitewater property and took photographs. GP reported that the property appeared undamaged.

¶6 An eviction order required the Schwerdtfegers to vacate by December 6, 2011. On December 5, 2011, Deputy Jacob Skibba of the Walworth County Sheriff's Department went to the Whitewater property and spoke with the vendors regarding the eviction order and claimed property losses.

¶7 In mid-December, the vendors provided the police a twelve-page "inventory of the property damage and items missing."³ As alleged by the vendors, missing items included a gas fireplace, TV monitors, a surround-sound speaker system, and landscaping bricks. Damaged items included the kitchen counters with cut marks, several security devices torn from windows, walls in many of the rooms had holes, scrapes, and dents, and trash and spoiled food were left throughout the house.

¶8 Police spoke with Chadwick, who admitted that he took the gas fireplace, but noted that "there were five items on the list of property that [were] supposed to stay at the house, and the fireplace was not one of them," i.e., the vendors received the five things that they said they wanted. He said that other claimed damage was incidental, a result of being "messy."

The Criminal Charges and Defenses

¶9 The State charged Chadwick with (1) theft of movable property over $10,000, as a party to a crime and (2) felony criminal damage to property, as a party to a crime (Walworth County case no. 2013CF62). The State charged Paula with (1) theft of movable property over $10,000, as a party to a crime, (2) felony criminal damage to property, as a party to a crime, and (3) criminal damage to property (Walworth County case no. 2013CF63).

¶10 Paula pled no contest to count three, criminal damage to property, and was convicted on that count. The other charges were dismissed. Chadwick chose to go to trial.

¶11 During the pretrial conference, the defense argued that GP should not be allowed to testify about the value of missing or damaged property because she was not an expert. The court took an offer of proof from GP, who explained that she was a co-owner of the Whitewater property, was present for inventories of the property in April and December 2011, was aware of items that were damaged, and was aware of the costs associated with repairing or replacing those items. The circuit court decided that, as an owner of the property and being familiar with it, GP had a sufficient basis to provide a lay opinion as to value.

¶12 Chadwick's primary defense was that he did not know that the vendors were still claiming ownership of the property items and that they had abandoned them. Because "intent" to steal someone else's property is a required element of the first two charges, he claimed he was innocent. He exercised his right not to testify at the trial.

The Criminal Trial

¶13 The State showed that the victims had commenced a foreclosure action and that action included a March 2011 order explicitly directing the defendants not to damage the property, fixtures, or improvements, or remove or damage the personal property left by the victims. The State also presented testimony about the court's October 14, 2011 foreclosure order, which extinguished any alleged ownership interest that the Schwerdtfegers claimed in the personal property and conveyed the Whitewater property (including personal property) to the victims. The Schwerdtfegers received notice of the order.

¶14 According to GP, Chadwick wanted to modify the parties’ land contract agreement so that "he didn't pay any interest for 13 years." The victims’ refusal eventually led to the foreclosure action and the court's injunction, as Chadwick had threatened to take the victims’ house apart "screw by screw." GP explained that Chadwick was "angry because we would not agree to his terms." She testified that he threatened to squat "in the house for two years" and told GP "to watch [her] back." GP stated Chadwick said she "had no idea what [the Schwerdtfegers] were capable of doing."

¶15 Skibba testified that Chadwick said that the victims "had received everything back that they were supposed to, including a TV, entertainment center, and the like." Detective Troy Pagenkopf also testified, indicating that Chadwick admitted that he took the gas fireplace because it was not listed on the court's order. Pagenkopf opined that Chadwick was "upset over the whole situation."

¶16 As for damages, GP testified to the following: gouges to the kitchen countertop were not present in April 2011. The countertop needed to be replaced, rather than repaired, because "[t]he cuts in it were deep ... [y]ou had to replace it." The cost was $2845. The refrigerator was damaged, where the "whole insides were out," and the "water lines were cut." It was irreparable and had to be replaced. There was damage to various security devices on the windows, with "hookups" missing for some and security cameras gone. It would cost $2304.39 to replace the security system.⁴ The "brains" of the plasma TV were missing, which she was unable to replace, requiring a new TV for $4000. Cuts to the felt on the pool table that were not present in April cost $489.99 to repair. There was new damage to the carpeting: it was "full of urine" with "lots of stains" and dried vomit. The carpet in one room had "beer cans, burn holes, [and] different kinds of trash" all over it, and it was "impossible to get clean." Replacing the carpeting cost $8142.75.

¶17 GP testified that she did not give Chadwick permission to take or damage any of the above items from the Whitewater property.

¶18 The jury convicted Chadwick on both counts.⁵ The circuit court withheld sentence on both counts, imposed one year of probation on count one and three years of probation on count two, with ninety days’ conditional jail time on count two. The court ordered restitution of $75,867.77, noting that Chadwick could request a hearing on the matter. The Schwerdtfegers requested a hearing.⁶

The Criminal Restitution Hearing

¶19 The case proceeded to a consolidated restitution hearing, with Court Commissioner Gerad Dougvillo assigned to hear the matter and make proposed findings and conclusions. The victims initially sought $106,590.96, including attorneys’ fees. Farmers Insurance, which issued a policy taken out by the defendants on the property, paid $75,867.77 to the victims for the damages they incurred. Consequently, Farmers Insurance also claimed restitution.

¶20 For two days, the court commissioner took testimony from both AP and GP, as well as Dale Dobbratz, a Farmers Insurance employee. "The court found the testimony from all of the stated parties to be credible and reliable."

¶21 The commissioner made the following findings of fact. AP "testified at length regarding his involvement with the property in question and the losses incurred by himself and his wife." He also "presented a packet in excess of 500 pages detailing the...