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COA holds state adduced new evidence and satisfied burden at second prelim

State v. Carlos Aguilar, 2022AP1826, 10/5/2023, District 4 (not recommended for publication); case activity (including briefs)

The state charged Aguilar with false imprisonment, which is a felony, and several misdemeanors relating to a domestic incident. At the original prelim, the circuit court dismissed the felony charge as not supported by probable cause. The state refiled and a second prelim was held, at which the state presented some additional testimony and some body cam footage. The circuit court again held there was not probable cause for the false imprisonment count, and again dismissed it. The state appealed. The court of appeals now reverses, rejecting Aguilar’s argument that the refiling should not have been allowed, and holding that the state showed probable cause at the second prelim; it thus remands for the case to proceed.

When a circuit court dismisses a charge after preliminary hearing for a lack of probable cause, the state can refile only “if the district attorney has or discovers additional evidence.” Wis. Stat. § 970.04. At the first prelim, the state put on the testimony of the responding officer, who testified about the accounts he’d received from Aguilar, A.B. (the alleged victim), and C.D., who was living with Aguilar and A.B. at the time. At the second hearing, the state put on the same officer, and also played portions of recordings from his body camera. At this second proceeding the officer averred that on review of the recordings, he had erred in his earlier testimony when he said Aguilar had physically restrained A.B. because she was drunk and he wanted to keep her from driving. (¶14).

Aguilar contends that the new material at the second prelim was not “additional evidence” because it was merely cumulative. See Wittke v. State ex rel. Smith, 80 Wis. 2d 332, 344, 259 N.W.2d 515 (1977). The court of appeals disagrees, and lists ways in which the evidence at the second prelim differed from that at the first. (¶¶26-28).

Though it calls this new evidence “context,” puzzlingly, it doesn’t explain how any of it relates to any element of false imprisonment, which would seem to be crucial to deciding whether the evidence was cumulative. It seems likely the court thinks the fact that Aguilar did not mention any fear that A.B. would drive drunk bears on whether he could have thought he had “lawful authority” to detain her. See Wis. Stat. § 940.30. But the opinion doesn’t say.

The court then turns to whether the evidence at the second prelim supported a finding of probable cause. Two elements are in play: the requirement that the actor “confine” or “restrain” a person, and the actor know he or she lacks lawful authority to do so.

As to the first, the court rejects Aguilar’s argument that the element is satisfied only where the actor limits the alleged victim’s movement within a particular bounded area. On this point the court discusses State v. Burroughs, 2002 WI App 18, ¶19, 250
Wis. 2d 180, 640 N.W.2d 190, and Herbst v. Wuennenberg, 83 Wis. 2d 768, 774, 266 N.W.2d 391 (1978), and relies chiefly on the different shades of meaning of the words “confine” and “restrain.” (¶¶39-54). As to the second element, the court holds that Aguilar’s explanation that the car A.B. had entered was his, and not hers, did not negate the possibility that he knew he lacked the authority to violently drag her out of it. (¶¶55-58).

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