Misstatement of law by prosecutor in closing argument does not entitle defendant to relief

State v. Troy Allen Shaw, 2023AP697, 1/24/24, District II (1-judge decision; ineligible for publication); case activity (including briefs)

Shaw’s challenge to improper closing argument persuades COA that the prosecutor erred, but fails to overcome the imposing tests for plain and harmless error.

Shaw appeals his conviction for criminal trespass to a dwelling. (¶1). In a fact pattern that is likely to chill parents of teenagers, it would appear that a seventeen-year-old named “Joan” let Shaw into her home after he walked away from police investigating a disturbance and asked to come inside because he believed police were going to shoot him. (¶3). After Joan let Shaw inside, however, he refused to come back out and police ultimately had to enter the home and forcibly remove him. (¶8). While it was clear that Joan’s father, Gary, spoke to police over the phone and gave police permission to remove Shaw from his home, Joan’s decision to rescind her invitation was a more hotly-disputed issue at trial.  (¶¶6-7). This led the prosecutor, in closing argument, to suggest that Shaw could be found guilty of criminal trespass to dwelling based on Gary’s lack of consent for him to remain on the premises. (¶19).

Shaw appeals and argues that this misstatement of the law was improper closing argument. (¶17). Under § 943.14(2), Shaw was guilty of criminal trespass to dwelling so long as the State proved that he “intentionally…remains in the dwelling of another without the consent of some person lawfully upon the premises […].” However, if “no person is lawfully upon the premises” then the crime is proven by the lack of the owner’s consent. (Id.). Because Gary’s daughter Joan was “lawfully upon the premises” COA therefore agrees that the alternative test for consent–focusing on Gary’s permission–is inapplicable. (¶17). Instead, the dispositive issue at trial was whether Joan had revoked her consent. (Id.). Accordingly, COA accepts Shaw’s argument that the prosecutor erred by suggesting that the crime could be proven via reference to Gary’s lack of consent. (Id.)

Unfortunately, there was no objection below, so Shaw needs to prove that this was a “plain error” or an error that is”fundamental, obvious, and substantial” such that relief may be granted notwithstanding Shaw’s presumptive waiver of that issue. (¶20).  Shaw fails to satisfy this imposing hurdle given the “substantial evidence” in the record of Joan’s nonconsent, (¶22), the relatively “limited scope” of the remarks, (¶24), and the instructions given to the jurors instructing them that the prosecutor’s comments were not evidence. (Id.). Moreover, even if the error was “plain,” COA finds it to be harmless beyond a reasonable doubt given that these were “brief” comments in context of an otherwise strong case for the State. (¶27).