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Court of appeals finds factual basis for witness intimidation plea

State v. Noah Yang, 2018AP1461, 11/28/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Yang pleaded to misdemeanor witness intimidation. He had been charged with felony child abuse, and, from the jail, had called his mother, telling her that if a witness didn’t show up, the prosecutor would drop the charge. In a later call, Yang’s mother acknowledged to Yang that she had been in touch with the alleged victim’s mother; the alleged victim did not, in fact, show up for trial.

After sentencing he sought to withdraw his plea to witness intimidation, arguing there was no factual basis. The circuit court denied the motion, and the court of appeals now affirms.

The court notes the elements of misdemeanor witness intimidation under Wis. Stat. § 940.42:

(1) Yang’s daughter was a witness who was expected to be called to testify at Yang’s trial;

(2) Yang prevented or dissuaded, or attempted to prevent or dissuade, his daughter from testifying at his trial; and

(3) He did so knowingly and maliciously.

See WIS. STAT. § 940.42; WIS JI—CRIMINAL 1292.

(¶11).

Yang argues that there’s no evidence on the third element. Basically, the court of appeals responds that it’s a matter of how you read the conversations he had with his mother–which, of course, dooms Yang’s claim in this context:

Yang contends the record contains no facts indicating he “knowingly and maliciously” acted to prevent his daughter from testifying. But, as the circuit court noted, “[i]t doesn’t take more than just looking at the reasonable inferences or a reasonable person looking at this to see what happened here.” Yang has not shown that the court clearly erred with its implicit finding, based on the record, that Yang acted knowingly and maliciously when he communicated with his mother in an effort to ultimately prevent his daughter from showing up to testify at his trial. Whether a jury would have found this element met beyond a reasonable doubt will never be known, but, again, that is not the question before us. There was a sufficient factual basis for the court to find as it did.

Two of the three intimidation of a witness elements are satisfied where a defendant prevents or attempts to prevent a witness from testifying. The circuit court did not clearly err in finding that through his communications with his mother, Yang, at a minimum, prevented or attempted to prevent his daughter from testifying. Furthermore, as noted, the court did not clearly err in inferring that Yang did so knowingly and maliciously.

(¶¶14-15).

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