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§ 940.42, Attempted Intimidation of Witness – Elements – Sufficiency of Evidence: Addressing Parent of Child-Witness

State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate

Issue: Whether an effort at dissuading a child witness which was directed at the child’s mother satisfies the elements of attempted intimidation of a witness, § 940.42.

Holding:

¶10      To prove attempted intimidation of Tamika, the State was required to prove that: (1) Tamika was a witness; (2) Moore attempted to dissuade her from attending a proceeding or giving testimony at a proceeding authorized by law; and (3) Moore acted knowingly and maliciously. See Wis JI—Criminal 1292 (2000). The pattern jury instruction further suggests a definition of attempt:

Attempt requires that the defendant intended to (prevent) (dissuade) (name of victim) from attending or giving testimony and did acts which indicated unequivocally that the defendant had that intent and would have (prevented) (dissuaded) (name of victim) from attending or giving testimony except for the intervention of another person or some other extraneous factor.

Id.   The instruction defines “dissuade” as “‘to advise against’ or ‘to turn from by persuasion.’” Id. (quoting Webster’s New Collegiate Dictionary).

¶13      Underlying Moore ’s argument is his assumption that the State had to prove that Tamika was shown, or apprised of, the letters before Moore could be found guilty. [8] Under the circumstances of this case, we disagree. Regardless of whether the letters were addressed to Tamika or whether she was aware of their contents, it is obvious that Moore attempted to dissuade Tamika through her mother, Theresa. Theresa, as the parent of the minor child, had the parental responsibility and practical authority to monitor communications by third parties with her child, and to influence whether Tamika cooperated with the court proceedings. We conclude that there was sufficient evidence to convict Moore of attempting to intimidate Tamika.


 [8]   Moore also assumes that the reason he was charged with attempting to dissuade, as opposed to dissuading, Tamika was that Tamika ultimately did testify. The State does not appear to quarrel with this assumption. We will likewise assume for purposes of this opinion that because Tamika chose to testify, Moore was appropriately charged with attempting to dissuade her from testifying.

 

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