State v. Samuel Martin Polhamus

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.
January 28, 2021
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. 2019AP2339-CR Cir. Ct. No. 2019CM30

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SAMUEL MARTIN POLHAMUS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Monroe County: RICHARD A. RADCLIFFE, Judge. Affirmed.

¶1 KLOPPENBURG, J.1 Samuel Polhamus was convicted, after a jury
trial, of disorderly conduct. Acting pro se, he appeals, arguing that videotaping a

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise stated.
No. 2019AP2339-CR

person with a cell phone does not constitute disorderly conduct, and that the
evidence was insufficient to support the conviction. I reject his arguments and
affirm.

BACKGROUND

¶2 The State charged Polhamus with disorderly conduct and bail
jumping relating to Polhamus’s conduct at a bar in Sparta on one night in January
2019. The case was tried by a jury in May 2019.

¶3 At the trial, the State presented seven witnesses, along with
videotape recordings from the night in question. The witnesses included two
police officers who testified as to their interactions with Polhamus when they
responded to a 911 call concerning a fight at the bar, the bartender who placed the
911 call, and three persons who were at the bar when Polhamus was at the bar
before the police officers arrived. The jury was also shown portions of videotape
recordings from the bar’s surveillance cameras, from Polhamus’s cellphone, and
from an officer’s body camera that showed Polhamus’s conduct at the bar and
with the police officers outside the bar. Polhamus testified in his own defense and
also played portions of the videotape recordings showing his conduct at the bar.

¶4 The jury found Polhamus guilty of disorderly conduct and not guilty
of bail jumping.

¶5 Polhamus filed a motion for postconviction relief, alleging that he
was entitled to a new trial because the State “cut a deal” with one of the witnesses
“to falsely testify against” Polhamus at trial. The circuit court construed
Polhamus’s motion as asserting the right to a new trial based on newly discovered
evidence and denied the motion in a written decision. Pertinent to this appeal, the

2
No. 2019AP2339-CR

court explained that the witness’s testimony was consistent with the videotape
recordings shown at trial, and that, even disregarding his testimony, there was no
possibility that a jury in a new trial would reach a different result because “[m]ost
of the relevant evidence was videos of the bar fight and [Polhamus’s] behavior
during and after the fight, including yelling profanities at police officers on a
public street.”

¶6 This appeal follows.

DISCUSSION

¶7 The legislature has defined the crime of disorderly conduct as
follows: “Whoever, in a public or private place, engages in violent, abusive,
indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct
under circumstances in which the conduct tends to cause or provoke a disturbance
is guilty of a Class B misdemeanor.” WIS. STAT. § 947.01. The circuit court here
instructed the jury that the State must prove the following two elements of the
crime: “Number one, the defendant engaged in violent, abusive, indecent,
profane, boisterous, unreasonably loud or otherwise disorderly conduct. Number
two, the conduct of the defendant under the circumstances as they then existed
tended to cause or provoke a disturbance. Disorderly conduct may include
physical acts or language or both.”

¶8 As stated, Polhamus argues that videotaping a person with a cell
phone does not, in itself, constitute disorderly conduct. Polhamus himself cites the
portion of the trial transcript where the circuit court, considering the evidence
presented at trial, agreed that Polhamus’s videotaping other bar patrons here did
not constitute disorderly conduct and struck references to such conduct from the
disorderly conduct jury instruction. Thus, regardless of the merits of this

3
No. 2019AP2339-CR

argument, the jury was not instructed that videotaping a person with a cell phone
can constitute disorderly conduct, and, as I next explain, there was more than
sufficient evidence apart from Polhamus’s videotaping to support the conviction.

¶9 “[I]n reviewing the sufficiency of the evidence to support a
conviction, an appellate court may not substitute its judgment for that of the trier
of fact unless the evidence, viewed most favorably to the state and the conviction,
is so lacking in probative value and force that no trier of fact, acting reasonably,
could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153
Wis. 2d 493, 507, 451 N.W.2d 752 (1990). “If any possibility exists that the trier
of fact could have drawn the appropriate inferences from the evidence adduced at
trial to find the requisite guilt, an appellate court may not overturn a verdict even if
it believes that the trier of fact should not have found guilt based on the evidence
before it.” Id.

¶10 While Polhamus does not expressly challenge the sufficiency of the
evidence, he does assert throughout his briefing that the evidence did not meet the
elements of the crime of disorderly conduct. Specifically, he argues that he was
the “victim of bad conduct of other patrons” and that he “tried his best to avoid
any conflict.” While his argument reflects the inferences he seeks to draw from
the evidence, it ignores the extensive evidence supporting inferences to the
contrary.

¶11 As to his conduct at the bar, the bartender’s testimony, along with
the videotaped recordings, showed that Polhamus was loud, accusatory,
“confrontational,” and “yelling” from the moment he entered the bar, and that he
did not leave when the bartender saw that things were getting out of hand and
instructed Polhamus to leave. Polhamus interacted with the bartender and other

4
No. 2019AP2339-CR

bar patrons in an antagonistic manner. Polhamus conceded that he did not
accurately recall what took place at the bar, but recalls that he made sure to make
others, including the person who ultimately hit Polhamus, which resulted in the
fight that followed, think he was “nobody to mess with.” He admitted that he used
loud, boisterous, and profane language with others in the bar.

¶12 As to Polhamus’s conduct with the officers outside the bar, the
officers’ testimony and the body camera recording played at trial showed that
Polhamus used loud, angry, profane, and argumentative language in the presence
of a large crowd. Officers asked Polhamus multiple times for his own safety to
move out of the public street to the sidewalk, and he repeatedly refused.

¶13 As to Polhamus’s conduct in both situations, the jury could
reasonably infer from the testimony and videotaped recordings that Polhamus
engaged in “profane, boisterous, unreasonably loud or otherwise disorderly
conduct” that, under the circumstances, “tend[ed] to cause or provoke a
disturbance.” WIS. STAT. § 974.01. Polhamus does not offer a developed
argument to the contrary that is non-conclusory and supported by citations to the
record.

CONCLUSION

¶14 For the reasons stated, I affirm.

By the Court.—Judgment and order affirmed.

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

5