COURT OF APPEALS DECISION DATED AND RELEASED JULY 16, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0175-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RICK WINTER,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Shawano County: ANN WALSH BRADLEY and JAMES P. JANSEN, Judges. Affirmed.
LaROCQUE, J. Rick Winter appeals a
judgment of conviction for violating a harassment injunction issued under §
813.125, Stats.,[1]
and an order denying postconviction relief.
The injunction barred Winter from harassing Bill Schmidt, contrary to §
947.013, Stats., which declares
specified kinds of harassment illegal.
The complaint alleged Winter made four phone calls over a period of
approximately two months, three of which were recorded on Schmidt's telephone
answering machine, that violated the injunction. Winter first contends his due process rights were violated
because the criminal complaint failed to specifically identify which of the
prohibited kinds of harassment described in § 947.013 applied to his
conduct. In addition, he maintains that
the harassment injunction statute, § 813.125, was applied in an
unconstitutionally vague and overbroad way and that the injunction
thereby
impinged on his constitutional right to free speech. Finally, he maintains that the failure to allege repetitive acts
done with an intent to harass in the complaint was a fatal flaw. This court rejects his contentions and
affirms.
PROCEDURAL BACKGROUND
The Shawano County
Circuit Court entered an harassment injunction pursuant to § 813.125, Stats., restraining Winter from
harassing the petitioner, Bill Schmidt, in violation of § 947.013, Stats.[2] Some months later, the State charged Winter
with violating the injunction by calling Schmidt on four occasions. At his initial appearance, Winter challenged
the court's jurisdiction, alleging a failure to include sufficient factual
allegations in the criminal complaint to support a finding of probable cause
that he committed an offense. The
affidavit in support of the motion to dismiss asserted an absence of probable
cause to establish a violation of § 947.013(1m)(b), that subjects whoever
"[e]ngages in a course of conduct or repeatedly commits acts which harass
or intimidate the person and which serve no legitimate purpose" to a
penalty.
The trial court denied
the motion, finding probable cause that Winter violated § 947.013(1r)(a), Stats., as well. After a bench trial, the court found Winter
guilty and placed him on probation with a condition that he spend ten days in
jail. The court later denied Winter's
§ 809.30, Stats., motion
seeking postconviction relief.
TRIAL EVIDENCE
The harassment
injunction, dated November 5, 1992, and effective for two years, was based upon
a finding of reasonable grounds to believe Winter had previously violated the
criminal harassment statute, § 947.013, Stats. It enjoined and restrained Winter from
harassing Schmidt contrary to § 947.013.
At trial, Schmidt identified three calls over a period of approximately
two months made to his residence by Winter, recorded on an answering machine
and another call answered personally on May 23, 1993. The three transcriptions of the recorded calls read as follows:
[April 22, 1993]: Bill, if you're there, pick up the phone,
otherwise it has come to my attention that Kimberly's car was stolen Thursday
night, April 22, and there is a certain amount of incriminating evidence
against you, if that's not true, give me a call back, if it's true give me a
call back. Bye.
[April 23, 1993]: Bill, this is Rick Winter, I don't want you
talking about my mother in public again in your life, it you want to have any
kind of life what so ever, I'm going to sue your ass, period and you can dig it
as deep as you want to, but, its going to be your grave. Alright?
If you have got a problem with that, call me or write me or have your so
called lawyers call me.
[June
15, 1993]: Bill, you are in very very
deep trouble, very deep trouble, I expect you to reach Kimberly somehow
tonight, and give the keys back for the house and the car, or answer to me,
beyond what you will be answering to me for, and you can laugh any, you can
laugh as much as you want, but, you're in trouble.
DISCUSSION
Winter first challenges
the complaint on grounds it violated his right to due process for failure to
apprise him of which particular provisions of § 947.013, Stats., he allegedly breached. This court concludes that Winter's failure
to raise this issue in the trial court was a waiver of the objection. Wirth v. Ehly, 93 Wis.2d 433,
443-44, 287 N.W.2d 140, 145-46 (1983).
As noted earlier,
Winter's motion challenging jurisdiction was based upon an absence of probable
cause to show a violation of subsec. (1m)(b) of the criminal statute. The trial court denied the motion, and found
that Winter had violated subsec. (1r) of the statute. It should be noted that a violation of subsec. (1r) requires a
violation of (1m) as a prerequisite.
Winter had several opportunities to challenge the failure to specify the
subsections under which he was being charged.
He could have raised the issue in his original motion. He had a second opportunity when the trial
court indicated that he had violated § 947.013(1r), Stats., when the court rendered its bench decision. Failure to raise the issue prior to appeal
constitutes a waiver.
Winter next argues that
§ 813.125, Stats., as
applied, is both unconstitutionally vague and overbroad. It should be noted that Winter does not
challenge the sufficiency of the evidence to convict. Rather, he argues that he was not properly placed on notice by
the issuance of the injunction as to what conduct was prohibited. The real essence of Winter's objections was
addressed and rejected in Bachowski v. Salamone, 139 Wis.2d 397,
407 N.W.2d 533 (1987), and State v. Sarlund, 139 Wis.2d 386, 407
N.W.2d 544 (1987). "To survive a
vagueness challenge a statute must be sufficiently definite to give persons of
ordinary intelligence who wish to abide by the law sufficient notice of the
proscribed conduct." Bachowski,
139 Wis.2d at 406, 407 N.W.2d at 537.
No doubt the injunction must provide the same notice. The injunction notified Winter that he could
not act contrary to § 947.013, Stats. More was unnecessary.
"A statute is
overbroad when its language, given its normal meaning, is so sweeping that its
sanctions may be applied to constitutionally protected conduct which the state
is not permitted to regulate." Bachowski,
139 N.W.2d at 411, 407 N.W.2d at 539.
The restriction that Winter not act contrary to § 947.013, Stats., was also sufficiently
narrow. The injunction enjoined Winter
from harassing Schmidt contrary to § 947.013. Because the statute declaring which conduct is unlawful is neither
vague nor overbroad, an injunction to refrain from violating the terms of the
statute is similarly valid.
Finally, Winter
challenges the failure to allege a course of conduct or repetitive acts
intended to harass or intimidate.
Winter did not raise this issue in the circuit court. The failure to articulate an element of the
crime but referring to the substantive statute defining the crime is sufficient
to support a prosecution as long as the defendant is not prejudiced in any way
by the failure to set forth every element of the crime. State v. Petrone, 161 Wis.2d
530, 552-62, 468 N.W.2d 676, 684-87 (1991).
Because any violation of § 947.013, Stats.,
requires an intent to repeatedly harass or intimidate another person, the
reference to the statute sufficiently alleged intent. Section 947.013 penalizes whoever "with intent to harass or
intimidate another person ... [e]ngages in a course of conduct or repeatedly
commits acts which harass or intimidate the person and which serve no
legitimate purpose." Subsection (1)(r)
increases the penalty where "[t]he act is accompanied by a credible threat
that places the victim in reasonable fear of death or great bodily harm"
and "[t]he act occurs while the actor is subject to an ... injunction
under s. ... 813.125 ...." The
complaint sufficiently advised Winter of the allegations upon which the charge
was based. He was therefore
sufficiently notified so as to apprise him of the elements of the crime
charged. The complaint did not violate
the requirements of due process.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1]
Section 813.125, Stats.,
provides:
Harassment restraining orders and
injunctions. (1) Definition. In this section, "harassment" means any
of the following:
(a) Striking, shoving,
kicking or otherwise subjecting another person to physical contact or
attempting or threatening to do the same.
(b) Engaging in a course of
conduct or repeatedly committing acts which harass or intimidate another person
and which serve no legitimate purpose.
(2) Commencement of action.
An action under this section may be commenced by filing a petition described
under sub. (5) (a). No action under
this section may be commenced by service of summons. Section 813.06 does not
apply to an action under this section.
(3) Temporary restraining
order. (a) A judge or court
commissioner may issue a temporary restraining order ordering the respondent to
cease or avoid the harassment of another person, if all of the following occur:
1. The petitioner files a
petition alleging the elements set forth under sub. (5) (a).
2. The judge or court
commissioner finds reasonable grounds to believe that the respondent has
violated s. 947.013.
(b) Notice need not be given
to the respondent before issuing a temporary restraining order under this
subsection. A temporary restraining
order may be entered only against the respondent named in the petition.
(c) The temporary
restraining order is in effect until a hearing is held on issuance of an
injunction under sub. (4). A judge or
court commissioner shall hold a hearing on issuance of an injunction within 7
days after the temporary restraining order is issued, unless the time is
extended upon the written consent of the parties or extended once for 7 days
upon a finding that the respondent has not been served with a copy of the
temporary restraining order although the petitioner has exercised due diligence.
(4) Injunction. (a) A judge or court commissioner may grant an
injunction ordering the respondent to cease or avoid the harassment of another
person, if all of the following occur:
1. The petitioner has filed
a petition alleging the elements set forth under sub. (5) (a).
2. The petitioner serves
upon the respondent a copy of a restraining order obtained under sub. (3) and
notice of the time for the hearing on the issuance of the injunction under sub.
(3) (c).
3. After hearing, the judge
or court commissioner finds reasonable grounds to believe that the respondent
has violated s. 947.013.
(b) The injunction may be
entered only against the respondent named in the petition.
(c) An injunction under this
subsection is effective according to its terms, but for not more than 2 years.
(5) Petition. (a) The petition shall allege facts sufficient
to show the following:
1. The name of the person
who is the alleged victim.
2. The name of the
respondent.
3. That the respondent has
violated s. 947.013.
(b) The clerk of circuit
court shall provide simplified forms.
(5m) confidentiality of victim's
address. The petition under sub. (5) and the court order under sub. (3) or (4)
shall not disclose the address of the alleged victim.
(6) Arrest. A law
enforcement officer shall arrest and take a person into custody if all of the
following occur:
(a) A person named in a
petition under sub. (5) presents the law enforcement officer with a copy of a
court order issued under sub. (3) or (4), or the law enforcement officer determines
that such an order exists through communication with appropriate authorities.
(b) The law enforcement
officer has probable cause to believe that the person has violated the court
order issued under sub. (3) or (4).
(7) Penalty. Whoever violates a temporary restraining order or injunction issued under this section shall be fined not more than $1,000 or imprisoned not more than 90 days or both.
[2]
Section 947.013, Stats.,
provides:
Harassment. (1) In this section:
(a) "Course of conduct" means a pattern of conduct composed
of a series of acts over a period of time, however short, evidencing a
continuity of purpose.
(b) "Credible threat" means a threat made with the intent
and apparent ability to carry out the threat.
(c) "Personally identifiable information" has the meaning
given in s. 19.62 (5).
(d) "Record" has the meaning given in s. 19.32 (2).
(1m) Whoever, with intent to
harass or intimidate another person, does any of the following is subject to a
Class B forfeiture:
(a) Strikes, shoves, kicks or otherwise subjects the person to
physical contact or attempts or threatens to do the same.
(b) Engages in a course of conduct or repeatedly commits acts which
harass or intimidate the person and which serve no legitimate purpose.
(1r) Whoever violates sub.
(1m) under all of the following circumstances is guilty of a Class A
misdemeanor:
(a) The act is
accompanied by a credible threat that places the victim in reasonable fear of
death or great bodily harm.
(b) The act occurs
while the actor is subject to an order or injunction under s. 813.12, 813.122
or 813.125 that prohibits or limits his or her contact with the victim.
(1t) Whoever violates sub. (1r) is guilty of a Class E felony if the person has a prior conviction under this subsection or sub. (1r), (1v) or (1x) or s. 940.32 (2), (2m), (3) or (3m) involving the same victim and the present violation occurs within 7 years of the prior conviction. ...