June 1, 2018 at 4:01 p.m.
Welsh bound over for trial on terroristic threats charge
Defense to file challenge to bind over
Welsh bound over for trial on terroristic threats charge
Kenneth S. Welsh was charged with the Class I felony after he allegedly made a threatening statement toward Comfort Care Services social workers April 28 when they advised him they would no longer provide care to his terminally ill wife.
The incident in question took place just weeks after Welsh was sentenced in an unrelated case.
Welsh was sentenced to three years probation April 11 after pleading no contest to one count of causing injury by negligent use of a dangerous weapon in connection with a 2016 standoff with police. In that case, Welsh's wife, Mary Butler, shot Welsh in the shoulder and he shot at a car she was operating as it was backing away from the house. He then threatened to use propane to blow up the house if law enforcement approached.
The couple were in the process of losing their home and that is what triggered Welsh, Butler told deputies at the time.
In January 2017, Welsh was sentenced to three years in prison on the negligent injury charge but a resentencing was ordered after an error was discovered in his plea paperwork.
Because Welsh spent 723 days in prison before accepting a second plea agreement, it was determined his credit for time served was equal to the maximum possible sentence. However, he was ordered to serve three years probation.
According to the criminal complaint in the new case, social workers called Welsh's probation officer on April 19 after he allegedly told them "you all know if this appeal goes any way but favorable to Mary, I will wreak havoc on you all," after the couple were informed that the contracted workers would no longer provide hospice services to his wife because of possible "misuse of medication."
He also allegedly said "my probation officer knows about this, so I have to be careful of what I say," one of the deputies who investigated the alleged threat testified during Thursday's preliminary hearing.
The probation officer put a hold on Welsh and he was arrested after a traffic stop near his Harshaw home, the complaint states. For at least part of April 19, Ascension St. Mary's Hospital in Rhinelander was under heightened security because Butler's doctor is based there and there was some concern Welsh might show up there.
Welsh's attorney, Mary Roth Burns, filed a motion for substitution of judge May 7 and Judge Patrick O'Melia took over the case from Judge Michael Bloom, who presided over the earlier case. O'Melia presided over Thursday's preliminary hearing.
At the hearing, Schiek called Oneida County sheriff's sergeant Brian Erikson to testify about his role in the investigation as detailed in a report he authored that was attached to the criminal complaint.
Erikson said the social workers were aware of Welsh's past but could not reach his probation officer until the day after the call. He could not say if Butler had appealed the decision to terminate her care and, if so, where that appeal stood.
Under cross-examination, Erikson admitted there is no recording of the phone call between Welsh and the social worker who reported the threat. Roth Burns also pointed out that the social workers weren't so concerned that they were prompted to contact police immediately. Instead, they opted to wait to speak to Welsh's probation officer, knowing it could get him arrested, she said. She also pointed out that neither Welsh nor Butler initiated the call.
"He did not call them to threaten them, did he?" Roth Burns asked, to which Erikson replied in the negative.
She later argued that Welsh's statement was too vague to be considered a credible threat under the jury instructions associated with the terroristic threats charge.
"As you indicated, he was trying to get services back for her," Roth Burns said. "Why would he jeopardize her services? I mean, he does have a right to free speech. This is very vague hyperbole-type statement. They weren't even in the same county."
In his closing argument, Schiek said he looked up the generic definition for the word havoc.
"They all basically mean cause chaos, destruction, disorderly conduct, there is only what is interpretational, what (social worker) felt was some violent act," Schiek said, stressing that the jury instructions make reference to how a "reasonable person" would react to the alleged threat.
O'Melia disagreed with Roth Burn's assertion that the health care workers overreacted to Welsh's statement based on what happened in 2016.
"Was it an overreaction? In this day and age? No," O'Melia said. "It was not an overreaction at all. If that had been called into a school, for whatever reason, action would have been taken."
He also disagreed with the free speech argument, noting that people cannot yell "fire" in a crowded theater and claim they are protected by the First Amendment.
"He didn't say, if this doesn't go favorably for Mary, I'm going to sue you guys," the judge pointed out. "That happens all the time and is said all the time."
O'Melia also said Welsh's intent in making the statement, given that he was aware the health care workers knew about his recent history, was a factor that had to be taken into consideration.
He then found probable cause that Welsh had committed a felony and bound him over for trial.
Because of Butler's deteriorating condition, Roth Burns argued Welsh's $20,000 cash bond should be reduced. O'Melia denied that motion, although Welsh is still on a probation hold so he was not going to be immediately released anyway. Roth Burns also served notice she intends to file a motion challenging the bind over (similar to a motion to dismiss) and asked if arraignment could be held at the same time as the motion hearing. O'Melia agreed and both hearings were scheduled for June 8.
If convicted of the Class I felony, Welsh faces up to three years, six months in prison. and a fine of up to $10,000.
Jamie Taylor may be reached via email at jamie@rivernews online.com.
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