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Sufficiency of Evidence

By: Derek Hawkins//September 26, 2021//

Sufficiency of Evidence

By: Derek Hawkins//September 26, 2021//

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Angelina M. Hansen

Case No.: 2019AP1105-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Sufficiency of Evidence

Angelina Hansen appeals a judgment of conviction, following a jury verdict, for criminal contempt of court in relation to her violation of a family court order setting the conditions under which she could exercise physical placement with her children. Hansen visited her children at school during their lunch period under circumstances where she was not entitled to exercise physical placement. She contends the trial evidence was insufficient, as a matter of law, to support her contempt conviction, because the jury was repeatedly and erroneously told the order restricted her from merely “visiting” or having “visitation” with those children. Hansen argues that, as a statutory matter, “physical placement” does not encompass a parent’s mere “visit” with his or her child, even if the parent intentionally interacted with the child. For a parent to have exercised physical placement, Hansen contends, that parent must also have actually made decisions about a child’s daily care.

Consistent with Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W.2d 159, we conclude that the Wisconsin Statutes do not provide for a parent’s statutory “visitation” with his or her children but instead provide for physical placement with the children. Court-ordered “physical placement,” as that term is defined in WIS. STAT. § 767.001(5) (2019-20), grants a noncustodial parent, such as Hansen, the following two rights that may only be exercised in accordance with the applicable court order: (1) to be physically present with a child; and (2) to make routine daily decisions regarding the child’s care, consistent with the major decisions made by a person having legal custody of the child. As explained in more detail below, under existing law and common sense, the first of these two rights includes the concept of “visiting”—or otherwise personally interacting with—a child. And contrary to Hansen’s legal contention, we hold that a parent exercises physical placement rights if he or she is physically present with his or her children and in a position to make decisions regarding their daily care Under such circumstances, a fact finder may conclude, without needing to divine whether (or how) such care decisions actually occurred, that a parent violated a physical placement order.

Only intentional violations of such an order, however, can rise to the level of criminal contempt. See WIS. STAT. § 785.01(1). In this case, Hansen was permitted to have a single, two-to-four-hour in-person interaction with her children each week, and only when arranged in advance and supervised. No error occurred when the phrase “physical placement” was used interchangeably with “visitation,” or the like, throughout the trial because Hansen had no right to be physically present with her children at their school and in a position where she could make decisions regarding their care without supervision and approval for the visit. By coming to her children’s school without permission, sitting with her children while they ate lunch, and deceiving school staff regarding her identity, the jury could properly find that Hansen intentionally violated the family court order. Therefore, Hansen’s contempt conviction on this record is valid.

We also conclude that Hansen’s ineffective assistance of counsel claims fail. Hansen asserts that these claims require the vacation of her other two convictions and a new trial on those charges—i.e., second-degree recklessly endangering safety and obstructing an officer—both of which relate to an altercation between Hansen and a law enforcement officer in the parking lot of her children’s school. Hansen first claims that her counsel was deficient by failing to object to alleged mischaracterizations of the family court order. That claim, however, is dependent on her substantive arguments of error, which we reject on the merits. Hansen’s second ineffective assistance claim regarding counsel’s failure to play a video of her post-arrest interrogation with law enforcement fails because it overstates the applicable evidence, and because her counsel reasonably chose not to play the video at trial. Accordingly, we affirm.

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Derek A Hawkins is Corporate Counsel, at Salesforce.

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