On Point blog, page 3 of 4
Disorderly Conduct, § 947.01 – Sufficiency of Evidence; Resisting, § 946.41(1) – Jury Instructions
State v. Robert Lyle Lawver, Jr., 2010AP382-CR, District 4, 5/5/11
court of appeals decision (1-judge, not for publication); for Lawver: Cole Daniel Ruby; case activity
Conviction for disorderly conduct upheld on following facts:
¶9 The pertinent facts include the following. Lawver was walking at night down an unlit highway, traveling with traffic, so that he would not have been in a position to see motorists approaching from behind him.
Unlawful Use of Phone – Sufficiency of Evidence; Best Evidence Rule; Citation of Unpublished Caselaw
State v. Kurt Daniel Schmidt, 2010AP1104-CR, District 3, 11/16/10
court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; Schmidt BiC; State Resp.; Reply
Unlawful Use of Phone – Sufficiency of Evidence
Evidence held sufficient to sustain conviction for violating § 947.012(1)(c). The second of two calls anonymously made by Schmidt in a matter of minutes to his wife during a pending divorce with custody in dispute,
Evidence – Disorderly Conduct – Relevance
State v. Salvador Cruz, 2010AP911-CR, District 2, 10/13/10
court of appeals decision (1-judge, not for publication); for Cruz: Matthew S. Pinix; BiC; Resp.; Reply
Evidence of the effect of the defendant’s (alleged disorderly) conduct was relevant, without a showing of “proximity” to that conduct:
¶13 A.S. instructs that “[i]n addition to considering the potential effects of a defendant’s conduct in disorderly conduct cases … prior cases also indicate that the actual effects of a defendant’s conduct are probative.” Id.
Disorderly Conduct – Sufficiency of Evidence
State v. Kurt D. Schmidt, 2010AP551-CR, District 3, 8/24/10
court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; BiC; Resp.; Reply
Conviction for disorderly conduct was established by evidence that Schmidt, following a contentious divorce, left messages on his ex-wife’s answering machine cautioning her “to question (her) own personal assurance and insurance,” and falsely reporting that her stepmother had died.
Disorderly Conduct, § 947.01 – Conviction as “Crime of Domestic Violence” Disqualifying Gun Possession
Joseph E. Koll, Jr v. Dept of Justice, 2009 WI App 74, PFR filed 4/29/09
For Koll: Alexander L. Ullenberg
Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun.
Holding: The federal Gun Control Act bars gun possession to anyone convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C.
First Amendment – Overbreadth – “True Threat” – False Bomb Scare
State v. Robert T., 2008 WI App 22For Robert T.: Bradley J. Bloch
Issue: Whether § 947.015 (2003-04) (“Bomb Scares”) is overbroad and therefore cannot support prosecution for a phoned-in but false bomb threat.
Holding:
¶12 Robert T. argues that the statute suffers from overbreadth because it prohibits speech that could be protected. We disagree. Prior Wisconsin opinions have held that only “true threats” are punishable,
§ 947.01, Disorderly Conduct – Interference with Right to Protest in Public Place
Ralph Ovadal v. City of Madison, 416 F.3d 351 (7th Cir 2005)
Issue/Holding: Use of disorderly conduct to Overdal’s peaceful protest (displaying large signs on Beltline pedestrian overpass) was not unconstitutionally vague as applied to him; however, remand required to determine whether the ban was content neutral and narrowly tailored.
§ 947.01, Disorderly Conduct — Private Mailings
State v. Glenn F. Schwebke, 2002 WI 55, affirming 2001 WI App 99, 242 Wis. 2d 585, 627 N.W.2d 213
For Schwebke: Keith A. Findley, UW Law School
Issue: Whether private, anonymous mailings to several individuals may support prosecution for disorderly conduct.
Holding:
¶26… (T)he plain language of the statute does not specifically require a ‘public’ disturbance. Instead,
Double Jeopardy – Multiplicity: Harassment Injunction (§ 813.125(4)) Not Lesser Offense of Harassment (§ 947.013(1r))
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pit
Issue/Holding: Violation of harassment injunction isn’t lesser offense of harassment, each requiring proof of distinct element. ¶¶23-28. (Court stressing, in particular, that for harassment defendant need only be “subject” to injunction but not actually violate it. ¶25.)
First Amendment – Speech – Criminalized Threat
State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, reversing unpublished court of appeals decision
For Douglas D.: Eileen A. Hirsch, SPD, Madison Appellate
Issue: Whether purely written speech may be punished as disorderly conduct, § 947.01, even where no disturbance results.
Holding: The disorderly conduct statute, applied to speech alone, is neither overbroad nor “underbroad” (i.e., discriminating on the basis of content),