State v. Richard A. Hoeft

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.
October 1, 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. 2021AP1636-CR Cir. Ct. No. 2018CM120

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RICHARD A. HOEFT,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Price County: KEVIN G. KLEIN, Judge. Affirmed.

¶1 HRUZ, J.1 Richard A. Hoeft, pro se, appeals from a judgment
convicting him of fraud on an innkeeper and an order denying his postconviction

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2021AP1636-CR

motion. Hoeft raises several issues with his trial, but all of his arguments are largely
undeveloped and lacking merit. Accordingly, we affirm.

BACKGROUND

¶2 Hoeft was a guest at the Timber Inn Motel from December 9 to 15,
2017. On December 15, when Hoeft had not yet paid for his stay, the motel
manager, Rachel Livingston, asked him to pay the bill. Hoeft stated that he needed
to go to the post office to obtain a check in order to pay the bill, and he then left the
motel. The next day, Hoeft had still not paid the bill. Livingston checked Hoeft’s
room and found that Hoeft had removed all of his belongings. Livingston called the
police and filed a report with them. Hoeft was subsequently charged with fraud on
an innkeeper in violation of WIS. STAT. § 943.21(1m)(a) and (3)(am)1.

¶3 At Hoeft’s January 22, 2019 initial appearance, Hoeft pled not guilty,
and the circuit court provided Hoeft with notice of his right to an attorney. At a
motion hearing on March 29, 2019, Hoeft informed the court that he was
representing himself but that he “might talk to an attorney about the … case” at a
later date. The court then asked Hoeft questions to ascertain his competency to
proceed pro se, including whether Hoeft understood that he had a constitutional right
to be represented by an attorney, that he had the right to hire his own attorney, and
that he might be entitled to a public defender. Hoeft stated that he understood these
rights and again confirmed that he wished to represent himself. The court found
Hoeft competent to waive his right to counsel and found that he had waived this
right freely, voluntarily and intelligently.2 The court also noted that its findings did
not prevent Hoeft from retaining counsel at a later date. At a status conference on

2
Hoeft does not appear to argue that the circuit court erred by originally allowing him to
waive his right to counsel. Accordingly, we do not address this issue.

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No. 2021AP1636-CR

April 11, the court once more asked Hoeft if he wished to represent himself, and
Hoeft again answered in the affirmative.

¶4 Hoeft’s trial was originally scheduled to take place in May 2019, but
it was rescheduled due to Hoeft’s claim that he was suffering from medical issues.
The circuit court ordered that Hoeft provide the court with his medical records and
a synopsis of his condition by October 5, 2019. Ultimately, Hoeft never provided
the court with either the requested medical records or a synopsis.

¶5 At a hearing on May 15, 2019, the circuit court again asked Hoeft if
he intended to be represented by an attorney, and Hoeft again stated that he intended
to represent himself. The court then warned:

[I]f we get to a time a week before trial and you say I don’t
have an attorney, I don’t have time to get an attorney, the
[c]ourt is simply not going to entertain that. If you choose
to have an attorney, you always have the right to bring one
with you but it is going to be your obligation to take care of
that and the [c]ourt is not going to entertain adjournments to
accommodate an attorney request. Do you understand that?

Hoeft stated that he understood.

¶6 At a hearing on June 18, 2019, the circuit court again noted that Hoeft
intended to represent himself at trial, and the court stated that it was “going to hold”
Hoeft to that decision. Hoeft “nodd[ed] in the affirmative.” The court held a status
conference on July 22 during which Hoeft did not request an attorney.

¶7 At the final pretrial hearing on September 19, 2019, Hoeft stated, “I’m
probably going to get an attorney after this hearing.” The circuit court again
explained that it would not adjourn the trial, which was scheduled for October 9,
and Hoeft affirmed that he understood this decision. Hoeft then stated that he would

3
No. 2021AP1636-CR

contact the public defender’s office after that hearing. The court reiterated that it
was Hoeft’s responsibility to contact the public defender’s office and that the court
was not going to adjourn the trial because Hoeft had the ability to contact the public
defender’s office since the beginning of the case.

¶8 On October 9, 2019, before the jury was present, the State moved to
have Hoeft found in contempt due to his failure to provide the circuit court with
documentation of the medical issues that had caused the trial to be delayed. See
supra ¶4. The court stated that it was “not going to address a contempt motion here
20 minutes before trial is supposed to start.”

¶9 The circuit court then asked Hoeft if he had any issues that he would
like to raise outside the presence of the jury. Hoeft complained that he had received
forty-three pages of documents, including an amended witness list,3 the day before
trial and that he was not given a reasonable amount of time before trial to review
those documents—in violation of the State’s discovery obligations provided in WIS.
STAT. § 971.23(1). The State replied that it sent Hoeft the documents as soon as it
had them and that it did not intend to use any of the information in those forty-three
pages for its case-in-chief. The court credited the State’s representations regarding
this issue and stated that it would not adjourn the trial.

¶10 Hoeft then stated that he had spoken to an attorney but was unable to
retain counsel for his trial. The circuit court stated that Hoeft had the opportunity
to obtain a public defender or to hire his own attorney and that Hoeft had previously
“clearly indicated” that he wanted to represent himself. Further, the court noted that

3
At some point between the September 19, 2019 hearing and the October 9, 2019 trial,
the State filed an amended witness list. Hoeft does not raise any arguments on appeal regarding
this amended list. Thus, we do not address the matter further.

4
No. 2021AP1636-CR

Hoeft did not provide any specific information verifying his efforts to obtain an
attorney. On these bases, the court again declined to adjourn the trial.

¶11 The jury was then sworn in, and the trial began. During its opening
statement, the State erroneously stated that Hoeft was taken into custody by
Lieutenant James Cummings of the City of Phillips Police Department five days
after the police began their investigation.4 During its closing argument, the State
commented that the Timber Inn’s manager, Livingston, was “uncontradicted” when
she testified and that “[n]obody else could contradict [Livingston’s] testimony.”
The jury ultimately found Hoeft guilty of fraud on an innkeeper.

¶12 In an eight-page, pro se motion for postconviction relief, Hoeft raised
nineteen issues, many of which he raises again in this appeal. The circuit court held
a hearing on Hoeft’s postconviction motion, addressed each of the issues that Hoeft
raised, and denied any relief.

DISCUSSION

I. Hoeft’s Waiver of His Right to Counsel

¶13 Hoeft first appears to argue that the circuit court erred by refusing to
honor his attempt to withdraw his waiver of his right to counsel.5 Specifically, Hoeft
contends that “[i]t would be obnoxious to think that the right to counsel clauses of

4
Lieutenant Cummings did not take Hoeft into custody. Rather, Cummings “contacted
the Price County Jail and had them process [Hoeft].”
5
The arguments raised by Hoeft are, at best, undeveloped and difficult to follow. To the
extent we do not address issues or arguments that Hoeft intended to raise, we conclude that such
issues or arguments are insufficiently developed, are conclusory, or are too difficult to decipher.
Accordingly, we reject them. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992).

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the 5th[] and 6th Amendments were one [and] the same. But they actually are.”6
Hoeft claims that he notified the court of his desire to withdraw his waiver of his
right to counsel three weeks before the trial, and he—presumably rhetorically—asks
“[w]hen is it too [l]ate for a [p]ro [s]e person[] to ask for an [a]ttorney[?]”

¶14 We review the denial of a request to withdraw from
self-representation for an erroneous exercise of discretion. State v. Rhodes, 2011
WI App 145, ¶27, 337 Wis. 2d 594, 807 N.W.2d 1. In considering whether the
circuit court erroneously exercised its discretion, “we examine the record to
determine if the [circuit] court logically interpreted the facts, applied the proper
legal standard, and used a demonstrated rational process to reach a conclusion that
a reasonable judge could reach.” Id., ¶28 (citation omitted). Here, we conclude that
the court did not erroneously exercise its discretion when it denied Hoeft’s request
to withdraw from self-representation.

¶15 “[O]nce waived, the Sixth Amendment right to counsel is no longer
absolute.” Id., ¶30 (citation omitted). In addressing a request to withdraw a waiver
of the right to counsel, a circuit court may consider various factors, such as the
court’s “practical concerns of managing its docket[,] … the impact that a request
may have on its general responsibilities for the prudent administration of justice,”
and the timeliness of the request. Id., ¶31 (citation omitted). “Eleventh-hour

6
We pause to note that the Fifth Amendment does not explicitly provide a right to counsel.
See U.S. CONST. amend. V. Rather, the Supreme Court of the United States has held that the right
to counsel at a custodial interrogation is “indispensable to the protection of the Fifth Amendment
privilege [against self-incrimination].” State v. Long, 190 Wis. 2d 386, 393-94, 526 N.W.2d 826
(Ct. App. 1994) (alteration in original) (quoting Miranda v. Arizona, 384 U.S. 436, 469 (1966)).
Regardless, and contrary to Hoeft’s assertion, the Miranda right to counsel and the Sixth
Amendment right to counsel are not “one [and] the same.” See McNeil v. Wisconsin, 501 U.S.171,
177-78 (1991).

6
No. 2021AP1636-CR

requests are generally frowned upon as a mere tactic to delay the trial.” Id. (citation
omitted).

¶16 In this case, the circuit court based its decision to deny Hoeft’s request
to withdraw his waiver of the right to an attorney on the practical concerns it had
regarding its docket. During the March hearing, the court conducted a thorough
colloquy with Hoeft, listed the ways in which an attorney might benefit Hoeft, found
Hoeft competent to waive counsel, found that Hoeft freely, voluntarily and
intelligently did so, and it advised Hoeft that he could still hire an attorney. At the
April hearing, the court again conducted a colloquy regarding Hoeft’s desire to
represent himself. After the trial was rescheduled due to Hoeft’s purported medical
issues, the court once again asked Hoeft if he wished to represent himself. After
Hoeft confirmed that he still desired to proceed pro se, the court expressly warned
Hoeft that “if we get to a time a week before trial and you say I don’t have an
attorney, I don’t have time to get an attorney, the [c]ourt is simply not going to
entertain that.” Hoeft acknowledged that he understood the court’s admonition. At
the June hearing, Hoeft again indicated that he wished to represent himself.

¶17 It was not until the September hearing, three weeks before the trial,
that Hoeft first expressed that he was “probably” going to get an attorney. The
circuit court told Hoeft that he could get an attorney but that the court would not
adjourn the trial, as it had already been delayed once and Hoeft had the ability to
obtain an attorney since the beginning of his case. Hoeft stated that he understood
this admonition. It was not until the day of the trial that Hoeft unequivocally stated
that he wished to raise the issue of his inability to retain counsel. The court denied
Hoeft’s request due to Hoeft’s repeated statements that he wished to represent
himself, the fact that the court had previously stated that it would not adjourn the
trial, and the fact that Hoeft provided the court with no evidence of his efforts to

7
No. 2021AP1636-CR

obtain an attorney. Given the foregoing, the court logically interpreted the facts,
applied the proper legal standard, and used a demonstrated rational process to reach
a conclusion that a reasonable judge could reach.

¶18 Hoeft focuses on the fact that the circuit court stated that, “[I]f we get
to a time a week before trial and you say I don’t have an attorney, I don’t have time
to get an attorney, the [c]ourt is simply not going to entertain that.” (Emphasis
added.) He notes that he first indicated his desire to obtain an attorney three weeks
before the trial. As to the court’s use of the phrase “a week before trial,” Hoeft
interprets this phrase too literally. At several hearings before the trial, the court
confirmed that Hoeft wished to waive his right to counsel and stated that it would
not adjourn the trial again. Further, Hoeft was free to obtain an attorney during the
three-week period before trial. In those three weeks, Hoeft did not ask the court to
adjourn the trial, nor did he suggest that he would have any issue retaining counsel.
Accordingly, the court did not erroneously exercise its discretion when it denied
Hoeft’s request to withdraw his waiver of the right to counsel on the scheduled trial.

II. Alleged Prosecutorial Misconduct

¶19 Hoeft next argues that the State violated his due process rights by
moving, at the beginning of the trial, for Hoeft to be found in contempt due to his
failure to provide the circuit court with documentation regarding the medical issues
that previously caused the trial to be delayed. Specifically, Hoeft notes that the State
made this motion “20 minutes before the start of the trial,” and Hoeft asserts that

8
No. 2021AP1636-CR

this action made “it so [he] couldn’t represent himself to the best of his abilities.”7
(Formatting altered.)

¶20 We generally review a circuit court’s decision to grant a new trial on
the basis of prosecutorial misconduct for an erroneous exercise of discretion.8 State
v. Lettice, 205 Wis. 2d 347, 352, 556 N.W.2d 376 (Ct. App. 1996). “Reversing a
criminal conviction on the basis of prosecutorial misconduct is a ‘drastic step’ that
‘should be approached with caution.’” Id. (citation omitted). We review
prosecutorial misconduct in light of the entire record of the case and in consideration
of a number of factors, including:

the defendant’s interest in being tried on evidence validly
before the jury; the public’s interest in having the guilty
punished; the public’s interest in not burdening the
administration of justice with undue financial or
administrative costs; the public’s interest that the judicial
process shall both appear fair and be fair in fact; and the
interest of the individuals involved—the witnesses and
family of the victim—not to be subjected to undue trauma,
embarrassment or inconvenience.

Id. at 353 (citation omitted).

¶21 Hoeft relies heavily on Lettice, arguing that the State’s conduct in his
case “is far more egregious than the Lettice case” because he was self-represented.

7
Hoeft does not explain exactly why the prosecutor’s actions constitute misconduct. It
seems, and we presume, that his contention is that by the prosecutor moving to have Hoeft held in
contempt twenty minutes before the trial, Hoeft was wrongly being intimidated and thus prevented
from being able to focus solely on the trial. As noted above, Hoeft fails to fully develop this
argument.
8
We pause to note that Hoeft did not object to the prosecutor’s motion for contempt at
trial. Hoeft first raised this issue in his motion for postconviction relief. As such, Hoeft has
arguably waived this argument, and the plain error doctrine applies. See State v. Jorgensen, 2008
WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. However, neither Hoeft nor the State address the
plain error doctrine in their briefs. Regardless, Hoeft has not met his burden of establishing that
the alleged error is “fundamental, obvious, and substantial.” See id., ¶23.

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No. 2021AP1636-CR

First, we note that Hoeft does not support with legal authority his assertion that
prosecutorial misconduct is exacerbated when a defendant proceeds pro se.
Regardless, Hoeft misunderstands Lettice. In Lettice, the victim was examined by
a psychologist and, after the circuit court ruled that the psychologist’s notes were
not confidential treatment records, the defendant’s attorney filed a motion
incorporating a copy of the notes from the psychologist’s report. Id. at 350.
Disregarding the court’s ruling, three days before trial, the State served the
defendant’s attorney with a criminal complaint charging the attorney with publicly
disclosing a confidential medical record. Id. at 349. As a result of this charge,
defense counsel devoted his time researching the law applicable to the charges
against him, rather than the defendant, and he was unable to sleep for two days. Id.
at 351. The defendant then went to trial represented by that attorney, and he was
convicted on all charges. Id.

¶22 On appeal, this court took note of the circuit court’s findings,
specifically that, prior to the charge being filed against defense counsel, the State’s
attorney was heard stating that he needed an adjournment of the trial, after which he
pulled the psychologist’s report from the defendant’s file and said “this is it.” Id. at
354. The circuit court found that the State filed the charges “either to disqualify
[the defendant’s attorney] or to delay the jury trial” and that the State’s “intentional
misconduct had a profoundly negative impact on [the defense attorney’s] ability to
effectively represent Lettice.” Id. Given these factual findings, we concluded that
Lettice was deprived of his right to a fair trial. Id. at 355.

¶23 Here, addressing Hoeft’s postconviction request for a new trial due to
the alleged prosecutorial misconduct, the circuit court noted it

did not proceed on the request and simply indicated it was
not going to proceed on the request at that time. That entire

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No. 2021AP1636-CR

discussion was just a very few seconds, and the [c]ourt can
find here today that it would have had no effect on Mr. Hoeft
being able to address issues. He never raised a concern on
that day about there being any problems with the request
and, of course, the request was of such short duration and not
addressed by the court that it could not have caused any
particular problem in Mr. Hoeft’s focus.

Accordingly, the court denied Hoeft’s request for a new trial.

¶24 Hoeft does not allege that the circuit court’s findings are clearly
erroneous, nor does he even address these findings. Regardless, as the State
correctly notes, “Lettice is not analogous” to the facts of this case. Unlike Lettice,
the State here did not file an unfounded charge with the goal of delaying the trial,
nor did the court find that the misconduct had a “profoundly negative impact” on
Hoeft’s ability to present a defense. Rather, the court applied the proper legal
standard and then used a demonstrated rational process to reach a reasonable
conclusion. Thus, we conclude that the court did not erroneously exercise its
discretion by denying Hoeft’s request for a new trial.

III. The State’s Discovery Obligations

¶25 Hoeft next argues that the State violated its discovery obligations
under WIS. STAT. § 971.23 when the State mailed him forty-three pages of
documents that he received the day before trial.

¶26 “Whether a discovery violation has occurred poses a question of law
that we review de novo.” State v. Prieto, 2016 WI App 15, ¶10, 366 Wis. 2d 794,
876 N.W.2d 154 (2015). WISCONSIN STAT. § 971.23(1) provides, “Upon demand,
the district attorney shall, within a reasonable time before trial, disclose to the
defendant … and permit the defendant … to inspect and copy or photograph all of
the [listed] materials and information, if it is within the possession, custody or

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No. 2021AP1636-CR

control of the state.” There is no dispute as to whether the documents in question
are covered by § 971.23(1). Rather, the dispute is whether the documents were sent
“within a reasonable time before trial.”

¶27 While the documents were sent to Hoeft shortly before trial, the State
averred that it received the documents in question on October 2 and that it mailed
the documents to Hoeft the next day. Further, the documents—aside from the
amended witness list, which was filed on September 23—were not in the State’s
possession prior to October 2; rather, the State was waiting to receive the documents
from the Inn. Furthermore, the documents totaled forty-three pages, which is not
an unreasonable amount to review in preparation for a trial one day later.9 Cf. State
v. Harris, 2008 WI 15, ¶¶16-17, 36-40, 307 Wis. 2d 555, 745 N.W.2d 397
(concluding that the prosecutor acted unreasonably by disclosing a police report to
defense counsel ten minutes before trial when the prosecutor had the file for
months).

¶28 Without any evidence supporting his claim, Hoeft asserts that the
State intentionally delayed disclosing the documents so that Hoeft would not have
time to look through them and “build a defense.” However, the circuit court found
the State’s averments to be credible. The circuit court is the ultimate arbiter of
witness credibility, and when more than one reasonable inference can be drawn from
the credible evidence, we must accept the inference drawn by the circuit court.
Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 249-50, 274 N.W.2d 647
(1979). Hoeft does not address the court’s finding of the State’s credibility
regarding its reasons for providing the documents when it did. Accordingly, we

9
Regardless, the State stated that it would only use the documents to cross-examine Hoeft
if he elected to testify. Given that Hoeft elected not to testify, these documents were not used.

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No. 2021AP1636-CR

conclude that the State did not violate its discovery obligations under WIS. STAT.
§ 971.23(1).

IV. The State’s Opening Statement

¶29 Hoeft next argues that the State “lied” during its opening statement
and that this lie rendered the trial unfair by destroying the presumption of innocence.
Specifically, Hoeft takes issue with the State’s assertion that Hoeft was taken into
custody by Lieutenant Cummings when, in actuality, Cummings merely “contacted
the Price County Jail and had them process [Hoeft].”

¶30 Hoeft did not object to the State’s opening statement at trial.
Accordingly, we analyze this issue under the plain error doctrine.

Under the doctrine of plain error, an appellate court may
review error that was otherwise waived by a party’s failure
to object properly or preserve the error for review as a matter
of right. [Our supreme court] has not articulated a
bright-line rule for what constitutes plain error,
acknowledging that there is no “hard and fast classification”
relative to its application. Rather, the existence of plain error
will turn on the facts of the particular case.

State v. Mayo, 2007 WI 78, ¶29, 301 Wis. 2d 642, 734 N.W.2d 115 (citation
omitted). “The error, however, must be ‘obvious and substantial.’” State v.
Jorgensen, 2008 WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77 (citation omitted).
“If the defendant shows that the unobjected to error is fundamental, obvious, and
substantial, the burden then shifts to the State to show the error was harmless.” Id.,
¶23.

¶31 Hoeft fails to show that the State’s error is fundamental, obvious or
substantial, much less all three. Without any citations to case law, Hoeft merely
states that “lying to the jury” violated his due process rights. We disagree. While

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No. 2021AP1636-CR

the State may have misstated forthcoming evidence in its opening argument, the
issue of who exactly took Hoeft into custody following the police investigation is
not fundamental, obvious or substantial. In addition, Hoeft used the State’s
misstatement to impeach Lieutenant Cummings during his testimony. The jury thus
would have been aware that the State’s statement was false. Further, the jury was
instructed that opening statements are not evidence.

V. The State’s Closing Argument

¶32 Hoeft also argues that, during its closing argument, the State
impermissibly commented on Hoeft’s decision not to testify at trial. Specifically,
Hoeft takes issue with the State’s argument to the jury that “Livingston’s testimony
about what happened was uncontradicted. You heard nobody else testif[y]. Nobody
else was there. Nobody else could contradict that testimony. You’ve heard no
contradictory evidence at all about what she said.” Hoeft did not object to these
statements during the trial.

¶33 Whether the State violated Hoeft’s Fifth Amendment right not to
testify presents a question of law that we review de novo. See State v. Hoyle, 2023
WI 24, ¶15, 406 Wis. 2d 373, 987 N.W.2d 732. To avoid issues with a defendant’s
right not to testify in his or her own defense, “a prosecutor may not suggest to the
jury that a defendant’s choice not to testify indicates guilt.” State v. Jaimes, 2006
WI App 93, ¶21, 292 Wis. 2d 656, 715 N.W.2d 669.

[F]or a prosecutor’s comment to constitute an improper
reference to the defendant’s failure to testify, three factors
must be present: (1) the comment must constitute a
reference to the defendant’s failure to testify; (2) the
comment must propose that the failure to testify
demonstrates guilt; and (3) the comment must not be a fair
response to a defense argument.

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No. 2021AP1636-CR

Id.; see also Hoyle, 406 Wis. 2d 373, ¶¶31, 33, 39 (expanding upon and analyzing
these legal principles).

¶34 Hoeft fails to explain how the State’s comment satisfies the above
three factors. Indeed, he fails to even acknowledge any of these factors.
Nevertheless, upon our independent review of the record, we conclude that the
State’s comment fails to satisfy the first and second Jaimes’ factors. The comment
that Livingston’s testimony was uncontroverted does not implicate Hoeft’s decision
not to testify or imply Hoeft’s guilt due to his decision not to testify, as Hoeft could
have presented evidence to contradict Livingston’s testimony other than his own
testimony. Hoeft could have presented his own witnesses or documents evidencing
that he made a payment on his Inn bill. He could have also cross-examined
Livingston regarding his alleged nonpayment, including any documents that she
referenced.

¶35 Furthermore, after closing arguments, the circuit court instructed the
jury that “[a] defendant in a criminal case has the absolute constitutional right not
to testify. The defendant’s decision not to testify must not be considered by you in
any way and must not influence your verdict in any manner.” We presume that the
jury follows all instructions given, and Hoeft has not addressed this jury instruction.
See State v. Grande, 169 Wis. 2d 422, 436, 485 N.W.2d 282 (Ct. App. 1992).

VI. The Sufficiency of the Evidence

¶36 Finally, Hoeft challenges the sufficiency of the evidence supporting
his conviction. Hoeft argues that the only witness with firsthand knowledge of the
events leading to Hoeft’s arrest was Livingston, and Livingston did not provide any
“evidence” that he stayed at the motel. Hoeft further asserts that Livingston was
lying.

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No. 2021AP1636-CR

¶37 We will “not reverse a conviction unless the evidence, viewed most
favorably to the state and the conviction, is so insufficient in probative value and
force that it can be said as a matter of law that no trier of fact, acting reasonably,
could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153
Wis. 2d 493, 501, 451 N.W.2d 752 (1990).

¶38 Hoeft misunderstands the “evidence” against him, insomuch as
testimony is evidence. And Livingston testified that Hoeft had stayed at the Timber
Inn Motel previously and had paid for that stay, but she explained that Hoeft failed
to pay for his subsequent stay, and she identified Hoeft in the courtroom.

¶39 Contrary to Hoeft’s assertion, this testimony, if credited by the jury,
was sufficient to prove that Hoeft violated WIS. STAT. § 943.21(1m)(a) and
(3)(am)1. and supports the jury’s guilty verdict. While Hoeft may claim that
Livingston was lying, it was within the province of the jury to determine whose
evidence and testimony were credible. See Poellinger, 153 Wis. 2d at 503. We will
not disturb the jury’s decision on Livingston’s credibility. Thus, we reject Hoeft’s
assertion that there was insufficient evidence to convict him of fraud on an
innkeeper.10

By the Court.—Judgment and order affirmed.

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

10
Hoeft also asserts that the cumulative effect of the multiple issues he raises requires the
reversal of his conviction. Because we conclude that Hoeft has failed to prove any of his arguments,
we reject this argument as well.

16