State v. Jeffrey S. Clemons

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.
September 6, 2023
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. 2020AP1450-CR Cir. Ct. No. 2019CM260

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY S. CLEMONS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Barron County:
JAMES C. BABLER, Judge. Affirmed.

¶1 GILL, J.1 Jeffrey Clemons appeals a judgment of conviction
entered after a bench trial at which he was found guilty of obstructing an officer in

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(g) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2020AP1450-CR

violation of a Barron County ordinance. Clemons argues that there was
insufficient evidence to support the circuit court’s finding that he obstructed an
officer. We reject Clemons’ arguments and affirm the judgment.

BACKGROUND

¶2 Clemons went to the Barron County Sheriff’s Department on June 5,
2019, to report that his former wife, Lindsey Lundequam, and her daughter,
Johanna Survila, were following and chasing him in violation of a restraining
order. Barron County Deputy Sheriff Jonathan Fick interviewed Clemons,
Lundequam, and Survila at the sheriff’s department the same day. The women
said that Clemons had been following them, not the other way around. After Fick
conducted his investigation, Lundequam and Survila were cited for obstructing an
officer.

¶3 At the trial on the obstruction citation for Lundequam and Survila,
Clemons changed the story he had given Fick about what occurred. Based on
Clemons’ changed account, the State dropped the charges against Lundequam and
Survila.

¶4 The State then charged Clemons with misdemeanor obstructing an
officer but later amended the charge to an ordinance violation. After hearing the
evidence at Clemons’ bench trial, the circuit court found Clemons guilty of
obstructing an officer.

DISCUSSION

¶5 When considering a challenge to the sufficiency of the evidence for
conviction, this court’s standard of review is highly deferential. The circuit
court’s findings of fact will not be set aside on appeal unless they are clearly

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No. 2020AP1450-CR

erroneous. WIS. STAT. § 805.17(2). “[T]he fact finder’s determination and
judgment will not be disturbed if more than one inference can be drawn from the
evidence.” Jacobson v. American Tool Cos., 222 Wis. 2d 384, 389, 588 N.W.2d
67 (Ct. App. 1998). This court gives due regard “to the opportunity of the trial
court to judge the credibility of the witnesses.” Sec. 805.17(2). This court will
not substitute its judgment for that of the circuit court “as to the credibility of
disputed testimony in relation to historical or evidentiary facts.” State v. Echols,
175 Wis. 2d 653, 671, 499 N.W.2d 631 (1993). “Such deference to the circuit
court’s credibility determination is appropriate because it has the opportunity to
observe the witness’ demeanor and gauge the testimony’s persuasiveness.”
Jacobson, 222 Wis. 2d at 390.

¶6 The Barron County, Wis., Ordinance Failure to Obey Lawful Order
sec. 36-31 provides that “[i]t is unlawful for any person to fail to obey the
direction or order of a police officer while such police officer is acting in an
official capacity in carrying out his [or her] duties.” The Barron County
Ordinance refers to WIS. STAT. § 946.41(1), the criminal statute prohibiting
resisting or obstructing an officer, which provides that “whoever knowingly resists
or obstructs an officer while such officer is doing any act in an official capacity
and with lawful authority is guilty of a Class A misdemeanor.” The elements of
resisting or obstructing an officer are: (1) the person obstructed an officer, which
means that the conduct of the person prevents or makes more difficult the
performance of the officer’s duties; (2) the officer was doing an act in an official
capacity; (3) the officer was acting with lawful authority; and (4) the person knew
that the officer was acting in an official capacity and with lawful authority and the
person knew that his or her conduct would obstruct the officer. See WIS JI—
CRIMINAL 1766 (2010).

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No. 2020AP1450-CR

¶7 Only Fick and Clemons testified during Clemons’ bench trial. Fick
testified that Clemons came to the sheriff’s department to report a restraining order
violation. Clemons told Fick that he purchased a motorcycle with three miles on
the odometer at the Harley Davidson store in Eau Claire2 and that Lundequam and
Survila began following him sometime after he left the store. Fick testified that
Clemons said that he drove the motorcycle directly to the sheriff’s department,
with the exception of a small detour when he turned off on a side street.

¶8 Fick further testified that when he asked Clemons about the
allegations to the contrary made by Lundequam and Survila, Clemons said he had
independent corroboration of his story—the odometer reading on his new
motorcycle. Clemons showed Fick the odometer, which read fifty-six miles,
consistent with Clemons’ claim that he drove directly from Eau Claire to the
sheriff’s department. Fick testified that based on the odometer reading, he
believed that Clemons’ statement was more credible than the statements given by
Lundequam and Survila because they said that Clemons followed them over a
greater distance on various roads, which would be physically impossible given
Clemons’ purchase of the motorcycle in Eau Claire and the mileage on the
odometer. Fick also testified that Clemons told him more than three times that he
purchased the motorcycle in Eau Claire and drove it directly to the sheriff’s
department, and that the first time he heard Clemons tell a different story about
what occurred was at Lundequam and Survila’s trial.

2
Fick testified that there is no Harley Davidson store in Eau Claire, but there is a store
on the Eau Claire city border in Lake Hallie.

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No. 2020AP1450-CR

¶9 Clemons testified that he told Fick that he purchased the motorcycle
from the Rice Lake Harley Davidson store and that he went to the home of a
woman he was dating after he purchased the motorcycle because she was with
him. He testified that they drove together to a barbeque and drove around a lake
to Lynda’s Boathouse, where he dropped the woman off because she worked
there. Clemons stated that Lundequam and Survila began following him after he
left Lynda’s Boathouse so he drove to the sheriff’s department to report the
restraining order violation.

¶10 After hearing Clemons and Fick testify, the circuit court found Fick
to be a more credible witness than Clemons. The court concluded that Clemons
had provided false information to Fick when he reported the restraining order
violation and that Lundequam and Survila would not have been charged had
Clemons not provided the false information. The court concluded that Clemons
obstructed Fick’s initial investigation by lying about what had occurred.

¶11 The evidence presented, as summarized above, was sufficient to
support the circuit court’s determination that Clemons obstructed Fick’s
investigation. Clemons points to evidence that supports his version of what
happened, but this court does not weigh opposing evidence when assessing the
sufficiency of the evidence to support a judgment. See Echols, 175 Wis. 2d at
671. Clemons contends that the court erred when it found Fick’s testimony to be
more credible than his testimony. As we previously explained, the circuit court is
best situated to judge the credibility of the witness testimony because “it has the
opportunity to observe the witness’ demeanor and gauge the testimony’s
persuasiveness.” Jacobson, 222 Wis. 2d at 390. Ultimately, it was up to the
court, as trier of fact, to decide whom to believe, and the court chose to believe
Fick’s account of what occurred. Again, this court will not substitute its judgment

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No. 2020AP1450-CR

for that of the circuit court “as to the credibility of disputed testimony in relation
to historical or evidentiary facts.” Echols, 175 Wis. 2d at 671.

¶12 Finally, Clemons contends that there is nothing in the record to
support a finding that he knew his conduct would obstruct Fick’s investigation.
Intent is not generally susceptible to direct proof and, as such, the state of a
person’s mind “must be inferred from the acts and statements of the person, in
view of the surrounding circumstances.” See Elmakias v. Wayda, 228 Wis. 2d
312, 320, 596 N.W.2d 869 (Ct. App. 1999) (citation omitted). Fick’s testimony
that Clemons repeatedly gave him incorrect and misleading information provided
sufficient evidence for the circuit court to infer that Clemons knew his conduct
would obstruct Fick’s investigation.

By the Court.—Judgment affirmed.

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

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