State v. Anthony M. Cotton, 2003 WI App 154
For Cotton: Timothy T. Kay
¶19. Following the preliminary hearing and bindover, the State filed an information containing new charges pertaining to Cotton’s encounter with Paikowski-one count of battery or threat of battery to Paikowski and a further similar count regarding Paikowski’s family pursuant to Wis. Stat. § 940.201(2)(a) and (b). These charges require the State to prove beyond a reasonable doubt that (1) the defendant caused or threatened to cause bodily harm to the victim or victim’s family, (2) the victim was likely to testify as a witness (whether or not any proceedings had been commenced at the time of the alleged offense), (3) the defendant knew or had reason to know that the victim was a witness, (4) the defendant caused or threatened to cause bodily harm to the victim or victim’s family because the person was likely to testify as a witness, (5) the defendant caused or threatened bodily harm without the consent of the victim, and (6) the defendant acted intentionally. Wis JI-Criminal 1239 & cmt. Cotton challenged the charges as not supported by evidence at the preliminary hearing.
The decision goes on to hold that charges involving battery and threats to a witness can’t be supported absent proof that the defendant knew the alleged victim was likely to be a witness. ¶¶22-23.