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Disorderly Conduct, § 947.01 – Sufficiency of Evidence; Resisting, § 946.41(1) – Jury Instructions

State v. Robert Lyle Lawver, Jr., 2010AP382-CR, District 4, 5/5/11

court of appeals decision (1-judge, not for publication); for Lawver: Cole Daniel Ruby; case activity

Conviction for disorderly conduct upheld on following facts:

¶9        The pertinent facts include the following.  Lawver was walking at night down an unlit highway, traveling with traffic, so that he would not have been in a position to see motorists approaching from behind him.  An officer witnessed Lawver stumble into the highway “approximately four feet beyond the white fog line,” which put him in “the middle of the southbound lane of traffic.”  This was a “well traveled” stretch of “main road,” motorists were traveling on the highway that night, and Lawver would have been in the path of such a vehicle if one had been passing at that moment.  Lawver displayed obvious indications of intoxication, such as smelling of alcohol and swaying back and forth.

¶11      These events, Lawver contends, do not constitute “otherwise disorderly conduct” as a matter of law. … This argument is not persuasive.  The fact that Lawver’s behavior was unsafe and, in particular, unsafe to members of the traveling public shows that he did substantially intrude on public order by dangerously interfering with the road’s use.

The decision acknowledges, but doesn’t address, a potentially recurrent problem when the jury is instructed on multiple alternative theories of guilt, at least one of which is “flawed,” ¶7, citing  State v. Crowley, 143 Wis. 2d 324, 329, 422 N.W.2d 847 (1988). That case holds: “We conclude that, when alternative methods of proof resting upon different evidentiary facts are presented to the jury, it is necessary, in order to sustain a conviction, for an appellate court to conclude that the evidence was sufficient to convict beyond a reasonable doubt upon both of the alternative modes of proof.” Lawver thus argues here that the conviction must be overturned because one of the alternative theories of guilt, “otherwise disorderly conduct,” wasn’t supported by sufficient evidence. The court assumed “for argument’s sake” that Crowley applies, but as just seen held that the theory was indeed proven. At first blush, it is odd that the court of appeals merely assumes “for argument’s sake” that it should apply a clear pronouncement from the supreme court. But there is certainly cause for concern as to Crowley‘s continued viability, even if the court of appeals had no need to spell it out. The matter is too detailed for discussion here, except to say that Crowley relied on a line of authority that was essentially overruled in Hedgpeth v. Pulido, 129 S.Ct. 530 (2008), as further explained in Skilling v. U.S., 130 S. Ct. 2896 (2010); also see, United States v. Black, 625 F.3d 386, 388 (7th Cir. 2010).

At most, though, this more recent authority says that this sort of error isn’t “structural” (automatically reversible error) but, rather, is reviewable for harmlessness, case by case. The tension, in other words, would be at most in the application of harmless error analysis, not the fact of error. Whether our supreme court would perceive tension even at a level of generality; or, if so, whether it would also perceive tension in the more refined context of a legally valid but factually unproven alternative theory of guilt; or, if so, whether it would resolve any perceived tension in some predictable modification of the Crowley rule – these are matters that oughtn’t be assumed. Put it like this: the court of appeals’ facile assumption that a line of Wisconsin authority had been overruled so that the court could simply wave it aside without further guidance, State v. Forbush, 2010 WI App 11, recently came to grief, 2011 WI 25.  

Lawver’s theory that, because the police used excessive force and therefore weren’t acting “with lawful authority,” wasn’t supported factually and he therefore wasn’t entitled to an “excessive-force” instruction, ¶¶17-22.

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