State v. Schultz
State v. Schultz
Opinion of the Court
¶ 1. Donald Schultz appeals a judgment of conviction, entered following a jury trial, for
BACKGROUND
¶ 2. On July 22, 2007, Lawrence Feichter arrived at the Cornell community center in Chippewa County, Wisconsin. He found the garage door ajar and musical equipment worth several thousand dollars missing.
¶ 3. Cornell had no officer on duty when the theft was discovered, so Deputy Sheriff Christopher Kowalczyk initially responded to Feichter's report. Feichter stated the theft occurred sometime after 6:00 p.m. on July 21, 2007, when he left the center for the evening. Feichter suggested Kowalczyk talk to Schultz, who intended to use some of the equipment to play recorded music at a birthday party in Barron, Wisconsin, on July 21. Douglas Carter, who owned some of the stolen property, planned to perform with Schultz, but Carter instead attended a nearby music festival.
¶ 4. Kowalczyk contacted Schultz and asked about the missing equipment. Schultz stated he did not know what Kowalczyk was talking about. He admitted he
¶ 5. Kowalczyk subsequently contacted Feichter, who told him Carter had not given Schultz permission to take the equipment. Feichter also indicated Carter received several text messages from Schultz on the evening of July 21.
¶ 6. Cornell Police Officer Stacey Canfield spoke to Feichter, who suspected Schultz of the theft and provided the names of individuals Feichter thought might have attended the birthday party on July 21. Several witnesses, including Schultz's cousin, saw Schultz at the party. One witness stated she helped a discjockey named Don unload a speaker matching the description of one stolen from the center. Another witness stated Schultz arrived after dark, and explained he was late because he had to get equipment from a friend.
¶ 7. Canfield interviewed Schultz in August 2007 at his place of employment in Barron County. She asked whether he knew anything about the stolen equipment. He replied he did not. Schultz denied sending the text messages to Carter the night of the theft. He also
¶ 8. On May 6, 2008, Schultz was charged in Chippewa County with burglary, felony theft, and two counts of obstructing an officer. The first obstruction count was based on Schultz's statements to Kowalczyk. The second was based on his statements to Canfield in August 2007.
¶ 9. Following a three-day jury trial, the State requested jury instructions on venue and possession of recently stolen property. The venue instruction was not included among the instructions the parties agreed to, and Schultz objected to its absence at the instruction conference. The circuit court refused to give the venue instruction, concluding any objection to venue must occur before trial. The court gave the standard instruction on possession of recently stolen property as circumstantial evidence, Wis JI — Criminal 173:
Evidence has been presented that the defendant possessed recently stolen property. Whether the evidence shows that the defendant knew the property had been stolen or participated in some way in the taking of the property is exclusively for you to decide. Consider the time and circumstances of the possession in determining the weight you give to this evidence.
The jury acquitted Schultz of burglary, but found him guilty of the remaining charges.
DISCUSSION
1. The Circuit Court Erred by Refusing to Instruct the Jury on Venue
¶ 10. Schultz first argues the circuit court erroneously exercised its discretion in failing to instruct on
¶ 11. The State claims the circuit court properly exercised its discretion because Schultz never asked the trial court to instruct the jury on venue. Instead, the State interprets Schultz's objection as a request to dismiss the obstruction charge stemming from Canfield's interview in Barron County. The transcript of the formal jury instruction conference clearly shows Schultz, the State, and the court all understood Schultz's request to be one for a venue instruction. Immediately after the court questioned whether the parties agreed on jury instructions, the State noted Schultz's objection to the absence of a venue instruction, and the parties repeatedly referred to the venue instruction during the ensuing discussion. We therefore reject the State's claim.
¶ 12. Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v. Corey J.G., 215 Wis. 2d 395, 409, 572 N.W.2d 845 (1998); Swinson, 261 Wis. 2d 633, ¶ 19. A defendant need not challenge venue, or request a venue instruction, before trial; instead, he or she may put the State to its proof and determine whether an instruction is warranted after hearing the evidence. The jury instruction conference is a permissible time at which to request a venue instruction. Accordingly, the court erred when it refused to so instruct the jury.
¶ 13. We must also determine whether to remand the obstruction charge for a new trial or to direct that a
¶ 14. We conclude Schultz must be acquitted of obstructing Canfield because the State presented insufficient evidence of venue. The State was required to prove venue in Chippewa County beyond a reasonable doubt. See Swinson, 261 Wis. 2d 633, ¶ 19. Although Schultz was charged and tried in Chippewa County, the State's evidence demonstrated his only act of obstruction toward Canfield occurred in Barron County. Generally, criminal actions must be tried in the county where the crime was committed. Wis. Stat. § 971.19(1).
¶ 15. Recognizing Chippewa County was an improper venue under the general rule, the State argues for application of Wis. Stat. § 971.19(2), which provides that where two or more acts are requisite to the commission of any offense, the trial may be in any county in which the acts occurred. In the State's view, Chippewa County is an appropriate venue because Schultz's statements in Barron County led to additional investigative steps in Chippewa.
¶ 16. We cannot accept the State's argument because the obstruction statute, Wis. Stat. § 946.41, clearly contains a temporal element that focuses on the officer's status at the time of the defendant's conduct. Obstruc
¶ 17. The State failed to present sufficient evidence of venue in Chippewa County to support Schultz's conviction for obstructing Canfield, and double jeopardy therefore precludes retrial. We remand for entry of a judgment of acquittal on the second obstruction charge.
2. Sufficient Evidence Supported Schultz's Conviction for Obstructing Kowalczyk
¶ 18. Schultz next argues his conviction for obstructing Kowalczyk is not supported by sufficient evidence because his statement did not impede Kowalczyk's investigation.
3. The Circuit Court Property Instructed the Jury on Possession of Recently Stolen Property as Circumstantial Evidence of Theft
¶ 19. Finally, Schultz claims the standard instruction on possession of recently stolen property as circumstantial evidence deprived him of a jury determination on whether the equipment seen at the party was actually stolen property. We disagree. A trial court generally has broad discretion when instructing a jury, and we will affirm so long as the instructions fully and fairly explain the relevant law. Horst v. Deere & Co., 2009 WI 75, ¶¶ 17-18, 319 Wis. 2d 147, 769 N.W.2d 536. The instruction contained the factually accurate statement, "Evidence has been presented that the de
By the Court. — Judgment affirmed in part; reversed in part, and cause remanded with directions.
Schultz sent a message at 6:25 p.m. on July 21 that read, "If you ain't going to do it just tell me don't leave me hanging a lot of people are counting on us." Three minutes later, Schultz sent, "I got his money if that's what you're worried about." At 7:54 p.m., Schultz insisted, "Just let me go get the stuff I will bring it back tomorrow night." Four minutes later, Schultz sent, "Come on man what the fuck did I do to you you told me this was going to be a done deal are you pissed about something?" At 8:04 p.m., Schultz sent, "I'm on my way up there to get it. If you don't want me to you better let me know now and save me a trip." Schultz sent his final message at 8:10 p.m., stating, "Leaving now, be there in about an hour."
Schultz also claims his statement to Canfield did not hinder her investigation, and the circuit court erred in restricting his cross-examination of Canfield. We need not reach these
We note the jurors were also instructed they were "the sole judges of the facts, and the Court is the judge of the law only."
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