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Grabbing, pushing, blocking exit sufficient to support disorderly conduct conviction

State v. Kerry A. Siekierzynski, 2015AP2350-CR, District 3, 9/7/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Siekierzynski’s acts during an angry, emotional confrontation with his ex-wife over child visitation were enough to support the guilty verdict for disorderly conduct.

A.B., Siekierzynski’s ex-wife, testified that during an argument over visitation he “was getting into her personal space,” grabbed her arm “very hard” and “pushed her,” and briefly physically placed his body between her and the doors when she tried to leave his home with their child. He also angrily asked “who are you?” and called her a “creature.” (¶¶3-4). He was charged with violating § 947.01(1) by engaging in “abusive or otherwise disorderly” conduct. (¶8).

The evidence is sufficient to support a finding of abusive conduct:

¶12     …Siekierzynski’s claims of non-abusive behavior appear to be based upon the characteristics of each comment and act in isolation. The jury was not required to evaluate the evidence that way and was permitted to take into account the circumstances and “the manner of the conduct” in question. See [State v.] Schwebke, [2002 WI 55,] 253 Wis. 2d 1, ¶24[, 644 N.W.2d 666]. Siekierzynski’s speech—calling A.B. a “creature,” saying “who are you,” and telling A.B. that she could leave but the child would remain—occurred in the context of a dispute between two parents over the care for their child. Siekierzynski and A.B. had been divorced only two months at the time, their divorce had been contentious, and the circumstances of this visitation were, according to A.B., “tense” from the start. The language, accompanied by Siekierzynski’s physical acts of grabbing or pushing A.B.’s arm, and then blocking her exit from the residence, all in the immediate presence of their child, could reasonably be viewed by the jury as an implied threat that Siekierzynski objected to A.B.’s control of the situation beyond mere argument, and that he would not permit her to remove their child from his home.

The evidence also supported the conclusion the conduct tended to cause or provoke a disturbance even though, as Siekierzynski argues, it occurred inside his residence and wasn’t likely to spill over and affect the surrounding community:

¶16     These arguments … fail to reflect the totality of the evidence at trial. The jury heard evidence that the argument between Siekierzynski and A.B. involved physical action by Siekierzynski against A.B. and repeated physical restriction of her movement. Siekierzynski intended that A.B. leave his residence, but do so without their child, contrary to their divorce decree. A.B. did manage to leave the residence with the child, but only after Siekierzynski had repeatedly attempted to prevent her from doing so. A reasonable jury could well conclude such conduct affected the overall safety of A.B., the child, and order in the community represented by the existing court order regarding visitation and custody rights.

¶17     The jury could further determine this private incident had public characteristics. While A.B. acknowledged she was unhurt and Siekierzynski never verbally threatened to harm her or their child, A.B. nonetheless felt frightened, threatened, and the need to leave Siekierzynski’s residence. After doing so, A.B. also felt it important to report the incident to the police. In addition, Siekierzynski stated that he was contacting Child Protective Services due to A.B.’s claimed interference with his placement rights. While no severe violence occurred in this scenario, the community has an interest in seeing that incidents such as this do not devolve into shows of force…. As the State also notes, where both parties to a dispute call on outside intervention for assistance regarding a pre-determined custody arrangement, it can hardly be said that there is no risk of the dispute spilling over into the surrounding community. In light of this evidence, the jury could reasonably infer that Siekierzynski’s comments and actions created a disturbance that required public intervention.

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