State v. Michael Lee Brayson, 2016AP896-CR, District 1, 11/29/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Brayson’s girlfriend, L.A.R., is a long-haul trucker. When she goes out on the road he accompanies her and stays with her in the truck, though both maintained separate addresses in Mississippi. (¶¶3-6). Under these facts, Brayson’s convictions for battery of L.A.R. at a Wisconsin travel center were subject to the domestic abuse surcharges and modifiers under §§ 968.075(1)(a)(intro.) and 973.055(1)(a)2. because Brayson and L.A.R. “reside[d]” together in the truck.
Because the statutes in question don’t define “reside” or “residence,” the court relies on ordinary dictionary definitions to decide the case:
¶15 We agree with the circuit court that the facts of this case establish that the parties resided together for the purposes of assessing the relevant statutes. Both Black’s Law Dictionary and the more common Webster’s Third New International Dictionary of the English Language provide sufficient guidance. See State v. Woods, 117 Wis. 2d 701, 735, 345 N.W.2d 457 (1984) (“The common and approved usage of a word in a statute may be ascertained by reference to a recognized dictionary.”). According to Webster’s Third New International Dictionary of the English Language (unabr. 1993), the term “reside” means “to dwell permanently or continuously,” “have a settled abode for a time,” or “have one’s residence or domicile.” During the plea colloquy, Brayson acknowledged that the facts contained in the complaint were true and correct, the parties agreed that the complaint would constitute the factual basis for the pleas, and the court stated that it would rely upon the facts in the complaint. The complaint indicates that Brayson “lived with” L.A.R. while she was on the road. During the court’s colloquy with the parties, the court established that while the parties maintained separate residences in Mississippi, they both lived in the truck that L.A.R. drove for most of the year. Indeed, the truck was equipped with a sleeping area and acted as the parties’ residence while L.A.R. was on the job. The court also established that Brayson bought the truck. In his statement to the court, Brayson even referred to L.A.R. as his fiancé. It is sufficient that L.A.R. used the truck as her residence during her periods of work and that Brayson resided with her during those periods. Neither the statutes nor the dictionary definitions require parties to maintain one residence for any particular period of time or even to remain in one place continuously. ….
A few points:
1. Because the defendant pleaded to two counts of Battery, there was not the problem faced in other cases wherein the crime(s) of conviction, such as DC, did fall within the litany of DV-surcharge cases in 973.055(1)(a)1. that are eligible for the DV surcharge, but nonetheless the conduct itself did not necessarily meet the criteria for domestic abuse set forth in 968.075(1)(a).
Not all DCs meet 968.075(1)(a), e.g., if the person is just swearing but not doing anything physical like a Battery, attempted Battery etc.. See State v. O’Boyle, No. 2013AP1004-CR, unpublished slip op. (WI App Feb. 4, 2014).
The Court of Appeals here appears to adopt the O’Boyle test: namely, that the conduct must not just be on the 973.055 list, but also meet the criteria for 968.075(1)(a). See ¶10: “Whether an offense qualifies as “domestic abuse” within the meaning of WIS. STAT. § 968.075(1)(a) is a mixed question of fact and law.” Again, not surprising that this issue was not expressly decided here, because Battery by definition is on the 973.055 list and also exactly matches the first criterion of 968.075(1)(a), namely sub 1. “Intentional infliction of physical pain, physical injury or illness.”
2. The State argued, though the defense had not, that “the court is not required to inform a defendant of the potential imposition of the surcharge at the time of the defendant’s plea to the underlying crime.” Given the recent certification sought in the DNA surcharges case (Odom), the defense should argue this point, especially because 2 DV surcharges trigger the DV repeater. The next time Mr. Brayson catches a DV charge, even “just a DC,” it can be a felony and he can get 2 additional years prison.
Even the State acknowledged negative persuasive authority in a footnote: State v. Kennedy, No. 2015AP475-CR, ¶ 8, unpublished slip op. (WI App. Sept. 29, 2015) (the notation of Wis. Stat. §968.075 requires the court to inform the defendant at the time of the plea that the offense pled to may subject the defendant to the domestic abuse assessment).