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COURT OF APPEALS DECISION DATED AND FILED August 24, 2010 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL
from a judgment of the circuit court for
�1������� BRUNNER, J.[1] Kurt Schmidt appeals a judgment of conviction for disorderly conduct.� Schmidt argues the conviction is not supported by sufficient evidence.� He also asserts the admission of digital copies of voice recordings left on his ex-wife�s answering machine violated the best evidence rule.� We affirm.
BACKGROUND
����������� �2������� On May 1, 2009, Heather Landin, Schmidt�s ex-wife of approximately two months, went to the library with her daughters.� A few minutes after they returned home, Landin�s oldest daughter ran outside, shaking and visibly upset after listening to voice messages on the home answering machine.� Landin recognized Schmidt�s voice on the messages.
�3������� In the first message, Schmidt spoke angrily about how his rights had been violated.� He then spoke in a disconnected way about the state of the world, spirituality, God, and Landin�s choices, at one point saying, �But I can tell you, and I can tell you with very [sic] strength and assurance, you better beware, because the times are at hand now, okay.� They are.� And you have to question your own personal assurance and insurance.�� Landin testified the message frightened her, and her daughters became upset and had to leave the room.
�4������� In the second message, Schmidt spoke in a female voice, identified himself as �Linda Longstaff,� and then falsely told Landin her stepmother had died.� Schmidt blamed Landin, stating, �Her illness has finally taken over and the plan that you had to dispose of her has (inaudible).�� The third and final message was quickly cut off because the answering machine was full.� Together, the messages lasted approximately sixteen minutes.
�5������� The messages exacerbated Landin�s fear of her ex-husband.� Before receiving the messages, Landin had boarded her windows with plywood and installed bolt locks on all access doors to prevent Schmidt from entering the house.� The day Schmidt left the messages, the divorce property settlement was finalized, with Schmidt receiving less than he requested. �Landin subsequently called the police.
�6������� Deputy Michael Welch listened to the messages and captured them by holding a recorder close to the machine.� He then produced a copy by burning the recording onto a compact disc, which was subsequently admitted without objection at Schmidt�s trial for disorderly conduct.
DISCUSSION
�7������� Schmidt first argues the evidence presented at trial was
insufficient to convict him of disorderly conduct.� On appeal, we may not reverse a conviction
unless the evidence, viewed most favorably to the State and the conviction, is
so insufficient in probative value and force that it can be said as a matter of
law that no trier of fact, acting reasonably, could have found guilt beyond a
reasonable doubt.� State v. Poellinger, 153
�8������� The disorderly conduct statute criminalizes �violent,
abusive, indecent, profane, boisterous, unreasonably loud or otherwise
disorderly conduct under circumstances in which the conduct tends to cause or
provoke a disturbance �.�� Wis. Stat. � 947.01.� The statute �proscribes conduct in terms of
results which can reasonably be expected therefrom, rather than attempting to
enumerate the limitless number of antisocial acts which a person could engage
in that would menace, disrupt or destroy public order.�� State v. Zwicker, 41
�9������� Schmidt claims his conduct does not fall within the statute�s
ambit for three reasons.� First, he claims
the messages were not the type that cause or provoke a disturbance.� In State v. Schwebke, 2002 WI 55, �25,
253 Wis. 2d 1, 644 N.W.2d 666, a defendant who anonymously sent disturbing
mailings to several people raised a similar argument, which our supreme court
rejected.� The court concluded the
mailings �constituted conduct that not only caused disturbances to the lives of
the recipients, but � was of the type that would be disruptive to peace and
good order in the community.��
�10����� Schmidt next argues the evidence was insufficient because �the
messages never threatened to disrupt the peace, order, or safety of the
community.�� Conduct that causes a purely
private disturbance is nonetheless prohibited if there is some risk that the
disturbance will spill over into the public.�
�11����� Schmidt�s third and final sufficiency-of-the-evidence argument is that the messages would offend only a �hypercritical� individual described in Zwicker.� Schmidt paints a portrait of Landin as paranoid and unreasonable, but the facts established at trial do not support this characterization.� The obvious emotional turmoil of the divorce aside, there was no evidence Landin or her daughters were overly sensitive.� Regardless, a reasonable person of ordinary temperament could view the messages as abusive, disturbing, and�given their length and tone�ultimately threatening.
�12����� Schmidt also argues admission of the recorded answering machine
messages violated the best evidence rule, which requires the use of the
original recording.� See Wis. Stat. � 910.02.� To raise a challenge under the best evidence
rule, Schmidt must have preserved the issue for appeal.�
����������������������� By the Court.�Judgment affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.