COURT OF APPEALS

DECISION

DATED AND FILED

July 15, 2021

Sheila T. Reiff

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. 2020AP829-CR Cir. Ct. No. 2017CF1770

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

LAMARDUS DEWAYNE FORD,

 DEFENDANT-APPELLANT.

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

County: JOHN M. WOOD, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Graham, 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. 2020AP829-CR

2

¶1 PER CURIAM. Lamardus D. Ford appeals a judgment of 

conviction and an order denying Ford’s postconviction motion. Ford contends 

that: (1) there was insufficient evidence to support his conviction for first-degree 

recklessly endangering safety; and (2) his constitutional right to confrontation was 

violated when the circuit court allowed the State to introduce out-of-court 

statements at trial under the forfeiture by wrongdoing doctrine. For the reasons set 

forth in this opinion, we disagree. We affirm.

¶2 Ford was charged with two counts of first-degree recklessly 

endangering safety, possession of a firearm by a felon, disorderly conduct, 

obstructing an officer, and two counts of intimidating a witness. These charges 

were based on an event in which gun shots were fired on a street in Beloit, striking 

a residence and a church. Ford was also charged with obstructing an officer and 

two counts of misdemeanor intimidation of a witness based on events in the 

following months.

¶3 The first count of recklessly endangering safety was connected to the 

shot that struck the outside of the residence, and the second was connected to the 

shot that struck the outside of the church. The recklessly endangering safety count 

as to the residence alleged that Ford had endangered the safety of J.K.L., who was 

inside the residence at the time of the shooting. The other count, related to the 

church, stated that Ford had endangered the safety of “another.” According to the 

criminal complaint, the shooting occurred around 2:00 a.m., and when police 

arrived there were people gathered on the street. Police spoke with multiple 

witnesses, including Ford’s girlfriend, T.U.H., and her children, A.D.H. and T.J.H. 

T.U.H. and A.D.H. told police that Ford was present at the time of the shooting, 

and T.J.H. implicated Ford as the shooter.
No. 2020AP829-CR

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¶4 Prior to trial, the State moved to admit hearsay statements by T.U.H, 

A.D.H., and T.J.H. based on the forfeiture by wrongdoing doctrine in the event 

that those witnesses did not appear at trial. In support, the State submitted 

transcripts of recorded jail phone calls between Ford and T.U.H. Ford objected, 

arguing that he had not dissuaded any witnesses from appearing to testify at trial. 

At a hearing on the State’s motion, the State played portions of the recorded calls 

between Ford and T.U.H. The circuit court withheld its ruling until trial so that it 

could first determine whether any of the witnesses failed to appear.

¶5 T.U.H. and A.D.H. appeared at trial, but T.J.H. failed to appear. The 

State submitted additional transcripts of recorded jail phone calls between Ford 

and T.U.H., and it argued that T.J.H.’s hearsay statement implicating Ford as the 

shooter should be admitted. Ford argued that there was no evidence that he had 

taken any action to prevent T.J.H. from testifying.

¶6 The circuit court determined that T.J.H.’s out-of-court statements

implicating Ford as the shooter were admissible based on forfeiture by 

wrongdoing. In reaching that determination, the court found that Ford was a 

contributing factor in T.J.H. failing to appear at trial, and that he intended that 

result. The court found that, during his phone calls with T.U.H., Ford had made 

statements in which he encouraged witnesses to “plead the fifth,” claim their 

statements had been coerced, or claim that they had been intoxicated and did not 

remember the events. The court noted that Ford had complained to T.U.H. about 

people providing statements to police, and also that he said that the State might not 

have any witnesses. The court found that the tone of Ford’s and T.U.H.’s voices 

showed that Ford was the dominant personality in the conversation, and that Ford 

had the opportunity and ability to influence the availability of the witnesses.
No. 2020AP829-CR

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¶7 The jury found Ford guilty on all of the charges except the recklessly 

endangering safety count related to the residence. Ford appeals.1

¶8 Ford contends that the evidence was insufficient to support his 

conviction for the court of recklessly endangering safety related to the church. He 

points to the absence of evidence that there was anyone present inside or near the 

church at the time of the shooting, and he argues that no one’s safety could have 

been endangered when bullets struck the outside of the church.2

¶9 The State responds that the evidence was sufficient to support the 

conviction. It points to evidence that Ford fired multiple shots on a residential 

street around 2:00 a.m., while others were present. It argues that a reasonable jury 

could have found that Ford knew that shooting a gun on a residential street when 

others were present created an unreasonable and substantial risk of death or great 

bodily harm to another person, and that when he shot the gun he acted without any 

regard for human life. See WIS JI—CRIMINAL 1345. It also disputes Ford’s 

contention that the evidence was insufficient because no one was inside or near the 

church, pointing out that the jury did not find Ford guilty of shooting a gun inside 

the church but rather shooting a gun on the crowded street on which the church

was located.

 

1

 Ford appeals the judgment of conviction and an order denying postconviction relief. 

However, he does not pursue any issues decided by the order addressing the postconviction 

motion, and we therefore deem those arguments abandoned.

2

 Ford also argues that, because the jury found Ford not guilty of the shooting related to 

the residence even though a person was inside the residence during the shooting, the jury could 

not have found Ford guilty of the shooting related to the church. However, when considering the 

sufficiency of the evidence to support the count for which Ford was convicted, we do not 

consider the jury’s decision as to the other count. See State v. Rice, 2008 WI App 10, ¶2, 307 

Wis. 2d 335, 743 N.W.2d 517 (“[W]hether the evidence is sufficient to support a conviction is 

decided independently of jury verdicts on related charges.”).
No. 2020AP829-CR

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¶10 We review the sufficiency of the evidence to support a conviction 

for whether “the evidence, viewed most favorably to the [S]tate and the 

conviction, is so lacking in probative value and force that no trier of fact, acting 

reasonably, could have found guilt beyond a reasonable doubt.” See State v. 

Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). We will uphold a 

conviction “[i]f any possibility exists that the trier of fact could have drawn the 

appropriate inferences from the evidence adduced at trial to find the requisite 

guilt.” Id.

¶11 We conclude that the jury could have drawn the reasonable inference 

that, by shooting a gun on a street while others were present, Ford created an 

unreasonable and substantial risk of death or great bodily harm to another person, 

without any regard for human life, regardless of whether there was evidence that 

anyone was located inside or near the church. We are not persuaded that the 

evidence was insufficient to support the conviction based on the lack of evidence 

as to the presence of anyone inside or in close proximity to the church. Viewing 

the evidence in the light most favorable to the conviction, as we must, we 

conclude that the evidence before the jury was sufficient to sustain its verdict.

¶12 Ford separately contends that his constitutional right to confrontation 

was violated when the circuit court allowed the State to introduce T.J.H’s out-ofcourt statements at trial. “In all criminal prosecutions, the accused shall enjoy the 

right ... to be confronted with the witnesses against him [or her].” U.S. CONST.

amend. VI. The Confrontation Clause applies to the states through the Fourteenth 

Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965). The Supreme Court 

has held that, pursuant to the Confrontation Clause, admission of the prior 

testimony of a witness against a defendant is allowed only if the witness is 
No. 2020AP829-CR

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unavailable and the defendant had a prior opportunity to cross-examine the 

witness. Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

¶13 However, the forfeiture by wrongdoing doctrine provides an 

exception to the Confrontation Clause. Giles v. California, 554 U.S. 353, 359 

(2008). Under the forfeiture by wrongdoing doctrine, a court may allow 

introduction of “statements of a witness who is ‘detained’ or ‘kept away’ by the 

‘means or procurement’ of the defendant.” Id. (citations omitted). The doctrine is 

based on equitable grounds and arises from “public policy against a defendant 

profiting from his or her own wrongdoing.” Baldwin, 2010 WI App 162, ¶35, 330 

Wis. 2d 500, 794 N.W.2d 769. Thus, “[u]nder the forfeiture by wrongdoing 

doctrine, a defendant forfeits [the] Sixth Amendment right to confront a witness 

when the defendant wrongly procures that witness’ unavailability by conduct 

designed to prevent the witness from testifying.” State v. Reinwand, 2019 WI 25, 

¶14, 385 Wis. 2d 700, 924 N.W.2d 184.

¶14 For the forfeiture by wrongdoing doctrine to apply, the State must 

prove by a preponderance of the evidence “that the defendant prevented the 

witness from testifying” and “that the defendant intended to prevent the witness 

from testifying.” See Baldwin, 330 Wis. 2d 500, ¶¶37-39 (emphasis omitted). 

Additionally, the witness must have been “[u]navailab[le] for confrontation,” 

which requires that the witness did not appear at trial despite the State’s “‘good

faith effort’ to produce that declarant at trial.” See State v. King, 2005 WI App 

224, ¶6, 287 Wis. 2d 756, 706 N.W.2d 181 (quoted source omitted).

¶15 Although a circuit court’s decision to admit evidence is ordinarily 

discretionary, whether the admission of evidence violates a defendant’s right to 

confrontation is a question of law subject to our independent review. Baldwin, 
No. 2020AP829-CR

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330 Wis. 2d 500, ¶30. As part of our review, we accept the circuit court’s findings 

of fact unless they are clearly erroneous. Id.

¶16 Ford contends that the facts before the circuit court did not support 

its application of the forfeiture by wrongdoing doctrine. Ford does not argue that 

the State failed to make a good faith effort to produce T.J.H. at trial. Ford 

challenges only the circuit court’s findings that he prevented T.J.H. from testifying 

and that he intended to do so.

¶17 First, Ford contends that there was no evidence to support a finding

that Ford caused T.J.H. not to appear at trial. Ford points to evidence that T.J.H. 

may have been homeless, and argues that it was unreasonable for the circuit court 

to assume that T.U.H. had any ability to contact her son on Ford’s behalf prior to 

trial. He contends that a more reasonable inference would have been that T.J.H. 

would not have had money to pay for a phone. He contends that, without any 

evidence that Ford or T.U.H. were able to contact T.J.H., there was no evidence 

that Ford could have dissuaded T.J.H. from testifying at Ford’s trial. Ford points 

out that the only specific mention of T.J.H. in the recorded jail calls was Ford’s 

statement to T.U.H that Ford’s attorney believed that Ford would be “better off [if 

T.J.H. is] available to show up [at trial].” According to Ford, that statement 

showed that he had no control over T.J.H.’s actions because, he asserts, if he did 

have an ability to influence T.J.H.’s actions, that statement would have resulted in 

T.J.H. appearing at trial.

¶18 In reviewing the circuit court’s factual findings, the question before 

us is not whether the evidence would have supported other factual findings or

reasonable inferences, but whether Ford has shown that the court’s factual findings 

and the inferences it drew were clearly erroneous. See Outagamie Cnty. v. 
No. 2020AP829-CR

8

Melanie L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 833 N.W.2d 607 (“We will not 

disturb a circuit court’s factual findings unless they are clearly erroneous. We 

accept reasonable inferences from the facts available to the circuit court.”). “[A] 

factual finding is not clearly erroneous merely because a different fact-finder 

could draw different inferences from the record.” State v. Wenk, 2001 WI App 

268, ¶8, 248 Wis. 2d 714, 637 N.W.2d 417.

¶19 Here, a common-sense interpretation of the recorded phone calls 

supports the circuit court’s finding that Ford encouraged T.U.H. to ensure that the 

witnesses did not testify or did not inculpate Ford in the shooting. Among other 

things, Ford told T.U.H. that it was “great” that A.D.H. had told police that she 

could not remember what had happened on the night of the shooting, and that 

other witnesses could do the same at the upcoming preliminary hearing. Ford told 

T.U.H. that witnesses could “plead the fifth” and “answer nothing.”

¶20 Although one inference that could have been drawn from the 

evidence of T.J.H.’s homelessness may have been that T.U.H. had no way to 

contact T.J.H. to convey Ford’s message, we do not agree with Ford that that was 

the only reasonable inference the circuit court could have drawn. Rather, we 

conclude that the inference that the court did draw—that Ford had the opportunity 

to influence whether T.J.H. appeared at trial—was also reasonable. The court 

could have reasonably inferred that, as his mother, T.U.H. would have had the 

ability to contact T.J.H. by some means, regardless of his homelessness.

¶21 Nor are we persuaded that the statement by Ford that his attorney 

believed it would be better for Ford if T.J.H. appeared at trial, together with 

T.J.H.’s subsequent failure to appear, leads to the necessary finding that Ford had 

no ability to influence T.J.H.’s actions. As the State points out, Ford did not make 
No. 2020AP829-CR

9

an unambiguous statement that he wanted T.J.H. to appear and testify at this trial. 

Rather, he related what he purported to be his attorney’s theory that the State 

would be able to introduce T.J.H.’s statement even if T.J.H. did not appear, after 

which Ford said, “Now I don’t ... know what to do.” It undermines Ford’s 

argument that he does not point to an unequivocal statement that he made to

T.U.H. that T.J.H. should appear for trial. The circuit court was not required to 

find on these facts that Ford had no ability to influence T.J.H.’s actions.

¶22 Second, Ford contends that there were no facts to support the circuit 

court’s finding that Ford intended to dissuade T.J.H. from testifying at trial. Ford 

argues that he would have had every reason to want T.J.H. to appear at trial so that 

he could exercise his right of confrontation, believing that T.J.H.’s statements 

would be admitted into evidence if T.J.H. failed to appear.

¶23 We disagree with Ford’s contention that there was no supporting 

evidence for the circuit court’s finding that Ford intended to cause T.J.H. not to 

testify at trial. The court relied on Ford’s complaints about witnesses speaking to 

police, his references to the option for witnesses to “plead the fifth” or deny 

remembering the events, and his statements such as the possibility that the State 

would have no witnesses, together with consideration of the tone of voices on the 

phone calls, in finding that Ford’s intent was to dissuade T.J.H. from testifying. 

For all these reasons, we have no basis to disturb the court’s finding.

¶24 In sum, based on the circuit court’s factual findings, which Ford has 

not shown are clearly erroneous, we conclude that the State established by a 

preponderance of the evidence that Ford caused T.J.H. not to testify at trial and 

that Ford intended to prevent T.J.H. from testifying.
No. 2020AP829-CR

10

By the Court.—Judgment and order affirmed.

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

809.23(1)(b)5. (2019-20).