Madison criminal trial court finds Evan Mercer not guilty of theft over borrowed drill

The criminal trial court in Madison found Evan Mercer not guilty of stealing Nina’s drill, rejecting the State of Wisconsin’s request for a conviction and a proportionate sentence. Mercer had sought dismissal on the ground that he believed he had permission to borrow the tool overnight and intended to return it.

The court held that the State had not proved beyond a reasonable doubt either that Mercer took the drill without consent or that he intended to deprive Nina of it permanently. No criminal sentence or monetary award was imposed.

Although the drill had been recovered and was being retained by police, the judgment made no separate order concerning its custody or return.

The court applied the supplied text of Wis. Stat. § 943.20(1)(a), noting that the event date was not recorded and the applicable statutory version could not be verified. Under the rule presented, the State had to prove every required element beyond a reasonable doubt.

The silent shop camera established that Mercer placed the drill in his tote and left. It did not show a permission conversation, concealment or his intent, so the court declined to draw broader conclusions from the footage.

The earlier written exchange supported competing interpretations. Nina indicated that borrowing should be fine if the drill was returned before opening, but also instructed Mercer to check with her before leaving. The court found it unclear whether that check was a condition of permission or a request accompanying an otherwise permitted loan.

Mercer’s account of believing he had permission and planning a next-morning return was relayed through counsel, rather than established through independent documents or admitted witness testimony. The court did not regard it as conclusive, but found it consistent with the written borrowing discussion. His acknowledged failure to check weighed against him without establishing the required criminal state of mind.

Nina’s evening demand showed that she disputed permission. However, the record did not establish that Mercer read it, and his silence was not treated as proof that he received or understood the demand.

The supplied honest-mistake rule allowed an honest misunderstanding to negate a required state of mind. The court also found no evidence establishing that Mercer intended permanent deprivation or knew it was practically certain. Recovery of the drill and the absence of established damage were not, by themselves, the basis for acquittal.

The State relied on Mercer’s failure to complete the requested check before leaving, despite having acknowledged the instruction. It argued that the unmet condition and Nina’s subsequent objection supported a conviction.

The prosecution nevertheless accepted that the earlier messages could support Mercer’s explanation, that the camera proved removal rather than intent, and that the evening message did not establish whether he read it. It identified no further obtainable evidence resolving the permission dispute.

The defense admitted that Mercer took the drill without checking again, but maintained that he understood Nina’s response as permission for overnight borrowing. Through counsel, Mercer said he planned to return it when his shift began the next morning and missed the evening message because his phone was muted.

The defense also relied on the lack of apparent concealment, recovery of the drill and absence of established damage. The court did not accept recovery or lack of damage as an independent ground for dismissal.

Earlier that afternoon, Mercer asked Nina by text to borrow the drill for a shelf project that night. She responded with a return-before-opening requirement and an instruction to check before leaving. Mercer agreed, but left the Madison shop with the drill without further written confirmation.

At 8:14 p.m., Nina texted that she had not approved taking it that night and demanded its return. The drill remained at Mercer’s home when police contacted him and was subsequently recovered.

The acquittal turned on unresolved doubt about consent and intent in this record. It did not establish that Nina had given clear, unconditional permission, and it left the recovered drill’s custody and return outside the operative order.