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5-6 sleepovers per week + 2 baskets of laundry = “resides” for purposes of domestic abuse surcharge law

State v. Donald Weso, 2015AP1004-Cr, 4/19/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

This unpublished opinion appears to decide an issue of first impression for Wisconsin. Section 973.055(1) requires a court to impose a $100 surcharge if it finds that an adult convicted of domestic abuse committed the act “against an adult with whom [he] resides. ” The novel question is: what does “resides” mean? The answer is only a little more involved than the title to this post suggests.

The court of appeals held:

¶9  . . . Weso is correct that WIS. STAT. § 973.055(1)(a)2. includes habitation arrangements between the perpetrator and the victim that are intended to be permanent. However, the term “resides” is not limited to such “permanent” situations, as a person also “resides” where he or she dwells continuously or has a “settled abode for a time.” Given this common and approved usage, we conclude certain arrangements that are intended to be temporary also fall within the statute’s ambit. See 79 Wis. Op. Att’y Gen. 109 (1990) (concluding university residence hall roommates “reside” with one another within the meaning of the general domestic abuse statute, WIS. STAT. § 968.075(1)(a)).

¶14  . . . Here, the undisputed testimony at the motion hearing established that Weso and R. D. had been dating since June 2012. R. D., whose testimony the circuit court found credible, testified that Weso had been residing with her since October 2012, between three and four months before the incident at issue. Weso regularly stayed overnight at her residence, approximately five or six nights per week. Weso had two laundry baskets of clothes that he kept there. These were “[c]lothes that [Weso] would wear every day,” which R. D. would launder and fold for him. The circuit court reasonably inferred from the testimony that Weso was also having meals at R. D.’s residence. Although Weso testified he lived at another address, that location was, in fact, his sister’s residence, and he merely had a bedroom there. More importantly, based on R. D.’s uncontroverted testimony, Weso was only spending, at most, one or two nights a week at his sister’s residence. Weso estimated that he and R. D. stayed together overnight at his sister’s residence about three times over the course of their entire relationship.

Misdemeanor appeals are decided by a single judge in an unpublished opinion, but they can be converted to a three-judge appeal and decided in a published opinion, which then becomes binding precedent. It’s interesting that the court of appeals went to publication-worthy lengths to justify its decision–examining the plain language and legislative history of the domestic abuse surcharge statute, multiple dictionary definitions of “reside” and so forth–but did not exercise its §809.41(3) prerogative to convert this appeal. Perhaps it was compensating for the unusually thin response brief filed in this case. In any event, because this decision in unpublished, there’s room for more litigation over the meaning of “resides” in §973.055(1).

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