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Court upholds convictions for multiple counts of sending unlawful emails, bail jumping

State v. Brian A. Barwick, 2017AP958-CR through 2017AP961-CR, District 1, 9/5/18 (not recommended for publication); case activity (including briefs)

Barwick was charged with eleven counts of various crimes in four separate cases that were consolidated for trial. He makes various unsuccessful challenges to his convictions.

Insufficient evidence

Barwick argues there was insufficient evidence to convict him of unlawful use of a computerized communication system, § 947.0125(2)(c), for sending an email containing obscene or profane language with intent to frighten, intimidate, threaten, or abuse another person. (The text of the email is reproduced in the opinion. (¶3).) His argues there was not enough evidence to prove the message was obscene or profane. Because § 947.0125 doesn’t define “obscene,” and in particular doesn’t limit the word to the description or portrayal of sexual activity, so the court applies the ordinary dictionary definition of the word:

¶22     Here, considering the ordinary definition of “obscene,” and the language of the email to K.D., a jury could reasonably find Barwick’s language to be “disgusting to the senses,” “abhorrent to morality or virtue,” or “repulsive by reason of crass disregard of moral or ethical principles.”…. A jury could also conclude that Barwick used such language with the intent to frighten, intimidate, threaten, or abuse K.D. The evidence was sufficient….

He also argues there was insufficient evidence to convict him of bail jumping by using his computer in violation of a bond condition set in one of his cases. He notes the bond form didn’t list that condition. Doesn’t matter, says the court:

¶24     …[T]he bail/bond form from case No. 2015CF1521 was never introduced to the jury. The jury did, however, hear portions of the transcript from Barwick’s initial appearance and his bail/bond hearing in that case. Milwaukee Police Officer James Fohr read portions from both hearings to the jury in which the trial court informed Barwick that a condition of his release required that Barwick have “no use of any computers.” Accordingly, there was sufficient evidence for a jury to find that Barwick knew the conditions of his release and knowingly violated those conditions.

Application of domestic abuse repeater enhancer under § 968.075

Two of Barwick’s cases were based on allegations he sent emails to, and left phone messages for, his ex-wife in violation of a domestic abuse injunction. The messages were also alleged to have constituted stalking and to have violated § 947.0125. Each charge had a § 968.075 domestic abuse repeater enhancer attached. Barwick argues the enhancers can’t be applied to him because there was no evidence he engaged in a “physical act” of domestic abuse, which he says is required by § 968.075(1)(a)4. (¶¶25-26).

The court rejects his reading of the statute: “Sending emails, leaving threatening voicemails, and sending Facebook messages clearly result from physical acts—Barwick physically picked up a material object (a phone) and left messages for R.B; he physically wrote messages using another material object (a computer) and sent those messages to R.B. We construe statutes for the plain meaning of the words chosen by the legislature.” (¶27).

As the court notes (¶28), there are two unpublished opinions coming to the same conclusion. State v. Egerson, Nos. 2016AP1045-CR, 2016AP1046-CR, 2016AP1047-CR, 2016AP1048-CR, 2016AP1049-CR, unpublished slip op. (WI App Feb. 27, 2018); State v. Bandy, Nos. 2014AP1055-CR, 2014AP1056-CR, unpublished slip op. (WI App Oct. 28, 2014).

Search warrants

Barwick’s challenges to the search warrants for his email accounts and computer-related items at his home fail. The warrants were supported by probable cause. (¶¶29-31, 33-34). Further, the warrant for his email accounts satisfied the jurisdictional requirements in § 968.375(1). (¶32). And finally, the police had authority to seize noncomputer items during the search of his home because they were constituted evidence of criminal activity and were found in receptacles in which the specified computer-related items could be found. (¶¶35-36).

Right to present a defense

The circuit court barred Barwick him from testifying that the emails at issue could have been generated from outside sources—for instance, by someone who “hacked” his account or found the file folder containing computer passwords and identifiers that he lost. (¶37). This did not impinge on his right to present a defense because that right doesn’t require the presentation of irrelevant or speculative testimony:

¶42     …. First, the evidence was only marginally relevant, at best. As the trial court noted, Barwick’s testimony that there was suspicious activity on his computer at some vague point in time would only invite speculation among the jury as to whether that activity resulted in the messages at issue here. Barwick’s testimony that he lost a folder containing sensitive information is also both vague and speculative. The jury would have to speculate to conclude that the folder was somehow recovered by an unknown party who then remotely broke into Barwick’s computer and sent the messages underlying the charges here. More importantly, however, Barwick sought to testify about the technical ways his computer might have been compromised without establishing any special expertise to support such possibilities. Barwick neither claimed to be an expert in the field of computer science, nor provided any experts who could explain the concepts of “spoofing” and “hacking” and how either could have resulted in the messages at issue here. ….


Barwick’s challenge to the joining of all four cases for trial fails because he doesn’t establish consolidation was prejudicial. While he argues he may not have testified and admitted some of the acts had the cases not been joined, there was other evidence of those acts. (¶¶43-47).

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