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“True threat” instruction wasn’t needed at disorderly conduct trial

State v. Kaprisha E. Greer, 2019AP806-CR, District 1, 1/22/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Greer seeks a new trial in the interest of justice on the ground that the jury at her disorderly conduct trial should have been instructed about the meaning of “true threat” because the state elicited evidence about a threat during its case-in-chief. The court of appeals rejects her claim.

At her trial on charges of disorderly conduct and endangering safety by use of a dangerous weapon, J.D.H., the complaining witness, characterized Greer’s behavior as “basically her threatening me….” (¶¶3-4). After she was acquitted of endangering safety but convicted of DC, she moved for a new trial. (¶¶6-8). She argued the jury should’ve been instructed about the meaning of a “true threat” under State v. Perkins, 2001 WI 46,243 Wis. 2d 141, 626 N.W.2d 762, which holds that, because some threatening words are protected speech under the First Amendment, “[o]nly a ‘true threat’ is constitutionally punishable under statutes criminalizing threats.” Perkins adopted an objective test for determining whether statements made by a defendant constitute a true threat.  Id., ¶¶17, 29.

Greer didn’t ask for a “true threat” instruction at trial, so she waived any error in the instructions. (¶¶7, 11). But Perkins recognized that instructional error might cause the real controversy not to be fully tried, which would be grounds for a new trial in the interest of justice. (¶12). The court of appeals holds there was no instructional error because the “true threat” doctrine doesn’t apply to her case:

¶15     This case is distinguishable from Perkins. For the charge in Perkins—threatening a judge—the first essential element of the crime required proof “that the defendant threatened to cause bodily harm to [the judge].” Id., ¶34. In contrast, here Greer was charged with disorderly conduct. The essential elements required to prove that crime are (1) that the defendant “engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct”; and (2) that “the conduct of the defendant, under the circumstances as they then existed, tended to cause or provoke a disturbance.” See WIS JI—CRIMINAL 1900 (some formatting altered).

¶16     Neither of the essential elements required to prove disorderly conduct involve establishing that the victim was threatened. In fact, the “true threat” language of the instruction is required to be given only “where the State’s case relies on statements or conduct that may constitute a threat[.]” See [i]d. (some formatting altered). In other words, it is not necessary for the State to prove that a defendant threatened the victim in order to obtain a conviction for disorderly conduct.

¶17     Furthermore, … the State’s case focused on Greer’s conduct as it applied to the elements of disorderly conduct, and not J.D.H.’s characterization of her actions as a threat. The prosecutor began his closing argument by describing Greer’s general conduct—yelling and screaming at J.D.H., swatting the phone out of his hand—stating that it was “violent” and “abusive” behavior, and that “she was boisterous … she was loud … she was disorderly.” In short, he tracked the language of the first element of disorderly conduct.

¶18     With regard to the second element, the prosecutor stated that being “violent and unreasonably loud at 9:00 at night in a residential area … is exactly the sort of thing that can cause a disturbance.” Again, this statement tracks the language of WIS JI—CRIMINAL 1900. In other words, the State relied on evidence of Greer’s conduct that supported its case with regard to the essential elements of disorderly conduct, and not on J.D.H.’s statements that he had construed Greer’s conduct as a threat. As a result, the true threat language of the jury instruction was not necessary.

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