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Evidence sufficient; judge’s ex parte communication harmless

State v. Jeffrey S. Decker, 2015AP1997-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity

Jeffrey Decker had been banned from the UW-Oshkosh, and was arrested when he arrived at a grand opening event. The arrest was not without incident and he was charged with obstructing an officer and convicted after a jury trial.

On appeal, Decker argues that the state adduced insufficient evidence of the four elements of obstructing: “(1) that the defendant obstructed an officer, (2) that the officer was acting in an official capacity, (3) that the officer was acting with lawful authority, (4) and that the defendant knew that the officer was acting in an official capacity and with lawful authority and that the defendant knew that his conduct would obstruct the officer. See WIS. STAT. [§] 946.41(1); WIS. JI–CRIMINAL 1766.” (¶7). The court of appeals concludes otherwise, noting the very deferential standard of review and reciting the facts going to each element in a discussion that does not bear repeating here. (¶¶6-11).

The court also rejects Decker’s argument that he was denied the right to present a defense (his precise arguments are unknown because his brief is not online):

Contrary to Decker’s contention, he was not denied his right to present a defense. The trial court’s directions to Decker during his testimony not to argue but to testify as to facts were proper. See generally State v. Eugenio, 210 Wis. 2d 347, 358, 565 N.W.2d 798 (Ct. App. 1997), aff’d, 219 Wis. 2d 391, 579 N.W.2d 642 (1998). The trial court did not abuse its discretion in ruling that evidence regarding prior orders excluding Decker from campus was irrelevant. See State v. Pharr, 115 Wis. 2d 334, 344-45, 340 N.W.2d 498 (1983). Nor did the trial court abuse its discretion in terminating Decker’s closing argument. SeeState v. Lenarchick, 74 Wis. 2d 425, 457, 247 N.W.2d 80 (1976).


Decker finally argues that his conviction should be reversed in the interest of justice. His complaint is that he subpoenaed a newspaper photographer who was present at his arrest, but the judge quashed the subpoena after a telephone call with the paper’s editor, who told him there were no photos of the arrest. (¶13). The court of appeals allows that the judge violated SCR 60.04(1)(g)1, which “prohibits a judge from initiating, permitting, engaging in or considering ex parte communications concerning a pending or impending action or proceeding except in certain limited circumstances ‘that do not deal with substantive matters or issues on the merits.’” (¶15). The court finds the error harmless beyond a reasonable doubt, however:

Assuming the photographer had witnessed the encounter between Decker and LeMire, the only elements the photographer’s testimony could have shed light on were whether Decker obstructed the officers and whether they were acting in an official capacity. But, Decker had no defense to these elements. There were multiple instances of Decker obstructing the officers, including after his initial encounter with LeMire. For example, while the officers were pulling Decker to the doorway, he fell to the floor and locked his arms and legs onto a table. Decker did not dispute that this occurred, and this alone was sufficient to prove that he obstructed the officers. Further, there could be no dispute that these officers were acting in their official capacity, as they were in full uniform and Decker knew them from his prior interactions with them.


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