State v. Shaw

• Docket Number: 2023AP697-CR
• Decision Date: 24 January 2024
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Troy Allen Shaw, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

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State of Wisconsin, Plaintiff-Respondent,
v.
Troy Allen Shaw, Defendant-Appellant.

No. 2023AP697-CR

Court of Appeals of Wisconsin, District II

January 24, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEAL from a judgment and an order of the circuit court for Sheboygan County: No. 2020CM278, ANGELA W. SUTKIEWICZ, Judge. Affirmed.

NEUBAUER, J. ^[1]

¶1 A jury convicted Troy Allen Shaw of criminal trespass to a dwelling, disorderly conduct, and obstructing an officer.

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Shaw appeals from the judgment of conviction and an order denying his postconviction motion, but challenges only the criminal trespass conviction. He argues the State committed plain error when it suggested to the jury in its closing argument that it could convict Shaw, who had been permitted to enter a house by a seventeen-year-old resident, of criminal trespass if it found that the teenager's father, who was not present when Shaw entered, did not consent to Shaw's presence. For the reasons explained below, this court concludes that the State's remarks, though improper, were not so egregious as to infect the trial with unfairness in violation of Shaw's due process rights under the doctrine of plain error. Moreover, even if the remarks did constitute plain error, they were harmless. Based on these conclusions, this court affirms.

BACKGROUND

¶2 The charges against Shaw arose out of events that occurred on March 30, 2020, in Sheboygan, Wisconsin. That day, according to the evidence at trial, two City of Sheboygan police officers responded to a call about an individual causing a disturbance at an apartment complex near the southern edge of the city. When the officers arrived, they spotted a man matching the individual's description in the complex's parking lot. One officer testified that the individual, later identified as Shaw, appeared "very agitated, excited, flailing his arms, yelling, shouting, ... angry and amped up." As the officers attempted to speak with Shaw, he walked away from them. Rather than follow him, the officers decided to speak with "witnesses and figure out what kind of a case we ha[d] first."

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¶3 Shaw crossed the street and ended up in the driveway of a single-family residence in which Gary and his seventeen-year-old daughter Joan lived.^[2]At the time, Gary was at work but Joan was at home with a friend. Joan testified that she observed Shaw standing in her driveway "kind of asking me to call the police," which prompted her to go outside and ask Shaw "what was going on." She testified that Shaw "asked to come inside because they were going to shoot him." Though Joan was unsure at that point who Shaw was concerned about, she let him in the house.

¶4 Back at the apartment complex, the two officers spoke with the person who made the 911 call and another witness. After those interviews ended, the officers were dispatched to Gary and Joan's house across the street in response to a 911 call placed by Shaw. When they arrived, they encountered Joan outside.

¶5 The State showed the jury video footage from the body cameras worn by the two officers. The footage showed Joan coming out of her house and confirming that Shaw was inside. She explained to the officers that she did not know Shaw but that he was worried the officers were going to shoot him and had asked Joan "if he could come in and [Joan] said 'sure, why not.'" Joan also confirmed that her father was not home. One of the officers asked Joan to go back into the house and tell Shaw to come outside. The officer then requested additional backup.

¶6 Joan testified that she went back into the house and told Shaw that the officers had a citation for him. According to her, Shaw expressed concern that

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the officers would shoot him and lifted his shirt to show her he did not have a weapon. Joan then went back outside, told the officers that Shaw was not willing to come out because he feared being shot, and then went back in the house. She testified on direct examination that she thought she told Shaw that he had to leave her house, but when asked on cross-examination if she was "[o]ne hundred percent sure" about that, she said she could not remember but that she was sure that her friend "did several times."

¶7 Joan and her friend came back outside but Shaw remained in the house, telling officers he was "going to stay in here" and wanted to talk to the sheriff. Several minutes later, Joan received a call from her father, Gary. Joan gave her phone to the officer, who explained to Gary that Joan had let Shaw in the house and that he had "barricaded himself in." At trial, the officer confirmed that based on her conversation with Gary, she understood that Shaw no longer had permission to be in his house. Gary testified initially that he did not know if he ever told the officer that Shaw did not have permission to be in his house, but on cross-examination he stated that he "believe[d he] stated that." Gary did give the officers permission to enter his house to remove Shaw.

¶8 The officer who spoke with Gary asked him to come home, ended the call, and then told another officer that Gary wanted Shaw "out of his house." Police then told Shaw multiple times that the owner of the house wanted him out. Shaw initially responded, "where is she?," an apparent reference to Joan, and then told the officers they "were on County property" and refused to come out. (In crossing the street from the apartment complex to Gary and Joan's residence, Shaw left the Sheboygan city limits.) He told the officers repeatedly that Joan had invited him into the house. After some additional back and forth with Shaw, officers forced open a door at the back of the house and forcibly removed him.

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¶9 Before closing arguments began, the trial court instructed the jury as to the elements of criminal trespass under WIS. STAT. § 943.14(2). The court instructed the jury that criminal trespass "is committed by one who intentionally remains in the dwelling of another without the consent of some person lawfully upon the premises, under circumstances tending to create or provoke a breach of the peace." It then informed the jury that the State had to prove, among other things, that "the defendant remained in the dwelling without the consent of someone lawfully upon the premises."

¶10 In its closing argument, the State reviewed the evidence that, in its view, proved this element beyond a reasonable doubt:

[W]e heard testimony from the 17-year-old daughter, [Joan] ... who indicated to us in her testimony that she's pretty sure that she told the defendant to get out of the house. She said she knows 100 percent that her [friend] told him to get out of the house multiple times. We also note he wasn't supposed to be in the house because the police officers told him, look, the father of this house told us to get you out of the house, and he came and testified to that effect.

... At that point in time, they then say, hey, look, we've talked to the dad, he said you've got to get out. Approximately 6-and-a-half minutes later ... is when the defendant, you can see, is being extracted from the residence. So he's got 6-and-a-half minutes to know that he does not have consent to be in the house, so that is true beyond a reasonable doubt.

The State returned to the issue of consent at the end of its argument on the trespass charge:

And, again, how did the defendant know he doesn't have consent? We know that because [Joan], the daughter, testifies that she's pretty sure she told him you can't be here, we're certain that [her friend] told him he can't be there, and the cops told him that he can't be here.

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¶11 In his closing argument, Shaw did not contest the facts of the incident, but argued that they created "confusion about who has consent, revokes consent, who's telling him that consent was revoked." He emphasized that Joan had "granted him permission to be in the house" and that he never heard "from anyone in authority with that house, [Gary] or [Joan]," "that he couldn't be there."

¶12 The jury found Shaw guilty of criminal trespass, disorderly conduct, and obstructing an officer. Shaw filed a postconviction motion arguing that the State had committed plain error in arguing that the jury could find him guilty of trespass "based on the lack of consent of an owner who was not on the premises." The postconviction court disagreed and denied that portion of Shaw's motion.^[3] It acknowledged that "the prosecutor misspoke when he was arguing to the jury," but stated that the prosecutor's remark about finding Shaw guilty based on Gary's expression of nonconsent "was not...