State v. Chad Christopher Carlson

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.
June 25, 2026
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. 2024AP1710-CR Cir. Ct. No. 2019CF1038

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHAD CHRISTOPHER CARLSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: JOHN M. WOOD, Judge. Affirmed.

Before Graham, P.J., Kloppenburg, and Taylor, 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. 2024AP1710-CR

¶1 PER CURIAM. Chad Christopher Carlson appeals a judgment of
conviction for incest with a child by a stepparent and third-degree sexual assault,
and an order denying his motion for postconviction relief. Carlson makes two
arguments on appeal: first, that the circuit court erred by determining that the
affirmative defense of involuntary intoxication was not available to Carlson
because Carlson voluntarily consumed alcohol; and second, that the court
erroneously exercised its discretion by denying his motion to withdraw his jury
trial waiver. We reject both of Carlson’s arguments and affirm.

BACKGROUND

¶2 In October 2019, the State filed a criminal complaint charging
Carlson with one count of incest with a child by a stepparent and one count of
third-degree sexual assault of his step-daughter, A.B.1 The circuit court
rescheduled the trial date multiple times because of separate requests for
adjournments by each party.

¶3 At the final pretrial conference in January 2022, the parties informed
the circuit court that they had come to a plea agreement and requested a date for a
plea hearing. In order to schedule a plea hearing and remove the trial date from
the calendar, the court required that Carlson waive his right to a jury trial, to which
Carlson agreed. The court conducted a jury trial waiver colloquy, during which
Carlson indicated that he had kidney disease, he was on “heavy” medication, and
he had taken a hydrocodone pill one hour before the hearing. The court told

1
Consistent with the policy of protecting victim privacy under WIS. STAT.
RULE 809.86(4) (2023-24), we use initials that do not correspond to the victim’s name. All
references to the Wisconsin Statutes are to the 2023-24 version. We use actual names to refer to
all other individuals including Carlson and members of law enforcement.

2
No. 2024AP1710-CR

Carlson that it needed to “determine that you are understanding what we’re talking
about and that you’re making a conscious, intelligent decision about waiving your
constitutional right to a jury trial.” Carlson said that he understood, and further
expressed his understanding throughout the waiver colloquy. The court also told
Carlson that if Carlson had “a change of heart” and no longer wanted to go
through with a plea, “any trial in this case would be a trial to [the court].” Carlson
again said that he understood. Carlson requested an opportunity to speak with
counsel about the right he was waiving, which the court allowed before
completing the waiver colloquy and accepting Carlson’s waiver. The court
scheduled a plea hearing for March 2022.

¶4 At the scheduled plea hearing in March 2022, Carlson informed the
circuit court that he no longer wanted to accept the plea offer and wanted to
proceed to trial. The court stated that “the only trial [Carlson]’s entitled to right
now is a court trial in front of me” and scheduled a bench trial in July 2022, which
was eventually adjourned at the request of the State to October 2022.

¶5 In September 2022, Carlson filed a motion to withdraw his jury trial
waiver, asserting that because he was on pain medication at the time, he did not
fully consider and appreciate the constitutional rights that he was giving up, and
that granting his request would not substantially delay or impede the cause of
justice. After holding a hearing on the motion during which the court received
statements from the victim and the victim’s mother and heard arguments by the
parties, the court denied Carlson’s motion to withdraw his jury trial waiver.
Additional details regarding the motion and hearing will be provided in the
discussion that follows.

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No. 2024AP1710-CR

¶6 The one-day bench trial commenced in October 2022, during which
the following facts were established through testimony and evidence of an audio
recording and transcript of an interview Rock County Sheriff’s Deputy Zachary
Anacker conducted with Carlson in the early morning following the crimes.

¶7 Carlson shared a house with A.B.’s mother. In the four days
preceding the crimes, Carlson was sick with the stomach flu, and experienced
vomiting and diarrhea. He could not eat or keep water down.

¶8 On the second day of Carlson’s illness, he went to a scheduled
annual physical with his primary physician. Carlson requested, and received, a
prescription for Chantix, a medication to assist him in his attempts to quit smoking
cigarettes, which Carlson had used in the past. Carlson also spoke with his
physician about Metoprolol, a prescribed medication Carlson took for a heart
condition.

¶9 Carlson continued to experience flu-like symptoms, and sought
medical care on Wednesday. He was diagnosed with the stomach flu and given
anti-nausea medication. By Thursday, the day of the crimes, Carlson felt better
but was still home from work and ate little.

¶10 After completing some yard work on Thursday morning, around
11:30, Carlson went to the basement of his house where he did laundry, watched
television, and drank alcohol. Carlson had not consumed much food since Sunday
night. He drank all of the beer that he had, which was four cans. When the beer
was finished, Carlson did not want to drive a vehicle to purchase more beer, and
he switched to drinking mixed drinks. Carlson told Deputy Anacker that he

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No. 2024AP1710-CR

estimated that he drank between three and five mixed drinks.2 Carlson dozed off
and had a sexual dream about his wife.

¶11 Meanwhile, A.B. had come over to the house and was in her room.
When Carlson woke up from dozing in the basement around 5:00 p.m., he felt like
he “was in a cloud.” He went upstairs and entered A.B.’s room. While kneeling
beside her bed and conversing with her, Carlson touched A.B.’s breasts and
vagina, and claimed that while doing so he hallucinated that A.B. was his wife.

¶12 Carlson went outside, and A.B. texted her sister that “Chad had gone
too far,” and asked that their father pick A.B. up or that her sister call the police.
Carlson eventually returned to A.B.’s room and apologized. He told A.B. that he
did not know what he was doing and that he had been drinking. A.B. told him that
her father was coming to pick her up and walked out of the room. Soon after,
A.B.’s mother, who had been sleeping in the primary bedroom due to her third
shift work hours, awoke, and Carlson told her what had occurred.

¶13 Early the next morning, A.B.’s mother called the Rock County
Sheriff’s Department. Carlson was cooperative and agreed that police should be
called. Both Carlson and A.B. were interviewed by Deputy Anacker. In his
interview, Carlson denied ever previously engaging in “this type of behavior” with
A.B. In A.B.’s interview and in her trial testimony, she described a pattern of
behavior from Carlson beginning when she was twelve or thirteen years old that

2
At trial, Carlson testified that he did not remember the number of mixed drinks he
consumed during the afternoon before the crimes. In his postconviction submissions to the court,
Carlson’s expert estimates that Carlson consumed one mixed drink during the afternoon
preceding the crimes in support of the conclusion that given Carlson’s height and weight, he was
not intoxicated from the alcohol at the time of the crimes, but from the Chantix. However, this
assertion that Carlson consumed one mixed drink has no factual support in the record before us.

5
No. 2024AP1710-CR

involved Carlson touching her in ways that made her uncomfortable. In his trial
testimony, Carlson denied touching A.B. in a sexual manner previously, and he
could not remember whether he had put his fingers inside of A.B.’s swim suit on
one occasion as A.B. described.

¶14 During Carlson’s trial testimony, the State objected to a line of
questioning regarding Carlson’s use of Chantix, the daily prescription medication
Carlson began taking for assistance in quitting smoking cigarettes, on the Monday
before the crimes. Carlson had indicated in pretrial filings that at trial he would
introduce expert testimony that the effects of taking Chantix rendered Carlson
involuntarily intoxicated pursuant to WIS. STAT. § 939.42 such that he was unable
“to tell whether his acts were right or wrong at the time the acts [were]
committed.”

¶15 The State argued that questions pertaining to Carlson’s Chantix use
were irrelevant because the involuntary intoxication defense was not available to
Carlson given the uncontroverted evidence that Carlson had consumed a large
amount of alcohol along with his prescribed doses of Chantix during the day of the
crimes. The circuit court sustained the State’s objection to the testimony after
explaining that it had considered the issue by reviewing Carlson’s pretrial filings,
examining the language of the involuntary intoxication statute, and researching
and reviewing applicable case law, all of which led the court to conclude that
Carlson’s voluntary use of alcohol, in combination with Chantix, rendered the
involuntary intoxication defense unavailable to Carlson. Therefore, the court
concluded that evidence supporting an involuntary intoxication defense was
irrelevant. The court’s decision also resulted in Carlson not being able to call his
expert witness on the issue of the effect that Chantix might have had on Carlson’s
ability to determine right from wrong during the incident.

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No. 2024AP1710-CR

¶16 The circuit court found Carlson guilty of both criminal counts and
entered a judgment of conviction.

¶17 In May 2024, Carlson filed a motion for postconviction relief
requesting a new trial, arguing that the circuit court erred by prohibiting Carlson
“from introducing evidence supporting the statutory defense of involuntary
intoxication … solely because Carlson had consumed alcohol while also taking the
antismoking medication that Carlson asserted caused him to hallucinate … at the
time of the incident.” Pertinent here, Carlson asserted that the court’s decision
that the involuntary intoxication defense was not available to him “was premised
on an overly narrow reading of dicta in State v. Gardner, 230 Wis. 2d 32, 601
N.W.2d 670 (Ct. App. 1999).” Rather, Carlson argued that “implicit in the
Gardner court’s later observation that the involuntary intoxication defense is not
‘available’ when a [prescription] medication is mixed with ‘alcohol or another
controlled substance,’ is that the consumption of the alcohol or other controlled
substance is contrary to medical advice.”

¶18 In support of the motion, Carlson filed two reports by his proposed
expert witness regarding the effects of Chantix and the potential effects on
Carlson. The reports indicate that Carlson was warned by the prescribing
physician and the dispensing pharmacist to limit his consumption of alcohol, but
that there was no warning on the Chantix label to refrain from consuming alcohol
while taking the medication. The lack of a warning on the label was consistent
with FDA-approved prescribing protocols for Chantix. Therefore, Carlson argued
that because he was never warned to abstain from alcohol use when taking
Chantix, he was using the medication consistent with medical advice and should
have been allowed to introduce evidence to support an involuntary intoxication
defense.

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No. 2024AP1710-CR

¶19 The circuit court reviewed the parties’ submitted materials on the
issue and allowed counsel to make additional legal arguments before the court
issued an oral ruling denying the motion. The court explained that, as it had
concluded at trial, Gardner precludes Carlson’s use of the involuntary intoxication
defense due to Carlson’s voluntary consumption of alcohol. The court entered a
written order consistent with the oral ruling. Carlson appeals the judgment of
conviction and the postconviction order.

DISCUSSION

¶20 As noted, Carlson makes two arguments on appeal. First, he renews
his arguments at trial and in his postconviction motion that the circuit court erred
by prohibiting him from introducing evidence to support the affirmative defense of
involuntary intoxication. Second, he argues that the court erroneously exercised
its discretion when it prohibited him from withdrawing his jury trial waiver. We
address these arguments in turn.

I. Involuntary Intoxication Defense

¶21 Carlson argues that the circuit court erred by prohibiting him from
introducing evidence in support of the affirmative defense of involuntary
intoxication set forth in WIS. STAT. § 939.42, based on what he argues was the
court’s erroneous interpretation of the availability of that defense as explained in
Gardner. Specifically, Carlson argues that Gardner’s implicit conclusion is that
the consumption of alcohol automatically precludes an involuntary intoxication
defense only when the consumption of alcohol is contrary to medical advice.
Therefore, Carlson asserts that because he used Chantix as prescribed, he should
have been entitled to introduce evidence in support of an involuntary intoxication
defense.

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No. 2024AP1710-CR

¶22 The decision of whether to admit evidence is committed to the
discretion of the circuit court. State v. Jones, 2018 WI 44, ¶27, 381 Wis. 2d 284,
911 N.W.2d 97. “A circuit court properly exercises its discretion when it
considers the relevant facts, applies the correct law, and articulates a reasonable
basis for its decision.” Id. (citation omitted). Conversely, the court erroneously
exercises its discretion when it bases its decision on “an erroneous view of the
law.” State v. City of La Crosse, 120 Wis. 2d 263, 268, 354 N.W.2d 738 (Ct.
App. 1984). Whether a crime is subject to a privilege defense and the scope of
such a defense if it exists, present questions of law that we review de novo. State
v. Dundon, 226 Wis. 2d 654, 662, 594 N.W.2d 780 (1999).

¶23 The circuit court excluded evidence regarding the effects of Chantix
because it determined that such evidence was irrelevant—as the court explained,
case law makes clear that the involuntary intoxication defense was not available to
Carlson due to his consumption of alcohol. Accordingly, we independently
consider whether the involuntary intoxication defense was available to Carlson
based on the pertinent undisputed facts of this case. We conclude, for the
following reasons, that as a matter of law, the involuntary intoxication defense was
not available to Carlson because he voluntarily consumed a significant quantity of
alcohol in addition to taking Chantix prior to the crimes. Therefore, the court did
not erroneously exercise its discretion in excluding testimony in support of the
involuntary intoxication defense.

¶24 The affirmative defense of involuntary intoxication is set forth in
WIS. STAT. § 939.42:

An intoxicated or a drugged condition of the actor is a
defense only if such condition is involuntarily produced
and does one of the following: (1) Renders the actor
incapable of distinguishing between right and wrong in

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No. 2024AP1710-CR

regard to the alleged criminal act at the time the act is
committed[; or] (2) Negates the existence of a state of mind
essential to the crime.

The effect of a prescription medication can form the basis for an involuntary
intoxication defense, but only under specific circumstances. Gardner, 230
Wis. 2d at 40. Pertinent here, the involuntary intoxication defense is not available
when a person voluntarily “mixes a prescription medication with alcohol or other
controlled substances” because the voluntary nature of doing so cannot be
reconciled with the requirement of involuntary intoxication in asserting the
defense. Id. at 42.

¶25 Here, the undisputed facts establish that, on the day of the crime,
Carlson took two doses of Chantix, as prescribed, in addition to prescription
medication for his heart and anti-nausea medication. That afternoon, Carlson
consumed four beers and estimated to Deputy Anacker that he consumed between
three and five mixed drinks. Carlson’s consumption of alcohol followed Carlson
experiencing four days of stomach flu accompanied by persistent vomiting and
diarrhea that rendered Carlson unable to work or eat.

¶26 Carlson argues that the “overall structure and logic” as well as the
“immediate language surrounding” the prohibition on alcohol consumption in
Gardner show that this court “implied” that the mixing of alcohol with a
prescription medication must be contrary to medical advice. We are not
persuaded.

¶27 For context, we reproduce the quote from Gardner with the
surrounding language:

When faced with a medical condition requiring drug
treatment, the patient hardly has a choice but to follow the
doctor’s orders. Intoxication resulting from such

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No. 2024AP1710-CR

compliance with a physician’s advice should not be deemed
voluntary just because the patient is aware of potential
adverse side effects. We agree with the Texas courts’
formulation of when the defense is available. “The
involuntary intoxication defense is limited to (1) the
defendant’s unawareness of what the intoxicating substance
is; (2) force or duress; or (3) medically prescribed drugs
taken according to prescription.” Shurbet v. State, 652
S.W.2d 425, 428 (Tex. Ct. App. 1982) (emphasis added).
We note that this does not include cases where a patient
knowingly takes more than the prescribed dosage, see
Goldsmith v. State, 148 Ga. App. 786, 252 S.E.2d 657
(1979), or mixes a prescription medication with alcohol or
other controlled substances, see State v. Voorhees, 596
N.W.2d 241 (Minn. 1999). Neither would the defense be
available to one who voluntarily undertakes an activity
incompatible with the drug’s side effects. See City of
Wichita v. Hull, 11 Kan. App. 2d 441, 724 P.2d 699 (1986)
(holding that involuntary intoxication defense was properly
denied where defendant drove after taking sleeping pill).

Gardner, 230 Wis. 2d at 41-42.

¶28 While this paragraph does discuss the availability of the involuntary
intoxication defense for a person taking prescription medication according to
medical advice, the language barring the use of the defense when alcohol is also
consumed has no such limitations. Carlson argues that it “would make no sense”
and “would lead to absurd results” if we interpreted the language making the
defense unavailable when the defendant combines his prescription medication
with alcohol even when alcohol use is not contrary to medical advice. We reject
this proposition because this court and our supreme court have made clear that the
involuntary intoxication defense is not available to a defendant who voluntarily
consumes alcohol with prescription medication.

¶29 In Anderson, our supreme court considered whether a defendant
could base an insanity defense on the use of prescription medication as allowed in
an involuntary intoxication defense. State v. Anderson, 2014 WI 93, ¶¶17-35, 357

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No. 2024AP1710-CR

Wis. 2d 337, 851 N.W.2d 760. In concluding that there was no basis in law to
apply such an exception in the insanity defense context, the court extensively
discusses the involuntary intoxication defense pursuant to WIS. STAT. § 939.42.
Anderson, 357 Wis. 2d 337, ¶¶22-23, 25, 28-35. The court states that if

the rationale in Gardner—which holds prescription drugs
can form the basis of an involuntary intoxication defense—
is also applicable to an insanity defense, any limitations to
that defense would apply with equal force to this case.
And, as the court of appeals explained in Gardner, one who
“mixes a prescription medication with alcohol or other
controlled substances” is not eligible for the involuntary
intoxication defense.

Id., ¶33. The court determined that Gardner’s reasoning on this issue “is in
keeping with the generally accepted principle that an individual is responsible for
the consequences that result from voluntary consumption of mind-altering
substances,” id., ¶34, and “it is established law that one who mixes prescription
medication with alcohol is responsible for any resulting mental state,” id., ¶36.
The court also cited Godfrey for the proposition that “[a] person who consumes an
intoxicant along with medication[] does so at his own peril.” City of Waukesha v.
Godfrey, 41 Wis. 2d 401, 406, 164 N.W.2d 314 (1969).

¶30 This court “may not dismiss a statement from an opinion by [our
supreme] court by concluding that it is dictum.” Zarder v. Humana Ins. Co.,
2010 WI 35, ¶58, 324 Wis. 2d 325, 782 N.W.2d 682.

¶31 Moreover, the expert reports submitted by Carlson in support of his
postconviction motion reinforce the logic of the above statements from Anderson
and Godfrey. The reports state that Carlson’s “visual hallucinations” on the day of
the crimes were caused by Chantix and “exacerbated by the concomitant use of
alcohol.” One of the reports states that Carlson had been warned by both the

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No. 2024AP1710-CR

prescribing physician and the dispensing pharmacist to limit his use of alcohol.
This warning went unheeded by Carlson given his statements to Deputy Anacker
that Carlson had consumed between seven and nine alcoholic drinks on the
afternoon of the crimes after suffering from the stomach flu during the four
previous days and consuming little food. In Carlson’s statement to law
enforcement about the crimes, Carlson admitted that he had a “good buzz going”
when he entered A.B.’s bedroom, and he blamed his behavior on alcohol (rather
than the effects of Chantix) when he apologized to A.B.

¶32 Accordingly, we reject Carlson’s argument that the circuit court
erred as a matter of law when it determined that the involuntary intoxication
defense was not available to Carlson.3 Therefore, the court did not erroneously
exercise its discretion when it excluded evidence in support of this defense.

II. Withdrawal of Jury Trial Waiver

¶33 Carlson argues that the circuit court erroneously exercised its
discretion when it refused to allow him to withdraw his jury trial waiver. This
court reviews a circuit court’s denial of a defendant’s motion to withdraw a valid
jury trial waiver for an erroneous exercise of discretion. State v. Cloud, 133

3
Because our conclusion on this issue is dispositive, we do not address Carlson’s
argument that he met the “some evidence” burden of production required to assert the affirmative
defense of involuntary intoxication. See Barrows v. American Fam. Ins. Co., 2014 WI App 11,
¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court need not address every issue
raised by the parties when one issue is dispositive.”).

We also do not address Carlson’s argument that the language in State v. Gardner, 230
Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999), should be “clarified,” because, as Carlson
acknowledges, only our supreme court possesses such authority. See Cook v. Cook, 208 Wis. 2d
166, 189-90, 560 N.W.2d 246 (1997) (“[O]nly the supreme court … has the power to overrule,
modify or withdraw language from a published opinion of the court of appeals.”).

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No. 2024AP1710-CR

Wis. 2d 58, 63, 393 N.W.2d 123 (Ct. App. 1986). As stated, “[a] circuit court
properly exercises its discretion when it considers the relevant facts, applies the
correct law, and articulates a reasonable basis for its decision.” Jones, 381
Wis. 2d 284, ¶27 (citation omitted).

¶34 The circuit court should exercise its discretion “liberally in favor of
granting the defendant’s right to a jury trial.” Cloud, 133 Wis. 2d at 63. The court
“must balance the legitimate interests of the court and prosecutor with the
defendant’s fundamental interest in the right to a trial by jury.” Id. at 64. The
court should consider “the defendant’s reason for requesting withdrawal, the
timing of the request, relevant changes of circumstances, and the delay,
inconvenience, or other adverse consequences of allowing withdrawal.” Id. at
63-64. In addition, the court erroneously exercises its discretion when it denies a
motion to withdraw a jury trial waiver “if there is no showing that granting
withdrawal would have substantially delayed or impeded the cause of justice.” Id.
at 65.

¶35 We now provide additional relevant facts regarding Carlson’s
motion to withdraw his jury trial waiver.

¶36 In his motion, Carlson argued that he did not “fully consider and
appreciate the constitutional right that he was giving up” when he waived his right
to a jury trial because he was experiencing pain and taking pain medication at the
time. Carlson also argued that, even if his waiver was proper, the circuit court
should allow him to withdraw his waiver because “granting his request will not
substantially delay or impede the cause of justice.” In an affidavit filed in support
of his motion, Carlson averred, in pertinent part, that during the hearing at which
he waived his right to a jury trial, his “mind was clouded from the pain and the

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No. 2024AP1710-CR

medication; [and he] was unable to focus on what was being said to [him] about
waiver of [a] jury [trial] and to understand the impact of that decision.”

¶37 The circuit court held a hearing on Carlson’s motion in
September 2022. The victim and the victim’s mother made statements to the court
regarding their concern about how the withdrawal of Carlson’s jury trial waiver
“might further delay the process and our healing process,” as well as the
“difficult[y]” and “trauma” they would suffer as a result of changing the trial from
a bench trial to a jury trial. Carlson and the State made oral arguments, and the
court proceeded to make an oral ruling.

¶38 The circuit court first addressed the factors set forth in Cloud as
follows. The court explained that Carlson’s reason for requesting the jury trial
waiver withdrawal was “nothing more than a change of heart” that did not weigh
in favor of granting the motion. See Cloud, 133 Wis. 2d at 63 (courts should
consider reason for requesting withdrawal). The court next noted that the request
came “approximately 30 days prior to the [c]ourt trial” and that it had not
presented any relevant change of circumstances that supported the waiver
withdrawal. See id. at 63 (courts should consider timing of request and relevant
changes of circumstances).

¶39 The circuit court then turned to “the delay, inconvenience, or other
adverse consequences of allowing th[e] withdrawal,” id. at 64, and explained that
it was “keenly sensitive to the delay that this is going to cause if this motion were
to be granted and obviously the impact to and inconvenience to the victims and
witnesses.” The court determined that there would be no prejudice to the State if it
granted the motion. Finally, the court considered whether withdrawal would cause
any interference with the orderly administration of justice. On this point, the court

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No. 2024AP1710-CR

stated: “we have been coming out of a pandemic and we have been holding jury
trials like crazy, … and it has been complicated to try to work through our
backlogs and try to get cases on for jury trials and court trials so we can proceed
with the criminal justice system with an orderly administration of justice.”

¶40 After attempting unsuccessfully to fit in a jury trial during the week
that the bench trial was scheduled, the circuit court concluded that the decision on
Carlson’s motion to withdraw his jury trial waiver “really does boil down to
whether or not further delay to reschedule a jury trial would impede the cause of
justice, and I’m finding that it certainly would in this case given that we’ve had
this case scheduled multiple times for trial without the ability to get it resolved for
one reason or another.” The court specifically noted speedy trial demands in other
cases on its calendar and the prosecutor’s calendar. Accordingly, the court denied
Carlson’s motion to withdraw his jury trial waiver.

¶41 We conclude that the circuit court did not erroneously exercise its
discretion in denying Carlson’s motion to withdraw his jury trial waiver. The
court properly considered “the defendant’s reason for requesting withdrawal, the
timing of the request, relevant changes of circumstances, and the delay,
inconvenience, or other adverse consequences of allowing withdrawal.” Cloud,
133 Wis. 2d at 63-64. The court also specifically considered the expressed
preferences of the victim for timely disposition of the case, a right enshrined in
WIS. CONST. art. I, § 9m. The court reasonably concluded that, given what it
described as the complicated nature of scheduling trials as courts re-opened after
the COVID-19 pandemic to a flood of delayed jury trials, as well as the inability to
schedule a jury trial at which the prosecutor could be present in the weeks
following the scheduled bench trial, allowing Carlson to withdraw his jury trial
waiver would impede the cause of justice.

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No. 2024AP1710-CR

¶42 Carlson argues that the circuit court erroneously exercised its
discretion because it did not specifically determine the length of the delay that
would be caused by the jury trial waiver withdrawal. While the court did not
explicitly state that allowing Carlson to withdraw his waiver would “substantially
delay” the trial, see Cloud, 133 Wis. 2d at 65 (emphasis added), we conclude that
this determination was implicit in the court’s discussion of the negative impacts
the waiver withdrawal would have on the victim and the delay that would be
caused in part due to the large backlog of cases for trial caused by pandemic
closures. We further note that “substantially” is not defined in Cloud or
subsequent case law, and that the court could have reasonably concluded that any
additional delay, given the nearly three years that had elapsed since the date of the
crimes, would substantially delay justice for the victim, as she expressed in her
statement opposing Carlson’s withdrawal of his jury trial waiver.

¶43 Carlson also asserts that the circuit court erroneously exercised its
discretion when it concluded that Carlson’s “change of heart” was an improper
reason for withdrawal. This misrepresents the court’s statement: the court merely
explained that it did not consider the “change of heart” reasoning as a factor
weighing in favor of granting Carlson’s motion. Carlson does not cite legal
authority in support of his proposition that this was an erroneous exercise of
discretion, and we reject the assertion on that basis. See Industrial Risk Insurers
v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769
N.W.2d 82 (“Arguments unsupported by legal authority will not be
considered[.]”).

¶44 Carlson next argues that the circuit court did not account for the
change in circumstances between the date Carlson waived his right to a jury trial,
when he was experiencing pain from kidney stones and planned to take a plea, and

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No. 2024AP1710-CR

the date Carlson moved to withdraw his waiver, when he was scheduled to go to
trial. The court reasonably concluded that this was not a significant change in
circumstances that outweighed the delay in the cause of justice, especially because
Carlson was aware that he was going to trial in fall 2022 back in March 2022, yet
he did not move for withdrawal of his jury trial waiver until approximately one
month before the scheduled bench trial.

¶45 Finally, Carlson argues that the circuit court’s comments at the
hearing at which Carlson waived his right to a jury trial “suggested that it was
enforcing the waiver as a matter of policy, which is antithetical to an exercise of
discretion.” We disagree that any such comments at the jury trial waiver hearing
rendered the court’s denial of Carlson’s motion for withdrawal erroneous. As
explained above, the court considered the factors set forth in Cloud and
determined that, on the specific facts of this case, allowing Carlson to withdraw
his waiver would impede and delay the cause of justice and interfere with its
orderly administration.

¶46 In sum on this issue, we conclude that the circuit court did not
erroneously exercise its discretion in denying Carlson’s motion to withdraw his
jury trial waiver.

CONCLUSION

¶47 For the reasons set forth above, we affirm.

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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