Postconviction Motion Denied

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Korry L. Ardell

Case No.: 2017AP381-CR

Officials: Brennan, P.J., Kessler and Brash, JJ.

Focus: Postconviction Motion Denied

Korry L. Ardell appeals a judgment of conviction for one count of stalking and an order denying his motion for postconviction relief. The stalking charge was based on Ardell’s conduct toward N., a woman who went on three dates with him after they met in 2007 on an online dating site. Ardell argues that the circuit court erred when it ruled that specific emails Ardell sent in 2014 to a principal for whom N. had worked were admissible to prove that Ardell violated the stalking statute when he “intentionally engage[d]” in a “course of conduct directed at [N.],” specifically “[s]ending material … for the purpose of obtaining information about, disseminating information about, or communicating with the victim, to … an employer, coworker, or friend of the victim.”  Ardell argues first that those emails were irrelevant and inadmissible because they were not “directed at” N. and because the State produced no evidence that he sent them with the subjective intention of making N. fear bodily injury. He makes the same arguments with regard to the jury instructions—that they failed to state the law correctly on the “directed at” issue and the intent issue—and he argues that he is entitled to a new trial because failure to preserve this issue constituted ineffective assistance of counsel. Finally, he argues that he is entitled to a new trial in the interest of justice under WIS. STAT. § 752.35.

Giving effect to the plain meaning of the statute, we conclude that the circuit court’s evidentiary ruling applied the correct legal standard. A jury could find that the act of sending the emails to the principal was a course of conduct Ardell “intentionally engage[d] in” that was “directed at” N. Contrary to Ardell’s interpretation, the words “directed at” do not require the State to prove that the defendant actually intended for the communications to reach the victim. The statute expressly encompasses communications to a third party, and we decline to interpret the statute so strictly that its purpose is defeated. The unpreserved issues are reviewed under the ineffective assistance rubric, and we reject the argument that trial counsel performed deficiently by failing to raise the arguments raised here because as Ardell acknowledges, no Wisconsin court has held that the statute is interpreted as having the heightened requirements he advocates, and it is well established that it is not deficient performance when counsel fails to make an argument based on a legal interpretation no court has adopted.  Finally, this is not the rare or extraordinary case that is appropriate for employing our discretionary reversal powers. We therefore affirm.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.