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COA rejects slew of challenges to theft conviction

State v. Jeffrey L. Blabaum, 2022AP111, 11/10/2022, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Blabaum texted his ex and told her to meet him in Dodgeville to retrieve a few personal items she’d left behind when she moved out of the home they shared in Tennessee. He also sent a picture of one of the items, a bench, which appeared to be sitting in a trailer. His text specified that she should “Come alone.”

She did not come alone. Instead she called the police, who sent an officer to accompany her. Blabaum arrived towing a trailer. The ex testified that when Blabaum saw the officer, he became angry and eventually drove off, saying he was going to destroy or burn the property.

The state charged Blabaum with misdmeanor theft for failing to return the property; it also charged him with disorderly conduct related to an incident some months previous also involving the ex. The case went to a jury trial; Blabaum was acquitted of the DC and convicted of the theft. He appeals. He claims:

  • That the state failed to prove the alleged theft happened within its territorial jurisdiction. As the court of appeals notes, there was evidence that he’d texted a picture of the disputed property inside a trailer, showed up in Dodgeville, Wisconsin towing a trailer, and then taken off. But Blabaum says the corroboration rule should protect him from being convicted on the strength of his text alone, which he labels a “confession.” The court of appeals says even accepting that premise, there was ample corroboration in the form of evidence about the history of the bench and Blabaum’s possession of it, as well as his appearance on and then disappearance from the scene with the trailer. The court similarly rejects an argument that because the ex had never seen this particular trailer before, there’s insufficient support for the notion that the property was inside this particular trailer just after Blabaum texted the ex a picture of the property in a trailer.
  • That the court should have granted a mistrial he sought after the ex testified to the effect that she’d left their shared home in a hurry and, later, showed up for the property exchange with a policeman because he’d put hands on her in the past. The court of appeals concludes that the sustained objections, striking of testimony, admonishments against further such testimony and instructions to the jury were good enough.
  • That the trial court committed plain error by excluding some possible testimony to the effect that a police officer in Tennessee had told a third person that by leaving her property in the home in Tennessee, the ex had “abandoned” it. The court of appeals said Blabaum hasn’t clearly explained the nature or significance of this testimony, and declines to find plain error.
  • That an officer’s testimony that he’d referred the DC charge with the “domestic modifier” was so prejudicial as to amount to plain error. No, says the court of appeals.
  • That the prosecutor made improper arguments constituting a “penalty” on Blabaum for not testifying. The court of appeals says that in context, the prosecutor’s statements did not invite the jury to draw inferences against him because of his silence.
  • That his trial counsel was ineffective for various reasons, none of which, in the court of appeals’ view, hold water.
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