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Evidence sufficient to support “bail jumping” verdict, no due process violation for accidental contact with victim

State v. Lavarren D. Etienne, 2014AP2881-CR, 6/18/15, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)

This appeal concerned the sufficiency of evidence to support a jury verdict that Etienne intentionally violated a bond which prohibited him from having contact with “P.J.”  Etienne said the contact was accidental. Due to the deference given to jury findings,  Etienne’s argument failed.  So did his claimed due process violation.

When reviewing the sufficiency of evidence  to support a jury verdict, if there is a possibility “that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn the verdict even if it believes the trier of fact should not have found guilt based on the evidence before it.” Slip op. ¶4 (quoting State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990)).

Based on this testimony, the jury could reasonably infer that, regardless why or how the encounter began, Etienne willingly continued to engage in contact with P.J. when he could have chosen to break off contact and leave the scene.  Given Etienne’s testimony, a reasonable jury could have found that Etienne willingly allowed P.J. to get into the car he was in; Etienne and P.J. began arguing; P.J. eventually got out of the car; and Etienne intentionally remained in P.J.’s presence even after she got out of the car and began yelling at him and kicking the car. Slip op.¶11.

Etienne further argued that a conviction based on accidental and unavoidable contact with P.J. violates his right to due process. See e.g. Arciniega v. Freeman, 404 U.S. 4, 5 (1971); Alonza v. Rozanski, 808 F.2d 637, 639 (7th Cir. 1986). U.S. v. Loy, 237 F.3d 251, 268-69 (3rd Cir. 2001).  The court of appeals assumed that this line of cases applies, but held:

Etienne’s due process argument assumes that his view of the evidence is true.  However, I must view the evidence in a light most favorable to the jury’s verdict.  And, as demonstrated, the evidence supports a finding that Etienne had contact with P.J. that was not accidental and that was avoidable. Slip op.¶15.

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{ 1 comment… add one }
  • Bernardo Cueto June 20, 2015, 8:30 am

    This was my first criminal appeal. I found a lot of federal cases that spoke about unavoidable contact and one case held that it was a Due Process issue. Normally the cases were regarding no-contacts with known criminals, but I think this is a good constitutional argument for those no-contact bail jumpings that occur with specific parties (e.g. alleged victim, co-defendant). “Assuming without deciding that this case law applies to a bond term like Etienne’s, there is no due process violation here.” I am unsure if there is any persuasive citation value to this line, but it’s better than nothing given the large amount of bailjumping situation that can occur with no-contacts.

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