State v. Blabaum

984 N.W.2d 748 (Table)

2023 WI App 1

STATE of Wisconsin, Plaintiff-Respondent,

v.Jeffrey L. BLABAUM, Defendant-Appellant.

Appeal No. 2022AP111-CR

Court of Appeals of Wisconsin.

November 10, 2022

BLANCHARD, P.J.¹

¶1 Jeffrey Blabaum appeals a judgment of conviction, following a jury trial, for misdemeanor theft of movable property, and the circuit court's order denying his postconviction motions without holding an evidentiary hearing. Blabaum argues that: (1) the State failed to establish "territorial jurisdiction" over him for the theft charge; (2) the circuit court erroneously exercised its discretion in denying a request for a mistrial based on the admission of unfairly prejudicial evidence; (3) the circuit court committed "plain error" in excluding exculpatory evidence, in allowing unfairly prejudicial evidence, and in allowing the prosecutor to make improper arguments to the jury; (4) these same "plain errors" merit a new trial in the interest of justice; and (5) the circuit court erred in failing to hold an evidentiary hearing on his motions for postconviction relief based on alleged ineffective assistance of trial counsel. I affirm for the reasons explained in the discussion below.

BACKGROUND

¶2 Blabaum was charged with disorderly conduct, which was alleged to have occurred in November 2019, and theft, which was alleged to have occurred in May 2020, with the same person identified as the victim in both criminal complaints. The cases were initially filed separately, but the State and Blabaum agreed with the circuit court that it should join the two cases for a single jury trial.

¶3 Regarding the disorderly conduct charge, the State alleged that on November 1, 2019, Blabaum "engage[d] in violent, abusive, boisterous, or otherwise disorderly conduct under circumstances in which such conduct tended to cause a disturbance." I identify the alleged victim using the fictitious initials A.B.

¶4 A.B. testified at trial, in pertinent part, regarding the alleged disorderly conduct as follows. She and Blabaum were in a romantic relationship for six years. They lived in Milwaukee and then moved to Tennessee. The relationship ended in September 2019, at which time A.B. made a hasty departure from Tennessee to Dodgeville, while Blabaum remained in Tennessee. She "only grabbed my clothing and my dog and drove my vehicle" from the shared residence in Tennessee, leaving her other belongings behind. On November 1, 2019, Blabaum visited A.B. at her Dodgeville residence for what A.B. thought would primarily involve Blabaum's return to A.B. of some of the property that she had left in Tennessee. Blabaum became angry and "very upset because I only wanted my things ... and cared about nothing else." After walking out of the residence, Blabaum "threw" a "wooden sign" in her direction, which landed on the ground a few feet from her, and he was also, in the words of the prosecutor as affirmed by A.B., "yelling or swearing."

¶5 Turning to the theft charge, the State alleged in a criminal complaint that on May 13, 2020, Blabaum "intentionally retain[ed] possession of a bench, pictures, and personal keepsakes," which were "the movable property of" A.B., "without consent and with intent to permanently deprive the owner of possession of the property." This was alleged to be a violation of WIS. STAT. § 943.20(1)(a) ; because the property as a whole was valued at less than $2,500, this was charged as a misdemeanor. See WIS. STAT. §§ 943.20(3)(a), 939.51(3)(a).²

¶6 A.B. testified at trial in pertinent part as follows regarding the alleged theft. On May 13, 2020, Blabaum sent a text to A.B. that included a photograph of an upholstered bench, with the following text:

Want this? I'm at Jim's. I'll be here for ten more minutes. It has [sic] some of your blankets and photos also. Come alone, it's all good[.]

A.B. had purchased the bench shown in the photo and, as of May 13, 2020, she considered it to be her possession. A.B. had previously told Blabaum that items that she wanted back from him included this bench, as well as "photos and blankets and stuff"; she also told him that he could keep various other items of hers. The "Jim" referred to in Blabaum's text was Blabaum's brother, who lived in Dodgeville.

¶7 A.B. planned to meet Blabaum as he offered in the text, and in that connection she called the local police department to request that an officer also be present. Based on her request, Officer Jared Weier was dispatched to the brother's house.

¶8 A.B. further testified that, after she arrived at the brother's house at the appointed time, Blabaum arrived, driving a pickup truck with a trailer in tow. It looked to A.B. from the photo in Blabaum's text that the bench was located in a trailer when the photo was taken. She believed that her bench was inside the trailer that Blabaum brought to the meeting based on the contents of the text, the accompanying photo, and the appearance of the trailer at the appointed time and place. But the trailer was not opened and A.B. was never able to directly confirm what was inside the trailer.

¶9 A.B. further testified that, after arriving on the scene, Blabaum "got very mad because I had brought a police officer with me and [Blabaum] said he would not give me my belongings. He would not get out of the truck and he eventually drove off." Before driving off, Blabaum "said he was going to destroy ... or burn ... and take off with" her property.

¶10 After 24 hours passed, with no further contact from Blabaum regarding the property, A.B. told the police that she had not received her property back from him. She never did get back from Blabaum the property she sought, except some of her high school yearbooks.

¶11 Blabaum did not testify at trial, and the defense did not call any witnesses.

¶12 The jury found Blabaum not guilty on the disorderly conduct charge and guilty on the theft charge.

¶13 Represented by new counsel, Blabaum filed a motion for postconviction relief alleging four instances of ineffective assistance of trial counsel. The circuit court held a hearing on this motion and gave oral rulings explaining why the court rejected each claim of ineffective assistance, without the need to hear evidence. Blabaum appeals.

DISCUSSION

¶14 I address in turn Blabaum's challenges to the theft conviction, providing additional background information as necessary to explain the arguments of the parties and my decisions.

I. TERRITORIAL JURISDICTION

¶15 Blabaum argues that the State failed to establish "territorial jurisdiction" over him for the theft charge. This argument lacks merit.

¶16 In a criminal prosecution, the State must establish " ‘its territorial jurisdiction over a defendant for charged crimes’ "—the "territory" being all land within the geographical boundaries of the state of Wisconsin, which of course includes Dodgeville. See State v. Anderson , 2005 WI 54, ¶22 n.5, 280 Wis. 2d 104, 695 N.W.2d 731 (quoting State v. Brown , 2003 WI App 34, ¶25, 260 Wis. 2d 125, 659 N.W.2d 110 ); see also WIS. STAT. § 939.03(1)(a) (territorial jurisdiction established if the defendant is alleged to have committed a crime, "any of the constituent elements of which takes place in this state"). "Territorial jurisdiction is an issue for the jury if it involves unresolved factual disputes; however, whether Wisconsin has jurisdiction under the law for a crime based on an undisputed set of facts is an issue of law" that is reviewed de novo. Anderson , 280 Wis. 2d 104, ¶22 n.5 (citing Brown , 260 Wis. 2d 125, ¶¶25-27 ).

¶17 Blabaum acknowledges all of the following:

• Given the elements of the offense of theft, the State could establish territorial jurisdiction through proof that Blabaum retained A.B.’s property while the property was located in Wisconsin.

• Territorial jurisdiction may be proven through circumstantial evidence, and therefore it is not necessarily fatal to the State's position on this issue that there was no evidence that anyone actually observed A.B.’s belongings inside the trailer that Blabaum towed to his brother's house.

• The State presented evidence that Blabaum sent the text described above and that he arrived at the time and place (in Dodgeville) that he had designated in the text for the announced purpose of returning to A.B. the bench and other items of her property.

Taking these acknowledgements together, I conclude that the text, when considered together with other evidence, provided a strong basis to establish territorial jurisdiction. Blabaum makes two counterarguments, both without merit.

¶18 First, Blabaum purports to rely on the corroboration rule. Under this rule, a conviction cannot rest solely on a defendant's confession. See State v. Verhasselt , 83 Wis. 2d 647, 661, 266 N.W.2d 342 (1978) ; see also State v. Bannister , 2007 WI 86, ¶26, 302 Wis. 2d 158, 734 N.W.2d 892 (" ‘If there is corroboration of any significant fact, that is sufficient.’ ") (quoted source omitted). Blabaum argues that his text to A.B. offering to return property to her is in the nature of an admission, "which would require additional corroboration to prove the commission of a crime." I assume without deciding that the corroboration rule squarely applies in the context of determinations of territorial jurisdiction. But this assumption does Blabaum no good because the admission here was corroborated in multiple ways. This included A.B.’s testimony about her history with Blabaum and about her expressions to him of continuing interest in getting back some of the property she left with him when she hastily left Tennessee. It also included multiple sources of evidence regarding Blabaum's conduct, both in allegedly initially offering to return property to her on November 1, 2019, and then his alleged conduct on May 13, 2020, including allegedly telling her in anger that he was going to destroy her property.

¶19 Second, Blabaum asserts that A.B. "did not testify that she had any familiarity with the trailer that Blabaum was towing." Blabaum fails to...