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Defense win! State’s evidence of knowing violation of TRO insufficient

State v. Thomas Louis Giegler, 2021AP952-CR, 11/2/21, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

Unbelievable. A jury convicted Geigler of knowing violation of a TRO. The court of appeals now reverses the conviction because the State’s evidence was insufficient to prove guilt beyond a reasonable doubt. It remands the case with instructions for the circuit court to enter a judgment of acquittal on that charge.

To convict Giegler under §813.12(8)(a), the State had to prove three elements beyond a reasonable doubt: (1) a TRO was issued against him; (2) he committed an act that violated the terms of the TRO; and (3) he knew that the temporary restraining order had been issued and knew that his acts violated its terms. See WIS JI— CRIMINAL 2040.

On appeal, the parties disputed only the third element, and the court of appeals held that the State failed to prove Giegler knew about the TRO when he violated it:

¶14 . . . The jury was instructed that “[k]nowledge must be found, if found at all, from the defendant’s acts, words, and statements, if any, and from all the facts and circumstances in this case bearing upon knowledge.” WIS JI—CRIMINAL 2040. Here, the record does not reflect that there was direct or circumstantial evidence that Giegler knew about the TRO. As Giegler argues, the State did not move to admit into evidence an affidavit of proof of service of the TRO against Giegler. Further, the State did not produce the officer who served the TRO on Giegler or even the dispatch officer who informed Officers Mussati and Maxwell about the TRO.

¶15 The only evidence the State produced to prove that Giegler knew that his conduct was restrained by the TRO consisted of hearsay that the police officers were informed that Giegler had been served. There were two exhibits offered at trial; neither showed that service was accomplished. At best, the jury may have speculated that Giegler knew about the restraining order; however, speculation is not enough. See W.T.D., 144 Wis. 2d at 636. Even viewing the facts and reasonable inferences of those facts in the light most favorable to the jury’s verdict, the State did not offer sufficient credible evidence to allow the jury to find beyond a reasonable doubt that Giegler knew his conduct was restrained by the TRO. See Poellinger, 153 Wis. 2d at 501. Therefore, we conclude that the State failed to prove the third element of count one, knowingly violating the TRO

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