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COA upholds conviction for violating injunctions; rejects unfair prejudice, vagueness and sufficiency challenges

State v. Michael K. Lorentz, 2018AP1515, 10/1/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The state charged Lorentz with violating four injunctions. One count was brought under Wis. Stat. § 813.12(8)(a) (for violating a domestic abuse injunction regarding his ex-wife) and three under Wis. Stat. § 813.122(11) (for violating three child abuse injunctions–one for each of their three children). Each injunction required Lorentz to “avoid” the “residence” the mother and children shared.

Before trial Lorentz offered to stipulate to the existence of the injunctions and moved to prohibit the state from using the phrases “child abuse” and “domestic abuse”–he argued that the reason for the injunctions was irrelevant to his guilt and, as a “status element,” could be kept from the jury.

As the court of appeals notes, ¶13 n.3, a status element is one that is “dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged.” Old Chief v. United States, 519 U.S. 172, 190 (1997). One Wisconsin example of a status element: the two prior convictions required to lower a person’s prohibited alcohol content to .02. These fact of these convictions can be stipulated to and rendered inadmissible because it is likely to be far more prejudicial than probative. State v. Alexander, 214 Wis. 2d 628, 646, 571 N.W.2d 662 (1997).

The circuit court agreed with Lorentz and forbade the state to use the phrases “child abuse” and “domestic abuse,” but it refused to redact those phrases from the titles of the injunctions themselves, which were published to the jury. The court of appeals assumes error but finds it harmless beyond a reasonable doubt for four reasons: the state complied with the court’s ruling and didn’t use the terms itself; the court gave a cautionary instruction; the jury saw the injunctions only once (their request to see them again was denied); and the evidence against Lorentz was “ample.” (¶¶15-18).

Lorentz next argues that the language of the injunctions was unconstitutionally vague, rendering the criminal statutes vague as applied to him. He contends that there’s no way to know what conduct is proscribed by the command to “avoid” a “residence”: how far away to do you have to be? (¶23). The court of appeals responds that a person whose conduct is clearly prohibited can’t raise a vagueness challenge based on hypotheticals. See State v. La Plante, 186 Wis. 2d 427, 433, 521 N.W.2d 448 (Ct. App. 1994). And, it says, Lorentz’s conduct was clearly prohibited: he drove past the house “very slowly” (though the road he was on was some distance from the house) such that the mother and children could identify his vehicle. (¶24).

Lorentz makes an alternative argument that the injunctions were so broad as to infringe on his constitutional right to travel, but the court of appeals said he didn’t raise it in the trial court, so it’s forfeited. (¶¶25-26).

The court also reject’s Lorentz’s challenge to the sufficiency of the evidence, holding, among other things, that the jury had good enough reason to reject his claim that he didn’t know he was violating the injunctions. (¶¶29-33).

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