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Fleeing, Elements: “Willful or Wanton Disregard”; Evidence – Character Trait of “Victim,” § 904.04(1)(b)

State v. Daniel H. Hanson, 2012 WI 4, affirming 2010 WI App 146; for Hanson: Robert R. Henak, Chad Lanning; case activity

Fleeing, § 346.04(3) – Elements: “Willful or Wanton Disregard” 

Fleeing does not require “an evil or malicious state of mind” when disregarding an officer’s signal:

¶22  In Wis. Stat. § 346.04(3), “willful” modifies “disregard.”  In that context, “willful” requires a subjective understanding by the defendant that a person known by the defendant to be a traffic officer has directed the defendant to take a particular action, and with that understanding, the defendant chose to act in contravention of the officer’s direction. Accordingly, the purpose it serves is to require compliance with directions made by known law enforcement personnel.  Furthermore, in the nearly 150 years since this court’s decision in State v. Preston, 34 Wis. 675 (1874), our interpretations of the term “willful” have demonstrated that, contrary to Hanson’s suggestion, an act done “willfully” does not require a showing of “personal hate or ill will.”  See, e.g.Cissell, 127 Wis. 2d at 212.

¶27  Based on the conduct necessary to show a “willful” disregard, we decline to read Wis. Stat. § 346.04(3) as providing a good faith exception to compliance.  The statute requires:  a subjective understanding by the defendant that a person known by the defendant to be a traffic officer has directed the defendant to take a particular action, and with that understanding, the defendant chose to act in contravention of the officer’s direction.  This requirement does not include a showing that the defendant had an evil or scornful state of mind.

Hanson argued that he fled an officer, following a traffic stop for speeding, because he feared the officer; the court characterizes his argument as asserting “a good faith exception, … a sort of built-in, subjective self-defense claim,” an idea the court rejects, ¶26. The court stresses that jury consideration of Hanson’s right to exercise self-defense adequately covered his theory, ¶29 (“The jury was properly  instructed on self-defense.”); and id., n. 7 (“it is not clear what effect a good faith defense would have that is not already served by a self-defense claim”). It follows that the evidence was sufficient to support conviction: the jury heard evidence relating to Hanson’s fear of the officer; its rejection of Hanson’s theory of self-defense won’t be second-guessed, ¶32.

The concurrence cautions that by ignoring the term’s sensitivity to context, the majority’s discussion of “willful” is too broad, ¶¶48-51 (conc.). (“We have stressed that the term ‘willful’ is ambiguous, and that no single definition of willful will be applicable in all statutes,” ¶51.) The dissent elaborates on this point, concluding that “willful” not only has variable meaning, but in the fleeing statute specifically means, “the purpose to do a wrongful act without just cause or without a justifiable excuse,” ¶74 (diss.). The instructions fell short, notwithstanding inclusion of self-defense, because they didn’t afford the opportunity for jury determination of whether Hanson “subjectively, honestly believed that he had just cause to disregard the officer’s signal,” ¶82 (diss.).

Distinction between “willful” and “malicious” discussed, albeit in quite different context: Jendusa-Nicolai v. Jensen, 7th Cir No. 11-1256, 4/18/12.

Evidence – Character Trait of “Victim,” § 904.04(1)(b) 

Evidence of a pertinent character trait of a “victim” is generally admissible, § 904.04(1)(b) – Hanson therefore sought to show that the officer he allegedly fled had a “confrontational, aggressive, and hot-tempered” character. But this argument hinges on whether the officer may be deemed a “victim” under the fleeing statute, a proposition the court rejects. Although “[w]ide latitude” attends admissibility of the victim’s character to show action “in conformity therewith,” where no “victim” exists, “propensity evidence” remains off-limits.  ¶36, citing 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 404.5 (3d ed. 2008). For purposes of the restitution statute, the “victim” of fleeing is the individual officer, rather than the department as a collectivity, State v. Haase, 2006 WI App 86. Nonetheless, this restitution principle doesn’t make the officer a “victim” for the purpose of admissibility of evidence at trial.

¶41  Second, the rationale underlying interpretations of the term “victim” in Wis. Stat.§ 973.20 is not persuasive when interpreting rules of evidence.  This is so because the principles underlying the restitution statute are different from the principles of relevance and prejudice upon which evidentiary rules are grounded.  See Blinka, supra, § 402.01.

¶42  Restitution is not grounded in victimhood; rather, it is based on the criminal’s destruction of property and the principle that an actor should not be permitted to destroy others’ property without being held financially responsible.  See Wis. Stat. § 973.20(2)(b) (“If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant . . . pay the owner or owner’s designee the reasonable repair or replacement cost.”); see also Restatement (Third) of Restitution and Unjust Enrichment § 40 cmt. d (2011).  Any recovery that a governmental entity would have is, therefore, not grounded in the entity’s being a “victim” under § 973.20(1r).  Instead, the entity’s recovery is based on its ownership (or status as designee) of the property damaged or destroyed.

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