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Evidence – Disorderly Conduct – Relevance

State v. Salvador Cruz, 2010AP911-CR, District 2, 10/13/10

court of appeals decision (1-judge, not for publication); for Cruz: Matthew S. Pinix; BiC; Resp.; Reply

Evidence of the effect of the defendant’s (alleged disorderly) conduct was relevant, without a showing of “proximity” to that conduct:

¶13      A.S. instructs that “[i]n addition to considering the potential effects of a defendant’s conduct in disorderly conduct cases … prior cases also indicate that the actual effects of a defendant’s conduct are probative.”  Id., ¶38; see also State v. Maker, 48 Wis. 2d 612, 616-19, 180 N.W.2d 707 (1970) (citing to the officer’s testimony regarding the effect of the defendant’s conduct as support for the trial court’s finding of guilt).  Further, the A.S. court expressly rejected the notion that WIS. STAT. § 947.01 requires an immediate physical and visible reaction by those subject to the conduct.  A.S., 243 Wis. 2d 173, ¶40.  It considered evidence of an individual reporting the defendant’s conduct to the police the day after it happened and the subsequent efforts by the police in conducting interviews regarding the defendant’s threats to be probative.  Id., ¶39.  The court stated:  “These actual effects of [the defendant’s] conduct support our finding that his conduct tended to cause or provoke a disturbance.”  Id.

Cruz became demonstrably distraught during a TPR proceeding and ventilated a bit to the caseworker. Later that day, Cruz left voice mail messages for the caseworker and her supervisor, indicating that he wanted the caseworker removed from his case, otherwise “something bad will happen”; and that “she had an ugly face and ugly attitude,” and so on. On appeal, Cruz challenges admissibility of evidence of the department’s reaction: a new caseworker was assigned, police now patrolled the building, which went on lockdown, photos of Cruz were posted at the reception desks, and a mass email with his photo was distributed. As the blockquote above shows, the court finds this evidence relevant. The court also rejects a related § 904.03, unfair-prejudice argument, ¶16 (“The evidence undoubtedly aided the jury in determining the extent to which the actions of Cruz were perceived as a threat.”).

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