On Point: K. Standards of Review

Oconto County v. Jonathan E. Van Ark, 2015AP1415, 8/23/16; District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

Van Ark was sitting in his parked pickup truck when a deputy approached him, smelled alcohol, saw his glossy, blood-shot eyes, and observed his slow, slurred speech.  A subsequent hospital blood draw indicated that Van Ark had a .237 BAC. The State charged him with OWI and operating with a Prohibited Alcohol Concentration and moved for directed verdicts on both counts. The circuit court denied a directed verdict on the OWI charge, but granted it on the PAC charge. The court of appeals reversed based on WIS JI–CRIMINAL 2660A.

State v. Mark G. McCaskill, 2015AP1487-CR, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

McCaskill’s challenges to his arrest and conviction for operating with a prohibited alcohol content don’t persuade the court of appeals.

State v. McKellips, 2016 WI 51, 6/28/16, reversing a published court of appeals decision, 2015 WI App 31; case activity (including briefs)

SCOW here defines the phrase “computerized communication system” by separately defining each word, and then lumping together those definitions to conclude that text messages sent with a flip phone constitute “use of a computerized communication system.” It concludes that Wis. Stat. §948.075 is understood by persons of ordinary intelligence, and is therefore not unconstitutional; and that the circuit court’s jury instructions, while not perfect, were close enough. Additionally,  SCOW reminds the court of appeals that discretionary reversals under §752.35 are only for “exceptional cases.”

State v. Michael S. Dengsavang, 2015AP637-CR, 6/1/16, District 1 (not recommended for publication); case activity (including briefs)

Michael Dengsavang raises several challenges to the trial court’s denial of his Machner motion. The court of appeals rejects one claim on the merits and declines to consider the rest, holding them previously abandoned.

State v. Daniel L. Schmidt, 2016 WI App 45; case activity (including briefs)

The court of appeals rejects three challenges to Schmidt’s jury-trial conviction of two homicides.

State v. Jeffrey S. Decker, 2015AP1997-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity

Jeffrey Decker had been banned from the UW-Oshkosh, and was arrested when he arrived at a grand opening event. The arrest was not without incident and he was charged with obstructing an officer and convicted after a jury trial.

State v. J.L.M., 2015AP1695, 4/19/16, District 1 (1-judge opinion, ineligible for publication); case activity

The State charged J.L.M. with one count of robbery with use of force, as a party to a crime, due to his alleged involvement with a group of youths who stole M.H.’s bike and struck him several times in the process. J.L.M. lost at trial and challenged the sufficiency of the evidence to support his conviction. 

State v. Michael A. Durham, 2015AP1978-CR, 4/12/2016, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police were dispatched in response to a 6:30 p.m. phone call from a neighbor about unintelligible yelling and “banging” that shook the walls of Durham’s residence. (¶2). After knocking and ringing the doorbell and receiving no response, police simply entered the house, guns drawn, and proceeded toward the stairs, where they encountered Durham. (¶¶3-5). The officers ordered Durham to show his hands, he didn’t, and they tasered him. (¶6). He was charged with resisting an officer, unsuccessfully moved to suppress evidence obtained via the warrantless search of his home, and was convicted at trial. (¶1). The court of appeals here reverses the conviction because the suppression motion should have been granted.

State v. Jimmie Lee Smith, 2016 WI 23, 4/7/16, reversing a published court of appeals decision, majority opinion by Roggensack, concurrence by Ziegler, dissent by Abrahamson (joined by A.W. Bradley); case activity (including briefs)

You can’t accuse the majority of mere error correction in this decision. Although the State never asked SCOW to rewrite the “clearly erroneous” standard of review and nobody briefed or orally argued the issue (see Ziegler’s concurrence and Abrahamson’s dissent), the majority seized the opportunity to make a tough standard even tougher. Unless SCOTUS steps in, it’s going to be virtually impossible to  challenge circuit court competency findings as well as other circuit court decisions governed by the “clearly erroneous” standard of review.

State v. Todd Brian Tobatto, 2016 WI App 28; case activity (including briefs)

The news, in this otherwise run-of-the-mill case, is the standard of review.