On Point: 1. Appeals

City of Stevens Point v. Jared T. Lowery, 2014AP742, 2/5/15; District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs

It seems the City didn’t know of Lowery’s two prior OWI convictions when it charged him with, and obtained a conviction for, OWI first under a city ordinance. Only the State (not a city) may prosecute someone for OWI, third offense. So the circuit court lacked subject matter jurisdiction to try and convict Lowery for OWI first.

State v. Jose O. Gonzalez-Villarreal, 2013AP1615-CR, District 1, 1/27/15 (not recommended for publication); case activity

The court of appeals rejects Gonzalez-Villarreal’s challenge to his conviction for possessing child pornography based on claims that: his right to a speedy trial was violated; discovery restrictions violated his right to equal protection; other acts evidence was erroneously admitted; the trial court rejected his modified jury instruction on possession; the court erroneously exercised its sentencing discretion.

State v. Richard Harrison, 2015 WI 5, 1/22/15, affirming a summary disposition of the court of appeals; opinion by Chief Justice Abrahamson; case activity

The supreme court unanimously holds that a circuit judge erred by presiding over Harrison’s trial, sentencing, and postconviction motions after Harrison filed a timely and proper § 971.20 request for substitution of the judge, the request was granted, and a new judge was appointed. The court rejects the state’s claims that Harrison forfeited his right to substitution and that any error was harmless.

Milwaukee County v. Andy S., 2014AP1885, District 1, 1/13/15 (1-judge decision; ineligible for publication); case activity

The evidence was sufficient to prove dangerousness under § 51.20(1)(a)2.a., as it showed Andy “[e]vidence[d] a substantial probability of physical harm to himself … as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.”

State v. Jonathan Thomas, 2014AP543-CR, District 1, 1/5/15 (not recommended for publication); case activity

At his trial on a charge of second degree reckless homicide for causing the death of Michael Brown, Thomas claimed Brown accidentally shot himself while handling a gun. The jury found Thomas guilty of the lesser included offense of homicide by negligent handling of a dangerous weapon, § 940.08(1). The court of appeals rejects Thomas’s challenge to the sufficiency of the evidence for that verdict.

State v. Bobbie Tanta Bowen, 2015 WI App 12; case activity

Bowen was found guilty of bail jumping for violating the provision of his bail that he have no contact with F.B., the victim of an earlier battery charge, or F.B.’s residence. The court of appeals holds that the trial evidence—which showed Bowen went into F.B.’s residence but had no direct contact with F.B. while he was inside—was sufficient to support the verdict because the bond condition “that [Bowen] not have contact with F.B.” did not require proof that Bowen directly communicated with F.B.

County of Fond du Lac v. Jeffrey K. Krueger, 2014AP1494, District 2, 12/30/14 (1-judge decision; ineligible for publication); case activity

Krueger was stopped by an officer who said Krueger drove his car over the center line. Krueger disputed that and moved to suppress. At the suppression hearing the officer testified and the video from his squad car camera was played. The trial court found the video to be inconclusive and the officer’s testimony to be credible.

State v. John D. Harris, 2014AP1292-CR, District 1, 12/23/14 (1-judge decision; ineligible for publication); case activity

Harris isn’t entitled to a new trial based on alleged errors in the jury instruction for disorderly conduct, and the evidence is sufficient to support the guilty verdicts for that charge and a charge of battery.

City of Chippewa Falls v. Douglas M. Buchli, 2014AP1422, District 3, 12/23/14 (1-judge decision; ineligible for publication); case activity

There was probable cause to arrest Buchli for OWI despite the fact the police investigation discovered inconsistent information—including an admission by Buchli’s companion, Mahoney, that she was driving.

City of Brookfield v. Cassandra L. Gissal, 2014AP1751-FT, District 2, 12/23/14 (1-judge decision; ineligible for publication); case activity

At trial Gissal challenged the admissibility of her statements to police because she wasn’t given Miranda warnings, but the trial court ruled she wasn’t in custody for Miranda purposes. On appeal she abandons this claim and argues instead that allowing the officer to testify to her statements violated her Fifth Amendment privilege and that she wouldn’t have testified at trial if the officer had been barred from relating her statements.