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History of domestic violence supported increase of probationary period under § 973.09(2)(a)1.b.

State v. Millard Reno Bandy, Sr., 2014AP1055-CR & 2014AP1056-CR, District 1, 10/28/14 (1-judge decision; ineligible for publication); case activity: 2014AP1055-CR; 2014AP1056-CR

A defendant’s history of domestic violence against a victim provided a basis for trial court to increase the period of probation under § 973.09(2)(a)1.b. even though the offenses for which the defendant was placed on probation didn’t involve physical harm or a direct threat to the victim.

L.S. obtained domestic abuse restraining orders against Bandy, which he violated first by going to her home (and running away when spotted) and then by sending her multiple text messages. Bandy didn’t physically harm or explicitly threaten L.S. at her home or in any of his text messages. (¶¶2-6). Bandy was convicted of violating the orders and placed on probation, and the circuit court increased the period of period by one year under § 973.09(2)(a)1.b. after concluding Bandy’s conduct constituted acts of domestic abuse under § 968.075(1)(a). In particular, the court relied on subds. 1. and 4. of that statute, which together cover any “physical act that may cause the other person reasonably to fear imminent engagement in” the “[i]ntentional infliction of physical pain, physical injury or illness.” (¶¶7-10, 12-13).

Based on the totality of the circumstances, State v. Edwards, 2013 WI App 51, ¶12, 347 Wis. 2d 526, 830 N.W.2d 109, the court of appeals affirms the application of § 973.09(2)(a)1.b. despite the lack of any physical harm or explicit threat of imminent harm to L.S. when he was at her home:

¶19      …[The statute] does not require that the physical act be a threat or an injury. The act, whatever it is, must be one that: (1) may cause another person; (2) to reasonably fear; (3) imminent physical pain or injury. In other words, we look at more than Bandy’s actions on October 10, 2012. We look to the effect of those actions on L.S. in light of all the circumstances, including Bandy’s immediate past acts of domestic violence against L.S., his flagrant disregard of the TRO and his criminal history. Under the totality of those circumstances, we must ask whether Bandy’s acts on October 10 were such that they may have caused L.S. to reasonably fear imminent physical pain or injury.

¶20      In context, Bandy’s physical act of being present in L.S.’s home is not benign, even though he left the home when she found him there….

¶21      L.S. had just been to court the day before because, as she stated in her petition [for the restraining order], she feared imminent physical harm from Bandy. She detailed his domestic abuse of her, claiming Bandy beat her, knocked out her teeth, made her jump off the top porch, punched her with his fist, kicked her down the stairs and caused her to go to the hospital because of his beatings.

¶22      Seeing Bandy in her home the very next day, L.S. may have reasonably feared imminent physical harm from Bandy. His quick violation of the no-contact order may well have reasonably caused her to fear that she was not safe in her home and that imminent physical abuse was coming. Although Bandy left the home without hurting L.S. that time, his flagrant violation may reasonably have caused L.S. to fear that he had no respect for the TRO and that she was in the same or worse peril than she was the day previous.

So too with the text messages:

¶31      … [W]hile he did not explicitly say he would harm her, Bandy’s texts were cajoling (“Please give me a chance 2 make it do what is good 4 both us”), defiant (“Come home then & prove it”) and menacing (“Why don’t u get ova your madness & face reality I aint going no where”). The texts demonstrated a disregard for the court’s orders and indicated that he was not going to leave L.S. alone. Given Bandy’s history of violence against L.S., the texts reasonably may have caused her to fear more imminent physical harm….

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