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Disorderly Conduct – Sufficiency of Evidence

State v. Kurt D. Schmidt, 2010AP551-CR, District 3, 8/24/10

court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; BiC; Resp.; Reply

Conviction for disorderly conduct was established by evidence that Schmidt, following a contentious divorce, left messages on his ex-wife’s answering machine cautioning her “to question (her) own personal assurance and insurance,” and falsely reporting that her stepmother had died.

¶9 Schmidt claims his conduct does not fall within the statute’s ambit for three reasons. First, he claims the messages were not the type that cause or provoke a disturbance. In State v. Schwebke, 2002 WI 55, ¶25, 253 Wis. 2d 1, 644 N.W.2d 666, a defendant who anonymously sent disturbing mailings to several people raised a similar argument, which our supreme court rejected. The court concluded the mailings “constituted conduct that not only caused disturbances to the lives of the recipients, but … was of the type that would be disruptive to peace and good order in the community.” Id., ¶32. The messages here were of a similar nature, badly frightening Landin and her children. Schmidt’s conduct also affected friends and relatives, as one daughter wanted to leave and had a friend pick her up. Landin’s father also spent the night at Landin’s house.

¶10 Schmidt next argues the evidence was insufficient because “the messages never threatened to disrupt the peace, order, or safety of the community.” Conduct that causes a purely private disturbance is nonetheless prohibited if there is some risk that the disturbance will spill over into the public. Id., ¶31. Although directed solely at Landin, Schmidt’s messages caused fear in both Landin and her children. The messages included false statements about others, including allegations that Landin had caused her stepmother’s death. Further, the messages were antagonizing enough that Landin felt she needed to involve the police. Based on this evidence, a reasonable trier of fact could conclude Schmidt’s conduct caused, or created a risk of, a public disturbance.

¶11 Schmidt’s third and final sufficiency-of-the-evidence argument is that the messages would offend only a “hypercritical” individual described in Zwicker. Schmidt paints a portrait of Landin as paranoid and unreasonable, but the facts established at trial do not support this characterization. The obvious emotional turmoil of the divorce aside, there was no evidence Landin or her daughters were overly sensitive. Regardless, a reasonable person of ordinary temperament could view the messages as abusive, disturbing, and—given their length and tone—ultimately threatening.

Quoted at length so you can judge for yourself whether the case was thin. It doesn’t appear to take much to criminalize boorish, obnoxious behavior. On the other hand, much the same could be said about Schwebke, whose message the court is merely following here.

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