COURT OF APPEALS

DECISION

DATED AND FILED

July 5, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2022AP411-CR Cir. Ct. No. 2021CF59

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

STEVEN L. JONES,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Winnebago County: JOHN A. JORGENSEN, Judge. Affirmed. 

Before Gundrum, P.J., Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2022AP411-CR

2

¶1 PER CURIAM. Steven L. Jones appeals from a judgment, entered 

following a jury trial, convicting him of attempted burglary and possession of 

burglarious tools, both as party to a crime. He also appeals from an order denying

postconviction relief. On appeal, Jones argues he is entitled to a new trial because 

the circuit court erroneously admitted opinion testimony from an investigating 

detective and because the circuit court was overly intrusive and biased when it 

questioned a witness. We affirm.

BACKGROUND

¶2 According to the complaint, while working late and alone at a 

pharmacy, the owner of the pharmacy heard “scratching or scraping” at the back 

door of the building, saw the door handle turn and wiggle, and called police because 

she believed someone was trying to break in. When police arrived, one officer saw 

a red four-door sedan quickly driving away. Another officer pursued the vehicle. 

Following a high speed chase, the car crashed. There were two occupants in the 

vehicle—the driver and Jones. In the vehicle, police found various items, including 

two pry bars and a screwdriver. At the pharmacy, police determined marks on the 

back door indicated “that a screwdriver type pry tool had been used to attempt to 

breach the back door.” Police also found footprints in the snow leading from the 

pharmacy’s back door to where a car had been parked. Surveillance video showed 

a red VW Jetta driving away from the scene of the attempted burglary. The State 

charged Jones with attempted burglary and possession of burglarious tools, both as 

party to a crime. 

¶3 At trial, and as relevant for appeal, the owner testified that she was 

working late when she heard the pharmacy’s rear door handle jiggling like 

“someone ... had their hand on the other side of the door handle and was trying to 
No. 2022AP411-CR

3

open it.” This door was in the rear of the pharmacy and not for customers. She 

called 911. The circuit court asked whether the owner gave permission or consent 

to anyone to enter the pharmacy after closing hours, and she said no. Jones’ counsel 

objected to the court’s question on the basis that “the State had not established that 

the attempted entry was without consent, an essential element, and the Court 

established that for the State.” The court overruled the objection because it was 

“allowed” by statute “to control the mode and method of questioning.”

¶4 Then, during the investigating detective’s testimony, the detective 

testified that he saw “evidence of prying or tool marks on the exterior of the [back] 

door” of the pharmacy, with “a couple of them that definitely appear[ed] fresh” 

based on the small pieces of paint shavings from the door that were flaking and 

coming off by the tool marks. When asked whether the detective could “consider 

these marks normal wear and tear on the door,” Jones objected because “this is 

getting into expert testimony regarding tool print comparison.” The court instructed 

the State to lay some foundation.

¶5 The detective then testified that in his twenty-six years as a detective, 

he had investigated “several hundred burglaries” involving “forced entries to 

buildings” and “tool marks such as this,” and that it was “very common for burglars 

to use a pry bar or a screwdriver to damage the door frame and to create a gap so 

that the door opens.” The marks on the pharmacy door did not “look like normal 

wear and tear” to the detective because it appeared “that there were attempts to pry 

this door open using a tool ... similar to a pry bar and a smaller tool similar to a 

screwdriver.” After the detective confirmed that he had used screwdrivers and pry 

bars himself and stated that the marks on the pharmacy door were consistent with 

such use, Jones again objected because this statement called “for expert testimony.” 

The court allowed the testimony “based upon the experience that we heard.”
No. 2022AP411-CR

4

¶6 Ultimately, the jury found Jones guilty as charged and the court 

sentenced him. Jones filed a postconviction motion, which the court denied after a 

hearing. He appeals. 

DISCUSSION

¶7 On appeal, Jones first argues he is entitled to a new trial because the 

circuit court erroneously admitted opinion testimony from the investigating 

detective who determined the pharmacy’s back door had marks on it indicating a 

tool was used to attempt to pry it open. He contends that the detective testified as 

an expert witness pursuant to WIS. STAT. § 907.02 (2021-22)1and the State failed 

to qualify the detective as a tool-marks expert under § 907.02.

¶8 We disagree. Contrary to Jones’ assertions, the State did not present 

the detective’s testimony as an expert witness under WIS. STAT. § 907.02. Rather, 

the detective’s testimony was admitted as nonscientific, lay opinion under WIS.

STAT. § 907.01. Lay opinion testimony is limited to opinions that are rationally 

based on the witness’s perception, helpful to the determination of a fact in issue, and 

not based on scientific, technical, or other specialized knowledge within the scope 

of an expert witness. See § 907.01. 

 

1

 WISCONSIN STAT. § 907.02 (2021-22) is titled “Testimony by experts,” and provides, in 

relevant part: 

(1) If scientific, technical, or other specialized knowledge will 

assist the trier of fact to understand the evidence or to determine a 

fact in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education, may testify thereto in the form 

of an opinion or otherwise, if the testimony is based upon 

sufficient facts or data, the testimony is the product of reliable 

principles and methods, and the witness has applied the principles 

and methods reliably to the facts of the case.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP411-CR

5

¶9 Here, the detective testified about his law enforcement experience 

investigating burglaries that involved forced entries with tool marks caused by pry 

bars or screwdrivers. He opined that, based on his knowledge and experience, the 

marks he observed on the door were not “normal wear and tear” but instead were 

evidence of “attempts to pry this door open using a tool.” The detective’s testimony 

was rationally based on his perception and helpful to an understanding that the 

damage was caused by an attempt to pry the door open with a tool. See WIS. STAT.

§ 907.01. The circuit court properly exercised its discretion when it admitted the 

detective’s testimony. See State v. Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 

N.W.2d 448 (We will “not disturb a circuit court’s decision to admit evidence unless 

the court erroneously exercised its discretion.”). Jones is not entitled to a new trial 

on this basis.

¶10 Next, Jones contends he is entitled to a new trial because the circuit 

court was overly intrusive and biased. “In analyzing a judicial-bias claim, we start 

with the ‘presumption that the judge is free of bias and prejudice.’” State v. Pirtle, 

2011 WI App 89, ¶34, 334 Wis. 2d 211, 799 N.W.2d 492 (citation omitted). The 

defendant has the burden to prove the court was biased. Id. Jones argues the circuit 

court was biased when it questioned the owner during trial to establish that she did 

not consent to Jones attempting to enter the pharmacy. He contends the circuit court 

was biased because it helped the State prove its case.

¶11 We disagree. Here, the circuit court questioned the owner following 

the prosecutor’s direct examination and Jones’ cross-examination to clarify issues 

flowing directly from the evidence. WISCONSIN STAT. § 906.14(2) explicitly 

permits the court to question a witness. That the circuit court questioned the witness 

does not mean the court demonstrated bias and took a side in the case. Jones has 
No. 2022AP411-CR

6

made no showing that the circuit court’s action gave the appearance to the jury that 

the court had taken sides in this case.2 

¶12 Although Jones argues the circuit court’s question helped the State 

prove its case, Jones overlooks that there was more than sufficient evidence that 

Jones did not have consent to enter the pharmacy before the court even asked the 

clarifying question. On direct examination, the owner testified that she heard 

someone trying to get into the locked, non-customer, back door of her pharmacy

late at night after the business was closed to the public, and she called 911 to report 

a break in. This evidence circumstantially established the person trying to get into 

the pharmacy did not have consent to do so.

¶13 Finally, Jones argues he is entitled to a new trial in the interest of 

justice. In support, Jones contends, in conclusory fashion, that cumulatively, the 

“improper admittance of ‘expert testimony,’ [the circuit court’s] overlying intrusive 

behavior impacting the jury, and confusing jury instructions” deprived him of his 

right to a fair trial. At the outset, Jones has not developed any legal argument about 

the jury instructions used in this case, and we will not consider it further. See State 

v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not 

consider undeveloped arguments or those unsupported by adequate authority). As 

to Jones’ remaining points, because we conclude the circuit court did not err by 

admitting the detective’s opinion testimony or by questioning the owner, we 

conclude Jones is not entitled to a new trial in the interest of justice.

 

2

 In support of his bias argument, Jones complains “[t]here were many instances at trial 

where the Court came in to assist the State.” However, other than questioning the owner, Jones 

does not identify any other occasion where the circuit court purportedly did something wrong or 

potentially wrong. We will not consider this argument further. See State v. Pettit, 171 Wis. 2d 

627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider insufficiently developed 

arguments). 
No. 2022AP411-CR

7

By the Court.––Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.