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Jury instruction wasn’t erroneous, and evidence was sufficient to sustain verdicts

State v. John D. Harris, 2014AP1292-CR, District 1, 12/23/14 (1-judge decision; ineligible for publication); case activity

Harris isn’t entitled to a new trial based on alleged errors in the jury instruction for disorderly conduct, and the evidence is sufficient to support the guilty verdicts for that charge and a charge of battery.

Harris was charged with battery, disorderly conduct, theft, and multiple counts of intimidation of a victim for conduct over a couple of different days relating to Susan M., who recanted the bulk of her allegations at trial. (¶¶2-8). Harris challenged the DC conviction based on sufficiency of the evidence given Susan M.’s recantation and the use of an incorrect date on the jury instruction for that charge—Saturday, June 15, when the correct date was June 16. He also claims the DC jury instruction was erroneous because it used the incorrect date and added modes of committing DC that weren’t listed in the complaint.

As to sufficiency, the erroneous date was clearly a typographical error that the jury could, and did, resolve based on the evidence and the fact the court read the correct date at other junctures and for other associated charges. (¶12). Nor does Susan’s recantation make for insufficient evidence. The jury was free to disregard her trial testimony and accept as true the statements she made to police, State v. Toy, 125 Wis. 2d 216, 222, 371 N.W.2d 386 (Ct. App. 1985), particularly because there was other evidence supporting her original statements and the jury heard the intimidating phone calls Harris made from jail, which could lead them to conclude she recanted under pressure. (¶¶13-14).

As to the jury instruction, the modes of commission (indecent, profane, boisterous, unreasonable loud) that were added to the modes charged in the complaint (violent, abusive) were supported by the evidence and weren’t prejudicial. (¶¶19-20). The trial court also added “otherwise disorderly conduct,” which Harris claims is unconstitutionally vague; the court rejects this claim as precluded by State v. Givens, 28 Wis. 2d 109, 135 N.W.2d 780 (1965). (¶21). Harris’s claim that the use of the incorrect date tainted the instruction is, as already noted, a scrivener’s error that didn’t affect the verdict. (¶22).

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