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COURT OF APPEALS DECISION DATED AND RELEASED JUNE
7, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0027-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
SYLVESTER
M. HAMILTON,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Kenosha County: MICHAEL S. FISHER,
Judge. Affirmed.
BROWN,
J. This
is Sylvester M. Hamilton's appeal of a disorderly conduct conviction and two
convictions for bail jumping. Hamilton
had been released on bail for a bad check charge at the time of the disorderly
conduct arrest, and bail had been conditioned on his keeping out of further
trouble. Hence, the bail jumping
charges.
Hamilton
alleges that a domestic dispute he had with his girlfriend was not the type of
conduct which could be construed as tending to create a disturbance. He also argues that since prosecution for
bail jumping has, as a condition precedent, his knowing violation of his bond,
and since he did not know that his conduct was disorderly, the bail jumping
convictions must be reversed. Because
the jury had adequate facts to infer that Hamilton's conduct tended to disrupt
good order and because the record shows that Hamilton himself knew at the time
of the domestic dispute that his conduct might be grounds for arrest, this
court affirms.
A
brief sketch of the facts is set forth here with a more detailed narration
later. As we indicated at the outset,
the disorderly conduct arrest of Hamilton happened after he had been released
on bail for a pending charge of issuing worthless checks. His bail was conditioned on his not
committing any crime or engaging in any criminal activity during the pendency
of the worthless check case. At about
8:00 p.m. on the evening in question, Hamilton went to a trailer park where his
girlfriend was living with their two‑year-old son. The girlfriend was pondering whether to
continue their relationship. Hamilton
left with the understanding that his girlfriend wanted to further consider it
and would give Hamilton her decision when he returned.
When
Hamilton returned at about 2:00 a.m., he saw that his girlfriend was packed to
leave. The girlfriend informed him that
she wanted to end the relationship and return to her former husband. Hamilton became upset with her decision and
began arguing with her. The argument
became physical, but was mainly confined to the trailer until the girlfriend
woke the child and started moving boxes of her possessions towards the
door. Hamilton threw the boxes outside
and was yelling and screaming. Two
neighbors heard Hamilton. One testified
that she remembered a male voice repeatedly saying, “You're not going
anywhere.” Hamilton's yelling and
screaming went on for at least twenty minutes before the police were called. After the police were called, violent, loud
and abusive behavior was heard and observed for fifteen more minutes until the
police arrived. A jury convicted
Hamilton of disorderly conduct and two bail jumping counts.
Hamilton
initially claims that the State failed to prove beyond a reasonable doubt that
his conduct tended to cause or provoke a disturbance. He argues that this was simply a domestic dispute, which conduct
was not enough to “offend the normal sensibilities of average persons.” See State v. Givens, 28
Wis.2d 109, 122, 135 N.W.2d 780, 787 (1965).
He acknowledges that two neighbors heard shouting and one neighbor was
even awakened by it, but claims that this should not be considered out of the
ordinary in the close confines of a trailer park. Hamilton contends that neither neighbor found the noise disturbing
enough to call the police or even complain to Hamilton.
Hamilton
contrasts the facts in this case with published decisions where disorderly
conduct was found for refusing an order to leave a restricted site at an
airplane crash,[1] where a
juvenile brought a gun to school and disrupted a class[2]
and where a man made loud and abusive comments to a woman in a restaurant and
then taunted persons to fight when they asked him to apologize.[3] Hamilton asserts that those cases centered
on disturbances to members of the public.
He contends that this elemental fact is missing in his case.
Hamilton
likens his situation to State v. Becker, 51 Wis.2d 659, 662, 188
N.W.2d 449, 452 (1971), where a bystander yelled “very loudly” at officers who
were arresting a shoplifter. The
supreme court wrote that while the bystander's violent conduct was enough to
uphold a disorderly conduct conviction, his having yelled “very loudly” to
police would not have been enough because there was no testimony about the
offensiveness of his yelling. Hamilton
asserts that, here too, the neighbors did not seem offended by Hamilton's
yelling and therefore no disturbance of the public took place.
We
do not agree. As explained in Wis J I—Criminal 1900, the principle upon which this offense is based
is that in an organized society, one should so conduct himself or herself as to
not unreasonably offend the senses or sensibilities of others in the
community. We view the word
“unreasonable” as the operative idea.
It is the jury's responsibility to weigh whether the conduct is
“unreasonable.”
The
facts, taken in a light most favorable to the jury's verdict, paint a different
picture than that described by Hamilton.
Meghan McGillis testified that she was sleeping over at a Jeanna Manna's
trailer, which was about two or three trailers down from the one in which
Hamilton's girlfriend was residing. She
testified that Hamilton's yelling and swearing woke her up. Not only did she hear yelling and screaming,
she also heard doors slamming. This
went on for twenty minutes. At this
point, the girlfriend came to the trailer in which McGillis was staying.
Manna
testified that Hamilton had followed the girlfriend to her trailer and was
standing right behind her when the girlfriend asked Manna if she could use the
telephone to call the police. Manna
invited the girlfriend in and shut the door on Hamilton, who was giving Manna
mean looks. Manna recalled that she
felt secure because her dog was guarding the entranceway.
After
the telephone call, the girlfriend left and McGillis went outside to watch
because she was concerned. There was
more yelling by Hamilton. The
girlfriend just wanted to get her things and leave. Hamilton kept repeating that she was not going anywhere and that
if she did leave, she was in big trouble.
McGillis observed Hamilton grab the girlfriend and push her. Another time, McGillis observed Hamilton
grab the girlfriend's arm while the baby was in her arms. The baby was crying. The girlfriend testified that while outside,
Hamilton was holding the baby and when the girlfriend attempted to retrieve the
baby, Hamilton swung his arm out, hitting her in the cheek.
Of
significance, McGillis asked Manna to call the police after observing
Hamilton's continuing behavior. Fifteen
minutes of yelling passed between the time of the telephone call and the
arrival of the police. McGillis
reported that she herself was scared because she thought Hamilton
was really going to do something and that is why she stayed until the police
came. Thus, the jury could infer the
following. The yelling and swearing
went on for twenty minutes before a call was made to the police and for fifteen
more minutes after Hamilton knew the police were coming. Hamilton could have ended the altercation
simply by letting the girlfriend leave but, in fact, he prevented the
girlfriend from getting her possessions.
Contrary to Hamilton's view of the evidence, McGillis was scared enough
about what was going to happen that she asked Manna to call the police. And she came outside to observe Hamilton
because of this concern. This shows
that McGillis and Manna were concerned about the offensiveness of Hamilton's
behavior, far more so than the passive interest Hamilton tries to impress upon
us.
Another
facet of this case downplayed by Hamilton is the violent behavior on his
part. According to McGillis, he pushed
the girlfriend and grabbed her. He hit
the girlfriend's chin on another occasion.
But what the jury could really determine to be unreasonable was that his
violent behavior could have harmed the child.
He grabbed the girlfriend's arm while she was holding the baby. He pushed the girlfriend away while he was
holding the baby. Surely, the jury
could conclude that this conduct was an outrage to the sense of public decency.
Certainly, McGillis and Manna were
concerned enough to stay with the situation until the police arrived. And Manna was scared enough when Hamilton
followed the girlfriend to her doorstep to shut the door on him. To depict this whole situation as a mere private
domestic dispute that was of no particular concern to the neighboring public is
a cosmetic view of the facts. We
conclude that the jury could find plenty of evidence of conduct which was
offensive to public sensibilities. We
will not disturb the verdict.
Hamilton's
claim that he did not know his conduct was disorderly and therefore cannot be
found to have violated the conditions of his bail also fails. Hamilton himself was concerned that his
actions would get him into trouble. He
testified that he wanted to call the police so that they would know he was not
being abusive toward his girlfriend. He
was calling them for his own “protection.”
When a person pushes his girlfriend, yells, slams doors and swears for
twenty minutes and then yells and swears for fifteen minutes after police are
called, knows that he can end the situation at any time by letting the
girlfriend leave, refuses to allow her to retrieve her possessions, endangers
the safety of a baby and has two people concerned enough that they are drawn
into the conflict, that person has sufficiently definite warning as to the
proscribed conduct when measured by common understanding and practices. See United States v. Petrillo,
332 U.S. 1, 8 (1947); State v. Tronca, 84 Wis.2d 68, 86, 267
N.W.2d 216, 224 (1978). We reject
Hamilton's argument.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See Rule 809.23(1)(b)4, Stats.