State v. Martha R. Elsila, 2024AP1444-CR, 3/19/25, District II (1-judge decision, ineligible for publication); case activity
COA affirms restitution order on appeal challenging witness’s credibility and claiming IAC. COA deferred to the circuit court’s credibility determination given no evidence was presented to contradict witness, and found that appellant’s IAC claim was forfeited because it was not raised in the circuit court.
Martha Elsila pled no contest to endangering safety as party to the crime. The charge related to eight people shooting firearms on Elsila’s property that damaged a neighbor’s house. (¶¶ 1, 3). The neighbor sought restitution and testified at the restitution hearing about bullet holes on the house and additional damage to the property. The neighbor also provided contractors’ bills and estimates to support the claim. Elsila did not testify or present any other evidence. The circuit court ordered Elsila to pay more than $138,000 in restitution. (¶ 5).
Elsila appeared pro se on appeal and argued that the circuit court relied on “perjured” testimony because her neighbor lied about the property damage and the shooting, and that her counsel was ineffective for not introducing evidence she provided counsel to challenge the restitution request or call any witnesses on her behalf. (¶ 1).
With respect to the “perjured” testimony, the Court observed that the circuit court found the neighbor’s testimony credible and there was no evidence to contradict the testimony; the Court therefore deferred to the circuit court’s credibility finding. (¶ 8). The Court noted that the circuit court itemized each of the neighbor’s claims for damages and Elsila did not cite any evidence in the record to show that the circuit court’s determinations with respect to damage and costs to repair were clearly erroneous. (¶ 9).
The Court rejected Elsila’s claim for ineffective assistance of counsel because she did not raise the issue in a postconviction motion: “An ineffective assistance claim that is based on counsel’s conduct before the circuit court must be presented to that court in the first instance. By not doing so, Elsila forfeited her right to raise the claim before this court.” (¶ 11).
