State v. Matthew E. Kinserdahl

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 31, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP908-CR Cir. Ct. No. 2019CF429

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MATTHEW E. KINSERDAHL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Monroe County: RICHARD A. RADCLIFFE, Judge. Affirmed.

Before Blanchard, Graham, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Matthew Kinserdahl appeals a judgment of
conviction for violating a harassment injunction and bail jumping following a jury
No. 2022AP908-CR

trial, and an order denying his postconviction motion for a new trial. Kinserdahl
contends that his trial counsel was ineffective by failing to request that the circuit
court modify the standard jury instruction for the offense of violating a harassment
injunction to instruct that “harassment” does not include speech that has a
“legitimate purpose.” Kinserdahl also contends that he was entitled to a jury
instruction explaining that only “true threats” can create criminal liability. Finally,
Kinserdahl argues that a new trial is warranted in the interest of justice. We
conclude that Kinserdahl’s trial counsel was not ineffective by failing to request
the jury instruction modifications that Kinserdahl asserts should have been
requested, and that a new trial is not warranted in the interest of justice. We
affirm.

Background

¶2 Kinserdahl was charged with bail jumping, violating a harassment
injunction, and disorderly conduct based on a conflict with his ex-wife, A.B.,
during a scheduled child exchange.1 The harassment injunction that was in effect
directed Kinserdahl to: (1) “cease or avoid the harassment of [A.B.]”; (2) “avoid
[A.B.’s] residence and/or any premises temporarily occupied by” her; and
(3) “avoid contact that harasses or intimidates [A.B].” The injunction also
provided that the circuit court in the divorce action was authorized to enter
specific written orders to allow limited contact between the parties for purposes of
child visitation, communication about the child, and emergencies about the child,
and that all such orders would be exceptions to the injunction.

1
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4) (2021-22), we use
initials that do not match the victim’s name when referring to her. All references to the
Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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No. 2022AP908-CR

¶3 At trial, there was no dispute about the following facts. The parties
met at a convenience store parking lot for a scheduled child exchange, as
authorized by the circuit court in the divorce action. A.B. and Kinserdahl parked
their vehicles about six or seven spaces from each other and exited their vehicles.
A.B. walked their child toward Kinserdahl, transferred their child to him, and
walked back toward her own vehicle.

¶4 The parties disputed what happened next. A.B. testified to the
following sequence of events immediately following the child exchange. As A.B.
was walking back toward her car, Kinserdahl began yelling and swearing, so A.B.
turned back to look toward him. Kinserdahl yelled at A.B. that she was “a stupid
bitch, a cunt, a piece of shit,” and “I hope you die, I effing hate you.” As
Kinserdahl was yelling at A.B., Kinserdahl walked toward A.B., until he was
within about two feet of her. Kinserdahl also screamed at A.B.’s fiancé, who was
seated in her car, “Come on, you dumb fucker, get out of the car, let’s go, let’s go,
let’s go.” A.B. told her fiancé to call 911. Kinserdahl said, “Go call the fucking
cops, I don’t care, call ’em, call ’em,” and started walking back toward his vehicle.
Kinserdahl then got in his vehicle, “peeled out,” and pulled up in front of A.B.’s
vehicle so that his vehicle was about one foot from her bumper. Kinserdahl
opened his vehicle door, put a leg out of the vehicle, and continued yelling at A.B.
Kinserdahl then got back into his vehicle and drove away.

¶5 Kinserdahl, in contrast, testified to the following sequence of events
following the child exchange. As Kinserdahl was securing the child in his vehicle,
he looked over toward A.B.’s vehicle and saw A.B. and her fiancé gesturing
toward each other as if to say, “[W]hat’s going on[?]” Kinserdahl thought maybe
they wanted to discuss something about the child, so he finished securing the child
in the vehicle, then went around the corner of the vehicle and asked if there was

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No. 2022AP908-CR

anything they needed to discuss related to the child. A.B. asked Kinserdahl, “Did
you get my certified letter in the mail[?]” which he took to be a reference to a
letter she had sent him requesting placement of the child during a weekend when
the child was scheduled to be with Kinserdahl.2 Kinserdahl responded that he had
received the letter but that he intended to exercise his placement as scheduled, and
that if A.B. failed to comply, he would take legal action. A.B. started screaming at
Kinserdahl that the conversation was in violation of the restraining order.
Kinserdahl denied calling A.B. any names or saying that he wished she would die.
When Kinserdahl realized the conversation was not going to be productive, he got
into his vehicle and started driving away. He could see that A.B. was agitated and
yelling, but he could not hear her because his window was rolled up. Because
Kinserdahl had to pass A.B.’s vehicle on his way out of the parking lot anyway, he
pulled up next to A.B.’s vehicle and opened his door for a second to hear if A.B.
was telling him something. At that point, Kinserdahl heard A.B. say, “I’m calling
the cops.” Kinserdahl told her, “[Y]ou can call whoever you’d like,” and drove
home.

¶6 The jury found Kinserdahl guilty of knowingly violating an
injunction and bail jumping, but not guilty of disorderly conduct, and the circuit
court sentenced him.

¶7 Kinserdahl filed a postconviction motion seeking a new trial on
grounds of ineffective assistance of trial counsel. The circuit court held a
Machner3 hearing and, after the hearing, determined that Kinserdahl’s trial
2
During A.B.’s testimony, she agreed that, prior to the child exchange, she had sent
Kinserdahl a certified letter requesting placement of the child on her upcoming wedding day.
3
State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2022AP908-CR

counsel was not ineffective. The court denied the postconviction motion.
Kinserdahl appeals.

Standard of Review

¶8 A party claiming ineffective assistance of trial counsel must show
that counsel performed deficiently and also show that the deficient performance
prejudiced the defendant. See Strickland v. Washington, 466 U.S. 668, 687
(1984). To establish deficient performance, the defendant must show that
“counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. To establish prejudice,
the defendant must demonstrate that there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. We need not address both components of this inquiry if the
defendant does not make a sufficient showing on one. See id. at 697.

¶9 We review an ineffective assistance of counsel claim as a mixed
question of fact and law. See State v. Erickson, 227 Wis. 2d 758, 768, 596
N.W.2d 749 (1999). The circuit court’s findings of fact will not be disturbed
unless they are clearly erroneous. Id. “We independently review, as a matter of
law, whether those facts demonstrate ineffective assistance of counsel.” State v.
Pico, 2018 WI 66, ¶13, 382 Wis. 2d 273, 914 N.W.2d 95.

Discussion

¶10 Kinserdahl argues that the charge of violating a harassment
injunction was based solely on the claim that Kinserdahl’s speech was
“harassment” or “contact [that] harassed or intimidated” A.B., and that his alleged
offensive speech was entitled to First Amendment protection. See Street v. New

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No. 2022AP908-CR

York, 394 U.S. 576, 592 (1969) (“It is firmly settled that under our Constitution
the public expression of ideas may not be prohibited merely because the ideas are
themselves offensive to some of their hearers.”). Kinserdahl contends that, to
separate “protected” from “unprotected” speech, a prosecution for violating a
harassment injunction based on speech alone requires a finding that the speech
served “no legitimate purpose.” See WIS. STAT. § 813.125(1)(am)4.b. (defining
“harassment” as “committing acts which harass or intimidate another and which
serve no legitimate purpose”); Welytok v. Ziolkowski, 2008 WI App 67, ¶¶25, 30,
312 Wis. 2d 435, 752 N.W.2d 359 (harassment is committed “when the actor,
‘with intent to harass or intimidate another person ... [e]ngages in a course of
conduct or repeatedly commits acts which harass or intimidate the person and
which serve no legitimate purpose’” (quoted source omitted)).

¶11 From that premise, Kinserdahl contends that his trial counsel should
have requested a modification to the standard jury instruction for violating an
injunction, WIS JI—CRIMINAL 2040, to instruct the jury “that it may only find that
a defendant violated an injunction by harassment [if] the relevant statements did
not have any legitimate purpose when they were made.” Kinserdahl contends that,
absent a modification to define “harassment” as excluding speech that served a
“legitimate purpose,” the jury could have improperly defined “harassment” and
“intimidation” by the effect that his words had on A.B. rather than on his intent.
Kinserdahl contends that an instruction as to “legitimate purpose” was necessary
for the jury to consider whether his speech was constitutionally protected because
he had the “legitimate purpose” of communicating with A.B. about the upcoming
placement schedule for the child. He also argues that he was prejudiced by the
lack of a “legitimate purpose” instruction because the jury found him not guilty of
disorderly conduct. He argues that this finding “necessarily implies that the jury

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No. 2022AP908-CR

concluded either that the State did not meet its burden of showing that [he] caused
or provoked a disturbance, or that his behavior was reasonable enough under the
circumstances [that the jury] did not consider the speech [to be] violent, abusive,
indecent, profane, boisterous unreasonably loud, or otherwise disorderly.”
Therefore, Kinserdahl argues, the jury “would have paid careful attention to” an
instruction that he could not be convicted for the injunction violation if his speech
had a legitimate purpose.

¶12 We are not persuaded that the jury instruction modification that
Kinserdahl proposes would have been appropriate in this case for two reasons.

¶13 First, contrary to Kinserdahl’s assertion, the prosecution theory was
not that he violated the harassment injunction based on speech alone, and there
was evidence of potentially harassing conduct beyond speech. As summarized
above, A.B. testified that, while Kinserdahl yelled profanities at her, he walked up
to and within two feet of her, and that he then “peeled out” in his vehicle and
drove within a foot of the bumper of her vehicle, opened the door, and put his leg
out of the vehicle while continuing to yell at her.4

¶14 Kinserdahl disputes that the jury could have found that this alleged
conduct either harassed or intimidated A.B. Rather, he contends, this conduct was
at most merely “bothersome or annoying,” because it was “‘immature,
immoderate, rude or patronizing.’” See Bachowski v. Salamone, 139 Wis. 2d
397, 407-08, 407 N.W.2d 533 (1987) (quoted source omitted). We are not

4
A.B. also testified that during this incident she and Kinserdahl had no discussion about
the upcoming placement for their child and that she did not know what provoked Kinserdahl to
act in this aggressive manner.

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No. 2022AP908-CR

persuaded that no reasonable jury could have concluded that Kinserdahl’s actions,
including his speech, “harassed” or “intimidated” A.B. See id. (holding that
“harass” and “intimidate” under WIS. STAT. § 813.125(1)(b) should be given their
dictionary definitions; that is, “‘[h]arass’ means to worry and impede by repeated
attacks, to vex, trouble or annoy continually or chronically, to plague, bedevil or
badger”; and “‘[i]ntimidate’ means ‘to make timid or fearful’” (quoted source
omitted)).

¶15 Second, as Kinserdahl concedes, our supreme court has held that
speech is “harassment” if it is intended to harass or intimidate, even if it also
serves a legitimate purpose. See Board of Regents-UW System v. Decker, 2014
WI 68, ¶38, 355 Wis. 2d 800, 850 N.W.2d 112, (rejecting the argument that
speech which serves a legitimate purpose cannot be harassment, and explaining
that “Decker cannot shield his harassing conduct from regulation by labeling it
‘protest’”; and, if his “purpose was even in part to harass the Board of Regents, his
conduct may be enjoined under WIS. STAT. § 813.125”).

¶16 We turn to Kinserdahl’s contention that he was entitled to a
modification of the jury instruction regarding harassment injunctions to include an
instruction as to a “true threat” under State v. Perkins, 2001 WI 46, 243 Wis. 2d
141, 626 N.W.2d 762.5 Perkins, however, is inapposite.

5
The State argues that Kinserdahl is limited to raising this argument under the rubric of
ineffective assistance of trial counsel because his counsel did not preserve this objection to the
jury instructions at trial. See State v. McKellips, 2016 WI 51, ¶47, 369 Wis. 2d 437, 881 N.W.2d
258. Kinserdahl does not dispute that contention in reply, and we accept his failure to refute the
State’s argument as a concession that this claim must be analyzed as one of ineffective assistance
of trial counsel. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d
750, 738 N.W.2d 578 (failure by appellant to respond in reply brief to an argument made in
respondent’s brief may be taken as a concession).

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No. 2022AP908-CR

¶17 Perkins was charged with threatening a judge. Id., ¶1. Our supreme
court recognized that “some threatening words are protected speech under the First
Amendment” and that “[o]nly a ‘true threat’ is constitutionally punishable under
statutes criminalizing threats.” Id., ¶¶17, 29. The Perkins court addressed
whether the jury instruction for the crime of threatening a judge “adequately
explain[ed] to the jury the difference between a ‘true threat’ and protected free
speech.” Id., ¶32. The court held that the jury instruction did not sufficiently
instruct the jury on that essential element of the crime and, for that reason, the
controversy had not been fully tried. Id., ¶¶37, 49.

¶18 Thus, in Perkins, the charged crime of threatening a judge required
the State to prove beyond a reasonable doubt “that the defendant threatened to
cause bodily harm to [the judge].” Id., ¶34. Here, Kinserdahl was charged with
violating a harassment injunction. The elements that the State is required to prove
for that crime are the following: (1) an injunction was issued against Kinserdahl;
(2) Kinserdahl committed an act that violated the terms of the injunction; and
(3) Kinserdahl knew that the injunction had been issued and knew that his acts
violated its terms.6 See WIS JI—CRIMINAL 2040. None of these elements
required the State here to show that Kinserdahl “threatened” A.B., and the jury
was not instructed to find whether Kinserdahl made a “threat” against her. 7 It is
6
Kinserdahl asserts that the circuit court erred to the extent that it could be interpreted to
have stated that Kinserdahl’s mere presence at the parking lot, in and of itself, could have
constituted a violation of the harassment injunction. However, Kinserdahl makes no argument
that he was charged or convicted based solely on his presence at that time and place, and we do
not address this assertion further.
7
“A true threat is a statement that a speaker would reasonably foresee that a listener
would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished
from hyperbole, jest ... or other similarly protected speech.” State v. Perkins, 2001 WI 46, ¶29,
243 Wis. 2d 141, 626 N.W.2d 762. Following Perkins, the jury instruction for the crime of
threatening a judge now provides the following definition:
(continued)

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No. 2022AP908-CR

true that the proof here included allegations that Kinserdahl said to A.B., “I hope
you die,” and that he said to A.B.’s fiancé, “get out of the car, let’s go, let’s go,
let’s go.” Both statements are aggressive and hostile, with the second being an
invitation to what would be a mutual physical fight. But neither is reasonably
characterized as a threat. For all of these reasons, we conclude that Kinserdahl’s
trial counsel was not ineffective for failing to request the “true threats” instruction
under Perkins.

¶19 Kinserdahl requests that we exercise our discretion to order a new
trial in the interest of justice. We may order a new trial in the interest of justice “if
it appears from the record that the real controversy has not been fully tried, or that
it is probable that justice has for any reason miscarried[.]” WIS. STAT. § 752.35.
However, we do so only in exceptional cases. See State v. McKellips, 2016 WI
51, ¶30, 369 Wis. 2d 437, 881 N.W.2d 258. Here, Kinserdahl argues that the real
controversy was not fully tried because the jury should have been instructed to
find Kinserdahl not guilty “if his behavior was consistent with a legitimate
purpose, particularly responding to an upset former spouse and attempting to
ensure that he was able to see his child pursuant to the Family Court order.” He
contends that, without the definition of “harassment” as excluding speech with a

A “threat” is an expression of intention to do harm and
may be communicated orally, in writing, or by conduct. This
element requires a true threat. “True threat” means that a
reasonable person would interpret the threat as a serious
expression of intent to do harm, and the person making the
statement is aware that others could regard the statement as a
threat and delivers it anyway. It is not necessary that the person
making the threat have the ability to carry out the threat. You
must consider all the circumstances in determining whether a
threat is a true threat.

WISCONSIN JI—CRIMINAL 1240B.

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No. 2022AP908-CR

“legitimate purpose,” the jury was left with the impression that it could convict
Kinserdahl based “solely on legally protected speech.”

¶20 For reasons we have already essentially explained, we conclude that
justice has not miscarried and that extraordinary relief is not warranted in this
case. We are not persuaded that the real controversy was not fully tried because
the jury was not instructed that Kinserdahl could not be convicted unless his
speech served no legitimate purpose. Even accepting Kinserdahl’s premise that
the purpose of his speech was to communicate with A.B. about future child
placement, that “legitimate purpose” did not shield his conduct from violating the
harassment injunction if it was also intended to harass or intimidate A.B. See
Board of Regents-UW System, 355 Wis. 2d 800, ¶38. The dispute in this case
was whether Kinserdahl violated the harassment injunction by harassing or
intimidating A.B., and that controversy was fully tried. Thus, we decline to
exercise our discretionary powers to order a new trial in the interests of justice.
We affirm.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS.
STAT. RULE 809.23(1)(b)5.

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