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Violation of no-contact bail condition didn’t require proof defendant directly communicated with subject of no-contact order

State v. Bobbie Tanta Bowen, 2015 WI App 12; case activity

Bowen was found guilty of bail jumping for violating the provision of his bail that he have no contact with F.B., the victim of an earlier battery charge, or F.B.’s residence. The court of appeals holds that the trial evidence—which showed Bowen went into F.B.’s residence but had no direct contact with F.B. while he was inside—was sufficient to support the verdict because the bond condition “that [Bowen] not have contact with F.B.” did not require proof that Bowen directly communicated with F.B.

Arguing that sufficiency of the evidence claims must be assessed based on the jury instructions , Bowen claims that the instruction telling the jury to determine whether the evidence showed Bowen “had contact with [F.B.]” required the state to prove Bowen had “face-to-face physical proximity” with F.B. or made an “attempt to communicate” with her. Thus, F.B.’s testimony that she heard breaking glass and someone moving around the house was insufficient to show that Bowen made “contact with [F.B.]” and therefore wasn’t enough to convict him of bail jumping as that crime was explained to the jury.

The court of appeals holds that “contact” isn’t limited to face-to-face physical proximity. Because Bowen’s challenge is to the meaning of “contact” in the jury instruction and neither the jury instruction nor the bail jumping statute defines the word “contact,” the court concludes that “defining the meaning of a word in a jury instruction is akin to defining the meaning of a word in a statute. As such, determining the meaning of the word in a jury instruction is a legal question that we review de novo.” (¶20, relying on State v. Harmon, 2006 WI App 214, 8, 296 Wis. 2d 861, 723 N.W.2d 732). Since the word “contact” isn’t defined in the statutes or jury instruction, the court gives the word its common and ordinary definition, which, as demonstrated by reference to a dictionary, can include the kind of auditory or indirect kind of contact F.B. testified to. (¶¶20-21). And those broader definitions of the word are consistent with the purpose of no-contact orders. (¶24).

Further, the jury heard testimony from a police officer that the no-contact condition of Bowen’s bond included the requirement that Bowen have no contact with F.B.’s residence, and that the no-contact order was meant to sweep broadly:

¶23      The terms of Bowen’s August 16 bond order required him to comply with the August 12 no-contact order. The jury’s task was to determine whether Bowen had “contact with F.B.” …. The no-contact order broadly defines “contact” to include contact with F.B personally, at her home, or anywhere else, and expressly restricts contact by telephone, mail, pager, fax, computer, or even through another person. None of those forms of contact require any face-to-face connection. Clearly, the no-contact order itself shows that the common meaning of “contact” encompasses connections that are indirect and not face-to-face. This testimony was available for the jury to use as a basis for drawing the reasonable inference that “contact with F.B.” in the jury instructions included hearing Bowen in her house….

The court rejects Bowen’s citation to § 813.12(1)(cj), which defines “regular and direct contact” for purposes of domestic abuse injunctions, because Bowen’s bail condition wasn’t premised on that statute. (¶26). It also rejects Bowen’s reliance on State v. Schaab, 2000 WI App 204, ¶15 n.4, 238 Wis. 2d 598, 617 N.W.2d 872, which addressed a bail condition allowing “incidental contact at work” with a particular person, but focused on whether the contact in the case was “at work,” not on the meaning of “contact.” (¶¶27-29).

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