On Point blog, page 11 of 23
Repeated child sexual assault, § 948.025: instruction on first degree child sexual assault as lesser-included; other acts evidence; date of offense; ineffective assistance of counsel
State v. Robert T. Warriner, 2012AP244-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity
Instruction on first degree child sexual assault as lesser-included of repeated child sexual assault
At trial the child testified that Warriner sexually assaulted her on only two occasions, so the trial court agreed, over Warriner’s objections, to read the instruction for first-degree sexual assault of a child, § 948.02(1).
Lack of proof dooms claim that statement to probation agent was compelled by threat of revocation
State v. Gregory M. Sahs, 2013 WI 51, on review of unpublished court of appeals decision; case activity
Sahs, on probation for child pornography, admitted to his probation agent that he again possessed child pornography. He was charged based on evidence seized as a result of his admission. He sought to suppress the evidence, claiming his admissions were compelled by the threat of revocation if he didn’t give his agent a true and accurate account of his activities.
Substitution of judge — § 971.20(4),(5); reassignment of original judge does not make the judge “new” for substitution purposes. Admission of evidence — limiting the playing of audio recordings. Armed robbery, § 943.32 — sufficiency of the evidence.
State v. Keith M. Bohannon, 2013 WI App 87; case activity
Substitution of judge; “new” judge under § 971.20(5)
When a case is reassigned from the original judge to a second judge and then reassigned again back to the first judge, the first judge is the “original” judge assigned to the case under § 971.20(4), not a “new” judge under § 971.20(5). Therefore, a motion to substitute the original judge had to be filed before the arraignment,
Exasperated, District 3 penalizes all parties to appeal
Loren H. Laufman v. North Central Power Co., Inc., 2012AP2116, District 3 (per curiam; not eligible for publication or citation).
Normally, On Point would not trouble its readers with a per curiam decision involving insurance coverage issues. This one, however, penalizes parties for violations of Wisconsin’s Rules of Appellate Procedure, so appellate lawyers of all stripes should pay attention. Skipping over the substantive insurance issues,
Waiver of right to testify
State v. Leshurn Hunt, 2010AP2516, District 4, 5/16/13 (not recommended for publication); case activity
Issue: Was defendant’s decision not to testify at trial knowing, intelligent and voluntary on the grounds that; (a) the court conducted a defective colloquy; (b) the defendant was coerced to waive his right to testify; and (c) the defendant received ineffective assistance of counsel?
Holding: Hunt’s waiver was fine. The legal test is set forth in State v.
Ineffective assistance of counsel — failure to object to or present evidence. Sentencing — exercise of discretion
State v. Danny F. Anton, 2012AP1165-CR, District 2, 4/23/13; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of counsel
In a fact-specific discussion that precludes summary here, the court of appeals holds Anton’s trial attorney was not ineffective for: failing to object to testimony about telephone calls between Anton and a detective, as the evidence was not prejudicial (¶¶10-13);
Traffic stop – reasonable suspicion to conduct stop based on anonymous tip
State v. Bryant A. Preinfalk, 2012AP2060-CR, District 4, 3/14/13; court of appeals decision (1-judge, ineligible for publication); case activity
The stop of Preinfalk’s car was lawful because in light of observations made by the officer, the anonymous tip provided reasonable suspicion to conclude the car was occupied by persons who had been involved in a fight at the Sidelines Bar:
¶11 It is not disputed that the tip in this case was anonymous.
Evidence sufficent to show parent/child go-kart ride amounts to physical abuse of child; ditto as to parent’s decision to treat injuries at home rather than seek medical attention
State v. Nicholas M. Gimino, 2012AP1498-CR, District II/IV, 3/7/13 (unpublished); case activity.
While this decision is not recommended for publication, it highlights a very touchy subject–when does conduct many parents engage in rise to the level of physical abuse of a child? The answer may surprise you.
Here’s what happened. Gimino took his 2-year-old daughter for a ride on a motorized go-kart having no sides or roof.
Appellate Briefs
State v. Jeremiah R. Connour, 2011AP1489-CR, District 3, 7/31/12
court of appeals decision (not recommended for publication); case activity
¶3 n. 2:
Connour’s thirty-eight-page statement of the case includes primarily verbatim Q & A trial testimony, but nonetheless omits relevant evidence necessary to address his postconviction claims. Most of the remainder of Connour’s recitation of the “facts” inappropriately consists of several pages of argument.
Transcript
Samex 1, LLC v. Bruce Buschman, 2011AP2634, District 1, 6/26/12
court of appeals decision (1-judge, ineligible for publication)
¶2 n. 1:
If this appeal were not moot, our resolution of the appeal would have been difficult, if not impossible, because the transcript is not very helpful; there are more than two-dozen instances of “(Indiscernible)” or “(indiscernible)” in but a twenty-one page transcript. Additionally, one of the sworn witnesses is merely identified as “A FEMALE.” (Bolding omitted.) The circuit court is responsible for the court reporter assigned to its court,