State v. Devon F. Neuman

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 30, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1075-CR Cir. Ct. No. 2018CF44

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DEVON F. NEUMAN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: TRICIA L. WALKER, Judge. Affirmed.

Before Gundrum, P.J., Neubauer, and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1075-CR

¶1 PER CURIAM. Devon F. Neuman appeals a judgment convicting
him, after a jury trial, of first-degree intentional homicide with use of a dangerous
weapon, as a party to a crime, and carrying a concealed weapon, both as a
repeater. Neuman argues: (1) the circuit court erroneously exercised its discretion
in admitting a hearsay statement; (2) the circuit court erroneously exercised its
discretion in admitting song lyrics Neuman wrote in jail; and (3) there is
insufficient evidence to support the jury’s verdict. We affirm.

¶2 The victim’s body was discovered in a gravel parking lot across the
street from the Press Box Tavern in Fond du Lac early on the morning of
September 23, 2017. He had been shot to death. Six weeks later, Neuman was
arrested on unrelated drug charges. During the ensuing investigation, Neuman and
co-defendant Jesse Schultz were implicated in and charged with crimes related to
the victim’s murder. After a seven-day trial, a jury convicted Neuman of
first-degree intentional homicide and carrying a concealed weapon but acquitted
him of armed robbery.

¶3 Neuman first argues that the circuit court erroneously exercised its
discretion in admitting inculpatory statements that co-defendant Jesse Schultz
made to John1 under the statement-of-recent-perception hearsay exception, WIS.
STAT. § 908.045(2) (2023-24).2

¶4 Under the statement-of-recent-perception hearsay exception, a
statement by an unavailable declarant is admissible if the statement was not

1
Pursuant to Wis. Stat. Rule 809.86(4), we use a pseudonym instead of the witness’s
name.
2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP1075-CR

instigated by someone engaged in investigating or litigating the event and was
made in good faith with no anticipation of litigation. See WIS. STAT.
§ 908.045(2). In addition, the statement must narrate, describe, or explain an
event or condition recently perceived by the declarant while the declarant’s
memory was clear. These safeguards “assure accuracy and trustworthiness” when
more time has elapsed than under the present-sense or excited-utterance hearsay
exceptions. State v. Weed, 2003 WI 85, ¶15, 263 Wis. 2d 434, 666 N.W.2d 485.

¶5 We review the circuit court’s decision to admit or exclude evidence
for an erroneous exercise of discretion. State v. Sullivan, 216 Wis. 2d 768, 780,
576 N.W.2d 30 (1998). We will uphold the court’s decision if it examines the
relevant facts, applies the correct legal standard, and reaches a rational conclusion.
Id. at 780-81.

¶6 At trial, John testified that Schultz described shooting the victim the
morning after the victim was murdered. John testified that he was hanging out
with Schultz, attempting to procure drugs, when Shultz said that he got into a fight
the previous night near the Press Box Tavern. Shultz said that he shot the person
with whom he was fighting with a gun Neuman gave him.

¶7 Here, Schultz asserted his Fifth Amendment privilege and refused to
testify at Neuman’s trial, rendering him unavailable. The circuit court’s written
order thoroughly addressed the criteria of WIS. STAT. § 908.045(2), finding that
Schultz’s statements to John were made in confidence to a friend when Schultz
had no reason to foresee litigation; were made “within hours of the event” when
Schultz’s memory was fresh; and recounted perceptions of the shooting shortly
after it occurred. The court also found that the statements bore indicia of
reliability because they were against Schultz’s penal interest and were

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spontaneously made. In addition, the court found that the statements were relevant
to whether Neuman was present and involved in the shooting of the victim.

¶8 The circuit court’s written ruling shows that it applied the correct
legal standards to the facts of this case and based its decision on specific findings
about the timing, spontaneity, and substance of Schultz’s statements. Therefore,
we conclude that the court properly exercised its discretion in concluding that
Schultz’s statements were admissible.

¶9 Neuman next argues that the circuit court erroneously exercised its
discretion when it allowed into evidence two pages of handwritten poetry or lyrics
Neuman composed while in jail. One page stated: “This is my confession[.] My
weapons an FN[.] My pistol is my best friend[.]” The other page included: “Cuz I
stay armed and deadly[,] [h]old you weapon steady, cuz I stayed armed and
deadly…. Disrespect me my pistol bang [w]hile at your head aimed.”

¶11 Neuman first argues that the lyrics were not relevant to the case.
Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” See WIS. STAT. § 904.01. The
circuit court said it made its best effort to separate song lyrics, which were not
admissible, from writings that appeared to be statements or confessions by
Neuman. It concluded that two of the writings the State sought to introduce were
admissible because they were personalized, reflecting specific aspects of
Neuman’s own circumstances—namely, regular firearm possession and
willingness to use a firearm. The statements made it more probable that Neuman
routinely carried a gun and that he was willing to use it. Accordingly, the court

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did not erroneously exercise its discretion when it concluded that the lyrics cleared
the low relevancy threshold of § 904.01.

¶12 Neuman next argues that even if the writings were relevant, they
should have been excluded due to the danger of unfair prejudice. Even relevant
evidence may be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice[.]” WIS. STAT. § 904.03. The circuit court stated
that while it was sensitive to the admission of prejudicial evidence, all criminal
prosecutions involve some prejudicial information. In balancing under § 904.03,
the court acknowledged that rap‐style lyrics can be inflammatory but found the
probative value of two writings—Neuman’s own words about his “best friend”
firearm and his willingness to shoot anyone in his way—substantially outweighed
any unfair prejudice. Because the court applied the correct legal standards,
examined the relevant facts, and articulated a rational, legally supported reasoning
process, it did not erroneously exercise its discretion in admitting the evidence.

¶13 Neuman next argues that there was insufficient evidence to support
the verdict. He argues that John’s testimony, which was the only testimony
directly tying him to the crime, was patently incredible. He also contends that
there was no physical evidence linking him to the crime scene and no weapon was
ever found.

¶14 In reviewing the sufficiency of the evidence, we consider whether
the evidence, direct and circumstantial, is sufficient to convince a rational trier of
fact “beyond a reasonable doubt” of the defendant’s guilt. State v. Poellinger, 153
Wis. 2d 493, 507, 451 N.W.2d 752 (1990). In making this determination, we must
consider the evidence in the light most favorable to the State. Id. All reasonable
inferences drawn from the evidence must be construed in favor of the verdict, and

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No. 2023AP1075-CR

this court will not reweigh evidence or substitute its judgment for that of the jury.
Id.

¶15 Although Neuman’s primary argument is that John’s testimony was
incredible, Neuman has provided no analysis to support this assertion. It is well
established that the credibility of the witnesses is a matter for the jury to decide.
State v. Perkins, 2004 WI App 213, ¶¶14-15, 277 Wis. 2d 243, 689 N.W.2d 684.
More importantly, the evidence adduced at trial was sufficient to support the jury’s
conviction. Surveillance footage placed Neuman and Schultz together walking
outside the Press Box Tavern minutes before the shooting occurred. A witness
testified that she saw three men walking toward the area where the victim was shot
shortly before hearing two gunshots. Schultz’s boot prints were found in the
gravel near the victim’s body. Schultz’s statements to John the morning after the
murder placed both him and Neuman at the scene and in the fight. Another
witness testified that Neuman showed him a gun the evening of the shooting.
Hours after the shooting, at 3:30 a.m., Neuman tried to contact the person who saw
him with a gun. Neuman also searched online for news about the shooting at
3:30 a.m. and again at 10:30 a.m. Jailhouse writings found in Neuman’s cell
suggested Neuman regularly carried a weapon and was willing to use it.

¶16 This combination of direct admissions, personalized writings, and
forensic footprints, taken as a whole, amply satisfies the Poellinger standard.
Because a rational jury could properly find, beyond a reasonable doubt, that
Neuman was present and provided the weapon, the evidence supporting his
convictions is sufficient.

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No. 2023AP1075-CR

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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