State v. Tommy A. Crawford

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 6, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2021AP85-CR Cir. Ct. No. 2018CF3220

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TOMMY A. CRAWFORD,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: T. CHRISTOPHER DEE, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and White, J.

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. 2021AP85-CR

¶1 PER CURIAM. Tommy A. Crawford appeals a judgment of
conviction, following a jury trial, and an order denying a postconviction motion.
On appeal, Crawford contends that: (1) the trial court erred in allowing the State
to amend the information during the trial; (2) the evidence was insufficient to
establish that one of the victims suffered great bodily harm; (3) newly discovered
evidence warranted a new trial; and (4) Crawford’s codefendant’s sentence
constituted a “new factor,” or in the alternative, Crawford’s sentence was unduly
harsh. We reject Crawford’s arguments, and we affirm.

BACKGROUND

¶2 According to the criminal complaint, A.M.H. Sr. told police that on
February 24, 2018, in the City of Milwaukee, as he got out of his car, he was
confronted by two men. They began to fight, and A.M.H. Jr. came out of the
house to help. One of the men began shooting. A.M.H. Sr. was hospitalized for a
gunshot wound to the foot, and A.M.H. Jr. was hospitalized for gunshot wounds to
his left arm and stomach area. A photo array was conducted with eyewitness N.L.
N.L. identified Lasal Sanders as being involved in fighting with A.M.H. Sr. and
firing approximately six shots with a semiautomatic pistol. N.L. also identified
Crawford as fighting with A.M.H. Sr., running after Sanders fired, and then firing
two shots from a revolver.

¶3 Crawford was charged with two counts of second-degree reckless
injury with use of a dangerous weapon, as a party to a crime. The case proceeded
to a jury trial in 2018. Prior to the State’s last witness, the State filed an amended
information charging Crawford with first-degree recklessly endangering safety
with use of a dangerous weapon, as a party to a crime, and first-degree reckless
injury with use of a dangerous weapon, as a party to a crime. Over the objection

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of the defense, the circuit court accepted the amended information. The court
stated that while there was an increase in exposure, “it’s not of a magnitude that
causes this [c]ourt concern. If we were talking about additional counts or
something that meant life in prison versus [twelve] and a half years, or [seventeen]
and a half years … then there’d be different issues[.]” Additionally, “the amended
charges are of a like and kind and variety and nature[.]”

¶4 A jury found Crawford guilty as charged in the amended
information. The circuit court imposed a total sentence of ten years of initial
confinement and five years of extended supervision.

¶5 Subsequently, in 2020, Sanders went to trial and was found guilty of
first-degree recklessly endangering safety with use of a dangerous weapon, as a
party to a crime, and carrying a concealed weapon. Sanders, who was sentenced
by a different judge than Crawford, received a four year term of probation and an
imposed and stayed prison sentence of eight years.

¶6 Crawford filed a motion for postconviction relief. The motion
argued that: (1) the circuit court erroneously exercised its discretion when it
allowed the State to amend the information during trial; (2) there was insufficient
evidence to prove that A.M.H. Jr. suffered great bodily harm; (3) newly
discovered evidence entitled Crawford to a new trial; and (4) Sanders’ lesser
sentence was a new factor or, in the alternative, Crawford’s sentence was unduly
harsh and unconscionable.

¶7 The circuit court denied Crawford’s motion without an evidentiary
hearing. The court held that the amended charges were based on the same facts
and events which supported the charges in the original complaint and did not
prejudice the defense strategy, which focused on the identity of the shooter. The

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court also held that the evidence was sufficient to sustain the first-degree reckless
injury conviction and that Crawford did not allege newly discovered evidence
warranting a new trial. In addition, the court found that Crawford was not entitled
to sentence modification.

¶8 Crawford now appeals and renews the arguments in his
postconviction motion. Below, we address each of his arguments and provide
additional background information as needed.

DISCUSSION

I. Amended Information

¶9 Crawford first contends that the State’s amendment to the charges
during his trial prejudiced him.

¶10 WISCONSIN STAT. § 971.29 (2019-20)1 provides, “[a]t the trial, the
court may allow amendment of the complaint, indictment or information to
conform to the proof where such amendment is not prejudicial to the defendant.”
We will not reverse a circuit court’s decision to allow an amendment absent an
erroneous exercise of discretion. State v. Frey, 178 Wis. 2d 729, 734, 505 N.W.2d
786 (Ct. App. 1993). “There is a misuse of discretion if the defendant is
prejudiced by the amendment.” State v. Neudorff, 170 Wis. 2d 608, 615, 489
N.W.2d 689 (Ct. App. 1992). “Rights of the defendant which may be prejudiced
by an amendment are the rights to notice, speedy trial and the opportunity to
defend.” Id.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP85-CR

¶11 Here, the record does not reflect that Crawford was prejudiced by
the amendment to the information. Crawford was originally charged with two
counts of second-degree reckless injury with use of a dangerous weapon, as a
party to a crime. These charges were based on the February 24, 2018 shooting of
A.M.H. Sr. and A.M.H. Jr. The amended charges of first-degree recklessly
endangering safety with use of a dangerous weapon, as a party to a crime, and
first-degree reckless injury with use of a dangerous weapon, as a party to a crime,
were based on the exact same shooting incident. Thus, the defense had advance
notice of the allegations. See State v. Wickstrom, 118 Wis. 2d 339, 349, 348
N.W.2d 183 (Ct. App. 1984) (“Notice to the defendant of the nature and cause of
the accusations is the key factor in determining whether an amended charging
document has prejudiced a defendant.”).

¶12 Moreover, Crawford’s defense at trial was that he was not present or
involved in the shooting. The amendment of the charges did not have an effect on
this strategy. Had the jury believed Crawford’s defense that he was not present or
involved in the shooting, it would have absolved him of the amended charges of
first-degree recklessly endangering safety and first-degree reckless injury.

¶13 Crawford emphasizes that both of the amended charges added an
element of utter disregard for human life. See WIS. STAT. §§ 941.30(1),
940.23(1)(a). Crawford suggests that, had the amended information been filed
sooner, he would have determined the extent of the victims’ injuries and the
victims’ characteristics. Crawford, however, does not explain what such an
investigation might have revealed or how it would establish that discharging a
firearm at a person and wounding him or her would not show utter disregard for
human life. Nor does Crawford explain why such a defense would be better than
the defense he pursued. Therefore, we reject Crawford’s argument that the

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No. 2021AP85-CR

amendment to the information prejudiced him, and we do not discern any
erroneous exercise of discretion in allowing the amendment.

II. Sufficiency of the Evidence

¶14 First-degree reckless injury requires proof that a defendant caused
great bodily harm. See WIS. STAT. § 940.23(1)(a); WIS JI—CRIMINAL 1250.
Crawford contends that there was insufficient evidence to prove that he caused
great bodily harm to A.M.H. Jr.

¶15 When reviewing the sufficiency of the evidence, we may not reverse
a conviction “unless the evidence, viewed most favorably to the [S]tate and the
conviction, is so insufficient in probative value and force that it can be said as a
matter of law that no trier of fact, acting reasonably, could have found guilt
beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493, 501, 451
N.W.2d 752 (1990).

¶16 Here, the evidence was sufficient for a jury to conclude that
A.M.H. Jr. suffered great bodily harm. “Great bodily harm” is defined as “bodily
injury which creates a substantial risk of death, or which causes serious permanent
disfigurement, or which causes a permanent or protracted loss or impairment of
the function of any bodily member or organ or other serious bodily injury.” WIS.
STAT. § 939.22(14); see also WIS JI—CRIMINAL 1250.

¶17 At trial, the jury heard testimony from Officer Douglas Brahm that
he personally observed a gunshot wound on A.M.H. Jr.’s torso at the hospital.
Additionally, pictures of A.M.H. Jr.’s gunshot wound were admitted into
evidence. A reasonable jury could conclude that a gunshot wound to the torso is a
“bodily injury which creates a substantial risk of death.” See WIS. STAT.

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No. 2021AP85-CR

§ 939.22(14); Poellinger, 153 Wis. 2d at 501. Thus, the evidence was sufficient to
conclude that A.M.H. Jr. suffered great bodily harm.2

III. Newly Discovered Evidence

¶18 At Crawford’s trial in 2018, N.L., who was sixteen years old at that
time, testified that he was inside his house at the time of the shooting. N.L.
testified that he heard gunshots, ran to the window, and saw two men shooting.
One of the shooters, he said, was “light skinned,” and the other was “dark
skinned.” The “light skinned” shooter had an “old school” weapon, was skinny,
not chunky, and had braided hair. N.L. also testified that the “light skinned”
shooter had a sweater on with the hood up and pants. The State subsequently
called Detective Steven Johnson, who testified that N.L. described the individual
with the lighter complexion as being about 6’2” with two braids, one on each side
of his head. Johnson further testified that Sanders was “a dark skinned” individual
and that Crawford had a lighter complexion.

¶19 Crawford argues that N.L. committed perjury during Sanders’s trial.
Crawford observes that at Sanders’s trial in 2020, N.L. testified that only one
person had a firearm, not two people. N.L. said that the firearm was an “old
school” revolver. N.L. further said that the man with the firearm had “light skin,”
long hair and a ponytail, was 6’2” and 250 pounds, and was wearing a gray
sweater. Crawford contends that this testimony constitutes newly discovered
evidence entitling him to a new trial.

2
Crawford observes that at Sanders’s trial, the first-degree reckless injury charge
relating to A.M.H. Jr. was dismissed. Whether there was sufficient evidence presented at
Sanders’s trial, however, has nothing to do with the evidence presented at Crawford’s trial.

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No. 2021AP85-CR

¶20 When a defendant moves for a new trial on the basis of newly
discovered evidence, the circuit court must hold an evidentiary hearing only if “the
motion on its face alleges sufficient material facts that, if true, would entitle the
defendant to relief.” State v. Love, 2005 WI 116, ¶26, 284 Wis. 2d 111, 700
N.W.2d 62 (citation omitted). This is a question of law we review de novo “based
on the specific factual allegations made and the record as a whole.” State v.
McAlister, 2018 WI 34, ¶25, 380 Wis. 2d 684, 911 N.W.2d 77. “However, if the
motion does not raise facts sufficient to entitle the movant to relief, or presents
only conclusory allegations, or if the record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court has the discretion to grant or
deny a hearing.” State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d
433.

¶21 The test for newly discovered evidence is well established. “[A]
defendant must prove: (1) the evidence was discovered after conviction; (2) the
defendant was not negligent in seeking the evidence; (3) the evidence is material
to an issue in the case; and (4) the evidence is not merely cumulative.” State v.
Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42 (citation omitted). If a
defendant satisfies his burden on all four of these elements, the circuit court must
then determine whether a reasonable probability exists that a different result would
be reached at trial. State v. Avery, 2013 WI 13, ¶25, 345 Wis. 2d 407, 826
N.W.2d 60.

¶22 “Wisconsin law has long held that impeaching evidence may be
enough to warrant a new trial.” Plude, 310 Wis. 2d 28, ¶47. Our supreme court
has stated that “newly discovered evidence impeaching in character might be
produced so strong as to constitute ground for a new trial; as for example where it

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No. 2021AP85-CR

is shown that the verdict is based on perjured evidence.” Id. (citation and
emphasis omitted).

¶23 Perjury requires that a witness makes “a false material statement
which the person does not believe to be true[.]” WIS. STAT. § 946.31(1). Here,
Crawford has not established that N.L.’s subsequent testimony at Sanders’s trial
meets the requirements for perjury. Crawford does not identify which specific
statements of N.L.’s testimony are false, nor does he allege that N.L. made any
statements which N.L. “does not believe to be true.” See id.

¶24 Moreover, at the outset of Sanders’s trial, N.L. admitted that he did
not remember what happened. He explained that after the last court date, he tried
to forget what happened and was just going to worry about school. Thus, even if
N.L.’s statements were shown to be false, there is no evidence that he did so
intentionally. Accordingly, we conclude that Crawford has failed to prove that
N.L. perjured himself and that the circuit court properly denied his newly
discovered evidence claim.

IV. Crawford’s Sentence

¶25 Finally, Crawford contends that Sanders’s lesser sentence constitutes
a new factor warranting sentence modification. A court may modify a sentence
based upon the defendant’s showing of a “new factor.” State v. Harbor, 2011 WI
28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. A new factor is “a fact or set of facts”
that is “highly relevant to the imposition of sentence, but not known to the trial
judge at the time of original sentencing, either because it was not then in existence
or because, even though it was then in existence, it was unknowingly overlooked
by all of the parties.” Id., ¶40 (citation omitted). Whether a new factor exists is a
question of law that this court reviews independently. Id., ¶33.

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No. 2021AP85-CR

¶26 Here, Sanders’s sentence is not a new factor because it was not
highly relevant to Crawford’s sentence. Crawford has not shown that he and
Sanders were similarly situated. See State v. Ralph, 156 Wis. 2d 433, 438, 456
N.W.2d 657 (Ct. App. 1990) (concluding that a codefendant’s prior unknown jail
term was a new factor where the trial court had expressed a desire for parity in the
sentences). As the postconviction decision observed, Crawford was convicted of
two serious felony offenses—first-degree reckless injury, a class D felony, and
first-degree recklessly endangering safety, a class F felony. See WIS. STAT.
§§ 940.23(1)(a), 941.30(1). In contrast, Sanders was convicted of only a class F
felony and a misdemeanor. Additionally, Crawford had a more extensive criminal
history, including three prior weapon convictions. Thus, we reject Crawford’s
argument that Sanders’s sentence constitutes a new factor entitling him to relief.

¶27 Alternatively, Crawford argues that his sentence should be modified
because it is unduly harsh and excessive. A sentence is unduly harsh “only where
the sentence is so excessive and unusual and so disproportionate to the offense
committed as to shock public sentiment and violate the judgment of reasonable
people concerning what is right and proper under the circumstances.” See State v.
Grindemann, 2002 WI App 106, ¶31, 255 Wis. 2d 632, 648 N.W.2d 507 (citation
omitted). “A sentence well within the limits of the maximum sentence is unlikely
to be unduly harsh or unconscionable.” State v. Scaccio, 2000 WI App 265, ¶18,
240 Wis. 2d 95, 622 N.W.2d 449.

¶28 Here, Crawford’s sentence was within the limits of the maximum
sentence. As stated above, Crawford was convicted of a class D felony and a
class F felony. He thus faced a maximum of thirty-seven and one-half years of
imprisonment. See WIS. STAT. § 939.50(3)(d), (f). Crawford, however, was
sentenced to a total of fifteen years of imprisonment which was well below the

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No. 2021AP85-CR

statutory maximum, and it was not unduly harsh and unconscionable. See
Scaccio, 240 Wis. 2d 95, ¶18.

¶29 Moreover, Sanders’s sentence does not render Crawford’s sentence
unduly harsh.3 As stated above, Crawford was convicted of a class D felony and a
class F felony, whereas Sanders was convicted of a class F felony and a
misdemeanor. Crawford also has a more extensive criminal record than Sanders.
Therefore, we reject Crawford’s argument that his sentence should be modified.

CONCLUSION

¶30 In sum, for the reasons stated above, we conclude that Crawford is
not entitled to relief.

By the Court.—Judgment and order affirmed.

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

3
Crawford also contends that his sentence was unduly harsh because his conviction for
first-degree reckless injury should have been dismissed for insufficient evidence. However, as
stated above, we disagree that the evidence was insufficient.

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