State v. Jeffrey L. Blabaum

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.
November 10, 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. 2022AP111-CR Cir. Ct. No. 2020CM195

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY L. BLABAUM,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Iowa
County: MARGARET MARY KOEHLER, Judge. Affirmed.

¶1 BLANCHARD, P.J.1 Jeffrey Blabaum appeals a judgment of
conviction, following a jury trial, for misdemeanor theft of movable property, and

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20)
because the charges in this matter are misdemeanors. All references to the Wisconsin Statutes are
to the 2019-20 version unless otherwise noted.
No. 2022AP111-CR

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

2
No. 2022AP111-CR

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

2
The elements of theft are pertinent to some issues addressed below. The jury was
accurately instructed that the State was required to prove each of the following beyond a
reasonable doubt:

1. The defendant intentionally retained possession of movable property
of another.

The term “intentionally” means that the defendant must have had
the mental purpose to retain possession of moveable property.

“Movable property” means property whose physical location can
be changed.

(continued)

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No. 2022AP111-CR

¶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

2. The owner of the property did not consent to the retention of the
movable property.

3. The defendant knew that the owner did not consent.

4. The defendant intended to deprive the owner permanently of the
possession of the property.

See WIS JI—CRIMINAL 1441.

4
No. 2022AP111-CR

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.

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No. 2022AP111-CR

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

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No. 2022AP111-CR

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.

7
No. 2022AP111-CR

¶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 explain
how it could be fatal to territorial jurisdiction here if A.B. had never seen this
particular trailer before Blabaum pulled up with it. Having seen the photo sent by
text showing the bench seemingly sitting on the floor of a trailer, she would not
have been surprised to see him towing a trailer when he arrived for the planned
property return that he had just set up by text.

II. MISTRIAL MOTION

¶20 Blabaum argues that the circuit court erroneously exercised its
discretion in denying Blabaum’s request for a mistrial based on the admission of
unfairly prejudicial evidence. I conclude that the record does not support a
conclusion that the court erroneously exercised its discretion, even when the
court’s challenged ruling is subjected to “strict scrutiny.”

¶21 The decision to grant or deny a motion for a mistrial is within the
circuit court’s discretion. State v. Doss, 2008 WI 93, ¶69, 312 Wis. 2d 570, 754
N.W.2d 150. The court “‘must determine, in light of the whole proceeding,
whether the claimed error was sufficiently prejudicial to warrant a new trial.’” Id.
(quoted source omitted). Such a decision will not be reversed absent the
identification of an erroneous exercise of discretion. Id.

¶22 Blabaum argues that the basis for his mistrial motion was, in the
words of State v. Bunch, 191 Wis. 2d 501, 507, 529 N.W.2d 923 (Ct. App. 1995),
“overreaching or laxness,” by the prosecution, and that therefore I must give the
court’s challenged ruling “strict scrutiny out of concern for the defendant’s double
jeopardy rights.” Id. It is not clear to me that Blabaum properly relies on Bunch.
He leaves completely unaddressed how, in this particular context, “overreaching

8
No. 2022AP111-CR

or laxness” are to be proven or what “strict scrutiny” means. But for purposes of
resolving this appeal I assume without deciding, in Blabaum’s favor, that: the
prosecutor posed questions that were improperly designed to illicit prejudicial
testimony; this amounted to “overreaching or laxness”; and “strict scrutiny” in this
context means that the challenged ruling must appear to be correct in all respects
and to have been the only reasonable decision available to the circuit court under
the circumstances.

¶23 The following is additional background bearing on this issue.

¶24 At one point in her testimony, A.B. testified as follows in response
to questions from the prosecutor regarding her departure from Tennessee for
Wisconsin:

Q: It sounds like you made a hasty departure, is that
safe to say?

A: Yes.

Q: And why is that?

A: Because he has laid hands on me before and I
was—

Counsel for Blabaum objected. The circuit court sustained the objection, after
which the following exchange occurred, without objection by the defense:

Q: So, it is safe to say you felt you needed to leave
hastily from Tennessee, correct?

A: Correct.

¶25 A short time later, still during the prosecutor’s direct examination of
A.B., there was the following exchange regarding the text message that Blabaum
sent her to set up the property-return meeting:

9
No. 2022AP111-CR

Q: [W]hat was going through your mind when you got
this text message requesting that you show up at
[Blabaum’s] brother’s place alone?

A: I was very concerned since [Blabaum emphasized]
the alone part and his brother had also text
messaged my father that day that same night, telling
[A.B.’s father] to have me go to [the brother’s]
house alone.

Q: So, you were fearful of going to [the brother’s]
place alone?

A: Correct.

Q: Why is that?

A: Just because of the past physical contact that we
have had.

Defense counsel objected. In front of the jury, the court sustained the objection
and ordered the testimony “stricken.”

¶26 After the court excused the jury for a brief period, defense counsel
made the following argument for a mistrial:

I don’t think that bell can be unrung. I think it’s overly
prejudicial and we wouldn’t be able to get a fair and
impartial jury. She[’s] testifying and I realize the
objections have been sustained, but the jury still heard it
and especially the second time, that there was physical
abuse. That shouldn’t be in evidence and I don’t think a
curative instruction would be sufficient, so I’m making that
motion.

¶27 The prosecutor argued that, given the non-specific nature of A.B.’s
testimony, a curative instruction would be adequate to address the concern of
prejudice. The circuit court agreed with this position. The court also cautioned
the prosecutor to prevent A.B. from “go[ing] down that path anymore” and

10
No. 2022AP111-CR

directly instructed A.B. that she was “not to refer to any other[-]acts evidence that
may have occurred between you and Mr. Blabaum.”3

¶28 When the jury returned to the courtroom, the court immediately gave
it the following instruction: “The motion of [counsel for Blabaum] was sustained.
The question of counsel and the answer of the witness are to be stricken and you
are to disregard that.”

¶29 Subjecting the circuit court’s ruling to “strict scrutiny,” I conclude
based on the following factors that the court did not erroneously exercise its
discretion in denying the mistrial motion. See State v. DeLain, 2004 WI App 79,
¶¶25-26, 272 Wis. 2d 356, 679 N.W.2d 562 (concluding that circuit court did not
erroneously exercise its discretion in denying a motion for mistrial based on
“isolated nature” of prosecutor’s use of impermissible “golden rule” argument, the
fact that the prosecutor withdrew the improper argument after objection, and a
court instruction that would weigh against reliance on the improper argument).
First, while A.B. referenced Blabaum “la[ying] hands on” her and “physical
contact,” the testimony was short and non-specific about the timing and nature of
alleged conduct of Blabaum. Second, there were immediate objections which
were each sustained by the court. Third, after the second piece of testimony, the
jury was specifically directed to ignore the testimony, and juries are presumed to
follow instructions by the court. See State v. Miller, 2012 WI App 68, ¶22, 341
Wis. 2d 737, 816 N.W.2d 331 (jurors presumed to follow court instructions).

3
“Other-acts evidence” refers to evidence of “other crimes, wrongs, or acts” that are
separated in time, place, or manner from the events alleged in the criminal charges. The
admissibility of such evidence is governed by WIS. STAT. § 904.04(2)(a) and case law that
includes State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998).

11
No. 2022AP111-CR

¶30 In his opening brief, Blabaum briefly suggests that the prejudicial
effect of this testimony was amplified by the fact that Blabaum is significantly
older than A.B., but he fails to develop an argument on the age-disparity topic.
Further, after the State argues that there was nothing about the age disparity that
could matter on this issue, Blabaum appears to concede the point by not
addressing it in his reply brief.

¶31 Blabaum also alludes to the fact that Officer Weier testified briefly
to the following: (1) Weier identified Blabaum at the scene of the planned
property return based on the fact that Weier “recognized him from past
professional contacts,” and (2) Blabaum said at the scene of the planned property
return that Blabaum was “upset at [Weier’s] presence” because Blabaum “was
unhappy with the way a previous case was handled.” However, neither of these
brief statements by Weier were objected to, and Blabaum’s counsel did not refer to
them in making his mistrial motion. See State v. Troka, 2016 WI App 35, ¶12,
369 Wis. 2d 193, 880 N.W.2d 161 (we review circuit court’s mistrial decision
“based on the record before it.”).

III. ALLEGED PLAIN ERRORS

¶32 Blabaum argues that, while the defense did not object to any of the
following, the circuit court committed plain error in: excluding exculpatory
evidence; allowing unfairly prejudicial evidence; and allowing the prosecutor to
make improper arguments to the jury. We first summarize pertinent legal
standards and then address the three arguments in turn.

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No. 2022AP111-CR

A. Legal Standards

¶33 Our supreme court has explained the nature of the plain error
doctrine under WIS. STAT. § 901.03(4), emphasizing that the doctrine should be
used to grant new trials “sparingly.” State v. Jorgensen, 2008 WI 60, ¶¶21-24,
310 Wis. 2d 138, 754 N.W.2d 77. The doctrine allows appellate review of
“fundamental” errors that were otherwise forfeited by a party’s failure to object.
Id., ¶21. An error “must be ‘obvious and substantial’” to be deemed plain error.
Id. (quoted source omitted). “If the defendant shows that the unobjected to error is
fundamental, obvious, and substantial, the burden then shifts to the State to show
the error was harmless.” Id., ¶23.

B. Exculpatory Evidence

¶34 Blabaum argues that the circuit court committed plain error when it
ruled that Blabaum was prohibited from testifying at trial to his understanding of
the legal status of the property that A.B. left behind when she moved to Wisconsin
based on a statement allegedly made by a person in Tennessee named Robert
Harazin regarding a statement allegedly made to Harazin by police in Tennessee.
Blabaum fails to show that, assuming without deciding that the court’s ruling was
error, the assumed error was fundamental, obvious, and substantial.

¶35 The following additional background is necessary to understand the
argument.

¶36 The State filed a pretrial motion, based on the evidentiary rule
against the admission of hearsay statements, requesting that both Blabaum and
Robert Harazin “be ordered not to testify as to what [either of them] was advised
by a law enforcement officer” on the following topics: that “property owned by”

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No. 2022AP111-CR

A.B. “was abandoned,” that Blabaum and A.B. “now co-owned the property
because of its abandonment,” or that Blabaum “could do whatever he wanted with
the property.” This pretrial motion was based on an attached police report
generated by Officer Weier.

¶37 The police report stated that Weier had interviewed Harazin, who
made statements to Weier that included the following: Blabaum and A.B. had
rented a trailer from Harazin; A.B. “moved out” of the trailer they shared “around
July 2019”; “later in 2020” A.B. returned with friends “to retrieve her property”
from the trailer while Blabaum still resided there; Blabaum asked Harazin not to
allow A.B. into the trailer and as a result Harazin called local law enforcement to
the scene; responding police told Harazin “that because of the length of time
[A.B.] had left her property” at the Tennessee trailer home, her personal property
“was considered abandoned and she had given up rights to it.”

¶38 Weier’s report did not: purport to quote communication between
Harazin and Blabaum regarding the legal status of the property; purport to quote
Blabaum on that or any other topic; or explain what Tennessee legal authority—or
any police policy or practice—that the unidentified Tennessee police officers
allegedly relied on for the concept that A.B. had in some sense abandoned
property.

¶39 As the trial was about to get underway, the circuit court turned to the
State’s motion in limine, which the court characterized as being directed at
testimony of Harazin—that Harazin “not be allowed to testify as to anything he
was told by law enforcement.” The prosecutor agreed, saying that the motion was
“[b]asically a straight line hearsay objection to any testimony of that sort.” The
court turned to defense counsel for a response. Counsel responded that Harazin

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No. 2022AP111-CR

was “not going to testify[]” because he “wasn’t available.” The court replied:
“All right. So, [the State’s] motion is granted.” After the prosecutor clarified that
he sought an order excluding potential testimony by Blabaum on this topic, as
opposed to only testimony by Harazin, defense counsel agreed that the motion
could be granted in this respect as well, because what Officer Weier reported that
Harazin said that unidentified police officers in Tennessee had told Harazin “isn’t
admissible.”

¶40 There was no proffer from Blabaum’s counsel as to what Blabaum
might testify to related to alleged statements by Tennessee police officers or
related to relevant property law, or police policies or practices, in Tennessee.

¶41 Whatever else I might decide or assume on this topic, Blabaum’s
plain error argument fails for at least the simple reason that the nature of the
“excluded testimony” at issue here is not clear. He fails to provide a factual basis
supporting the premise that Blabaum, if he had elected to testify, had anything of
substance to convey to the jury on the topic of A.B.’s ownership of property that
included the bench that was in the photo he texted to A.B. The argument appears
to rest entirely on a vague statement attributed to unidentified “local law
enforcement” that does not cite to a proposition of common law or statutory
authority of any state, or to a police policy or practice. Further, it also contains no
reference to any knowledge or reasonable belief of Blabaum. Beyond all that,
when compared with extremely clear admissions made by Blabaum in the form of
his text to A.B. and his alleged admissions at the planned property return meeting,
any such testimony would presumably have had little or no weight. Notably, the
circuit court did not rule that Blabaum could not testify to his knowledge of the
history of A.B.’s belongings and where they were located when, or regarding what
he did or did not bring with him to the planned property return. The court also did

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No. 2022AP111-CR

not reject (because it was not presented with) a developed, supported argument
that Blabaum had a viable defense based on A.B.’s alleged abandonment of
property.

C. Unfairly Prejudicial Evidence

¶42 Blabaum argues that the circuit court committed plain error based on
the admission of unfairly prejudicial evidence, some objected to by the defense
and some not, that he submits allowed the jury to view him “as someone who
allegedly beat and attempted to manipulate” A.B. and to view him as “a habitual
law breaker.” The evidence at issue was the testimony of A.B. (addressed above
in connection with the court’s denial of the mistrial motion), Officer Weier’s brief
testimony about “past professional contacts” with Blabaum, including one that
Blabaum was “unhappy” with (summarized above), and testimony of Officer
Shane Groom that I now summarize.

¶43 Officer Groom testified that, after he investigated the November
2019 incident that resulted in the disorderly conduct charge, Groom “referred
charges” to the district attorney “for disorderly conduct with the domestic
modifier.” Blabaum’s counsel objected. The circuit court immediately ruled:
“I’m going to rule that that is prejudicial. The jury is to disregard that the modifier
was given.”

¶44 It is difficult to discern error by the circuit court, much less error that
could rise to the level of being fundamental, obvious, and substantial, particularly
given the court’s prompt sustaining of objections. Blabaum’s argument
exaggerates the nature of the evidence at issue. Accordingly, he fails to show an
error of constitutional dimension, as is required to establish plain error. See
Jorgensen, 310 Wis. 2d 138, ¶21.

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No. 2022AP111-CR

¶45 I make two additional points beyond the related discussion already
given above in affirming the court’s denial of the mistrial motion. First, Blabaum
fails to explain why the jury would have had reason to think that the phrase “the
domestic modifier” conveyed anything other than what the jury already knew from
the evidence: Blabaum and A.B. had resided together in a domestic relationship.
Second, it would have been unreasonable for a jury to assume guilt on the theft
charge based on Officer Weier’s brief references to “past professional contacts”
for purposes of explaining how he identified Blabaum; these contacts were not
described, including the one contact that had allegedly made Blabaum “unhappy.”
It is common knowledge that citizen encounters with police can be “unhappy” for
many reasons that do not reflect badly on the citizen.4

D. Prosecution Arguments

¶46 Blabaum argues that the circuit court committed plain error in failing
to prevent the prosecutor from, without objection by the defense, improperly
commenting during the rebuttal closing argument on Blabaum’s exercise of his
Fifth Amendment privilege not to testify. I conclude that the prosecutor’s
statements were not improper under the circumstances of this case and did not
violate Blabaum’s Fifth Amendment right not to testify at trial.

4
I do not base my conclusion on the State’s argument that the jury’s decision to acquit
Blabaum on the disorderly conduct charge demonstrates that the other-acts evidence could not
have been prejudicial. As a general rule, it is impossible to know based on a trial record why a
jury reached a split verdict in a criminal case. Some compromises that are struck in the secrecy
of the jury room may not be closely or predictably tied to the elements of particular offenses. If
evidence has the effect of tainting a defendant’s character unfairly, there can be at least the
potential that this could contribute to a guilty verdict, regardless of any not guilty verdicts.

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No. 2022AP111-CR

¶47 It is unconstitutional to create “a penalty” “for exercising a
constitutional privilege,” and therefore the prosecution may not comment on the
accused’s silence. Griffin v. California, 380 U.S. 609, 614-15 (1965). The issue
is “‘whether the language used was manifestly intended or was of such character
that the jury would naturally and necessarily take it to be a comment on the failure
of the accused to testify.’” State v. Johnson, 121 Wis. 2d 237, 246, 358 N.W.2d
824 (Ct. App. 1984) (quoted source omitted). An improper comment is one that:
(1) “constitute[s] a reference to the defendant’s failure to testify”; (2) “propose[s]
that the failure to testify demonstrates guilt”; and (3) “must not be a fair response
to a defense argument.” State v. Jaimes, 2006 WI App 93, ¶21, 292 Wis. 2d 656,
715 N.W.2d 669. This issue presents an issue of law that is subject to de novo
review. See State v. Cockrell, 2007 WI App 217, ¶14, 306 Wis. 2d 52, 741
N.W.2d 267.

¶48 The following is additional background on this issue.

¶49 In his closing argument, Blabaum’s counsel encouraged the jury to
focus on the following facts: A.B. initially left most of her belongings in
Tennessee and there was no “inventory” or “valuation” of the property that was
allegedly wrongfully retained by Blabaum at the time of the property return he
initially proposed. The following are pertinent passages:

The State’s theory is [that] … Mr. Blabaum somehow is
obligated for some reason to bring … some of [A.B.’s]
stuff up from Tennessee. Why? Why is Mr. Blabaum
obligated to do that?… So, did he intentionally take
possession of this stuff? No. She of her own volition left it
there. Did she consent to the retention of moveable
property? Well, yes[,] because she left it … in Tennessee.
If she didn’t want it left, she would have taken it. Did he
know that she didn’t consent? No. He knew the
opposite—that she had left the stuff there and there he is
with it. So, he’s in Tennessee and I guess it’s the State’s
theory that he has to, on his own hook, absorb the time and

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No. 2022AP111-CR

the financial cost to move her stuff up here. She leaves her
stuff and suddenly he’s obligated to move it 700 miles or
however far it is from Tennessee to Southwestern
Wisconsin…. We’re talking about a bench. We’re talking
about pictures. We’re talking about personal keepsakes,
but there’s no inventory here. There’s no list. There’s no
valuation of any of this stuff. What personal keepsakes?
What pictures? They’ve got a picture of a bench that is in a
text that they’re saying is attributed to Mr. Blabaum per the
testimony of [A.B.], but it just … says, want this? I’m at
Jim’s. Want this? That’s their proof beyond a reasonable
doubt that he’s retained possession of this bench that’s hers
and when the officer asks, hey, can you prove this is yours
and she shows him this text of this picture of this bench.
But, want this is different than saying … I’m keeping this
even though I know it’s yours. You know, the burden is on
the State here to prove beyond a reasonable doubt and what
have they proved? What evidence do they have that the
stuff was ever even in Wisconsin besides these statements
they’re saying that Mr. Blabaum made to the officer, well,
I’m going to burn the stuff or I’m going to destroy it.
[Because] all they got is the trailer that pulls up and the
officer sees that and then there’s discussion and then he
leaves.… Ultimately, this stuff was left in the state of
Tennessee. How is it then that Mr. Blabaum is suddenly
under an obligation to move all this stuff for her without
any payment or consideration or anything and that is stuff
that I submit to you that … [t]he State hasn’t proved the
sufficient elements beyond a reasonable doubt …. You
know, it’s no easy thing to pack up people’s stuff and to
move it and to drive it. I just don’t see how the State has
met its burden here.… Mr. Blabaum was left with the stuff
there in Tennessee and he comes back up here ….

¶50 The prosecutor’s rebuttal closing argument included the following,
with emphasis now added to the passages challenged by Blabaum:

[W]e’re hearing something strange about the property
being in Tennessee. I don’t know where that’s coming
from. It’s not in the evidence here. All I know is,
Mr. Blabaum sent [A.B.] a text saying here’s your property
including blankets and pictures. Come and get it. Come
alone. Now, you know, he … show[s] up in a trailer. Well,
of course, it’s in the back of the trailer. There’s nothing
here that says otherwise and why in the world would he say
otherwise? Come alone! And then he comes back and
says, well, I’m going to take off and leave because you
brought an officer here to the exchange. He knew the

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No. 2022AP111-CR

property was hers and again, what the Defense would have
you believe is just because you have a break up and you
leave and there’s some property left behind, oh! It’s gone
forever. No longer yours. That’s nonsense. He knew it
was hers and he texted her back and said, do you want your
property? It was her property. He admitted it was her
property. I don’t care if it was a day, a month, a year or
whatever else, it was her property and there was no
testimony, no evidence offered otherwise that would
contradict the proof that the State has provided. He is
guilty of retaining her property knowing that she wanted
her property back and denying her that property because an
officer showed up. That’s not reasonable and there’s no
reasonable doubt here, folks.

¶51 Regarding the first emphasized passage, when construed in context, I
conclude that the only reasonable interpretation is that this was not a reference to
the defendant’s failure to testify and did not propose to the jury that the failure to
testify demonstrates guilt. I further conclude that this passage was a fair response
to a defense argument. The prosecutor was attempting to redirect the jury’s
attention from defense counsel’s references to events in Tennessee because they
were irrelevant (from the State’s plausible point of view) and instead to direct its
attention on evidence surrounding Blabaum’s text proposing to return the bench
and other property to A.B. The “otherwise” concept may have been awkwardly
expressed. But the concept was that the Tennessee references were purely a red
herring that did not involve evidence that could matter and that the text Blabaum
sent A.B. was unambiguous—that there is no other way to interpret the text but in
a way that incriminates Blabaum on elements of theft. “[I]t is proper for the
district attorney to point out generally that no evidence has been introduced to
show the innocence of the defendant.” Bies v. State, 53 Wis. 2d 322, 325, 193
N.W.2d 46 (1972).

¶52 Turning to the second emphasized passage, my analysis is similar.
These comments also served to “point out generally that no evidence has been

20
No. 2022AP111-CR

introduced to show the innocence of the defendant.” See id. Further, this passage
was a fair response to a defense argument for acquittal on the ground that A.B. had
left the property at issue behind in Tennessee for an extended period and that also
attempted to minimize the significance of the text inviting A.B. to a property
return. The prosecutor’s message in response, based on the State’s plausible
theory of the case, was the following: the only relevant evidence before the jury
bearing on the status of the property at the time of the charged theft pointed to
Blabaum’s intentional retention of A.B.’s property without her consent, knowing
that she did not consent, intending to permanently deprive her of its possession.

E. Interest Of Justice

¶53 Blabaum argues that “individually and cumulatively” the instances
of plain error that he alleges require a new trial in the interest of justice. “[I]f it
appears from the record that the real controversy has not been fully tried, or that it
is probable that justice has for any reason miscarried,” we may reverse the
judgment or order appealed from, “regardless of whether the proper motion or
objection appears in the record.” WIS. STAT. § 752.35. A miscarriage of justice
may be found when there is “a probability of a different result on retrial such that a
new trial in the interest of justice is warranted.” See State v. Kucharski, 2015 WI
64, ¶46, 363 Wis. 2d 658, 866 N.W.2d 697. “The power to grant a new trial when
it appears the real controversy has not been fully tried ‘is formidable, and should
be exercised sparingly and with great caution.’” State v. Sugden, 2010 WI App
166, ¶37, 330 Wis. 2d 628, 795 N.W.2d 456 (quoted source omitted). Appellate
courts are to exercise their power to grant a discretionary reversal only in
exceptional cases. Id.

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No. 2022AP111-CR

¶54 For the reasons explained above in addressing each allegation of
plain error, this is not the exceptional case in which the record establishes that the
real controversy has not been fully tried or that there was a miscarriage of justice.

IV. FAILURE TO HOLD HEARING ON POSTCONVICTION
CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL

¶55 Blabaum argues that the circuit court erred in failing to hold an
evidentiary hearing on his motions for postconviction relief based on multiple
forms of alleged ineffective assistance of trial counsel.

¶56 Blabaum’s appellate briefing on this set of topics is cursory at best.
It purports to rely on “incorporation by reference” of arguments made in his
extensive circuit court briefing.5 I could reject this argument based on a lack of
development; among other problems, it fails to provide the State with developed
appellate arguments to which it could properly respond. But the State does not
argue that this issue should be resolved based on a lack of development. I have
done my best to account for what appears to be the substance of Blabaum’s
intended arguments.6

5
In two pages of cursory appellate argument, Blabaum purports to incorporate by
reference 26 pages of argument submitted to the circuit court in support of the postconviction
motion.
6
I remind Blabaum’s counsel that this type of incorporation by reference is not an
appropriate form of appellate advocacy. In another case, the argument might be rejected for lack
of development. Among other problems, such incorporation by reference “creates the potential
for exceeding the allowable length of briefs and violates the rule addressing the required form of
appellate arguments.” Bank of America NA v. Neis, 2013 WI App 89, ¶11 n.8, 349 Wis. 2d 461,
835 N.W.2d 527; see also WIS. STAT. RULE 809.19(1)(e) and (8)(c).

22
No. 2022AP111-CR

¶57 In his postconviction motion, Blabaum argued that trial counsel was
ineffective in failing to: request the sequestration of witnesses during trial;
conduct a more extensive voir dire of prospective jurors; call Harazin as a witness;
and object to joinder of the disorderly conduct and theft cases, in part because this
would have allowed him to prevail in objecting to other-acts evidence in the theft
case when it was tried separately from the disorderly conduct case.

¶58 A defendant claiming ineffective assistance must show both that
counsel’s performance was deficient and that, as a result, the defendant was
prejudiced. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Thiel,
2003 WI 111, ¶18, 264 Wis. 2d 571, 665 N.W.2d 305. Counsel’s performance is
“constitutionally deficient if it falls below an objective standard of
reasonableness.” Thiel, 264 Wis. 2d 571, ¶19. Counsel’s deficient performance is
constitutionally prejudicial if “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. The defendant bears the
burden on both elements. State v. Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280,
717 N.W.2d 111.

¶59 In order to be entitled to an evidentiary hearing on a postconviction
claim alleging ineffective assistance of counsel, the defendant has to allege
sufficient material, nonconclusory facts, which, if true, show that he or she is
entitled to relief. See State v. Sulla, 2016 WI 46, ¶¶26-27, 369 Wis. 2d 225, 880
N.W.2d 659. This presents an issue of law, which is reviewed de novo. State v.
Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. “[I]f the defendant
fails to allege sufficient facts in his motion to raise a question of fact, or presents
only conclusory allegations, or if the record conclusively demonstrates that the

23
No. 2022AP111-CR

defendant is not entitled to relief, the trial court may in the exercise of its legal
discretion deny the motion without a hearing.” Sulla, 369 Wis. 2d 225, ¶27
(quoted source omitted). In that situation, the circuit court decision is reviewed
for an erroneous exercise of discretion. State v. Howell, 2007 WI 75, ¶¶75, 79,
301 Wis. 2d 350, 734 N.W.2d 48.

¶60 Sequestration. Blabaum’s postconviction motion asserted that,
because trial counsel did not request an order for witness sequestration, “the
prosecutor successfully elicited testimony from three witnesses, based on their
prior in[-]court observation[s] of other State’s witnesses, which effectively
bolstered the credibility of damaging testimonial evidence,” and that “the
credibility of witnesses was a critical and decisive issue.” In addressing the
postconviction motion, the circuit court ruled in pertinent part that Blabaum failed
“to show that the lack of sequestration created corroborating and material evidence
that would not have otherwise existed had the witnesses been sequestered.” I
agree with this determination; the assertions were speculative and conclusory.
Further, at least regarding the theft charge, Blabaum fails to show why the court
should have thought that credibility of any witness was especially at issue in the
theft case; the record suggests the opposite. Blabaum for the most part did not
dispute the truth of any witness’s testimony regarding the allegations supporting
the theft charge.

¶61 Voir dire. Blabaum’s postconviction motion argued that it was
ineffective for trial counsel not to have specifically asked during voir dire if
potential jurors had “met Mr. Blabaum before,” because there was a later
suggestion that one juror knew Blabaum. But potential jurors were asked if they
were acquainted with Blabaum or had engaged in business dealings with him. I
agree with the circuit court that Blabaum’s argument rests on a distinction that

24
No. 2022AP111-CR

could not possibly have represented deficient performance. Blabaum fails to
explain how an evidentiary hearing could have given life to a meritless argument.

¶62 Harazin as a potential witness. Blabaum’s postconviction motion
argued that it was ineffective for trial counsel not to have either objected to the
State’s pretrial motion involving the alleged statements of unidentified Tennessee
police officers to Harazin, discussed above, or to have requested a continuance of
the trial in order to assure Harazin’s appearance as a witness. Apparently, the
purpose would have been to call Harazin to relate what he was allegedly told by
Tennessee police officers on an abandonment concept. But I have explained my
conclusion that the nature of the “excluded testimony” at issue here is not clear.
More to the point on this issue, it was also not clear at the time the circuit court
was deciding whether an evidentiary hearing was required.

¶63 Joinder and other-acts evidence. Blabaum’s postconviction motion
asserted that it was ineffective assistance for trial counsel not to oppose joining the
disorderly conduct and theft cases together for one jury trial, suggesting that one
advantage for the defense in conducting two trials is that it would have been easier
for trial counsel to successfully argue against the admission of purported other-
acts evidence. As for the joinder issue, the circuit court made a well-supported
determination in addressing the postconviction motion that the facts related to the
disorderly conduct charge and those related to the theft charge heavily overlapped.
Neither in the circuit court, nor now on appeal, has Blabaum seriously contested
that determination. It is difficult to discern what might remain regarding the other-
acts concept if joinder was appropriate. In any case, it appears that Blabaum on
appeal fails to develop a related argument that I do not reject or deem to be of little
consequence in separate discussion above.

25
No. 2022AP111-CR

CONCLUSION

¶64 For all these reasons, I affirm the judgment of conviction and the
circuit court’s order denying postconviction motions without holding an
evidentiary hearing.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

26