State v. O'DELL, 93-2294-CR.

• Decision Date: 09 June 1995
• Docket Number: No. 93-2294-CR.,93-2294-CR.
• Citation: 532 N.W.2d 741,193 Wis.2d 333
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Fred J. O'DELL, Defendant-Appellant-Petitioner
• Court: Wisconsin Supreme Court

193 Wis.2d 333

532 N.W.2d 741

STATE of Wisconsin, Plaintiff-Respondent, v. Fred J. O'DELL, Defendant-Appellant-Petitioner

No. 93-2294-CR.

Supreme Court of Wisconsin.

Oral argument April 6, 1995.

Decided June 9, 1995.

For the defendant-appellant-petitioner there were briefs and oral argument by Reesa Evans, Madison.

For the plaintiff-respondent the cause was argued by Mary E. Burke, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

JANINE P. GESKE, J.

The petitioner, Fred J. O'Dell (O'Dell), requests review of an unpublished decision of the court of appeals filed April 21, 1994, which affirmed the judgment and order of the circuit court for Dane County, Robert A. DeChambeau, Circuit Judge, convicting O'Dell of violating a child abuse injunction issued pursuant to § 813.122(5)(a), Stats.,¹ as a repeater, pursuant to § 939.62, Stats.² O'Dell's appearance before the circuit court resulted from an alleged violation of an injunction issued on May 29, 1991, by Dane County Circuit Judge Susan Steingass. According to the terms of the injunction, O'Dell was enjoined from (1) having contact with his stepson, Michael E. (Michael), whom he had physically abused; and (2) having contact with the apartment where Michael lived with his mother and two stepsisters.

The injunction was to remain in effect until May 28, 1993. However, on January 30, 1992, the police observed O'Dell inside the apartment where Michael and his mother lived. (At the time, O'Dell was married to Michael's mother.) O'Dell was arrested and subsequently convicted of knowingly violating the second prong of the injunction by residing at the apartment. O'Dell consistently argued, during a trial to the bench and on appeal, that he did not violate the terms of the injunction because, he claimed, Judge Steingass orally interpreted and modified the terms of the injunction in June 1991 to restrict contact with Michael, as opposed to contact with Michael's residence. Therefore, if any violation occurred, according to O'Dell, it was due to a misunderstanding of Judge Steingass's oral statements, and the defense of mistake should apply. Both the circuit court and the court of appeals rejected this argument, concluding, inter alia, that only the written order issued by Judge Steingass in May 1991 constituted the injunction.

O'Dell presents three issues for review by this court:

(1) Whether the defense of mistake should apply to bar prosecution;

(2) whether, as a matter of law, the state introduced sufficient evidence to convict O'Dell; and

(3) whether O'Dell's trial counsel was ineffective. Underlying these three issues is the question of whether Judge Steingass's oral statements on the record modified the previously issued written injunction. We reverse the decision of the court of appeals and hold: (1) Judge Steingass's oral statements on the record modified her "no contact" order to change the terms of the written injunction, and (2) though Judge Steingass should have committed to writing any oral modifications regarding the terms of the written injunction, O'Dell had a right to rely on the issuing court's pronouncements. As a result of our holdings, we remand for a new trial and provide the state with the opportunity to amend the criminal complaint. Since there will be a new trial to determine if O'Dell violated the terms of the modified injunction, we need not address the other issues raised in the petition for review.

The facts of this case are as follows. In May 1991, Michael claimed that O'Dell was physically abusing him. Michael sought an injunction to enjoin O'Dell from having any further contact with him.³ Judge Steingass issued the injunction on May 29, 1991, pursuant to § 813.122(5)(a), Stats. O'Dell failed to appear at the hearing, and the written injunction was entered by default with the following terms and conditions: (1) O'Dell was ordered to avoid Michael's residence and/or any premises temporarily occupied by Michael, and (2) he was not to have any direct or indirect contact with Michael.⁴ At the time the injunction was issued, Michael was residing in an apartment with his mother, O'Dell, and O'Dell's two daughters.

On June 27, 1991, O'Dell moved to modify the terms of the injunction.⁵ Though the motion to modify was denied, the following exchange took place during the course of the hearing:

THE COURT: ...

Mr. O'Dell, this injunction provides as follows: That you are to avoid Michael's residence and/or any premises temporarily occupied by him now and in the future. You are to have no contact direct or indirectly by any means, even through third persons with Michael .... Those are the terms of the injunction in essence.

...

MR. O'DELL: ... If I were to go to the apartment, I would be reported. My wife was to inform the police. Only way I could go there was when Michael wasn't there, and I had to run in and out when he appeared. From then till now, I haven't had free access to my property or my home.

THE COURT: ...

What do you want to be able to do, maybe we can figure out how to accommodate the problem? ...

Why don't you tell me what it is you want and we will see if we can work it out.

...

Mr. O'Dell, do you have Michael's work schedule so you know when you can be there, or when you can't?

MR. O'DELL: No, Your Honor, I am concerned about my daughters as well.

THE COURT: Sure, sure of course you are, let's see if we can work that out.

Can you tell us Michael's work schedule, times in which Mr. O'Dell can be at the house without being—

...

This injunction is something that involves you and Michael. And what we can do is get Michael's work schedule so you know when you can be at the apartment without being in risk of violating this injunction.

The judge's oral statements about the injunction during the hearing were not incorporated into the written injunction.

On January 30, 1992, a Dane County Sheriff's Department detective saw O'Dell inside Michael's apartment while there to check on the residency of O'Dell. When the detective knocked on the door, O'Dell answered, wearing pajama bottoms and no shirt. Aware that a restraining order had been issued, the detective arrested O'Dell. In a criminal complaint filed January 31, 1992, O'Dell was charged with the misdemeanor of knowingly violating the written injunction's terms by residing at Michael's home.

During a bench trial,⁶ Michael testified it was possible that, on or about January 30, 1992, he and O'Dell were in the apartment at the same time. Further, according to Michael, O'Dell kept clothing and other possessions at the residence. When O'Dell's attorney attempted to elicit testimony from Michael regarding O'Dell's motion to modify the injunction in June 1991, the following exchange between the court and counsel occurred:

THE COURT: But the issue, as I understand it, is the elements are three—that an injunction was issued, one; that the defendant committed an act that violated the terms of the injunction, two; and three, that the defendant knew that the injunction had been issued and knew that his acts violated its terms.

...

MS. DAVEY O'Dell's Attorney: Well, as I understand it, what Mr. O'Dell is charged with is knowingly violating a restraining order. He was served with a restraining order on November 26th. However, I think what information was provided to Mr. O'Dell at the June 27th hearing goes to, whether he knew whether he was violating the restraining order or not, the knowledge of what the restraining order was.

THE COURT: Well, his knowledge of what the restraining order was is contained in this document signed by Judge Steingass. That is the injunction. That is the restraining order. That's what he is prohibited from doing.

I have read over these transcripts in anticipation of you entering them, and you know, there's a lot of talk by a lot of people at that hearing, most of which is not relevant to anything. Either he was enjoined or he wasn't, and the terms of that injunction as I understand the law in Wisconsin was on that injunction, right or wrong, what is written on that injunction is what you're prohibited from doing, not gratuitous statements by social workers, attorneys, or everybody in the world, or for that matter, gratuitous statements from the judge. What is—what you're enjoined from doing is any acts that violate the written terms of the injunction.

O'Dell testified that on January 30, 1992, he was at the apartment, but he neither saw Michael there nor did he have contact with him anywhere else. Further, O'Dell stated that he kept many of his possessions at the apartment because he and his daughters operated a business from that location. Finally, O'Dell testified about his understanding of the terms of the injunction, stating, "I was to have no contact with Michael ..., that he was to provide me with a schedule of his work activities so that I could be at the residence when he wasn't there."

At the conclusion of the trial, the court made the following findings: (1) a written injunction was issued by Judge Steingass, enjoining O'Dell from contact with Michael and Michael's residence; (2) O'Dell violated the terms of the injunction by living at Michael's home; and (3) the language of the written document gives the injunction effect, not an oral interpretation in a subsequent hearing which may have affected O'Dell's understanding of the injunction's terms. As a result, the circuit court found O'Dell guilty of one count of a violation of § 813.122, Stats., and sentenced him to eight months in the Dane County jail, with Huber privileges. O'Dell's postconviction motion for a new trial on the grounds of ineffective assistance of counsel was denied by the circuit court.

The court of appeals affirmed the judgment of the circuit court and held: (1) there was sufficient evidence to convict O'Dell of violating the terms of the injunction; (2) evidence of O'Dell's presence at the apartment on dates other than January 30,...