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True threat instruction wasn’t needed at this disorderly conduct jury trial

State v. Joseph K. Edwards, 2019AP2138-CR, District 1, 7/21/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Edwards was charged with disorderly conduct with use of a dangerous weapon for “creepy, stalker-like behavior.” (¶6). The court of appeals rejects his complaint that the jury wasn’t instructed on the definition of “true threat” under State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762.

Leaving aside the problem that any error is waived because Edwards’s trial lawyer didn’t ask for the jury to be instructed on “true threat” (¶¶9-10), the court holds it wasn’t necessary to define that legal term of art for the jury because the state’s theory of the case was that Edwards was guilty for engaging in “otherwise disorderly conduct,” not, specifically, threatening behavior, which was an element of the offense in Perkins:

¶14     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 [Wis. J.I.—Criminal 1900] (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.

¶15     Furthermore, we agree with the trial court’s assessment that the State’s case focused on Edwards’s “creepy” conduct as it applied to the elements of disorderly conduct. The victim testified that Edwards was parked outside of her home, told her he knew her foster son, followed her back to her home, told her he was watching her and knew she was not married, banged on her door when she retreated to her home, followed her to her neighbor’s home, and was carrying a machete. In short, the State described the “otherwise disorderly conduct” addressed in the first element of the disorderly conduct jury instruction.

This reasoning is flawed because of the non sequitur in ¶14. The jury instruction doesn’t say to give the “true threat” language only when a threat is an element of the offense; if that were the case, the “true threat” language would never be appropriate in DC cases because a threat is never an element of a DC charge (and the Jury Instruction Committee presumably wouldn’t have gone to the trouble of addressing “true threats” in J.I.—Criminal 1900). What the jury instruction says (as ¶14 accurately quotes) is that the true threat language should be given “where the state’s case relies on statements or conduct that may constitute a threat….” And it sure seems like Edwards’s statements and conduct were threatening, and not just creepy, especially given that machete.

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