State v. Jeremy David Meyer

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 31, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP1827-CR Cir. Ct. No. 2017CF464
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JEREMY DAVID MEYER,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Walworth County:
PHILLIP A. KOSS, Judge. Modified and, as modified, affirmed.
Before Gundrum, P.J., Neubauer and Grogan, 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. 2020AP1827-CR
¶1 PER CURIAM. Jeremy David Meyer appeals from a judgment of
conviction, entered following a jury trial, for delivery of heroin and theft from a
corpse.1 The jury acquitted Meyer of first-degree reckless homicide, but convicted
him of the lesser-included delivery-of-heroin offense. Meyer raises two
sentencing issues. First, he argues the circuit court erroneously exercised its
sentencing discretion by sentencing him more harshly based on the court’s belief
that Meyer had in fact delivered the drugs that killed the victim. Second, Meyer
argues the court erroneously imposed restitution for the victim’s funeral
expenses.2 We reject Meyer’s arguments, modify the judgment of conviction, and
affirm the judgment as modified.3
BACKGROUND
¶2 A jury acquitted Meyer of first-degree reckless homicide, but
convicted him of the lesser-included offense of delivery of heroin, as well as theft
from a corpse. The victim, Joshua Syck, was found deceased by Meyer and
Syck’s girlfriend, Jessica Gault, in a portable toilet near Syck’s residence in the
evening hours on September 2, 2017. A baggie and a syringe were found near his
body. The syringe contained the controlled substances fentanyl and acetyl
fentanyl.
1
Meyer was also found guilty of possession of drug paraphernalia and pled to child
neglect, for which he was given concurrent jail sentences. Those convictions are not at issue on
appeal, and we do not further address them.
2
We requested and received supplemental briefing on this issue.
3
Both the delivery and theft convictions were as a party to a crime. The judgment of
conviction fails to reflect party-to-a-crime liability for the delivery offense. We therefore modify
the judgment of conviction accordingly. See WIS. STAT. RULE 809.09 (2019-20). All references
to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
No. 2020AP1827-CR
¶3 According to the medical examiner, Syck died of a mixed drug
interaction involving fentanyl, acetyl fentanyl, methadone, and morphine.
Fentanyl is usually mixed with heroin but is considerably more potent. Syck had a
“pretty high level” of fentanyl in his tissues, a small amount of morphine, and an
unquantified amount of acetyl fentanyl.4 The methadone was measured at 270
micrograms per liter, which the medical examiner testified was “a pretty common
level to see in people who are either using fentanyl under prescription or in other
circumstances.” The defense expert testified, however, that as little as 140
micrograms per liter of methadone can be fatal. In any event, the medical
examiner testified that the drugs all “play[] off” one another and were having the
same effect: slowing down the respiratory and nervous systems.
¶4 Gault testified that the night prior to Syck’s death, she discovered
Syck sitting in an odd position on the toilet in their residence. As soon as she saw
that Syck had his belt in the bathroom, she knew he had been using heroin. She
searched his pockets and discovered a syringe and a metal tin. Syck admitted to
her that he had used heroin, claiming he had gotten it from someone in the nearby
Garden Apartments.
¶5 Gault testified she heard Syck leave the residence after she went to
bed, but he had returned by the time she woke up. Syck made arrangements with
Meyer to pick him up in a nearby parking lot. He left the residence on foot to the
meeting spot, but Meyer told Gault that Syck never arrived. Surveillance video
4
Acetyl fentanyl is a laboratory-produced compound that is similar to fentanyl. It has no
medical use and the amount present is therefore not quantified by the toxicology lab.
3
No. 2020AP1827-CR
showed Syck entering the portable toilet near the parking lot, where he remained
until he was discovered by Meyer and Gault.
¶6 Jennifer Klefbohm, a friend of Meyer’s, accompanied him to
Rockford to pick up heroin while Gault searched for Syck. She testified that
Meyer told her during the trip that Syck had overdosed the previous night at the
home Meyer shared with his girlfriend, Kori Kincaid. Klefbohm also testified that
she was at Meyer’s residence earlier on the evening of September 1, and Meyer
told her that he had set aside a baggie of heroin for Syck. Klefbohm stated that
after Syck’s body was discovered, Meyer had given her a wallet that he later said
was Syck’s. Meyer told Klefbohm he took the wallet from Syck’s body because
“he knew that’s where Josh kept his heroin and he didn’t want to leave it there for
them to find,” as it could have his DNA on it.
¶7 Kincaid testified under a grant of immunity. She testified Syck had
paid for her and Meyer to pick up heroin for him on September 1. Syck came to
their residence late in the evening to pick it up. Kincaid denied that she saw Syck
using heroin while she was present, but she acknowledged that he was behaving
erratically and that she had told him to leave.
¶8 After the jury found Meyer guilty of theft from a corpse and the
lesser-included offense of delivery of heroin, the circuit court ordered a
presentence investigation report (PSI) and held a sentencing hearing. At the
hearing’s inception, defense counsel mentioned the PSI author’s notation about
“the seriousness of the offense resulting in someone’s death” and reminded the
court that the jury had not convicted Meyer of first-degree reckless homicide,
4
No. 2020AP1827-CR
indicating that the jury was not convinced beyond a reasonable doubt that the
delivery was a substantial factor in Syck’s death.5 The court replied:
I’m obviously keenly aware of what the jury did.
Certainly we’re not sentencing on a homicide. However,
the Court can consider acquitted conduct, and actually this
wasn’t an acquittal, it was just a lesser included.
I’m keenly aware I think as well … why in my opinion
they didn’t convict, there certainly were some issues that
you pointed out, but I think it still is a factor and it certainly
applies to Count 2 [theft from a corpse].
The court declined to impose any limit on the victim impact statements regarding
what matters the individuals could discuss, and some expressed their belief that
Meyer had delivered the drugs that killed Syck.
¶9 The prosecutor recommended a total sentence of ten years’ initial
confinement and ten years’ extended supervision. The defense strenuously
objected to that recommendation, arguing the State was “asking for a homicide
sentencing on a homicide it lost.” The defense recommended eight and one-half
years’ probation with one year of conditional jail time.
¶10 The circuit court began its sentencing comments by acknowledging
the tragedy of the situation. The court considered Meyer’s criminal history, past
behavior, personal characteristics, treatment history, and living conditions that
jeopardized his children’s health. It then stated that defense counsel correctly
observed the sentencing hearing had “been treated by [Syck’s] family as a
sentencing for a homicide. Could one blame them? They listened to it.”
5
Defense counsel also articulated his concern with conflating the homicide charge and
the delivery conviction in a letter sent the day prior to the sentencing hearing. Defense counsel
revisited this in his argument, noting repeatedly that the tenor of the sentencing hearing was “like
a visitation.”
5
No. 2020AP1827-CR
¶11 The circuit court rejected the notion that the jury absolved Meyer of
culpability for Syck’s death. Rather, the court observed that there were “holes in
the State’s case” that led the jury to conclude that causation “wasn’t proven
beyond a reasonable doubt.” Later, the court stated, “As I said, I understand, I’m
not sentencing him for a homicide, but I can’t close my eyes that the culture you
engaged in, Mr. Meyer, the culture you enthusiastically participated in caused
Josh’s death.” And before pronouncing sentence, the court reiterated that the law
permitted it to consider acquitted conduct.
¶12 The circuit court found that probation would unduly depreciate the
seriousness of the offenses, and it additionally emphasized the need to deter drug
use and delivery. Before pronouncing sentence, the court stated the sentence had
to “reflect that there are times that more serious harm has taken place.” The court
continued:
And again nobody can say he didn’t cause Josh’s death,
they just couldn’t prove it. And I don’t know either. And
I’m not sentencing him for a homicide. But I just want to
make that very clear, and it keeps the family’s legitimacy
here; the same legitimacy that [the defense] can argue …
the other way.
And I don’t think we need to moralize one way or the
other. It is a view [or] interpretation of facts that both sides
are legitimately concerned about.
¶13 The circuit court then imposed two years’ initial confinement and
two years’ extended supervision on the delivery conviction. Meyer was sentenced
to a consecutive four years’ initial confinement and four years’ extended
supervision on the theft conviction.
¶14 The court determined restitution was appropriate, and Meyer
requested a restitution hearing. Meyer agreed to pay $20 to replace the wallet he
6
No. 2020AP1827-CR
stole from Syck’s body, but objected to the approximately $17,100 sought by
Syck’s family for his funeral expenses. The State filed an amended restitution
request of approximately $11,300. In lieu of a hearing, the parties agreed to
submit written argument to a court commissioner and stipulated that the “entire
court record, including the transcripts of the trial and sentencing,” could be used
for purposes of determining restitution.6
¶15 The court commissioner regarded the relevant question as “whether
or not there is a causal nexus between Mr. Syck’s death and the actions of the
Defendant.” The commissioner concluded he was not bound by the jury’s verdict
on the reckless homicide charge, emphasizing that while the jury was tasked with
finding guilt beyond a reasonable doubt, the “preponderance of the evidence”
standard governed restitution determinations. Based upon the trial evidence, the
commissioner concluded there was “a sufficient causal nexus” between Meyer’s
delivery of heroin to Syck and Syck’s eventual death. The commissioner’s award
of Syck’s funeral expenses to his family was adopted by the circuit court both by
order and in an amended judgment of conviction. Meyer now appeals.
DISCUSSION
¶16 Meyer first contends that the circuit court erroneously exercised its
sentencing discretion by “placing too much weight” on the conduct underlying the
6
It appears a restitution hearing was conducted on December 17, 2019, but the transcript
of that hearing is not in the appellate record. In any event, the stipulation reflected in the court
commissioner’s findings of fact and conclusions of law establishes that the “parties agreed that no
testimony was required” and that the restitution issue could be decided based on the existing
record.
7
No. 2020AP1827-CR
reckless homicide charge.7 A circuit court’s discretion contemplates a process of
reasoning. State v. Bolstad, 2021 WI App 81, ¶11, 399 Wis. 2d 815, 967 N.W.2d
164. The three primary sentencing factors to consider are the gravity of the
offense, the character of the defendant, and the need to protect the public. State v.
Bobbitt, 178 Wis. 2d 11, 14, 503 N.W.2d 11 (Ct. App. 1993). An erroneous
exercise of discretion may be found when the sentencing court “gave too much
weight to one factor in the face of contravening considerations.” Id.¶17 In so arguing, Meyer does not dispute that the circuit court could
take into account the conduct underlying the reckless homicide charge, even
though the jury convicted him of only the lesser-included offense. See State v.
Marhal, 172 Wis. 2d 491, 503, 493 N.W.2d 758 (Ct. App. 1992). Consistent with
the court’s sentencing comments, a verdict of acquittal demonstrates only a lack of
proof beyond a reasonable doubt and does not necessarily establish the
defendant’s innocence. Id. at 502.
¶18 As such, Meyer’s argument essentially reduces to a numbers game.
Indeed, he urges that it is “merely a matter of math in this case” to determine that
the sentencing court placed too much weight on the conduct underlying the
reckless homicide charge. He contends that of the sentencing court’s 3,500-word
pronouncement of sentence, approximately 2,000 words were “regarding the
homicide of which the Defendant was acquitted.” According to Meyer, this
amounts to a per-se violation of Bobbitt and an erroneous exercise of discretion.
7
Meyer uses the phrase “abuse of discretion.” Our supreme court abandoned that
terminology in 1992 in favor of “erroneous exercise of discretion.” See Shirk v. Bowling, Inc.,
2001 WI 36, ¶9 n.6, 242 Wis. 2d 153, 624 N.W.2d 375.
8
No. 2020AP1827-CR
¶19 We cannot agree with Meyer’s numerical analysis, nor his more
general argument that the circuit court unduly emphasized that Meyer was
culpable for Syck’s death. Even assuming the validity of Meyer’s counting, an
erroneous exercise of discretion cannot be demonstrated merely by a word count.
Our review of the sentence looks to the totality of the court’s remarks, see State v.
Stenzel, 2004 WI App 181, ¶9, 276 Wis. 2d 224, 688 N.W.2d 20, and we employ a
“presumption of reasonability consistent with our strong public policy against
interference with the circuit court’s discretion,” State v. Harris, 2010 WI 79, ¶¶29-
30, 326 Wis. 2d 685, 786 N.W.2d 409.
¶20 Reviewing the sentencing transcript under that framework, we do
not perceive the circuit court to have placed unreasonable weight on the notion
that Meyer was culpable for Syck’s death.8 The court extensively discussed
relevant factors, including Meyer’s age, education, personality, character, and
personal history. It spent a considerable amount of time discussing how Meyer’s
actions appeared to be self-serving rather than those of a friend.
¶21 Nonetheless, the court noted that Meyer was not a violent criminal,
and it lauded him for both his progress in treatment and his “excellent” demeanor.
The court told Meyer its sentence “reflects the good things you have done as well,
trust me on that, and the steps that you have taken that your children need to rely
on you.”
¶22 The circuit court repeatedly stated it was not sentencing Meyer for a
homicide. While Meyer characterizes this as “lip service,” the totality of the
8
Notably, Meyer has not sought reversal based on an argument that inaccurate
information was considered at sentencing.
9
No. 2020AP1827-CR
court’s comments supports the court’s assessment of its own sentencing discretion.
The court appropriately observed that the State had not proven causation at trial
and it did not know, as a factual matter, whether the drugs Meyer supplied killed
Syck. The court recognized the facts could give rise to conflicting views on the
matter. However, it did fault Meyer for willingly immersing himself “in a
dysfunctional[,] manipulative culture of controlled substances.” And the court
quite appropriately noted that “the culture you enthusiastically participated in
caused Josh’s death.”
¶23 The circuit court here was given the unenviable task of fashioning a
sentence for two crimes, one of which occurred immediately before the victim’s
death and one of which occurred immediately after his death, without running
afoul of the rule that a court “may not sentence according to its desire to replace a
jury’s conclusion with its own.” Bobbitt, 178 Wis. 2d at 18. We conclude the
court struck an appropriate balance between acknowledging that Meyer was
convicted only of delivery and also acknowledging the undeniable fact that the
recipient of the drugs had suffered an overdose death soon thereafter. The overall
length of the sentences, which were considerably shorter than the maximum
penalties (and certainly short of the penalty for reckless homicide), support this
conclusion.9
¶24 Finally, the circuit court adequately and reasonably explained why it
imposed the longer of the two sentences for theft from a corpse. It was not, as
9
Meyer received a bifurcated eight-year sentence for theft from a corpse, which was two
years less than the maximum penalty for that offense. See WIS. STAT. §§ 943.20(1)(a) and (3)(e);
939.50(3)(g). He received a bifurcated four-year sentence on the delivery conviction, which was
a Class F felony subject to a maximum penalty of twelve years and six months’ imprisonment.
See WIS. STAT. §§ 961.41(1)(d)1.; 939.50(3)(f).
10
No. 2020AP1827-CR
Meyer claims, a stealth attempt to punish him for reckless homicide. Rather, the
court acknowledged that the legislature deemed delivery the “more severe”
offense, but it viewed the theft as “incredibly aggravated” because it was
committed in an apparent attempt by Meyer to cover up his involvement in
supplying Syck with drugs. This was a recurring theme in the court’s comments:
the notion that throughout his friendship with Syck, Meyer had the opportunity to
change his life and that of his friend, and each time he instead acted selfishly to
feed their addictions.
¶25 Meyer also challenges the restitution award of funeral expenses.
Restitution is governed by WIS. STAT. § 973.20. Under that section, the court shall
order the defendant to make full or partial restitution to any victim (or the victim’s
estate, in the case of death) for “a crime considered at sentencing.”
Sec. 973.20(1r). A crime considered at sentencing means “any crime for which
the defendant was convicted and any read-in crime.” Sec. 973.20(1g)(a). If a
crime considered at sentencing resulted in death, the restitution order “may also
require that the defendant pay an amount equal to the cost of necessary funeral and
related services under [WIS. STAT. §] 895.04(5).” Sec. 973.20(4).
¶26 Meyer argues that because he was acquitted of the reckless homicide
charge, it cannot be “a crime considered at sentencing” and the circuit court erred
by imposing restitution for Syck’s funeral expenses. He further argues that Syck’s
death cannot be viewed as the “result” of his delivery of drugs to Syck or his theft
from Syck’s corpse.
11
No. 2020AP1827-CR
¶27 We review a circuit court’s calculation of criminal restitution for an
erroneous exercise of discretion.10 State v. Canady, 2000 WI App 87, ¶5, 234
Wis. 2d 261, 610 N.W.2d 147. The restitution statute is interpreted broadly and
liberally to allow victims to recover their losses as a result of a defendant’s
criminal conduct. Id., ¶8 (citation omitted). Meyer is correct that before
restitution can be ordered, a causal nexus must be established between the “crime
considered at sentencing” and the damage sustained by the victim. See id., ¶9.
¶28 Our supreme court elucidated the causal nexus requirement in State
v. Wiskerchen, 2019 WI 1, 385 Wis. 2d 120, 921 N.W.2d 730. The crime under
consideration is not limited to the facts necessary to establish the elements of the
offense, but rather encompasses all facts and reasonable inferences concerning the
defendant’s activity related to the crime. Id., ¶25. It is the victim’s burden to
show the defendant’s criminal activity was a substantial factor in causing damage;
that is, the defendant’s actions must be the “precipitating cause of the injury” and
the harm must be “the natural consequence[s] of the actions.” Canady, 234
Wis. 2d 261, ¶9 (citation omitted).
¶29 Notably, restitution does not require proof beyond a reasonable
doubt. “A victim has the initial burden to prove by a preponderance of the
evidence that he or she sustained a loss as a result of a crime considered at
sentencing.” State v. Muth, 2020 WI 65, ¶16, 392 Wis. 2d 578, 945 N.W.2d 645(plurality opinion). Although Meyer attempts to shore up the jury’s acquittal by
emphasizing that a jury is tasked to “search for the truth,” see WIS JI—CRIMINAL
10
To the extent review also involves interpretation and application of WIS. STAT.
§ 973.20, we apply a de novo standard of review. State v. Wiskerchen, 2019 WI 1, ¶16, 385
Wis. 2d 120, 921 N.W.2d 730.
12
No. 2020AP1827-CR
140 (2019), the preponderance-of-the-evidence standard applicable in restitution
proceedings dictates that the circuit court could make its own factual findings and
reach its own conclusions based upon the evidence presented.
¶30 Here, the parties stipulated the trial record would form the factual
predicate for restitution. The most plausible view of the trial evidence is that Syck
purchased $60 of heroin from Meyer on September 1. He went to Meyer’s
residence to pick up the baggie and used enough heroin that Kincaid was afraid he
was overdosing and kicked him out. Syck went back to his residence, where Gault
found him. Syck had enough heroin left over that Meyer reached out and arranged
to meet with Syck on September 2 to “borrow” some heroin for an individual that
Meyer was with, even after Syck told Gault that he had thrown away the heroin.11
On his way to meet Meyer, Syck stopped in the portable toilet to inject himself
with more narcotics. And Meyer’s actions upon finding Syck’s body were those
of an individual who believed that the drugs he supplied may have been fatal.
¶31 The evidence at trial, while compelling, was not bulletproof, and like
the circuit court, we understand the jury’s reluctance to impose criminal liability
for reckless homicide. The State acknowledges two alternative scenarios: that
Syck received the fentanyl he was found with from someone other than Meyer, or
that the methadone alone killed him. These theories primarily rest on the facts that
Syck was unaccounted for between the hours of approximately 2:00 a.m. and
11
After Gault found Syck on the toilet in their residence, Syck claimed his use was a
“one[-]time thing” and begged Gault to accompany him to a dumpster outside where he threw
something in. Gault testified it sounded like metal but she did not see what he threw away.
13
No. 2020AP1827-CR
9:00 a.m. on September 2, and that after he left the residence to meet Meyer, Gault
saw on a phone app that he was located at the Garden Apartments.12
¶32 While these hypotheses might find some minimal level of support in
the record evidence, we agree with the circuit court that they do not represent the
most plausible scenario. Syck suffered from back pain and told Gault that he was
going to Meyer’s on September 1 to pick up a pain pill. To the contrary, the
record is clear that Syck was purchasing what he believed to be heroin. As the
State lays out, even if Syck threw away the heroin Meyer provided, it is far more
likely—particularly given the difficulty Syck had funding the $60 purchase—that
he retrieved the heroin from the dumpster rather than scrounge up the money to
buy new drugs. And, Syck had good reason to lie when he told Gault he bought
the heroin from someone in the Garden Apartments. Gault had come to trust
Meyer and was unaware he was a heroin addict, as Syck had falsely told Gault that
Meyer stopped being his friend when Syck had used in the past.
¶33 In all, the State thoroughly discusses the evidence both for and
against a conclusion that Meyer supplied Syck with the drugs that killed him. We
agree with the State that the circuit court could reasonably conclude the
preponderance of the evidence established that Meyer provided the drugs that
caused Syck’s death.
By the Court.—Judgment modified and, as modified, affirmed.
12
Gault testified that Syck left with his phone on the morning of September 2. Using
Snapchat, Gault was able to see that Syck’s phone appeared to be located at the apartment
building across from theirs. He did not have a cell phone provider and received internet service
from WiFi networks. Syck’s cell phone was never located by police.
14
No. 2020AP1827-CR
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
15