State v. Todd M. Tuecke

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.
March 21, 2024
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. 2023AP327-CR Cir. Ct. No. 2021CF111

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TODD M. TUECKE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for Grant
County: CRAIG R. DAY, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Nashold, 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).

¶1 PER CURIAM. In this criminal case, the State alleged that Todd
Tuecke stole from his former employers while working at their family owned and
No. 2023AP327-CR

operated flooring and cabinetry supplier (“the company”). Following a three-day
trial, a jury found Tuecke guilty on five theft charges: four misdemeanors and one
felony. Tuecke appeals the judgment of conviction and orders of the circuit court
denying postconviction relief and for restitution.1 Tuecke challenges the
following circuit court actions: the court’s handling of his requests, made both
before and during trial, for orders compelling a co-owner of the company to
produce records; the court’s denial of his postconviction request for an order
compelling production of records from the co-owner; and the court’s denial of
post-trial motions. We reject each argument and accordingly affirm.

BACKGROUND

¶2 In May 2021, the State filed a criminal complaint alleging that
Tuecke, while working as the company’s flooring manager, stole from his
employers on six occasions between July 2018 and July or August 2020.2 Tuecke
became flooring manager in 2011 or 2012 and he stopped working at the company
in late August 2020.

1
Tuecke does not challenge any aspect of the restitution order in this appeal.
2
The amended information charged two forms of theft, as the circuit court properly
explained in instructing the jury. Five counts charged violations of WIS. STAT. § 943.20(1)(a)
(2021-22), which in pertinent part prohibits “[i]ntentionally … transfer[ring] … movable property
of another without the other’s consent and with intent to deprive the owner permanently of
possession of such property.” One count charged a violation of § 943.20(1)(b), which in pertinent
part prohibits one who, “[b]y virtue of his or her … employment,” has “possession … of money”
belonging to another, “intentionally … retains possession of such money … without the owner’s
consent, contrary to his or her authority, and with intent to convert [the money] to his or her own
use.” No issue is raised in this appeal based on the difference between these two forms of theft.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP327-CR

¶3 The prosecution’s theory was that Tuecke unlawfully transferred or
retained for himself money or property that customers of the company had
provided or offered to Tuecke while he was working at the company. According
to the prosecution, in each incident Tuecke “manipulat[ed]” the company’s system
for invoicing jobs in order to attempt to receive money or property from customers
and kept “money that he should not keep.” In one instance Tuecke allegedly
“bartered” with a company customer for an arrangement under which Tuecke
would personally accept a sauna for his personal use from the customer in lieu of
paying the company for tile that was installed in the customer’s residence.

¶4 Tuecke testified extensively at trial, as did a person we identify here
as A.B., one co-owner of the company.3 The defense argued at trial that each of
the charged counts “rests on [A.B.] saying, I never got the money” that was paid to
the company by customers. The prosecution could not prove its case, according to
the defense, because “[t]here’s nothing to back that up” in the way of evidence,
including sufficient documentary evidence. According to the defense, after
Tuecke left the company, A.B. noticed “a couple of anomalies” in transactions that
Tuecke had handled and as a result A.B. went “fly[ing] out of control” and
reported thefts to the police, who conducted an inadequate investigation.

¶5 The jury found Tuecke guilty on four of the five misdemeanor
counts and the one felony count; it found him not guilty on Count Two. Tuecke
filed motions for various types of relief after trial and after conviction, all of which
were denied by the circuit court. Tuecke now appeals.

3
We refer to victims by initials that do not correspond to their actual initials. See WIS.
STAT. RULE 809.86(4).

3
No. 2023AP327-CR

DISCUSSION

I. MOTIONS TO COMPEL PRODUCTION BEFORE AND AT TRIAL

¶6 Tuecke argues that the circuit court erred before and during trial in
failing to require A.B. to produce “material, exculpatory evidence” that Tuecke
“needed in order to avail himself of his constitutional due process right to a
meaningful opportunity to present a complete defense.” We now provide further
pertinent background and then explain why we reject this argument.

A. Additional Background

Pretrial events

¶7 Tuecke filed a pretrial motion for an order compelling “either the
State or [A.B.] … to produce business records” of the company “from January 1,
2018 to August 25, 2020, including accounting, invoices, and inventory records.”4
As supporting authority, Tuecke cited Pennsylvania v. Ritchie, 480 U.S. 39
(1987), as well as State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App.
1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298. Both
Shiffra and Green would be overruled in State v. Johnson, 2023 WI 39, 407
Wis. 2d 195, 990 N.W.2d 174, approximately one month before Tuecke filed his
opening brief in this appeal. It was of course reasonable for Tuecke in the circuit
court to rely on Shiffra and Green, since they were still good law.

4
Although this motion requested an order requiring the prosecution or A.B. to produce
these company records, it was not disputed in the circuit court and is also not disputed on appeal
that the prosecution did not possess these records. Tuecke’s consistent focus has been on what
A.B. did or did not produce, or should have been required to produce, on behalf of the company.

4
No. 2023AP327-CR

¶8 In September 2021, the circuit court granted the motion by directing
A.B. to produce specified records, noting that in the event that A.B. failed to
comply with this direction, the court would consider appropriate next steps.5

¶9 A.B. later testified that he complied with this order by providing to
Tuecke’s counsel six “bankers boxes” that contained “source documents for all of
our flooring materials and/or business,” “invoices” for flooring sales, and “all of
the individual [customer] files.” A.B. testified that the search involved
“grabb[ing] everything” in company records related to flooring sales for the
previous two-and-one-half years. He further testified that the contents of the
boxes included “hundreds and hundreds” of carbon copies of invoices.

¶10 On November 5, 2021, Tuecke filed a motion (“the November 2021
motion”) for an order “either prohibit[ing] or limit[ing]” A.B.’s trial testimony, on
the ground that the boxes produced by A.B. did not include “anything that could

5
The court’s order stated in pertinent part:

a. [A.B.] shall provide the following records from [the company
for] the time period of January 1, 2018 to August 25, 2020:

1) Flooring inventory records.

2) Job files for all flooring jobs.

3) Income and Expense records for the flooring division.

b. [Stating a protective order not relevant to any issue raised on
appeal.]

c. [A.B. and the company] must provide the records described in
paragraphs 2.a.1-3 of this order by October 15, 2021 or elect to
not produce the records.

d. If [A.B. and the company] elect to not produce the records, the
court will schedule further proceedings.

5
No. 2023AP327-CR

be described as income or expense records” of the company. As with his prior
motion, Tuecke cited Ritchie, Shiffra, and Green as legal authority for the
November 2021 motion. Tuecke argued that, if A.B. possessed these records and
failed to produce them, the circuit court should preclude A.B. from testifying at
trial. In the alternative, Tuecke argued, if the records did not exist, A.B.’s
“testimony should be excluded or restricted because it is not reliable or credible.”
Explaining this last point further, the motion stated in part: “If there is no
accounting from [the company] about money that may have come into the
business and what accounts or expenses it was applied to, [A.B.’s] testimony that
he reviewed records and concluded [that Tuecke] failed to reimburse the business
are not reliable statements.”6

¶11 In December 2021, the circuit court held an evidentiary hearing to
address the November 2021 motion. The only witness was A.B., who testified in
part as summarized supra, ¶9. He also testified that it was suspicious that invoices
could not be found for some of Tuecke’s jobs, supporting the inference that

6
Also in November 2021, Tuecke subpoenaed A.B. for the production of a broader set
of records than those covered by the circuit court’s September 2021 order. The circuit court
issued a protective order that in essence quashed the subpoena. For the following three reasons,
we do not address the subpoena or the circuit court’s order in response. First, Tuecke has
abandoned any related argument on appeal. See A.O. Smith Corp. v. Allstate Ins. Cos., 222
Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the [circuit] court, but
not raised on appeal, is deemed abandoned.”). Second, Tuecke fails to reply to the State’s
observation on appeal that we should ignore the subpoena and resulting order because the record
does not include a copy of the subpoena or a transcript from a hearing on November 24, 2021, at
which the court addressed the subpoena. United Coop. v. Frontier FS Coop., 2007 WI App 197,
¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to an
argument made in respondent’s brief may be taken as a concession). Third, and closely related to
the second reason, the record apparently does not include a copy of the subpoena or a transcript
from the November 24 hearing. See State v. McAttee, 2001 WI App 262, ¶5 n.1, 248 Wis. 2d
865, 637 N.W.2d 774 (appellant is responsible for completeness of the appellate record; when the
record is incomplete in connection with an issue raised by the appellant, we assume that the
missing material supports the circuit court’s ruling).

6
No. 2023AP327-CR

Tuecke stole customer funds entrusted to him as a company employee. At the
conclusion of A.B.’s testimony, the prosecutor represented that, based on various
references A.B. had made during the hearing, the prosecutor would obtain from
A.B. and produce to the defense some additional company records.

¶12 The following exchange then occurred:

THE COURT: So in light of what we’ve learned
today, [Tuecke’s counsel], do you have any requests for
further discovery?[7]

[DEFENSE COUNSEL]: I think what I learned
today is I don’t think that anything else exists for me to
even ask for. So I’m not satisfied, but I don’t think there’s
anything to do about that.

Defense counsel did not elaborate on what left him “not satisfied.” Shortly after
this, the court asked both sides if they had any additional points to raise and both
responded no.

¶13 After Tuecke retained new counsel in March 2022, the new counsel
filed a motion on October 5, 2022, three weeks before trial. This motion sought an
order

7
“Discovery” generally refers to the production that one party is obligated to make, or in
any case does make, of material in the possession of that party to another party in litigation,
including the materials that the State produces to the defense in a criminal prosecution. See State
v. Schaefer, 2008 WI 25, ¶¶22-23, 308 Wis. 2d 279, 746 N.W.2d 457 (discussing pretrial
statutory discovery obligations of the State to criminal defendants, as well as the State’s
constitutional obligation to produce material, exculpatory evidence in the State’s possession
under authority that includes Brady v. Maryland, 373 U.S. 83 (1963)). But here, the circuit court
used “discovery” to refer to evidence in the possession of A.B. (who is not a party in this case),
and not to evidence in the possession of the State. The parties on appeal both use “discovery” the
same way. We recognize that “pretrial discovery” is sometimes loosely used, as the circuit court
and the parties have here, to mean something like “all information to which a party is entitled or
that a party seeks to obtain.”

7
No. 2023AP327-CR

compelling the State, [the company], and [A.B.] to produce
records or monthly spreadsheets pertaining to the period
from July, 2017, through December, 2020, compiled from
data entered and kept using the BusinessWorks
bookkeeping program employed by [the company], that
record or reflect all income and deposits from each
individual flooring customer account, whether invoiced or
not, and how it was allocated.

We call this “the BusinessWorks motion.”

¶14 The BusinessWorks motion noted that, at the December 2021
evidentiary hearing, A.B. had testified that his co-owner at the company, identified
here as C.D., regularly used a BusinessWorks software bookkeeping program to
record information that included invoices, accounts receivable, and allocations of
payments coming from customers. The motion further alleged that the company
“had a practice during the time [when Tuecke] was employed there of applying
un-invoiced cash payments from flooring customers to zero-out inactive accounts
of other customers in various departments.” Having made those points, the motion
acknowledged that A.B. had produced to Tuecke “BusinessWorks records of
flooring customer invoices billed and paid,” but asserted that A.B. had not
produced “BusinessWorks records showing un-invoiced payments or deposits
from customers and how they were allocated.”

¶15 The apparent import of this additional information for the defense
was that it might help show that Tuecke had not kept money that he received from
customers for flooring jobs for which no invoice was created. Rather, these
additional records could show that he had instead properly turned the money over
to the company and that money had been used by A.B. or others to reduce or
eliminate debt reflected in the company’s records for customer accounts on other
jobs, perhaps including non-flooring jobs (sometimes referred to as “zeroing out”
the other accounts). As legal authority, the BusinessWorks motion cited WIS.

8
No. 2023AP327-CR

STAT. §§ 971.23(7) and 971.31, and the Fifth, Sixth, and Fourteenth Amendments
to the federal constitution.

¶16 The circuit court took up the BusinessWorks motion at the final
pretrial hearing, at which A.B. was present and at times spoke on the record. The
court declined to compel the production of any additional records after hearing
positions that included the following.

¶17 Although Tuecke’s counsel indicated that he could not be definitive,
he said that he believed that the banker’s boxes produced to Tuecke’s prior
counsel in response to the circuit court’s September 2021 order did not contain
“ledgers” showing income to the company. Counsel suggested that Tuecke would
testify that the company had a practice of accepting cash payments from customers
for which there would not be a recorded “deposit” or “invoice.” Counsel further
said that Tuecke would testify that “often cash payments would be used to zero out
other open accounts of other customers,” such as “essentially inactive and
uncollectible” accounts.

¶18 A.B. said at the hearing that the company had the following practices
when Tuecke was employed there. When a customer made an advance payment to
a company representative such as Tuecke, the representative placed the customer’s
advance payment money in an envelope memorializing a deposit on a job. C.D.
would make a corresponding entry in the BusinessWorks program reflecting such
a deposit. However, A.B. represented that the company’s BusinessWorks records
were backed up only two years into the past, which would mean that the only
computer records still available would be from October 2020, after the last
charged offense in August 2020.

9
No. 2023AP327-CR

¶19 On a related point, A.B. further said that the company had already
printed out the company’s BusinessWorks records and included them in the
banker’s boxes produced to Tuecke’s prior counsel. Tuecke’s then-counsel
returned the boxes to the company following the December 2021 hearing. A.B.
said that at that point “I probably just shredded [the contents of the boxes], I
assume.”

¶20 In denying the motion for the production of additional records, the
circuit court said,

It doesn’t appear that [production of additional records]
would lead anywhere that the absence of records arguments
[does not already] lead. If the State intends to produce
something, obviously [the State is] going to need to
disclose it…. But I think we are … where we are at with
what we have [in the way of production by A.B.], and the
arguments [that] both [sides can make at trial] will flow
from there.

Consistent with these statements, the court essentially found that the specific
BusinessWorks records then sought by Tuecke were no longer available, if they
had ever existed. At the same time, the court made clear that it would not limit
Tuecke’s ability at trial to make whatever arguments he wanted to make based on
the absence of records.

Trial events

¶21 Summarizing broadly, during the course of trial A.B. produced
additional records, which prompted defense counsel to request further production,
as well as a delay in the trial to give counsel time to analyze all new production.
The circuit court for the most part denied the requested relief, but granted some
relief. We now explain more fully.

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No. 2023AP327-CR

¶22 At the end of the first day of trial, while under cross examination by
the defense, A.B. testified in part as follows. A.B. reviewed company records for
the period from January through early March 2020, in connection with the theft
alleged in Count Four of the amended complaint. In the course of this review,
A.B. noted that no invoice had been created for this job and also there was no
“deposit ticket” reflecting a deposit of cash to the company from that customer.
Defense counsel challenged A.B. about whether A.B. had ever produced to the
defense records reflecting deposit records pertinent to this testimony. Defense
counsel suggested in his questioning of A.B. that insufficient production of
records had unfairly left him unable to show that there had in fact been a deposit
of cash recorded for the job involved in Count Four. The circuit court adjourned
trial for the day.

¶23 Out of the presence of the jury, the circuit court made the
observation that, “Whatever [A.B.] looked at; we should look at. If [the records
are] in existence.” After a dialog with counsel for both sides and A.B., the court
asked A.B. to search for and produce all hardcopy “deposit records you have on
the flooring stuff for February and March of 2020.” A.B. volunteered to attempt
to obtain and produce bank records showing deposits during that time period and
the prosecutor supported this proposal. The court asked A.B. to bring to court the
next morning “whatever deposit records” A.B. was able to obtain for February-
March 2020. A.B. did not object to this request. Defense counsel also did not
object to this course of action.

¶24 At the start of the second day of trial, A.B. produced 215 pages of
records. This included five pages reflecting copies of handwritten entries by the
company on bank deposit slips for February-March 2020 (“the February-March
deposit slips”). The circuit court noted that the February-March deposit slips were

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No. 2023AP327-CR

“informative” on “the narrow question that we [were] left with … yesterday,”
namely, whether there were records reflecting deposits of payments from the
customer corresponding to Count Four. Defense counsel conceded this point, and
said, “[W]e can go forward on that.” It is undisputed that the February-March
deposit slips do not reflect a deposit made during that time period apparently
corresponding to specific payments made by the Count Four customer, a fact that
tended to undermine the potential defense theory.

¶25 Defense counsel took the following positions. The new production
by A.B. amounted to “income records” of the type that, according to counsel, the
circuit court had ordered produced in September 2021. Further, even this new
production covered only a limited time period. As a result, counsel argued, the
circuit court should order A.B. to produce comparable records covering the entire
period of the charged offenses and to recess the trial for one month to give the
defense time to review those records.

¶26 The prosecution took positions that included the following. The
prosecution had complied with all of its discovery obligations and A.B. had
complied with all of the circuit court’s orders for production—and beyond all that,
A.B. had also produced additional materials that he was not ordered to produce.
This had included the production, approximately two weeks earlier, involving “tax
documents” requested by the defense and all of the records that A.B. was able to
produce following a recent prosecution-defense meeting regarding records.

¶27 The circuit court made a determination that, other than the February-
March deposit slips, the records newly produced by A.B. did not have the potential

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No. 2023AP327-CR

to produce probative evidence, perhaps unless either side had retained “a forensic
accountant to put all of that together,” which neither side had done.8

¶28 The circuit court gave defense counsel 30 minutes to review the new
production, suggesting that counsel scan the production for the names of the six
customers whose jobs were at issue in the six charged counts, to make sure that the
records did not contain “anything that is particularly pertinent.”

¶29 After that break for review, defense counsel repeated the argument
that A.B. should have produced the records earlier and contended that the defense
needed similar records “that pertain to the months surrounding” the transactions
charged in Counts One and Two.

¶30 The prosecution asked to immediately resume the trial without
additional production, making arguments that included the following. A.B. had
satisfied the specific request that A.B. produce the February-March deposit slips—
voluntarily taking the trouble to contact and work with a bank representative
outside of regular hours—and he had also fully complied with all prior orders and
the repeated defense requests over time for records. “[T]here’s a lack of records in
this case because [Tuecke] was charged with keeping records, of preparing
invoices.”

¶31 The circuit court ruled that the trial would immediately resume, with
no further required production by A.B. The court made a broad observation about

8
It is undisputed that neither side retained an accountant or other expert in a related field
to review any of the company’s records or opine about allegedly missing records, and Tuecke
does not argue that it was constitutionally ineffective for either of his two trial counsel to fail to
retain one.

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No. 2023AP327-CR

one pertinent defense theory, namely that the company failed to record some cash
payments. By definition under that theory, the court said, “there are unrecorded
amounts of cash [that are] not going to show up anywhere in” the records of the
company—that is, the defense theory involves “a lack of records.” The court then
provided specific explanations as to why it did not consider additional production
to be of any value to the defense on Counts Three, Four, Five, and Six, and
suggested that the theoretical chance that production could help the defense on
Count One was highly unlikely.9

¶32 The circuit court determined that no “sanction” of the prosecution
favorable to the defense was warranted. The court observed that the parties and
the court “maybe should have” “drill[ed] down” at earlier stages of the case on the
topic of the potential for the parties to review “handwritten [bank] deposit
receipts.” At the same time, the court said, as events unfolded A.B. was not on
notice that he was required to produce such records. The court said that the
BusinessWorks motion did not require production of records for un-invoiced
payments or deposits, which would not have likely yielded probative information
in any case. The court also considered it relevant to resolution of these issues that
defense counsel would be free to cross examine A.B. regarding the absence of
records, including attempting to prove that A.B. “jumped to conclusions” in
suspecting theft by Tuecke based on the information that A.B. had reviewed
before going to police.

9
As stated above, Count Two is not at issue in this appeal because the jury found Tuecke
not guilty on that count.

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No. 2023AP327-CR

¶33 The circuit court said that it was not feasible to delay the trial for a
month, as requested, and that there were insufficient grounds for the court to
declare a mistrial (although there had been no request for a mistrial).10

¶34 Defense counsel renewed his argument for additional production by
A.B. He repeated the defense theory that, while working for the company, Tuecke
was directed not to create invoices for some cash payments and that the company
would apply cash to various unrelated customer accounts to address (or “zero
out”) those accounts. Counsel contended that additional production could help the
jury to understand that cash provided by a customer on a given job could have
simply passed through Tuecke’s hands to the company yet not appear in records
corresponding to that job because others at the company had diverted that cash to
“zero out” unrelated customer debt.

¶35 The circuit court responded by repeating its reasoning that, absent
the retention by either side of a forensic accountant capable of factoring in all
relevant details, defense counsel sought the additional production merely to show
the company’s general “accounting sloppiness or deception,” and not to assist the
jury in addressing the specific charged offenses. The court made the observation
that, at a general level, “evidence of accounting irregularities is exculpatory.” But
the court added that it saw no reason to think that additional production could
accomplish more for the defense than illustrating the same kinds of general
“accounting irregularities” for which the defense already had sufficient evidence.

10
Tuecke does not argue on appeal that the circuit court should have granted a mistrial at
any point.

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No. 2023AP327-CR

B. Analysis

¶36 We begin by noting that Tuecke’s arguments regarding his pretrial
and trial motions to compel evidence suffer from a major defect and separately
noting that we need not reach one dispute between the parties.

¶37 The major defect in Tuecke’s arguments is that he fails to distinguish
clearly among the specific rulings of the circuit court that he may intend to
challenge and on what specific grounds, while properly taking into account the
information that was available to the court at the time it made that specific ruling.
As we have summarized in detail above, the court made a series of rulings in
response to developments in the case as events unfolded, and we must evaluate
each specific ruling (to the extent that Tuecke is in fact challenging it, a point that
is not always clear) based on the allegations and the arguments presented to the
court at the time it made the ruling.

¶38 We turn to the dispute that we need not reach, which involves
Tuecke’s contentions that he was entitled to production by the company of all
exculpatory records in its possession and that if he did not receive such records the
court would need to impose one or more remedies in his favor, such as precluding
or limiting A.B.’s testimony or giving defense-favorable jury instructions. The
record reflects that the circuit court consistently operated from the premise that
Tuecke had these rights and potential remedies. As Tuecke did in the circuit court,
on appeal he relies heavily on Shiffra and Green for these propositions,
recognizing that at least some aspects of Shiffra and Green were overruled by the
time of briefing in this appeal. See Johnson, 407 Wis. 2d 195, ¶1 & n.3. For
these reasons, we assume without deciding in Tuecke’s favor all of the authority
that he purports to derive from Shiffra and Green, post-Johnson.

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No. 2023AP327-CR

¶39 With those two clarifying points in mind, we interpret Tuecke’s
arguments on appeal to boil down to the proposition that, in one or more rulings,
the circuit court denied him access to records necessary to prepare his defense,
including all exculpatory records, which would be a claim rooted in the
Confrontation Clause. See Ritchie, 480 U.S. at 51 (the Confrontation Clause
guarantees a defendant the right physically to face those who testify against the
defendant and the right to conduct cross-examination; addressing Ritchie’s
argument that he was denied “access to the information necessary to prepare his
defense”).

¶40 We now address each potentially pertinent ruling made by the circuit
court and explain why we conclude that Tuecke fails to show any of the following:
an error in interpreting or applying relevant legal standards; a clear error in
relevant fact finding; or an erroneous exercise of the court’s discretion in resolving
any discovery-related issue. See Hughes v. Hughes, 223 Wis. 2d 111, 120, 588
N.W.2d 346 (Ct. App. 1998) (de novo review applies to the interpretation or
application of a legal standard); Langlade Cnty. v. D.J.W., 2020 WI 41, ¶¶24-25,
391 Wis. 2d 231, 942 N.W.2d 277 (a circuit court’s findings of fact are upheld
unless they are clearly erroneous); Nickel v. Wells Fargo Bank, 2013 WI App
129, ¶105, 351 Wis. 2d 539, 841 N.W.2d 482 (circuit court rulings concerning
discovery issues are generally reviewed to determine whether the court has
erroneously exercised its discretion).

¶41 Tuecke apparently does not allege error of any kind in connection
with the circuit court’s September 2021 order granting Tuecke’s motion requiring
A.B. to produce the records identified supra in note 5. We note that the category
of required records production that would later become an issue for the defense,
“[i]ncome and [e]xpense records for the flooring division,” is limited to the

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No. 2023AP327-CR

company’s flooring records, not to other products or services sold by the company,
and therefore did not place A.B. on notice of the need to produce other records.
This was despite the fact that Tuecke would later assert that one defense theory
was that, while working at the company, he had deposited with the company
customer payments on flooring jobs and those funds were then used by others at
the company to settle accounts on non-flooring jobs. Further, the phrase
“[i]ncome and [e]xpense records” is not defined and it could have various possible
meanings in terms of scope and amount of required detail. In short, the court gave
the defense precisely the pretrial production order that it was asking for, and
Tuecke at no point raised with the circuit court any purported shortcoming with
the form or substance of the September 2021 order.

¶42 Turning to Tuecke’s November 2021 motion for an order prohibiting
or limiting A.B.’s trial testimony based on the purported absence of income or
expense records, Tuecke cannot be heard now to argue that the circuit court
committed any error in connection with the results of that motion. A.B. testified at
the December hearing that he took extensive steps to comply with the September
2021 order, producing six boxes containing records. At this hearing, the
prosecution committed to obtaining further records from A.B. for production to
Tuecke. Defense counsel told the court that there was not “anything else” that
could be accomplished.

¶43 Shortly before trial, the circuit court took up the BusinessWorks
motion and denied it based on the court’s factual findings and implied findings.
For reasons we now explain, Tuecke fails to develop either an argument that the
circuit court clearly erred in making relevant findings or an argument that the
court could not reasonably rely on those findings to deny the BusinessWorks
motion.

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No. 2023AP327-CR

¶44 To repeat, the BusinessWorks motion sought production of company
records from the BusinessWorks program reflecting “all income and deposits from
each individual flooring customer account, whether invoiced or not, and how it
was allocated.” The motion acknowledged that A.B. had produced
“BusinessWorks records of flooring customer invoices billed and paid,” but
Tuecke now sought “BusinessWorks records showing un-invoiced payments or
deposits from customers and how they were allocated.” The court found that the
records sought by Tuecke, if they ever existed, were no longer available and that it
would therefore not accomplish anything for the court to issue an additional
production order to A.B. The court implicitly credited all of the statements that
A.B. made on these topics, including his assertion that, to the extent there had
been relevant BusinessWorks records that had not been produced to date, they
were no longer available. Tuecke’s briefing does not identify clear error in the
court’s findings or provide us with a reason to conclude, based on the record as it
then existed, that the court misapplied any legal standard in denying the motion.

¶45 Turning to trial events, as summarized above, at the end of the first
day of trial, the defense cross examination of A.B. attempted to raise a production
issue. The circuit court directed A.B., with no objection by the defense, to
produce “whatever deposit records” he could, but solely for the February-March
2020 period. Further, with the encouragement of the prosecution, A.B. went
beyond this to volunteer to attempt to obtain and produce bank records showing
deposits during that time period. The next morning, going well beyond what was
agreed to the day before, A.B. brought to court extensive records, including the
February-March deposit slips. The court noted, and defense counsel agreed, that
the February-March deposit slips resolved the issue that had arisen at the end of
the first day of trial.

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No. 2023AP327-CR

¶46 After the circuit court gave defense counsel an opportunity (albeit
brief) to review the larger production, defense counsel argued that the records
should have been produced in response to the September 2021 order and
contended that the defense needed similar records “that pertain to the months
surrounding” the transactions charged in Counts One and Two. Defense counsel
also argued for the production of comparable records covering the entire period of
the charged offenses, which was inconsistent with his request limited to the
timeframes of Counts One and Two. Counsel further asked the court to recess the
trial for one month, which he contended was necessary to give the defense time to
review those records.

¶47 After considering extensive arguments by both sides, the circuit
court ruled that no further production by A.B. was required and that therefore
there was no need to recess the trial. The court’s reasoning included the following
points:

 Perhaps the parties and the circuit court mutually missed an opportunity
at earlier stages of the case to raise the idea of seeking handwritten bank
deposit receipts, which was a category of record that had not necessarily
been in the immediate possession of the company or A.B. But as events
unfolded, A.B. was never on notice that he had to seek out or produce
such records. The court suggested that Tuecke was too late in raising
the need for bank deposit receipts for the first time at trial.

 In a related vein, neither side had retained a forensic accountant.
Implied in the circuit court’s comments were determinations that such
expertise was necessary to: (1) identify what records, such as bank
deposit receipts, that the defense needed in order to trace, dollar for
dollar, what customer payments in the charged transactions appear to
have been reallocated by the company or instead might have been
allegedly pocketed by Tuecke; (2) establish whether there were
“accounting irregularities” in the company’s records or practices
relevant to the charged transactions; and (3) perform these assessments
in a reliable manner. Without a defense expert to rely on or a
prosecution expert to challenge, the defense requests for additional

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No. 2023AP327-CR

records were not justified because they would not have meaningfully
helped the defense.

 The BusinessWorks motion did not call for production of
BusinessWorks records for un-invoiced payments or deposits, which
would not have likely yielded relevant information in any case.

 Defense counsel would be free to cross examine A.B. regarding the
absence of records, which would accomplish the gist of what the
defense might be able to show to advance its theories. The circuit court
acknowledged that “evidence of accounting irregularities is
exculpatory.” However, the court noted that a primary defense theory
that had emerged at trial was that the company had failed to record some
cash payments, and additional production was not going to reveal cash
payments that were not recorded.

 The circuit court provided specific explanations as to why it did not
consider additional production to be of any value to the defense on
Counts Three, Four, Five, and Six, and of very little value on
Count One.

¶48 Tuecke fails to develop an argument that the circuit court
erroneously exercised its discretion in declining to grant a recess in the trial of any
length—including the notable length of one month—if the court properly denied
the motion for additional production. That leaves the argument that the court
should have ordered additional production, based on the circumstances that existed
at the time it made this ruling.

¶49 The extensive record summarized above demonstrates that the
circuit court carefully considered and repeatedly accommodated in reasonable
ways the multiple, shifting defense requests for production from A.B. between the
time the case was charged and the jury trial. As of the time of trial, the court was
presented with what amounted to a tardy demand for various sets of additional
records for which the court had a reasonable basis to conclude that Tuecke failed
to provide sufficient justification under the circumstances, accompanied by the

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No. 2023AP327-CR

request that the court recess the trial for a full month. The court was also
presented with unrebutted assertions by A.B. that he had already produced the
requested records and that computer records were no longer available. Tuecke
fails to show an error in interpreting or applying any relevant legal standard, a
clear error in relevant fact finding, or an erroneous exercise of the court’s
discretion in resolving a discovery-related issue. We now explain why we reject
Tuecke’s specific arguments to the contrary.

¶50 Tuecke repeatedly makes an argument that distorts the record. He
argues that the circuit court’s ruling at trial denying his motion for further
production by A.B. was a decision to allow “partial production” that unfairly
bolstered A.B.’s credibility and diminished Tuecke’s credibility. This argument is
based in part on the fact that February-March deposit slips do not reflect a deposit
made during that time period that appeared to correspond to payments made by the
customer, undermining one potential defense theory. The false premise in this
argument is that the situation here was akin to one in which the circuit court was
presented with a known set of records and decided to admit only the inculpatory
ones and exclude the exculpatory ones. Instead, as summarized in detail above,
the court made reasonable rulings regarding what A.B. could be ordered to
produce under fluid circumstances. Under these circumstances, it was unclear
what additional production might yield or how it might help the defense, and the
court gave the defense free rein to challenge the State’s investigation based on the
lack of additional records.

¶51 Tuecke asserts that A.B. “never produced” “[i]ncome and expense
records for the flooring division” for the period January 1, 2018, to August 25,
2020. But as noted, the circuit court consistently credited representations made by
A.B., which for the most part were not questioned by defense counsel over the

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No. 2023AP327-CR

course of multiple hearings in the circuit court. A.B.’s representations included
the following at the pretrial hearing addressing the BusinessWorks motion.
Income and expense records covering the flooring end of the business, as
identified in the September 2021 order, were in fact produced to the defense in six
boxes; the defense returned the boxes (which were then destroyed, because the
defense did not want them any longer, apparently without either side making
copies or a record of what the boxes contained); and computer records dating to
the relevant period were no longer available. This provided the circuit court with
an adequate basis to conclude that sufficient relevant records had been produced,
consistently in the manner in which the defense had explicitly sought them.

¶52 On a related point, Tuecke does not acknowledge the limited and
somewhat ambiguous nature of the September 2021 order that he successfully
sought as compared with the broadly defined requests he was making at the time
of trial. Over the months before trial, the circuit court responded appropriately
and attentively to defense arguments that there were gaps in the production that
could be exculpatory. By the time of trial, however, the court determined that no
more exculpatory material could be produced.

¶53 Tuecke asserts that the circuit court denied him “the opportunity to
present a defense that falsely-attributed cash payments over time accounted for the
cash amounts [that he] received from” the customers in the transactions
corresponding to Counts Two and Four. But Tuecke fails to come to grips with
the circuit court’s assessment that, in order for the defense to have the prospect of
mounting a meaningful defense along these lines, there needed to be an accounting
expert of some kind for the defense to depend on, or at a minimum to challenge,
regarding dollar-for-dollar tracing of funds. At no place in Tuecke’s appellate

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No. 2023AP327-CR

briefing does he refer to this rationale, which the court referenced multiple times
in making the challenged rulings.

II. POST-TRIAL MOTION TO COMPEL PRODUCTION

¶54 After sentencing in November 2022, Tuecke filed a motion seeking
an order compelling the production of five categories of records allegedly in the
possession of the company. The circuit court denied this motion in its entirety,
explaining its reasoning in an extended oral ruling.

¶55 “[A] defendant has a right to post-conviction discovery when the
sought-after evidence is relevant to an issue of consequence.” State v. O’Brien,
223 Wis. 2d 303, 321, 588 N.W.2d 8 (1999). Evidence is consequential in this
context “only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
Id. at 320-21. “‘The mere possibility that an item of undisclosed information
might have helped the defense ... does not establish “a consequential fact” in the
constitutional sense.’” Id. at 321 (quoting United States v. Agurs, 427 U.S. 97,
104, 109-110 (1976); alteration marks omitted). It is the defendant’s burden to
meet this standard, and the circuit court’s ruling is reviewed for an erroneous
exercise of discretion. See id. at 320 (favorably noting that the court of appeals
applied that standard in the opinion under review by the supreme court).

¶56 We conclude that the circuit court provided strong support for its
decision, with observations that included the following. Whether the additional,
post-trial production sought by Tuecke would have produced “three pages of
business records” or instead 3,000 pages, a new trial of the case would still amount
to only this: A.B. would discuss the records and the issue of “unrecorded cash”
“in a way that supports the State’s theory of the case” and Tuecke would discuss

24
No. 2023AP327-CR

the records and “unrecorded cash” “in a way that supports his view of the case”—
with the credibility of these two witnesses being the deciding factor for the jury.

¶57 The circuit court noted that the defense at trial was able to make
some “inroads” in impeaching A.B. regarding the company’s record keeping and
how the company managed “unrecorded cash.” Thus, the additional production
would likely result in impeachment evidence that could have provided at best only
slightly more support for the defense than what was already available. See State v.
Hineman, 2023 WI 1, ¶31, 405 Wis. 2d 233, 983 N.W.2d 652 (stating that
“[i]mpeachment evidence is cumulative and therefore not material when ‘the
witness was already or could have been impeached at trial by the same kind of
evidence’” (citation, brackets, and footnote omitted)).

¶58 The circuit court noted that the defense had the benefit of extensive
production by A.B. on behalf of the company, some of which the defense used at
trial to dispute charges, but in the end the jury “didn’t buy it.” It would be mere
“conjecture” to conclude that some sort of “smoking gun” for the defense might be
found in further production. We interpret the court to have used the term
“smoking gun” as shorthand for evidence creating a reasonable probability of a
different result on any count.

¶59 The circuit court concisely summarized evidence regarding all
counts except Count Two, on which Tuecke was acquitted, and explained why
additional production would be unlikely to be consequential on any of those five
counts.

¶60 To the extent that Tuecke’s arguments on this issue are not already
rejected in our discussion above, they are largely rhetorical and in any case
insufficiently supported. For example, he premises his argument in part on what

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No. 2023AP327-CR

he asserts was “delay and distraction” by A.B. in producing records, but the record
summarized above shows that the circuit court credited A.B. with making
repeated, timely efforts at production based on the nature of the requests actually
made. Tuecke also asserts that the post-trial production he requested would have
resulted in exculpatory records on Counts One and Four, but he fails to persuade
us that the circuit court’s close analysis regarding those counts was incorrect.

III. OTHER POST-TRIAL MOTIONS

¶61 Tuecke filed a notice of his right to seek postconviction relief,
followed by a motion for a new trial or judgment notwithstanding the verdict,
seeking orders vacating all of the counts of conviction.

¶62 Regarding the motion for judgment notwithstanding the verdict, after
the State cites authority for the proposition that such a motion is for use in civil,
not criminal, proceedings, Tuecke fails to reply, conceding the point. United
Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (appellant’s failure to respond in reply brief to an argument made in
respondent’s brief may be taken as a concession). Similarly, Tuecke invoked WIS.
STAT. § 805.15(1) as a basis for a new trial in his motion in the circuit court and he
refers to it again now on appeal. But after the State points out that under State v.
Henley, 2010 WI 97, ¶¶66, 70, 328 Wis. 2d 544, 787 N.W.2d 350,
“[Section] 805.15(1) is not a proper vehicle for a criminal defendant to seek a new
trial in the interest of justice” because it is a civil statute not applicable to criminal
cases, which would render the limitations under WIS. STAT. §§ 974.02 and 974.06
irrelevant, Tuecke also fails to reply.

¶63 This leaves, as a request for relief under WIS. STAT. § 974.02,
Tuecke’s challenge to the circuit court’s denial of his motion for postconviction

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No. 2023AP327-CR

relief, which essentially repeats arguments that we have already addressed in
detail. We add only the following. Tuecke makes two fundamental errors in
arguing that A.B. “was rewarded for his dilatory, if not dishonest, failure to
produce records.” First, this was not a lawsuit between A.B. or his company and
Tuecke. The issue is not what A.B. deserved. Instead, the issue is whether the
circuit court properly responded to the various production issues as they arose,
based on the specific arguments made by the parties and the information then
available to the court. Second, Tuecke fails to direct us to a circuit court finding
that A.B. was either dilatory or dishonest, which would increase the likelihood that
additional, post-trial production was warranted. To the contrary, the court’s
findings and actions suggested that the court considered A.B. to be responsive and
honest in connection with the various production requests.

CONCLUSION

¶64 For all of these reasons, we affirm the challenged rulings of the
circuit court.

By the Court.—Judgment and orders affirmed.

This opinion will not be published. See WIS.
STAT. RULE 809.23(1)(b)5.

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