State v. Steven L. Jones

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 5, 2023
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. 2022AP411-CR Cir. Ct. No. 2021CF59

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

STEVEN L. JONES,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Winnebago County: JOHN A. JORGENSEN, Judge. Affirmed.

Before Gundrum, P.J., Grogan 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. 2022AP411-CR

¶1 PER CURIAM. Steven L. Jones appeals from a judgment, entered

following a jury trial, convicting him of attempted burglary and possession of
burglarious tools, both as party to a crime. He also appeals from an order denying
postconviction relief. On appeal, Jones argues he is entitled to a new trial because
the circuit court erroneously admitted opinion testimony from an investigating
detective and because the circuit court was overly intrusive and biased when it
questioned a witness. We affirm.

BACKGROUND

¶2 According to the complaint, while working late and alone at a
pharmacy, the owner of the pharmacy heard “scratching or scraping” at the back
door of the building, saw the door handle turn and wiggle, and called police because
she believed someone was trying to break in. When police arrived, one officer saw
a red four-door sedan quickly driving away. Another officer pursued the vehicle.
Following a high speed chase, the car crashed. There were two occupants in the
vehicle—the driver and Jones. In the vehicle, police found various items, including
two pry bars and a screwdriver. At the pharmacy, police determined marks on the
back door indicated “that a screwdriver type pry tool had been used to attempt to
breach the back door.” Police also found footprints in the snow leading from the
pharmacy’s back door to where a car had been parked. Surveillance video showed
a red VW Jetta driving away from the scene of the attempted burglary. The State
charged Jones with attempted burglary and possession of burglarious tools, both as
party to a crime.

¶3 At trial, and as relevant for appeal, the owner testified that she was
working late when she heard the pharmacy’s rear door handle jiggling like
“someone ... had their hand on the other side of the door handle and was trying to

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No. 2022AP411-CR

open it.” This door was in the rear of the pharmacy and not for customers. She
called 911. The circuit court asked whether the owner gave permission or consent
to anyone to enter the pharmacy after closing hours, and she said no. Jones’ counsel
objected to the court’s question on the basis that “the State had not established that
the attempted entry was without consent, an essential element, and the Court
established that for the State.” The court overruled the objection because it was
“allowed” by statute “to control the mode and method of questioning.”

¶4 Then, during the investigating detective’s testimony, the detective
testified that he saw “evidence of prying or tool marks on the exterior of the [back]
door” of the pharmacy, with “a couple of them that definitely appear[ed] fresh”
based on the small pieces of paint shavings from the door that were flaking and
coming off by the tool marks. When asked whether the detective could “consider
these marks normal wear and tear on the door,” Jones objected because “this is
getting into expert testimony regarding tool print comparison.” The court instructed
the State to lay some foundation.

¶5 The detective then testified that in his twenty-six years as a detective,
he had investigated “several hundred burglaries” involving “forced entries to
buildings” and “tool marks such as this,” and that it was “very common for burglars
to use a pry bar or a screwdriver to damage the door frame and to create a gap so
that the door opens.” The marks on the pharmacy door did not “look like normal
wear and tear” to the detective because it appeared “that there were attempts to pry
this door open using a tool … similar to a pry bar and a smaller tool similar to a
screwdriver.” After the detective confirmed that he had used screwdrivers and pry
bars himself and stated that the marks on the pharmacy door were consistent with
such use, Jones again objected because this statement called “for expert testimony.”
The court allowed the testimony “based upon the experience that we heard.”

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No. 2022AP411-CR

¶6 Ultimately, the jury found Jones guilty as charged and the court
sentenced him. Jones filed a postconviction motion, which the court denied after a
hearing. He appeals.

DISCUSSION

¶7 On appeal, Jones first argues he is entitled to a new trial because the
circuit court erroneously admitted opinion testimony from the investigating
detective who determined the pharmacy’s back door had marks on it indicating a
tool was used to attempt to pry it open. He contends that the detective testified as
an expert witness pursuant to WIS. STAT. § 907.02 (2021-22)1 and the State failed
to qualify the detective as a tool-marks expert under § 907.02.

¶8 We disagree. Contrary to Jones’ assertions, the State did not present
the detective’s testimony as an expert witness under WIS. STAT. § 907.02. Rather,
the detective’s testimony was admitted as nonscientific, lay opinion under WIS.
STAT. § 907.01. Lay opinion testimony is limited to opinions that are rationally
based on the witness’s perception, helpful to the determination of a fact in issue, and
not based on scientific, technical, or other specialized knowledge within the scope
of an expert witness. See § 907.01.

1
WISCONSIN STAT. § 907.02 (2021-22) is titled “Testimony by experts,” and provides, in
relevant part:

(1) If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if the testimony is based upon
sufficient facts or data, the testimony is the product of reliable
principles and methods, and the witness has applied the principles
and methods reliably to the facts of the case.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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No. 2022AP411-CR

¶9 Here, the detective testified about his law enforcement experience
investigating burglaries that involved forced entries with tool marks caused by pry
bars or screwdrivers. He opined that, based on his knowledge and experience, the
marks he observed on the door were not “normal wear and tear” but instead were
evidence of “attempts to pry this door open using a tool.” The detective’s testimony
was rationally based on his perception and helpful to an understanding that the
damage was caused by an attempt to pry the door open with a tool. See WIS. STAT.
§ 907.01. The circuit court properly exercised its discretion when it admitted the
detective’s testimony. See State v. Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785
N.W.2d 448 (We will “not disturb a circuit court’s decision to admit evidence unless
the court erroneously exercised its discretion.”). Jones is not entitled to a new trial
on this basis.

¶10 Next, Jones contends he is entitled to a new trial because the circuit
court was overly intrusive and biased. “In analyzing a judicial-bias claim, we start
with the ‘presumption that the judge is free of bias and prejudice.’” State v. Pirtle,
2011 WI App 89, ¶34, 334 Wis. 2d 211, 799 N.W.2d 492 (citation omitted). The
defendant has the burden to prove the court was biased. Id. Jones argues the circuit
court was biased when it questioned the owner during trial to establish that she did
not consent to Jones attempting to enter the pharmacy. He contends the circuit court
was biased because it helped the State prove its case.

¶11 We disagree. Here, the circuit court questioned the owner following
the prosecutor’s direct examination and Jones’ cross-examination to clarify issues
flowing directly from the evidence. WISCONSIN STAT. § 906.14(2) explicitly
permits the court to question a witness. That the circuit court questioned the witness
does not mean the court demonstrated bias and took a side in the case. Jones has

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No. 2022AP411-CR

made no showing that the circuit court’s action gave the appearance to the jury that
the court had taken sides in this case.2

¶12 Although Jones argues the circuit court’s question helped the State
prove its case, Jones overlooks that there was more than sufficient evidence that
Jones did not have consent to enter the pharmacy before the court even asked the
clarifying question. On direct examination, the owner testified that she heard
someone trying to get into the locked, non-customer, back door of her pharmacy
late at night after the business was closed to the public, and she called 911 to report
a break in. This evidence circumstantially established the person trying to get into
the pharmacy did not have consent to do so.

¶13 Finally, Jones argues he is entitled to a new trial in the interest of
justice. In support, Jones contends, in conclusory fashion, that cumulatively, the
“improper admittance of ‘expert testimony,’ [the circuit court’s] overlying intrusive
behavior impacting the jury, and confusing jury instructions” deprived him of his
right to a fair trial. At the outset, Jones has not developed any legal argument about
the jury instructions used in this case, and we will not consider it further. See State
v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not
consider undeveloped arguments or those unsupported by adequate authority). As
to Jones’ remaining points, because we conclude the circuit court did not err by
admitting the detective’s opinion testimony or by questioning the owner, we
conclude Jones is not entitled to a new trial in the interest of justice.

2
In support of his bias argument, Jones complains “[t]here were many instances at trial
where the Court came in to assist the State.” However, other than questioning the owner, Jones
does not identify any other occasion where the circuit court purportedly did something wrong or
potentially wrong. We will not consider this argument further. See State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider insufficiently developed
arguments).

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No. 2022AP411-CR

By the Court.––Judgment and order affirmed.

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

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