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Disorderly conduct isn’t a lesser included of unlawful use of a computerized communication system

State v. James C. Faustmann, 2017AP1932-CR, District 2, 3/7/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the test for lesser included offenses under § 939.66(1), disorderly conduct in violation of § 947.01(1) isn’t a lesser-included offense of unlawful use of a computerized communication system in violation of § 947.0125(2)(a).

¶4     The elements of unlawful use of computerized communication systems under Wis. Stat. § 947.0125(2)(a) are: (1) the defendant sent a message to the victim on a computerized communication system or an electronic mail system, (2) the defendant sent the message with intent to frighten, intimidate, threaten, abuse, or harass the victim, and (3) the defendant threatened to inflict physical harm or damage the property of any person. Wis. J.I.—Criminal 1908. The elements of disorderly conduct are: (1) the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct and (2) the “conduct of the defendant, under the circumstances as they then existed, tended to cause or provoke a disturbance.” Wis. J.I.—Criminal 1900.

¶5     Disorderly conduct is not a lesser-included crime of unlawful use of computerized communication systems as a person can commit that crime without committing the crime of disorderly conduct. Disorderly conduct requires behavior that unlawful use of computerized communication systems does not: conduct tending to cause or provoke a disturbance. Wis. J.I.—Criminal 1900, 1908. The crime of unlawful use of computerized communication systems does not require proof of its impact upon the intended recipient. As a matter of law, disorderly conduct is not a lesser-included offense of unlawful use of computerized communication systems.

Faustmann also objected to the use of other-acts evidence at his trial on the charge under § 947.0125(2)(a), which was based on allegations he sent threats and obscenities by email to a public figure. The other-acts evidence involved conduct for which he was facing similar charges in another county. He hadn’t yet been convicted of the other conduct, but other acts evidence may consist of offenses for which there is no conviction so long as the other-acts evidence is relevant and “if a reasonable jury could find by a preponderance of the evidence that the defendant committed the other act.” State v. Gray, 225 Wis. 2d 39, 59, 590 N.W.2d 918 (1999); State v. Bustamante, 201 Wis. 2d 562, 570, 549 N.W.2d 746 (Ct. App. 1996). The other-acts evidence here was relevant under State v. Sullivan, 216 Wis. 2d 768, 780-81, 576 N.W.2d 30 (1998), and there was sufficient evidence to find by a preponderance of the evidence that the acts occurred. (¶¶8-11). And it wasn’t unfairly prejudicial, either. (¶¶12-13).

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