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Trial counsel’s failure to object to jury instruction deprives appellant of right to challenge sufficiency of evidence

State v. Addison F. Steiner, 2013AP2629-CR, district 4, 10/16/14 (not recommended for publication); case activity

This case raises an issue that even the court of appeals deemed to be of first impression. Does §948.20, which criminalizes abandonment of a child, require an intent to abandon a child permanently, or is leaving a child alone for 1 or 2 hours enough?  If the latter, then how is “child abandonment” different from “child neglect” under §948.21? The court of appeals refused to address the issue for reasons that should trouble anyone challenging the sufficiency of the evidence to support a jury verdict.

Here is what happened.  Steiner, recently divorced and recently unemployed, is the single parent of 3 kids and suffers from depression. He left his 3-year old at home asleep in bed with the door held shut by a bungee cord so that he could keep an appointment with his therapist.  It is undisputed that he intended to return home. He was convicted of both child abandonment and child neglect.  Postconviction, he argued that the State had presented insufficient evidence to prove “abandonment,” a term that Wisconsin law does not define.

The court of appeals held that Steiner forfeited his “sufficiency of the evidence” argument by failing to object either to the instruction the jury was given regarding §948.20 or the DA’s closing argument that “intent to abandon” does not mean “abandon permanently.”  Saying that Steiner did not present a “true sufficiency of the evidence issue,” the court of appeals asked why it should measure the sufficiency of the evidence against §948.20, as it might now interpret that statute, instead of measuring it against the instruction the jury received and the DA’s closing argument–both of which passed without objection.   The answer, the court admitted, “is far from apparent” due to unsettled case law. Slip op. ¶¶9-10.  The court also held:

¶12      Instead of making a timely objection, Steiner now argues that there is a sufficiency of the evidence problem based on a novel legal theory that was not put before the jury, and not put before the circuit court until it was too late for the circuit court to efficiently correct any error.   In his reply to the State’s forfeiture argument, Steiner does not provide support for the proposition that we should disregard the forfeiture rule under these circumstances.

Actually, Steiner did argue–with citation to legal authority–that the forfeiture rule should not apply here. First, an appellant need not preserve a “sufficiency of the evidence” argument in the trial court in order to raise it on appeal.  See §809.30(2)(h), §974.02(2) and State v. Hayes, 2004 WI 80, 273 Wis. 2d 1, 681 N.W.2d 203. Second, he presented the issue to the circuit court via his postconviction motion (even though this was unnecessary). Third, the court of appeals had the discretion to decide the issue pursuant to its §752.35. See Steiner’s briefs here and here.

The problem is that this decision strives so hard to steer clear of the “abandonment” versus “neglect” issue that it drives right off the road, taking the defendant’s unwaivable right to argue insufficiency of evidence with it. Even if the court of appeals believed that Steiner’s interpretation of the §948.20 test for abandonment was forfeited, it could have–and should have–decided for itself whether the evidence presented at trial meets §948.20.  The effect of this decision is that a defendant who fails to object to a jury instruction apparently also forfeits his right to challenge the sufficiency of evidence.  Thank goodness the decision is not recommended for publication, although that recommendation seems really peculiar given that the decision acknowledges an issue of first impression re abandonment and unsettled law re how to measure insufficiency of evidence in these circumstances.  Hopefully, SCOW will take a look at what went wrong here.

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