State v. Glenn F. Schwebke
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2002 WI 55 SUPREME COURT CASE NO.: OF WISCONSIN 99-3204-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Glenn F. Schwebke, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS 2001 WI App 99 Reported at: 242 Wis. 2d 585, 627 N.W.2d 213 (Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 8, 2001 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Fond du Lac Dale L. English JUSTICES: CONCURRED: DISSENTED: May 29, 2002 ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY, J., joins dissent. NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Keith A. Findley and the Frank J. Remington Center, Madison, and oral argument by Keith A. Findley. For the plaintiff-respondent that cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. 2002 WI 55 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-3204-CR (L.C. No. 97 CM 457) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, MAY 29, 2002 v. Glenn F. Schwebke, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 WILLIAM A. BABLITCH, J. Petitioner Affirmed. Glenn Schwebke (Schwebke) was convicted by a jury on six counts of disorderly conduct for sending anonymous mail on six different occasions to three different individuals. these convictions. Schwebke The court of now seeks a appeals reversal affirmed of that decision based on the assertion that, as a matter of law, the disorderly conduct statute cannot apply to his conduct. He argues that the statute was not intended to apply and should not apply to such private mailings because they are harassing in nature and cause the recipients mere personal discomfort. disagree. The disorderly conduct statute may apply to We the No. mailings at issue sufficient to in this convict case. the Further, defendant 99-3204-CR the all on evidence six was counts. Accordingly, we affirm the court of appeals' decision. I ¶2 Schwebke was initially charged with 14 counts of disorderly conduct in Fond du Lac County Circuit Court arising from mailings and telephone calls directed at four individuals. The mailings were sent anonymously by Schwebke and contained items such letters. as newspaper clippings, records, and stenciled Schwebke moved to dismiss the complaint, alleging in part that, as to all counts, the complaint failed to allege facts sufficient to establish that Schwebke committed the crimes alleged. In this respect, Schwebke contended that sending "non- threatening, letters, non-abusive and records and non-disturbing" through the mail news not did clippings, constitute disorderly conduct because it was not the type of substantial intrusion that the disorderly conduct statute was intended to proscribe. person of He argued that the receipt of such materials by a average sensibilities would not tend to cause a disturbance. ¶3 The circuit court, the Honorable Dale L. English presiding, issued an order granting Schwebke's motion to dismiss in part and denying it in part. because it was charged in It dismissed one of the counts violation of the statute of limitations and dismissed five other counts because the criminal complaint did not establish that Schwebke committed the behavior alleged in the counts. With 2 respect to the remaining No. allegations, the court held that the complaint 99-3204-CR contained sufficient information to support probable cause and that venue was properly established in Fond du Lac County. ¶4 order. Schwebke filed a petition for leave to appeal this The court of appeals denied the petition, concluding that a grant of leave to appeal would not materially advance the termination of the litigation and was not necessary to protect Schwebke from substantial or irreparable harm. The court of appeals also held that Schwebke's case did not present any novel issues of general importance to the administration of justice. Two other counts were later severed by the circuit court. counts related to a victim separate from the three These victims involved in the remaining counts. ¶5 of The amended complaint charged Schwebke with six counts disorderly conduct for mailing envelopes with "disturbing contents" on six different occasions to three different people.1 1 The November 18, 1998 third amended Schwebke alleged the following counts: complaint against COUNT #1: [The defendant did] engage in otherwise disorderly conduct under circumstances in which the conduct tends to cause a disturbance, to-wit: did mail an envelope with disturbing contents to Thomas Lamke; COUNT #2: FURTHER, the defendant did on or about 5-796 in the City and County of Fond du Lac, engage in otherwise disorderly conduct under circumstances in which the conduct tends to cause a disturbance, towit: did mail an envelope with disturbing contents to Robbie Twohig; COUNT #3: FURTHER, the defendant did on or about 927-96 in the City and County of Fond du Lac, engage in 3 No. 99-3204-CR Four counts related to mailings sent to Robbie Twohig. One related to a mailing sent to Patty Marcinko, who was Twohig's sister. Twohig's The former stipulation envelopes final count boyfriend. to admitting these that related Before he had individuals. to Thomas trial, Schwebke compiled The Lamke, three and who was signed mailed a the victims Twohig, Marcinko, and Lamke testified on behalf of the State at trial. Schwebke neither testified nor presented any witnesses. The trial revealed the following facts concerning the three victims. otherwise disorderly conduct under circumstances in which the conduct tends to cause a disturbance, towit: did mail an envelope with disturbing contents to Robbie Twohig; COUNT #4: FURTHER, the defendant did on or about 27th of January 1997 in the City and County of Fond du Lac, engage in otherwise disorderly conduct under circumstances in which the conduct tends to cause a disturbance, to-wit: did mail an envelope with disturbing contents to Robbie Twohig; COUNT #5: FURTHER, the defendant did on or about 2-1297 in the City and County of Fond du Lac, engage in otherwise disorderly conduct under circumstances in which the conduct tends to cause a disturbance, towit: did mail an envelope with disturbing contents to Robbie Twohig; COUNT #6: FURTHER, the defendant did on or about 2-1997 in the City and County of Fond du Lac, engage in otherwise disorderly conduct under circumstances in which the conduct tends to cause a disturbance, towit: did mail an envelope with disturbing contents to Patti Marcinko; . . . . 4 No. A. 99-3204-CR Twohig ¶6 In May 1996, Twohig received two manila envelopes in the mail. She received one at her home and the other at her place of work. mailing Neither envelope had a return address. addresses on both envelopes were envelopes bore 30th birthday greetings. May 9. The stenciled. Both Twohig's birthday is Both envelopes contained unsigned stenciled letters. The letter received at her home stated: THE HIGH SCHOOL YEARS ROBBIE, NO DOUBT A VERY FINE YOUNG LADY YOU WOULD HAVE MADE A LOVELY MISS TEEN WISCONSIN AND FAIREST OF THE FAIR I'M SURE YOU WERE VERY POPULAR WITH ALL THE GUYS AND GIRLS IN HIGH SCHOOL AND ARE WELL LIKED BY ALL YOUR STUDENTS AT BHS I WILL ALWAYS LOVE YOU, ROBBIE The envelope then contained about 30 newspaper articles in which Twohig's name appeared. clippings of In most of these articles, Twohig was not the primary focus of the article, but instead her name was one of several names listed in fine print. The clippings participated articles all while about 4-H related she was awards, to a activities high prizes school won at in which student, the Twohig including county fair, scholarships awarded, appearances in local theater productions, and participation in the Fond du Lac County "Fairest of the Fair" competition. 5 No. ¶7 99-3204-CR The letter sent to Twohig's workplace contained the following letter: THE COLLEGE YEARS ROBBIE WAS NO DOUBT A VERY INTERESTING YOUNG WOMAN I'M SURE YOU WERE VERY POPULAR AT UW-FDL AND UW-O YOU MUST HAVE HAD A LOT OF FUN IN FLORIDA WITH YOUR BUBBLY PERSONALITY SPAIN MUST HAVE BEEN A REAL LEARNING EXPERIENCE ALSO YOUR NEIGHBORS MUST THINK THAT YOUR [sic] A VERY NICE PERSON I WILL ALWAYS LOVE YOU ROBBIE Like the envelope received at her home, this envelope also contained clippings of newspaper articles, 21 in total, in which Twohig's name was mentioned. Again, Twohig was not the focus of any of the articles, but instead her name was mentioned along with the names of several others. to activities in which Twohig All of the articles related participated while she was a college student. ¶8 Twohig testified that she felt "completely violated" by these mailings at her home and her work. She stated that "[t]o have someone keep this meticulous track of what you did over half your life ago, it's a feeling of violation that is almost indescribable." Twohig immediately contacted the police after receiving these mailings. ¶9 In September 1996, Twohig received envelope at the school where she worked. 6 another manila The envelope had a No. 99-3204-CR stenciled address like the May 1996 mailings, but had no return address. The envelope contained a stenciled letter that stated "I want to share two of my favorite records with you[.] you Robbie[.]" envelope. 45 RPM records were contained in the One of the records was entitled "Roberta," Twohig's first name. Take." Two I love The second record was entitled "Every Breath You The label on the opposite side of the record had been blackened. ¶10 Twohig testified that she was familiar with the lyrics of "Every Breath You Take," which was a very popular song in the early 1980s.2 2 She also testified that she was very disturbed to At trial, the song's lyrics were admitted into evidence: Every breath you take, Every move you make, Every bond you break, Every step you take, I'll be watching you. Every single day, Every word you say, Every game you play, Every night you stay, I'll be watching you. O can't you see, You belong to me, How my poor heart aches, With every step you take. Every move you make, Every vow you break, Every smile you fake, Every claim you stake, I'll be watching you. Since you've gone I've been lost dream at night I can only see your but it's you I can't replace, I long for your embrace, I keep please. without face, I feel so crying a trace, I look around cold and I baby, baby O can't you see, You belong to me, How my poor heart aches, With every step you take. Every move you make, Every vow you break, Every smile you fake, Every claim you stake, I'll be watching you. Every move you make, Every step you watching you, I'll be watching you. 7 take, I'll be No. receive this song, stating that "whoever sent it 99-3204-CR was taking every step they could to make sure that I knew they still had an eye on me and still knew what I was doing." Twohig contacted the police after receiving this mailing as well. ¶11 In January 1997, Twohig received another envelope at the school where she worked. the address was stenciled. Like all the previous mailings, The envelope again contained two 45 RPM records and a piece of paper with the stenciled words, "I will always love you Robbie." blackened on one side. "I Wonder What She's Both records again had the labels The legible labels were for the songs, Doing Tonight" and "Green-Eyed Lady." Twohig again informed the police when she received this mailing. ¶12 In February 1997, Twohig received another envelope at the high school where she worked. stenciled address. stating "FRAGILE Again, the envelope bore a It also contained a hand-written notation, Open on Valentine's Day." The envelope contained a silk rose, a 45 RPM recording of the song "Hot For Teacher," and a blank piece of paper. Twohig again contacted the police after receiving this mailing. ¶13 Twohig testified that she became "more frightened [with each mailing], looking over her shoulder twice as many times, taking twice as many precautions. It was terrible to be in such fear day after day going to the mailbox seeing a manila envelope." received. Twohig told family members about the mailings she Twohig testified that the mailings had an effect on her friends and family, that everyone was taking precautions to protect her, including making sure that everything she received 8 No. was legitimate. 99-3204-CR She described her parents as "distraught" and other family members as beside themselves. Marcinko testified that she was concerned about Twohig because it was affecting Twohig's work and all aspects of her life. Lamke testified that he became fearful for Twohig's safety when he learned about the mailings. ¶14 The mailings caused Twohig to make significant changes in her life. years. and She moved several times over a period of a few She changed her telephone number to an unlisted number subscribed friends, and to Caller co-workers ID information about her. service. that they She told should not her family, give out She and her family also consulted with experts on harassment. B. Marcinko ¶15 Marcinko. Schwebke also sent anonymous mailings to Patty In particular, on February 22, 1997, she received two manila envelopes, one sent to her home and the other sent to the junior high stenciled return school where addresses and address. The a she worked. 34th birthday envelope sent to Both envelopes greeting her home and bore had contained no a stenciled letter that said: UW-OSHKOSH DAYS AND BEYOND. . . . . . . YOU WOULD HAVE MADE A GOOD MISS FOND DU LAC REVEREND ANTHONY SCANNELL DID AN EXCELLANT [sic] JOB PRESIDING OVER YOUR WEDDING CEREMONY IN 1994 The envelope also contained 25 newspaper clippings that mentioned Marcinko, including articles about her wedding, family 9 No. 99-3204-CR events, academic achievements, and her participation in local theater productions. ¶16 The contained a envelope stenciled sent to Marcinko's letter and newspaper workplace also clippings. The letter said: CAMPBELLSPORT H.S. AND UW-FDL DAYS WHAT DO . . . . . BURGER KING, HARDEES, ACADEMIC STAFF THE EXCLUSIVE COMPANY & UW-O . . . . . ALL HAVE IN COMMON? Marcinko had worked at Burger King (a restaurant), the Exclusive Company (a retail record store) and the University of Wisconsin at Oshkosh (UW-O). dated to the early The 37 newspaper clippings in the envelope 1980s and described various events in Marcinko's life as a high school and college student. ¶17 at Marcinko testified that, when she received the mailing school, police. she contacted her principal and they called the Marcinko stated that she found the mailings threatening in light of the mailings that her sister had received. Marcinko also Twohig's testified that her husband was concerned that harasser had taken the next step by harassing Twohig's immediate family. Marcinko also stated that her parents found the mailings to her overwhelming in light of Twohig's history with harassment. C. Lamke 10 No. ¶18 99-3204-CR Schwebke also sent anonymous mailings to Thomas Lamke. Prior to October 1996, Lamke received unrequested gay literature at his home and workplace at Racine County Sheriff's Department. He testified that, as a result of these mailings, he was subjected to "pretty substantial ridicule" from other members of the sheriff's department. In October 1996, Lamke received a manila envelope with a stenciled address and no return address mailed to his workplace. The envelope contained a blank piece of paper and two 45 RPM records. The recordings were of the songs, "Where The Boys Are" and "San Francisco (Be Sure To Wear Some Flowers In Your Hair)." Lamke testified that these records bothered him because he believed that the titles had "something to do with homosexuality." He also testified that mailings affected his relationship with his co-workers. these He did not contact the police until over a month later, after learning that Twohig had also received such mailings. ¶19 At the close of the State's case, Schwebke argued that the evidence was insufficient to prove either of the elements of disorderly conduct. there was Schwebke The court denied the motion, finding that sufficient guilty beyond evidence a to permit reasonable doubt. the jury The to jury find later convicted Schwebke on all six counts. ¶20 Schwebke appealed his conviction and his sentence. In a published decision, the court of appeals affirmed the judgment of conviction, but reversed the sentence based on an error in 11 No. imposing consecutive terms of probation.3 99-3204-CR State v. Schwebke, 2001 WI App 99, ¶1, 242 Wis. 2d 585, 627 N.W.2d 213. Applying a sufficiency of the evidence standard of review, the court first concluded that the evidence supported the jury's findings that Schwebke violated the disorderly conduct statute. 20. Id. at ¶¶19- The court noted that the first element was met, that is, that the conduct, defendant stating had that engaged in jury could "a "otherwise disorderly" reasonably find that Schwebke's conduct of sending these types of repeated, unwelcome and anonymous mailings rises to the Id. at ¶20. disorderly conduct.'" level of 'otherwise It also found that the second element was met, that is, that the conduct occurred under circumstances that tended to cause or provoke a disturbance. The court stated: "The Schwebke's antisocial predictable conduct was and to the actual menace lives of Twohig, her friends and family. and result disrupt of the Schwebke's conduct was significantly disturbing, permeating the lives of not only the recipients of recipients." his Id. mailings at ¶22. but those The who court were also close to the emphasized the important factual circumstances surrounding Schwebke's conduct, stating: In some other circumstances, mailing anonymous letters and newspaper clippings might not constitute disorderly conduct. However, we do not consider Schwebke's mailings in a vacuum. Instead, we consider 3 The State did not seek review of the court of appeals' decision related to sentencing. For this reason, we do not discuss it here. 12 No. 99-3204-CR his mailings in the context of the harassment previously endured by Twohig and Lamke. In addition, we note that Marcinko and Lamke, along with friends and family, were aware of these more current mailings and of the previous harassment that Twohig had experienced. Twohig, in turn, knew that both her sister and her friend had now become targets of harassment and she testified that this greatly disturbed her. The mailings sent a clear message that someone was following the recipients' every move. That message not only "tended to cause a disturbance," it did in fact deeply disturb the lives of Schwebke's victims and those close to the victims. Again, it was reasonable for a jury to find that Schwebke's mailings were sent under circumstances that tended to cause or provoke a disturbance. Id. at ¶23. ¶21 We granted Schwebke's petition for review. Schwebke argues that his case presents more than a simple question of whether the evidence presented was minimally sufficient to permit the jury to convict, which was the question addressed by the court of appeals. Instead, the underlying issue is whether, based on the undisputed facts presented at trial, the disorderly conduct statute can, as a matter of law, apply to his conduct. To answer this question, he asserts that we must analyze the language, history, context, and constitutional principles that inform the interpretation of the disorderly conduct statute. When viewing all of these factors, Schwebke argues that we must conclude that the disorderly conduct statute cannot apply to his conduct. ¶22 In response, the State argues that only the question of whether the disorderly conduct statute applies to private mailings is a question of law 13 because it is an issue of No. statutory construction. 99-3204-CR The State contends, however, that the ultimate issue remains whether the facts presented at trial were sufficient to constitute disorderly conduct. This issue, argues the State, must be reviewed under a sufficiency of the evidence standard. When proceeding in this manner, the State asserts that we must affirm the court of appeals' decision that upheld Schwebke's conviction under the statute. ¶23 first Our two-step analytical framework is as follows. address disorderly Schwebke's conduct arguments statute can pertaining be applied to to whether his We the private mailings. We conclude that the statute may be applied to such conduct. We then examine whether the evidence presented at trial was sufficient to convict Schwebke under all six counts. We conclude that the evidence was sufficient. Accordingly, we affirm the court of appeals' decision. II ¶24 follows: Wisconsin (1999-2000)4 states as "Whoever, in a public or private place, engages in violent, abusive, loud otherwise or Stat. § 947.01 indecent, profane, disorderly boisterous, conduct under unreasonably circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor." The State must prove two elements to convict a defendant under this statute. State v. Douglas D., 2001 WI 47, ¶15, 243 Wis. 2d 204, 626 N.W.2d 725. 4 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. 14 No. 99-3204-CR "First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, similar disorderly conduct." Id. unreasonably loud, or "Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends objective to cause analysis of or the provoke conduct a and disturbance." Id. circumstances An of each particular case must be undertaken because what may constitute disorderly others. 626 conduct under some circumstances may not under See State v. A.S., 2001 WI 48, ¶33, 243 Wis. 2d 173, N.W.2d 712. Schwebke argues that the statute cannot applied to the private mailings that he sent in this case. be He bases his argument on the statutory language, its legislative history and statutory framework, principles surrounding the statute. and the constitutional We address each basis for his argument in turn. A. Statute ¶25 Schwebke first points to the language of the statute and our interpretation of this language to show that the statute cannot be applied to his conduct. In this case, the State charged Schwebke under the "otherwise disorderly" provision. We have interpreted this provision to "mean conduct of a type not previously enumerated but similar thereto in having a tendency to disrupt good order and to provoke a disturbance." State v. Givens, 28 Wis. 2d 109, 115, 135 N.W.2d 780 (1965); see also City of Oak Creek N.W.2d 285 (1989). v. King, 148 Wis. 2d 532, 540-41, 436 As mentioned, the statute also requires that such conduct must have occurred under circumstances that tended 15 No. to cause or provoke a disturbance. 99-3204-CR Schwebke argues that the statute cannot be applied to his conduct because his conduct was not of the type that tends to disrupt "good order" or provoke a "disturbance." He asserts that, as we have interpreted it, "otherwise disorderly" conduct must have a tendency to disrupt "public order" and to provoke a "public disturbance." He contends that his conduct did not have the likelihood of causing such a disruption or disturbance. Instead, it merely had a tendency to cause the recipient of the mailing to be personally upset. Such personal and private annoyance, Schwebke contends, is insufficient to support a conviction of disorderly conduct. There must be, he asserts, "something much more threatening to 'order' in a public sense than mere personal discomfort." There must at least be conduct that will likely provoke a response that "threaten[s] to spill over and disrupt the peace and tranquility of the surrounding community." ¶26 This argument requires us to examine and define terms under the disorderly conduct statute. We specifically examine the meaning of a disruption to good order and a disturbance. This examination requires an interpretation of the statute. Interpretation of a statute is a question of law that we may decide de novo. interpreting legislature. a Douglas D., 2001 WI 47, ¶14. statute State v. is to discern Piddington, Wis. 2d 754, 623 N.W.2d 528. the 2001 Our goal in intent WI 24, of the ¶14, 241 In determining legislative intent, we begin with the plain language of the statute. Id. At the outset we note that the plain language of the statute does not 16 No. specifically require a "public" disturbance. statute only requires "a disturbance." 99-3204-CR Instead, the Along these lines, all that we have required for a disruption is one that affects "good order;" we have "public order." suggests that not specifically required a disruption to Certainly, the failure to use such a modifier the statute does not require the conduct to necessarily reach the public in some capacity. ¶27 Schwebke attempts to further define the type of disruption and disturbance required under the statute, claiming that there must be some public element to such a disruption or disturbance. He claims that his argument is supported first by language from our previous opinions that have suggested that what is required community. See, are e.g., disruptions affecting Douglas 2001 D., the WI public 47, ¶24 or (The disorderly conduct statute is intended "to root out conduct that unreasonably disturbs the public peace."); State v. Zwicker, 41 Wis. 2d 497, 508, 164 N.W.2d 512 (1969) ("Wisconsin's disorderly conduct statute proscribes conduct in terms of results which can reasonably be expected enumerate the limitless therefrom, number rather of than anti-social attempting acts to which a person could engage in that would menace, disrupt or destroy public order."). However, Schwebke merely highlights language that discussed generally the overall purpose of the disorderly conduct statute. Our discussions have never specifically injected a public element into the statute. ¶28 relating Schwebke to the also points disorderly to this conduct 17 court's statute to jurisprudence support his No. argument. 99-3204-CR Specifically, he argues that we have traditionally upheld disorderly conduct convictions only where there has been a threat to public order or public peace. Reviewing our previous disorderly conduct cases, we acknowledge that there has always been some public aspect in each of these cases.5 Schwebke particularly highlights Douglas D., in which we held that the disorderly conduct statute could apply communication from a student to a teacher. student essay teacher's head. that implicitly to a threatening That case involved a threatened to Douglas D., 2001 WI 47, ¶¶6-7. cut off the We concluded that, even though the conduct involved a private interaction 5 State v. A.S., 2001 WI 48, 243 Wis. 2d 173, 626 N.W.2d 712 (juvenile's threatening comments at public youth center constituted disorderly conduct under the circumstances); City of Oak Creek v. King, 148 Wis. 2d 532, 436 N.W.2d 285 (1989) (newsperson's refusal to obey police command at scene of helicopter crash constituted disorderly conduct); State v. Elson, 60 Wis. 2d 54, 208 N.W.2d 363 (1973) (defendant's loud conduct in a state mental hospital was disorderly conduct); 51 Wis. 2d 659, 188 N.W.2d 449 (1971) State v. Becker, (defendant's violent conduct against police officer in public department store constituted disorderly conduct); State v. Maker, 48 Wis. 2d 612, 180 N.W.2d 707 (1970) (defendant's stage performance in a crowded tavern constituted disorderly conduct); State v. Zwicker, 41 Wis. 2d 497, 164 N.W.2d 512 (1969) (public demonstrations at university constituted disorderly conduct); Lane v. Collins, 29 Wis. 2d 66, 138 N.W.2d 264 (1965) (abusive language against police officer causing retaliatory conduct leading to a breach of the peace may constitute disorderly conduct); State v. Givens, 28 Wis. 2d 109, 135 N.W.2d 780 (1965) (sit-in demonstration in public building was disorderly conduct); Teske v. State, 256 Wis. 440, 41 N.W.2d 642 (1950) (acts of pickets during public strike were disorderly conduct). Compare State v. Werstein, 60 Wis. 2d 668, 211 N.W.2d 437 (1973) (mere presence in military recruitment office and mere refusal to obey a police command was not disorderly conduct). 18 No. 99-3204-CR between the teacher and student, the disorderly conduct statute could apply, not because it caused the teacher to become upset, but instead because the threat jeopardized the proper functioning of the school itself, which was regarded as a threat to public order. ¶29 Id. at ¶28. However, simply because the cases before us have all involved disturbances on a public level does not mean that the statute cannot be applied in instances where the disturbance is private in nature. Indeed, as the State points out, there have been some cases involving domestic disputes where the defendants were convicted under the statute, even though the conduct apparently did not involve a threat to disturb the public at large. See, e.g., State v. Vinje, 201 Wis. 2d 98, 548 N.W.2d 118 (Ct. App. 1996); State v. Leprich, 160 Wis. 2d 472, 465 N.W.2d 844 (Ct. App. 1991). In particular, in Vinje, Kevin Vinje was arrested after the police witnessed him pushing his wife. Vinje, 201 Wis. 2d at 101. Kevin was charged and convicted for disorderly conduct and intimidation of a witness. Id. Although the opinion addressed whether Kevin could be convicted of intimidating a witness when the underlying crime is disorderly conduct, the court of appeals noted that disorderly behavior was present. Id. at 100-04. The facts in the opinion do not suggest that there was any threat to disturb the public order or peace or that there was any potential for a disturbance to spill over into the community itself. even though statute only our to jurisprudence instances Id. at 100-01. traditionally where 19 the has disturbance Thus, applied takes the on a No. 99-3204-CR public nature, the statute's reach has not been limited in this respect. ¶30 We certainly agree with Schwebke that, from our jurisprudence, the statute is appropriately applied in instances where conduct, provoke under the a disruption to circumstances, the public has peace, a tendency to safety, or public public order or is likely to cause a reaction from the community based on the fact that the public peace, public order, or public safety is being threatened. disorderly conduct We statute conclude, does not however, that necessarily the require disruptions or disturbances that implicate the public directly. The statute encompasses conduct that tends to cause a disturbance or disruption that is personal or private in nature, as long as there exists the real possibility that this disturbance or disruption will spill over and disrupt the peace, order or safety of the surrounding community as well. Conduct is not punishable under the statute when it tends to cause only personal annoyance to a person. ¶27. See Douglas D., 2001 WI 47, An examination of the circumstances in which the conduct occurred must take place, considering such factors as the location of the conduct, the parties involved, and the manner of the conduct. ¶31 Schwebke also argues that it is the state's interest in maintaining peace and order in the community that permits the state to statute. punish such conduct under the disorderly conduct Indeed, we have noted that "'[w]hen clear and present danger of riot, disorder, interference with traffic upon the 20 No. public streets, or other immediate threat to 99-3204-CR public safety, peace, or order appears, the power of the State to prevent or punish is obvious.'" A.S., 2001 WI 48, ¶14 (quoting Feiner v. New York, 340 U.S. 315, 320 (1951)). For this reason, Schwebke argues that the disorderly conduct statute cannot be stretched to apply to conduct that does not pose any threat to public order or safety. We do not construe this language from A.S. as prohibiting the disorderly conduct statute from being applied to conduct that tends to cause or provoke a disturbance that is private or personal in nature. prohibiting obvious. conduct that This language merely states that poses a threat to the public is Nevertheless, we conclude that the disorderly conduct statute requires, at a minimum, that, when the conduct tends to cause or provoke a disturbance that is private or personal in nature, there disturbance must will exist spill the over real and surrounding community as well. possibility cause a that threat to this the In this respect, the state's interest in maintaining peace and order in the community is not limited only to threats of riots or interference with traffic upon public streets. Certainly, as in domestic disputes, even though the disturbance may only occur on a private level, such conduct affects the overall safety and order in the community, and the state has an interest in regulating this conduct as well. ¶32 Based disorderly on conduct this analysis, statute was Schwebke's conduct in this case. 21 we conclude appropriately that applied the to In each instance, the conduct No. 99-3204-CR at issue, in light of the circumstances, went beyond conduct that merely tended another person. to In annoy each or cause instance, personal the discomfort mailings in constituted conduct that not only caused disturbances to the lives of the recipients, but the disruptive to disturbing nature conduct peace and of was good the of the order conduct in type the toward that would community. Twohig is the be The most obvious. The repeated mailings displayed obsessive behavior on the of part Twohig's Schwebke life. disturbing that The nature of he was observing mailings subsequent this first every exacerbated mailing. The aspect of the mailings to Marcinko were similar and were especially disturbing to Marcinko in light of the recent mailings that her sister received. The mailings to both women were also of the type that tended to be disruptive to the community itself, causing other friends and relatives to become concerned for the safety of the women. circumstances police, Finally, and the obviously in both October necessitate instances, 1996 the the mailing involvement police sent to were Lamke of Such the contacted. constituted conduct that tended to cause more than mere personal discomfort. This mailing followed received by Lamke. Lamke's prior mailings to other unwelcome anonymous mailings Considering the mailings sent to Twohig and intimate Lamke, association conveying with animosity Twohig, the repeated toward Lamke, would certainly tend to cause Lamke and others to be concerned for his safety. The conduct also affected Lamke's relationship with his coworkers. On the whole, such 22 conduct necessitates the No. 99-3204-CR involvement of the police, and the police were contacted. For this reason, we conclude that the application of the disorderly conduct statute in this case was appropriate. B. Legislative History ¶33 reveals Schwebke that the next argues legislature that never the legislative intended the history disorderly conduct statute to apply to the conduct at issue in this case. He asserts version of that, the when the disorderly legislature conduct adopted statute, the the current legislature considered harassing conduct, but did not contemplate that such conduct would be covered by the statute. ¶34 Schwebke's argument looks first to a proposed version of the disorderly conduct statute from the Legislative Council Judiciary 6 Committee and the comments on this version.6 The The proposed version stated as follows: 347.01 DISORDERLY CONDUCT. Whoever does any of the following, whether in a public or private place, may be fined not more than $100 or imprisoned not more than 30 days: (1) Engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke an immediate disturbance of public order or tends to disturb or annoy others; or (2) Intentionally causes, provokes, or engages in a fight other than a bona fide athletic contest. 5 Wisconsin Legislative Council, Judiciary Committee Report on the Criminal Code 208 (1953). 23 No. 99-3204-CR comments specifically discussed whether annoying telephone calls would be covered under the proposed statute: The words "violent, abusive, indecent, profane, boisterous, unreasonably loud . . . conduct" give certainty to the crime while at the same time being broad in scope. On the other hand, they are not broad enough to take care of every situation generally considered to be disorderly. Suppose, for example, that the actor solely for the purpose of annoying another person persists in calling that person on the telephone at all hours of the night. It might be difficult to fit this situation within the specific words above quoted, but there is no difficulty in holding that it is conduct which is "otherwise disorderly" and that the circumstances are such that the conduct tends to disturb or annoy others . . . 5 Wisconsin Legislative Council, Judiciary Committee Report on the Criminal Code 208 (1953) (emphasis added). Schwebke argues that the legislature revised the proposed language in 1955 and that this revision reflected that the legislature disagreed with this viewpoint. The revision specifically deleted the proposed subsection (2) and instead adopted an alternate subsection that expressly covered the telephone scenario described above. The new subsection defined disorderly conduct to include anyone who "[w]ith the intent to annoy another, makes a telephone call, whether or not Wis. Stat. § 947.01(2)(1955). shows that the legislature conversation This did change, not ensues." argues believe that Schwebke, annoying telephone calls were already covered by the general definition of "otherwise disorderly conduct." ¶35 Schwebke also points to action legislature in 1979 to support his argument. 24 taken by the He states that the No. 99-3204-CR legislature considered redefining the language in subsection (2) to include telephone calls threaten or harass." however, that alternative disorderly "with legislature instead conduct the intent to LRB 3076/2, 1979 A.B. 507. the and made rejected removed statute this subsection altogether, abuse, He notes, redefinition (2) from creating a the separate harassment statute that included a separate offense for unlawful use of the telephone. §§ 2-3, ch. 131, Laws of 1979. This statute requires a showing that the offending telephone calls were made with the intent to frighten, intimidate, threaten, abuse or harass. adopted other Id. at § 3. specific Wis. Stat. §§ 813.125 and The legislature subsequently harassment 947.013. statutes. Overall, See Schwebke argues that these changes indicate that the legislature intended that the disorderly conduct statute would not apply conduct, like the conduct at issue in this case. to harassing The harassment statutes would apply instead. ¶36 Despite this history, Schwebke's argument is flawed because it assumes that harassment and disorderly conduct are mutually exclusive. within the As the State contends, when conduct falls definition of disorderly conduct, it may be prosecuted under that statute as well as under the harassment statute. intended The history certainly indicates that the legislature to create a separate statute to cover harassing conduct; however, prosecutors are afforded broad discretion in charging criminal conduct. See Sears v. State, 94 Wis. 2d 128, 25 No. 133, 287 N.W.2d 785 (1980). 99-3204-CR For this reason, we decline to limit the prosecutor's discretion in this instance. C. Constitutional Considerations ¶37 Schwebke also argues that the legislature could not have intended the disorderly conduct statute to apply to the conduct at issue principles. in this case based on constitutional Indeed, as Schwebke points out, the legislature repealed the specific annoying telephone calls provision from the disorderly conduct statute and created a new more specific provision after the court of appeals concluded that the language was overly broad. See State v. Dronso, 90 Wis. 2d 110, 117, 279 N.W.2d 710 (Ct. App. concerns, argues 1979). To Schwebke, the address any legislature constitutional repealed the disorderly conduct provisions related to private harassment or annoyances and instead created more narrowly tailored harassment statutes. See Wis. Stat. §§ 947.012 contends that, by creating tailored provisions, the these and separate legislature 947.013. and intended Schwebke more any narrowly harassing conduct, like the conduct in this case, to be charged under this provision, not conduct statute. under the broad language of the disorderly Specifically, he asserts that "by applying the general disorderly conduct provisions to Mr. Schwebke's conduct, the state attempts to do that which the more narrow private nuisance provision was too broad to accomplish within constitutional bounds." ¶38 It is reasonable to conclude that the legislature reacted to the decision in Dronso in removing the telephone call 26 No. 99-3204-CR provision from the disorderly conduct statute and revising it to create a new telephone harassment statute. This action certainly reflects that the legislature sought a more specific statute in the event that conduct, like that in Dronso, would not escape prosecution based on constitutional concerns and that the disorderly conduct statute may not be sufficiently narrowly tailored to apply to certain types of harassing speech. However, that is not to say that the legislature intended that all conduct that may be characterized as harassing in nature, such as Schwebke's harassment statute. conduct, must Further, be prosecuted although Schwebke under the characterizes his mailings as "communications," the prosecution of the content of his speech in this instance is merely prosecution of his overall conduct. repeated mailings to related mailings is not being recipients directly containing Schwebke never raised such the a unwelcome Because the content of prosecuted, overbreadth are not implicated in this instance. were, to This conduct consisted of gifts and numerous newspaper clippings. the incidental concerns of Even if they constitutional challenge either here, in the circuit court, or in the court of appeals. For this reason, we decline to address the overall constitutionality of the statute in this case. ¶39 Schwebke statutes, unlike also the asserts disorderly that the conduct current statute, harassment require a showing of an intent to annoy or harass and are limited to particular types of harassing communications. Because the disorderly conduct statute does not include such language, it 27 No. cannot apply to the conduct at issue running into concerns of vagueness. 139 Wis. 2d 397, 408, 407 in this 99-3204-CR case without See Bachowski v. Salamone, N.W.2d 533 (1987) (upholding the harassment statute on a challenge of vagueness in part because the statute narrowed the meaning of harassment to conduct that was "intended to harass"). We disagree. Such vagueness concerns are not presented by the application of the disorderly conduct statute to Schwebke's conduct. The statute provided Schwebke with sufficient notice that his conduct would be deemed unlawful if it fell within the categories of the statute. The lack of an intent element in the statute might be of concern if the statute were applied only to Schwebke's speech. case, however, any concerns with respect to In this vagueness are without merit. III ¶40 may be Having concluded that the disorderly conduct statute applied to Schwebke's conduct, we now review whether there was sufficient evidence to convict Schwebke on the various counts in this case. 210 N.W.2d 763 See State v. Duda, 60 Wis. 2d 431, 439, (1973). The standard for reviewing the sufficiency of the evidence to support a criminal conviction is that a conviction will not be reversed 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 Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). 28 v. No. ¶41 have 99-3204-CR Based on the evidence, a rational trier of fact could found the essential elements reasonable doubt in all cases. of the crime beyond a Again, the elements in this case required (1) otherwise disorderly conduct, which must be similar to the conduct enumerated in the statute in having a tendency to disrupt good order, and (2) under circumstances that tended to cause or provoke a disturbance. ¶42 The mailings sent to Robbie Twohig show an obsessive interest from an unidentified person in her life. Although the messages sent were not overtly threatening, the evidence showed a person who Twohig's life. was obsessively interested in every detail of The subsequent mailings exemplified the extent of the obsession, including songs that indicate the sender would perhaps be watching "every move she makes." Such conduct certainly has the tendency to disrupt the peace, safety, and good order because they were unwelcome advances and the extent of this obsession circumstances, was abusive the conduct was in nature. likely to Under cause or such provoke a disturbance because such conduct would cause concern from other members of the community, including the police. ¶43 rational In light of trier of these fact prior could mailings have also to her concluded sister, that mailings sent to Marcinko constituted disorderly conduct. mailings also revealed an obsessive interest into a the These Marcinko's life, with newspaper clippings dating back several years. In light of the fact that Twohig had received similar mailings, the anonymous mailings sent to Marcinko revealed that the sender's 29 No. obsession was not limited to Twohig. 99-3204-CR Such calculated mailings caused concern from Marcinko's family, friends, and community for her safety and necessitated the involvement of the police. ¶44 Finally, a rational trier of fact could have concluded that the conviction for the October 1996 mailing to Lamke at his workplace also followed other constituted anonymous disorderly literature conduct. sent by This mailing Schwebke. The source of these mailings placed Lamke on edge because he knew someone was trying to upset him by sending numerous, unwanted mailings but Lamke did not know the source. The October 1996 mailing containing the records, the source of which was again unknown to Lamke, placed him further on edge because he then knew the previous mailings were not sent by mistake and that someone was consciously trying to upset him, especially after learning of Twohig's similar mailings. As noted, the mailings also affected Lamke's relationship with his coworkers. repeated unwelcome interest, under the This circumstances, was sufficient to cause or provoke a disturbance because it could have reasonably led to concerns of public safety for both Lamke and other members of the community. Schwebke's conduct necessitated, and resulted in, the involvement of the police. IV ¶45 uphold In sum, we affirm the court of appeals' decision to the convictions of Schwebke. The disorderly conduct statute can be applied to the private mailings involved in this case, and based on the facts presented in this case, there was sufficient evidence to convict Schwebke on the charges. 30 No. By the Court. The decision affirmed. 31 of the court of 99-3204-CR appeals is No. 99-3204-CR.ssa ¶46 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (dissenting). Glenn F. Schwebke has a lengthy history of harassing people. used to be by phone. mailings were defendant's Now it is by mail. personally conduct, and and The recipients of the traumatically justifiably so. It disturbed The by legal the system should, and can, help protect the victims from Mr. Schwebke. ¶47 The law provides remedies for these victims other than the disorderly conduct statute. and effective. These remedies are available In the circuit court, the State analyzed the available remedies in a document entitled "Dispositional Brief." The available remedies included obtaining a harassment restraining order and injunction;7 charging Mr. Schwebke with harassment;8 or charging Mr. Schwebke with stalking.9 Instead, 7 A harassment restraining order and injunction were available under Wis. Stat. § 813.125 (1999-2000). (All subsequent references to the Wisconsin Statutes are to the 19992000 version, unless otherwise indicated.) If Mr. Schwebke had violated the injunction, he then would have been liable for criminal penalties under § 947.013(1r)(b). The State recognized that the failure to get such an order in the present case weakened the State's case against the defendant. An advantage to this order, according to the State, was that the defendant had in the past "conformed his conduct to the requirements of the law and not had any charges filed against him." The prior record demonstrates "there is no one who can tell this Court they know how to stop Mr. Schwebke from engaging in this conduct, except to say that when a court order is in effect, he has complied with it." At the time of his sentencing, the defendant had been out on bail for over two years and had made no attempt to contact any of the three recipients of his mailings. 8 The State could have sought a civil forfeiture for harassment under Wis. Stat. § 947.013. A harassment conviction would have subjected the defendant under the circumstances of this case to a maximum forfeiture of $1000. The State concluded that a more severe penalty was needed. 1 No. 99-3204-CR.ssa the State chose to prosecute Mr. Schwebke under the disorderly conduct statute. ¶48 The State decided to prosecute under the disorderly conduct statute "because of the broad language of the law and the ability to charge each and every incident as a separate act. The State also surmised, since the instruction contemplates the actions being disorderly under the circumstances as they then and there existed, the door to the prior offense evidence would be open to disturbance." show why the conduct here tended to create a 10 9 The State could have charged the defendant with stalking in violation of § 940.32. The problem with a stalking charge, according to the State, was that the mailings were juvenile and definitely annoying, but also complimentary in nature, thereby casting doubt on whether there could be a reasonable fear of bodily injury of great magnitude or death. Although a deferred prosecution agreement was considered, the defendant refused to go forward with it. 10 See the State's "Dispositional Brief" at unnumbered p. 6. According to the State, the defendant could face a maximum of $6,000 in fines plus court costs, four years' probation, and 540 days in county jail if convicted of six counts of disorderly conduct. The circuit court sentenced the defendant for each of the first three counts to 90 days in jail each, to run consecutively. On each of the last three counts, the circuit court sentenced the defendant to four-year probation terms, to be served consecutively. Advocates across the country are urging the creation of state mental health courts modeled after drug courts. A mental health court would be more than an adjudicator of charges; it would take an active role in the mental health treatment of people coming before it. See LeRoy L. Kondo, Advocacy of the Establishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally Ill Offenders, 24 Seattle U. L. Rev. 373 (2000). 2 No. 99-3204-CR.ssa ¶49 and The question before us, however, is whether the State this court can stretch the disorderly conduct statute, Wis. Stat. § 947.01,11 to cover the facts of this case. majority opinion says yes. ¶50 I think not. The Therefore, I dissent. The majority opinion recognizes it is extending the reach of the disorderly conduct statute beyond where it has gone before. be According to the majority opinion, a mailing that may personally "violent, disturbing abusive, loud"12 unreasonably conduct" under "otherwise disorderly disorderly conduct to the indecent, can recipient profane, constitute statute is boisterous, a there crime is not or disorderly Furthermore, constitutes because that "otherwise Wis. Stat. § 947.01. conduct" but under "the this the real possibility that this disturbance will spill over and cause a threat to the surrounding community as well." Majority op. at ¶31. ¶51 I agree with the defendant that the language of the statute, its legislative history, and the case law support the notion that disorderly conduct requires a threat to public order and does not apply to the kind of conduct involved in the present case. private harassment-type The majority opinion's interpretation of Wis. Stat. § 947.01 encompasses far too much 11 Section 947.01 provides: "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor." 12 Wis. Stat. § 947.01. 3 No. 99-3204-CR.ssa conduct that the legislature could not have intended to include in the statute. ¶52 Virtually any antisocial or offensive conduct, including a mailing from one person to another, is now included within the statute. parameters of the criminal disorderly conduct Under the majority opinion, any disturbing private mailing, even though it is not "violent, abusive, indecent, profane, boisterous, or unreasonably loud,"13 can be viewed as spilling over and causing a threat to the surrounding community, because it may be private mailing. disturbing to those who are told of the The majority opinion errs because "disturbing" does not a "disturbance" make! "Disturbing" has been conflated in the majority opinion with "disturbance." ¶53 The court seems to be moving the disorderly conduct statute back to the laws of the 1950s and 1960s that gave law enforcement officers and prosecutors broad discretion to arrest and prosecute people. Those laws are characterized as "so broad that they 'legally' authorize the police to arrest virtually anyone."14 ¶54 requires 13 The laws legislature to govern has wisely conduct recognized related to the that society strains and Id. 14 Robert Force, Decriminalization of Breach of the Peace Statutes: A Nonpenal Approach to Order Maintenance, 46 Tul. L. Rev. 367, 399 (1972), quoted in Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551, 596 (1997). For a discussion of these laws, see, for example, Debra Livingston, Police Discretion, 97 Colum. L. Rev. at 595-600. 4 No. 99-3204-CR.ssa stresses of people living in close proximity. conduct statute is one such law. The disorderly The majority opinion goes too far, however, by reading the disorderly conduct statute to cover the defendant's behavior in the present case. ¶55 The disorderly majority conduct opinion's statute will interpretation allow the of disorderly the conduct statute to be used to place in Wisconsin's already overburdened jails and prisons those, including the mentally ill, who privately disturb others while failing to provide those persons with appropriate treatment. ¶56 from a The record is clear that the defendant is suffering chronic elderly parents mental and illness. receives He lives social at home security with his disability benefits. He receives psychiatric care and medications, which at abate times defendant's treatment. his condition aberrant behavior. remains chronic and Nonetheless, requires the ongoing The defendant's conduct evinces the symptoms of his disease. ¶57 According to the National Association for the Mentally Ill, prisons and jails have become the mental hospitals of the 1990s.15 A 1999 U.S. Department of Justice report revealed that 16% of the persons in state and local prisons and jails have a 15 See, e.g., LeRoy L. Kondo, Advocacy of the Establishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally Ill Offenders, 24 Seattle U. L. Rev. 373 (2000); Paul F. Stavis, Why Prisons Are Brim-Full of the Mentally Ill: Is Their Incarceration a Solution or a Sign of Failure?, 11 Geo. Mason U. Civ. Rts. L.J. 157 (2000). 5 No. 99-3204-CR.ssa serious mental inappropriate individuals illness.16 The interventions who become result for subject is crowded seriously to penal conduct related to their mental illness. jails mentally and ill incarceration for Indeed, the problem of overcrowding in Wisconsin's prisons and jails and the number of mentally ill people already in them is of concern to the people of the state of Wisconsin.17 conduct" provision opinion's expanded of view Using the "otherwise disorderly Wis. Stat. § 947.01 of what conduct with the "tends to majority cause or provoke a disturbance" will merely exacerbate this problem. ¶58 Because the majority opinion has gone too far in its interpretation and application of the disorderly that Justice conduct statute, I dissent. ¶59 I am authorized to state ANN WALSH BRADLEY joins this opinion. 16 Paul F. Stavis, Why Prisons Are Brim-Full of the Mentally Ill: Is Their Incarceration a Solution or a Sign of Failure?, 11 Geo. Mason U. Civ. Rts. L.J. 157, 159 (2000). 17 See, e.g., Who Holds the Key to the Jail Problem?, Wis. State Journal, December 26, 2000, at 8A. 6 No. 99-3204-CR.ssa 1
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