State v. Schwebke

2002 WI 55, 644 N.W.2d 666, 253 Wis. 2d 1, 2002 Wisc. LEXIS 444
CourtWisconsin Supreme Court
DecidedMay 29, 2002
Docket99-3204-CR
StatusPublished
Cited by22 cases

This text of 2002 WI 55 (State v. Schwebke) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Schwebke, 2002 WI 55, 644 N.W.2d 666, 253 Wis. 2d 1, 2002 Wisc. LEXIS 444 (Wis. 2002).

Opinions

1. WILLIAM A. BABLITCH, J.

Petitioner 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. The court of appeals affirmed these convictions. Schwebke now seeks a reversal 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. We disagree. The disorderly conduct statute may apply to the mailings at issue in this case. Further, the evidence was sufficient to convict the defendant on all six counts. Accordingly, we affirm the court of appeals' decision.

I — 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 [6]*6anonymously by Schwebke and contained items such as newspaper clippings, records, and stenciled letters. 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, non-abusive and non-disturbing" news clippings, letters, and records through the mail did not constitute disorderly conduct because it was not the type of substantial intrusion that the disorderly conduct statute was intended to proscribe. He argued that the receipt of such materials by a person of 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. It dismissed one of the counts because it was charged in 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 respect to the remaining allegations, the court held that the complaint contained sufficient information to support probable cause and that venue was properly established in Fond du Lac County.

¶ 4. Schwebke filed a petition for leave to appeal this order. 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 [7]*7court. These counts related to a victim separate from the three victims involved in the remaining counts.

¶ 5. The amended complaint charged Schwebke with six counts of disorderly conduct for mailing envelopes with "disturbing contents" on six different occasions to three different people.1 Four counts related to [8]*8mailings sent to Robbie Twohig. One related to a mailing sent to Patty Marcinko, who was Twohig's sister. The final count related to Thomas Lamke, who was Twohig's former boyfriend. Before trial, Sehwebke signed a stipulation admitting that he had compiled and mailed the envelopes to these individuals. The three victims — Twohig, Marcinko, and Lamke — testified on behalf of the State at trial. Sehwebke neither testified nor presented any witnesses. The trial revealed the following facts concerning the three victims.

A. 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. Neither envelope had a return address. The mailing addresses on both envelopes were stenciled. Both envelopes bore 30th birthday greetings. Twohig's birthday is May 9. 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 clippings of articles in which Twohig's name appeared. In [9]*9most 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 all related to activities in which Twohig participated while she was a high school student, including articles about 4-H awards, prizes won at the county fair, scholarships awarded, appearances in local theater productions, and participation in the Fond du Lac County "Fairest of the Fair" competition.

¶ 7. 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-0
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. All of the articles related to activities in which Twohig participated while she was a college student.

[10]*10¶ 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." Two-hig immediately contacted the police after receiving these mailings.

¶ 9. In September 1996, Twohig received another manila envelope at the school where she worked. The envelope had a 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[.] I love you Robbie[.]" Two 45 RPM records were contained in the envelope. One of the records was entitled "Roberta," Twohig's first name. The second record was entitled "Every Breath You Take." 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 She also testified that [11]

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Bluebook (online)
2002 WI 55, 644 N.W.2d 666, 253 Wis. 2d 1, 2002 Wisc. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-schwebke-wis-2002.