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Complaint – Probable Cause, Generally; Complaint, Violating Foreign Protection Order, § 813.128(2) – Sufficiency

State v. Timothy Jon Eloe, 2011AP1970-CR, District 2, 2/29/12

court of appeals decision (1-judge, not for publication); for Eloe: John C. Orth; case activity

¶5        To be sufficient, a criminal complaint need only be minimally adequate in setting forth essential facts establishing probable cause.  State v. Adams, 152 Wis. 2d 68, 73, 447 N.W.2d 90 (Ct. App. 1989).  Further, the adequacy of the complaint is to be evaluated “in a common sense rather than a hypertechnical manner.”  Id.  There must be facts within the four corners of the complaint that are sufficient, by themselves or together with any reasonable inferences drawn from them, to allow a reasonable person to conclude the defendant probably committed a crime.  State v. Thiel, 183 Wis. 2d 505, 541-42, 515 N.W.2d 847 (1994); State v. Haugen, 52 Wis. 2d 791, 793, 191 N.W.2d 121 (1971).  Whether a criminal complaint alleges sufficient facts to establish probable cause is a question of law we review de novo.  State v. Grimm, 2002 WI App, ¶15, 258 Wis. 2d 166, 653 N.W.2d 284.

Allegations in complaint for violating a foreign protection order, enjoining Eloe to “stay away” from his wife Rebecca, that Eloe accessed her hotel room while she was absent, held sufficient to establish probable cause for violating § 813.128(2):

¶14      Considering Eloe’s own choice of dictionary definitions, Eloe’s actions as alleged in the complaint suffice to allege “an act or state of being in communication” with Rebecca and thus a form of nonphysical contact with her.  Though Rebecca was not physically present in the hotel room when Eloe was going in and out of her room with the access key he procured from the hotel clerk, he nonetheless succeeded in communicating a significant message to Rebecca.  When Rebecca returned to her hotel room and discovered her room key did not work and was informed by the clerk that her husband had arrived and gained access to and went into her hotel room, she was filled with fear he would come back and harm her.  She was so fearful that, when she tried to get a new hotel room to stay in at the same hotel but could not because it was the middle of the night and the hotel was fully booked, she then packed up her belongings and left the hotel.

¶15      The message Eloe communicated to Rebecca was that despite knowing there was a protective order in place directing him to “stay away” from her, he nonetheless still desired and was able to gain access to, and indeed go into, her hotel room without her consent.  For a woman who went to the lengths of procuring a protective order against her estranged husband because she was afraid of what he might do to her based on his actions toward her in the past, that is a very disturbing communication.  While this form of alleged nonphysical contact may not have been direct or immediate, it could be considered a form of nonphysical contact nonetheless.

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