State v. Michael K. Lorentz

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.
October 1, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP1515-CR Cir. Ct. No. 2017CM131

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL K. LORENTZ,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Pierce County:
JOSEPH D. BOLES, Judge. Affirmed.

¶1 HRUZ, J.1 Michael Lorentz appeals a judgment, entered following
a jury trial, that convicted him of one count of knowingly violating a domestic
abuse injunction, contrary to WIS. STAT. § 813.12(8)(a), and three counts of

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2018AP1515-CR

knowingly violating a child abuse injunction, contrary to WIS. STAT.
§ 813.122(11). Lorentz raises three arguments on appeal. First, he argues the
circuit court erred by publishing the injunctions to the jury without redacting the
terms “domestic abuse” and “child abuse.” Second, he contends §§ 813.12(8)(a)
and 813.122(11) are unconstitutional as applied to him because the underlying
injunctions are unconstitutionally vague. Third, Lorentz argues the evidence at
trial was insufficient to support his convictions.

¶2 Assuming without deciding that the circuit court erred by publishing
the unredacted injunctions to the jury, we conclude any error in that regard was
harmless. We further conclude that the injunctions are not unconstitutionally
vague, and, as such, WIS. STAT. §§ 813.12(8)(a) and 813.122(11) are not
unconstitutional as applied to Lorentz. Finally, we reject Lorentz’s argument that
the evidence at trial was insufficient to support his convictions. We therefore
affirm.

BACKGROUND

¶3 The following facts are undisputed. On July 16, 2014, Lorentz’s
former wife, Susan, obtained a domestic abuse injunction against him. 2 Among
other things, the injunction required Lorentz to “avoid the petitioner’s residence.”
On the same day, three child abuse injunctions were issued against Lorentz
regarding three of the children he shared with Susan—Zane, Liam and Bennett.
Each of those injunctions required Lorentz to “avoid the child’s residence.”

2
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), we use pseudonyms
when referring to Lorentz’s former wife and their children.

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No. 2018AP1515-CR

¶4 At all times relevant to this case, Susan, Zane, Liam and Bennett
resided at a home located on 390th Avenue in Pierce County. The house is set
back from 390th Avenue by some distance, and a field owned by a third party is
situated between the house and the road. Nonetheless, the house is visible from
390th Avenue.

¶5 On May 14, 2017, Susan was outside in her yard with Zane, Liam,
Bennett, and her older son, Jacob, when they saw Lorentz’s truck drive by on
390th Avenue, past the entrance to Susan’s driveway. Jacob estimated that the
truck was 200 to 300 feet away from them. Lorentz did not stop, honk his horn, or
turn into the driveway, but he drove by “very, very slowly.” Susan and the
children then went inside the house, and Susan called the police.

¶6 Pierce County sheriff’s deputy Kellen Langer was dispatched to
Susan’s residence. During the course of his investigation, Langer spoke with
Lorentz, who admitted that he had driven past Susan’s residence. Lorentz told
Langer that he drove past the residence because he missed his children, whom he
had not seen in several years, and hoped that he might see them. Lorentz also told
Langer that he knew the injunctions were in place, but he did not believe he had
violated them by driving past Susan’s residence because he remained on a public
roadway.

¶7 The State filed a criminal complaint charging Lorentz with one
count of knowingly violating a domestic abuse injunction, contrary to WIS. STAT.
§ 813.12(8)(a), and three counts of knowingly violating a child abuse injunction,
contrary to WIS. STAT. § 813.122(11). Lorentz pled not guilty to each of the
charges against him. He subsequently moved to dismiss those charges, arguing
§§ 813.12(8)(a) and 813.122(11) were unconstitutional as applied to him because

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No. 2018AP1515-CR

the requirement in the injunctions that he avoid Susan and the children’s residence
was unconstitutionally vague. The circuit court denied Lorentz’s motion to
dismiss.

¶8 Before trial, Lorentz filed a motion in limine asking the circuit court
to “prohibit any reference, in the presence of the jury, to the phrases ‘child abuse’
or ‘domestic abuse.’” He argued the “type of injunction” that had been issued
against him was irrelevant to the elements of the charged offenses. Lorentz further
offered to “stipulate to the existence of the underlying injunctions,” and he argued
that such a stipulation precluded the State from introducing any evidence at trial
regarding the types of injunctions. The State opposed Lorentz’s motion, arguing
the jury should be informed of the types of injunctions in order to provide context
as to why Lorentz was required to avoid Susan and the children’s residence.

¶9 The circuit court agreed with Lorentz that the State should not be
permitted to use the phrases “child abuse” and “domestic abuse” at trial. The
court determined, however, that the injunctions themselves were admissible,
subject to a cautionary instruction advising the jurors that they were “only to
consider the fact there is a court order in effect here, … not why it was issued.”
Notably, the injunction pertaining to Susan bore the title “INJUNCTION—
Domestic Abuse,” while the injunctions pertaining to children were titled
“INJUNCTION—Child Abuse.” The court denied Lorentz’s request to redact the
terms “child abuse” and “domestic abuse” from the injunctions.

¶10 The unredacted injunctions were ultimately published to the jury
during trial, over Lorentz’s objection. Immediately before they were published,
the circuit court instructed the jury:

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No. 2018AP1515-CR

These injunctions have some titles that contain language
you are not to consider. In reviewing these, look at the
orders themselves from the Court. …. These were the
actual court orders in effect at the time of the incident. I
want you to disregard any of the labels on the top of these
documents that might label them as a certain type of
injunction. You cannot use them as evidence.

¶11 Thereafter, the jury asked to see the injunctions again during its
deliberations. After considering the parties’ arguments, the circuit court denied
the jury’s request. The court instead instructed the jury:

[T]he parties stipulated that the injunctions, Exhibits 6, 7, 8
and 9 were issued by the Court and were in effect at the
time of the alleged crimes. The only portion of these
injunctions that are relevant is paragraph two of these court
orders. Paragraph two reads, paragraph two in each
injunction reads, quote, the Court orders the Respondent to
avoid the Petitioner’s residence.

¶12 Lorentz did not testify in his own defense at trial. The jury
ultimately returned guilty verdicts on all four counts, and Lorentz now appeals.

DISCUSSION

I. Publication of the unredacted injunctions

¶13 Lorentz argues the circuit court correctly ruled, as an initial matter,
that the State could not use the phrases “domestic abuse” and “child abuse” at
trial. He contends, however, that the court later erred by publishing the
injunctions to the jury without redacting those terms. He argues the existence of

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No. 2018AP1515-CR

the injunctions was a “status element,”3 and because he stipulated to the existence
of the injunctions, the only relevant information they contained was the
requirement that he avoid the residence where Susan and the children lived. He
therefore argues that the court should have merely “admitted the requirement that
Lorentz ‘avoid the residence’ without also informing the jury that the court had
granted [injunctions] for domestic abuse and child abuse.”

¶14 Assuming without deciding that the circuit court erred by publishing
the unredacted injunctions to the jury, we conclude any error in that regard was
harmless. An error is harmless when there is no reasonable possibility that it
contributed to the defendant’s conviction. State v. Dyess, 124 Wis. 2d 525, 543,
370 N.W.2d 222 (1985). A “reasonable possibility” is “one which is sufficient to
undermine confidence in the outcome of the proceeding.” State v. Patricia A.M.,
176 Wis. 2d 542, 556, 500 N.W.2d 289 (1993). The burden is on the beneficiary
of the error—here, the State—to prove beyond a reasonable doubt that the error is
harmless. State v. Agnello, 226 Wis. 2d 164, 178, 593 N.W.2d 427 (1999). The
harmless error inquiry presents a question of law that we review independently.
See State v. Magett, 2014 WI 67, ¶29, 355 Wis. 2d 617, 850 N.W.2d 42.

¶15 Here, we conclude for four reasons that the State has met its burden
of showing there is no reasonable possibility the publication of the unredacted
injunctions contributed to Lorentz’s convictions. First, as noted above, the circuit

3
A “status element” is one that relates to a defendant’s “legal status” and is therefore
“dependent on some judgment rendered wholly independently of the concrete events of later
criminal behavior charged against [the defendant].” Old Chief v. United States, 519 U.S. 172,
190 (1997). For instance, when a defendant is charged with operating a motor vehicle while
intoxicated, the number of the defendant’s prior countable convictions under WIS. STAT.
§ 343.307(1) is a status element. See State v. Alexander, 214 Wis. 2d 628, 646, 571 N.W.2d 662
(1997).

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No. 2018AP1515-CR

court made a pretrial ruling that the State could not use the terms “domestic abuse”
and “child abuse” during trial. The State complied with that ruling, and neither of
those terms was used in the jury’s presence.

¶16 Second, immediately before the injunctions were published to the
jury, the circuit court gave a cautionary instruction admonishing the jurors that
they were to “disregard any of the labels on the top of these documents that might
label them as a certain type of injunction” and they could not “use [those labels] as
evidence.” We presume that jurors follow the court’s instructions. State v. Truax,
151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989).

¶17 Third, the jury saw the injunctions only once during the course of the
trial. Although the jurors asked to see the injunctions again during their
deliberations, the circuit court denied that request. The court instead informed the
jurors that the parties had stipulated to the existence of the injunctions and the only
relevant portions of the injunctions were the provisions requiring Lorentz to avoid
Susan and the children’s residence.

¶18 Fourth, as discussed in the final section of this opinion, ample
evidence was introduced at trial to support Lorentz’s convictions on each of the
four charges. In light of that evidence, we cannot conclude there is a reasonable
possibility that the isolated references to the terms “domestic abuse” and “child
abuse” in the injunctions affected the outcome of Lorentz’s trial. As such, any
error in publishing the unredacted injunctions to the jury was harmless beyond a
reasonable doubt and provides no basis to reverse Lorentz’s convictions.

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No. 2018AP1515-CR

II. As-applied challenges to WIS. STAT. §§ 813.12(8)(a) and 813.122(11)

¶19 Lorentz next argues that WIS. STAT. § 813.12(8)(a)—which prohibits
someone from knowingly violating a domestic abuse injunction—and WIS. STAT.
§ 813.122(11)—which prohibits someone from knowingly violating a child abuse
injunction—are unconstitutional as applied to him. The constitutionality of a
statute presents a question of law that we review independently. Mayo v.
Wisconsin Injured Patients & Families Comp. Fund, 2018 WI 78, ¶23, 383
Wis. 2d 1, 914 N.W.2d 678. In an as-applied challenge, “we assess the merits of
the challenge by considering the facts of the particular case in front of us, ‘not
hypothetical facts in other situations.’” Id., ¶24 (citation omitted). In other words,
the party challenging the statute must show “that his or her constitutional rights
were actually violated.” Id. (citation omitted). We presume that the statute is
constitutional, and the challenger bears the “very heavy burden” of overcoming
that presumption. Id., ¶¶25, 27.

¶20 Lorentz argues WIS. STAT. §§ 813.12(8)(a) and 813.122(11) are
unconstitutional as applied to him because the underlying injunctions are
unconstitutionally vague. To survive a vagueness challenge, the injunctions must
be “sufficiently definite to give persons of ordinary intelligence who wish to abide
by the law sufficient notice of the proscribed conduct.” See Bachowski v.
Salamone, 139 Wis. 2d 397, 406, 407 N.W.2d 533 (1987). The injunctions must
also be specific enough to “permit law enforcement officers, judges and juries to
enforce and apply the law without forcing them to create their own standards.”
See id. However, the injunctions need not “attain the precision of mathematics or
science” in order to withstand a vagueness challenge. See id. at 407 (citation
omitted).

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No. 2018AP1515-CR

¶21 The injunctions in this case required Lorentz to “avoid” the
“residence” where Susan and the children lived. Lorentz contends this
requirement is unconstitutionally vague because the terms “avoid” and
“residence”—which are not defined in the injunctions—are too indefinite to
provide him with notice of the proscribed conduct.

¶22 We disagree. As Lorentz concedes, we may consult a recognized
dictionary in order to determine the common and accepted meanings of undefined
terms. See Currier v. DOR, 2006 WI App 12, ¶9, 288 Wis. 2d 693, 709 N.W.2d
520 (2005). As relevant here, the New Oxford American Dictionary defines
“avoid” as “keep away from,” which even Lorentz recognizes as an applicable
definition.4 Avoid, NEW OXFORD AMERICAN DICTIONARY (2001). “Residence,”
in turn, is defined as “a person’s house.” Residence, NEW OXFORD AMERICAN
DICTIONARY (2001). Applying these basic definitions, the injunctions clearly
required Lorentz to “keep away from” the “house” where Susan and the children
lived. Lorentz’s various attempts to complicate the plain meaning of these
terms—especially in the context of this case—clearly fail. Rather, the injunctions
were sufficiently definite to give Lorentz notice of the proscribed conduct and to
allow law enforcement, the circuit court, and the jury to enforce and apply the law
without creating their own standards. See Bachowski, 139 Wis. 2d at 406.

4
The New Oxford American Dictionary provides several alternative definitions of the
word “avoid,” namely: (1) “stop oneself from doing (something)”; (2) “contrive not to meet
(someone)”; (3) “(of a person or a route) not go to or through (a place)”; (4) “prevent from
happening”; and (5) “repudiate, nullify, or render void (a decree or contract).” Avoid, NEW
OXFORD AMERICAN DICTIONARY (2001). In this case, where the injunctions required Lorentz to
“avoid” a specific place—i.e., Susan and the children’s residence—we conclude the relevant
definition of “avoid” is “keep away from.” See id.

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No. 2018AP1515-CR

¶23 In support of his claim that the injunctions are unconstitutionally
vague, Lorentz raises a number of hypothetical fact scenarios and questions
whether, under those circumstances, his conduct would have violated the
injunctions:

Must Mr. Lorentz have touched or trespassed upon a piece
of property owned by his former wife or was he prohibited
from being near the end of her driveway and her mailbox?
If he was too close, how close is too close? Could he have
driven on 390th [Avenue] but not within 100 feet of the
driveway, a quarter of a mile away, a mile, 10 miles away?

¶24 This argument fails because “when the alleged conduct of the
accused plainly falls in the prohibited zone sought to be proscribed by the
[injunction] in question, the accused may not base a constitutional vagueness
challenge on hypothetical facts.”5 See State v. La Plante, 186 Wis. 2d 427, 433,
521 N.W.2d 448 (Ct. App. 1994). Here, Lorentz’s conduct clearly fell within the
zone of activities proscribed by the injunctions. Instead of keeping away from the
house where Susan and the children lived, as required by the injunctions, Lorentz
drove slowly past the house with the express goal of seeing the children. It is
undisputed that he came close enough to the residence that Susan and the children
could see and identify his vehicle from their yard. Any speculation about how
close Lorentz could possibly have come to the house without violating the

5
An exception to this rule exists when the defendant’s vagueness challenge implicates a
First Amendment right. See State v. Smith, 215 Wis. 2d 84, 91, 572 N.W.2d 496 (Ct. App.
1997). Lorentz does not argue, however, that any First Amendment right is implicated in this
case.

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No. 2018AP1515-CR

injunctions is therefore immaterial, given that Lorentz’s conduct clearly violated
the injunctions.6

¶25 In the alternative, Lorentz argues that WIS. STAT. §§ 813.12(8)(a)
and 813.122(11) are unconstitutional as applied to him because they are
overbroad. “A statute is overbroad when its language, given its normal meaning,
is so sweeping that its sanctions may be applied to constitutionally protected
conduct which the state is not permitted to regulate.” Bachowski, 139 Wis. 2d at
411. Lorentz contends the statutes at issue in this case are overbroad as applied to
him because the language of the underlying injunctions “swept so broadly as to
interfere with [his] fundamental right to travel.”

¶26 As the State correctly notes, however, Lorentz failed to raise any
argument regarding overbreadth in the circuit court. “Issues that are not preserved
at the circuit court, even alleged constitutional errors, generally will not be
considered on appeal.” State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611
N.W.2d 727. We therefore decline to address Lorentz’s new argument that WIS.
STAT. §§ 813.12(8)(a) and 813.122(11) are unconstitutional as applied to him
because they are overbroad.

6
In his reply brief, Lorentz claims the State “concedes” that the statutes at issue are
unconstitutional as applied to him because the State’s argument does not directly address some of
the language used within his arguments nor does it reference certain words (i.e., “constitutional”
or “unconstitutional”) enough in its brief. This contention is specious. The State clearly
disagrees with Lorentz’s assertions regarding the unconstitutionality of the statutes, and it
sufficiently argued as such in its brief.

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No. 2018AP1515-CR

III. Sufficiency of the evidence

¶27 Finally, Lorentz argues that the evidence at trial was insufficient to
support his convictions. Whether the evidence was sufficient to sustain a
defendant’s conviction is a question of law that we review independently. State v.
Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410.

¶28 We apply a “highly deferential” test when reviewing the sufficiency
of the evidence to support a defendant’s conviction. State v. Kimbrough, 2001 WI
App 138, ¶12, 246 Wis. 2d 648, 630 N.W.2d 752. We may not substitute our
judgment for that of the factfinder unless the evidence, viewed most favorably to
the State and the conviction, is so lacking in probative value and force that no trier
of fact, acting reasonably, could have found guilt beyond a reasonable doubt.
State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). We must
therefore affirm “[i]f any possibility exists that the trier of fact could have drawn
the appropriate inferences from the evidence adduced at trial to find the requisite
guilt,” even if we believe the trier of fact should not have found guilt based on the
evidence before it. Id.

¶29 In this case, in order to convict Lorentz of each of the four counts
charged in the complaint, the State needed to prove: (1) that an injunction was
issued against Lorentz; (2) that Lorentz violated the terms of the injunction; and
(3) that Lorentz knew the injunction had been issued and knew his actions violated
its terms. See WIS JI—CRIMINAL 2040 (2011). On appeal, Lorentz first contends
the evidence at trial was insufficient to prove the second element—i.e., that he
violated the terms of the injunctions by failing to “avoid” the “residence” where
Susan and the children lived.

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No. 2018AP1515-CR

¶30 We disagree. At trial, the State introduced evidence that Lorentz
drove slowly past Susan and the children’s house on May 14, 2017. Susan and the
children were outside in the yard at the time, and Lorentz came close enough and
proceeded at such a slow speed that they could see and identify his vehicle. Jacob
estimated that Lorentz’s vehicle was 200 to 300 feet away from them. Lorentz
subsequently admitted to deputy Langer that he had driven past the residence and
that he had done so with the express purpose of seeing the children. Based on this
evidence—none of which Lorentz disputed—the jury could easily find that
Lorentz violated the injunctions by failing to avoid Susan and the children’s
residence.

¶31 Lorentz also argues the evidence was insufficient to establish the
third element of the charged offenses—specifically, that he knew his actions
violated the injunctions. Lorentz emphasizes that he told Langer he did not
believe he had violated the injunctions by driving past Susan and the children’s
residence because he was on a public roadway. He contends the State “produced
no evidence indicating why the jury should doubt [his] claim that he believed he
was not violating the injunctions.” “Given this record,” Lorentz argues the State
failed to prove that he knew his actions violated the injunctions.

¶32 Again, we disagree with Lorentz’s assessment of the evidence.
Lorentz does not dispute that he was aware of the injunctions, each of which
required him to “avoid the … residence” where Susan and the children lived.
Lorentz nevertheless intentionally drove slowly past the residence, and he
conceded that he did so for the express purpose of seeing the children. Moreover,
Lorentz came close enough to the house that Susan and the children, who were
outside in the yard, could see and identify his vehicle. Based on this evidence, the
jury could reasonably infer that Lorentz knew his actions violated the injunctions.

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No. 2018AP1515-CR

¶33 The jury was not required to accept Lorentz’s self-serving statement
to Langer that he did not believe he had violated the injunctions merely because he
had remained on a public roadway. “It is the function of the trier of fact, and not
of an appellate court, to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Poellinger, 153 Wis. 2d at 506. When the credible evidence supports more than
one inference, we must accept the inference drawn by the trier of fact. Id. at
506-07. Here, the jury was well within its province to infer from the totality of the
evidence that Lorentz knew his actions violated the injunctions, notwithstanding
his contrary statement to Langer. We therefore reject Lorentz’s claim that the
evidence at trial was insufficient to prove he knowingly violated the injunctions.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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