On Point: K. Standards of Review

State v. James Lee Eady, Jr., 2016 WI App 12; case activity (including briefs)

Under the forgiving standard for assessing the sufficiency of evidence, the state managed to introduce enough circumstantial evidence to prove that the bank Eady robbed was “chartered” by a state of the federal government, and therefore was a “financial institution” for purposes of § 943.87.

State v. Davis Kevin Lewis, 2014AP2773-CR, District 1, 12/01/2015 (not recommended for publication); case activity (including briefs)

Lewis (whose first name is itself a matter of dispute, (¶1 n.2)) brings three challenges to his conviction after trial; all are rejected.

State v. Cory S. Herrmann, 2015 WI App 97; case activity (including briefs)

In light of the Second Amendment decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), Wisconsin’s prohibition on the possession of a switchblade knife, § 941.24(1), is unconstitutional as applied to a person who possesses a switchblade in his or her own home.

Review of a published court of appeals decision; case activity (including briefs)

In this case the supreme court will address an important issue about the offense of using a computer to facilitate a child sex crime, § 948.075(1r). The court of appeals granted McKellips a new trial on a charge under that statute, holding the jury was erroneously instructed to decide whether McKellips’s cell phone constituted a “computerized communication system” when it should have been instructed to decide whether McKellips’s uses of the phone constituted communication via a “computerized communication system.” The supreme court might also address another issue that has implications beyond § 948.075: Namely, whether instructional error that isn’t objected to at trial can be a basis for a new trial in the interest of justice.

State v. Daniel Scott Klinkenberg, 2015AP331-CR, District 4, 11/5/15 (1-judge opinion, ineligible for publication); case activity (including briefs)

This is one of those really fact-specific decisions.  The centerpiece of the State’s case against Klinkenberg for retail theft was security camera footage that did not show him concealing merchandise of leaving the store with unpurchased merchandise. Yet the jury convicted, and the court of appeals affirmed.

State v. Mark Alan Tralmer, 2015AP715-CR, District 4, 10/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court’s implicit rejection of Tralmer’s suppression hearing testimony and acceptance of the police officer’s contrary testimony were not clearly erroneous and therefore must be upheld on appeal, State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748. Accordingly, the circuit court properly concluded that the officer had reasonable suspicion to stop Tralmer for violating § 346.05(1) by swerving into the wrong lane of traffic when there is no obstruction requiring the driver to do so, as allowed under § 346.05(1)(d).

State v. E.P., 2015AP1298-1300, 10/1/15, District 1 (1-judge opinion, ineligible for publication); case activity

A jury found grounds to terminate E.P.’s parental rights because his kids were in continuing need of protective services. The court of appeals rejected E.P.’s arguments that § 48.415(2)’s “6 months or longer” period (i.e. the time a child has been placed outside the home per a CHIPS order) begins to run only after he exhausted his appellate rights. The court also declined to order a new trial in the interests of justice.

Oneida County v. Randall J. Busarow, 2014AP2766, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Though there wasn’t direct evidence of exactly when Busarow drove and whether he was intoxicated at that time, the state need not prove the elements of an offense only by direct evidence; reasonable inferences from the evidence may suffice. Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971). The evidence in this case supported the reasonable inferences that Busarow was intoxicated when he drove and that he drove within three hours of the blood test.

State v. Maltese Lavele Williams, 2015 WI 75, 7/10/15; majority by Prosser: concurrence by Abrahamson; on certification from the court of appeals; case activity (including briefs)

All jury instruction errors are to be assessed for whether the error was harmless, the supreme court declares, including errors describing a theory of criminal culpability that was not presented to the jury or omitting a valid theory that was presented to the jury. The court therefore abrogates State v. Wulff, 207 Wis. 2d 143, 557 N.W.2d 813 (1997), which held that a jury instruction accurately setting out a legal basis for liability that does not fit evidence presented at trial should be assessed for whether the evidence was sufficient to support the basis for liability in the instruction.

State v. Robert C. Blankenheim, 2015AP239-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Blankenheim’s challenges his OAR conviction by arguing that he was unlawfully stopped, that the evidence wasn’t sufficient to prove operation on a highway, and that the police officer wasn’t a credible witness. The court of appeals disagrees “on all points….” (¶1).