COURT OF APPEALS

DECISION

DATED AND FILED

October 5, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1826-CR Cir. Ct. No. 2022CF79

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

STATE OF WISCONSIN,

 PLAINTIFF-APPELLANT,

 V.

CARLOS AGUILAR,

 DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Green County: 

THOMAS J. VALE, Judge. Reversed and cause remanded for further 

proceedings. 

Before Kloppenburg, P.J., Blanchard, and Graham, JJ. 
No. 2022AP1826-CR

2

¶1 KLOPPENBURG, P.J. The State filed a complaint alleging that 

Carlos Aguilar falsely imprisoned A.B., contrary to WIS. STAT. § 940.30 (2021-

22).

1

 The State alleged that, during a domestic dispute, A.B. ran away from 

Aguilar out of their house and was sitting in a car outside their house when 

Aguilar opened the car door that A.B. had just closed and pulled A.B. by the hair 

on her head to get her out of the car and to come with him, ripping out clumps of 

her hair as she resisted. The circuit court dismissed the complaint, determining 

that the State failed to present sufficient evidence at the preliminary hearing 

supporting probable cause to believe that Aguilar committed the crime of false 

imprisonment. The State appeals, arguing that the State presented evidence

supporting probable cause to believe that Aguilar restrained A.B.’s freedom of 

movement by “forcibly preventing her from seeking refuge from Aguilar in the 

parked car during a domestic abuse incident,” thereby committing the crime of 

false imprisonment as defined in § 940.30. 

¶2 Aguilar presents two grounds for affirming the circuit court’s 

dismissal of the criminal complaint. First, Aguilar argues that the State 

improperly reissued the false imprisonment charge in a new criminal complaint,

following the dismissal of that charge after a preliminary hearing in a prior case,

without presenting additional evidence at the preliminary hearing in this case as 

 

1

 To protect the dignity and privacy of the victim, we refer to her as A.B. and to the 

witness as C.D., using initials that do not correspond to their real names. See WIS. STAT. RULES 

§ 809.19(1)(g) and 809.86.

WISCONSIN STAT. § 940.30, titled “False imprisonment,” provides: “Whoever 

intentionally confines or restrains another without the person’s consent and with knowledge that 

he or she has no lawful authority to do so is guilty of a Class H felony.” 

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP1826-CR

3

required under WIS. STAT. § 970.04.

2

 Second, Aguilar argues that the evidence 

that the State did present at the preliminary hearing in this case was insufficient to 

support probable cause to believe that Aguilar committed the crime of false 

imprisonment as defined in WIS. STAT. § 940.30. 

¶3 We conclude that the State did not violate WIS. STAT. § 970.04 in 

reissuing the false imprisonment charge in a new criminal complaint because: 

(1) the State presented additional evidence in the form of the responding officer’s 

testimony revising one aspect of the testimony that he gave at the preliminary 

hearing in the prior case, and body camera footage of his interviews with Aguilar, 

A.B., and C.D., a witness to the incident, which was not played at the preliminary 

hearing in the prior case; and (2) that new testimony and footage provided a more 

detailed description of the incident that constituted new and not merely cumulative 

or corroborative evidence. This constituted “new evidence” under the applicable 

case law. 

¶4 Separately, we conclude that the State presented sufficient evidence 

to support probable cause to believe that Aguilar committed the crime of false 

imprisonment. Specifically, the State presented evidence that Aguilar 

intentionally restrained A.B. by preventing her from moving her head, without 

 

2

 WISCONSIN STAT. § 970.04 provides: “If a preliminary examination has been had and 

the defendant has been discharged, the district attorney may file another complaint if the district 

attorney has or discovers additional evidence.”

As the State acknowledges, Aguilar may present this argument on appeal without having 

raised it in the circuit court because he, as the respondent, may present alternative grounds to 

affirm. See State v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679 (Ct. App. 1985), superseded 

on other grounds by statute, WIS. STAT. § 940.225(7) (1985-86) (ruling that a respondent may 

raise a theory or reasoning to sustain the circuit court without having first raised the issue in the 

circuit court).
No. 2022AP1826-CR

4

having her hair ripped out, in any direction but the direction he was pulling her to 

make her come with him as she resisted his effort to get her out of the car that she 

had just entered to seek refuge from him. Accordingly, we reverse the circuit 

court’s order dismissing the criminal complaint and remand to the circuit court for 

further proceedings.

BACKGROUND

¶5 In a prior case, the State charged Aguilar with the felony offense of 

false imprisonment and several misdemeanors, including battery, concerning the 

same incident at issue in this case.

3 At the preliminary hearing in the prior case, 

the State offered the testimony of the police officer who responded to the incident. 

The circuit court dismissed the false imprisonment charge, concluding that the 

State failed to meet its burden of establishing probable cause. The State then 

reissued the false imprisonment charge in a new criminal complaint. At the 

preliminary hearing in this case, the State offered testimony of the same officer, 

who changed a portion of his testimony from the prior preliminary hearing but did 

not otherwise repeat that testimony, as well as body camera footage of the 

officer’s interviews with Aguilar and portions of the officer’s interviews with A.B. 

 

3

 The parties refer in their briefing to the pleadings in the prior case brought by the State 

against Aguilar concerning the incident at issue, based on Wisconsin’s CCAP (Consolidated 

Court Automation Programs) records pertaining to Green County Circuit Court Case 

No. 2022CF02. CCAP is a case management system provided by the Wisconsin Circuit Court 

Access program, which “provides public access online to reports of activity in Wisconsin circuit 

courts.” State v. Bonds, 2006 WI 83, ¶6, 292 Wis. 2d 344, 717 N.W.2d 133. Because the 

charges in the prior case are not in the appellate record for this case, we take judicial notice of the 

CCAP records showing the charges in the prior Green County action, about which there is no 

dispute by the parties in this appeal. See WIS. STAT. § 902.01; see also State v. Aderemi, 2023 

WI App 8, ¶7 n.3, 406 Wis. 2d 132, 986 N.W.2d 306 (we may take judicial notice of CCAP 

records); Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 

N.W.2d 522 (taking judicial notice of CCAP records where the details regarding an action were 

not in the record). 
No. 2022AP1826-CR

5

and C.D. The circuit court dismissed the criminal complaint, again concluding

that the State failed to meet its burden of establishing probable cause supporting 

the false imprisonment charge. The State appeals. 

¶6 We present below the details of the evidence presented at each 

preliminary hearing as pertinent to our analysis of the issues on appeal.

DISCUSSION

I. Additional Evidence to Support Reissued False Imprisonment Charge

¶7 We introduce our analysis of the first issue—whether the State could 

reissue the false imprisonment charge when it had been dismissed after the 

preliminary hearing in the prior case, based on the evidence presented at the 

preliminary hearing in this case—with an overview of legal principles pertaining 

to preliminary hearings and the reissuance of criminal charges. We next present 

additional facts pertinent to this issue and then apply the legal principles to those 

facts and explain our conclusion that the State did not violate WIS. STAT. § 970.04

by reissuing the false imprisonment charge here.

Applicable Legal Principles and Standard of Review

¶8 The purpose of a preliminary hearing is for a circuit court to 

determine if there is probable cause to believe that a felony has been committed by 

the defendant. WIS. STAT. § 970.03(1). It is not a full evidentiary hearing, but is 

instead a summary hearing at which the court considers whether the State has 

presented sufficient evidence establishing a reasonable probability that the 

defendant committed a felony. State v. Johnson, 231 Wis. 2d 58, 64, 604 N.W.2d 

902 (Ct. App. 1999). The preliminary hearing acts as a screening device used by 

the courts to protect defendants from groundless or malicious prosecutions. State 
No. 2022AP1826-CR

6

v. Richer, 174 Wis. 2d 231, 242, 496 N.W.2d 66 (1993); State v. O’Brien, 2014 

WI 54, ¶21, 354 Wis. 2d 753, 850 N.W.2d 8 (preliminary hearings protect 

“defendants and the public from unwarranted prosecution [and] serve as a check 

on prosecutorial discretion”).

¶9 When a criminal charge has been dismissed after a preliminary 

hearing, the State may file a new criminal complaint alleging the same criminal 

charge against the defendant “if the district attorney has or discovers additional 

evidence.” WIS. STAT. § 970.04; see also Johnson, 231 Wis. 2d at 65. The 

reissuance of the charge in a new complaint is permitted because the dismissal 

after the preliminary hearing does not have the same constitutional effect, under 

the Double Jeopardy Clause, as an acquittal after a trial on the merits. Id. (citing 

State v. Brown, 96 Wis. 2d 258, 266, 291 N.W.2d 538 (1980)). 

¶10 Wisconsin courts have interpreted the “additional evidence” 

requirement in WIS. STAT. § 970.04 to mean that the prosecution must produce 

“new or unused evidence” which would support a finding of probable cause. 

Johnson, 231 Wis. 2d at 65. The State’s sole argument on this issue is that the 

prosecution offered “new evidence” at the preliminary hearing in this case, which

is evidence that was not before the circuit court in the prior hearing and that is not

“merely cumulative or corroborative” of evidence offered at the prior hearing. Id.

at 68 (citing Brown, 96 Wis. 2d at 267).

4

 Whether evidence is “new” in the 

 

4

 The State does not argue in this appeal that it presented at the hearing in this case 

“unused evidence,” which is evidence that was presented to the circuit court at a prior hearing but 

which was not considered by it in reaching its decision in the prior hearing. State v. Johnson, 

231 Wis. 2d 58, 68, 604 N.W.2d 902 (Ct. App. 1999) (citing State v. Twaite, 110 Wis. 2d 214, 

219-20, 327 N.W.2d 700 (1983)). Therefore, we do not address the “unused evidence” rationale 

in this opinion.
No. 2022AP1826-CR

7

context of § 970.04 is a question of law that we review independently. Johnson, 

231 Wis. 2d. at 67-68; State v. Manthey, 169 Wis. 2d 673, 683, 487 N.W.2d 44 

(Ct. App. 1992). 

Additional Background

¶11 The additional background presented here is pertinent to our analysis 

of both the issue addressed in this section, whether the State reissued the false 

imprisonment charge consistent with WIS. STAT. § 970.04, and the issue addressed 

in the following section, whether the State established probable cause.

¶12 At the preliminary hearing in the prior case, the prosecutor elicited

the testimony from the officer who responded to the incident involving Aguilar 

and A.B. The officer testified that he was dispatched to respond to a “physical 

domestic” incident and that he spoke with three persons at the scene: Aguilar, 

A.B., and C.D.5 The officer then testified as to what each of those persons told 

him. The officer also testified as to what Aguilar told the officer later the same 

night at the police station.6 

¶13 At the preliminary hearing in this case, the prosecutor offered 

testimony of the same officer who had testified at the preliminary hearing in the 

prior case, as well as portions of the officer’s body camera footage that recorded 

his interviews with Aguilar, A.B., and C.D. when the officer responded to the 

 

5

 For context, we note that the State now asserts, citing the criminal complaint in this 

case, that C.D. and her husband were living with Aguilar and A.B. at the time of the incident at 

issue in this case. Aguilar does not dispute this assertion for purposes of this appeal. C.D.’s 

husband and Aguilar are brothers. 

6

 We relate pertinent details of the officer’s testimony about these statements at the prior 

preliminary hearing in the analysis that follows.
No. 2022AP1826-CR

8

scene of the incident and his subsequent interview with Aguilar later the same 

night at the police station.

¶14 The officer testified that, before testifying, he had the opportunity to 

review the body camera footage of his interactions with Aguilar. Based on that 

review, the officer changed some of his prior testimony about Aguilar’s statements

to the officer, clarifying that neither at the scene nor at the police station did 

Aguilar make any statement to the effect that he did not want A.B. to be in the car 

because she had been drinking or that Aguilar was concerned that A.B. would 

drive while impaired.

¶15 The prosecutor also played portions of the body camera footage of 

the officer’s interviews at the scene and at the police station, in part to show that 

neither Aguilar nor C.D. made any statements to the effect that Aguilar wanted to 

keep A.B. out of the car or pull her out of the car out of concern that she had been 

drinking. 

¶16 The officer did not repeat any other portions of his prior testimony

other than that he responded to the scene of a reported domestic dispute and saw 

Aguilar by the car’s passenger’s side door when he arrived at the scene. The 

officer did not otherwise testify as to what Aguilar, A.B., and C.D. told him 

beyond responding to questions on cross-examination about some details 

regarding what was shown in the body camera footage played at the hearing. 

¶17 The body camera footage that was played at the hearing of the 

officer’s interview with Aguilar at the scene reflects that he said the following to 

the officer. Aguilar and A.B. are married and live together, and share one child. 

After Aguilar and A.B. came home after drinking at a bar, Aguilar told A.B. to 

come to bed after waiting for an hour for her to join him. When A.B. refused, he 
No. 2022AP1826-CR

9

threw her purse outside “out of spite.” A.B. became upset and took the keys to the 

car and ran outside to the car. Aguilar followed her, thinking that she was going to 

take the car and so he “went after her ... took the keys” and “tried pulling her out 

of the car.” Aguilar told A.B., “you cannot be in the car, this is not your car to be 

taking.” When the officer asked Aguilar whether this has happened before, 

Aguilar said “Not really ... not this bad.” 

¶18 The body camera footage that was played at the hearing of the 

officer’s interview with Aguilar later that night at the police station reflects the 

following. After the officer read Aguilar the Miranda warnings,7 Aguilar told the 

officer that he was upset that A.B. refused to come to bed and he and A.B. had 

been arguing about spending money on Christmas presents while trying to save 

money to buy a house. When he was trying to get her out of the car by “pulling 

her by the hair” he “was being aggressive” and he “shouldn’t have done what [he] 

did.”

¶19 The body camera footage that was played at the hearing of portions 

of the officer’s interview with A.B. reflects that she said the following to the 

officer. A.B. was talking with C.D. and C.D.’s husband when Aguilar started 

yelling at A.B. and calling her names. He started counting to ten and told A.B.

that if she did not leave C.D. and her husband and join him she would see what 

happens. She saw that he had torn apart her purse and dumped its contents and 

scattered the Christmas presents she had bought for their son. She had “been 

through this with [Aguilar]” and she knows “how he gets ... when he’s been 

drinking.” A.B. was scared because Aguilar gets violent when he drinks, and 

 

7

 See Miranda v. Arizona, 384 U.S. 436 (1966).
No. 2022AP1826-CR

10

because this time was worse than previous times. A.B. gathered the presents and 

the only car keys she could find, which were the keys to “the new car,” and went 

out to sit in the car to keep herself safe. A.B. got in the car and closed the door, 

and Aguilar, who had followed her out and taken the keys from her hand before 

she got in the car, opened the door and grabbed her by her hair to pull her out of 

the car, ripping out clumps of her hair as he did so. A.B. thought that Aguilar was 

trying to get her out of the car because he wanted her to come inside the house

with him but she did not want to go there. A.B. told Aguilar that she was going to 

sleep in the car and that she “was going to leave him tomorrow,” and she felt that 

that was “what escalated the situation.” A.B. had taken the keys so she could sit in 

the car to keep herself safe. 

¶20 The body camera footage that was played at the hearing of the 

officer’s interview with C.D. reflects that she said the following to the officer. 

A.B. was sitting in the passenger seat and Aguilar was yelling at her. A.B. was 

saying “just leave me alone.” Aguilar started “pulling on her,” with his leg against 

the car door. A.B. was screaming “help” and C.D. came out and tried to pull 

Aguilar off A.B. C.D’s husband came out and told Aguilar to stop, and Aguilar 

stopped. A.B. was crying profusely and holding her head and saying that Aguilar 

ripped chunks of hair out of her head. C.D. then called the police.

Analysis

¶21 Aguilar argues that the State improperly reissued the false 

imprisonment charge without presenting new or unused evidence at the 

preliminary hearing in this case. Specifically, Aguilar argues that the State’s 

introduction of the officer’s body camera footage alongside the officer’s testimony 

did not constitute new evidence within the meaning of WIS. STAT. § 970.04 
No. 2022AP1826-CR

11

because it was merely cumulative. The State argues that it presented new 

evidence at the preliminary hearing in this case. We agree with the State.

¶22 As stated, at the preliminary hearing in the prior case, the State 

offered the testimony of the responding officer who testified about his interviews 

with Aguilar, A.B., and C.D. At the preliminary hearing in this case, the State 

offered the testimony of the same officer, who changed one aspect of his 

testimony at the preliminary hearing in the prior case based on his review of the 

body camera footage of his interviews with Aguilar, A.B., and C.D. The officer

did not otherwise repeat his prior testimony about those interviews. The 

prosecutor also offered, and the circuit court admitted, the body camera footage 

itself. The question is whether the testimony by the officer revising his prior 

testimony and the body camera footage constituted new evidence that was not 

merely cumulative and, therefore, was additional evidence within the meaning of 

WIS. STAT. § 970.04. 

¶23 “While the concept [of additional evidence] is not self-defining,” the 

following case law involves facts that are useful for comparison to the facts here in 

providing guidance in defining, as pertinent here, new evidence. See Wittke v. 

State ex rel. Smith, 80 Wis. 2d 332, 344, 259 N.W.2d 515 (1977).

¶24 In Johnson, the defendant was charged with robbing a gas station. 

Johnson, 231 Wis. 2d at 60. The State presented two witnesses at the preliminary 

hearing. First, the State offered the testimony of a gas station attendant who 

testified that the defendant asked her to open the register and, when she did not 

respond, he reached his arm back as if to pull out a weapon before grabbing the 

cash and fleeing. Id. at 61. Next, the State offered the testimony of a witness 

outside the gas station who identified the defendant as the robber. Id. After the 
No. 2022AP1826-CR

12

defendant successfully argued that the State did not sufficiently demonstrate that 

he used or threatened force during the robbery, the complaint was dismissed. Id. 

The State then reissued the charge in a new complaint. Id. at 62. 

¶25 At the preliminary hearing on the reissued charge, the same 

attendant and witness testified, only this time the attendant offered a more detailed 

description of the robbery and of the defendant’s actions when he asked her to 

open the register, as well of the difference in physical sizes between her and the 

defendant. Id. at 62-63. The State also offered a new witness who saw the 

defendant leaving the gas station after the robbery and described his physical size, 

and another new witness who testified about how the defendant later described his 

actions during the robbery. Id. The defendant again moved to dismiss, arguing 

that the second preliminary hearing lacked any new or unused evidence, and the 

circuit court granted the motion, concluding that the State’s evidence consisted of 

only cumulative or corroborative testimony. Id. at 64. This court disagreed, 

reasoning that the new witnesses and the attendant presented more detailed 

descriptions of the defendant’s size and the defendant’s words and gestures during 

the robbery, and that this additional evidence had not been presented in the prior 

case. Id. at 68. This court concluded that because the State offered new, not 

cumulative, evidence, the State could pursue the reissued charge. Id. at 70.

¶26 Here, like the more detailed testimony of the gas station attendant 

and new witnesses in Johnson, the officer’s revised testimony and the body 

camera footage provided a more complete recounting of the events, which was not 

presented to the circuit court at the preliminary hearing in the prior case. 

Specifically, the officer’s revised testimony and the body camera footage provided 

a more detailed accounting of the incident and the actions of those involved. This 

evidence provided additional information potentially bearing on Aguilar’s alleged 
No. 2022AP1826-CR

13

motivations for seeking to prevent A.B. from sitting in the car, and further context 

regarding A.B.’s alleged motivations for wanting to sit or remain in the car. To 

repeat, Aguilar said that he did not want A.B. in his car. A.B. said that, based on 

her previous experience with Aguilar after he had been drinking and how this time 

he was even worse, she was scared and she sought refuge from him in the car to 

keep herself safe. She also said that Aguilar followed her as she ran from the 

house, took the keys from her before she opened the car door and sat in the 

passenger seat, opened the car door she had just closed, and pulled her by the hair 

to get her out of the car. As she resisted, he was ripping out clumps of her hair

and she thought he wanted to take her back to the house but she wanted to stay in 

the car. 

¶27 Aguilar argues that the State presented no new evidence at the 

preliminary hearing in this case as compared to the hearing in the prior case for 

two reasons: (1) because the same officer testified, leading to the same conclusion

of a lack of probable cause by the circuit court; and (2) because the officer’s body 

camera footage was cumulative inasmuch as it showed events about which the 

officer had testified at the preliminary hearing in the prior case. However, Aguilar 

disregards the additional details described above, which were not presented at the 

prior preliminary hearing. 

¶28 In addition, some of these details differed from the officer’s 

testimony at that prior hearing. For example, at the prior hearing, the officer 

testified that A.B. told him that she was trying to sit down in the car when Aguilar 

pulled her by the hair to get her out of the car. However, in the body camera 

footage of the officer’s interview with A.B., A.B. told the officer that she was 

sitting in the car and closed the door and Aguilar, who had followed her out and 

taken the keys from her hand before she got in the car, opened the door and 
No. 2022AP1826-CR

14

grabbed her by her hair to pull her out of the car, ripping out clumps of her hair as 

he did so. Also at the prior hearing, the officer testified that C.D. told him she saw 

A.B. kicking her leg out of the car and trying to stop Aguilar from pulling her hair 

and pulling her out of the car. However, in the body camera footage of the 

officer’s interview with C.D., C.D. told the officer that it was Aguilar, not A.B.,

who had his leg against the door while he was pulling A.B. by the hair to get her 

out of the car. This footage provided a more complete picture of the incident than

that provided by the officer’s testimony at the prior hearing.

¶29 The case that Aguilar cites in support of his argument, Wittke, 80 

Wis. 2d 332, is readily distinguishable. In Wittke, the defendant was charged with 

attempted murder after allegedly lunging at officers with a sword. Id. at 336. At 

the first preliminary hearing, the State offered the testimony of two police officers.

Id. at 337. The circuit court concluded that probable cause was not established 

and dismissed the complaint. Id. The State then filed a new complaint charging 

the defendant with battery to a peace officer and endangering safety by conduct 

regardless of life. Id. The State stipulated that it had no further testimony to offer 

other than the cumulative testimony of a third officer at the scene. Id. The circuit 

court discharged the defendant because the new complaint was not supported by 

new or unused evidence, but only by cumulative or corroborative evidence. Id.

Our supreme court affirmed, implicitly relying on the State’s stipulation that it had 

no new evidence to present. Id. at 344-45. In other words, the court in Wittke

concluded that offering the same testimony from a different witness does not pass 

muster as “additional evidence” under WIS. STAT. § 970.04. Id.

¶30 In this case, unlike in Wittke, neither the officer’s testimony at the 

preliminary hearing in this case nor the body camera footage were simply 

repetitions of the officer’s prior testimony. The officer revised a portion of his 
No. 2022AP1826-CR

15

prior testimony and testified that the body camera footage provided a more 

accurate and detailed picture of how Aguilar, A.B., and C.D. described the 

incident as compared to the officer’s prior testimony. Thus, the conclusion in 

Wittke is readily distinguishable.

¶31 In sum, we conclude that the State presented additional evidence 

pursuant to WIS. STAT. § 970.04, specifically, new evidence that was not merely 

cumulative or corroborative. Therefore, the State did not violate the statute by

reissuing the false imprisonment charge in a new complaint. 

II. Sufficiency of the Evidence to Show Probable Cause

¶32 The second issue is whether the State presented sufficient evidence 

at the preliminary hearing to show probable cause to believe that Aguilar 

committed the crime of false imprisonment. To assist the reader, we briefly

summarize the evidence taken from the body camera footage played at the 

preliminary hearing in this case. Aguilar was yelling at A.B. and tore apart her 

purse, spilling its contents, when A.B. took the keys to the car and ran out of the 

house to seek refuge in the car. In addition, there were multiple references to the 

concept that Aguilar wanted A.B. to be physically with him and not where she 

wanted to be. A.B. got into the passenger seat of the car and closed the door, 

where she sought refuge from Aguilar. Aguilar opened the door and grabbed A.B. 

by her hair to get her out of the car, ripping out clumps of her hair as she resisted. 

C.D. came outside and unsuccessfully tried to stop Aguilar until C.D.’s husband 

asked Aguilar to stop and Aguilar let go of A.B.’s hair.

¶33 We begin our analysis with an overview of the legal principles 

pertinent to establishing probable cause at a preliminary hearing and to statutory 

interpretation. We then apply those principles to the false imprisonment statute as 
No. 2022AP1826-CR

16

well as the evidence to reach our conclusion that the State presented sufficient 

evidence to support probable cause to believe that Aguilar committed the crime of 

false imprisonment.

Applicable Legal Principles and Standard of Review

¶34 “A defendant charged with a felony is entitled to a hearing pursuant 

to WIS. STAT. § 970.03 to determine whether there is probable cause to believe 

that a felony has been committed by that defendant. This hearing is referred to as 

a preliminary examination.” O’Brien, 354 Wis. 2d 753, ¶19. If the circuit court 

concludes that probable cause exists, the court must bind the defendant over for 

trial. WIS. STAT. § 970.03(7); State v. Dunn, 121 Wis. 2d 389, 394, 359 N.W.2d 

151 (1984).

¶35 As stated, a preliminary hearing is a summary proceeding to 

determine whether the evidence and the reasonable inferences drawn from the 

evidence support the conclusion that the defendant probably committed a felony. 

Dunn, 121 Wis. 2d at 396-98. “The judge is not to choose between conflicting 

facts or inferences, or weigh the state’s evidence against evidence favorable to the 

defendant.” State v. Koch, 175 Wis. 2d 684, 704, 499 N.W.2d 152 (1993); State 

v. Anderson, 2005 WI 54, ¶76, 280 Wis. 2d 104, 695 N.W.2d 731 (“[T]he court is 

not to weigh competing inferences at the preliminary hearing stage.”). In other 

words, “probable cause at a preliminary hearing is satisfied when there exists a 

believable or plausible account of the defendant’s commission of a felony.” 

Dunn, 121 Wis. 2d at 398; O’Brien, 354 Wis. 2d 753, ¶24 (preliminary hearing is 

“summary in nature” and its scope “is limited to determining whether the account 

presented by the State, if believed, has a plausible basis supporting a probable 

cause determination”).
No. 2022AP1826-CR

17

¶36 Our supreme court has summarized the applicable standard of 

review as follows:

When reviewing a circuit court’s bindover decision, “we 

will examine the factual record ab initio and decide, as a 

matter of law, whether the evidence constitutes probable 

cause.” Dunn, 121 Wis. 2d at 399. [Therefore], our 

review of the circuit court’s bindover decision is de novo. 

State v. Phillips, 2000 WI App 184, ¶37, 238 Wis. 2d 279, 

617 N.W.2d 522. “On review, this court will search the 

record for any substantial ground based on competent 

evidence to support the circuit court’s bindover decision.” 

State v. Koch, 175 Wis. 2d 684, 704, 499 N.W.2d 152 

(1993).

Anderson, 280 Wis. 2d 104, ¶26.

¶37 The crime charged here is false imprisonment, contrary to WIS.

STAT. § 940.30, which provides: “Whoever intentionally confines or restrains 

another without the person’s consent and with knowledge that he or she has no 

lawful authority to do so is guilty of a Class H felony.” In order to evaluate 

whether probable cause exists to believe that Aguilar committed false 

imprisonment, we must first interpret the false imprisonment statute. 

¶38 Statutory interpretation presents a question of law that we review de 

novo. State v. Stewart, 2018 WI App 41, ¶18, 383 Wis. 2d 546, 916 N.W.2d 188. 

“The purpose of statutory interpretation is to discern the intent of the legislature.” 

Juneau Cnty. v. Associated Bank, N.A., 2013 WI App 29, ¶16, 346 Wis. 2d 264, 

828 N.W.2d 262. When interpreting a statute, we start with the statute’s plain 

language, because we assume that the legislature’s intent is expressed in the words 

it used, and we give statutory language “its common, ordinary, and accepted 

meaning.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44-45, 

271 Wis. 2d 633, 681 N.W.2d 110. “[S]tatutory language is interpreted in the 
No. 2022AP1826-CR

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context in which it is used ... and reasonably, to avoid absurd or unreasonable 

results.” Id., ¶46.

Analysis

¶39 Aguilar argues that the State failed to meet two of the elements of 

the crime of false imprisonment: (1) that Aguilar confined or restrained A.B.; and 

(2) that Aguilar knew he lacked lawful authority to do so.

8

1. Confinement or Restraint

¶40 Aguilar first argues that there was not sufficient evidence presented 

at the preliminary hearing in this case that he confined or restrained A.B. within 

the meaning of WIS. STAT. § 940.30.

¶41 We first interpret the words “confine” and “restrain” as used in WIS.

STAT. § 940.30. Because these words are not expressly defined in that statute, we 

may refer to their dictionary definitions for their meaning. See Brown Cnty. 

Human Servs. v. B.P., 2019 WI App 18, ¶12, 386 Wis. 2d 557, 927 N.W.2d 560

(“For the purposes of statutory interpretation, the plain meaning of words may be 

established by consulting dictionary definitions.”). “When a word used in a statute 

has more than one dictionary definition, ‘the applicable definition depends upon 

the context in which the word is used.’” Pierce v. American Fam. Mut. Ins. Co.,

2007 WI App 152, ¶11, 303 Wis. 2d 726, 736 N.W.2d 247 (quoting Kalal, 271 

Wis. 2d 633, ¶49). Additionally, case law provides useful guidance that “may 

 

8

 See WIS JI—CRIMINAL 1275 (stating that two of the five elements of false 

imprisonment are that the defendant confined or restrained the victim, and that the defendant 

knew that the defendant did not have lawful authority to confine or restrain the victim).
No. 2022AP1826-CR

19

illumine how we have previously interpreted or applied the statutory language” at 

issue. Belding v. Demoulin, 2014 WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d 373.

¶42 “Confine” is defined as “to hold within a location” or “to keep 

within limits.” See, e.g., Confine, Merriam-Webster.com, https://www.merriamwebster.com/dictionary/confine (last visited September 15, 2023); confine, THE 

AMERICAN HERITAGE COLLEGE DICTIONARY, 292 (3d ed. 1993) (“to keep within 

bounds”). “Restrain” is defined as “to prevent from doing ... something” or “to 

deprive of liberty.” See, e.g., Restrain, Merriam-Webster.com, 

https://www.merriam-webster.com/dictionary/restrain (last visited September 15, 

2023); restrain, THE AMERICAN HERITAGE COLLEGE DICTIONARY, 1164 (3d ed.

1993) (“to deprive of freedom or liberty”).

¶43 In other words, in the context of WIS. STAT. § 940.30, to “confine” a 

person refers to keeping that person within defined physical boundaries while to 

“restrain” a person refers to restricting that person’s freedom of movement. The 

use of “or” in the statute means that either action, confining or restraining, may 

constitute the crime of false imprisonment. See Hull v. State Farm Mut. Auto. 

Ins. Co., 222 Wis. 2d 627, 638, 586 N.W.2d 863 (1998) (explaining that “or” 

should be interpreted disjunctively to indicate alternatives).

¶44 We pause to make two brief observations. First, the label “false 

imprisonment” could be misleading, to the extent that common notions of 

imprisonment tend to primarily involve images of confinement. But of course our 

task is to give meaning to all of the words of the statute, which include both 

confine and also restrain.

¶45 Second, there is obvious potential overlap between the concept of 

holding a person within defined physical boundaries and the concept of restricting
No. 2022AP1826-CR

20

that person’s freedom to move. Often the same act will be both a confinement and 

a restraint of another. At the same time, however, the legislature has decided to 

criminalize both acts of confinement (even if the act does not involve restraint)

and acts of restraint (even if the act does not involve confinement) and here we are 

called on to apply the restraint definition. 

¶46 The State has brought a “restraint” case here. We conclude that “the 

account presented by the State, if believed, has a plausible basis supporting a 

probable cause determination” that Aguilar restrained A.B. in violation of WIS.

STAT. § 940.30. See O’Brien, 354 Wis. 2d 753, ¶24. According to A.B. and

C.D.’s statements to the officer, Aguilar made clear that he wanted A.B. to be 

physically present with him. When she went out to the car, he went after her. 

After A.B. got into the car and was sitting in the car’s passenger seat, Aguilar 

opened the car door and grabbed her hair, ripping out some of it, to get her out of 

the car to come with him, as she resisted because she wanted to stay in the car. It

can be inferred from the evidence that Aguilar grabbed A.B. by her hair so 

forcefully that he restricted her freedom to move her head, without losing clumps 

of her hair, in any direction that would resist his efforts to get her out of the car

and to come with him. Therefore, there is a plausible probability that Aguilar

restricted A.B.’s freedom of movement and, thus, restrained her in violation of 

WIS. STAT. § 940.30.

¶47 Aguilar argues that he never restricted A.B.’s movement but, at 

most, he attempted to compel her movement. To the contrary, as explained above, 

the evidence presented by the State plausibly shows that he restricted her freedom 

to move her head in any direction but the direction he was pulling her, so as to 

resist his efforts to get her out of the car and to resist his efforts to have her

physically with him, before he released her when C.D.’s husband told him to stop. 
No. 2022AP1826-CR

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¶48 Aguilar argues that to be charged with false imprisonment under 

WIS. STAT. § 940.30, a person must confine or restrain the victim so that the 

victim is held or kept in a specific location and that false imprisonment “requires 

intentional and nonconsensual confinement”. However, the case law on which 

Aguilar relies does not support this proposition. 

¶49 Aguilar cites State v. Burroughs, 2002 WI App 18, ¶19, 250 

Wis. 2d 180, 640 N.W.2d 190, as support for the assertion that the crime of false 

imprisonment requires confinement, but he mischaracterizes Burroughs. In that 

case, this court considered whether the defendant had confined the victim within 

the meaning of the kidnapping statute. Id., ¶16. Noting that neither the statute nor 

the model jury instructions define the term “confine” for purposes of the 

kidnapping statute, the court turned to the false imprisonment statute for guidance. 

Id., ¶17-18. Aguilar directs our attention to the following language in the court’s 

analysis: “At the core, both [kidnapping and false imprisonment] require 

nonconsensual and intentional confinement.” Id., ¶19. However, the surrounding 

context clarifies that the Burroughs court did not conclude that the “or restrains” 

language in the false imprisonment statute requires the act of confining the victim. 

Instead, the court continued by noting that “kidnapping also requires certain 

accompanying circumstances: force or threat of force together with secret 

confinement, secret imprisonment, asportation out of this state, or holding for 

service against the victim’s will.” Id. This additional language makes clear that 

the court was merely describing a baseline similarity between the two statutes—

that both statutes criminalize confinement—and explaining that the type of

confinement necessary to constitute kidnapping requires more than the type of 

confinement that would support a false imprisonment charge. The Burroughs
No. 2022AP1826-CR

22

court simply did not address the part of the false imprisonment statute that 

criminalizes restraint.

¶50 Aguilar also cites Herbst v. Wuennenberg, 83 Wis. 2d 768, 774, 266 

N.W.2d 391 (1978), to support the assertion that restraining the physical liberty of 

another is false imprisonment only when it is coupled with some element of 

confining or restraining the victim to a specific location. As Aguilar recognizes, 

however, Herbst is a civil case that adopts the definition of false imprisonment in

the RESTATEMENT (SECOND) OF TORTS, which requires confinement of the victim 

“within boundaries fixed by the actor.” Herbst, 83 Wis. 2d at 774. Moreover, 

subsequent cases citing Herbst in the criminal context have, like Burroughs, 

focused on the part of the false imprisonment statute that penalizes confinement. 

See Burroughs, 250 Wis. 2d 180, ¶¶18-19 (comparing the element of confinement 

in the false imprisonment and kidnapping statutes); State v. Long, 2009 WI 36, 

¶¶27-28, 317 Wis. 2d 92, 765 N.W.2d 557 (concluding that the defendant confined 

the victim by hugging the victim tightly and forcibly without letting go). Neither 

case addresses the “or restrains” language in WIS. STAT. § 940.30.

¶51 We note that the court in both Burroughs, 250 Wis. 2d 180, ¶18,

and Long, 317 Wis. 2d 92, ¶28, relied on Herbst to define confinement within the 

meaning of the false imprisonment statute as “restraint by one person of the 

physical liberty of another,” which is similar to the definition of restraint that we 

have derived above from dictionary definitions as “restriction of a person’s 

freedom of movement.” In the two of these three cases that applied that definition 

under the false imprisonment statute, the definition of confinement includes the 

further qualification in Herbst that such “restraint” be “within boundaries fixed by 

the actor.” Herbst, 83 Wis. 2d at 774; see Long, 317 Wis. 2d 92, ¶¶27-28. 

Aguilar cites no legal authority applying that qualification regarding the definition 
No. 2022AP1826-CR

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of confinement—restriction of movement within boundaries set by the actor—to 

the definition of restraint under WIS. STAT. § 940.30. That is, Aguilar cites no 

legal authority which requires that the restraint penalized in § 940.30 can only be, 

as he asserts, restraint of movement within a specific location. 

¶52 Aguilar also argues that defining the crime of false imprisonment to 

include any situation in which the defendant restricts the victim’s physical liberty,

even if it is not accompanied by confinement to a bounded area, would be a 

dangerous extension of prior rulings. We reject this argument because it 

disregards the specific evidence here and the narrow question at issue. The issue

is not whether the evidence that was presented at the preliminary hearing in this 

case proved beyond a reasonable doubt that Aguilar committed false 

imprisonment. That will be for a factfinder to decide based on whatever the trial 

evidence might be. The issue is whether the evidence at the preliminary hearing 

plausibly shows probable cause to believe that Aguilar committed a felony. We 

agree with the State that the evidence here—that Aguilar made clear that he 

wanted A.B. to be with him, followed A.B. out to the car, took the keys from her

hand, opened the car door that she had just closed from the inside, and in a 

sustained manner pulled her by the hair to get her out of the car and to be with him 

so violently that he ripped out clumps of her hair as she was resisting—plausibly 

shows that Aguilar restricted A.B.’s freedom of movement without having her hair 

ripped out. That is, Aguilar prevented her from moving her head in any direction,

without having her hair ripped out, other than the direction he was pulling her to 

make her come with him, as she resisted his effort to get her out of the car that she 

had just entered to seek refuge from him. This evidence establishes probable 

cause to believe that Aguilar restrained A.B. contrary to WIS. STAT. § 940.30.
No. 2022AP1826-CR

24

¶53 Aguilar sets forth several hypothetical scenarios in support of his 

“dangerous extension” argument. Specifically, he argues that if the statute is 

interpreted to prohibit restraint that does not involve confinement within bounds 

set by the defendant, the denial of access to property jointly owned by spouses 

would amount to false imprisonment in the following hypotheticals involving 

spouse A and spouse B: (1) A locks B out of a portion or all of their residence; 

(2) A pulls B off A’s favorite recliner so that A can watch television from that 

chair; (3) A pushes or pulls B out of their marital residence; (4) A pulls B out of 

the bathroom in the marital home; (5) A grabs B’s arm and takes away the phone 

or other item of personal property. To the extent that these hypotheticals, 

specifically numbers 3 and 4, were to involve evidence that one spouse was taking 

refuge or attempting to take refuge from the other spouse (that is, trying to be 

physically apart from the other), Aguilar does not explain why it would be 

“dangerous” to conclude that this might constitute unlawful restraint under WIS.

STAT. § 940.30 for purposes of establishing probable cause. The legislature has 

selected a broad term, restraint, and it would be for the legislature to narrow the 

wording of the statute. More generally, to the extent that these scenarios lack the 

surrounding context that exists in this case—the use of violent force to attempt to 

deprive A.B. of the liberty to be in a location physically apart from Aguilar—they 

are not apposite. 

¶54 In sum, we conclude that the evidence presented at the preliminary 

hearing in this case established probable cause to believe that Aguilar restrained 

A.B. contrary to WIS. STAT. § 940.30. 
No. 2022AP1826-CR

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2. Knowledge of Lack of Lawful Authority to Restrain

¶55 Aguilar argues that the State did not present evidence sufficient to 

establish probable cause to believe that Aguilar had knowledge that he lacked 

lawful authority to try to get A.B. out of the car by pulling her by the hair so 

violently that he restricted her movement, as is required under WIS. STAT.

§ 940.30 (“Whoever intentionally confines or restrains another without the 

person’s consent and with knowledge that he or she has no lawful authority to do 

so is guilty of a Class H felony.”). We conclude that the record refutes this 

argument.

¶56 Aguilar himself told the officer, “I was being aggressive. I shouldn’t 

have done what I did, I know.” And, he stopped attacking A.B. only after C.D.’s 

husband asked him to do so. Aguilar’s admission and his conduct suffice to 

support probable cause to believe that Aguilar acted with knowledge that he 

lacked legal authority to violently restrain A.B. contrary to WIS. STAT. § 940.30. 

See State v. Teynor, 141 Wis. 2d 187, 207, 414 N.W.2d 76 (Ct. App. 1987) 

(Evidence of a defendant’s admissions and conduct can be used to support an 

inference that the defendant knew the defendant was without lawful authority to 

confine or restrain the victim.). 

¶57 Aguilar argues that the only evidence was that he was pulling A.B. 

to get her out of the car because he did not want her to be inside the car because it 

was his car. Aguilar told the officer, “I thought she was taking the car ... I’m like, 

do not take my car .... It’s not yours, it doesn’t belong to you, you can’t just take 

it wherever you want.” However, even if he thought he had legal authority to keep 

A.B. from driving the car because it was his, there was also evidence that, before 

he violently grabbed A.B. by the hair to pull her out of the car, he had taken the 
No. 2022AP1826-CR

26

keys away from her. Thus, at that point, she was not able to “take” the car, 

thereby undermining his asserted legal authority to keep her from driving “his”

car. Aguilar does not identify any other legal authority that he thought he had, or 

that he did have, to restrain A.B. by violently grabbing her by the hair to prevent 

her from moving so as to resist him and his efforts to have her be physically with 

him. 

¶58 In sum, we conclude that the evidence presented at the preliminary 

hearing established probable cause to believe that Aguilar restrained A.B. with 

knowledge that he had no lawful authority to do so. 

CONCLUSION

¶59 For the reasons stated, we conclude that the State presented 

sufficient evidence to establish probable cause to believe that Aguilar restrained 

A.B. in violation of WIS. STAT. § 940.30. Accordingly, we reverse the circuit 

court’s dismissal of the complaint and remand to the circuit court for further 

proceedings.

By the Court.—Order reversed and cause remanded for further 

proceedings.

Not recommended for publication in the official reports.