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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 7, 1998
A party may file with the Supreme Court a
                                                                                      Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                      Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                      of Wisconsin              STATS.
No.                                                                                   98-0041-CR
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
STEVEN J. FISCHER,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and  an order  of  the circuit court for
Juneau County:  JOHN W. BRADY, Judge.  Affirmed.
ROGGENSACK, J.1    Steven Fischer appeals from his conviction
for disorderly conduct and from an order denying him postconviction relief.   He
claims that the circuit court erroneously exercised its discretion when it excluded
evidence which explained the argument that resulted in the charge against him,
1  This appeal is decided by one judge pursuant to § 752.31(2)(f), STATS.




No. 98-0041-CR
and when it conditioned his probation on a no-contact provision in regard to his
stepchildren.   Because this court concludes that the first decision was well within
the circuit court’s discretion and any objection to the second decision was waived,
the judgment and order are affirmed.
BACKGROUND
On April 4, 1996, Fischer was charged with one count of disorderly
conduct following a heated argument with his estranged wife, Donna, in which she
said that he had called her a bitch and threatened to throw her off the porch.   Three
of  Donna’s  daughters  witnessed  the  incident  and  corroborated  Donna’s  story.
Fischer initially admitted that he had called his wife a bitch and threatened to
throw her off the porch, but subsequently he denied it.   Fischer claimed that the
dispute  arose  because  of  his  attempts  to  stop  the  sexual  activities  of  one  of
Donna’s minor daughters.    He sought to introduce evidence of that daughter’s
prior sexual activity to bolster his version of events.   The State filed a motion in
limine to prohibit the introduction of that evidence.   The circuit court excluded the
evidence on the grounds that it was not relevant, and even if it were marginally
relevant, it would confuse or mislead the jury.
After Fischer was found guilty, the court gave him a stayed sentence
of ninety days in jail, and placed him on eighteen months probation, conditioned
on no contact with his stepchildren.   Fischer did not object to the conditions of
probation, either at sentencing or at a hearing on his postconviction challenge to
the exclusion of evidence.
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No. 98-0041-CR
DISCUSSION
Standard of Review.
The exclusion of evidence is a discretionary determination which
will not be reversed if the trial court rationally applied an appropriate standard of
law to the facts of record to reach a reasonable conclusion.   State v. Pittman, 174
Wis.2d 255, 267, 496 N.W.2d 74, 79-80 (1993).   The imposition of conditions of
probation is also a discretionary determination, and the same standard applies.
State v. Brown, 174 Wis.2d 550, 553, 497 N.W.2d 463, 464 (Ct. App. 1993).
Exclusion of Evidence.
Fischer  offers  several  theories  under  which  evidence  of  his
stepchild’s sexual activity should have been admitted:    that it was relevant to
intent; that it was relevant to provocation; or that it was relevant to privilege.
None of these theories has merit.
Only evidence  which  is  relevant  is  admissible.    Section  904.02,
STATS.   Relevant evidence is that which has a “tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.”   Section 904.01, STATS.   In
addition, § 904.03, STATS., allows the circuit court to exclude otherwise relevant,
admissible  evidence  if  it  concludes  it  may  result  in                            “confusion  of  issues,  or
misleading the jury … [or] undue delay, waste of time, or needless presentation of
cumulative evidence.”   State v. Echols, 175 Wis.2d 653, 677, 499 N.W.2d 631,
638 (1993).
Wisconsin’s disorderly conduct statute is straightforward.   Section
947.01, STATS., provides:
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No. 98-0041-CR
Whoever, in a public or private place, engages in
violent,                                                                                abusive,                   indecent,   profane,   boisterous,
unreasonably loud or otherwise disorderly conduct under
circumstances  in  which  the  conduct  tends  to  cause  or
provoke a disturbance is guilty of a Class B misdemeanor.
The statute thus creates two elements for disorderly conduct:                           (1) conduct of the
type enumerated in the statute;   and (2) circumstances in which the conduct would
tend to cause a disturbance.   City of Oak Creek v. King, 148 Wis.2d 532, 540, 436
N.W.2d 285, 288 (1989).
Neither motive nor intent are elements of the crime of disorderly
conduct, and thus evidence of what impact Fischer’s concern over his stepchild’s
alleged sexual history may have had on his conduct was not relevant to the crime
charged and was properly excluded under §§ 904.01 and 904.02, STATS.
Provocation may act to excuse the conduct of a defendant whose
victim “engages in unlawful conduct of a type likely to provoke others to attack
him.”   Section  939.48(2)(a), STATS.   Here, however, the stepchild whose prior
sexual history Fischer sought to introduce was not the victim of the disorderly
conduct.   Fischer’s wife was the victim.   Therefore, the testimony excluded was
not relevant to the defense of provocation.
In order to justify his actions as a privileged attempt to prevent harm
to  his  stepchild,  Fischer  would  need  to  demonstrate                              “that  a  direct  causal
relationship be reasonably anticipated to exist between the defender’s action and
the avoidance of harm.”   State v. Olsen, 99 Wis.2d 572, 578 n.3, 299 N.W.2d 632,
636 n.3 (Ct. App. 1980).   However, the proffered evidence was not relevant to the
establishment of privilege.   The stepchild’s alleged past sexual history had nothing
to do with the issue of whether the child was in some imminent danger at the time
of  Fischer’s  conduct.     Moreover,  Fischer  fails  to  explain  how  screaming
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No. 98-0041-CR
profanities at his estranged wife or threatening to push her off of a porch would
have  prevented  harm  to  the  stepchild.    The  circuit  court’s  exclusion  of  the
evidence was well within its discretion.
Conditions of Probation.
For  the  first  time  on  appeal,  Fischer  challenges  the  no-contact
condition of his probation, arguing that this court should review it under the plain
error standard.    However, the plain error doctrine applies only to evidentiary
errors.   See State v. Damon, 140 Wis.2d 297, 303, 409 N.W.2d 444, 447 (Ct. App.
1987).   Because Fischer failed to give the circuit court an opportunity to consider
his argument, we deem it waived.    State v. Holt,  128 Wis.2d  110,  124,  382
N.W.2d 679, 686 (Ct. App. 1985).
CONCLUSION
Fischer’s conviction for disorderly conduct was based upon the loud
and abusive manner in which he threatened his wife.   His reasons for being upset
with her were irrelevant, and evidence relating to the background for the argument
was properly excluded.
By the Court.—Judgment and order affirmed.
                                                                                          This opinion will not be published in the official reports.   See RULE
809.23(1)                                                                                 (b)4., STATS.
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