State v. Sveum

• Decision Date: 07 May 1998
• Docket Number: No. 97-2185-CR,97-2185-CR
• Citation: 220 Wis.2d 396,584 N.W.2d 137
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael A. SVEUM, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 137

584 N.W.2d 137

220 Wis.2d 396

STATE of Wisconsin, Plaintiff-Respondent, v. Michael A. SVEUM, Defendant-Appellant. ^d

No. 97-2185-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 9, 1998.

Opinion Released May 7, 1998.

Opinion Filed May 7, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert T. Ruth of Ruth Law Offices of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and David J. Becker, Assistant Attorney General.

Before EICH, C.J., and DYKMAN, P.J., and ROGGENSACK, J.

DYKMAN, Presiding Judge.

Michael Sveum appeals from a judgment convicting him of stalking, contrary to § 940.32(2) and (2m), STATS., harassment, contrary to § 947.013(1m)(b) and (1r), STATS., violating a harassment injunction, contrary to § 813.125(7), STATS., and criminal damage to property, contrary to § 943.01(1), STATS. He argues that he is entitled to a new trial on all counts because the trial court improperly denied the admission of exculpatory testimony. We conclude that the trial court properly exercised its discretion in ruling that the evidence was inadmissible hearsay. Sveum also argues that the evidence was insufficient to support the stalking and harassment convictions. We conclude that the evidence was sufficient to support the convictions. Accordingly, we affirm.

BACKGROUND

Sveum was charged with stalking and harassing Jamie Johnson, his former girlfriend, from April 16, 1996, until about April 29, 1996. He was also charged with violating a harassment injunction for contacting her personally and by telephone during this period. In addition, he was charged with criminal damage to property for damaging the automobile of Kurt Zweifel on April 16, 1996.

Johnson testified that she met Sveum at Zimbrick Buick in 1990, when they both worked there. They started dating in July 1991, and moved in together in September of that year. In July 1994, Johnson ended the relationship. She moved out of their shared living quarters and into an apartment on Carling Drive.

In the months after their breakup, Johnson saw Sveum several times wandering around her car and looking inside of it with a flashlight. In August 1994, Johnson bought a new car at Zimbrick Saturn because she knew that Sveum had a key to her old car. Johnson had the locks to her new Saturn changed after the dealership made Sveum a key for the car.

Johnson testified that on October 15, 1994, she went to a football game with Craig Swenson. After they arrived back at Johnson's apartment at 3:00 a.m., Johnson's door buzzer went off. Johnson looked out the window and saw Sveum standing outside. The buzzer continued to go off for a while more, and approximately fifteen minutes later the phone started to ring. Sveum left a message on Johnson's answering machine, stating that he knew someone was in the apartment and that if she did not pick up the phone and talk to him, she would be sorry.

Johnson testified that she went to her sister Lynn's house on October 16, 1994, and returned to her apartment at approximately 11:00 or 11:15 p.m. When Johnson entered her security-locked building, Sveum was inside. Johnson tried to run, but Sveum grabbed her and took her keys from her. He threatened to ruin her future relationships and stated that one day he might be hiding in the bushes and blow her head off. He eventually returned the keys to her and left.

The next day, October 17, 1994, Sveum telephoned Johnson twice at work around 8:00 a.m., but Johnson hung up. Johnson then went to court to get a temporary restraining order against Sveum. Later that night, Johnson saw Sveum looking inside her car with a flashlight. She called 911. After the police arrived, Johnson went outside and noticed that she had a flat tire.

On October 24, 1994, Johnson received an injunction ordering Sveum to avoid her residence and avoid contact with her. The injunction From October 16, 1994, to November 29, 1994, Johnson continued to receive hang-up telephone calls, so she had her telephone number changed to an unpublished number. She continued to receive hang-up telephone calls after she changed the number.

was to remain in effect until April 24, 1995.

Johnson testified that she moved from Carling Drive to Timberlake Trails on July 15, 1995. On August 26, 1995, she encountered Sveum at the Branch Street Retreat in Middleton. Sveum told her what her credit card balances were, what day she had moved, where she had been earlier in the week, and what she would do at night after she got home. He also told her that he had a couple pictures that she had thrown away into the garbage dumpster. He told her that she would not have a relationship as long as he could help it. When police searched Sveum's apartment on May 2, 1996, they found a piece of paper containing Johnson's social security number as well as information about her credit cards, Tyme card, and checking and savings account. They also found pictures of Johnson that Johnson testified she had thrown away.

On October 13, 1995, Johnson had a date with Gary Mobley. After they returned to her apartment, her phone started ringing, but the caller would hang up. Then her door buzzer would buzz, but nobody would be there. She subsequently realized that somebody had damaged Mobley's car. On October 25, 1995, Johnson received a second injunction ordering Sveum to avoid contacting her, her sister or her parents.

On April 16, 1996, Johnson went on a date with Kurt Zweifel, and they returned to her apartment at around 9:30 p.m. After their arrival, Johnson's telephone rang on five different occasions, but on each occasion the caller would hang up. After Zweifel had been in the apartment for approximately fifteen minutes, Johnson informed him that he should leave. Zweifel subsequently noticed what appeared to be a key scratch along the side of his car that had not been there before. After receiving the telephone calls, Johnson was very afraid because she though that Sveum would hurt her.

On April 22, 1996, Johnson received a telephone call from Renee Walls, who was a friend of Sveum. Walls testified that she told Johnson about a conversation she had with Sveum on April 16th or 17th. Sveum told Walls that he knew of Johnson's dates with Mobley, Swenson and Zweifel and that he had damaged each of their vehicles. Sveum also told Walls that he called Johnson's apartment the night of April 16 from a pay phone, and that he had used the pay phone several times before to call Johnson when she was on a date. Sveum said that he staked out Johnson's apartment almost every night and would check the mileage on her car. He told Walls that after Johnson changed her phone number, he dialed about one thousand telephone numbers sequentially, starting with the number of a friend who had just received a new phone number, until he reached Johnson's answering machine. Sveum said that he was going to prevent Johnson from having a relationship until she was thirty-years old, at which time Johnson would realize that there was no one else for her except him. After her conversation with Walls, Johnson called Detective Mary Ricksecker of the Madison Police Department.

Johnson testified as to her whereabouts from April 26, 1996, to April 29, 1996. On April 26, 1996, Johnson stayed home and watched television. On April 27, 1996, she went to a wedding. She returned home later that afternoon to pick up a friend to take to the reception, and she left again at approximately 6:00 p.m. She returned home at around 2:30 a.m. On April 28, 1996, she went to her parents' home around 11:30 a.m., and then went to her sister's house at approximately 6:30 to 6:45 p.m. She returned home at approximately 8:30 to 9:00 p.m. On April 29, 1996, Johnson drove to school at MATC after work. She was at school from approximately 5:00 to 7:00 p.m.

Walls testified that on April 30, 1996, she again talked to Sveum. Sveum told her that he observed Johnson watching television on April 26. He told her that Johnson was not home on April 27 at approximately 2:00 p.m., 8:00 p.m., or 2:00 a.m. the next morning, but that she arrived home at approximately Detective Ricksecker testified that on April 30, 1996, she attempted to follow Sveum to see if he attempted any contact with Johnson. Ricksecker was in a red Lumina at the time. That night, Ricksecker was driving near Johnson's residence when she saw Sveum sitting in a black Buick in a parking lot. When Ricksecker later returned to Sveum's vehicle, it was unoccupied. She later saw Sveum walking in the area.

2:45 a.m. Sveum checked Johnson's mileage at approximately 8:00 a.m. on April 28, and then went home. At approximately 7:00 p.m., Sveum went back and found Johnson at her sister's house. Johnson's car was still at her sister's house at 8:00 p.m. Sveum told Walls that Johnson went to school on April 29. Sveum further told Walls that on April 30, he intended to buy a car and then go by Johnson's apartment around 8:00 p.m.

Walls testified that on May 1, 1996, Sveum told her that he had been sitting in his car by Johnson's apartment when he saw Johnson come home with somebody. Then a red Lumina pulled in front of him, and someone got out and wrote down his license plate number. He got out of his car and ran, taking his binoculars with him. He then crawled between the apartment buildings and used the binoculars to look into Johnson's apartment. After Sveum saw a squad car, he ran to PDQ, where his sister and her boyfriend picked him up.

On May 2, 1996, police searched Sveum's apartment and found a 1996 calendar. Numbers written on several dates on the calendar closely coincide with what the odometer readings for Johnson's car may have been on those dates. In addition, the markings on several dates on the calendar coincide with where Johnson was or who she was with on those dates. On April 16, the day of Johnson's date with Kurt...