State v. Pierce
927 N.W.2d 156
Wis. Ct. App.2019Background
- Pierce, owner of Pierce Builders, contracted to build homeowners' Geneva Lake house with an initial estimate just under $5 million; project ran years behind schedule with escalating costs and specialty window problems.
- Pierce provided periodic UDAs (software cost estimates) and change orders; estimates later rose to about $5.8–6.2 million.
- Homeowners paid Pierce roughly $5.77 million; subcontractors later claimed Pierce had not paid them tens of thousands each.
- Pierce traveled repeatedly to Costa Rica to pursue window production, sought reimbursements for Costa Rica expenses (some personal), solicited additional funds from homeowners, then sent a letter abandoning the project.
- Criminal charges: five counts of theft by fraud and one count of theft by contractor (amounts over $10,000). A jury convicted on all counts; postconviction relief was denied and appeal followed.
Issues
| Issue | Pierce's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for theft by contractor | Homeowners didn’t prove they paid enough to cover subs; UDAs are estimates; cost overruns (windows) excused nonpayment | Evidence showed Pierce diverted trust funds, padded UDAs, incurred nonproject expenses, absented himself, and abandoned the project — supporting intent and misuse of owner funds | Conviction upheld: reasonable juror could infer Pierce intentionally used owner funds for non‑sub purposes in violation of contractor‑trust statute |
| Sufficiency for five theft‑by‑fraud counts | Evidence is insufficient and counts multiplicitous | Each count concerned money tied to a different subcontractor and distinct deception | Convictions upheld; counts are not multiplicitous because they differ in fact (different subs) |
| Admission of documentary and testimonial evidence (balance sheets, letter to mason’s counsel, Culp chart) | Evidence was hearsay, irrelevant, prejudicial, or lacked foundation | Documents and testimony were admissible for non‑truth purposes (state of homeowners’ belief, Pierce’s records), business‑records and foundation testimony supported admission | Admission not erroneous or harmless; evidence properly admitted and did not undermine confidence in outcome |
| Ineffective assistance of counsel | Multiple claimed lapses (failure to object on multiplicity, evidentiary issues, elicit rebuttal on arbitration) | Counsel’s choices were reasonable strategy; many objections would have been meritless; Pierce failed to show prejudice under Strickland | Claim denied: counsel’s performance not shown deficient or prejudicial; no reasonable probability of different outcome |
Key Cases Cited
- State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (discussing standard for sufficiency of evidence)
- Tri‑Tech Corp. of Am. v. Americomp Servs., Inc., 254 Wis. 2d 418, 646 N.W.2d 822 (defining criminal theft by contractor as trust violation plus intent)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard — performance and prejudice)
- State v. Steffes, 347 Wis. 2d 683, 832 N.W.2d 101 (false representation in theft‑by‑fraud context not limited to express promises)
- State v. Trawitzki, 244 Wis. 2d 523, 628 N.W.2d 801 (review framework for ineffective assistance mixed questions)
- State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (multiplicity concept and double jeopardy analysis)
- State v. Avery, 345 Wis. 2d 407, 826 N.W.2d 60 (discretionary new‑trial power in the interest of justice should be used rarely)