COURT OF APPEALS

DECISION

DATED AND FILED

March 23, 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. 2020AP58-CR Cir. Ct. No. 2016CF325

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JESSE RAY LLOYD,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Chippewa County: 

JAMES M. ISAACSON, Judge. Affirmed. 

Before Stark, P.J., Hruz and Seidl, 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). 

¶1 PER CURIAM. Jesse Lloyd appeals from an amended judgment 

convicting him of conspiracy to commit armed robbery and possession of a 
No. 2020AP58-CR

2

firearm by a felon. The sole issue on appeal is whether the circuit court erred by 

refusing to provide a jury instruction on the lesser included offense of conspiracy 

to commit robbery by threat of force. We conclude the evidence at trial did not 

warrant an instruction on the lesser included offense and therefore affirm.

BACKGROUND

¶2 The State charged Lloyd with first-degree intentional homicide as 

party to a crime; conspiracy to commit armed robbery with use of force; and 

possession of a firearm by a felon, all in connection with the shooting death of 

Kenneth Patterson. The key witness at trial was Lloyd’s alleged co-conspirator, 

Matthew LaBrec. The jury instruction issue turns largely on whether there were 

reasonable grounds to accept part, but not all, of LaBrec’s account of events—

particularly as to who wielded the gun that fired the fatal shot. We will therefore 

set forth LaBrec’s testimony in detail, followed by shorter summaries of other 

evidence that supported or undermined LaBrec’s testimony on various points.

¶3 LaBrec appeared as a witness for the State after being given a 

favorable plea deal and testimonial immunity. LaBrec testified he made plans 

with Lloyd to rob Patterson because they needed money for drugs and Patterson 

had ripped off LaBrec in a drug deal a couple months earlier. The plan involved 

the use of firearms as an “equalizer” because Patterson was bigger than either 

LaBrec or Lloyd, and LaBrec feared they would be at a disadvantage if it came to 

a physical confrontation with Patterson. LaBrec planned to arm himself with a

modified .22 rifle with a cutoff barrel, and Lloyd planned to arm himself with a 

purple and white .380 Cobra handgun. The two planned to threaten Patterson with 

their guns to get his money, but not to shoot Patterson unless Patterson attacked 

them. 
No. 2020AP58-CR

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¶4 Lloyd had stolen the Cobra within the week before the attempted 

robbery. LaBrec described the Cobra as a cheap gun that would sometimes jam up 

and had something wrong with the firing pin. LaBrec bought an extended clip for 

the Cobra on Lloyd’s behalf, but he returned it because it would not fit that model. 

Lloyd and LaBrec also attempted to buy ammunition for the Cobra, but they were 

unable to complete the transaction because they were underage. Lloyd 

subsequently got another person, Robert Scherer, to buy ammunition for him. 

¶5 LaBrec had gotten his rifle by trading methamphetamine for it. The 

stock broke off the back of the rifle, so LaBrec used electrical tape to wrap the 

stock and keep the loading mechanism in place. LaBrec admitted that he was 

trying to buy a working gun before the attempted armed robbery, and that Lloyd 

had tried to sell the Cobra on the day of the attempted armed robbery. LaBrec, 

however, denied on cross-examination that he had bought the Cobra from Lloyd or 

traded him for it. Still, LaBrec knew Lloyd would let him use the Cobra if he 

wanted to do so. 

¶6 LaBrec said he lured Patterson to a secluded place by telling 

Patterson that LaBrec’s drug dealer would give Patterson cheaper 

methamphetamine if Patterson met with the drug dealer personally. LaBrec chose 

a new residential development as the robbery site because he thought there would 

not be cameras there. Lloyd and LaBrec picked Patterson up in Lloyd’s car, and 

Lloyd drove all three of them to a house under construction in the development. 

The three exited the car and headed toward the back of the house. As they walked, 

LaBrec prepared to pull out his rifle from a neoprene carrier bag; meanwhile, it 

was too dark for him to see when Lloyd pulled out his handgun. When they 

reached the back of the house, LaBrec and Lloyd both put their guns up, and 

Lloyd’s gun discharged before anyone said anything. LaBrec thought the 
No. 2020AP58-CR

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discharge was accidental, due to the “weird” or “hairpin” firing pin on the Cobra’s 

trigger combined with Lloyd’s nervousness or adrenaline. Lloyd subsequently 

told LaBrec that he did not know why he shot Patterson, saying, “It just 

happened.”

¶7 After Lloyd’s gun discharged, Patterson fell or stumbled back 

against some bushes, said “What the hell, Jesse,” and began running. Lloyd “shot 

some more” as Patterson ran away. LaBrec tried to fire his rifle as well, but the

electrical tape wrapped around the stock blocked the safety, and a portion of the 

taped loading mechanism fell off as LaBrec ran alongside the house following 

Patterson. LaBrec tried to retrieve the dropped piece of his rifle, but he could not 

find it in the dark. Patterson ran out of sight while LaBrec was searching for the 

dropped piece. LaBrec then met up with Lloyd in the car in front of the house. 

They decided not to continue searching for Patterson because law enforcement

could be on its way, so they left. 

¶8 Lloyd and LaBrec drove from the scene of the shooting to 

Ryley Clark’s house to procure some methamphetamine. LaBrec went in and told 

Clark in front of Kayle LaRose, who was at Clark’s house, that he had just shot 

“K.P.” and was going to leave the state. LaBrec testified that he lied in front of

LaRose to protect Lloyd and because he did not trust LaRose—so, if she snitched, 

her story would not match the facts. LaBrec then took Clark aside and whispered 

to him “what really happened.” LaBrec told Clark that his “money fell through,” 

but Clark still gave him some methamphetamine. Lloyd and LaBrec then drove to 

a random driveway in the country to get high and discuss what they were going to 

do. 
No. 2020AP58-CR

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¶9 LaBrec wanted to get rid of the guns and leave the state, but Lloyd 

did not. They decided to find someplace to lay low until morning, so LaBrec 

contacted Steve Kolpien. Kolpien met LaBrec and Lloyd at a truck stop in Cadott, 

then led them to a house where they left Lloyd’s car and then drove them to 

Connie Sonnentag’s residence. At Sonnentag’s house, LaBrec asked Kolpien how 

to get rid of a gun, and Kolpien told LaBrec he could melt LaBrec’s rifle down for 

him if LaBrec left the rifle with Kolpien, which he did. LaBrec subsequently told 

police he threw the rifle into the river because he wanted to protect Kolpien. 

¶10 Finally, LaBrec testified about an incident that occurred one to three

days before the shooting. LaBrec sold Patterson methamphetamine while LaBrec, 

Patterson, Lloyd and Kayla Naser were in Lloyd’s car. During the transaction, 

Patterson made some threatening remarks to LaBrec. Patterson then exited the 

vehicle, “still talking shit.” LaBrec “got mad,” grabbed the .22 rifle he had with 

him, and pulled the trigger, trying to shoot Patterson in the back as Patterson

walked away. The rifle did not fire, however, because there was no round in the 

chamber. 

¶11 We turn next to the other evidence in the case relevant to this appeal. 

Patterson’s dead body was found on the morning of March 14 in the yard of a 

home near the house that was under construction where LaBrec testified the 

attempted armed robbery and shooting had occurred. The Chippewa County 

coroner determined Patterson bled to death from a single gunshot to the femoral 

artery in his thigh. The medical examiner who performed the autopsy determined 

the wound was inflicted by a high-caliber bullet, larger than a .22. 

¶12 Chippewa County Sheriff’s Department Investigator Bradley Lau 

testified that he marked a blood trail leading from the body that connected to 
No. 2020AP58-CR

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another blood trail coming from the front of the house identified by LaBrec. Lau 

recovered three spent casings, one unfired round, and a fired bullet in a tree in the 

front lawn of the house. An additional spent casing was recovered from the 

backyard. The spent casings and unfired round were all marked “WIN .380 auto.” 

Lau also recovered what he termed a “magazine tube pusher” for a .22 rifle 

alongside the house, during a walk-through of the crime scene with LaBrec. 

¶13 Law enforcement obtained video surveillance of Scherer buying 

ammunition for the Cobra in Lloyd’s company on March 11—two days before the 

shooting—as well as Lloyd and LaBrec’s earlier attempt to buy ammunition. 

Scherer authenticated still images of himself and Lloyd from the video and 

confirmed that he bought the ammunition for Lloyd. A hardware store manager 

testified that, on March 11, he had assisted two men who bought a magazine for a 

.380 handgun that was returned later that day. The return paperwork was made 

under LaBrec’s name. 

¶14 Law enforcement executed a search warrant at the residence of 

Bruce Willi at the same time they arrested Lloyd there. Among other items, they 

recovered a .380 Cobra magazine clip, unfired ammunition marked “WIN .380 

auto,” consistent with that purchased by Scherer and recovered at the crime scene, 

and a smashed phone. Willi testified that he had never owned a Cobra, the items 

were not his, and LaBrec had not been in his residence since the shooting. No 

.380 ammunition was recovered in a search of the residence where LaBrec was 

arrested. Heidi Kunsman testified that she had owned a purple Cobra, which she 

discovered was missing after the shooting when police executed a search warrant 

at her residence.
No. 2020AP58-CR

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¶15 Brandon Wooley told law enforcement that LaBrec had asked Lloyd 

to “help set up K.P.” Wooley did not think that Lloyd “even wanted to do 

anything,” but he was just doing what someone had told him to do. Wooley did 

not know much about the plan, other than it was “setting up, just rob him or 

something.”

¶16 Gary LaRose testified that he hung out with Lloyd, LaBrec and

Timmy Johnson at LaRose’s house on the afternoon of March 13, getting high on 

methamphetamine. LaBrec showed LaRose a sawed-off rifle in pieces and asked 

if LaRose could fix it. Lloyd had a purple pistol, and he asked whether LaRose or 

Johnson knew anyone who wanted to buy it. Johnson similarly testified that 

LaBrec showed him and LaRose that he had a sawed-off .22 rifle with the stock 

broken off and that Lloyd showed them a purple pistol. Johnson said he asked 

Lloyd if he wanted to sell the purple pistol because his girlfriend might be 

interested in it. Johnson’s then-girlfriend Heather Schroeder testified that she 

looked at the purple gun in Lloyd’s possession, but she and Johnson decided not to 

buy it because Lloyd told them it was “hot.”

¶17 Chelsea Steinke testified that she was with Lloyd and LaBrec at 

LaRose’s house on the evening of March 13. Between 11:00 p.m. and midnight, 

Lloyd went outside to take a phone call, then came back in and told LaBrec they 

had to go. When Steinke asked where Lloyd and LaBrec were going, Lloyd 

responded that she did not want to know.

¶18 Johnathon Turner, with whom Patterson had been staying, testified 

that Patterson told him earlier in the day that he planned to go out with LaBrec and 

Lloyd that night. Turner had previously told police that Patterson said he was 

getting picked up by someone, but Turner did not know whom. Turner testified 
No. 2020AP58-CR

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that he did not immediately disclose that Patterson was going out with LaBrec and 

Lloyd because they were his friends. 

¶19 Kolpien confirmed that he had met up with LaBrec and Lloyd at the 

Cadott gas station in the early morning hours of March 14. Law enforcement also 

obtained video surveillance of Lloyd and LaBrec at the gas station in Cadott. 

Kolpien testified that LaBrec and Lloyd told him they had gotten into an argument 

with someone who was hurt real bad, but they did not give him details. Kolpien 

said they had a discussion about how to get rid of a gun “if you ever had to get rid 

of one,” and that Kolpien advised melting it down with a torch. Kolpien 

acknowledged that LaBrec left a “cooler” bag with him, but he maintained that he 

did not know it contained a rifle. Kolpien threw the bag in a dumpster in Boyd 

because LaBrec had asked him to get rid of it. Kolpien later led police to the 

dumpster, where they recovered the broken .22 rifle in the bag. Kolpien told 

police LaBrec stated he “pulled the trigger,” but Kolpien testified at trial that he 

could not really recall who made the statement because he was high on 

methamphetamine at the time of the conversation. 

¶20 Based on the above evidence, Lloyd requested an instruction on 

conspiracy to commit robbery by use of force as a lesser included offense of 

conspiracy to commit armed robbery. The circuit court denied the request. The 

court granted the State’s request to instruct the jury on several lesser included 

offenses on the homicide charge, including homicide by negligent operation of a 

dangerous weapon. The jury convicted Lloyd on the charges of attempted armed 

robbery and possession of a firearm by a felon, but it acquitted him of all 

homicide-related charges.
No. 2020AP58-CR

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DISCUSSION

¶21 We independently review a circuit court’s refusal to submit a jury 

instruction on a lesser included offense as a question of law. State v. Barreau, 

2002 WI App 198, ¶17, 257 Wis. 2d 203, 651 N.W.2d 12. A lesser included 

offense is one that “does not require proof of any fact in addition to those which 

must be proved for the crime charged.” WIS. STAT. § 939.66(1) (2019-20). Here, 

the parties agree that conspiracy to commit robbery by threat of force is a lesser 

included offense of conspiracy to commit armed robbery. Therefore, the only 

issue before us is whether the evidence presented at trial provided reasonable 

grounds both for acquittal on the greater charge and conviction on the lesser 

charge. See Barreau, 257 Wis. 2d 203, ¶17. In considering this question, we 

view the evidence in the light most favorable to the defendant. Id.

¶22 Lloyd argues that the evidence presented at trial would reasonably 

support the theory that Lloyd accompanied LaBrec to rob Patterson, but that Lloyd 

did not have a gun with him—having sold, traded, given or loaned the Cobra to 

LaBrec. Lloyd notes: (1) it was LaBrec, not Lloyd, who had a grudge against 

Patterson and had previously attempted to shoot him; (2) Wooley did not say that 

the plan Lloyd disclosed to him to rob Patterson involved a weapon; (3) the jury 

acquitted Lloyd of any homicide charges, including by negligent use of a firearm

or as a natural and probable consequence of a conspiracy to commit armed 

robbery; (4) LaBrec had a motive to shift blame to Lloyd; and (5) LaBrec was 

trying to buy an operable gun while Lloyd was trying to sell the Cobra just hours 

before the shooting.

¶23 None of these points reasonably supports the conclusion that Lloyd 

and LaBrec conspired to commit a robbery by threat or use of force, rather than by 
No. 2020AP58-CR

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threat or use of a dangerous weapon, given the other evidence at trial. Lloyd was 

seen in possession of the presumed murder weapon, the Cobra, just hours before 

the shooting. Lloyd was involved in buying ammunition for the Cobra only two 

days before the shooting. After the shooting, ammunition for the Cobra was 

discovered in the residence where Lloyd was staying, not where LaBrec was 

staying. Also after the shooting, LaBrec arranged for the disposal of the .22 rifle, 

but not of the Cobra. The fact that the jury acquitted Lloyd of any homicide 

charge does not compel the conclusion that it believed LaBrec was in possession 

of the Cobra and shot Patterson. Rather, the jury could have believed LaBrec’s 

testimony that the Cobra discharged accidentally, and concluded that it was not 

reasonably foreseeable that it would discharge.

¶24 In sum, there was no evidence whatsoever that Lloyd transferred the 

Cobra to LaBrec before the shooting. The only reasonable conclusion to draw 

from the evidence that Lloyd brought a weapon with him to the attempted robbery 

and that Patterson was shot with that weapon is that Lloyd was, in fact, using the 

weapon during the attempted robbery. Therefore, the circuit court properly 

refused to instruct the jury on the lesser included offense of conspiracy to commit 

robbery by threat or use of force.

By the Court.—Judgment affirmed.

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

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